A A
B B
DCCC 48/2024
C [2026] HKDC 59 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 48 OF 2024
F F
G ----------------------------------- G
HKSAR
H H
v
I EZENWANKWO STANLEY NZUBECHUKWU I
-----------------------------------
J J
Before: His Honour Judge Tam
K Date: 8 January 2026 K
Present: Ms Ho Sui Kei Cherry, Senior Public Prosecutor, for
L L
HKSAR
M (Mr McGuinniety Edward L, counsel-on-fiat, absent, acted M
for HKSAR throughout the whole trial)
N N
Ms Mohamed Nisha, instructed by Cheung, Yeung & Lee,
O assigned by the Director of Legal Aid, for the defendant O
Offences: [1] Misleading a police officer by the giving of false
P P
information（提供虛假資料以誤導警務人員）
Q Q
[2] Trafficking in a dangerous drug（販運危險藥物）
R [3] Assaulting a police officer in the execution of his duty R
（襲擊執行職責的警務人員）
S S
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T REASONS FOR VERDICT T
-----------------------------------------
U U
V V
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A A
B B
1. Before me the defendant faces a Charge Sheet consisting of 3
C charges as follows. C
D D
2. Charge 1 is Misleading a police officer by the giving of false
E information, contrary to section 63 of the Police Force Ordinance, Cap 232. E
Particulars are that the defendant, on 16 August 2023, at 2 nd Floor, Kam
F F
Wah Building, No 831D Canton Road, Yau Ma Tei, Kowloon, in Hong
G Kong, willfully misled Detective Police Constable 5844, a police officer of G
the Hong Kong Police Force, by the giving of false information, namely,
H H
the defendant held himself out as Izebhor Festus Osakwe, with intent to
I defeat or delay the ends of justice. I
J J
3. Charge 2 is Trafficking in a dangerous drug, contrary to
K section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. K
Particulars are that the defendant, on the same date, at Room A, Flat B6,
L L
2nd Floor, Kam Wah Building aforesaid, in Hong Kong, unlawfully
M trafficked in a dangerous drug, namely 53.16 grammes of a solid M
containing 25.91 grammes of cocaine.
N N
O 4. Charge 3 is Assaulting a police officer in the execution of his O
duty, contrary to section 63 of the Police Force Ordinance, Cap 232.
P P
Particulars are that the defendant, on the same date, at Room A, Flat B6,
Q 2nd Floor, Kam Wah Building aforesaid, in Hong Kong, assaulted Detective Q
Sergeant 2965, a police officer of the Hong Kong Police Force acting in
R R
the execution of his duty.
S S
5. The defendant pleaded not guilty to the charges resulting in
T T
the necessity of a trial.
U U
V V
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A A
B B
C PROSECUTION CASE C
D D
6. Police officers intercepted defendant outside his residence.
E Upon enquiry of his identity, defendant produced a colour copy Form 8. E
When asked if it was his and if the document bore his name, defendant said
F F
yes. It was subsequently discovered that he was not the person named on
G the Form 8. G
H H
7. Defendant was brought inside his residence (Room A within
I Flat B6). A search was conducted in which 3 packets of cocaine together I
with an electronic scale were found. Upon arrest for trafficking in
J J
dangerous drug, defendant denied and kept saying the drug was brought
K from outside. He struggled. Police officers eventually managed to K
handcuff him at his back. He continued to struggle with his jaw landing
L L
on PW2’s forehead causing injuries.
M M
DEFENCE CASE
N N
O 8. Defence case is a general denial of the prosecution case O
requiring almost strict proof of the same. Defendant gave evidence and
P P
adopted what he said under cautioned VRI. Defence relied heavily on a
Q piece of prosecution exhibit Exh P40 which was a CCTV footage (with Q
audio) with audio recordings of what defendant was saying to the police
R R
when he was under police custody. The defence case was that the
S dangerous drug was found not in Room A but outside Room A within the S
confines of Flat B6.
T T
U U
V V
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A A
B B
PROCEDURAL HISTORY
C C
9. Prosecution called a total of 17 witnesses who were PW1
D D
DPC5844 (Arresting officer), PW2 DSgt2965 (Injured officer), PW3
E DPC9696 (Searching and Exhibits officer at scene), PW4 PC14340 E
(Photographer), PW5 DPC23532 (Exhibits and Interviewing officer and
F F
minor photographer), PW6 Xiong Mei (Landlady), PW7 DPC8505
G (Interviewing and 2nd arresting officer), PW8 Dr Chan Wing Lun (Medical G
Officer), PW11 Leung Shuk Mei (Govt Chemist), PW14 SSgt KK Lam
H H
(Duty Officer), PW15 SSgt KK Chung (Duty Officer), PW16 SSgt CH Lo
I (Duty Officer), PW17 SSgt PL Yip (Duty Officer), PW18 SSgt KC Leung I
(Duty Officer), PW19 PC51637 (RDDPC), PW23 DPC21307 (Produces
J J
CCTV), PW27 SSgt DM Chung (Duty Officer) (not necessarily in this
K order). K
L L
10. After the close of the prosecution case, defence made no half-
M time submissions. Upon consideration of the relevant evidence, I ruled M
there was a case to answer on all charges.
N N
O 11. Defendant elected to give evidence himself but did not call O
any other witnesses. I will give his evidence due consideration in the same
P P
objective way I have treated other witnesses’ evidence. Parties made
Q written submissions supplemented by oral submissions. I duly considered Q
them but will not summarize them here.
R R
S S
T T
U U
V V
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A A
B B
MY CONSIDERATION
C C
12. I reminded myself the prosecution bears the burden of proof
D D
throughout, the standard of proof being beyond a reasonable doubt. Where
E there is a doubt in the prosecution case, the defendant enjoys the benefit of E
that doubt.
F F
G 13. I will consider the charges and the evidence relating to them G
separately although I bear in mind some of the evidence may be common
H H
to more than one charge. I will be alert to the possible occurrences of
I inconsistent verdicts but will strive to avoid them. I
J J
Summary of salient prosecution evidence and my assessment of the
K witnesses K
L L
PW1 DPC5844 (Arresting officer)
M M
14. At about 1540 hours, defendant opened the iron gate of Flat
N N
B6 and left. He turned right towards the direction of the lift lobby.
O DPC9758 and PW3 and PW1 went forward from their ambush position to O
intercept and search.
P P
Q 15. PW1 intercepted defendant and showed him the warrant card Q
and revealed his police identity in English. PW1 asked in English for
R R
defendant’s identity document. Defendant showed PW1 a Form 8
S document (Exh P4) issued by Immigration (no dispute that it was not the S
defendant’s own Form 8).
T T
U U
V V
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A A
B B
16. PW1 did a body search on defendant with the following
C discoveries:- C
D D
(a) From his left (later changed to right) front pants pocket,
E a key (Exh P6) was found; E
F F
(b) He was holding a foldable phone (Exh P10) in his left
G hand; and G
H H
(c) His wallet contained cash of $300 (Exh P7).
I I
17. When PW1 checked the Form 8 document, he found it was a
J J
colour copy. Form 8 document showed a Nigerian male and his portrait.
K After reading the Form 8 document, PW1 asked, “Is it yours? Your name?” K
Defendant said, “Yes.”
L L
M 18. PW1 asked, “Where’s the original Form 8?” Defendant did M
not answer.
N N
O 19. PW1 asked, “Where is your address?” Defendant answered, O
“B6 Room A.”
P P
Q 20. At 1545 hrs, PW2 arrived at the scene (outside Flat B6). PW1 Q
reported the incident of interception to PW2. PW2 showed and explained
R R
search warrant (Exh P17) to the defendant and told him a search needed to
S be conducted on the unit. After the defendant heard it, he became S
emotional and said “No.” Defendant flung out his right hand while his left
T T
hand was holding his foldable phone (Exh P10).
U U
V V
-7-
A A
B B
C 21. PW2 gave defendant a warning “Calm down.” Defendant C
calmed down. Officers took defendant into Flat B6 for search.
D D
E 22. Officers asked defendant to open the door of Room A. He E
ignored them. PW1 then tried to open the door with the defendant’s key.
F F
The door opened. There was no one inside. At 1550 hours, PW3 started
G to search Room A in the presence of PW1 and defendant at the doorway. G
H H
23. Then, PW3 told PW1 he had found another colour copy Form
I 8 (Exh P5) inside a wardrobe/drawer under the bed. This Form 8 was same I
as or similar to the previous one (Exh P4). PW1 asked defendant why there
J J
was another copy. Defendant did not answer.
K K
24. At 1650 hours, PW3 started to search the in-suite toilet. PW3
L L
told PW1 that there were 3 transparent plastic packets of suspected
M dangerous drug on top of the water heater. PW3 held them up to show M
PW1.
N N
O 25. PW1 declared arrest on defendant for trafficking in dangerous O
drug. Defendant’s emotion went out of control and said, “No. No.”
P P
Defendant attempted to dash forward. PW1 said, “Calm down.” But
Q defendant was still out of control. Q
R R
26. PW1 and PW2 managed to handcuff the defendant at the back
S after about 30 seconds. However, defendant was still emotional and moved S
left and right, struggling. PW1 and PW2 were trying to put him under
T T
U U
V V
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A A
B B
control. During this time, defendant’s jaw hit the left forehead of PW2.
C DPC9758 came in to assist to control defendant. C
D D
27. At 1655 hours, PW1 knew PW2’s head was injured and bled.
E At the doorway of Room A, PW1 declared arrest on defendant for E
assaulting a police officer. Defendant’s emotion was still out of control
F F
and said a lot of English including “No. No, it’s not me”, “Not from here”,
G “You take it outside”. G
H H
28. PW1 believed the defendant was the person shown on the
I Form 8 (Exh P4) because “this is the identity document shown to me”. I
J J
29. Under cross-examination, PW1 recalled that it seemed that
K PW3 showed him only one pack of dangerous drug. On the matter of K
assault, PW1 said defendant’s head rotated left and right and the
L L
defendant’s left bottom jaw hit the left forehead of PW2 only once.
M M
Assessment of PW1 as a witness
N N
O 30. PW1 did not impress me as a reliable witness. In the O
beginning of cross-examination, he was not able to tell how he entered the
P P
subject building or how he reached the ambush position on the 2/F. It is
Q almost as if he had no memory at all of that experience 2 years and 2 Q
months after the event.
R R
S 31. PW1’s version of how PW3 showed him the dangerous drug, S
and how the defendant’s jaw landed on PW2’s forehead also differed from
T T
those witnesses’ versions respectively in a significant way.
U U
V V
-9-
A A
B B
C PW2 DSgt2965 (Injured officer) C
D D
32. At about 1545 hours, PW2 was informed by PW1 (by remote
E means) of something. PW2 then went to 2/F of the subject building to join E
3 other officers including PW1 and PW3 outside Flat B6. PW2 heard
F F
PW1’s report about earlier interception of defendant.
G G
33. PW1 showed him a colour copy Form 8 (Exh P4) found on
H H
(or under cross-examination: “shown by”) defendant. PW2 compared the
I photo on it against defendant. He believed it was the defendant’s photo I
(no dispute that in fact it was not defendant in the photo).
J J
K 34. PW2 showed and explained search warrant (covering Flat B6 K
without specific reference to Room A) (Exh P17) to defendant. Defendant
L L
said no and became emotional and threw both arms above his head.
M M
35. PW1 told PW2 a key had been found on defendant during
N N
earlier body search and that defendant had told PW1 that he lived in Room
O A of Flat B6. O
P P
36. PW1-3 entered Flat B6 with defendant. PW2 asked if
Q defendant was willing to let police search his house. Defendant refused. Q
PW2 instructed PW1 to try open door of Room A with key. It was
R R
successful.
S S
37. PW2 instructed PW3 to conduct house search. He instructed
T T
PW1 to guard defendant. PW3 conducted search for about one hour. PW3
U U
V V
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A A
B B
found 3 packets of dangerous drug on top of water heater inside toilet,
C another colour copy Form 8 (Exh P5) (similar to or same as Exh P4) near C
the bed, an electronic scale (Exh P16) and some toothbrushes (Exh P8 and
D D
P9).
E E
38. PW3 did show the 3 packets of dangerous drug (Exh P1-3) to
F F
him.
G G
39. PW2 instructed PW1 to declare arrest on defendant for
H H
trafficking in dangerous drug. PW1 did so. Defendant became emotional
I again. Both his arms kept moving and expressed in simple English a denial. I
PW1 and PW2 handcuffed defendant at the back.
J J
K 40. Still, defendant was emotional and moved forward and K
pressed his body against PW1 and PW2. PW2 bent down and held
L L
defendant’s waist. Defendant assaulted PW2 by using his jaw to hit PW2’s
M left forehead. Defendant did so by nodding action twice: both of which M
resulted in defendant’s jaw hitting PW2’s forehead. PW2 warned
N N
defendant to control his emotion. Eventually defendant became stable.
O PW2 found his left forehead red and swollen and bled a little. O
P P
41. PW2 instructed PW1 to declare arrest on defendant for
Q assaulting police officer. PW1 did so. Defendant did not reply. Q
R R
42. PW2 went to Kwong Wah Hospital for treatment later the
S same day. S
T T
U U
V V
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A A
B B
43. Under cross-examination, a CCTV (with audio) (Exh P40)
C (transcript at MFI-1) was played mainly for PW2’s listening. [The CCTV C
camera and microphone were located at the door in the residential unit
D D
opposite to and not far from Flat B6. The footage could not capture the
E door of Flat B6 because of the angle. However, some background noise E
could be heard.]
F F
G 44. Despite the loud banging sound that could be heard in the G
background from P40, PW2 testified that on the day in question, he could
H H
not hear the iron gate closed; PW3 did not throw things on the floor while
I doing the house search; the passageway outside Room A (but within Flat I
B6) was not searched.
J J
K 45. Although PW2 agreed defendant at some stage said, “It’s not K
me”, “Not from my house”, and “You take it outside” (generally in line
L L
with the CCTV audio), he denied defendant ever said (which is also present
M in the audio), “I see you take out from this sock, show your brother, you M
bring inside my house”.
N N
O Assessment of PW2 as a witness O
P P
46. Standing on its own, PW2’s evidence is mostly reasonable.
Q Although there are some discrepancies with PW1’s evidence such as what Q
defendant’s reaction was after he was arrested for assaulting police officer;
R R
and whether the assault on PW2 was caused by a rotating action or a
S nodding action on the part of defendant, these could be explicable on the S
basis of lapse of memory or heat of the action.
T T
U U
V V
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A A
B B
47. However, when PW2’s testimony is measured against the
C CCTV audio (Exh P40), there arose an irreparable doubt as to how the C
dangerous drug came to be found: whether the 3 packets were found on top
D D
of the water heater as alleged or whether they were found in a sock found
E in the passageway outside Room A and then placed on top of the water E
heater as put by the defence.
F F
G PW3 DPC9696 (Searching and Exhibits officer at scene) G
H H
48. At about 1540 hours, PW1, PW3 and DPC9758 went out from
I their ambush position on 2/F of the subject building to the corridor to I
intercept defendant. PW1 started to make enquiries and conducted body
J J
search against defendant. PW3 and DPC9758 were on guard next to them.
K Defendant showed a Form 8 (Exh P4) to PW1. Defendant told PW1 he K
lived in Room A of Flat B6.
L L
M 49. At 1550 hours, PW3 conducted search of Room A in the M
presence of defendant. Another copy of Form 8 (Exh P5) was found in one
N N
of the drawers under the bed.
O O
50. PW3 searched the toilet. He stood on toilet seat and reached
P P
out his hand to touch the top of the water heater and found 3 packets of
Q things. He held them up one by one. They were 3 transparent plastic bags Q
of white powder suspected to be dangerous drug (Exh P1-3).
R R
S 51. He told PW1 his find and held up the 3 packets one by one S
(held up one, put it back in its original position, and held up another etc).
T T
U U
V V
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A A
B B
52. PW1 declared arrest on defendant for trafficking in dangerous
C drug. C
D D
53. Before or after searching Room A, PW3 did not search the
E passageway. To his knowledge, no other officers found drug in the E
passageway.
F F
G 54. PW3 also seized an electronic scale (Exh P16) from inside a G
drawer of a dressing table inside Room A.
H H
I 55. Under cross-examination, PW3 said he did not pass his O- I
level English and his ability to understand English is below standard;
J J
however, he could understand simple English. PW3 saw defendant show
K a Form 8 (Exh P4) after PW1 finished talking, so he thought/believed PW1 K
asked for his identity.
L L
M 56. PW3 did not hear the utterances of defendant captured by the M
CCTV audio.
N N
O Assessment of PW3 as a witness O
P P
57. No offence to PW3, but because of his English competence
Q level, he would not have been able to understand the conversation between Q
PW1 and defendant at the initial interception stage. Indeed, PW3 in his
R R
testimony never mentioned PW1 ask defendant if the first Form 8 (Exh P4)
S was the defendant’s and what his reply was, despite his evidence that he S
(PW3) was beside them.
T T
U U
V V
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A A
B B
58. However, the real difficulty with PW3’s evidence is that he
C did not hear the utterances of the defendant captured by CCTV audio. C
Maybe it was a case of his failure to understand what the defendant was
D D
saying and therefore he had less memory of that happening. In any event,
E it did not give PW3 any benefit in taking the prosecution case any higher. E
F F
General assessment of the prosecution evidence
G G
59. Because of the doubt created by the CCTV audio as described,
H H
I cannot be sure of the prosecution case under Charge 2 (trafficking in
I dangerous drug). Because of this, there is also a derivative doubt in the I
prosecution case under Charge 3 (Assaulting police officer) because I
J J
cannot be sure that the assault (assuming there was one) on PW2 arose in
K the due execution of his duty. A corollary of that would be the assault, if K
there was one, would be an act of the defendant acting in reasonable self-
L L
defence.
M M
60. Regarding Charge 1, PW1 was the only realistic witness who
N N
could testify as to the prosecution case as alleged. As I said, I was not
O particularly impressed with the reliability of PW1 as a witness. Also, as is O
apparent from the way in which defendant gave evidence in the witness
P P
box, there was a real possibility that defendant could only speak pidgin
Q English and understand English only at a superficial level. Because of this, Q
assuming the alleged conversation did take place, there exists a real doubt
R R
if defendant would have been able to understand PW1 to a sufficient degree
S for the offence under Charge 1 to be made out. This is not to mention that S
PW1, who also testified as to the finding of the dangerous drug as alleged,
T T
U U
V V
- 15 -
A A
B B
his credibility would necessarily have been diluted by the loud banging
C sound and the defendant’s utterances as recorded by the CCTV audio. C
D D
61. Besides, with the element of “with intent to defeat or delay
E the ends of justice” squarely within the offence, and in light of my views E
on Charge 2 above-mentioned, the prosecution will have some difficulty in
F F
proving the offence to the requisite standard.
G G
62. All in all, I am not satisfied beyond reasonable doubt that
H H
Charge 1 has been proved. I have considered whether a lesser offence
I under section 64(b) of the Police Force Ordinance, Cap 232, could be made I
out1 . For reasons relating to the credibility and reliability of PW1 as a
J J
witness, I decided that this is not possible.
K K
DEFENCE EVIDENCE
L L
M 63. Defendant gave exculpatory evidence generally in line with M
what was put to prosecution witnesses. Defendant also adopted in the
N N
witness box the contents of his (mostly) exculpatory Video Record of
O Interview. The latter was mostly consistent with defendant’s in-court O
testimony.
P P
Q 64. Given my views on the prosecution evidence, there is no need Q
to lay out a detailed assessment of the defendant’s evidence.
R R
S S
T T
1
Pursuant to section 51(2) of the Criminal Procedure Ordinance, Cap 221.
U U
V V
- 16 -
A A
B B
CONCLUSION
C C
65. For the above reasons, I rule that the defendant is not guilty
D D
of any of the charges.
E E
F F
G ( Isaac Tam ) G
District Judge
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
V V
A A
B B
DCCC 48/2024
C [2026] HKDC 59 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 48 OF 2024
F F
G ----------------------------------- G
HKSAR
H H
v
I EZENWANKWO STANLEY NZUBECHUKWU I
-----------------------------------
J J
Before: His Honour Judge Tam
K Date: 8 January 2026 K
Present: Ms Ho Sui Kei Cherry, Senior Public Prosecutor, for
L L
HKSAR
M (Mr McGuinniety Edward L, counsel-on-fiat, absent, acted M
for HKSAR throughout the whole trial)
N N
Ms Mohamed Nisha, instructed by Cheung, Yeung & Lee,
O assigned by the Director of Legal Aid, for the defendant O
Offences: [1] Misleading a police officer by the giving of false
P P
information（提供虛假資料以誤導警務人員）
Q Q
[2] Trafficking in a dangerous drug（販運危險藥物）
R [3] Assaulting a police officer in the execution of his duty R
（襲擊執行職責的警務人員）
S S
-----------------------------------------
T REASONS FOR VERDICT T
-----------------------------------------
U U
V V
-2-
A A
B B
1. Before me the defendant faces a Charge Sheet consisting of 3
C charges as follows. C
D D
2. Charge 1 is Misleading a police officer by the giving of false
E information, contrary to section 63 of the Police Force Ordinance, Cap 232. E
Particulars are that the defendant, on 16 August 2023, at 2 nd Floor, Kam
F F
Wah Building, No 831D Canton Road, Yau Ma Tei, Kowloon, in Hong
G Kong, willfully misled Detective Police Constable 5844, a police officer of G
the Hong Kong Police Force, by the giving of false information, namely,
H H
the defendant held himself out as Izebhor Festus Osakwe, with intent to
I defeat or delay the ends of justice. I
J J
3. Charge 2 is Trafficking in a dangerous drug, contrary to
K section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. K
Particulars are that the defendant, on the same date, at Room A, Flat B6,
L L
2nd Floor, Kam Wah Building aforesaid, in Hong Kong, unlawfully
M trafficked in a dangerous drug, namely 53.16 grammes of a solid M
containing 25.91 grammes of cocaine.
N N
O 4. Charge 3 is Assaulting a police officer in the execution of his O
duty, contrary to section 63 of the Police Force Ordinance, Cap 232.
P P
Particulars are that the defendant, on the same date, at Room A, Flat B6,
Q 2nd Floor, Kam Wah Building aforesaid, in Hong Kong, assaulted Detective Q
Sergeant 2965, a police officer of the Hong Kong Police Force acting in
R R
the execution of his duty.
S S
5. The defendant pleaded not guilty to the charges resulting in
T T
the necessity of a trial.
U U
V V
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A A
B B
C PROSECUTION CASE C
D D
6. Police officers intercepted defendant outside his residence.
E Upon enquiry of his identity, defendant produced a colour copy Form 8. E
When asked if it was his and if the document bore his name, defendant said
F F
yes. It was subsequently discovered that he was not the person named on
G the Form 8. G
H H
7. Defendant was brought inside his residence (Room A within
I Flat B6). A search was conducted in which 3 packets of cocaine together I
with an electronic scale were found. Upon arrest for trafficking in
J J
dangerous drug, defendant denied and kept saying the drug was brought
K from outside. He struggled. Police officers eventually managed to K
handcuff him at his back. He continued to struggle with his jaw landing
L L
on PW2’s forehead causing injuries.
M M
DEFENCE CASE
N N
O 8. Defence case is a general denial of the prosecution case O
requiring almost strict proof of the same. Defendant gave evidence and
P P
adopted what he said under cautioned VRI. Defence relied heavily on a
Q piece of prosecution exhibit Exh P40 which was a CCTV footage (with Q
audio) with audio recordings of what defendant was saying to the police
R R
when he was under police custody. The defence case was that the
S dangerous drug was found not in Room A but outside Room A within the S
confines of Flat B6.
T T
U U
V V
-4-
A A
B B
PROCEDURAL HISTORY
C C
9. Prosecution called a total of 17 witnesses who were PW1
D D
DPC5844 (Arresting officer), PW2 DSgt2965 (Injured officer), PW3
E DPC9696 (Searching and Exhibits officer at scene), PW4 PC14340 E
(Photographer), PW5 DPC23532 (Exhibits and Interviewing officer and
F F
minor photographer), PW6 Xiong Mei (Landlady), PW7 DPC8505
G (Interviewing and 2nd arresting officer), PW8 Dr Chan Wing Lun (Medical G
Officer), PW11 Leung Shuk Mei (Govt Chemist), PW14 SSgt KK Lam
H H
(Duty Officer), PW15 SSgt KK Chung (Duty Officer), PW16 SSgt CH Lo
I (Duty Officer), PW17 SSgt PL Yip (Duty Officer), PW18 SSgt KC Leung I
(Duty Officer), PW19 PC51637 (RDDPC), PW23 DPC21307 (Produces
J J
CCTV), PW27 SSgt DM Chung (Duty Officer) (not necessarily in this
K order). K
L L
10. After the close of the prosecution case, defence made no half-
M time submissions. Upon consideration of the relevant evidence, I ruled M
there was a case to answer on all charges.
N N
O 11. Defendant elected to give evidence himself but did not call O
any other witnesses. I will give his evidence due consideration in the same
P P
objective way I have treated other witnesses’ evidence. Parties made
Q written submissions supplemented by oral submissions. I duly considered Q
them but will not summarize them here.
R R
S S
T T
U U
V V
-5-
A A
B B
MY CONSIDERATION
C C
12. I reminded myself the prosecution bears the burden of proof
D D
throughout, the standard of proof being beyond a reasonable doubt. Where
E there is a doubt in the prosecution case, the defendant enjoys the benefit of E
that doubt.
F F
G 13. I will consider the charges and the evidence relating to them G
separately although I bear in mind some of the evidence may be common
H H
to more than one charge. I will be alert to the possible occurrences of
I inconsistent verdicts but will strive to avoid them. I
J J
Summary of salient prosecution evidence and my assessment of the
K witnesses K
L L
PW1 DPC5844 (Arresting officer)
M M
14. At about 1540 hours, defendant opened the iron gate of Flat
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B6 and left. He turned right towards the direction of the lift lobby.
O DPC9758 and PW3 and PW1 went forward from their ambush position to O
intercept and search.
P P
Q 15. PW1 intercepted defendant and showed him the warrant card Q
and revealed his police identity in English. PW1 asked in English for
R R
defendant’s identity document. Defendant showed PW1 a Form 8
S document (Exh P4) issued by Immigration (no dispute that it was not the S
defendant’s own Form 8).
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A A
B B
16. PW1 did a body search on defendant with the following
C discoveries:- C
D D
(a) From his left (later changed to right) front pants pocket,
E a key (Exh P6) was found; E
F F
(b) He was holding a foldable phone (Exh P10) in his left
G hand; and G
H H
(c) His wallet contained cash of $300 (Exh P7).
I I
17. When PW1 checked the Form 8 document, he found it was a
J J
colour copy. Form 8 document showed a Nigerian male and his portrait.
K After reading the Form 8 document, PW1 asked, “Is it yours? Your name?” K
Defendant said, “Yes.”
L L
M 18. PW1 asked, “Where’s the original Form 8?” Defendant did M
not answer.
N N
O 19. PW1 asked, “Where is your address?” Defendant answered, O
“B6 Room A.”
P P
Q 20. At 1545 hrs, PW2 arrived at the scene (outside Flat B6). PW1 Q
reported the incident of interception to PW2. PW2 showed and explained
R R
search warrant (Exh P17) to the defendant and told him a search needed to
S be conducted on the unit. After the defendant heard it, he became S
emotional and said “No.” Defendant flung out his right hand while his left
T T
hand was holding his foldable phone (Exh P10).
U U
V V
-7-
A A
B B
C 21. PW2 gave defendant a warning “Calm down.” Defendant C
calmed down. Officers took defendant into Flat B6 for search.
D D
E 22. Officers asked defendant to open the door of Room A. He E
ignored them. PW1 then tried to open the door with the defendant’s key.
F F
The door opened. There was no one inside. At 1550 hours, PW3 started
G to search Room A in the presence of PW1 and defendant at the doorway. G
H H
23. Then, PW3 told PW1 he had found another colour copy Form
I 8 (Exh P5) inside a wardrobe/drawer under the bed. This Form 8 was same I
as or similar to the previous one (Exh P4). PW1 asked defendant why there
J J
was another copy. Defendant did not answer.
K K
24. At 1650 hours, PW3 started to search the in-suite toilet. PW3
L L
told PW1 that there were 3 transparent plastic packets of suspected
M dangerous drug on top of the water heater. PW3 held them up to show M
PW1.
N N
O 25. PW1 declared arrest on defendant for trafficking in dangerous O
drug. Defendant’s emotion went out of control and said, “No. No.”
P P
Defendant attempted to dash forward. PW1 said, “Calm down.” But
Q defendant was still out of control. Q
R R
26. PW1 and PW2 managed to handcuff the defendant at the back
S after about 30 seconds. However, defendant was still emotional and moved S
left and right, struggling. PW1 and PW2 were trying to put him under
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A A
B B
control. During this time, defendant’s jaw hit the left forehead of PW2.
C DPC9758 came in to assist to control defendant. C
D D
27. At 1655 hours, PW1 knew PW2’s head was injured and bled.
E At the doorway of Room A, PW1 declared arrest on defendant for E
assaulting a police officer. Defendant’s emotion was still out of control
F F
and said a lot of English including “No. No, it’s not me”, “Not from here”,
G “You take it outside”. G
H H
28. PW1 believed the defendant was the person shown on the
I Form 8 (Exh P4) because “this is the identity document shown to me”. I
J J
29. Under cross-examination, PW1 recalled that it seemed that
K PW3 showed him only one pack of dangerous drug. On the matter of K
assault, PW1 said defendant’s head rotated left and right and the
L L
defendant’s left bottom jaw hit the left forehead of PW2 only once.
M M
Assessment of PW1 as a witness
N N
O 30. PW1 did not impress me as a reliable witness. In the O
beginning of cross-examination, he was not able to tell how he entered the
P P
subject building or how he reached the ambush position on the 2/F. It is
Q almost as if he had no memory at all of that experience 2 years and 2 Q
months after the event.
R R
S 31. PW1’s version of how PW3 showed him the dangerous drug, S
and how the defendant’s jaw landed on PW2’s forehead also differed from
T T
those witnesses’ versions respectively in a significant way.
U U
V V
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A A
B B
C PW2 DSgt2965 (Injured officer) C
D D
32. At about 1545 hours, PW2 was informed by PW1 (by remote
E means) of something. PW2 then went to 2/F of the subject building to join E
3 other officers including PW1 and PW3 outside Flat B6. PW2 heard
F F
PW1’s report about earlier interception of defendant.
G G
33. PW1 showed him a colour copy Form 8 (Exh P4) found on
H H
(or under cross-examination: “shown by”) defendant. PW2 compared the
I photo on it against defendant. He believed it was the defendant’s photo I
(no dispute that in fact it was not defendant in the photo).
J J
K 34. PW2 showed and explained search warrant (covering Flat B6 K
without specific reference to Room A) (Exh P17) to defendant. Defendant
L L
said no and became emotional and threw both arms above his head.
M M
35. PW1 told PW2 a key had been found on defendant during
N N
earlier body search and that defendant had told PW1 that he lived in Room
O A of Flat B6. O
P P
36. PW1-3 entered Flat B6 with defendant. PW2 asked if
Q defendant was willing to let police search his house. Defendant refused. Q
PW2 instructed PW1 to try open door of Room A with key. It was
R R
successful.
S S
37. PW2 instructed PW3 to conduct house search. He instructed
T T
PW1 to guard defendant. PW3 conducted search for about one hour. PW3
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A A
B B
found 3 packets of dangerous drug on top of water heater inside toilet,
C another colour copy Form 8 (Exh P5) (similar to or same as Exh P4) near C
the bed, an electronic scale (Exh P16) and some toothbrushes (Exh P8 and
D D
P9).
E E
38. PW3 did show the 3 packets of dangerous drug (Exh P1-3) to
F F
him.
G G
39. PW2 instructed PW1 to declare arrest on defendant for
H H
trafficking in dangerous drug. PW1 did so. Defendant became emotional
I again. Both his arms kept moving and expressed in simple English a denial. I
PW1 and PW2 handcuffed defendant at the back.
J J
K 40. Still, defendant was emotional and moved forward and K
pressed his body against PW1 and PW2. PW2 bent down and held
L L
defendant’s waist. Defendant assaulted PW2 by using his jaw to hit PW2’s
M left forehead. Defendant did so by nodding action twice: both of which M
resulted in defendant’s jaw hitting PW2’s forehead. PW2 warned
N N
defendant to control his emotion. Eventually defendant became stable.
O PW2 found his left forehead red and swollen and bled a little. O
P P
41. PW2 instructed PW1 to declare arrest on defendant for
Q assaulting police officer. PW1 did so. Defendant did not reply. Q
R R
42. PW2 went to Kwong Wah Hospital for treatment later the
S same day. S
T T
U U
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A A
B B
43. Under cross-examination, a CCTV (with audio) (Exh P40)
C (transcript at MFI-1) was played mainly for PW2’s listening. [The CCTV C
camera and microphone were located at the door in the residential unit
D D
opposite to and not far from Flat B6. The footage could not capture the
E door of Flat B6 because of the angle. However, some background noise E
could be heard.]
F F
G 44. Despite the loud banging sound that could be heard in the G
background from P40, PW2 testified that on the day in question, he could
H H
not hear the iron gate closed; PW3 did not throw things on the floor while
I doing the house search; the passageway outside Room A (but within Flat I
B6) was not searched.
J J
K 45. Although PW2 agreed defendant at some stage said, “It’s not K
me”, “Not from my house”, and “You take it outside” (generally in line
L L
with the CCTV audio), he denied defendant ever said (which is also present
M in the audio), “I see you take out from this sock, show your brother, you M
bring inside my house”.
N N
O Assessment of PW2 as a witness O
P P
46. Standing on its own, PW2’s evidence is mostly reasonable.
Q Although there are some discrepancies with PW1’s evidence such as what Q
defendant’s reaction was after he was arrested for assaulting police officer;
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and whether the assault on PW2 was caused by a rotating action or a
S nodding action on the part of defendant, these could be explicable on the S
basis of lapse of memory or heat of the action.
T T
U U
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A A
B B
47. However, when PW2’s testimony is measured against the
C CCTV audio (Exh P40), there arose an irreparable doubt as to how the C
dangerous drug came to be found: whether the 3 packets were found on top
D D
of the water heater as alleged or whether they were found in a sock found
E in the passageway outside Room A and then placed on top of the water E
heater as put by the defence.
F F
G PW3 DPC9696 (Searching and Exhibits officer at scene) G
H H
48. At about 1540 hours, PW1, PW3 and DPC9758 went out from
I their ambush position on 2/F of the subject building to the corridor to I
intercept defendant. PW1 started to make enquiries and conducted body
J J
search against defendant. PW3 and DPC9758 were on guard next to them.
K Defendant showed a Form 8 (Exh P4) to PW1. Defendant told PW1 he K
lived in Room A of Flat B6.
L L
M 49. At 1550 hours, PW3 conducted search of Room A in the M
presence of defendant. Another copy of Form 8 (Exh P5) was found in one
N N
of the drawers under the bed.
O O
50. PW3 searched the toilet. He stood on toilet seat and reached
P P
out his hand to touch the top of the water heater and found 3 packets of
Q things. He held them up one by one. They were 3 transparent plastic bags Q
of white powder suspected to be dangerous drug (Exh P1-3).
R R
S 51. He told PW1 his find and held up the 3 packets one by one S
(held up one, put it back in its original position, and held up another etc).
T T
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A A
B B
52. PW1 declared arrest on defendant for trafficking in dangerous
C drug. C
D D
53. Before or after searching Room A, PW3 did not search the
E passageway. To his knowledge, no other officers found drug in the E
passageway.
F F
G 54. PW3 also seized an electronic scale (Exh P16) from inside a G
drawer of a dressing table inside Room A.
H H
I 55. Under cross-examination, PW3 said he did not pass his O- I
level English and his ability to understand English is below standard;
J J
however, he could understand simple English. PW3 saw defendant show
K a Form 8 (Exh P4) after PW1 finished talking, so he thought/believed PW1 K
asked for his identity.
L L
M 56. PW3 did not hear the utterances of defendant captured by the M
CCTV audio.
N N
O Assessment of PW3 as a witness O
P P
57. No offence to PW3, but because of his English competence
Q level, he would not have been able to understand the conversation between Q
PW1 and defendant at the initial interception stage. Indeed, PW3 in his
R R
testimony never mentioned PW1 ask defendant if the first Form 8 (Exh P4)
S was the defendant’s and what his reply was, despite his evidence that he S
(PW3) was beside them.
T T
U U
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A A
B B
58. However, the real difficulty with PW3’s evidence is that he
C did not hear the utterances of the defendant captured by CCTV audio. C
Maybe it was a case of his failure to understand what the defendant was
D D
saying and therefore he had less memory of that happening. In any event,
E it did not give PW3 any benefit in taking the prosecution case any higher. E
F F
General assessment of the prosecution evidence
G G
59. Because of the doubt created by the CCTV audio as described,
H H
I cannot be sure of the prosecution case under Charge 2 (trafficking in
I dangerous drug). Because of this, there is also a derivative doubt in the I
prosecution case under Charge 3 (Assaulting police officer) because I
J J
cannot be sure that the assault (assuming there was one) on PW2 arose in
K the due execution of his duty. A corollary of that would be the assault, if K
there was one, would be an act of the defendant acting in reasonable self-
L L
defence.
M M
60. Regarding Charge 1, PW1 was the only realistic witness who
N N
could testify as to the prosecution case as alleged. As I said, I was not
O particularly impressed with the reliability of PW1 as a witness. Also, as is O
apparent from the way in which defendant gave evidence in the witness
P P
box, there was a real possibility that defendant could only speak pidgin
Q English and understand English only at a superficial level. Because of this, Q
assuming the alleged conversation did take place, there exists a real doubt
R R
if defendant would have been able to understand PW1 to a sufficient degree
S for the offence under Charge 1 to be made out. This is not to mention that S
PW1, who also testified as to the finding of the dangerous drug as alleged,
T T
U U
V V
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A A
B B
his credibility would necessarily have been diluted by the loud banging
C sound and the defendant’s utterances as recorded by the CCTV audio. C
D D
61. Besides, with the element of “with intent to defeat or delay
E the ends of justice” squarely within the offence, and in light of my views E
on Charge 2 above-mentioned, the prosecution will have some difficulty in
F F
proving the offence to the requisite standard.
G G
62. All in all, I am not satisfied beyond reasonable doubt that
H H
Charge 1 has been proved. I have considered whether a lesser offence
I under section 64(b) of the Police Force Ordinance, Cap 232, could be made I
out1 . For reasons relating to the credibility and reliability of PW1 as a
J J
witness, I decided that this is not possible.
K K
DEFENCE EVIDENCE
L L
M 63. Defendant gave exculpatory evidence generally in line with M
what was put to prosecution witnesses. Defendant also adopted in the
N N
witness box the contents of his (mostly) exculpatory Video Record of
O Interview. The latter was mostly consistent with defendant’s in-court O
testimony.
P P
Q 64. Given my views on the prosecution evidence, there is no need Q
to lay out a detailed assessment of the defendant’s evidence.
R R
S S
T T
1
Pursuant to section 51(2) of the Criminal Procedure Ordinance, Cap 221.
U U
V V
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A A
B B
CONCLUSION
C C
65. For the above reasons, I rule that the defendant is not guilty
D D
of any of the charges.
E E
F F
G ( Isaac Tam ) G
District Judge
H H
I I
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K K
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M M
N N
O O
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Q Q
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