HKSAR v. MIZANUR RAHMAN

DCCC 379/2023

[2024] HKDC 1764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 379 OF 2023

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REASONS FOR VERDICT

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Charge

1.  The defendant is charged with 3 counts of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

2.  In sum, charge 1 relates to a dangerous drug transaction on 26 November 2022 in Wan Chai, which the prosecution alleged to have taken place between Police Constable 16652 (PW[1]1), who acted as a decoy officer, and the defendant.  The defendant solicited the sale of a packet of cocaine (Exhibit 1)  at a price of $1,200. 

3.  Charge 2 concerns a similar transaction which took place on 16 December 2022 at the same location, in which the defendant approached PW1 and asked him to follow him to an alcove where he opened a sprinkler valve cabinet (the cabinet)  and took out one plastic bag of cocaine (Exhibit 2)  and sold it to PW1 at a price of $1,200.

4.  Charge 3 concerns 2 plastic bags of cocaine (Exhibit 3)  and 1 plastic bag containing 7 packets of cocaine (Exhibit 4)  found inside the cabinet. Given that the defendant had taken out the drugs of charge 2 from the cabinet, the prosecution alleged that the only reasonable inference is that the defendant had possession of the residue drugs therein.

Issue

5.  The defendant, represented by Mr Martyn Richmond, denied that he sold PW1 the dangerous drugs relating to charges 1 and 2.  Besides, the defendant claimed that he had nothing to do with the drugs in charge 3 found in the cabinet.  The strength of the prosecution case relies mainly on PW1.

6.  At the trial, the defendant admitted the chain of custody of Exhibits P1 to P4 from their handover to the respective Duty Officers and then to the Government Chemist and thereafter to their production in Court. The findings of the Government Chemist are also admitted that is :-

(a)  Exhibit P1 was 0.54g of a solid containing 0.38g of cocaine;

(b)  Exhibit P2 was 0.70g of a solid containing 0.45g of cocaine; and

(c)  Exhibits P3 & P4 was 4.83g of a solid containing 2.99g of cocaine.

Trial

7.  The prosecution, represented by Mr James McGowan, called five police officers to testify against the defendant.

8.  After the conclusion of the prosecution case, the defence made a no case submission[2]. Having heard counsel’s submissions, I ruled that there was a case to answer.  To this end, I have considered all the evidence adduced and borne in mind the principles laid down in R v Galbraith [1981] 1 WLR 1039.

9.  The defendant exercised his right and elected not to testify nor called any defence witness.  Mr McGowan and Mr Richmond each made a written[3] and oral[4] closing submission.

Evidence of the PWs

(PW1 – the decoy officer)

10.  PW1 is Mr Hussian Naveed (PC 16652)  who was lent to Special Duty Squad 1 of Wan Chai Police Station (the police station)  to assist in anti-dangerous drugs operations in Wan Chai District in November and December 2022.  The operation, as PW1 said, was to find out potential drug dealers.

11.  On 25 November 2022, he attended a briefing in the police station conducted by Inspector Kwok (PW5).  Other team members attending the briefing were PW2, PW3 and PW4.  During the briefing, PW1 was asked to be a decoy officer pretending to be a bar customer and to linger at the bar area near the junction of Lockhart Road and Luard Road in Wan Chai (the said junction).  In case somebody solicited and sold dangerous drugs to him, he should inform his team members by giving a hand signal i.e. touching his head with his hand.  His team members would intercept the person who sold him drugs and would then question him so as to facilitate future operations.  

12.  After the briefing, PW1 left the police station at 1945 hours and went to the bar area near the said junction.

November transaction

13.  PW1 testified that there were two dangerous drugs transactions taken place on that night.  One of the transactions related to charge 1.  He said that at 0051 hours on 26 November 2022, he was standing outside No. 72-86 Lockhart Road.  Given that there was sufficient light from the lamppost and the buildings nearby, he saw a South Asian man appear about 5 meters away from him. The man was in medium build and 1.7m tall with short hair.  The man was wearing a long-sleeved dark color top, a pair of blue trousers, a sling bag and a black facemask lowered to his chin. (PW1 later identified him as the defendant, and I therefore refer this man as the defendant.)   While the defendant was walking towards PW1 from the said junction, he gave PW1 an eye signal i.e. a wink.  PW1 winked back and nodded at him.  The defendant talked to PW1 in English “Hey bro”.  PW1 said “Hey”.  The two had a conversation:

Defendant: Do you want something?

PW1: What’s that?

Defendant: Coke

PW1 understood coke as cocaine and said: OK, What‘s the price?

Defendant: $1,200

PW1: OK

Defendant: Wait here.

14.  The defendant then disappeared from PW1’s sight for 10 seconds and came back to give PW1 a re-sealable transparent plastic bag containing white powder (Exhibit P1, see photo 17 of P9 the photo album).  PW1 gave the defendant $1,200 marked money and put Exhibit 1 into his right trousers’ pocket.  PW1 then walked back to the police station.  In the meantime, he touched his head with his hand to signal his team members that the transaction was complete.  PW1 did not witness what happened afterwards.  Upon arrival at the police station at 0105 hours, he handed over Exhibit P1 to the Duty officer.  Exhibit P1 was put in a tamper evidence property envelope (TEVE).

December transaction

15.  On 16 December 2022, PW1 attended a briefing conducted by PW5.  During the briefing, he was asked to take up the same role as he did on 25/26 November, and to give the same hand signal to his colleagues once a transaction was complete.  PW1 said PW5 gave each officer a photocopy of the marked money, $1,200.

16.  At 2108 hours, PW1 was standing somewhere outside HSBC i.e. 72-86 Lockhart Road (see photo 12).  Again, he said there was sufficient light. While he was standing there, he saw a South Asian man walking towards him from Luard Road near Lockhart Road.  According to PW1’s description, the man was in medium build and 1.7m tall with short hair.  The man was wearing a black long-sleeved top, a pair of black trousers and a pair of black shoes.  The man was also wearing a black and white scarf and a white facemask.  The man said, “Hey bro long time no see”.  At that time, PW1 did not recognize him.  The man then pulled down his facemask and greeted PW1.  At that moment, PW1 recognized him to be the defendant who sold him suspected dangerous drugs on 26 November 2022.  The two had the following conversation:

Defendant: Do you want some stuff

PW1 considered that he meant cocaine and said: Sure

Defendant: Same price $1,200

PW1: OK, sure

Defendant: Follow me

17.  While following the defendant, PW1 handed $1,200 marked money to the defendant.  The defendant took PW1 to a rear staircase of 72-86 Lockhart Road (see photo 13, the location, as described by parties, was an alcove below the logo of HSBC).  The defendant went to the alcove, opened the door of the cabinet, looked at it, extended his right hand inside the cabinet, took out a re-sealable transparent bag containing suspected dangerous drug (Exhibit P2)  and handed it to PW1.  Since PW1 was not standing in the alcove but on the pavement, he was not able to see the inside of the cabinet.  After the transaction, the defendant walked in the direction of the said junction.  PW1 immediately touched his head with his hand to notify his colleagues. 

18.  In the meantime, PW4 (PC 13169)  came to PW1 who pointed out to him the cabinet where the defendant took out Exhibit 2 to him.  PW1 asked PW4 to guard the cabinet.  At the same time, PW1 saw PW3 (PC 20439)  tailing the defendant. 

19.  PW1 ran up to PW3 and gave him Exhibit 2 for his custody.  PW1 pointed out to PW3 that the defendant was the person who had just sold him Exhibit P2, and was the same person who handed him Exhibit 1 on 26 November.  PW1 saw PW3 cross the road, run to and intercept the defendant.

20.  At a subsequent stage, PW1, at the police station, and in the presence of the defendant, pointed out to the Duty Officer that the defendant was the person with whom he had dangerous drugs transactions on both 26 November and 16 December 2022.

21.  In cross-examination, PW1 was asked about the other transaction he had on that night.  PW1 said at around 2205 hours, he was approached by a black man outside No. 18 Lockhart Road.  The black man sold him a packet of suspected dangerous drug at $1,000.  PW1 gave the hand signal to inform his colleagues. PW1 knew that the black man was stopped by his colleagues but was not arrested.  PW1 went back to the police station and handed the packet to the Duty Officer.  PW1 then went to Lockhart Road again and later the incident relating to charge 1 took place.

22.  PW1 supplemented that he had another drug transaction with this black man two weeks later and he himself was involved in the arrest of this black man.

(PW2 – the questioning officer)

23.  PW2 is PC 19763 who testified that there was a decoy operation in the bar area in Wan Chai on 25 November 2022.  He attended a briefing during which he was told that the police officer who was closest to PW1 should go to verify the identity of the suspect after PW1 had given a hand signal. 

November transaction

24.  At 0053 hours on 26 November 2022, PW2 was standing near No. 81 Lockhart Road (the side with odd numbers), directly opposite to where PW1 was i.e. No. 72-86 Lockhart Road (the side with even numbers).  He saw PW1 and a man who had dark complexion and there were some hand movements between them.  Then PW1 touched his head.  PW2’s description of the build and the outfit of the man was consistent with that of PW1.

25.  PW2 crossed the road and went up to stop and question the man.  PW2 did not search the man but simply asked for his identity card.  The man showed him a bail form (Form 8)  which had his photo, his name and other particulars.  PW2 recorded the particulars in his notebook and found out the name of the man was Mizanur Rahman.  The man was then allowed to go.

26.  In cross-examination, PW2 explained why he did not there and then arrest the defendant.  He explained that he was told in the briefing that if it was a first transaction between the decoy and a suspect, the police would simply question the suspect and check his identity documents; if it was the second transaction, the police would arrest the suspect. 

December transaction

27.  PW2 testified that on 16 December, he did not see PW1 giving the hand signal.  He simply assisted PW3 (PC 20349)  in intercepting the defendant and by guarding the defendant.  He agreed that the defendant was escorted to a shutter area (the location shown in photo 3 of Exhibit D1)  where PW3 searched the defendant’s sling bag and found marked money in it.

(PW3 – the arresting officer)

28.  PW3 is PC 20439.  On 16 December 2022, he attended a briefing and then took part in an operation which was a follow up action of the operation on 25/26 November 2022.  During the briefing on 16 December, PW5 gave him a photocopy of the marked money.  PW3 made a record in his notebook the serial numbers of the marked money.

29.  At 2110 hours on 16 December, PW3 was standing near the Wharney Hotel, 57-73 Lockhart Road (see Blue Cross marked on Exhibit P13-3)  and looking at the opposite road of 72-86 Lockhart Road at a distance of 20 meters.  PW3 saw PW1 making contacts with a man outside a rear staircase / alcove.  The man was 1.75m tall with black short hair.  The man was wearing a long-sleeved top, a pair of black trousers, a pair of black shoes, a dark color sling bag, a dark color scarf and a white facemask.  The man went into the staircase / the alcove, came out quickly and had contacts with PW1.  After this, PW1 touched his head with his hand, and the man walked away along Lockhart Road in the direction of Luard Road.  PW1 stayed at the scene. 

30.  Upon seeing the hand signal, PW3 crossed the road to the opposite side and PW1 approached him and gave him Exhibit P2.  PW1 told him that (i)  the man gave him Exhibit P2; (ii)  the man received $1,200; (iii)  the man took out the dangerous drugs from the rear staircase; and (iv)  the man was the same person with whom he had dangerous drug transaction on 26 November 2022. 

31.  While listening to PW1, PW3 saw the man crossing Luard Road.  PW3 followed the man, stopped him outside No. 89 Luard Road (near Centrico Bar in photo 1 of D1), and revealed his police identity to him.  The man struggled. PW2 went forward to assist him.  They both subdued and handcuffed him.  

32.  PW3 conducted a search on the man and found $1,200 in his sling bag.  He compared the serial numbers of the money with the numbers he previously recorded in his notebook and found them to be marked money.  There is no dispute that the man was the defendant.  PW3 then arrested the defendant for two offences of trafficking in a dangerous drug i.e. one related to the incident on 16 November 2022 at 0053 hours and the other on 16 December at 2110 hours.  The defendant gave no response.

33.  PW3 took the defendant back to the rear staircase / alcove.  PW4 was there.  PW3 handed the marked money $1,200 to PW4 together with Exhibit P2. 

34.  Immediately afterwards, PW4 searched the cabinet in front of the defendant.  PW4 found Exhibit 3 and Exhibit 4 inside the cabinet.  PW3 then arrested the defendant for the offence of trafficking in dangerous drugs.

35.  In cross-examination, PW3 agreed that (i)  from where he stood, he was not able to see the passage of anything between PW1 and the defendant; (ii)  he used some Chinese and English to communicate with the defendant; and (iii)  he used English to declare arrests.

(PW4 - the exhibit officer)

36.  PW4 is PC 13169.  On 16 December 2022, he took part in a briefing for an operation which was similar to that on 25/26 November 2022, and was given a photocopy of the marked money. 

37.  At 2100 hours, PW4 was standing at somewhere near number 81 of Lockhart Road.  There was light from the streets, from the nearby shops and from the HSBC neon light.  Ten minutes later, he saw PW1 and a South Asian man near to the junction of Lurad Road.  They appeared to be talking for several seconds.  Then both of them walked for 20 meters to the location underneath the HSBC logo.  The man then walked into the alcove and PW1 stood on the pavement.  At that time, PW4 was opposite of the road 20 metres away from them.

38.  The man opened the right side of the metal box (no dispute that he meant the cabinet)  and stretched his hand inside.  He retracted his hand and closed the door of the cabinet.  He walked out and had some hand movements with PW1. After that, PW1 touched his head with his hand, and the man walked to the said junction.  PW4 then crossed the road to meet up PW1.  PW1 told PW4 that the man stretched his hand into the metal door and it looked like that he took out something therein.  PW1 further told him that the man had a transaction with him one month early.  After saying this, PW1 walked hurriedly to the junction of Luard Road, and PW4 stood there to guard the cabinet.  PW4 confirmed that no one walked to the alcove while he was guarding against it. 

39.  Around 2119 hours, PW3 took a man (the defendant)  who was handcuffed to the alcove.  PW4 confirmed that the man was the person whom he previously observed being with the decoy.  PW3 told PW4 that he had just arrested the defendant twice for having dangerous drugs transactions on 2 occasions with PW1.  Besides, PW3 gave $1,200 marked money and Exhibit 2 to PW4.

40.  In front of the defendant and PW3, PW4 opened the cabinet and found behind the red pole (see photo 16)  (i)  2 bags of similar size containing dangerous drugs, one of the bags had a green line (Exhibit 3); and (ii)  another bigger re-sealable transparent bag containing 7 packets of dangerous drugs (Exhibit 4).

41.  PW4 stated that in the police station, (i)  a report was made to the Duty Officer; (ii)  the dangerous drugs were weighed in the presence of the defendant; (iii)  the dangerous drugs and the marked money were put in TEVEs; (iv)  the defendant signed on the TEVEs; (v)  other officers talked to the defendant in English.  PW4 considered that there was no apparent difficulty for the defendant to understand what was said.  The defendant indicated that his mother tongue was Bengali.  Later the defendant consented to a House search and provided the address of his residence in Chung King Mansion (no dispute as to his address). 

42.  PW4 disagreed that (i)  he had been to the shutter area after the defendant was arrested; (ii)  at the shutter area, he removed banknotes from his trouser pocket and handed it to PW3.

House search

43.  Both PW3 and PW4 testified that a House search was conducted at the defendant’s residence.  PW4 said that he used a key seized from the defendant to open the main door of it and he was responsible for taking photographs of the exhibits.  Two items were seized, namely an upper garment and a pair of jeans similar to that which the defendant was wearing on 26 November 2022.

44.  Both PW3 and PW4 said during the car journey back to Tsim Sha Tsui Police Station, the defendant requested for a jacket so they brought him back to his residence to get it. 

(PW5)

45.  Inspector Kwok’s testimony was about the content of the briefing, how the anti-drug operations were carried out and the objectives of such operations.

Analysis

46.  In reaching my verdict, I bear in mind that the prosecution has the burden to prove the charges against the defendant beyond a reasonable doubt.  The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt, and I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw against the defendant from the facts proved.  Besides, I bear in mind the legal principles laid down in R v Turnbull [1977] 1 QB 224.

47.  The defendant faces 3 counts of trafficking in a dangerous drug, and I remind myself to consider each and every charge individually.

48.  The defendant elected not to testify and no adverse inference should be drawn against him for doing so.  However, it means that there is nothing from the defendant to undermine, contradict or explain the evidence put before the court by the prosecution. 

49.  I now deal with the criticisms raised by the defence.

50.  Mr Richmond submits that it is neither credible nor reliable for the prosecution to suggest that the purpose of the operation on 25/26 November was not to arrest suspected drug traffickers, but to merely question them to facilitate further operations, and to arrest them in some future unidentified dates.  There is no credible reason why PW1 would complete a successful drug transaction and not arrest the suspect particularly when the suspect was in possession of marked money.

51.  On this issue,  PW5 testified that there was a period of time when Covid epidemic situation eased slightly and the bars reopened, police then received multiple complaints that someone trafficked in dangerous drugs in the bar area of Wan Chai.  As such, the police conducted a long-term operation, the purpose of which was to combat drug trafficking activities in the area.  In order to reflect that a drug trafficker was ‘active’ in trafficking in drugs, once the decoy officer had successfully bought drugs and paid marked money to a drug trafficker, the police would intercept the trafficker, question him, record his personal particulars and then let him go with the hope that the trafficker would engage in a 2^nd transaction.  PW5 also said that he wanted “to reflect in court that a suspect did not traffic in a single occasion”.

52.  PW5 had given a detailed explanation and I accept it as true.  As explained, the purpose of the operation was to find out those who were ‘active’ in engaging drug trafficking activities in the area.  If a trafficker has a number of dealings with the decoy on different occasions, obviously it shows that the trafficker is ‘active’.  Once the trafficker is arrested, as PW5 rightly said, he will be charged with a number of offences.  This can reflect how ‘active’ the trafficker is, and it gives a heavy blow to the drug-trafficking business in the area. 

53.  As said, I accept the explanations of PW5, and find nothing sinister or mala fides in such an operation and the manner of how it was conducted.  PW5 disagreed with the defence saying that the suspect was given a chance to go. PW5 explained that even if a suspect did not re-emerge in the area, he would still be liable to arrest because his particulars including his name and his address had been obtained.  I accept his explanation as true.

54.  Having considered the evidence of PW5, I reject the criticism that the operation was neither credible nor reliable.

55.  In his written submissions, Mr Richmond said that, according to the instructing solicitors who had made some enquiries, the black man mentioned by PW1 was a Mr Bakakay Barboe arrested on 8 December 2022 and was charged with trafficking in a dangerous drug before the Eastern Magistrates’ Court No. 3 and the charge was dismissed.  Mr Richmond criticizes that PW1 went to the police station and showed the packet of drugs from the black man to the Duty Officer, but the prosecution had failed to produce any evidence that a report was made or that the drugs were in fact delivered.  As a result, there is no evidence that the drugs alleged to have been passed to PW1 by the defendant was not in fact a packet passed to him by somebody else.

56.  Firstly, I do not consider that such a report is relevant to the issues that I have to deal with in this case.  Secondly, the chain of custody of the dangerous drugs “from their handover to the respective Duty Officers…to the Government Chemist…”, is not in dispute (see paragraph 5 above, and the Admitted Facts (P14)).  Thirdly, Mr McGowan, on the request of the court, verified the result of Mr Barboe’s case.  He wrote to clarify the position i.e. Mr Barboe pleaded guilty to charges 1 and 2 and was acquitted on charge 3.  It is of note that Mr McGowan said “I have discussed the above with Mr Richmond; he is content, and has nothing to add at this moment”[5]. Given the reasons stated above and the clarified position of the case of Mr Barboe, the criticism in paragraph 55 simply cannot stand.

57.  Mr Richmond then comments that no other officer witnessed the passage of drugs to PW1 and nobody saw him pass money to the defendant.  This I bear in mind in the assessment of PW1’s evidence.  However, other PWs did give an account of the following matters which is consistent with that of PW1, for example,

November transaction

(a)  PW2’s description of the outfit of the defendant; the complexion of the defendant; the location where PW1 and the defendant appeared;

(b)  PW2 said that there were hand movements between them, then PW1 gave the hand signal; (PW1 said he paid marked money to the defendant who gave him Exhibit 1 (these actions are hand movements), and PW1 gave a hand signal.

December transaction

(c)  PW3’s description of the outfit of the defendant;

(d)  PW3 and PW4’s description of the complexion of the defendant;

(e)  PW4’s description of the locations of PW1 and the defendant; PW3 and PW4’s description of PW1 and the defendant, the walking to the alcove area; and their respective standing positions;

(f)  PW4’s description of the actions of the defendant at the alcove.

58. Mr Richmond complains that PW1 made the following mistake. PW1 testified that he received $2,200 marked money from PW5 and he paid $1,000 to the black man and paid $1,200 to the defendant. In cross-examination, he admitted that he had mistakenly recorded this sum to be $1,000 in his notebook. I do not consider that such a mistake will affect the overall reliability and credibility of PW1’s testimony. In fact, PW1 said he had recorded in his witness statement that he paid $1,200 to the defendant. The mistake in his notebook appears simply to be a typographical mistake.

59. PW1 was criticized that he did not have an opportunity to recognize the defendant given that the dealing with the defendant was quick, and he attempted in cross-examination to circumvent this difficulty by stating that the defendant, on 26 November, had lowered his mask to his chin.

60. In his testimony, PW1 clarified that even though the defendant lowered his mask to his chin, he could still describe that the defendant was wearing a mask. Although PW1 did not describe in detail how the defendant wore his facemask in chief examination, I accept his clarification.

61. I also accept PW1’s testimony in relation to the lighting condition at the material time. There was light from the lamppost and the buildings nearby. It was also a bar area, the bars were lit up.

62. PW1 said that the whole process of the November transaction with the defendant lasted for 30 seconds (including the 10 seconds out of his sight). PW1 also described how he conversed with the defendant.

63. Having considered all the circumstances of the case including the lighting condition, the duration of the encounter, the proximity in distance between PW1 and the defendant, I find as a fact that PW1 had an opportunity to observe the appearance of the defendant.

64. In respect of the 2^nd transaction, I accept PW1 said there was sufficient light. PW1 was in fact honest when he said he did not recognize the defendant when he first approached him. It was not until the defendant had pulled down his mask then he was able to see the appearance of the defendant and recognized him as the man with whom he bought Exhibit 1 on 26 November. Given that PW1 had seen the defendant not long ago (3 weeks); that PW1 was able to see the whole appearance of the defendant as the defendant had pulled down his facemask; that there was sufficient light, I find as a fact that PW1 was able to recognize the defendant on 16 December who was the same person whom he dealt with on 26 November.

65. Mr Richmond complains that PW1 would not have given money to the defendant on 16 December while following the defendant to the alcove. I accept Mr McGowan’s submission that “timing of payment is immaterial…particularly when it was known from recent past experience the defendant was not bluffing or scamming”. PW1 had previously successfully dealt with the defendant, and it was simply a matter of seconds as to when to pay the defendant who was about to retrieve the dangerous drugs to him.

66. All the criticisms against PW1 are unmeritorious. I find him a credible and reliable witness and what he said was true.

67. The defence also attacked the credibility and the reliability of other officers.

68. Mr Richmond says that PW2 was unable to specify that the person he intercepted was the person with whom PW1 transacted. As such, the court may not be satisfied that PW2 had identified the defendant to be the one who had transaction with PW1 on 26 November 2022.

69. In fact, what PW2 said was as follows: “Actually, what persons approaching the decoy not the thing I paid most attention to, perhaps, there were a lot of people approaching him. My main attention was to check if the decoy was safe, next, when he touched his head to signal the transaction was successful, who was next to him.”

70. The role of PW2 was to stop and question the man who had a transaction with PW1. As disclosed in his evidence (see paragraphs 24, 25 above), he did keep an eye on PW1 as to where, when and how PW1 interacted with the man who had dark complexion. Once PW2 saw PW1 touch his head, he immediately crossed the road and stopped the man. The location where the man was with PW1 and the location where PW2 stopped the man were close to each other as shown on the map. There was no time gap in tracking the man. In such circumstances, PW2 would not have tailed a wrong person. I find PW2 unshaken in cross-examination. He is a credible and reliable witness. The man whom he recorded his particulars was the man who caused PW1 to touch his head. This man was the defendant.

71. It is complained that PW2 made no mention of how the defendant was intercepted; handcuffed; and taken to the shutter area on 16 December. So PW2 was recalled to permit examination of this issue.

72. This account is not accurate. According to the court record, Mr Richmond asked PW2 (on 17 June 2024)  “After you allow the suspect to leave on 26 November, did you have any further dealing with him as part of any duty / operation?” In reply, PW2 mentioned the arrest of the defendant on 16 December; he assisted the arresting officer to intercept the defendant; and he stood by on guard the defendant. In other words, he gave an account of what he did on 16 December 2022.

73. PW2 was recalled (on 19 June)  for further cross-examination, mainly on (i)  the exact location where the defendant was intercepted and where the questioning of the defendant took place by reference to the photo album, Exhibit D1; and (ii)  the search conducted on him by PW3 and the seizure of the marked money. It was not until then the defence put to PW2, and he disagreed, that PW4 arrived at the scene and removed from his (PW4)  trousers pocket some banknotes which were then passed to PW3.

74. As I find, PW2 was in no way evasive in his evidence.

75. Regarding PW3, Mr Richmond says other officers standing across Lockhart Road could not possibly have observed what the defendant did at the alcove.

76. PW1, PW3 and PW4 all said that the lighting condition was sufficient on 16 December 2022. PW3 said there was street light. I note that PW3 had also mentioned there were traffic lights when he crossed the streets. PW4 said there was light from the streets, from the nearby shops and from the HSBC logo neon light. PW4 also said that the HSBC logo was very bright. As shown in the photographs, the alcove was underneath the said logo. I am sure that there were different sources of light and there was sufficient light at the material time. Given the lighting condition and the short distance apart, 20 meters, I am sure that PW3 and PW4 were able to see what happened at the opposite side of Lockhart Road.

77. PW3 did not exaggerate his evidence. He agreed that he was not able to see what the defendant did at the alcove nor the passage of anything between the defendant and PW1.

78. Regarding PW4, he said the traffic condition of Lockhart Road posed no difficulty to him to observe PW1.

79. Both PW3 and PW4 were not shaken under cross-examination. I find them to be credible and reliable. What they told the court in the witness box was true. In other words, the defendant, as described by PW4 did open the right door of the cabinet, stretched his hand inside, retracted his hand and closed the door of the cabinet. He then had some hand movements with PW1.

80. PW4 testified that he seized two pieces of clothing at the defendant’s home and he took photo 5 which depicted the clothing in situ before laying them out individually for taking photos 6 & 7. Mr Richmond contends that it was both irregular and somewhat dangerous for the police to ‘rearrange’ the exhibit items on the basis that secondary photographs depict item more clearly. This practice makes the photographs inaccurate.

81. This contention can be disposed of quickly. There is nothing wrong for the police to take photographs in such a manner and it has no bearing on the issues which the court has to resolve.

82. Mr Richmond says that there is no compelling evidence that the defendant was arrested in a language that he understood, and there was no caution at the scene of arrest. PW3 told the court that he simply assumed from the defendant’s silence that he understood. Although the prosecution attempted to demonstrate that the defendant “must have understood”, it is simply not reliable nor credible to conclude the defendant’s understanding from his inaction.

83. However, the “defendant’s understanding” is not the crux of the matter in this case. There was never alleged any admission made by the defendant when questioned. The prosecution did not rely on the defendant’s understanding to strengthen the prosecution case. The evidence against the defendant comes from the officers who saw what the defendant did and said at the time of the transactions and at the time when the cabinet was searched.

84. It is suggested that the officers failed to ask the defendant the following: at the alcove, the defendant was not asked what the contents inside the cabinet were; following arrest, he was not asked what the marked money was; at his home, he was not asked if the seized items belonged to him.

85. PW3 said that he did not know what language the defendant spoke and so for the benefit of the defendant, he did not caution the defendant and would wait for an interpreter. PW3’s testimony fully explained why no questions were asked at different times. I find that it was reasonable for him not to ask the questions given that there was, obviously, language barrier between them.

Charge 1

86. Despite the lack of DNA evidence, I accept the evidence of all the PWs, I find as a fact that PW1 bought Exhibit 1 from the defendant whose identity was accurately recorded by PW2. PW1 saw the defendant again on 16 December and confirmed him to be the one with whom he had transaction on 26 November 2022. I am sure that the defendant sold Exhibit 1 to PW1 on 26 November 2022. Exhibit 1 was examined to be 0.54g of a solid containing 0.38g of cocaine. I am sure that the defendant supplied Exhibit 1 to PW1, and the supply of cocaine falls into the definition of trafficking as defined under section 2 of Cap 134.

Charge 2

87. Similarly, despite the lack of DNA evidence, I accept the evidence of all the PWs, I find as a fact that PW1 bought Exhibit 2 from the defendant on 16 December. Exhibit 2 was examined to be 0.70g of a solid containing 0.45g of cocaine. The defendant was tailed and arrested after this transaction. I am sure that the defendant supplied Exhibit 2 to PW1, and the supply of cocaine falls into the definition of trafficking under section 2 of Cap 134.

Charge 3

88. From the evidence of PW1, it is clear that the defendant opened the cabinet and retrieved Exhibit 2 from it. PW4 guarded against the cabinet and no one had come to the alcove area before the defendant was brought back to the alcove. Upon opening the cabinet, Exhibit 3 and Exhibit 4 were found and both were confirmed to be cocaine, same nature of dangerous drugs as that of charges 1 and 2.

89. I have considered all the evidence of the case including (i)  the defendant had just accessed the cabinet in order to supply cocaine to PW1 (charge 2); (ii)  the cabinet was a secret storage, if the defendant did not know beforehand that there were dangerous drugs, he would not retrieve dangerous drugs from the cabinet; (iii)  the fact that he retrieved dangerous drugs from the cabinet illustrates that he knew and must have control over the dangerous drugs stored in the cabinet. As such, I draw an irresistible inference that Exhibits 3 & 4 found inside the cabinet belonged to the defendant. I am sure that the defendant had control and custody of them and knew that they were dangerous drugs, cocaine. He possessed Exhibits 3 and 4, which were found to be 4.83g of a solid containing 2.99g of cocaine, for the purpose of trafficking.

90. I find the prosecution has proved beyond reasonable doubts all the charges. The defendant is convicted of charges 1 to 3.