HKSAR v. FAN CHI HO

DCCC 808/2018

[2020] HKDC 478

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 808 OF 2018

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to two charges of trafficking in cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

Prosecution case

Charge 1

2.  In summary at about 00:14 hours on 23 June 2018 plain clothes police officers including PC 16851 and PC 8843, were conducting an anti-narcotics operation in Yuk Yat Street in Hung Hom when they intercepted the defendant outside the ground floor of Bayview, No. 9 Yuk Yat Street.

3.  PC 16851 carried out a body search and found inside the right back pocket of the defendant’s trousers a piece of paper which was wrapping a transparent re-sealable plastic bag inside which was 11.9 grammes of a solid containing 11.0 grammes of cocaine.

4.  The prosecution relies on an admission made by the defendant when he was arrested that he was helping a friend deliver the cocaine and the post-recording of the admission.

Charge 2

5.  The defendant was then taken to his home, Flat E, 21/Floor of Bayview.  The police found on top of a wardrobe inside the master bedroom[2] a box inside which was a pink plastic bag containing 13.8 grammes of a solid containing 11.6 grammes of cocaine; forty-seven transparent re-sealable plastic bags; a digital scale and $10,000 cash.

6.  The prosecution relies on an admission made by the defendant that the cocaine was for his own consumption and the post-recording of the admission to show that the defendant was in possession of the cocaine.  The prosecution however submits that considering the quantity of the cocaine, the street value of the cocaine and that the cocaine was found together with forty-seven transparent re-sealable plastic bags; a digital scale and $10,000 cash this was not a case of simple possession but one of trafficking.

Defence case

Charge 1

7.  The defendant pleads guilty to possession of the cocaine found when he was arrested outside the ground floor of Bayview and says that all the cocaine was for his own consumption.

8.  In summary the defence case is that the defendant was intercepted by the police just after he had taken delivery of the cocaine; the cocaine was in his hand and not in his trouser pocket and that he never said that he was delivering the drugs.

Charge 2

9.  The defendant says that no drugs were found inside the master bedroom in a box on top of the wardrobe or in his home.

10.  The defendant challenges the admissibility of the admission that he said the cocaine was for his own consumption and the post-recording of the admission.

Evidence

11.  The prosecution called three of four witnesses on the list of prosecution witnesses attached to the prosecution opening:  PC 16851 (PW1), PC 8843 (PW2) and Sergeant 46576 (PW4).  The prosecution called one additional witness Detective Senior Inspector Law (PW5), the OC case[3].

12.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[4], including that the drugs found on the defendant subject of charge 1 and the drugs subject of charge 2 were sent to the Government chemist for examination[5]; the chain of evidence[6]; the residential address of the defendant[7] and photographs[8].  I will refer to the admitted facts as I review the evidence.

13.  Also admitted in evidence is the street value of the cocaine[9] together with the statement of Detective Senior Inspector Fong (PW3) which was read into evidence pursuant to section 65B of the Criminal Procedure Ordinance[10].  Also read into evidence is the statement of Dr Lau Fei Lung regarding the daily consumption of cocaine[11].

14.  A list of exhibits adduced during the trial is annexed to the prosecution opening[12].

15.  The defendant elected to give evidence and called his wife both on the voire dire and the general issue.  The defence adduced in evidence footage taken from cameras in the living room and the master bedroom showing the police officers entering the defendant’s home and looking in the master bedroom (exhibit D1).

16.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict, each charge being considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

17.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

18.  The defendant gave evidence that he had a criminal record but no previous convictions for dangerous drugs.  In cross-examination the defendant agreed that he had convictions for robbery in 2004 when he was placed on probation and for possession of an offensive weapon in 2010 when he was fined and given a suspended sentence.

19.  The defendant was 14 when he was convicted of robbery and 20 when he was convicted of possession of an offensive weapon[13].

20.  In reaching my verdict I take into account the defendant has no previous convictions for drug offences.  I direct myself that because the defendant has previous convictions does not mean he is guilty or is not telling the truth.

Prosecution evidence

21.  The alternative procedure was adopted. I will first summarise the prosecution evidence.

Outside No 9 Yuk Yat Street

22.  In summary at 1800 hours on 22 June 2018 PC 16851 (PW1) and PC 8843 (PW2), together with other team members of Special Duty Squad 2, Kowloon City District including Sgt 46576 (Sgt Kong Tat Ming) (PW4), attended a briefing conducted by Inspector Law Man Kin (PW5) about dangerous drugs activity in Hung Hom around Yuk Yat Street[14].

23.  After the briefing Inspector Law led his team, who were all in plain clothes, to the vicinity of Yuk Yak Street.  The team left in a dual-purpose van.

24.  Police officers from the Narcotics Bureau also went to Yuk Yat Street.  On arrival at Yuk Yat Street an inspector from the Narcotics Bureau gave Inspector Law a search warrant for Room E, 21/F, No. 9 Yuk Yat Street (exhibit P21).  Admitted in evidence is that at the time of his arrest the defendant resided in Room E, 21/F, No. 9 Yuk Yat Street[15].

25.  On arrival at Yuk Yat Street PC 16851 and PC 8843 conducted observations to see if anyone was suspicious.  After observing for about six hours at 0014 the next morning PC 16851 saw a male outside No. 9 Yuk Yat Street looking around and pressing his hand on the right rear pocket of his trousers.  The male was the defendant.  PC 16851 said the defendant was wearing the clothes as shown in photograph 18, exhibit P26.

26.  In answer to the court when asked whether the defendant was standing or moving outside No. 9 Yuk Yat Street, PC 16851 replied “At that time, he just walked out from No. 9 Yuk Yat Street and stayed at the entrance for a while”.[16]

27.  The defendant’s behaviour and demeanour aroused PC 16851’s suspicion so he informed PC 8843 that he would approach and intercept the defendant.  PC 16851 and PC 8843 went forward.  PC 16851 showed his warrant card explaining that they would conduct a stop and search.

28.  PC 8843 guarded the defendant while PC 16851 searched the defendant.  At 0020 hours PC 16851 found from the right rear pocket of the defendant’s trousers a tissue paper wrapping a transparent re-sealable plastic bag with a red line containing suspected dangerous drugs (exhibit P1) as shown in photographs 19-21 (exhibit P26).

29.  PC 8843 showed the court the right rear pocket of the trousers (exhibit P13) from where PC 16851 found the suspected dangerous drugs (exhibit P1)[17].

30.  PC 16851 arrested and cautioned the defendant.  The defendant replied “Ah Sir I helped my friend deliver the packet of stuff to others”.  In answer to the court PC 16851 said the defendant was arrested and cautioned for trafficking in dangerous drugs[18].

31.  In cross-examination PC 16851 disagreed that the defendant was identified to him as someone he must intercept and that nobody cautioned the defendant[19].  Inspector Law disagreed that officers from the Narcotics Bureau pointed out the defendant.

32.  PC 16851 and PC 8843 disagreed that the drugs were found in the defendant’s hands; disagreed that the transparent plastic bag containing the drugs did not have a red line and disagreed that in the defendant’s home someone switched the bags so that all the drugs seized were contained in bags with red lines.

33.  PC 16851 said that after he arrested the defendant he asked the defendant where he lived. The defendant replied Flat E, 21/Floor, Bayview, No. 9 Yuk Yat Street.  The defendant was then taken to the dual purpose van and was driven to the carpark of Bayview.  The defendant was shown the search warrant and told that a search would be conducted at his home.

34.  In cross-examination when asked why the defendant was taken to the carpark and not to the lobby of Bayview, PC 8843 replied he knew in Bayview there was a back door leading from the carpark to the building and explained that if they went in through the main entrance this would not be fair to the defendant because others would see that he was taken by the police.

Room E, 21/Floor, Bayview, No. 9 Yuk Yat Street

35.  At 0029 hours PC 16851 entered the defendant’s home together with other team members using the key which the defendant had given to him in the dual purpose van.  The defendant was not handcuffed.

36.  PC 8843 and other team members conducted a quick search of the defendant’s home to see if anyone else was in the flat.  PC 8843 said he remembered seeing the defendant’s daughters, two as far as he could recollect, and a domestic helper.  As far as he could remember no one else was present.

37.  Sgt 46576 went into each room to see if there was anyone suspicious.  Sgt 46576 found CCTV cameras in the master bedroom and the living room which he turned round so that the cameras faced down.

38.  PC 8843 conducted the house search while PC 16851 guarded the defendant and watched the search.  The defendant was in a position where he was able to see the search being carried out.  PC 8843 first conducted a search of the living room followed by the bedrooms, the toilet and the kitchen.

39.  When PC 8843 searched the master bedroom, which was at the end of the corridor, he found on top of a wardrobe a transparent plastic box (exhibit P15), as shown in photographs 6 & 7 (exhibit P26).  PC 8843 took the box down from the wardrobe and searched the box.

40.  The box contained a pink plastic bag (exhibit P14) inside which was four items: one transparent re-sealable plastic bag with a red line containing a solid suspected to be dangerous drugs (exhibit P2); one transparent re-sealable plastic bag with a red line containing many transparent re-sealable plastic bags with red lines (exhibit P10), one digital scale (exhibit P9) and $10,000 cash (exhibit P5) as shown in photographs 9-17 (exhibit P26)[20].

41.  PC 8843 counted the cash at the time he found the cash and later at about 1830 hours the same day inside the Hung Hom Police Station he counted the re-sealable bags with red lines and found that there were forty-seven bags.

42.  PC 8843 testified that he showed the four items to the defendant and PC 16851 and then put them back into the pink plastic bag and the box and put the box back on top of the wardrobe.

43.  When asked by the court whether he asked someone to guard the drugs PC 8843 replied that he asked someone to guard the bedroom but could not recall who he asked[21].

44.  PC 8843 then continued to search the other rooms of the flat. PC 8843 completed the search at 0120 hours at which time PC 16851 gave PC 8843 the suspected dangerous drugs found in the defendant’s trouser pocket (exhibit P1).

45.  In cross-examination PC 16851 and PC 8843 disagreed the drugs were not found in the box on the top of the wardrobe; disagreed the drugs were put in the box by the police; disagreed the drugs were not found in the presence of the defendant and disagreed that the drugs were not found in the flat.

46.  At 0125 hours PC 16851 arrested and cautioned the defendant. The defendant replied “Ah Sir, the stuff at my home is all for my own consumption.  It has nothing to do with my family.”  In answer to the court PC 16851 said the defendant was arrested in the living room and cautioned for trafficking in dangerous drugs[22].

47.  In cross-examination when asked why he did not caution the defendant when the drugs were found PC 16851 replied that he was not sure whether PC 8843 would find anything else in the house search and because his duty was to guard the defendant and make sure he could see the house search he chose to arrest the defendant after PC 8843 finished the search.

48.  At 0130 hours in the living room PC 16851 post-recorded in his notebook (exhibit P22) the arrest he made outside No. 9 Yuk Yat Street and the arrest made in the defendant’s home.

49.  PC 16851 first post-recorded the arrest outside No. 9 Yuk Yat Street which he then read back to the defendant and gave the defendant to read (pages 10-13).  The defendant refused to sign the post-record.

50.  In cross-examination PC 16851 disagreed that the defendant refused to sign because he said he did not say what was written down in the post-record and explained that when the defendant said he would not sign he asked him to write down that he would not sign[23]. Later in cross-examination when asked if the defendant actually wrote down “Refused to Sign” PC 16851 replied yes.  On being shown his notebook by the court PC 16851 confirmed the defendant wrote Refused to Sign on line 4, page 13 of the notebook[24].

51.  PC 16851 then asked Sgt 46576 to read the post-record to the defendant.  After Sgt 46576 read the post-record PC 16851 wrote down that the sergeant had read the post-record to the defendant after which the sergeant signed on the post-record.

52.  In cross-examination PC 16851 explained that he asked the sergeant to read the post-record because their procedure was to ask a senior officer to be a witness where a suspect refuses to sign.

53.  Apart from reading out the post-record Sgt 46576 did not speak to the defendant during the making of the post-record.

54.  PC 16851 then proceeded to post-record the arrest of the defendant in his home (pages 13-16).  PC 16851 read the post-record once after which the defendant signed and wrote out the two declarations.

55.  After finishing the post-record, the defendant was taken to Hung Hom Police station where the exhibits were shown to the Duty Officer.

56.  Admitted in evidence is that the dangerous drugs found on the defendant (exhibit P1) and the dangerous drugs (exhibit P2) were sent to the Government Chemist[25].  The Government Chemist’s Certificate is admitted in evidence as exhibit P27.

57.  At 0313 hours PC 8843 conducted a body search and seized from the defendant two mobile phones together with sim cards (exhibits P6, P7, P8, P11 & P12) and $4,000 cash (exhibit P4).

58.  Expert evidence of the street value of the cocaine and the daily consumption of cocaine was read into evidence.  This evidence is summarised later[26].

Voire dire

59.  The defence objected to the admissibility of the oral statement attributed to the defendant in answer to caution administered in his home and the post-recording of the statement in PC 16851’s notebook (pages 13-16, exhibit P22).

60.  Guided by the decision in HKSAR v Okafor[27]as applied in HKSAR v Ip Chun Yin[28]these are my reasons for ruling the oral statement and the post-record admissible in evidence.

61.  The defence case as particularised in the written grounds of objection was that the defendant never made the oral statement attributed to him by PC 16851 in his home and that he was threatened and induced by police officers from the Narcotics Bureau to admit the second offence and by Sgt 46576 (PW4) to sign the post-record[29].

62.  The defence did not object to the admissibility of the post-record of the oral statement attributed to the defendant outsideNo. 9 Yuk Yat Street, which oral statement the defendant also said he never made[30] and which part of the post-record the defendant refused to sign (pages 10-13, exhibit P22).

Prosecution evidence

63.  The prosecution relied on the evidence of PC 16851, PC 8843, Inspector Law and Sgt 46576. No police officer from the Narcotics Bureau was called.  Mr Boyton on behalf of the defendant did not require any other witness to be tendered for cross-examination.

64.  PC 16851 testified that the post-record was an accurate record.  All the prosecution witnesses testified that they did not nor did any police officer in their presence threaten or induce the defendant in any way[31].

Defence evidence

65.  The defendant gave evidence and called his wife as his witness.

66.  In summary the defendant testified that after entering his home he was taken into the master bedroom by five police officers who said they were from “NB”.  The defendant said he did not know what “NB” stood for.

67.  The defendant was asked if he had any information to supply[32].  The defendant asked what information they wanted and what advantage would he receive if he supplied the information.  The defendant was told that if he provided the information they can apply to court for him to be given a two-thirds reduction in sentence.  After thinking for a while the defendant supplied information about who he obtained the drugs from and how much he paid.

68.  In cross-examination the defendant said that by asking what advantage would he receive he hoped that if he provided information the police would let him go.

69.  The defendant was then asked if he had any more information to supply.  When the defendant said he had no more information to supply he was told they may not be able to mitigate for him.  In cross-examination the defendant agreed that this happened before the police claimed any drugs were found in the flat.  The police officers from the Narcotics Bureau then left the master bedroom.

70.  In the presence of PC 16851 and PC 8843 the sergeant alleged that drugs had been found in the flat and asked the defendant for his explanation.  This was said in the master bedroom.  The defendant replied that the drugs were not his and that he did not have drugs in his home.

71.  In cross-examination the defendant said that the sergeant said this in the presence of PC 8843 and one other police officer who did not give evidence. The defendant said that he had no idea where PC 16851 was when this was said.

72.  The sergeant then told the defendant to go to the living room and stand in front of the table shown in photograph 4.  PC 16851 was sitting on one of the chairs next to the table.  The defendant’s wife was sat on the sofa and was very frightened.

73.  The defendant testified that the sergeant then wrote something in his notebook, which the defendant described as a “post-record of that kind of cautioned statement”.   The defendant said he was not very clear what a post-record was.

74.  The defendant was shownthe notebook of PC 16851 (exhibit P22) and said this was what he was referring to as the post-record.  The defendant said pages 10 and 11 were not written in his presence and that when the notebook was shown to him everything had been written up to the signature of PC 16851 on line 3, page 13 (the post-record of the arrest on Yuk Yat Street).

75.  The sergeant then read out what was written in the notebook.  In cross-examination the defendant said that he saw the sergeant pick the notebook up off the table and without any explanation started to read from the notebook.

76.  The defendant told the sergeant he did not say that (“Ah Sir I helped my friend deliver the packet of stuff to others”) and refused to sign the notebook. The sergeant then told the defendant to write down that he refused to sign.

77.  In cross-examination the defendant said he was initially told to sign on line 3, page 13; that when he refused to sign he was told to read the notebook; after reading the notebook he was told to write “Refused to sign” on line 4, page 13; when he wrote “Refused to sign” on line 4 PC 16851 had not yet signed on line 3 and that he was not forced, threatened or induced into writing “Refused to Sign”.

78.  After the defendant wrote refused to sign in the notebook (line 4, page 13) the sergeant took the defendant to the master bedroom and told the defendant that if he refused to sign his wife would be arrested as well[33].  The defendant insisted that he would not sign.

79.  In cross-examination the defendant said that when the sergeant threatened him in the bedroom that his wife would be arrested he also told the sergeant that he did not say “Ah Sir I helped my friend deliver the packet of stuff to others” and said that the stuff was only for his own consumption.

80.  The sergeant then took the defendant back to the living room.  While the defendant was standing in the corridor shown in photograph 5, about three to four steps from where his wife was sitting on the sofa, the sergeant repeated that if the defendant refused to sign he would arrest his wife as well.  On hearing this the defendant’s wife cried. 

81.  The sergeant also told the defendant to find some relatives to look after the children.  The defendant afraid that his wife would be arrested and that there would be no one to take care of the children said the stuff was for his own consumption and had nothing to do with his family. At the end of cross-examination, the defendant disagreed that he was not threatened or induced into saying “Ah Sir, the stuff at my home is all for my own consumption.  It has nothing to do with my family.”

82.  The defendant was again shown the notebook by which time pages 13, 14 and 15 had been written up to the signatures on page 15 (the post-record of the arrest in the home).  The sergeant read out pages 13, 14 and 15 and asked the defendant to sign.  The defendant signed because the sergeant had said his wife would be arrested if he did not sign.

83.  In cross-examination the defendant said that he did not see PC 16851 write pages 13, 14 and 15; that by the time he returned to the living room with the sergeant the notebook entry had already been completed; he told the sergeant he would not sign whereupon the sergeant threatened him again that he would arrest his wife and that he was never asked to resign the first entry.

84.  The defendant said that the sergeant never cautioned him in his home; that only PC 16851 cautioned him when he first walked out from the master bedroom into the living room and that PC 16851 only cautioned him about the arrest downstairs and not about the drugs allegedly found in his home.

Defendant’s wife

85.  In summary the defendant’s wife testified that she returned home that morning at around 1 a.m. to find three police officers at the entrance of her home.  After a long conversation she was allowed to go inside and saw fifteen to sixteen police officers who told her to stand aside.  The police checked her mobile phone and handbag and conducted a search.

86.  At a very late stage the defendant’s wife said she had dealings with a police officer she identified as Sgt 46576.  The wife was sitting on the sofa when she saw the sergeant walk out of a room into the corridor with his hand on the shoulder of the defendant.

87.  The sergeant said to the defendant if he did not sign his wife would be arrested as well.  The wife not knowing what the defendant was asked to sign or what was going on was very frightened and began to cry.

Discussion

88.  I carefully considered all the evidence and the written submissions of Mr Donald and Mr Boyton.  I took into account witnesses were testifying about events which happened over eighteen months earlier.

89.  The issue was one of credibility.  I had no hesitation in rejecting the defence evidence.  I did not find the evidence of the defendant or his wife credible.

90.  I rejected the allegation that unknown Narcotics Bureau Officers threatened and induced the defendant to admit the second offence[34].  The defendant did not give evidence in support of this allegation and in cross-examination said the police officers from the Narcotics Bureau spoke to him before any drugs were alleged to have been found in his home[35].

91.  Mr Boyton submitted that a degree of suspicion arose from the defendant first refusing to sign the notebook relating to an alleged confession to trafficking in the drugs found on him outside No. 9 Yuk Yat Street and in less than thirty minutes signing the notebook adopting a full confession to the possession of drugs found in his home[36].

92.  I did not find credible the defendant’s evidence that as soon as he had written “Refused to sign” he was taken by the sergeant into the master bedroom and threatened that if he did not sign his wife would be arrested and that he was afraid his wife would be arrested leaving no one to look after the children.

93.  I rejected that there was no one to look after the children.  When the police took the defendant to his home his wife was not at home and the children were being looked after by their domestic helper[37].

94.  I rejected the sergeant ever threatened to arrest the defendant’s wife.  In reaching this finding I carefully considered the evidence of the defendant’s wife that she heard the sergeant threaten the defendant if he did not sign she would be arrested.

95.  I did not find the wife’s evidence credible.  Apart from hearing the sergeant threaten her husband the evidence of the wife did not support the evidence of the defendant, for example the wife testified that except when she went to the toilet and saw that her husband was in the master bedroom she did not see him again until a late stage when he came out of the bedroom with the sergeant.

96.  In cross-examination the wife said she first saw her husband about half an hour after she entered the flat when she went to the toilet; after that she did not see her husband come out of the bedroom for quite some time and that before her husband came out two to three police officers came out first and left the flat. In answer to the court the wife said that she thought it was about three quarters of an hour after going to the toilet that her husband and the sergeant came out of the bedroom[38].

97.  This was very different to the defendant’s evidence that after he was told drugs had been found in his home he was taken from the master bedroom to the living room; asked to sign the post-record (exhibit P22); after writing “Refused to sign” in the notebook he was taken back to the master bedroom where he was threatened and was then taken back to the living room to complete the post-record.

98.  According to the defendant’s wife she only saw the defendant come out of the master bedroom once.  If she had been in the flat for over one hour she should have seen the defendant being brought out of the master bedroom, heard him refuse to sign and then taken back into the master bedroom[39].

99.  In cross-examination the wife said that her husband did not say anything whereas the defendant testified that he said all the stuff was his and had nothing to do with his family after the sergeant repeated that if he did not sign he would arrest his wife and told him he needed to get a relative to look after the children.

100.  Notwithstanding the wife was giving evidence about what happened eighteen months earlier and no doubt would have been frightened to see so many policemen in her home, I was satisfied she was not telling the truth and rejected her evidence.

101.  The rejection of the defence evidence was not determinative of admissibility.  The burden of proving admissibility was on the prosecution to prove beyond reasonable doubt.

102.  In support of his submission that there was a degree of suspicion in the defendant first refusing to sign and then later signing the post-record Mr Boyton referred the court to various matters of concern in relation to the credibility of the police witnesses, including the identification of the defendant; the search warrant and the physical search of the flat[40].

103.  Although these matters related to the general issue I nevertheless gave careful consideration to the matters of concern raised by Mr Boyton[41].

104.  Having carefully considered all the evidence and the submissions made I was satisfied so I was sure that the police officers were witnesses of truth who gave credible and reliable evidence.  I was satisfied so I was sure that the defendant was not threatened or induced as alleged.

105.  I was satisfied beyond reasonable doubt that the oral statement attributed to the defendant in his home, if said, was said voluntarily and that the post-record was signed voluntarily, the oral statement and the post-record being considered separately.

106.  Although no allegation of impropriety was alleged at or about the time the oral statement attributed to the defendant outside No. 9 Yuk Yat Street was said to be uttered, I also ruled that the oral statement, if said, was said voluntarily.

107.  Nothing said by Mr Boyton caused me to doubt the prosecution evidence and that the oral statements, if said, were said voluntarily and that the post-record was signed voluntarily.

108.  Mr Boyton further submitted that the post-record was not an accurate record in that there was no reference in the post-record to an interval when PC 8843 took the defendant’s photograph, photograph 18[42]. This submission arises from the evidence of PC 8843 regarding the seizing of the defendant’s trousers which is summarised in Mr Boyton’s written submissions.

109.  Whether or not PC 8843 seized the defendant’s trousers in the defendant’s home or in the police station is in my view not material.  As pointed out by Mr Boyton the photographs were taken during the time PC 16851 was post-recording the arrest of the defendant outside No. 9 Yuk Yat Street[43]. No objection was taken to the admissibility of this part of the post-record which part the defendant refused to sign.

110.  The omission in the post-record to record the interval to take the photograph did not cause me to doubt the post-record was signed voluntarily or gave cause to exercise my discretion to exclude the post-record from evidence.

111.  Mr Boyton also submitted that the different approach adopted by PC 16851 with regard to the declarations written after reading out the post-records was strong evidence the defendant was threatened[44]. The fact that the declaration written by PC 16851 after the first post-record was read out is different to the declaration written out by the defendant after the second post-record did not cause me to doubt the post-record was signed voluntarily or gave cause to exercise my discretion to exclude the post-record from evidence.

112.  Applying the principles established in HKSAR v Lam Tat-ming[45]I found no grounds to exercise my discretion to exclude from evidence the oral statements attributed to the defendant or the post-recording of those statements.

Trafficking in a dangerous drug

Prosecution evidence

113.  The prosecution relies on the oral evidence of PC 16851, PC 8843, Inspector Law and Sgt 46576.  No police officer from the Narcotics Bureau was called.  Mr Boyton on behalf of the defendant did not require any other witness to be tendered for cross-examination.

114.  The evidence of PC 16851, PC 8843, Inspector Law and Sgt 46576 has already been summarised[46].  Briefly, PC 16851 and PC 8843 intercepted the defendant outside No. 9 Yuk Yat Street.  PC 16851 found cocaine (exhibit P1) in the right rear pocket of the defendant’s trousers. Under caution the defendant admitted that he was delivering the drugs for a friend.

115.  The defendant was then taken to his residence where PC 8843 found on top of a wardrobe in the master bedroom a transparent plastic box inside which was a pink plastic bag containingcocaine (exhibit P2); one transparent re-sealable plastic bag with a red line containing forty-seven re-sealable plastic bags with red lines (exhibit P10); one digital scale (exhibit P9) and $10,000 cash (exhibit P5).  Under caution the defendant admitted that the drugs were for his own consumption.

116.  The admissions of the defendant were post-recorded in the notebook of PC 16851 (exhibit P22).

117.  The prosecution also relies on the statement of Detective Senior Inspector Fong on the street value of cocaine[47] and the statement of Dr Lau Fei Lung with regard to the daily consumption of cocaine[48] which statements were read into evidence pursuant to section 65B of the Criminal Procedure Ordinance.

118.  In summary Detective Senior Inspector Fong was of the opinion that the average retail price of crack cocaine in June 2018 was $1,264 per gramme.

119.  In summary the evidence of Dr Lau is that the daily consumption of cocaine is highly variable because the usage pattern was irregular which was indicative of recreational use.  Depending on the purity of the cocaine a typical chronic user would take between 25 to 50 mg per insufflation and would repeat the dose many times a day with a daily dose of 0.2 to 0.5 gm whereas a new user may stop after one or two insufflations and would not use cocaine regularly.  A heavy user may binge on cocaine up to 2-3 gm in repeated doses[49].

Defence evidence

120.  The defendant gave evidence and called Mr Cheng Chi Fung, para legal with Wong & Co and his wife as his witnesses.  Both the defendant and his wife adopted their evidence given on the voire dire.

Admissibility of the video footage (exhibit D1)

121.  The defence adduced in evidence footage taken from two cameras, one in the living room and one in the master bedroom[50]. The footage of the master bedroom was played to both PC 16851 and PC 8843 whereas the footage of the living room was only played to PC 16851.

122.  The sergeant testified that he found two cameras, one in the living room and one in the bedroom.  The sergeant recalled the camera in the bedroom was on top of the wardrobe and that he turned the camera face down.

123.  The defendant testified that there were three cameras in his home, in the living room, the master bedroom and the kitchen.  The defendant produced the three cameras (exhibits D4, D5 and D6).The defendant’s wife testified that she purchased the three cameras in October 2017 and that the cameras were operating properly in June 2018.

124.  In cross-examination the defendant’s wife said the cameras were purchased to monitor the children and that about one month after buying the cameras she switched off the camera in the kitchen because the children seldom went into the kitchen.

125.  The wife testified that she downloaded the “Eye4” app on her mobile phone and connected the cameras to her mobile phone and the mobile phone of the defendant. A screen capture from the mobile phone of the wife was produced showing the icon for the app (exhibit D7) and the user manual of the cameras (exhibit D8A)[51].

126.  The defendant and his wife could view from their mobile phones via the Eye4 app both live footage and images recorded by the cameras.  In cross-examination the defendant’s wife said that she was not in the daily habit of checking her mobile phone to see what was happening at home and that she checked more often after buying the cameras than she did in June 2018.

127.  The defendant and his wife both explained that the footage was recorded on memory cards which were inserted into the back of the cameras.  The defendant produced the three memory cards (exhibits D4A, D5A and D6A).  The defendant’s wife explained how she downloaded the footage and viewed the footage on her mobile phone using the Eye4 app.  With reference to exhibit D7 the defendant’s wife demonstrated in court how to use the Eye4 app which was still on her mobile phone.

128.  After the defendant was arrested and taken to the police station the defendant’s wife switched on the Eye4 app trying to see what had happened.  The defendant’s wife realised that the police had removed the cables from the cameras.  After reconnecting the cameras, the defendant’s wife viewed at once what had happened but did not think the content was useful.

129.  The defendant’s wife testified that when she visited the defendant in custody he mentioned the cameras and asked her to download the footage.  The wife downloaded the last clips capturing the police removing the cables from the cameras in the living room and the master bedroom onto her mobile phone.  The defendant’s wife said she downloaded two entire clips and did not cut anything.

130.  In January 2019, prior to the defendant applying for bail, the defendant’s wife sent the clips by WhatsApp to the defendant’s solicitors, Wong & Co.  Mr Cheng Chi Fung, para legal with Wong & Co, testified that he received the clips from the defendant’s wife which he burned onto a disc (exhibit D1). The defendant’s wife testified that after the burning of the disc she viewed the disc and that the two clips were identical to the two clips downloaded onto her mobile phone. 

131.  At a later date, after the defendant was released on bail, Mr Cheng received the memory cards which he put in a card reader but was unable to access the content. Mr Cheng, the defendant and his wife had no idea why the files could not be accessed.

132.  In the course of the trial the prosecution was given access to the memory cards but was also unable to read the cards.

133.  I was satisfied on the evidence that the video clips of the master bedroom and the living room were prima facie authentic[52]. Although it has not been possible to view the memory cards recording the video clips I am nevertheless satisfied on the evidence as to the authenticity of the video clips, in particular the evidence of the defendant’s wife; the evidence in cross-examination that PC 16851 agreed the video clip of the living room accurately showed the arrival of the police officers and that both PC 16851 and PC 8843 agreed that the video clip of the master bedroom showed the sergeant moving the camera.

Defendant’s evidence

Outside No 9 Yuk Yat Street

134.  In summary the defendant testified that at around 18:30 hours on 22 June 2018 he telephoned his friend asking him to bring him some drugs.  The defendant asked for 12 grammes of cocaine and agreed the price at $6,000.

135.  At 23:45 hours the defendant’s friend called asking the defendant to go downstairs.  About five minutes later the defendant saw his friend on Yuk Yat Street.  The friend gave the defendant the drugs which were wrapped in tissue paper.  The defendant paid his friend $6,000 for the drugs.  The drugs were for the defendant’s own consumption.

136.  The defendant then walked home.  When the defendant almost reached his residence he was pulled from behind by a police officer.  The defendant looked back and saw about ten police officers running towards him.  The defendant was stopped and was asked for his identity card.  The defendant said he later learnt that the police officer who stopped him was from the Narcotics Bureau.

137.  On seeing the defendant holding something in his hand a police officer asked the defendant to show him what was in his hand.  The defendant said the drugs were not found in his trouser pocket and that he had no recollection of ever putting the drugs in his trouser pocket.

138.  The defendant handed over the drugs.  The police officer unwrapped the tissue paper and asked the defendant what it was.  The defendant replied dangerous drugs. The police officer then asked the defendant who he obtained the drugs from. The defendant replied that his friend had brought the drugs to him and that his friend had just left.  The police officer then asked the defendant what he had the drugs for.  The defendant replied for his own consumption.

139.  The defendant said he could not remember who he handed the drugs to but was sure he did not hand the drugs to either PC 16851 or PC 8843.  Later when asked who he had the conversation with about his friend bringing the drugs the defendant replied the sergeant.  When the court clarified these answers the defendant said that it was the sergeant who asked him what was in his hand and that he handed the drugs to another police officer.

140.  The defendant said he was also asked where he lived and what work he did by PC 16851 and PC 8843.

141.  The defendant said he was arrested in the street but was never cautioned and never said “Ah Sir I helped my friend deliver the packet of stuff to others”.  The defendant could not remember who arrested him. 

142.  About fifteen minutes after he was intercepted the defendant boarded a police van and was taken to the carpark of Bayview.  The police parked the van in the drop-off area.  The defendant alighted as soon as the van stopped.  At no time did any police officer show the defendant the search warrant (exhibit P21).

Room E, 21/Floor, Bayview, No. 9 Yuk Yat Street

143.  The defendant was then taken to his home using the lift.  There was about nine police officers in the lift including PC 16851, PC 8843, the inspector, the sergeant and one police officer from the Narcotics Bureau.  A police officer operated the lift using the defendant’s access card.  The defendant said there was no conversation in the lift.

144.  The sergeant opened the door to the flat using keys given to him by the defendant. The defendant confirmed that the entry into the flat was as shown in the video of the living room (exhibit D1).  The defendant was escorted into his home by a police officer who placed his hand on the defendant’s shoulder.  The defendant could not remember which police officer did this.  When asked if it was PC 16851 or PC 8843 the defendant replied it was possible.

145.  The defendant saw several police officers, including the sergeant, heading to his bedroom (“the master bedroom”)[53]. When they came out of the master bedroom the sergeant told the defendant to inform the domestic helper to take the children out of the master bedroom.  The defendant knocked on the door of the helper’s room and woke the helper up.  The helper then carried the two children to her room.  The defendant said the police never searched the helper’s room.

146.  About five minutes later, after the sergeant and his squad members had left the master bedroom, other police officers from the Narcotics Bureau arrived and went into the master bedroom.  About two minutes later the defendant was asked to go into the master bedroom.

147.  The defendant adopted his evidence given on the special issue about what happened when police officers from the Narcotics Bureau asked him whether he had any information to supply[54].

148.  After the police officers from the Narcotics Bureau left three police officers entered the master bedroom, the sergeant and two squad members.  The defendant did not know the names or numbers of these two police officers and when asked if they gave evidence replied “No”.

The plastic box (exhibit P15)

149.  The sergeant and the two police officers looked around the bedroomand found on the floor next to the head of the bed a plastic box(exhibit P15).  The defendant said the plastic box was not found on the top of the wardrobe as shown in photograph 7 and that the black suitcase shown in photographs 5 and 6 was originally placed on top of the wardrobe to the right of where the plastic box is shown.

150.  In cross-examination the defendant’s wife also said that the plastic box was placed on the floor next to the bed and that the black suitcase was kept on top of the wardrobe.

151.  The defendant said that the camera was positioned to the right of where the plastic box is shown in photograph 7 but cannot be seen in the photograph.

The pink plastic bag (exhibit P14)

152.  The defendant testified that the pink plastic bag (exhibit P14) was not found in the plastic box and that the box contained utility bills and other ordinary letters.  One of the two other police officers emptied the box and handed the box to the other police officer who took the box out of the master bedroom.

153.  In cross-examination the defendant’s wife also said that the plastic box contained letters and that all the letters had been poured onto the bed.

The dangerous drugs (exhibit P2) and the digital scale (exhibit P9)

154.  After a while the same police officer brought the plastic box back into the master bedroom.  The box now contained the pink plastic bag.  The police officer opened the box and said dangerous drugs (exhibit P2) and a digital scale (exhibit P9) were found inside the pink plastic bag.

155.  The defendant said that he did not know where the pink plastic bag came from.  In answer to the court when asked if the pink plastic bag belonged to his family the defendant replied that it seemed he had seen the bag but had no recollection of where he had seen the bag[55].

156.  In cross-examination the defendant’s wife said the pink plastic bag was kept in one of the drawers next to her bed.

157.  The defendant was stunned and said to the police officer “These things are not mine”.  Inside the bedroom when the contents of the box were shown to him the defendant did not say “Ah Sir, the stuff at my home is all for my own consumption.  It has nothing to do with my family”.  Nobody declared arrest and the defendant was not cautioned.

The digital scale (exhibit P9)

158.  The defendant said that the digital scale was his and was kept on top of the wardrobe at the end nearest to the window as shown in screen capture, exhibit D2A.  The screen capture appears to show two items.  In answer to the court the defendant said the scale was the bottom item with the LCD screen exposed.

159.  In cross-examination the defendant’s wife also said that the digital scale was all along kept on top of the wardrobe and in re-examination pointed to the bottom item on the screen capture, exhibit D2A.

160.  The defendant used the scale to weigh the dangerous drugs to ensure that he had not been cheated because the drugs were expensive to buy.  Later in evidence the defendant said he kept the digital scale on top of the wardrobe for convenience. In answer to the court the defendant said he did not see the police remove the scale from the top of the wardrobe[56].

161.  In cross-examination the defendant’s wife said that she asked the defendant about the digital scale but could not remember what she asked but did remember the defendant saying that he used the scale for controlling the amount he consumed and to avoid being cheated by others.

162.  About a minute later the defendant heard a police officer from outside the master bedroom asking him to go out.  The defendant went out into the living room. When the defendant was between the corridor and the living room the sergeant said to him for the first time, “If you don’t admit it, your wife will be arrested as well.”  The defendant said “The stuff is not mine. Don’t cause trouble to my wife”.

163.  The sergeant then told the defendant to go to the table and showed him the notebook which the defendant later refused to sign.  At this stage the defendant adopted his evidence given on the special issue about what happened when the post-record was made[57].

Forty-seven transparent re-sealable plastic bags (exhibit P10) and $10,000 cash (exhibit P5)

164.  The defendant testified that the pink plastic bag did not contain the forty-seven transparent re-sealable plastic bags (exhibit P10) or the $10,000 cash (exhibit P5) as alleged by the police.

$10,000 cash

165.  The defendant testified that the sergeant seized the cash from a drawer beside the head of the bed in the master bedroom.  The cash belonged to his wife.  At the time there was $40,000 cash not $10,000.  After signing the notebook, the sergeant told the defendant to go into the master bedroom together with his wife. Inside the bedroom the sergeant told them he knew they had three children and therefore gave them back $30,000 saying the remaining $10,000 would be used for bail.

166.  In cross-examination the defendant’s wife also said that she was asked to go into the master bedroom; the sergeant took out the money from the drawer and said he would not take all the money because he knew they had three children to look after and said that $10,000 would be for bail of the defendant.

167.  Later in cross-examination the defendant’s wife said she also kept her underwear in the same drawer; that the money was from doing online business because sometimes she needed to go out for selling dieting products; she would keep the money from the sales and that she kept so much money in the drawer because it would be cheaper to buy the products in larger quantities[58].

Forty-seven transparent re-sealable plastic bags

168.  The defendant explained that the transparent re-sealable plastic bags were normally kept in the kitchen and belonged to his wife who used them for storing the milk powder, exhibit D3, which was a healthy drink his wife consumed[59].

169.  The defendant’s wife testified that exhibit D3 was collagen powder which belonged to her and was added to drinks to help improve her skin; when going out she would put some of the powder in a small re-sealable transparent bag similar to the re-sealable plastic bags (exhibit P10); the forty-seven transparent re-sealable plastic bags belonged to her and were kept in the kitchen in a cabinet next to the refrigerator and that during the search she saw somebody remove the re-sealable plastic bags from the cabinet but had no idea who this person was.

170.  In cross-examination the defendant’s wife said that after her friend bought the bag of collagen powder (exhibit D3) for her from Japan she found that she would easily forget to drink the powder when she went out therefore she bought the transparent re-sealable plastic bags for storing the powder.

171.  The defendant’s wife testified that when she returned home that night she had a small re-sealable transparent bag containing some collagen powder inside her handbag.  The police did not believe her that the bag contained collagen powder and suspected the powder was dangerous drugs.

172.  The police then randomly poured the powder in a glass of lemon tea which was on the table in the living room and told the defendant’s wife to drink the tea.  The police said they would be able to tell if the powder was dangerous drugs if she drank the tea.  The defendant’s wife then drank the tea in the living room after which the police said nothing.

173.  In cross-examination the defendant’s wife said this happened when she arrived home and the police searched her handbag and that she was only searched later when she was taken to the toilet.

174.  The defendant’s wife said she was never taken into the kitchen.  Asked by Mr Boyton how she knew the forty-seven transparent re-sealable plastic bags were removed by the police from the kitchen the defendant’s wife replied that when she was explaining that the small re-sealable transparent bag in her handbag contained collagen milk powder she told the police the bag of collagen powder was in the kitchen.  The police then went into the kitchen to find the collagen powder which was put together with the forty-seven transparent re-sealable plastic bags in one large Ziploc bag.

175.  In answer to the court the defendant’s wife said that she took the powder out with her because she needed to drink the powder twice a day, in the afternoon and in the evening; that she took two bags out with her and that on the day the defendant was arrested she had forgotten to drink the second bag and therefore she still had the bag in her handbag when she returned home[60].

176.  The defence evidence on addiction is summarised later when discussing charge 1 and the defendant’s claim that the cocaine was for his own consumption[61].

Discussion

177.  I have carefully considered all the evidence and the submissions of Mr Donald and Mr Boyton. I have taken into account witnesses were testifying about events which happened over eighteen months earlier.

Consideration of the defence evidence

178.  I have no hesitation in rejecting the defence evidence.  I do not find the evidence of the defendant or his wife credible.

Charge 1

179.  I do not find credible the defendant’s evidence that just prior to interception he purchased cocaine for his own consumption.

180.  The police were conducting observation in Yuk Yat Street and had been for several hours before they saw the defendant.  I find inherently improbable that if the defendant had just left his home and conducted a drug transaction that this transaction would not have been seen by the police.

181.  If the police were only looking for the defendant as contended by the defence, then the police would not have failed to see that the defendant had just left his home and conducted a drug transaction in which the defendant says he purchased the drugs.

182.  I do not find credible the defendant’s evidence that the dealer would go to the defendant’s place to conduct the sale.  In cross-examination the defendant said that the normal arrangement for the past year was that he would call the dealer, the same dealer, who would then go to his place to sell him the drugs.

183.  I find inherently improbable that a seller of drugs would go to meet the buyer thereby increasing the risk of the seller of being stopped and searched as opposed to the buyer going to meet the seller.

184.  I do not find credible the defendant’s evidence that he paid $6,000 for the cocaine.  The cocaine being in solid form is crack cocaine[62] and attracts a higher price than cocaine powder[63]. I accept the opinion of Detective Senior Inspector Fong that the average retail price of crack cocaine in June 2018 was $1,264 per gramme[64].   11.9 grammes of crack cocaine could therefore sell at street level to drug abusers for $15,041.

185.  I reject the defendant’s evidence that he was walking back home when he was intercepted by the police having paid $6,000 for the cocaine, which was substantially less than the street value, around 60% less.

Charge 2

186.  I do not find credible the defendant’s evidence about what happened when the police took him to his home to search his home.

187.  The defendant gave different accounts as to who was present when he was told drugs had been found in his home[65]. In the voire dire the defendant testified that in the master bedroom the sergeant, in the presence of PC 16851 and PC 8843, alleged that drugs had been found in the flat and asked the defendant for an explanation whereas in cross-examination the defendant said that the sergeant said this in the presence of PC 8843 and one other officer, not PC 16851[66].

188.  On the general issue the defendant testified that after the police officers from the Narcotics Bureau left the master bedroom the sergeant and two squad members, who did not give evidence, entered the master bedroom; inside the bedroom the plastic box (exhibit P15) was found and emptied; one of the police officers left with the plastic box and later returned with the plastic box saying that cocaine had been found inside a pink plastic bag which was now inside the plastic box[67].

189.  In cross-examination the defendant disagreed he said on the voire dire that PC 16851 and PC 8843 were present when the sergeant alleged drugs had been found. Only after the audio of his evidence was played in court the defendant agreed he had given two different versions but disagreed he was making up his evidence.

190.  Further, I note that the defendant’s evidence on the general issue was inconsistent with the case put by Mr Boyton to PC 16851 and PC 8845 that PC 8845 was the police officer who found the plastic box on the floor of the master bedroom and poured out the contents and that PC 16851 was the police officer who left with the plastic box and returned with the pink plastic bag containing the cocaine and the digital scale inside the box.

191.  I do not find credible the defendant’s evidence and that of his wife that the sergeant found $40,000 from a drawer in the master bedroom and that the sergeant gave $30,000 back and kept $10,000 which he said could be used for bail[68].  I find inherently improbable the police having found a substantial sum of money which may have been in the defendant’s possession for drug dealing would have given back most of the money to the defendant and his wife.

192.  I do not find credible the defence evidence about the pink plastic bag (exhibit P14). The defendant had no recollection of where the pink plastic bag was kept.  The wife testified the pink plastic bag was also kept in one of the drawers by her bed.

193.  I find inherently improbable if the pink plastic bag was kept in one of the drawers that the defendant did not see the police find the pink plastic bag and take the bag out of the master bedroom before returning with the plastic box and the pink plastic bag inside.

194.  I do not find credible the defendant’s wife’s evidence that the forty-seven transparent plastic bags (exhibit P10) were used for storing collagen powder; she took two packets of powder out each day; that on the night her husband was arrested she returned home with one packet having forgotten to drink the powder and that the police made her drink the powder to show the powder was not dangerous drugs.

195.  I find inherently improbable that the police would make the defendant’s wife drink the powder if they thought the powder was dangerous drugs.  I find this evidence entirely contrived in an attempt to explain why there was forty-seven empty transparent plastic bags in her home, bags which were similar to the transparent re-sealable bag containing the cocaine found on the defendant when he was arrested outside No. 9 Yuk Yat Street.

196.  I reject the defence evidence about what happened when the police searched the defendant’s home.

197.  I remind myself that the rejection of defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Consideration of the prosecution evidence

Charge 2

198.  I propose first to consider whether the defence video clip of the master bedroom (exhibit D1) casts doubt on the prosecution evidence that the plastic box (exhibit P15), which the police say contained cocaine, transparent plastic bags, cash and a digital scale, was found on top of the wardrobe.

199.  Mr Boyton submits that the video clip (exhibit D1) severely undermines the credibility of the police party[69].

Was the plastic box (exhibit P15) found on top of the wardrobe?

200.  Much reliance is placed on the screen capture (exhibit D2A) which Mr Boyton submits clearly shows that the plastic box was not on top of the wardrobe when the police entered the master bedroom.

201.  Photograph 7, exhibit P26 shows various items behind the plastic box.  In answer to the court the defendant said that these items were on the wardrobe in the position shown in the photograph[70]. The screen capture (exhibit D2A) does not show any of these items.

202.  Further, the defendant said that the black suitcase shown in photographs 5 and 6 was also on top of the wardrobe.  In answer to the court the defendant said that the suitcase was of the size which required to be checked-in and that there was another suitcase on top and one smaller suitcase on the side[71].  The screen capture (exhibit D2A) also does not show the suitcases.

203.  In answer to the court the defendant’s wife said that the strap shown on the top left of the wardrobe in photograph 7 maybe from a camera which belonged to her and that she could not see the strap in the screen capture, exhibit D2A[72].

204.  Photograph 7 does not show the whole of the top of the wardrobe, in particular neither the side of the wardrobe nearest to the curtains as shown in screen capture, exhibit D2A nor the other end of the wardrobe showing the camera are captured in the photograph.

205.  I am satisfied that the screen capture, exhibit D2A also does not show the whole of the top of the wardrobe, in particular the side where the sergeant is seen moving the camera.

206.  The screen capture together with the video clip does not cause me to doubt the evidence of the police officers that the plastic box was found on top of the wardrobe.

Was the digital scale (exhibit P9) found in the plastic box?

207.  The defendant and his wife both testified that the digital scale was on top of the wardrobe as shown in screen capture, exhibit D2A and not found in the plastic box[73].

208.  This was not put in cross-examination by Mr Boyton to any witness.  I asked to be addressed in final submissions whether there was a breach of the rule in Browne v Dunn and referred the parties to the recent decision of the Court of Appeal in HKSAR v Chan Hing Kai[74].

209.  Mr Boyton only asked PC 16851 about the digital scale[75].  PC 8843 was not asked any questions about the digital scale.

210.  After PC 16851 said he was not sure what the two items shown on the screen capture were Mr Boyton asked PC 16851 “Isn’t one of the items the scale depicted in photo 13 which ended up in the pink bag?”

211.  The court clarified with Mr Boyton whether he was putting to PC 16851 that one of the items was the digital scale.  Mr Boyton then asked PC 16851 whether one of the items was a scale.  PC 16851 replied he was not sure by just looking at the screen capture.

212.  Mr Boyton next asked PC 16851 “Is it not this scale in photograph 13?” I asked to see the digital scale and again clarified with Mr Boyton whether it was the defence case one of the items shown on the screen capture was the digital scale.  Mr Boyton replied, “It’s not my case, no.”

213.  The digital scale was then marked exhibit P9 and shown to PC 16851.  PC 16851 was asked if he was able to say whether either of the items shown on the screen capture was the digital scale, exhibit P9.  PC 16851 replied “No”.

214.  In his final submission Mr Boyton, after listening to the audio of what he told the court when cross-examining PC 16851, said that he had no idea why he told the court that it was not his case the digital scale was on top of the wardrobe. Mr Boyton said that it was always the defence case, both in the bail application and at trial, that the digital scale was on top of the wardrobe and not found in the plastic box.

215.  Mr Boyton having not put his case about the digital scale to PC 8843, the police officer who testified he found the digital scale inside the plastic box, applied to recall PC 8843 to put his case.  I granted the application.

216.  In further cross-examination when put that one of the two items on screen capture, exhibit D2A, was a scale PC 8843 replied “It looks like a scale but I am not sure”.  PC 8843 disagreed that the digital scale, exhibit P9 was one of the two items shown on the top of the wardrobe in screen capture, exhibit D2A and disagreed that the digital scale, exhibit P9 was not found in the plastic box.

217.  In answer to the court PC 8843 said that he did check the two items shown on the top of the wardrobe in screen capture, exhibit D2A but could not now recall very well what they were.

218.  In answer to the court the defendant said that he did not see the police remove the digital scale from the top of the wardrobe.  The defendant’s wife testified that the pink plastic bag (exhibit P14) was kept in one of the drawers next to her bed.  In answer to the court the defendant said he did not know where the pink plastic bag was kept[76].

219.  If the defence evidence is true or maybe true that the digital scale was on top of the wardrobe and the pink plastic bag was in a drawer next to the bed it is most surprising that the defendant did not see either or both the digital scale and the plastic bag being taken out of the master bedroom.

220.  The fact that the defendant did not see either the digital scale or the plastic bag taken out of the master bedroom tends to show that the digital scale may not have been on top of the wardrobe and the pink plastic bag may not have been in a drawer next to the bed.

221.  However, after very careful consideration of the evidence and repeated viewing of the video clip of the master bedroom, I find I cannot safely say that the lower of the two items shown on the top of the wardrobe in screen capture, exhibit D2A is not the digital scale, exhibit P9, the size and appearance of the lower of the two items being similar to the size and appearance of the digital scale, exhibit P9.

222.  I now turn to consider whether, in view of this finding, I can safely rely on the evidence of PC 16851 and PC 8843 that the dangerous drugs were found in the plastic box on top of the wardrobe.

223.  In examination-in-chief PC 16851 testified that PC 8843 took the plastic box down from the top of the wardrobe during the time PC 8843 was conducting the search; PC 8843 opened the plastic box on the floor of the bedroom and that only after PC 8843 had completed the whole house search procedure did PC 8843 tell him what was found.

224.  Later when asked by Mr Donald if PC 8843 searched the plastic box in the position shown in photograph 7 or whether the plastic box was taken down from the top of the wardrobe and searched, PC 16851 replied he was not sure.

225.  In answer to the court PC 16851 said that he had already looked inside the plastic box when he declared arrest in the living room.  Asked to confirm when he looked inside the plastic box the box was on the floor of the bedroom, PC 16851 replied the plastic box was not on the floor of the bedroom when PC 8843 showed him what was inside the plastic box; he was not sure whether PC 8843 showed him during the house search or after the search was finished; he could not remember how PC 8843 showed him the four exhibits inside the plastic box, only that PC 8843 was holding the plastic box and showed him the four items and that in his recollection after being shown the four items PC 8843 put them back on top of the wardrobe[77].

226.  In contrast PC 8843 testified that he showed the four items to the defendant and PC 16851 at the time he found them and then put them back into the pink plastic bag and the box and put the box back on top of the wardrobe[78].

227.  This was not however what PC 8843 stated in his witness statement made four days later on 27 June 2018[79]. In paragraph 8 of his witness statement PC 8843 stated that he informed PC 16851 about the items found in the search and at the same time seized the exhibits.

228.  PC 8843 also stated in paragraph 8 that PC 16851 handed over to him the suspected dangerous drugs found on the defendant’s person and at the same time he seized the trousers worn by the defendant.

229.  When Mr Boyton asked if all this was happening at the same time how did the defendant have the opportunity to see the drugs, PC 8843 replied that in the statement he did not write down that he had already showed the defendant and PC16851 the things he had found in the search.

230.  When asked by the court if there was any reason why he wrote paragraph 8 in this way PC 8843 said “I’m sorry, I didn’t give a very clear description of this event”.   Asked by the court if there was any reason why he did not record the details of the search in the way he had described in evidence, PC 8843 replied “Because I thought it was not something very important that needed to be recorded and I forgot to record it.”  Asked what was not important about showing drugs to a suspect, PC 8843 replied “It’s something I can’t explain.  Perhaps I had a wrong interpretation on the presentation of the evidence.”[80]

231.  I do not find this explanation credible.  The showing to a suspect what has been found during a house search, in particular illegal items such as dangerous drugs, is very important.

232.  PC 8843 was also responsible for completing the exhibit labels.  Many of the exhibit labels state the exhibits were found in the police station including the tissue paper wrapping the dangerous drugs found on the defendant (exhibit P3); the digital scale (exhibit P9); the forty-seven transparent plastic bags (exhibit P10); the pink plastic bag (exhibit P14) and the plastic box (exhibit P15).

233.  Although PC 8843 was not shown these exhibit labels and asked for an explanation the court did show other exhibit labels wrongly completed by PC 8843[81].  Asked for an explanation of these labels PC 8843 replied he had made mistakes and that this was something he could not explain[82].

234.  Perhaps, as stated by Mr Boyton this maybe bad record keeping[83].  This however reflects badly on the credibility of the police officer, in particular when some of the exhibits wrongly labelled were found together with the drugs alleged to be found in the defendant’s home.

235.  I am not impressed with the evidence of PC 8843.  Equally, I am not impressed with the evidence of PC 16851 who was not sure about many things concerning the search and the finding of the dangerous drugs.  This could be put down to the fact that PC 16851 was giving evidence over seventeen months later.  Indeed at one stage in his evidence PC 8843 said that due to the lapse of time he had no recollection of the details of the search[84].

236.  The search was the most important part of what happened inside the defendant’s premises.  Even seventeen months later one would not expect a police officer who witnessed the search to forget the details.

237.  I have not seen PC 16851’s witness statement but if the statement is anything like that of PC 8843’s statement it is not surprising details are forgotten and differences occur in the evidence of police officers.  The police officers should remember that proper recording of the evidence whether on exhibit labels, in witness statements or other records, a complete and accurate record is essential and which can then be used to refresh the memory of a witness giving evidence many months later or as in this case over seventeen months later.

238.  Having carefully considered all the evidence I find I am left with a doubt that the dangerous drugs were found as described by PC 16851 and PC 8843.  I am not satisfied on the evidence I can safely say that the dangerous drugs must have been found in the defendant’s home.

239.  I would also add here the evidence of Inspector Law who testified that he also conducted a search of the premises.  When asked by the court if this was a different search to PC 8843 the Inspector replied, “I think I should rephrase it as looking around for any suspicious item but not searching like throwing things around”.[85] Whilst there is absolutely nothing wrong with the Inspector also checking to see if there was any suspicious items in the flat this answer about throwing things around is strange and difficult to understand.

240.  Having a doubt about the finding of the dangerous drugs it follows that the court cannot be satisfied about the circumstances the defendant made the oral confession attributed to him in his home and no weight can therefore be attached to the post-record of that confession.

241.  Whilst I think that it is highly unlikely the police when executing a search warrant would take with them a packet of drugs to plant on the defendant, a packet of drugs which just happened to be similar in weight and packaging to the packet of dangerous drugs found on the defendant, the state of the evidence is such that the benefit of the doubt must be given to the defendant.

242.  The defendant is acquitted of charge 2.

Charge 1

243.  The prosecution case is thatthe defendant was intercepted outside the ground floor of Bayview, No. 9 Yuk Yat Street and found in possession of a transparent re-sealable plastic bag inside which was 11.9 grammes of a solid containing 11.0 grammes of cocaine.  The prosecution relies on an admission made by the defendant when he was arrested that he was helping a friend deliver the cocaine and the post-recording of the admission[86].

244.  The defendant having pleaded guilty to possession of the cocaine, the issue for the court to determine is whether the cocaine was possessed for the purposes of unlawful trafficking or for the defendant’s own consumption.

245.  There are two aspects of the prosecution evidence which point clearly to trafficking in the cocaine.  First, PC 16851’s evidence that he saw the defendant leaving Bayview and second, the confession that the defendant was helping a friend deliver the cocaine.

246.  In determining the reliability of this evidence I bear in mind the findings I have already made as to the credibility and reliability of the evidence of the police officers with regard to the search of the defendant’s residence.

247.  The defendant was only intercepted after the police had been conducting observations for about six hours.  The defendant was then taken to his residence where the police executed a search warrant which had been obtained earlier by the Narcotics Bureau.  Police officers from the Narcotics Bureau were also in attendance at the time the defendant was intercepted and the search warrant executed.

248.  Mr Boyton submitsthat the evidence of the police officers that after six hours of observations the only person they intercepted was the defendant who just happened to reside at the address stated on the search warrant, is bizarre and inexplicable[87].

249.  Mr Boyton also relies on the inconsistencies in the evidence of who showed the search warrant to the defendant[88].

250.  I accept that there are differences in the evidence as to who had the search warrant and who showed the search warrant to the defendant for example PC 16851 and PC 8843 testified that Inspector Law gave the search warrant to PC 8843 who showed the search warrant to the defendant whereas Inspector Law testified that he kept the search warrant all the time.

251.  I do not find this evidence material.  The fact remains the police had a search warrant which they executed.  These differences do not cause me to doubt the evidence of the police officers.

252.  The importance of the search warrant however is that the warrant was for the defendant’s residence.  There is force in the submission that the interception of the defendant was not a coincidence.

253.  Nobody from the Narcotics Bureau was called to give evidence.  The role of the Narcotics Bureau in carrying out the operation that night is less than clear.

254.  Clearly they had a role to play as shown by the video clip of the living room.   In cross-examination when the video clip was played to PC 16851, PC 16851 said the second police officer entering the flat was not one of his team members.  After cross-examination in answer to the court PC 16851 said he learnt after the operation that the police officer was from the Narcotics Bureau.

255.  The video clip shows the police officer from the Narcotics Bureau going to the corridor inside the flat where the bedrooms are and appearing to direct the defendant to be brought to the corridor.

256.  It seems surprising that if the role of the Narcotics Bureau was, as described by Inspector Law, simply just to check if there was a successful arrest and what kind of drugs were found, that one of their officers would be the second police officer to enter the flat and actively take part in initially looking in the bedrooms of the flat[89].

257.  Further, it is also surprising that if PC 16851 was the arresting officer he did not escort the defendant into his home.  In cross-examination when shown the video clip PC 16851 agreed that he was not the person escorting the defendant inside the flat and said that PC 21590 was the person seen with his hand on the shoulder of the defendant and escorting him into the flat and down the corridor towards the master bedroom[90]. At this stage PC 16851 does not go down the corridor to the bedrooms and instead looks around the living room.

Was the defendant leaving home or going home?

258.  Only PC 16851 saw the defendant appear outside Bayview.  In examination-in-chief PC 16851 testified he saw a male outside No. 9 Yuk Yat Street.  Only after cross-examination when the court askedwhether the defendant was standing or moving outside No. 9 Yuk Yat Street, did PC 16851 say, “At that time, he just walked out from No. 9 Yuk Yat Street and stayed at the entrance for a while”.[91]

259.  This answer was the subject of further cross-examination by Mr Boyton.  When asked if he agreed that in his witness statement he only stated that he saw the defendant outside Bayview, PC 16851 replied,“That’s what’s written in my statement.”

260.  I am not satisfied I can rely on the evidence of PC 16851 that the defendant just walked out from No. 9 Yuk Yat Street and stayed at the entrance for a while, evidence he did not give when examined by Mr Donald and which was not recorded in his witness statement.  Again, I repeat the importance of making complete and accurate records which can then be used to refresh the memory of a witness giving evidence many months later.

261.  I would also add that with many police officers in attendance in the vicinity outside No. 9 Yuk Yat Street it is surprising that no other police officer apparently saw the defendant before he was intercepted.

262.  I have a doubt that after about six hours’ observations the police just happened by pure chance to intercept the person who resided at the address stated in the search warrant.  I am not satisfied that the circumstances of the arrest are as testified by PC 16851.

Oral confession

263.  Having a doubt about the circumstances of the interception of the defendant, I find I cannot safely rely on the evidence of PC 16851 that the defendant said “Ah Sir I helped my friend deliver the packet of stuff to others”, a confession the defendant refused to acknowledge by signing the post-record.

Possession or unlawful trafficking?

264.  The defendant claims that the cocaine seized outside Bayview, No. 9 Yuk Yat Street was for his own consumption.

Drug addiction

265.  The defendant testified that the cocaine found on him outside No. 9 Yuk Yat Street was for his own consumption and would last him about three weeks.

266.  The defendant said that he had been consuming cocaine for about one year; he would make the cocaine into powder form and smoke in a cigarette; he consumed cocaine every day and that he would smoke five cigarettes a day consuming roughly half a gramme of cocaine a day.

267.  The defendant smoked the cocaine on the balcony of his home at around 10 p.m. after the children had gone to bed.

268.  The defendant said that he first got in touch with cocaine in 2017 at which time he usually bought a very small packet, about 0.2 gramme, costing about $300-$400.

269.  The defendant said he bought 12 grammes of cocaine because it was much cheaper, about one-third of the usual price.  As noted earlier the defendant said the agreed price was $6,000[92]. The defendant said he had also purchased a similar quantity of cocaine also in June and also costing him around $6,000.

270.  In answer to the court the defendant said that he started buying larger quantities of cocaine after buying smaller packets for about two months [93].

271.  The defendant said he would spend on average $6,000-$8,000 per month on cocaine.

272.  The defendant worked in a car washing shop and earned $30,000 per month including allowances, bonuses and tips from customers.

273.  The defendant testified his wife ran an online business selling diet milk tea and earnt between $20,000-$30,000 per month .  The defendant’s wife testified that she earnt roughly $10,000-$20,000 per month selling dieting products.

Defendant’s wife

274.  The defendant’s wife testified that after the children had gone to bed at night time the defendant would usually smoke cigarettes on the balcony.  The defendant’s wife said she did not personally see the defendant smoking but could smell he was smoking. 

275.  In cross-examination the defendant’s wife said she did see the defendant smoking but had no idea what effect this had on him save he was a bit dopey and focused on playing games.

276.  The defendant’s wife was herself a smoker and described the smell as different to smoking cigarettes and that instead of using an ashtray the defendant also used a paper cup containing water to put the cigarette butts in and spit out his saliva.

277.  On one occasion, slightly more than a year before the defendant was arrested, she asked the defendant what the cup was used for.  A quarrel ensued during which the defendant said he consumed “coke”.  The defendant’s wife said she did not approve of the defendant smoking “coke” and had many quarrels with him about this.

278.  The defendant’s wife could not recall how long before the argument that she became aware of the smell.  In answer to the court when asked if she could estimate, the defendant’s wife replied roughly the time they moved into the premises which she said was in 2016 or 2017[94].

279.  On the night the police arrested the defendant, the defendant’s wife told the police that outside on the balcony there was a cup containing the “essence” but could not recall which police officer she told.

280.  In cross-examination the defendant’s wife said she did not know where the defendant kept the dangerous drugs; how much he paid for the dangerous drugs; who he purchased the dangerous drugs from or how often he purchased dangerous drugs other than that she could smell this smell every night.

Consideration of the defence evidence

281.  I do not find credible the defendant’s evidence that he consumed cocaine every day, smoking five cigarettes a day consuming roughly half a gramme of cocaine and that the cocaine would last him about three weeks.

282.  In cross-examination the defendant contradicted this evidence when he said that he had not consumed cocaine that night and that he last consumed cocaine several days before his arrest[95].

283.  When asked by the court to explain this answer the defendant replied that after he consumed drugs there would be a time when he would have no drugs left.  I do not find this answer credible.

284.  I do not find credible the wife’s evidence that she told the police about the defendant using a paper cup to put out cocaine cigarettes and spit out his saliva.  I find inherently improbable that the police would ignore evidence relating to dangerous drugs.

285.  I do not find credible the defendant’s evidence that he spent onaverage $6,000-$8,000 each month on cocaine.

286.  In cross-examination after the defendant had explained there was a time when there would be no drugs left Mr Donald asked the defendant why he waited to buy drugs.  The defendant replied, “Because I had no money”.  Asked why if he had no money to buy drugs he suddenly had $6,000, the defendant replied, “Well, you work and you will get paid”.  The defendant said he had been paid $30,000 of which he spent $6,000 on cocaine, kept $4,000 and gave $20,000 to his wife.

287.  I reject the defendant’s evidence about his income and that he spent on average $6,000-$8,000 each month on cocaine.

288.  For the reasons already given I reject the defendant paid $6,000 for the cocaine[96].

289.  I reject that the defendant purchased the drugs for his own consumption.

Trafficking

290.  Having rejected that the defendant purchased the drugs for his own consumption, I turn to consider whether the only inference to draw from possession of 11.9 grammes of a solid containing 11.0 grammes of cocaine is that the defendant possessed the cocaine for the purpose of unlawful trafficking.

291.  In Chan Chuen Ho v HKSAR the appellant was stopped and searched sometime after 3:00 a.m. when leaving the building where he had rented premises.  The appellant was found in possession of 37.28 grammes of heroin contained in seven reusable plastic bags.   In quashing the conviction, the Court of Final Appeal said at page 203F-I[97]

“The circumstantial evidence against the appellant was strong. He was in possession of a large quantity of drugs but it was not so large as to be incompatible for being for his own use. They were packaged in a way suitable for sale but they could have been purchased by him in that form. They were found on him in the street in the very small hours of the morning. They were found on him after he had emerged from a building in which he had rented premises. Having regard to his defence, which failed on possession, there was no reason advanced why he should not have left them in those premises. There was no evidence that he was on his way home to Shatin. His own evidence was to the contrary. Large though it was, the quantity was not such as to lead inevitably to a conclusion of trafficking. There was no evidence that he was an addict or a user of the drugs but that, in the circumstances, is a neutral factor. It is not to be thought that any person with any amount of drugs found in the streets in the early hours of the morning must be guilty of trafficking. I do not agree with the Court of Appeal that properly directed there would inevitably have been a conviction for trafficking. Strong though the evidence was, there remains a possibility that the jury may have convicted him of simple possession rather than trafficking”

292.  The Court of Final Appeal was not however saying that in such circumstances a court cannot convict of trafficking.  The context in which this was said was whether it was appropriate to apply the proviso where the trial judge had misdirected the jury.  That this is so was made clear by the Chief Justice in a subsequent decision of the Court of Final Appeal in Lee Chun Tat v HKSAR[98].

293.  Whether the circumstantial evidence, including the quantity of drugs, is sufficient to establish an irresistible inference of trafficking depends on the facts of the case.

294.  There is no direct evidence of actual trafficking.   The court placing no reliance on the alleged confession or the evidence of PC 16851 that the defendant was leaving Bayview, the only evidence before the court is that the defendant was standing outside Bayview in possession of the cocaine. 

295.  I accept the evidence of Dr Lau summarised earlier that daily consumption of cocaine is highly variable because the usage pattern was irregular which was indicative of recreational use[99]. On the evidence of Dr Lau the amount of cocaine would last a typical chronic user at least twenty three to sixty days and for a new user at least one hundred to two hundred days if taking drugs every day[100]. 

296.  Although this is a large amount of drugs to possess on the street, the defendant was not however in possession of a substantial amount of cash for which there was no realistic possibility of the money being for reasons other than drug dealing[101].  The cocaine was contained in one packet and not several smaller packets suitable for sale.  The defendant was intercepted outside his residence.  There is no evidence this was a place known for trafficking. 

297.  Having carefully considered all the evidence I am not satisfied that quantity alone provides a clear indication of trafficking.      

298.  Whilst I have a doubt that the defendant was even a consumer of dangerous drugs, I find the prosecution have failed to prove beyond reasonable doubt that the defendant was dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking. 

299.  The benefit of the doubt is given to the defendant and he is acquitted of trafficking and convicted on his own plea to possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance.