區域法院（刑事）HH Judge Stanley Chan1/4/2024[2024] HKDC 687
DCCC872/2022
A DCCC 872/2022 A
[2024] HKDC 687
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 872 OF 2022
C C
----------------------
D D
HKSAR
E v E
Wong Wai-wah
F F
----------------------
G G
Before: HH Judge Stanley Chan
H Date: 2 April 2024 H
Present: Mr Edward F Le B Laskey, counsel on fiat, for HKSAR
I Mr Christopher Grounds, instructed by Francis I
Kong & Co, for the defendant
J Offence: (1) Trafficking in dangerous drugs (販運危險藥物) J
K K
---------------------
L Reasons for Verdict L
---------------------
M M
I. Background
N N
1. The defendant faced 3 counts of drug-related offences,
O
and he pleaded guilty to Charges 2 and 3. He was convicted of O
these 2 charges accordingly. As regards Charge 1, the defendant
P pleaded not guilty to trafficking in the dangerous drugs, but P
guilty to simple possession thereof. Originally, the verdict was
Q to be delivered on 1 March but on the day, the court was Q
informed that the defendant was being hospitalised in the Prince
R R
of Wales Hospital (PWH) because of a stroke. Defence counsel
said he was informed of this fact at about 9:30 am on the day.
S S
In the circumstances, the proceedings have to be adjourned and I
T refixed it for 2 April. T
U U
CRT32/2.4.2024/JC 1 DCCC 872/2022(1)/Verdict
V V
A 2. I also revoked the defendant’s bail. On 20 March, I was A
informed that the defendant was admitted to PWH on 1 March 2024
B for acute coronary syndrome and was discharged on 8 March and B
since then remanded in Lai Chi Kok Reception Centre.
C C
II. Brief Facts of the Case
D D
3. The facts of the case are straightforward. The
E defendant was intercepted when he went to a private car that was E
parked near his residence. Upon body search, the police found 2
F handrolled cigarettes containing cannabis in herbal form. The F
police then proceeded to search the defendant’s residence in a
G G
unit at Pok Tai House, Shatin. There more drugs, including ICE
and cannabis in herbal form, were found. In addition, more
H H
contraband were found, including 3 glass bottles for consuming
I
drugs, 2 electric scales and a tin box containing 78 empty small I
re-sealable plastic bags.
J J
4. The defendant claimed that all the drugs and the
K apparatus were for his own consumption. K
L L
III. The 1st and 2nd Admitted Facts (Exhibits P38 and P44)
M M
(1) The list of exhibits is marked as P39.
N N
(2) On 7 January 2022, Lau Ka-shun purchased a vehicle
O with the registration number XE 1997, and lent it O
to the defendant shortly.
P P
(3) At about 8:30 pm on 13 April 2022, DPC 25627
Q Q
Chau Ho-yin, intercepted the defendant when the
R defendant was in the driver seat of the said R
vehicle. The vehicle was parked in Shui Chuen Au
S Street outside Pok Tai House. S
T T
(4) A search on the defendant was conducted. From the
defendant’s blue cross-body bag (P1), the police
U U
CRT32/2.4.2024/JC 2 DCCC 872/2022(1)/Verdict
V V
A found one Marlboro cigarette pack with 4 A
cigarettes (P2), 2 of which were rolls of
B cannabis, sometimes known as cannabis joint, which B
are produced as P3.
C C
(5) At 8:35 pm on 13 April 2022, the defendant was
D D
arrested and under caution, the defendant said,
E “the two rolls of cannabis are for my own E
consumption.”
F F
(6) A house search was conducted at the defendant’s
G G
residence of Room 1514, Pok Tai House, Pok Hong
Estate, Sha Kok Street, Shatin. Exhibit P4 to P26
H H
were found and seized (see list of exhibits P39).
I I
(7) At about 11 pm on 13 April 2022, the defendant was
J arrested for trafficking in dangerous drugs. J
Under caution, the defendant said, “The dangerous
K drugs are for my own consumption. I did not sell K
dangerous drug.”
L L
(8) Photos were taken with 30 photos depicting the
M M
defendant’s residence (P33), 32 photos depicting
N some exhibits (P34), and 11 photos depicting the N
vicinity of Shui Chuen Au Street (P35).
O O
(9) The chain of evidence relating to the exhibits is
P P
not challenged.
Q Q
(10) Subsequent to the defendant’s arrest and caution,
R the defendant voluntarily answered questions and R
the answers are accurately recorded in the
S following documents: S
T T
U U
CRT32/2.4.2024/JC 3 DCCC 872/2022(1)/Verdict
V V
A (a) DPC 25627’s notebook (with redaction) and the A
certified English translation, marked as P30A
B and P30B; B
C C
(b) Pol 857 as recorded by DPC 25627 on
13 April 2022 with certified English
D D
translation, marked as P31A and P31B;
E E
(c) A VRI was conducted with the certified
F English translation of the transcript, marked F
as P32A and P32B.
G G
(11) Part of the seized exhibits were delivered to the
H H
Government Laboratory for DNA examination. The
I
DNA report is produced and marked as P36. I
J (12) The Chemist certificate dated 16 January 2023 is J
marked as P37.
K K
(13) The witness statements of DPC 24048 (P40), DPC
L L
25627 (P41), DPC 14919 (P42), and SIP Ng Ka-lun
(P43, subsequent to the ruling on the
M M
admissibility of this statement) were produced
N under s.65B of the Criminal Procedure Ordinance. N
O (14) Amongst the items seized from the defendant’s O
residence was a tin box containing 78 clear
P P
plastic bags as exhibited as P22 to P24. P22 was
a large transparent re-sealable plastic bag
Q Q
containing 23 small re-sealable plastic bags; P23
R was a large transparent re-sealable plastic bag R
containing 19 small transparent re-sealable
S plastic bags, and P24 was a large transparent re- S
sealable plastic bag containing 33 small
T T
transparent re-sealable plastic bags.
U U
CRT32/2.4.2024/JC 4 DCCC 872/2022(1)/Verdict
V V
A (15) The list of exhibits (P39) accurately records the A
descriptions of the exhibits, DNA examination
B results and the relevant counter number under the B
digital media number AB24080 transcript. The
C C
content thereof under P39 is admitted to be
accurate.
D D
E (16) Between 8:30 pm and 8:34 pm on 13 April 2022, DPC E
25627 conducted a search on the defendant and
F found the following items on the defendant: F
G G
(a) 5 keys (P27A);
H H
(b) one Octopus card (P27B);
I I
(c) 2 mobile phones (P28A and P28B);
J J
(d) cash of HK$6,500, $4,400 and $670 (P29A, P29B
K and P29C respectively). K
L L
IV. The Ruling on the admissibility of the police expert on
drugs valuation
M M
5. Defence counsel objected the prosecution to produce the
N statement of SIP Ng on the valuation of the drugs seized, and N
tendered a bundle of written submissions with 5 authorities.
O Defence counsel submitted that the Hong Kong Court of Appeal O
decision in HKSAR v Lo Yan Kan [1997] 3 HKC 430 was decided per
P P
incuriam and no weight should be attached to it.
Q Q
6. I ruled against the application, relying on the English
R cases R v Bryan (8 November 1984, CA) and R v Hodges [2003] 2 Cr R
App R 15, and the abovementioned Hong Kong case, HKSAR v Lo Yan
S Kan. In my view, the estimation of the street value of the drugs S
by police experts offered a kind of reference or yardstick for
T T
the court to have some ideas about the value of the dangerous
drugs seized at a particular time in Hong Kong. This piece of
U U
CRT32/2.4.2024/JC 5 DCCC 872/2022(1)/Verdict
V V
A evidence alone cannot implicate the culpability of the arrested A
person as to whether he did traffic in a dangerous drug.
B B
7. Consequent upon my ruling, the statement of SIP Ng was
C C
tendered under s.65B of the Criminal Procedure Ordinance and
marked as P43.
D D
E 8. In SIP Ng’s opinion, the drug ICE in relation to the E
1st charge has a street value of $5,160, and the cocaine has the
F value of $818 (powder) or $1,490 (crack). F
G G
V. The issue of calling PW1 DPC 25627 Chau Ho-yin
9. The witness statement of PW1 has been admitted as P41
H H
under s.65B of the Criminal Procedure Ordinance. The statement
I
does not mention anything about those cash and mobile phones I
found on the defendant at the time when he was intercepted. Mr
J Laskey, counsel on fiat, intended to rely on the 2nd Admitted J
Facts. Upon the urge of this court, PW1 was called to give
K evidence in court. Prior to the calling of PW1, Mr Grounds, K
Defence Counsel, challenged the court’s authority to ask the
L L
prosecutor to call a witness to testify, saying that the court
can only invite, but cannot direct, the prosecution to do so. Mr
M M
Grounds further submitted that he would also consider to make an
N application for recusal depending upon the result of my ruling. N
When asked, Mr Grounds said that he had no intention to threaten
O this court. O
P P
10. Mr Grounds relied on an Australian case in 1984,
R v Apostilides [1984] 154 CLR at 563. It was a jury trial, and
Q Q
the Australian court said:
R R
“Save in the most exceptional circumstances, the trial judge
should not himself call a person to give evidence.”
S S
11. In gist, Defence Counsel said the judge has no power to
T T
call a witness of his own volition. In that case, the witnesses
U concerned are 2 civilian witnesses. In the present case, we are U
CRT32/2.4.2024/JC 6 DCCC 872/2022(1)/Verdict
V V
A talking about the arresting officer whose statement has been A
admitted under s.65B of the CPO. This court has certain issues
B to clarify from this police witness. The purpose was to clarify B
what did the officer seize from the defendant when the latter
C C
was intercepted. For some unknown reasons, the prosecutor was
reluctant to call this police witness, but to rely on the
D D
production of the 2nd Admitted Facts.
E E
12. On the other hand, Mr Grounds said that the basis of
F recusal was that the judge has no role to play in an adversary F
system as “the judge’s role in that system is to hold the
G G
balance between parties without himself taking part in their
disputations. It is not an inquisitorial role in which he seeks
H H
himself to remedy the deficiencies in the case on either side”
I
(page 576 of that judgment). I
J 13. At the end of the day, Defence Counsel said that now it J
was the prosecutor who acceded to the “request” of the court,
K not directed by the court, hence, he would not take issue of the K
calling of this police officer. Consequently, he also formally
L L
withdrew the application for recusal of the trial judge.
M M
PW1 DPC 25627 Chau Ho-yin
N 14. He adopted his witness statement dated 19 April 2022, N
which has been produced as P41. The defence has no objection for
O PW1 to identify the defendant in the dock. PW1 said he O
intercepted the defendant when he approached the private car
P P
which is a Mercedes Benz with the registration number XE 1997
(photos 68 to 73 of the photo album). The defendant was taken to
Q Q
the police car for body search.
R R
15. PW1 said he found a bunch of keys from the defendant
S and one of which can access to the private car. He also found a S
Marlboro cigarette pack in which there were four cigarettes and
T T
2 handrolled cannabis. The defendant also has a mobile phone
with him but he forgot whether the defendant had one or 2 phones
U U
CRT32/2.4.2024/JC 7 DCCC 872/2022(1)/Verdict
V V
A with him. PW1 also found the defendant’s wallet and a stack of A
cash of over $10,000 in the cross-body bag. The cash was not
B inside the wallet. He cannot recall the denomination of the B
cash.
C C
16. Under a brief cross-examination, PW1 admitted that he
D D
made no reference of the defendant’s wallet in his statement but
E was sure that there was a wallet. E
F F
VI. Cautioned statement and VRI
G (1) The notebook entry (P30A with the English G
translation P30B):
H The defendant said, “For the car, I had some H
argument with my friend. The two rolls of
I I
cannabis are for my own consumption.”
J J
K (2) The statement of Pol 857 (P31A with the English K
translation P31B):
L The defendant said, inter alia, that “the L
dangerous drugs are for my own consumption. I did
M M
not sell dangerous drugs.”
N N
O (3) The VRI (P32 with the Chinese transcript P32A and O
English transcript P32B):
P P
Q Entry 29 – (referring to the cannabis joints) Q
these items are mine. I take them for my own
R R
consumption.
S S
Entry 41 – I bought it from a friend at Tsim
T Sha Tsui. T
U U
CRT32/2.4.2024/JC 8 DCCC 872/2022(1)/Verdict
V V
A Entry 49 and 51 – $1,000 for 7 grammes A
B B
Entry 53 and 57 – (referring to the content of
a transparent re-sealable plastic bag) not
C C
drug, but a kind of baking soda, presumably.
D D
Entry 59 and 61 – I always pack it in these
E E
small bags, for eating, for cooking and
marinating.
F F
G Entry 69 – (referring to the content of the G
transparent re-sealable plastic bag with an
H orange opening) baking soda too, presumably. H
I I
Entry 79, 83, and 85 – (referring to the
J content of a transparent re-sealable plastic J
bag with a blue opening) Not drug either,
K they are a kind of medicinal powder for K
athlete’s feet.
L L
Entry 89, 91 and 95 – his friend gave him over
M M
half a year ago. No means of contact.
N N
Entry 99 – (referring to the content of the
O O
re-sealable plastic bag) This should be the
leftover ice that I took.
P P
Q Entry 109 – I take about one gram per day. Q
R Entry 113 and 119 – I get a glass mouthpiece R
then pour some ice into the mouthpiece, then
S S
place it on the bong and burn it for
T inhalation. You burn that glass pipe, smoke T
will come out, then inhale it.
U U
CRT32/2.4.2024/JC 9 DCCC 872/2022(1)/Verdict
V V
A Entry 125 – (how long did he take Ice) 10 odd A
years.
B B
Entry 131 – used a lighter to burn the
C C
aluminium foil on which there was ice, and
D when the smoke came out, he would get a glass D
bowl to inhale the smoke.
E E
Entry 139 – he used a straw and the ice bong
F F
to inhale the smoke.
G G
Entry 143 – (the tools shown to the defendant)
H they are for taking cannabis and ice. H
I I
Entry 145 and 147 – for the glass bong,
J sometimes he take some coke, that is cocaine, J
with it as well.
K K
Entry 155 – for cannabis, he rolled it with
L L
some rolling paper.
M M
Entry 184 – these are cannabis buds he bought
N for consumption. N
O O
Entry 191, 196 – he bought it from “Ah Cha”,
Indian and Pakistani nationals.
P P
Q Entry 206 – he spent $1,100 on buying cannabis Q
buds.
R R
Entry 208 – he used tobacco pipe to take
S S
cannabis buds.
T T
U U
CRT32/2.4.2024/JC 10 DCCC 872/2022(1)/Verdict
V V
A Entry 218 – (referring to the grinder) it was A
used for grinding ice, no, for grinding
B B
cannabis buds.
C C
Entry 222 and 253 – (re electronic scales) he
D was afraid to be cheated with short weight. D
He measured it (the drug) when returned.
E E
Entry 226 and 228 – that applies to ice and
F F
cannabis buds.
G G
Entry 236 – (referring to the re-sealable
H plastic bags with a bat pattern) The ice is H
for his own consumption.
I I
Entry 241 – the drugs was from “ON”, the
J J
Indian and Pakistani nationals.
K K
Entry 245 and 247 – he bought one packet,
L L
much cheaper. Then it was divided into a
portion, enough for him to take half a month.
M M
N Entry 249 and 257 – 7 grammes for a packet, N
and divide it into portions for consumption.
O O
Entry 265 – (for those re-sealable plastic
P P
bags found in the metal box) he bought them
Q for taking separately, so that he would not Q
take too much.
R R
Entry 277 and 279 – this packet of ice was
S S
bought from the Indian and Pakistani
T nationals for self-consumption. It cost T
$2,000.
U U
CRT32/2.4.2024/JC 11 DCCC 872/2022(1)/Verdict
V V
A Entry 283 – He bought it not long ago, last A
week.
B B
Entry 307 and 311 – he has been living there
C C
for over 10 to 20 years. The rent is $2,000
D odd. D
E VII. Half-time E
17. Consequent upon the close of the prosecution case,
F F
there was no half-time submission. Defence Counsel confirmed
that the defendant elected not to give evidence, nor would he
G G
call any defence witness.
H H
VIII. Analysis of evidence
I 18. All along, the prosecution has the duty to prove the I
charge against the defendant beyond reasonable doubt. The
J J
defendant has no duty to prove anything. The fact that the
defendant indicated his guilty plea to a lesser charge of
K K
possession, and that he pleaded guilty to Charges 2 and 3, will
L not cause any bias by this court when determining his L
culpability in the offence of trafficking in dangerous drugs.
M M
19. On the other hand, the fact that the defendant chose
N not to give evidence is his right. The court cannot draw any N
adverse inference therefrom. However, that also means the
O O
defendant cannot attack or shatter the evidence of the
prosecution by himself as the first person. What the defendant
P P
said or admitted in the cautioned statements and the VRI cannot
Q be treated with the same weight as if he testified in court. Q
R 20. In the closing submission, defence counsel relied R
heavily on those explanations given by the defendant to show
S S
that all the dangerous drugs seized were for the defendant’s own
consumption. He concluded that the defendant should be acquitted
T T
of Charge 1 but convicted of the lesser charge of possession of
U U
CRT32/2.4.2024/JC 12 DCCC 872/2022(1)/Verdict
V V
A the dangerous drug, in addition to the other 2 charges that the A
defendant had already pleaded guilty to.
B B
21. It was submitted that “if the defendant’s case or the
C C
defendant’s statements in the VRI were true or might have been
true, then such benefit of a doubt must be given to him. Even if
D D
the defendant’s case was entirely rejected, the prosecution
E still bears the burden to prove its case beyond a reasonable E
doubt.” (paragraph 2 of the submission).
F F
22. The Defence argued that the prosecution’s case is
G G
entirely relying on circumstantial evidence but it is flimsy.
The prosecution has no evidence to prove that the defendant was
H H
selling the drugs. When intercepted, the defendant had no ‘ice
I
and cocaine found on him, but just 2 cannabis joints. There were I
no drugs found in the private car XE 1997. As for the DNA
J evidence, it was argued that those DNA traces which did not J
belong to D could well be his wife’s or it could be originated
K from people who sold the drugs or bottles to the defendant. K
L L
23. It was said that the defendant, being a renovation
worker, could afford to pay for the drugs habits. He only had to
M M
pay $2,000 rent per month. The Defence said, “the cash of
N $11,570 found on the defendant was not an excessive amount of N
money. The only evidence is that the defendant was in possession
O of a reasonable sum of money from which he would be able to pay O
rent, utilities, food bills and have enough money to support his
P P
addiction.” (paragraph 12.3 of the closing submission).
Q Q
24. It was further argued that it was reasonable for the
R defendant to have 2 scales to weigh the drugs he bought in order R
to ensure that he was not cheated. The quantity of drugs seized
S by the police are low and it was about 2 weeks’ supply of ice. S
It was said there were no series of plastic bags found already
T T
filled with specific small quantities of ice in exact saleable
amounts, eg 1 gramme or 2 grammes. In any event, the Defence
U U
CRT32/2.4.2024/JC 13 DCCC 872/2022(1)/Verdict
V V
A argued that the total amount of ice does not suggest A
trafficking, let alone the irresistible inference (paragraph 22
B of the submission). The defendant’s rate of consumption of ice B
is well within norms, submitted by the Defence who also urged
C C
the court not to place any weight on SIP Ng’s statement on the
valuation of the drugs.
D D
E 25. I have considered all the points raised by the defence E
counsel. I do not accept what was said by the defendant in his
F cautioned statement and VRI trustworthy. F
G G
26. He mentioned that he bought the ice from the Indian or
Pakistani national and yet he could not have any means to
H H
contact him. He does not quite remember them (entry 200) but
I
said it was easy to bump into him (entry 202). He remembered he I
paid $2,000 for the latest purchase as it was bought “last week”
J (entry 281 and 285). There are 2 small plastic bags containing J
non-drug stuff. The defendant recognised them right away and
K said they were baking soda for cooking and medicinal powder K
respectively. These 2 bags have orange and blue opening
L L
respectively.
M M
27. The police found 3 glass tubes with a bulb shape at one
N end (see album P33 at photos no. 21, 22 and 23), and each tube N
contained traces of ice (see the chemist certificate P37). There
O were 3 glass bottles with glass tube and metal gauze or plastic O
straws. One of the glass bottles was found to contain traces of
P P
ice. There was a piece of folded aluminium foil which had been
used for inhaling drugs. Inside a tin box, there were 3 large
Q Q
plastic bags, each of which contain 23, 19, and 33 small plastic
R bags respectively (paragraph 15 of the Admitted Facts P38). R
There were 2 electronic scales and the defendant said the scales
S were used to weigh the drugs he bought so that he would not be S
cheated. There was a grinder. The defendant at first mentioned
T T
that it was for grinding ice but immediately corrected that and
said it was to grind cannabis buds (entry 218 of the transcript
U U
CRT32/2.4.2024/JC 14 DCCC 872/2022(1)/Verdict
V V
A of the VRI, P32B). The chemist did find 0.1 gramme of cannabis A
in herbal form on the grinder.
B B
28. Dr Lam Tse-tsun, forensic scientist of the government
C C
laboratory, in his report (P36) stated that “the DNA obtained
from the pair of the cotton bud swabs (GPG 35153) was a mixture
D D
likely to have originated from three individuals, and such
E findings were indicative of ‘AA 970569’ being a possible source E
of the DNA mixture.” (paragraph 6 of the report). The cotton bud
F swabs come from “J on glass bottle (item 12) and J1 on glass F
bottle (item 12)”. Of course, the DNA findings cannot be used to
G G
implicate the defendant that he was trafficking in a dangerous
drug but it shows the DNA did not originate from only one
H H
individual (see the list of exhibits P39, item 12).
I I
29. A drug user can be a drug trafficker. The defendant
J left home with cash in the sum of over $10,000. The stack of J
cash was not found inside the defendant’s wallet but in his
K cross-body bag. The defendant said he had a dispute with his K
friend and hence he was able to “borrow” the Mercedes-Benz
L L
C-Class car from his friend with the licence expiry date of
28 January 2023 (photo 73 of the album). The defendant claimed
M M
in the VRI that he bought a packet of 7 grammes for $2,000 about
N one week before his arrest. And yet, the police seized one N
plastic bag which contained 7.94 grammes of a solid containing
O 7.8 grammes of methamphetamine, not to mention there was another O
smaller bag of 1.08 grammes of a solid with 1.06 grammes of
P P
methamphetamine (see the chemist report P37). If what the
defendant said about the scales was true, then he got more Ice
Q Q
(that is 7.94 grammes of a solid instead of 7 grammes) that he
R had bought. There were also a total of 78 small plastic bags R
which were contained in 3 larger plastic bags.
S S
30. From all the available evidence and when they are
T T
considered in totality, I rule that in relation to Charge 1, the
only irresistible and reasonable inference is that the defendant
U U
CRT32/2.4.2024/JC 15 DCCC 872/2022(1)/Verdict
V V
A possessed the dangerous drug for the purpose of trafficking. A
Accordingly, I convict the defendant of Charge 1.
B B
C C
D D
(Stanley Chan)
E E
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT32/2.4.2024/JC 16 DCCC 872/2022(1)/Verdict
V V
A DCCC 872/2022 A
[2024] HKDC 687
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 872 OF 2022
C C
----------------------
D D
HKSAR
E v E
Wong Wai-wah
F F
----------------------
G G
Before: HH Judge Stanley Chan
H Date: 2 April 2024 H
Present: Mr Edward F Le B Laskey, counsel on fiat, for HKSAR
I Mr Christopher Grounds, instructed by Francis I
Kong & Co, for the defendant
J Offence: (1) Trafficking in dangerous drugs (販運危險藥物) J
K K
---------------------
L Reasons for Verdict L
---------------------
M M
I. Background
N N
1. The defendant faced 3 counts of drug-related offences,
O
and he pleaded guilty to Charges 2 and 3. He was convicted of O
these 2 charges accordingly. As regards Charge 1, the defendant
P pleaded not guilty to trafficking in the dangerous drugs, but P
guilty to simple possession thereof. Originally, the verdict was
Q to be delivered on 1 March but on the day, the court was Q
informed that the defendant was being hospitalised in the Prince
R R
of Wales Hospital (PWH) because of a stroke. Defence counsel
said he was informed of this fact at about 9:30 am on the day.
S S
In the circumstances, the proceedings have to be adjourned and I
T refixed it for 2 April. T
U U
CRT32/2.4.2024/JC 1 DCCC 872/2022(1)/Verdict
V V
A 2. I also revoked the defendant’s bail. On 20 March, I was A
informed that the defendant was admitted to PWH on 1 March 2024
B for acute coronary syndrome and was discharged on 8 March and B
since then remanded in Lai Chi Kok Reception Centre.
C C
II. Brief Facts of the Case
D D
3. The facts of the case are straightforward. The
E defendant was intercepted when he went to a private car that was E
parked near his residence. Upon body search, the police found 2
F handrolled cigarettes containing cannabis in herbal form. The F
police then proceeded to search the defendant’s residence in a
G G
unit at Pok Tai House, Shatin. There more drugs, including ICE
and cannabis in herbal form, were found. In addition, more
H H
contraband were found, including 3 glass bottles for consuming
I
drugs, 2 electric scales and a tin box containing 78 empty small I
re-sealable plastic bags.
J J
4. The defendant claimed that all the drugs and the
K apparatus were for his own consumption. K
L L
III. The 1st and 2nd Admitted Facts (Exhibits P38 and P44)
M M
(1) The list of exhibits is marked as P39.
N N
(2) On 7 January 2022, Lau Ka-shun purchased a vehicle
O with the registration number XE 1997, and lent it O
to the defendant shortly.
P P
(3) At about 8:30 pm on 13 April 2022, DPC 25627
Q Q
Chau Ho-yin, intercepted the defendant when the
R defendant was in the driver seat of the said R
vehicle. The vehicle was parked in Shui Chuen Au
S Street outside Pok Tai House. S
T T
(4) A search on the defendant was conducted. From the
defendant’s blue cross-body bag (P1), the police
U U
CRT32/2.4.2024/JC 2 DCCC 872/2022(1)/Verdict
V V
A found one Marlboro cigarette pack with 4 A
cigarettes (P2), 2 of which were rolls of
B cannabis, sometimes known as cannabis joint, which B
are produced as P3.
C C
(5) At 8:35 pm on 13 April 2022, the defendant was
D D
arrested and under caution, the defendant said,
E “the two rolls of cannabis are for my own E
consumption.”
F F
(6) A house search was conducted at the defendant’s
G G
residence of Room 1514, Pok Tai House, Pok Hong
Estate, Sha Kok Street, Shatin. Exhibit P4 to P26
H H
were found and seized (see list of exhibits P39).
I I
(7) At about 11 pm on 13 April 2022, the defendant was
J arrested for trafficking in dangerous drugs. J
Under caution, the defendant said, “The dangerous
K drugs are for my own consumption. I did not sell K
dangerous drug.”
L L
(8) Photos were taken with 30 photos depicting the
M M
defendant’s residence (P33), 32 photos depicting
N some exhibits (P34), and 11 photos depicting the N
vicinity of Shui Chuen Au Street (P35).
O O
(9) The chain of evidence relating to the exhibits is
P P
not challenged.
Q Q
(10) Subsequent to the defendant’s arrest and caution,
R the defendant voluntarily answered questions and R
the answers are accurately recorded in the
S following documents: S
T T
U U
CRT32/2.4.2024/JC 3 DCCC 872/2022(1)/Verdict
V V
A (a) DPC 25627’s notebook (with redaction) and the A
certified English translation, marked as P30A
B and P30B; B
C C
(b) Pol 857 as recorded by DPC 25627 on
13 April 2022 with certified English
D D
translation, marked as P31A and P31B;
E E
(c) A VRI was conducted with the certified
F English translation of the transcript, marked F
as P32A and P32B.
G G
(11) Part of the seized exhibits were delivered to the
H H
Government Laboratory for DNA examination. The
I
DNA report is produced and marked as P36. I
J (12) The Chemist certificate dated 16 January 2023 is J
marked as P37.
K K
(13) The witness statements of DPC 24048 (P40), DPC
L L
25627 (P41), DPC 14919 (P42), and SIP Ng Ka-lun
(P43, subsequent to the ruling on the
M M
admissibility of this statement) were produced
N under s.65B of the Criminal Procedure Ordinance. N
O (14) Amongst the items seized from the defendant’s O
residence was a tin box containing 78 clear
P P
plastic bags as exhibited as P22 to P24. P22 was
a large transparent re-sealable plastic bag
Q Q
containing 23 small re-sealable plastic bags; P23
R was a large transparent re-sealable plastic bag R
containing 19 small transparent re-sealable
S plastic bags, and P24 was a large transparent re- S
sealable plastic bag containing 33 small
T T
transparent re-sealable plastic bags.
U U
CRT32/2.4.2024/JC 4 DCCC 872/2022(1)/Verdict
V V
A (15) The list of exhibits (P39) accurately records the A
descriptions of the exhibits, DNA examination
B results and the relevant counter number under the B
digital media number AB24080 transcript. The
C C
content thereof under P39 is admitted to be
accurate.
D D
E (16) Between 8:30 pm and 8:34 pm on 13 April 2022, DPC E
25627 conducted a search on the defendant and
F found the following items on the defendant: F
G G
(a) 5 keys (P27A);
H H
(b) one Octopus card (P27B);
I I
(c) 2 mobile phones (P28A and P28B);
J J
(d) cash of HK$6,500, $4,400 and $670 (P29A, P29B
K and P29C respectively). K
L L
IV. The Ruling on the admissibility of the police expert on
drugs valuation
M M
5. Defence counsel objected the prosecution to produce the
N statement of SIP Ng on the valuation of the drugs seized, and N
tendered a bundle of written submissions with 5 authorities.
O Defence counsel submitted that the Hong Kong Court of Appeal O
decision in HKSAR v Lo Yan Kan [1997] 3 HKC 430 was decided per
P P
incuriam and no weight should be attached to it.
Q Q
6. I ruled against the application, relying on the English
R cases R v Bryan (8 November 1984, CA) and R v Hodges [2003] 2 Cr R
App R 15, and the abovementioned Hong Kong case, HKSAR v Lo Yan
S Kan. In my view, the estimation of the street value of the drugs S
by police experts offered a kind of reference or yardstick for
T T
the court to have some ideas about the value of the dangerous
drugs seized at a particular time in Hong Kong. This piece of
U U
CRT32/2.4.2024/JC 5 DCCC 872/2022(1)/Verdict
V V
A evidence alone cannot implicate the culpability of the arrested A
person as to whether he did traffic in a dangerous drug.
B B
7. Consequent upon my ruling, the statement of SIP Ng was
C C
tendered under s.65B of the Criminal Procedure Ordinance and
marked as P43.
D D
E 8. In SIP Ng’s opinion, the drug ICE in relation to the E
1st charge has a street value of $5,160, and the cocaine has the
F value of $818 (powder) or $1,490 (crack). F
G G
V. The issue of calling PW1 DPC 25627 Chau Ho-yin
9. The witness statement of PW1 has been admitted as P41
H H
under s.65B of the Criminal Procedure Ordinance. The statement
I
does not mention anything about those cash and mobile phones I
found on the defendant at the time when he was intercepted. Mr
J Laskey, counsel on fiat, intended to rely on the 2nd Admitted J
Facts. Upon the urge of this court, PW1 was called to give
K evidence in court. Prior to the calling of PW1, Mr Grounds, K
Defence Counsel, challenged the court’s authority to ask the
L L
prosecutor to call a witness to testify, saying that the court
can only invite, but cannot direct, the prosecution to do so. Mr
M M
Grounds further submitted that he would also consider to make an
N application for recusal depending upon the result of my ruling. N
When asked, Mr Grounds said that he had no intention to threaten
O this court. O
P P
10. Mr Grounds relied on an Australian case in 1984,
R v Apostilides [1984] 154 CLR at 563. It was a jury trial, and
Q Q
the Australian court said:
R R
“Save in the most exceptional circumstances, the trial judge
should not himself call a person to give evidence.”
S S
11. In gist, Defence Counsel said the judge has no power to
T T
call a witness of his own volition. In that case, the witnesses
U concerned are 2 civilian witnesses. In the present case, we are U
CRT32/2.4.2024/JC 6 DCCC 872/2022(1)/Verdict
V V
A talking about the arresting officer whose statement has been A
admitted under s.65B of the CPO. This court has certain issues
B to clarify from this police witness. The purpose was to clarify B
what did the officer seize from the defendant when the latter
C C
was intercepted. For some unknown reasons, the prosecutor was
reluctant to call this police witness, but to rely on the
D D
production of the 2nd Admitted Facts.
E E
12. On the other hand, Mr Grounds said that the basis of
F recusal was that the judge has no role to play in an adversary F
system as “the judge’s role in that system is to hold the
G G
balance between parties without himself taking part in their
disputations. It is not an inquisitorial role in which he seeks
H H
himself to remedy the deficiencies in the case on either side”
I
(page 576 of that judgment). I
J 13. At the end of the day, Defence Counsel said that now it J
was the prosecutor who acceded to the “request” of the court,
K not directed by the court, hence, he would not take issue of the K
calling of this police officer. Consequently, he also formally
L L
withdrew the application for recusal of the trial judge.
M M
PW1 DPC 25627 Chau Ho-yin
N 14. He adopted his witness statement dated 19 April 2022, N
which has been produced as P41. The defence has no objection for
O PW1 to identify the defendant in the dock. PW1 said he O
intercepted the defendant when he approached the private car
P P
which is a Mercedes Benz with the registration number XE 1997
(photos 68 to 73 of the photo album). The defendant was taken to
Q Q
the police car for body search.
R R
15. PW1 said he found a bunch of keys from the defendant
S and one of which can access to the private car. He also found a S
Marlboro cigarette pack in which there were four cigarettes and
T T
2 handrolled cannabis. The defendant also has a mobile phone
with him but he forgot whether the defendant had one or 2 phones
U U
CRT32/2.4.2024/JC 7 DCCC 872/2022(1)/Verdict
V V
A with him. PW1 also found the defendant’s wallet and a stack of A
cash of over $10,000 in the cross-body bag. The cash was not
B inside the wallet. He cannot recall the denomination of the B
cash.
C C
16. Under a brief cross-examination, PW1 admitted that he
D D
made no reference of the defendant’s wallet in his statement but
E was sure that there was a wallet. E
F F
VI. Cautioned statement and VRI
G (1) The notebook entry (P30A with the English G
translation P30B):
H The defendant said, “For the car, I had some H
argument with my friend. The two rolls of
I I
cannabis are for my own consumption.”
J J
K (2) The statement of Pol 857 (P31A with the English K
translation P31B):
L The defendant said, inter alia, that “the L
dangerous drugs are for my own consumption. I did
M M
not sell dangerous drugs.”
N N
O (3) The VRI (P32 with the Chinese transcript P32A and O
English transcript P32B):
P P
Q Entry 29 – (referring to the cannabis joints) Q
these items are mine. I take them for my own
R R
consumption.
S S
Entry 41 – I bought it from a friend at Tsim
T Sha Tsui. T
U U
CRT32/2.4.2024/JC 8 DCCC 872/2022(1)/Verdict
V V
A Entry 49 and 51 – $1,000 for 7 grammes A
B B
Entry 53 and 57 – (referring to the content of
a transparent re-sealable plastic bag) not
C C
drug, but a kind of baking soda, presumably.
D D
Entry 59 and 61 – I always pack it in these
E E
small bags, for eating, for cooking and
marinating.
F F
G Entry 69 – (referring to the content of the G
transparent re-sealable plastic bag with an
H orange opening) baking soda too, presumably. H
I I
Entry 79, 83, and 85 – (referring to the
J content of a transparent re-sealable plastic J
bag with a blue opening) Not drug either,
K they are a kind of medicinal powder for K
athlete’s feet.
L L
Entry 89, 91 and 95 – his friend gave him over
M M
half a year ago. No means of contact.
N N
Entry 99 – (referring to the content of the
O O
re-sealable plastic bag) This should be the
leftover ice that I took.
P P
Q Entry 109 – I take about one gram per day. Q
R Entry 113 and 119 – I get a glass mouthpiece R
then pour some ice into the mouthpiece, then
S S
place it on the bong and burn it for
T inhalation. You burn that glass pipe, smoke T
will come out, then inhale it.
U U
CRT32/2.4.2024/JC 9 DCCC 872/2022(1)/Verdict
V V
A Entry 125 – (how long did he take Ice) 10 odd A
years.
B B
Entry 131 – used a lighter to burn the
C C
aluminium foil on which there was ice, and
D when the smoke came out, he would get a glass D
bowl to inhale the smoke.
E E
Entry 139 – he used a straw and the ice bong
F F
to inhale the smoke.
G G
Entry 143 – (the tools shown to the defendant)
H they are for taking cannabis and ice. H
I I
Entry 145 and 147 – for the glass bong,
J sometimes he take some coke, that is cocaine, J
with it as well.
K K
Entry 155 – for cannabis, he rolled it with
L L
some rolling paper.
M M
Entry 184 – these are cannabis buds he bought
N for consumption. N
O O
Entry 191, 196 – he bought it from “Ah Cha”,
Indian and Pakistani nationals.
P P
Q Entry 206 – he spent $1,100 on buying cannabis Q
buds.
R R
Entry 208 – he used tobacco pipe to take
S S
cannabis buds.
T T
U U
CRT32/2.4.2024/JC 10 DCCC 872/2022(1)/Verdict
V V
A Entry 218 – (referring to the grinder) it was A
used for grinding ice, no, for grinding
B B
cannabis buds.
C C
Entry 222 and 253 – (re electronic scales) he
D was afraid to be cheated with short weight. D
He measured it (the drug) when returned.
E E
Entry 226 and 228 – that applies to ice and
F F
cannabis buds.
G G
Entry 236 – (referring to the re-sealable
H plastic bags with a bat pattern) The ice is H
for his own consumption.
I I
Entry 241 – the drugs was from “ON”, the
J J
Indian and Pakistani nationals.
K K
Entry 245 and 247 – he bought one packet,
L L
much cheaper. Then it was divided into a
portion, enough for him to take half a month.
M M
N Entry 249 and 257 – 7 grammes for a packet, N
and divide it into portions for consumption.
O O
Entry 265 – (for those re-sealable plastic
P P
bags found in the metal box) he bought them
Q for taking separately, so that he would not Q
take too much.
R R
Entry 277 and 279 – this packet of ice was
S S
bought from the Indian and Pakistani
T nationals for self-consumption. It cost T
$2,000.
U U
CRT32/2.4.2024/JC 11 DCCC 872/2022(1)/Verdict
V V
A Entry 283 – He bought it not long ago, last A
week.
B B
Entry 307 and 311 – he has been living there
C C
for over 10 to 20 years. The rent is $2,000
D odd. D
E VII. Half-time E
17. Consequent upon the close of the prosecution case,
F F
there was no half-time submission. Defence Counsel confirmed
that the defendant elected not to give evidence, nor would he
G G
call any defence witness.
H H
VIII. Analysis of evidence
I 18. All along, the prosecution has the duty to prove the I
charge against the defendant beyond reasonable doubt. The
J J
defendant has no duty to prove anything. The fact that the
defendant indicated his guilty plea to a lesser charge of
K K
possession, and that he pleaded guilty to Charges 2 and 3, will
L not cause any bias by this court when determining his L
culpability in the offence of trafficking in dangerous drugs.
M M
19. On the other hand, the fact that the defendant chose
N not to give evidence is his right. The court cannot draw any N
adverse inference therefrom. However, that also means the
O O
defendant cannot attack or shatter the evidence of the
prosecution by himself as the first person. What the defendant
P P
said or admitted in the cautioned statements and the VRI cannot
Q be treated with the same weight as if he testified in court. Q
R 20. In the closing submission, defence counsel relied R
heavily on those explanations given by the defendant to show
S S
that all the dangerous drugs seized were for the defendant’s own
consumption. He concluded that the defendant should be acquitted
T T
of Charge 1 but convicted of the lesser charge of possession of
U U
CRT32/2.4.2024/JC 12 DCCC 872/2022(1)/Verdict
V V
A the dangerous drug, in addition to the other 2 charges that the A
defendant had already pleaded guilty to.
B B
21. It was submitted that “if the defendant’s case or the
C C
defendant’s statements in the VRI were true or might have been
true, then such benefit of a doubt must be given to him. Even if
D D
the defendant’s case was entirely rejected, the prosecution
E still bears the burden to prove its case beyond a reasonable E
doubt.” (paragraph 2 of the submission).
F F
22. The Defence argued that the prosecution’s case is
G G
entirely relying on circumstantial evidence but it is flimsy.
The prosecution has no evidence to prove that the defendant was
H H
selling the drugs. When intercepted, the defendant had no ‘ice
I
and cocaine found on him, but just 2 cannabis joints. There were I
no drugs found in the private car XE 1997. As for the DNA
J evidence, it was argued that those DNA traces which did not J
belong to D could well be his wife’s or it could be originated
K from people who sold the drugs or bottles to the defendant. K
L L
23. It was said that the defendant, being a renovation
worker, could afford to pay for the drugs habits. He only had to
M M
pay $2,000 rent per month. The Defence said, “the cash of
N $11,570 found on the defendant was not an excessive amount of N
money. The only evidence is that the defendant was in possession
O of a reasonable sum of money from which he would be able to pay O
rent, utilities, food bills and have enough money to support his
P P
addiction.” (paragraph 12.3 of the closing submission).
Q Q
24. It was further argued that it was reasonable for the
R defendant to have 2 scales to weigh the drugs he bought in order R
to ensure that he was not cheated. The quantity of drugs seized
S by the police are low and it was about 2 weeks’ supply of ice. S
It was said there were no series of plastic bags found already
T T
filled with specific small quantities of ice in exact saleable
amounts, eg 1 gramme or 2 grammes. In any event, the Defence
U U
CRT32/2.4.2024/JC 13 DCCC 872/2022(1)/Verdict
V V
A argued that the total amount of ice does not suggest A
trafficking, let alone the irresistible inference (paragraph 22
B of the submission). The defendant’s rate of consumption of ice B
is well within norms, submitted by the Defence who also urged
C C
the court not to place any weight on SIP Ng’s statement on the
valuation of the drugs.
D D
E 25. I have considered all the points raised by the defence E
counsel. I do not accept what was said by the defendant in his
F cautioned statement and VRI trustworthy. F
G G
26. He mentioned that he bought the ice from the Indian or
Pakistani national and yet he could not have any means to
H H
contact him. He does not quite remember them (entry 200) but
I
said it was easy to bump into him (entry 202). He remembered he I
paid $2,000 for the latest purchase as it was bought “last week”
J (entry 281 and 285). There are 2 small plastic bags containing J
non-drug stuff. The defendant recognised them right away and
K said they were baking soda for cooking and medicinal powder K
respectively. These 2 bags have orange and blue opening
L L
respectively.
M M
27. The police found 3 glass tubes with a bulb shape at one
N end (see album P33 at photos no. 21, 22 and 23), and each tube N
contained traces of ice (see the chemist certificate P37). There
O were 3 glass bottles with glass tube and metal gauze or plastic O
straws. One of the glass bottles was found to contain traces of
P P
ice. There was a piece of folded aluminium foil which had been
used for inhaling drugs. Inside a tin box, there were 3 large
Q Q
plastic bags, each of which contain 23, 19, and 33 small plastic
R bags respectively (paragraph 15 of the Admitted Facts P38). R
There were 2 electronic scales and the defendant said the scales
S were used to weigh the drugs he bought so that he would not be S
cheated. There was a grinder. The defendant at first mentioned
T T
that it was for grinding ice but immediately corrected that and
said it was to grind cannabis buds (entry 218 of the transcript
U U
CRT32/2.4.2024/JC 14 DCCC 872/2022(1)/Verdict
V V
A of the VRI, P32B). The chemist did find 0.1 gramme of cannabis A
in herbal form on the grinder.
B B
28. Dr Lam Tse-tsun, forensic scientist of the government
C C
laboratory, in his report (P36) stated that “the DNA obtained
from the pair of the cotton bud swabs (GPG 35153) was a mixture
D D
likely to have originated from three individuals, and such
E findings were indicative of ‘AA 970569’ being a possible source E
of the DNA mixture.” (paragraph 6 of the report). The cotton bud
F swabs come from “J on glass bottle (item 12) and J1 on glass F
bottle (item 12)”. Of course, the DNA findings cannot be used to
G G
implicate the defendant that he was trafficking in a dangerous
drug but it shows the DNA did not originate from only one
H H
individual (see the list of exhibits P39, item 12).
I I
29. A drug user can be a drug trafficker. The defendant
J left home with cash in the sum of over $10,000. The stack of J
cash was not found inside the defendant’s wallet but in his
K cross-body bag. The defendant said he had a dispute with his K
friend and hence he was able to “borrow” the Mercedes-Benz
L L
C-Class car from his friend with the licence expiry date of
28 January 2023 (photo 73 of the album). The defendant claimed
M M
in the VRI that he bought a packet of 7 grammes for $2,000 about
N one week before his arrest. And yet, the police seized one N
plastic bag which contained 7.94 grammes of a solid containing
O 7.8 grammes of methamphetamine, not to mention there was another O
smaller bag of 1.08 grammes of a solid with 1.06 grammes of
P P
methamphetamine (see the chemist report P37). If what the
defendant said about the scales was true, then he got more Ice
Q Q
(that is 7.94 grammes of a solid instead of 7 grammes) that he
R had bought. There were also a total of 78 small plastic bags R
which were contained in 3 larger plastic bags.
S S
30. From all the available evidence and when they are
T T
considered in totality, I rule that in relation to Charge 1, the
only irresistible and reasonable inference is that the defendant
U U
CRT32/2.4.2024/JC 15 DCCC 872/2022(1)/Verdict
V V
A possessed the dangerous drug for the purpose of trafficking. A
Accordingly, I convict the defendant of Charge 1.
B B
C C
D D
(Stanley Chan)
E E
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT32/2.4.2024/JC 16 DCCC 872/2022(1)/Verdict
V V