A A
B B
DCCC 561/2021
C [2022] HKDC 1380 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 561 OF 2021
F F
---------------------------
G G
HKSAR
H v H
TSUI CHI YIN
I I
----------------------------
J J
Before: HH Judge E Lin
K K
Date: 23 November 2022
L Present: Mr Edward F Le B Laskey, counsel on fiat, for HKSAR L
Mr Roy K Y Lau, instructed by Fu & Cheng,
M M
for the defendant
N N
Offence: (1) Trafficking in dangerous drugs (販運危險藥物)
O (2) Resisting police officers in the execution of their O
duties (抗拒執行職責的警務人員)
P P
Q --------------------------------------- Q
REASONS FOR VERDICT
R R
---------------------------------------
S S
1. In these proceedings, the defendant Tsui Chi-yin faces two
T T
counts, namely, 「trafficking in dangerous drugs」, contrary to section
U U
V V
-2-
A A
B B
4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and「Resisting
C police officers in the execution of their duties」, contrary to section 63 of C
the Police Force Ordinance, Cap 232.
D D
E 2. The prosecution’s case was that when the police officers tried E
to stop and search the defendant, the latter fled and in the process, dropped
F F
a bag containing 18 bags of dangerous drugs. In all there were 1.19 grams
G of cocaine and 5.64 grams of ketamine. G
H H
3. By the defendant’s response, the number of bags, the total
I I
quantity involved and the fact that there were two varieties of dangerous
J
drugs, the prosecution asked this court to infer that the defendant knew J
what was inside the bag and also they were there for trafficking. It was
K K
also contended when the defendant was intercepted, he had full knowledge
L
that those were police officers and that he resisted by trying to flee and by L
trying to struggle free from the police apprehension.
M M
N 4. Part of the facts had been admitted under section 65C of the N
Criminal Procedure Ordinance, P1A, and I will recite only part of it when
O O
necessary.
P P
5. The defendant had a clear record. The court accepts that a
Q Q
person with a clear record is less likely to commit a crime and his own
R evidence (if he choses to give evidence), is more reliable than those who R
choose not to put this fact before the court.
S S
T 6. At the end of the prosecution’s case, after this court has ruled T
that there was a case to answer in both charges, the defendant elected not
U U
V V
-3-
A A
B B
to give evidence. This is the exercise of any of person’s right. The court
C would not draw adverse inference against him and this does not, in any C
way, affect the prosecution’s burden, to prove each and every element of
D D
the charges against him.
E E
7. On the other hand, this means the court could only have the
F F
evidence of the prosecution to consider. There was nothing from the
G defence to reject, contradict, explain, or offer a different interpretation of G
the events. This court will not imagine every possible defence for the
H H
defendant but can only review the prosecution’s evidence in the most light
I most favourable to the defence to see there is anything capable of giving I
rise to a reasonable doubt.
J J
K Evidence K
L L
8. The main part of the evidence came from PW2 (PC21467): on
M the second day of April 2021 at about 10 pm, he and two police officers M
saw the defendant board a taxi outside a Kowloon City hotel, they
N N
proceeded to follow the taxi in a vehicle. The defendant eventually
O alighted in Tsui Ping South Estate, Kwun Tong after which he began to O
P
walk up a ramp leading to Tsui Hon House. P
Q Q
9. PW2 and PW3 (Sergeant 9793) also alighted and followed
R
from a distance. When the defendant reached the upper end of the ramp, R
he stated walking towards another male outside the entrance of a
S S
kindergarten. At that point, PW2 approached the defendant, revealed his
T identity and demanded a search. The defendant suddenly ran down the T
U U
V V
-4-
A A
B B
ramp, and was pursuit by PW2 and PW3. During the chase PW2 saw a
C wad of cash fall from the defendant’s person. C
D D
10. When the defendant reached the road outside Tsui Hon House,
E PW2 saw the defendant take out a grey bag (P5) from his right side pocket E
and discard it on the road. PW2 stooped to flick the bag aside and
F F
continued the pursuit for another 10 feet. PW3 who was then waiting in a
G police vehicle ran out from the driver’s seat and blocked the defendant’s G
way. They collided and fell on the ground. PW2 and PW3 then caught up
H H
and subdued the defendant.
I I
11. While on the ground the defendant put up a struggle by trying
J J
to jack up his body with his limbs, during which PW2 repeatedly told him
K that they were police officers and he should not resist. The struggle went K
on for about two minutes before PW3 succeeded in handcuffing the
L L
defendant from behind.
M M
12. PW2 then went back to collect the grey bag (P5) and
N N
examined its content in front of the defendant. The bag in question was a
O small velvet bag usually used for keeping jewellery. There were also traces O
of the defendant’s DNA on P5. Inside P5 there were 18 resealable plastic
P P
bags, eight of which contained a total of 1.19 grammes of cocaine, the rest
Q contained a total of 5.64 grammes of ketamine. Q
R R
13. PW3 subsequently counted the cash that fell out from the
S defendant and of then handed it over to PW2 for safekeeping. Its total sum S
was $13,640. After the defendant was subdued, PW2 formally declared
T T
U U
V V
-5-
A A
B B
arrest on the defendant for trafficking in dangerous drugs and resisting
C arrest. C
D D
14. Under cross-examination, PW2 agreed that all three police
E officers were in plainclothes. At the time when PW2 attempted to intercept E
the defendant, there were other residents of the estate taking their evening
F F
stroll in the vicinity. During the walk up the ramp, it was PW2 who was
G in front and followed by PW3, but at some point PW3 overtook PW2 and G
proceeded to intercept the other man the defendant was approaching.
H H
I 15. PW2 was adamant that when he first approached the I
defendant, he had produced his warrant card and had verbally revealed his
J J
identity. He was certain that he saw the defendant take out P5 from his
K right hand pocket and discard the same. While trying to subdue the K
defendant, PW2 had declared his police identity and asked the defendant
L L
not to resist.
M M
16. Under cross-examination, it was revealed that there was a
N N
number of inconsistencies between PW2’s oral evidence and those in his
O statement and notebook, in particular on the time the defendant discarded O
the grey bag (P5). Since PW2 was the only witness who saw the defendant
P P
discard P5, without other evidence this might have amount to a reasonable
Q doubt. The court also accepts that it is the duty of the police officers to Q
make an accurate record of what had transpired as far as possible, the
R R
failure of which might and would impinge his credibility.
S S
17. The court also accepts that there were discrepancies in where
T T
the police stopped the defendant and where the defendant discarded the
U U
V V
-6-
A A
B B
cash. PW2 had been vague and unclear in his evident, and was not entirely
C consistent with those of the other police. However, the uncontroverted fact C
that the grey bag had the DNA of the defendant had proven that the
D D
defendant had at some point in contact with the bag.
E E
18. The defence never suggested or explained how the
F F
defendant’s DNA came to be left on P5. I have been invited to conjecture
G that the DNA traces are somehow transferred from the police onto the bag. G
I do not think I can make such an elaborate connection or consider it a
H H
reasonable inference.
I I
19. In my view, the fact that the bag contained the defendant’s
J J
DNA is consistent with the prosecution’s contention that the defendant had
K physical possession of the bag. PW3’s evidence was similar to that of PW2 K
and PW4.
L L
M 20. I also accept that there were minor differences such as to the M
entrance as an estimate of distances and the exact place the interception
N N
took place. However, I found the substance of their evidence consistent.
O O
21. I found that the police had tried to stop the defendant and the
P P
defendant tried to evade apprehension by running down the ramp. He was
Q intercepted by PW4 who was waiting by the roadside in his vehicle. Upon Q
seeing the defendant running towards him, followed by PW2, PW3
R R
alighted from the driver’s seat, stood out with his arms open and
S intentionally used his body to collide with the defendant. The two fell on S
the ground followed by a brief struggle.
T T
U U
V V
-7-
A A
B B
22. I found the substantial part of the prosecution’s case coming
C from all three witnesses unfettered and consistent. Together with the fact C
that the defendant’s DNA was on the grey bag, led me to the inevitable
D D
conclusion that not only the defendant had tried to flee, he also had the grey
E bag with him. E
F F
23. When PW2 revealed the content of P5, the defendant made no
G response. While it was his right remain silent, his lack of response means G
that I have no evidence coming from the side of the defence to explain the
H H
prosecution’s case in the defence’s favour.
I I
24. The fact that it was midnight, the fact that the defendant had
J J
a large quantity of cash, the fact that the grey bag contained quite a quantity
K of dangerous drugs in two different kinds, and that he tried to flee from the K
police, cumulatively led me to the inevitable conclusion that the defendant
L L
was well aware of the content of the grey bag, P5. He was well aware that
M those stopping him were police officers. M
N N
25. The inevitable conclusion I had reached therefore is that the
O defendant had the dangerous drugs with him and that they were not for his O
own consumption, they were for the purpose of passing on to other people.
P P
The fact that he was aware that PW2 to 5 were police officers and still tried
Q to run away could only indicated that the prosecution has proved to the Q
required degree that the defendant knew that the police were carrying out
R R
their duties and had intentionally resisted them. I found the defendant
S guilty of both charges. S
T T
U U
V V
-8-
A A
B B
26. There were a number of inconsistencies in the witnesses’
C evidence, however this court does not ask for mathematical precision in the C
witnesses’ evidence. The fact that there might be inconsistencies or there
D D
were inconsistencies between witnesses could be explained by the fact that
E it happened within a very short time and also one’s span of attention is E
directional and temporary. Each person’s perception of what happened
F F
might differ slightly because of the difference in the individual’s points of
G view. I found those inconsistencies collateral and they did not undermine G
the thrust of the prosecution’s case.
H H
I I
J J
K ( E Lin ) K
District Judge
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 561/2021
C [2022] HKDC 1380 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 561 OF 2021
F F
---------------------------
G G
HKSAR
H v H
TSUI CHI YIN
I I
----------------------------
J J
Before: HH Judge E Lin
K K
Date: 23 November 2022
L Present: Mr Edward F Le B Laskey, counsel on fiat, for HKSAR L
Mr Roy K Y Lau, instructed by Fu & Cheng,
M M
for the defendant
N N
Offence: (1) Trafficking in dangerous drugs (販運危險藥物)
O (2) Resisting police officers in the execution of their O
duties (抗拒執行職責的警務人員)
P P
Q --------------------------------------- Q
REASONS FOR VERDICT
R R
---------------------------------------
S S
1. In these proceedings, the defendant Tsui Chi-yin faces two
T T
counts, namely, 「trafficking in dangerous drugs」, contrary to section
U U
V V
-2-
A A
B B
4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and「Resisting
C police officers in the execution of their duties」, contrary to section 63 of C
the Police Force Ordinance, Cap 232.
D D
E 2. The prosecution’s case was that when the police officers tried E
to stop and search the defendant, the latter fled and in the process, dropped
F F
a bag containing 18 bags of dangerous drugs. In all there were 1.19 grams
G of cocaine and 5.64 grams of ketamine. G
H H
3. By the defendant’s response, the number of bags, the total
I I
quantity involved and the fact that there were two varieties of dangerous
J
drugs, the prosecution asked this court to infer that the defendant knew J
what was inside the bag and also they were there for trafficking. It was
K K
also contended when the defendant was intercepted, he had full knowledge
L
that those were police officers and that he resisted by trying to flee and by L
trying to struggle free from the police apprehension.
M M
N 4. Part of the facts had been admitted under section 65C of the N
Criminal Procedure Ordinance, P1A, and I will recite only part of it when
O O
necessary.
P P
5. The defendant had a clear record. The court accepts that a
Q Q
person with a clear record is less likely to commit a crime and his own
R evidence (if he choses to give evidence), is more reliable than those who R
choose not to put this fact before the court.
S S
T 6. At the end of the prosecution’s case, after this court has ruled T
that there was a case to answer in both charges, the defendant elected not
U U
V V
-3-
A A
B B
to give evidence. This is the exercise of any of person’s right. The court
C would not draw adverse inference against him and this does not, in any C
way, affect the prosecution’s burden, to prove each and every element of
D D
the charges against him.
E E
7. On the other hand, this means the court could only have the
F F
evidence of the prosecution to consider. There was nothing from the
G defence to reject, contradict, explain, or offer a different interpretation of G
the events. This court will not imagine every possible defence for the
H H
defendant but can only review the prosecution’s evidence in the most light
I most favourable to the defence to see there is anything capable of giving I
rise to a reasonable doubt.
J J
K Evidence K
L L
8. The main part of the evidence came from PW2 (PC21467): on
M the second day of April 2021 at about 10 pm, he and two police officers M
saw the defendant board a taxi outside a Kowloon City hotel, they
N N
proceeded to follow the taxi in a vehicle. The defendant eventually
O alighted in Tsui Ping South Estate, Kwun Tong after which he began to O
P
walk up a ramp leading to Tsui Hon House. P
Q Q
9. PW2 and PW3 (Sergeant 9793) also alighted and followed
R
from a distance. When the defendant reached the upper end of the ramp, R
he stated walking towards another male outside the entrance of a
S S
kindergarten. At that point, PW2 approached the defendant, revealed his
T identity and demanded a search. The defendant suddenly ran down the T
U U
V V
-4-
A A
B B
ramp, and was pursuit by PW2 and PW3. During the chase PW2 saw a
C wad of cash fall from the defendant’s person. C
D D
10. When the defendant reached the road outside Tsui Hon House,
E PW2 saw the defendant take out a grey bag (P5) from his right side pocket E
and discard it on the road. PW2 stooped to flick the bag aside and
F F
continued the pursuit for another 10 feet. PW3 who was then waiting in a
G police vehicle ran out from the driver’s seat and blocked the defendant’s G
way. They collided and fell on the ground. PW2 and PW3 then caught up
H H
and subdued the defendant.
I I
11. While on the ground the defendant put up a struggle by trying
J J
to jack up his body with his limbs, during which PW2 repeatedly told him
K that they were police officers and he should not resist. The struggle went K
on for about two minutes before PW3 succeeded in handcuffing the
L L
defendant from behind.
M M
12. PW2 then went back to collect the grey bag (P5) and
N N
examined its content in front of the defendant. The bag in question was a
O small velvet bag usually used for keeping jewellery. There were also traces O
of the defendant’s DNA on P5. Inside P5 there were 18 resealable plastic
P P
bags, eight of which contained a total of 1.19 grammes of cocaine, the rest
Q contained a total of 5.64 grammes of ketamine. Q
R R
13. PW3 subsequently counted the cash that fell out from the
S defendant and of then handed it over to PW2 for safekeeping. Its total sum S
was $13,640. After the defendant was subdued, PW2 formally declared
T T
U U
V V
-5-
A A
B B
arrest on the defendant for trafficking in dangerous drugs and resisting
C arrest. C
D D
14. Under cross-examination, PW2 agreed that all three police
E officers were in plainclothes. At the time when PW2 attempted to intercept E
the defendant, there were other residents of the estate taking their evening
F F
stroll in the vicinity. During the walk up the ramp, it was PW2 who was
G in front and followed by PW3, but at some point PW3 overtook PW2 and G
proceeded to intercept the other man the defendant was approaching.
H H
I 15. PW2 was adamant that when he first approached the I
defendant, he had produced his warrant card and had verbally revealed his
J J
identity. He was certain that he saw the defendant take out P5 from his
K right hand pocket and discard the same. While trying to subdue the K
defendant, PW2 had declared his police identity and asked the defendant
L L
not to resist.
M M
16. Under cross-examination, it was revealed that there was a
N N
number of inconsistencies between PW2’s oral evidence and those in his
O statement and notebook, in particular on the time the defendant discarded O
the grey bag (P5). Since PW2 was the only witness who saw the defendant
P P
discard P5, without other evidence this might have amount to a reasonable
Q doubt. The court also accepts that it is the duty of the police officers to Q
make an accurate record of what had transpired as far as possible, the
R R
failure of which might and would impinge his credibility.
S S
17. The court also accepts that there were discrepancies in where
T T
the police stopped the defendant and where the defendant discarded the
U U
V V
-6-
A A
B B
cash. PW2 had been vague and unclear in his evident, and was not entirely
C consistent with those of the other police. However, the uncontroverted fact C
that the grey bag had the DNA of the defendant had proven that the
D D
defendant had at some point in contact with the bag.
E E
18. The defence never suggested or explained how the
F F
defendant’s DNA came to be left on P5. I have been invited to conjecture
G that the DNA traces are somehow transferred from the police onto the bag. G
I do not think I can make such an elaborate connection or consider it a
H H
reasonable inference.
I I
19. In my view, the fact that the bag contained the defendant’s
J J
DNA is consistent with the prosecution’s contention that the defendant had
K physical possession of the bag. PW3’s evidence was similar to that of PW2 K
and PW4.
L L
M 20. I also accept that there were minor differences such as to the M
entrance as an estimate of distances and the exact place the interception
N N
took place. However, I found the substance of their evidence consistent.
O O
21. I found that the police had tried to stop the defendant and the
P P
defendant tried to evade apprehension by running down the ramp. He was
Q intercepted by PW4 who was waiting by the roadside in his vehicle. Upon Q
seeing the defendant running towards him, followed by PW2, PW3
R R
alighted from the driver’s seat, stood out with his arms open and
S intentionally used his body to collide with the defendant. The two fell on S
the ground followed by a brief struggle.
T T
U U
V V
-7-
A A
B B
22. I found the substantial part of the prosecution’s case coming
C from all three witnesses unfettered and consistent. Together with the fact C
that the defendant’s DNA was on the grey bag, led me to the inevitable
D D
conclusion that not only the defendant had tried to flee, he also had the grey
E bag with him. E
F F
23. When PW2 revealed the content of P5, the defendant made no
G response. While it was his right remain silent, his lack of response means G
that I have no evidence coming from the side of the defence to explain the
H H
prosecution’s case in the defence’s favour.
I I
24. The fact that it was midnight, the fact that the defendant had
J J
a large quantity of cash, the fact that the grey bag contained quite a quantity
K of dangerous drugs in two different kinds, and that he tried to flee from the K
police, cumulatively led me to the inevitable conclusion that the defendant
L L
was well aware of the content of the grey bag, P5. He was well aware that
M those stopping him were police officers. M
N N
25. The inevitable conclusion I had reached therefore is that the
O defendant had the dangerous drugs with him and that they were not for his O
own consumption, they were for the purpose of passing on to other people.
P P
The fact that he was aware that PW2 to 5 were police officers and still tried
Q to run away could only indicated that the prosecution has proved to the Q
required degree that the defendant knew that the police were carrying out
R R
their duties and had intentionally resisted them. I found the defendant
S guilty of both charges. S
T T
U U
V V
-8-
A A
B B
26. There were a number of inconsistencies in the witnesses’
C evidence, however this court does not ask for mathematical precision in the C
witnesses’ evidence. The fact that there might be inconsistencies or there
D D
were inconsistencies between witnesses could be explained by the fact that
E it happened within a very short time and also one’s span of attention is E
directional and temporary. Each person’s perception of what happened
F F
might differ slightly because of the difference in the individual’s points of
G view. I found those inconsistencies collateral and they did not undermine G
the thrust of the prosecution’s case.
H H
I I
J J
K ( E Lin ) K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V