A A
B DCCC 70/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 70 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
IP TSZ YAU
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 28th May 2015 at 9:34 am I
Present: Mr. Philip William Swainston, Solicitor on fiat, for HKSAR
J J
Mr. Oliver Davies instructed by M/s Wong & Co,
K K
for the Defendant
L
Offences: 1) Assaulting a police officer in the execution of his duty L
(襲擊執行職責的警務人員)
M M
2-3) Trafficking in a dangerous drug (販運危險藥物)
N ---------------------------- N
Reasons for Verdict
O O
----------------------------
P 1. The defendant pleaded not guilty to one count of assaulting a Police P
officer, contrary to section 63 of the Police Force Ordinance,
Q Q
Cap.232 and two counts of trafficking in dangerous drugs, contrary
R to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, R
Cap.134.
S S
T Background T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 2 -
A A
B 2. Police mounted an anti-narcotics operation and laid ambush outside B
the defendant’s home in Shui Moon House, Tin Shui Wai, Tuen
C C
Mun. The defendant was apprehended in the corridor outside his
D flat. The defendant allegedly pushed a sergeant against the wall in D
the process, causing the sergeant to suffer a minor injury (charge 1).
E E
F 3. The defendant was searched and drugs contained in a bag were F
allegedly found from inside the defendant’s underpants (charge 2).
G G
A house search was then conducted at the defendant’s home and
H further drugs and cash of $21,000 were found on a computer desk H
inside the defendant’s bedroom (charge 3).
I I
J 4. It is the prosecution’s case that the defendant was cautioned at J
scene and confessed that the $21,000 and ketamine found on the
K K
computer desk inside the flat was his and for his self-consumption.
L L
The defendant denied making such a confession and accused the
M
Police of fabricating the confession and his signature. M
N Issues N
5. It is the prosecution’s case that at the time of his arrest, the
O O
defendant was wearing a yellow jacket and blue jeans. The bag of
P ketamine in charge 2 was found inside the defendant’s underpants. P
Q Q
6. The defendant’s case, however, is that he was wearing a pair of
R R
black shorts and white t-shirt, with no underpants. It was only after
S
the defendant was brought back into his home and at the S
defendant’s request that he had put on underpants and changed into
T T
the jacket and jeans.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 3 -
A A
B B
7. The defendant made some serious accusations against the Police. It
C is the defendant’s case that he was never in possession of any of the C
dangerous drugs allegedly found on his person and in his bedroom.
D D
He never assaulted any Police officer. Instead of being searched in
E E
the corridor outside his flat, the defendant was brought to the rear
F
staircase where he was threatened to confess and where a sergeant F
took out a bag of things, presumably dangerous drugs, and told the
G G
defendant to admit that it was his. The defendant was also assaulted
H
there. H
I I
8. It is the prosecution’s case that the defendant was alone at the time
J of his apprehension outside his flat, and that there were nobody else J
in the vicinity. The defendant gave evidence himself and called two
K K
defence witnesses to corroborate his evidence as to his attire at the
L time he was subdued in the corridor outside his flat, and that two of L
the defendant’s friends were also present at the scene of
M M
apprehension and that those two friends themselves were held by
N the Police officers in the rear staircase for 3 hours before they were N
allowed to leave.
O O
9. Although the defence witnesses’ evidence do not say directly as to
P P
how the Police had threatened the defendant and planted the drugs
Q against the defendant, their evidence, if accepted, would cast a Q
reasonable doubt on the credibility of the prosecution witnesses.
R R
The court will have to consider whether the prosecution witnesses’
S S
wrong description of the attire of the defendant, and their failure to
T
acknowledge the presence of the two friends of the defendant was T
an act of lying or mere forgetfulness on the part of the witnesses. If
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 4 -
A A
B the wrong description and failure to mention was deliberate, the B
court will then have to consider whether such conduct would render
C C
the rest of the evidence of the prosecution witnesses unreliable and
D incredible. D
E E
Summary of Prosecution evidence
F 10. PW1 PC9486, PW2 PC8245 and PW3 Sergeant 58794 gave F
evidence for the prosecution.
G G
PW1 PC9486
H H
11. On 9 November 2014, they together with 5 other police officers
I I
carried out an anti-narcotics operation at the 4th floor of Shui Moon
J House in Tin Shui Wai. J
K K
12. At around 7:52pm, PW1, PW2 and PW3 were standing at a corner
L of the lift lobby on 4th floor when the defendant came out of flat 409 L
and walked towards the officers’ direction. PW1 immediately
M M
walked out of their corner, approached the defendant and told him
N that he was a police officer. N
O O
13. The defendant immediately turned around towards flat 409. PW1
P together with his teammates immediately went up to stop him and P
PW1 showed the defendant his police warrant card again,
Q Q
explaining to him that they found him looking suspicious and
R asking the defendant to show his proof of identity. R
S S
14. At that moment, the defendant used both his hands to push against
T the chest of PW3 Sergeant 58794 causing him to bump against the T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 5 -
A A
B wall behind him. PW1 and PW2 went up to stop the defendant, who B
kept on waving around his limbs and struggling.
C C
15. The defendant was eventually pressed on to the floor and subdued
D D
by the police officers and handcuffed by PW1. After the defendant
E E
had calmed down, he was brought back on his feet. PW1 conducted
F
a quick pat down search of the defendant and noticed something F
bulging around his waist area. Upon a more careful search, PW1
G G
found a bag stuffed between the defendant’s waist and his
H
underpants. PW1 took out the bag and found that it was a H
transparent re-sealable plastic bag. Inside were 12 other transparent
I I
plastic bags. Inside each of the 12 bags was some white powder.
J PW1 suspected that they were the dangerous drug ketamine. J
K K
16. PW1 also found 5 keys, one mobile phone and an identity card
L belonging to the defendant from his trousers pocket. PW1 then L
arrested and cautioned the defendant for assaulting a police officer
M M
and trafficking in dangerous drugs. Under caution, the defendant
N said he had nothing to say. PW1 immediately wrote down what the N
defendant said under caution in his notebook and then released the
O O
handcuff on the defendant’s right hand to let him sign in his
P notebook for confirmation. P
Q 17. PW2 took over the bags with suspected drugs, the keys and the Q
phone for safe custody.
R R
S 18. Meanwhile, PW1 showed a search warrant for flat 409 to the S
defendant and explained to him the contents of the warrant as well
T T
as the rights he was entitled to. At 8:02pm, in the presence of the
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 6 -
A A
B defendant, PW2 used the keys seized from the defendant to unlock B
the gate and wooden door of flat 409. There was no one inside the
C C
flat.
D D
19. PW1, PW2 and PW3 then entered the flat. PW1 asked the defendant
E E
which room was his and the defendant pointed it out. PW1 then
F entered that room and saw a re-sealable bag with white powder F
inside, two mobile phones and a stack of money on the computer
G G
desk inside the room. The money was later counted and found to be
H cash of $21,000. H
I I
20. PW1 cautioned the defendant again and asked the defendant to
J whom the bag, phones and money belonged. The defendant said J
words to the effect that the ‘K chai’ was for his self-consumption
K K
and the money was also his. PW1 immediately recorded what the
L L
defendant said in his notebook and then showed the defendant what
M
he had recorded. PW1 then released the handcuff on the defendant’s M
right hand for him to sign against the record. PW1 then handed over
N N
the found items to PW2 for his safe keeping.
O O
21. PW1 continued to search the flat until 9:30pm but nothing
P P
suspicious was found and he left the flat with the defendant at 11pm
Q to go to Tin Shui Wai1 police station, and later to Tuen Mun police Q
station.
R R
S S
1
T This was mistakenly stated as Cheung Sha Wan Police station when the verdict was read out in court on T
28th May 2015. The mistake was pointed out by Mr. Davies for the defendant at the end of the verdict and
corrected in this Reasons for Verdict.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 7 -
A A
B 22. According to PW1, at the time the defendant was first seen in the B
corridor outside flat 409, he was wearing a yellow jacket, blue jeans
C C
and flip flops. The defendant did not have any cash, octopus card or
D credit card on him. D
E E
23. It is the evidence of PW1 that in the course of subduing the
F defendant in the corridor, someone did open the door from inside F
the flat opposite to 409 and asked what was going on. PW1 however
G G
just focused on dealing with the defendant and did not pay attention
H to that person and have no idea if that neighbor said or did anything H
at all.
I I
J 24. It was pointed out in cross-examination to PW1 that he did not J
record in his first notebook that the drugs were found inside the
K K
defendant’s underpants.
L L
M
25. According to PW1, he did read out the contents of the second M
notebook entries but the defendant had refused to sign against it to
N N
confirm.
O O
PW2 PC8245
P 26. PW2 was one of the team members mentioned in PW1’s evidence. P
Q Q
27. At around 7:52pm, PW2 was with PW1 and PW3 near the lobby on
R R
the 4th floor of Shui Moon House conducting observation when
S
PW1 suddenly went towards the corridor outside flat 409. PW2 and S
PW3 followed and then saw a man outside flat 409. The man was
T T
wearing a yellow jacket, zipped up, blue jeans and flip flops and
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 8 -
A A
B was walking towards the witness. He was later identified as the B
defendant.
C C
28. PW2 saw that the moment PW1 told the defendant that they were
D D
police officers, the defendant turned around to leave. PW2 and his
E E
colleagues went up to stop him. PW1 repeated that he was a police
F
officer and showed the defendant his warrant card. PW2 and PW3 F
also showed their warrant card.
G G
H
29. When PW1 demanded to conduct a body search on the defendant, H
he suddenly used both his hands to push towards the chest area of
I I
PW3 and caused him to fall against the wall behind him. The
J defendant at once turned around to run away but PW2 and his J
colleagues apprehended him, who kept on waving around his arms
K K
trying to ward them off. PW2 and PW1 then subdued the defendant
L by pressing him on to the floor. PW1 handcuffed the defendant and L
then helped him up. When PW1 proceeded to search the defendant,
M M
he found from the right side of his waist near his underpants, a
N transparent re-sealable plastic bag. PW2 saw the search clearly N
because he was standing right next to them.
O O
P 30. PW1 continued to search the defendant and found from his pants P
some keys, a mobile phone and an identity card. PW1 then declared
Q Q
arrest on the defendant and cautioned him. PW1 then handed over
R the items found on the defendant to PW2 for him to seize them as R
exhibits.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 9 -
A A
B 31. PW2 then saw PW1 showed a search warrant to the defendant, B
explaining the contents of the warrants and his rights. PW1, PW2
C C
and PW3 then took the defendant into flat 409, with PW2 using the
D keys found from the defendant to unlock the gate and wooden door D
of the flat.
E E
F
32. There was no one inside the flat. They asked the defendant which F
room he occupied and he told them. PW1 then searched the room in
G G
front of the defendant. PW2 saw him found a transparent plastic bag
H
with white powder inside, 2 mobile phones and some cash from on H
top of a computer desk inside the room. PW1 then cautioned the
I I
defendant for trafficking in dangerous drugs. The found items were
J then handed over to PW2 for his custody. J
K K
33. PW2 was the police officer that drew the P-18 sketch of the flat.
L Room 3 on the sketch is the room that the defendant said was his. L
M M
34. During cross-examination, PW2 confirmed PW1’s evidence that
N the handcuffs on the defendant had been released for him to sign his N
name. The first time the defendant was asked to sign was in the
O O
corridor outside flat 409 after PW1 had declared arrest on the
P defendant. The second time was inside flat 409 after the suspected P
bag of drugs was found on the computer desk. PW2 saw the
Q Q
defendant signed in the notebook of PW1.
R R
35. It is PW2’s evidence that when he first intercepted the defendant, he
S S
did not see anyone else at the scene. PW2 however did see a
T
neighbor in the opposite flat of 409 turned up to make enquiries at T
the time when the defendant was being subdued.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 10 -
A A
B B
PW3 Sergeant 58794
C C
36. PW3 is the sergeant mentioned in the evidence of PW1 and PW2.
D D
37. At around 7:52pm on the night in question, PW3 saw the defendant
E being stopped by PW1 and PW2 at the corridor near flat 409. The E
defendant was wearing a yellow jacket, blue jeans and flip flops.
F F
G 38. PW3 saw PW1 showing the defendant his warrant card. At that G
moment, the defendant turned and tried to go back to the direction
H H
of flat 409. The three police officers immediately went up to stop
I him and then showed him their warrant cards again. I
J J
39. When PW1 demanded to see the defendant’s proof of identity and
K K
requested to search his person, the defendant suddenly used both
L
hands to push on PW3’s chest area, causing him to fall backwards L
against the wall behind him. As a result of the push, the back of
M M
PW3’s left hand suffered an abrasion and bled. It is admitted fact
N
that PW3 was later taken to Tuen Mun Hospital where he was N
examined by Dr. Wong who found a fresh abrasion to PW3’s left
O O
hand.
P P
40. PW3 did not witness the search of the defendant by PW1 because
Q he did not think it was necessary for him to do so. He was later told Q
that a transparent re-sealable plastic bag was found.
R R
S 41. PW3 later entered flat 409 with the defendant. PW1 asked the S
defendant which room was his and then PW1 conducted a search of
T T
the room.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 11 -
A A
B B
42. During cross-examination, PW3 confirmed that there were no other
C people outside flat 409 at the material time other than the police C
officers. He did see a resident who came out from the flat opposite
D D
409. The man stayed for about 1 minute.
E E
Summary of defence evidence
F F
The defendant’s evidence
G G
43. The defendant fully understood his rights and elected to give
H evidence. H
I I
44. The defendant is 32 and was working as a delivery worker on a
J casual basis, earning about $5,000 per month. The defendant J
voluntarily disclosed in his evidence-in-chief that he has 6 previous
K K
criminal convictions for possession of dangerous drugs, with the
L most recent being in 2007. L
M M
45. The defendant has been living in flat 409 for almost 20 years.
N N
46. On 9 November 2014, at just before 8pm, the defendant was home
O O
alone when he received a phone call from his childhood friend ‘Ah
P Chiu’. The defendant had lent $1,000 to Ah Chiu two weeks ago P
and Ah Chiu called to say that he had arrived at the 4th floor lift
Q Q
lobby to repay the money.
R R
47. The defendant therefore brought his wallet, mobile phone and keys
S S
and went out to the lift lobby wearing a white t-shirt, black shorts
T and flip flops. The defendant was not wearing any underpants. T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 12 -
A A
B B
48. At the lift lobby, the defendant saw his friend Ah Chiu with his
C friend Ah Ming. Ah Chiu handed over $1,000 to the defendant. The C
two chatted for about 1 minute and then the defendant turned
D D
around to go home. Suddenly someone put a hand on his shoulder
E E
from behind and pulled him. The defendant recognized him as the
F
PW3 Sergeant. Then another 2 or 3 people who claimed they were F
police officers came out and pressed him on to the floor between the
G G
lift lobby and the corridor of flat 409.
H H
49. The defendant yelled out. He then saw his two friends being
I I
brought by the police to the corridor. The defendant called out to Ah
J Chiu to use his phone to video what was going on. PW3 however J
stopped Ah Chiu and told him not to do so. It must be pointed out
K K
here that this allegation was never put to PW3 in cross-examination.
L L
50. Ah Chiu and Ah Ming were then ordered by the police to squat
M M
down. Then the defendant’s neighbor Mr. Kwan came out from the
N flat opposite to 409. The defendant was however unable to N
remember Mr. Kwan’s flat number.
O O
51. Mr. Kwan came out and asked PW3 what was going on and PW3
P P
told him that the defendant had assaulted a police officer. The
Q defendant heard Mr. Kwan asking PW3 whether it was necessary Q
for him to call an ambulance but PW3 said there was no need to do
R R
so. Again, this was not put to PW3 in cross-examination.
S S
T
52. The defendant, despite being on the floor, told Mr. Kwan to keep an T
eye on what was going on. Yet again, this was not put to PW3 in
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 13 -
A A
B cross-examination. Mr. Kwan talked for a short while with the B
police and then returned to his flat.
C C
53. Meanwhile, Ah Chiu and Ah Ming were brought to the rear
D D
staircase by two police officers. The defendant is not able to say
E E
who the officers were.
F F
54. Then PW2, PW3 and two other police officers took the defendant to
G G
another staircase on the other side. There, two police officers that
H
had not given evidence, assaulted the defendant, saying that the H
defendant had offended their superior. The defendant did not give
I I
details as to this assault in his evidence-in-chief.
J J
55. The police officers then pretended to make a phone call, asking the
K K
defendant if he believed that he was going to summons someone to
L come, saying something about getting something for the defendant, L
telling him to confess.
M M
N 56. The defendant then saw PW3 took out a big transparent bag from N
the bottom of the mesh near the water meter room and brought it
O O
over to the defendant to show him, telling the defendant to confess.
P P
57. The defendant told the officer not to frame him up. PW3 then swore
Q at the defendant and said that since he had started doing “dd” case Q
he had never lost. Then the sergeant took out a key to open the door
R R
to flat 409.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 14 -
A A
B 58. Then 2 police officers brought the defendant out of the staircase for B
a house search. On the way at the lobby, the defendant saw Mr.
C C
Kwan again. The defendant nodded to him.
D D
59. The defendant was then brought back to his home at flat 409.
E E
During the search of his home, one of the police officers who gave
F
evidence brought the defendant into one of the rooms. There the F
defendant saw some money and white powder on the computer
G G
desk. Then the police officer told the defendant to confess. The
H
defendant said he will not. The defendant was then told to sit in the H
sofa in the sitting room.
I I
J 60. After a while, the defendant told the police that he felt cold and that J
he would like to change his clothing. The defendant was permitted
K K
to so and it was only then that the defendant had put on the yellow
L jacket and a pair of blue jeans. The defendant also put on a pair of L
white briefs. According to the evidence of PW1, the defendant was
M M
wearing a pair of black underpants with an elastic band. Counsel for
N the defendant did not challenge the colour of the underpants in N
cross-examination of PW1, just that why PW1 did not seize the
O O
underpants as exhibit.
P P
61. The defendant then waited for police vehicles and was later brought
Q Q
to the police station.
R R
62. It is the defendant’s evidence at first that prior to his arrival at the
S S
police station, he had not signed in any police notebook. The
T
defendant however later confirmed in his evidence-in-chief that it is T
his signature at the 19:56 entry on page 117 of the first notebook of
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 15 -
A A
B PW1. It is his evidence that he signed this inside the flat and not in B
the corridor as PW1 said.
C C
63. When the defendant was later cross-examined, he claimed that the
D D
contents of this first notebook entry at page 117 was never read over
E
to him. It is further the defendant’s evidence upon being E
F
cross-examined that when he read the page 117 entry, the 7 Chinese F
characters ‘trafficking in dangerous drugs’ ( 販運危險藥物罪)
G G
were not there when he was given the notebook to read. The
H defendant also claimed that the 4 Chinese characters ‘I have nothing H
to say’ (我無嘢講) were also not there when he was given the
I I
notebook to read. It is the defendant’s evidence that those
J characters were all written by the police officer. The fact of the J
missing characters was never pointed out to PW1 in his
K K
cross-examination.
L L
64. The defendant however was not sure whether the place for the 7
M M
Chinese characters were left blank or not. He was however sure that
N the place for the 4 Chinese characters were left blank when he read N
it. When the defendant was asked why he did not mention this to his
O O
legal representatives so that they could put this to PW1 when he
P gave evidence, the defendant explained that it was not until his own P
cross-examination that he could read the notebook and that before
Q Q
that he could not read the notebook. When asked if he had ever seen
R a copy of the notebook, the defendant answered that he did not R
remember.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 16 -
A A
B 65. The defendant denied that the signature on page 118 of the same B
notebook was his. He did however in his cross-examination agreed
C C
that the 3 Chinese characters were the characters in his Chinese
D name. He also denied that he had said words to the effect that the D
ketamine was for his self-consumption or that the money was his at
E E
all.
F F
66. As for the cash that the police said were found on the computer desk,
G G
the defendant said that it was his money but that they were kept
H
inside a drawer at the head of the bed. When asked by his counsel H
how much money that would be, the defendant answered “$21,000”.
I I
This differed with the version put to the prosecution witnesses by
J the defendant’s counsel, which was that there was only $20,000, J
with the $1,000 being repayment by Ah Chiu to the defendant made
K K
in the lift lobby.
L L
67. The defendant was then asked about the $1,000 from Ah Chiu and
M M
he said that the police had seized it and he did not know what had
N happened to it. N
O O
68. It is the defendant’s evidence that he had never seen any dangerous
P drugs inside his home at any time on that day prior to his arrest, nor P
did he have any drugs on his person when he left his flat to meet Ah
Q Q
Chiu that day.
R R
69. In cross-examination, the defendant further confirmed that he has a
S S
previous criminal conviction for taking conveyance without
T
authority in 2005. The defendant said that he was not a drug addict T
in November 2014.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 17 -
A A
B B
70. The defendant confirmed in cross-examination that it was PW3
C who went up to stop Ah Chiu from taking a video. It was then C
pointed out to the defendant that his counsel never put that to PW3
D D
in cross-examination.
E E
F
71. The defendant said he did not ask his neighbour Mr. Kwan to take a F
video because he saw that Mr. Kwan did not have a phone with him.
G G
The defendant repeated that he did ask Mr. Kwan to pay attention to
H
what was going on. H
I I
72. Counsel for the prosecution asked the defendant why he did not
J request an identification parade to identify the officers who brought J
Ah Chiu and Ah Ming to the rear staircase. The defendant
K K
explained as follows. As soon as he had received copies of the
L witness statements he had passed them on to his legal L
representatives. It was not until the prosecution witnesses had given
M M
evidence that the service number of the other officers was
N mentioned. It is the defendant’s evidence that he was sure he could N
identify those officers.
O O
73. It is the defendant’s evidence that it was PW3 who had taken out a
P P
big transparent bag from the water meter that was near the mesh
Q cover and said that he had never lost a ‘dd’ case. When asked if that Q
was said in the presence of PW2, the defendant said that it was “at
R R
the back of PW2”, but that PW2 was close enough to have heard
S S
what was said by PW3. It must be noted that this was not pointed
T
out to PW2 or PW3 in their cross-examination. T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 18 -
A A
B 74. It was in cross-examination that the defendant first mentioned that B
he was searched in the rear staircase, and that the police officers had
C C
also seized the defendant’s wallet in addition to the keys and mobile
D phone the defendant had on him. It is the defendant’s evidence that D
since he did not have any pockets in his clothing when he left his
E E
flat, he simply carried everything in his hand, that is to say, the
F bunch of keys, the wallet and one mobile phone. F
G G
75. During the defendant’s cross-examination, it was suggested to him
H that when the defendant was brought inside flat 409, he pointed out H
to the police officers where his bedroom was. The defendant
I I
answered that he did.
J J
76. At the end of the defendant’s cross-examination, I inquired with the
K K
defendant if he was allowed to see the Duty Officer when he was
L L
brought back to Tin Shui Wai police station. The defendant said he
M
was allowed to see the Duty Officer, but he did not complain about M
what PW3 did to the Duty Officer, nor did he file any complaint
N N
about the sergeant or the other police officers at all. Neither
O prosecution counsel nor defence counsel had any follow up O
questions.
P P
DW1 Mr. Kwan Yu Chan
Q Q
77. Mr. Kwan is 59 and a construction and mechanical maintenance
R R
worker. He lives in flat 406, which is right opposite the defendant’s
S flat 409, in Shui Moon House, Tin Shui Wai. He has one previous S
conviction for fraud in 1987 when he was fined $2,000. The fraud
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 19 -
A A
B he perpetrated was against his employer for payment of work that B
he in fact had not done.
C C
78. Mr. Kwan has been living at flat 406 for about 23 years. He had
D D
known the defendant and his father for about the same length of
E E
time and has been their neighbour for over 20 years.
F F
79. At around 8pm on 9 November 2014, Mr. Kwan was home having
G G
dinner when he heard some noise outside his unit. He opened the
H
wooden door to have a look and saw some people outside. He asked H
what they were doing and one of them said ‘Police’. Mr. Kwan then
I I
opened the iron gate as well to see what was going on. He saw
J several people in the corridor, and 2 young men squatting in the J
corridor. Mr. Kwan did not know the young men but nevertheless
K K
asked them what was going on and one of the young men said
L something about how he did not put up a struggle and so there he L
was.
M M
N 80. Mr. Kwan was then told by one of the Police officers that somebody N
was consuming dangerous drugs there. Mr. Kwan was surprised
O O
about that, and asked if the person lived on the same floor. At the
P same time, Mr. Kwan saw that someone was being pressed down on P
the floor in the corridor by people whom he believed were Police
Q Q
officers.
R R
81. After the Police officers moved aside, Mr. Kwan saw that the
S S
person on the floor was the defendant. The Police officers asked
T him if he knew the defendant and Mr. Kwan said yes, and that he T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 20 -
A A
B lived in the opposite flat. The defendant did acknowledge Mr. B
Kwan by addressing him. Mr. Kwan then asked the defendant what
C C
he was doing there and whether he needed to call the defendant’s
D father for him. D
E E
82. Police officers said since the defendant was an adult, there was no
F
need to do so. One of the Police officers who was squatting down F
next to the defendant mentioned to Mr. Kwan that his leg was
G G
injured. Mr. Kwan could see the leg had what looked like a few dots
H
of blood and asked if the officer needed a plaster or medicine. The H
officer said he did not need it.
I I
J 83. A Police officer then wrote down the personal particulars of Mr. J
Kwan on something like a clipboard, including his name, telephone
K K
number and identity card information. Mr. Kwan then returned to
L his flat and continued with his dinner. L
M 84. About 10 odd minutes later, Mr. Kwan went to bring the trash out. M
When he opened the door of his flat, he saw the defendant was
N N
being taken into room 409 by the Police. Mr. Kwan tapped on the
O defendant and asked if he was all right. Then the defendant entered O
into the flat and Mr. Kwan continued to take the trash out to the lift
P P
lobby. When there, he bumped into the Police officer who had taken
Q his particulars earlier and Mr. Kwan asked him what happened. The Q
officer told him that dangerous drugs were found in the rear
R R
staircase and that the Police were waiting for forensic people to
S S
come and examine it. Mr. Kwan told the officer to check carefully
T
because something like that had never happened before. Mr. Kwan T
then returned to his flat.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 21 -
A A
B B
85. It is Mr. Kwan’s evidence that the defendant was wearing a white
C C
t-shirt, flip flops, and a pair of dark coloured shorts that looked like
D boxer shorts. D
E E
86. After the incident that night, the Police had never contacted Mr.
F
Kwan again. It is Mr. Kwan’s evidence that it was the defendant’s F
father who had asked him to come to court to tell what he saw, that
G G
he did not know anything about the defendant’s previous
H
convictions, and that he was not lying to try to get the defendant out H
of trouble.
I I
DW2 Chan Hung Chiu
J J
87. Mr. Chan is one of the two young men whom Mr. Kwan saw
K K
squatting in the corridor that day, and is the ‘Ah Chiu’ mentioned
L by the defendant in his evidence. L
M M
88. Mr. Chan is 28 and lives in Tin Shui Wai. He is of clear criminal
N record. He works as a transportation worker. He had known the N
defendant for over 10 years and they are friends.
O O
P 89. It is Mr. Chan’s evidence that at around 8 pm on 9 November 2014, P
he went up to the 4th floor of Shui Moon House to repay $1,000 to
Q Q
the defendant. He had borrowed the money about 2 weeks ago. Mr.
R Chan went there together with his friend Leung Chi Ming (Mr. R
Leung was not called as a witness).
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 22 -
A A
B 90. When they arrived at the lift lobby on the 4th floor, since Mr. Chan B
did not want to go into the defendant’s home, he telephoned the
C C
defendant and told him to come out. The defendant did come out.
D At that time, the defendant was wearing a white t-shirt and black D
shorts. Mr. Chan could not remember what footwear the defendant
E E
had on.
F F
91. Mr. Chan then gave the $1000 to the defendant who then turned to
G G
return home while Mr. Chan waited for the lift to leave. It was then
H
that Mr. Chan saw two men rushed out from the landing of the H
staircase to get hold of the defendant. Mr. Chan and his friend were
I I
also held by another person who came out from the staircase on the
J other side. J
K K
92. After the men got hold of the defendant, they pressed him down to
L the ground in the corridor, near the flat opposite to the defendant’s L
room 409. Mr. Chan and his friend were then taken by someone,
M M
who had identified themselves as Police officers, to near the
N defendant’s flat and were ordered to squat down. N
O O
93. Mr. Chan remembered that the defendant asked him to use his
P mobile phone to take a video of what was happening but the Police P
stopped him from doing so. Then a neighbour came out to see what
Q Q
was going on. The Police told him that they were working, and later
R said that the defendant was in possession of dangerous drugs and R
had assaulted a Police officer.
S S
T
94. Mr. Chan and his friend were then taken to the landing of the T
staircase that was nearer the defendant’s flat. There they were
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 23 -
A A
B searched and their identity cards checked. They sat there and waited B
for about 3 hours before the Police allowed the two of them to leave
C C
via the staircase.
D D
Findings
E E
95. It is for the prosecution to prove beyond reasonable doubt all the
F elements of the offences. Although the defendant had voluntarily F
disclosed his previous convictions, it is not evidence towards the
G G
defendant’s guilt, merely his credibility as a witness, if at all.
H H
96. I find the prosecution witnesses honest and reliable. I find that they
I I
have not been shaken under cross-examination.
J J
The notebook entries
K K
97. According to PW1, he had cautioned the defendant twice. The first
L time was while they were still in the corridor and when the drugs L
were found from inside the defendant’s underpants. In relation to
M M
this caution, the record that PW1 made was just that he had arrested
N the defendant for the offences of assaulting a police officer and N
trafficking in a dangerous drug. There was no mention in the record
O O
as to where the drug was found. For this, the defendant indicated he
P had nothing to say. P
Q Q
98. The second caution was administered after drugs were found inside
R the defendant’s room. In this record, PW1 had clearly recorded R
where the suspected drugs and the money were found, that is to say,
S S
“on a computer desk in your room”.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 24 -
A A
B 99. PW1’s explanation as to why there was no mention of finding the B
drugs from the defendant’s underpants is that the circumstances at
C C
that time did not allow him to do so, because he had to enter the flat
D to conduct a house search. D
E E
100. PW1 agreed that he did not serve a copy of this notebook entry
F
where the defendant had allegedly confessed to the witness. PW1 F
explained that it was his ‘usual practice’ that such a copy would not
G G
be given to the defendant. A copy of the post-recorded notebook
H
entry (“the second notebook”) was however given to the defendant. H
I I
101. In the second notebook, PW1 clearly sets out more details of the
J alleged assault and trafficking, specifically mentioning how the J
defendant had pushed Sergeant 58974 (PW3) against the wall and
K K
that the drugs were found in the defendant’s underwear.
L L
102. I find that it is understandable that PW1 would not write down the
M M
full details of the arrest while still in the corridor. As he said in
N evidence, it was a contemporaneous record of what the defendant N
had said under caution. I accept PW1’s explanation that he had later
O O
on in his post recorded notebook entry set out in details what was
P said in the corridor. P
Q 103. I find that PW1 is telling the truth when he said he had given the Q
notebook for the defendant to read and sign and that the defendant
R R
did sign both the signatures at page 117 and page 118 of the first
S S
notebook (P-14).
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 25 -
A A
B 104. According to the defendant, in relation to the 11 Chinese characters B
at page 117 of PW1’s first notebook, they were left blank when he
C C
read them. Yet this significant fact was never put to PW1.
D D
105. I also find it inherently improbable that the defendant had never
E E
read the notebook prior to giving evidence in court. It is his own
F
evidence that he had been given a copy of the notebook, which he F
had passed on to his legal representatives. If that is the case, it is
G G
incredible that the defendant himself did not read the contents of the
H
notebook before passing the notebook on to the lawyers. It is even H
more incredible that counsel preparing for trial would not show or
I I
refer the contents of the notebook to the defendant. I find that the
J defendant is not telling the truth when he said those Chinese J
characters were not there when he first read them at scene. I find
K K
that he is not telling the truth when he said that he did not say those
L things recorded in the notebook. L
M M
106. I find that the defendant did say the words as recorded by PW1 in
N his first notebook voluntarily. I find that it is an accurate record of N
what the defendant had said under caution after his arrests in the
O O
corridor and inside flat 409.
P P
The defendant’s version of facts inherently improbable
Q Q
107. I find the defendant’s version of how the police had brought him to
R the rear staircase to beat him up and frame him inherently R
improbable for the following reasons.
S S
T 108. According to evidence of all the prosecution witnesses, they were T
aware of the presence of Mr. Kwan the neighbour who had come
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 26 -
A A
B out from his flat to inquire about what was going on at the time. B
According to Mr. Kwan’s own evidence, he had called out to the
C C
defendant to ask him if he needed to call his father. This was when
D the defendant was still being pressed on the floor and was within D
earshot of the prosecution witnesses.
E E
F
109. If that was the case, the police must have heard this and be aware F
that Mr. Kwan was someone who cared about the well being of the
G G
defendant. They would also be aware that Mr. Kwan knew who the
H
defendant was and was familiar enough with the defendant’s father H
to know his phone number.
I I
J 110. Given these facts, I find it inherently improbable that the police J
officers would still choose to bring the defendant to the 4 th floor rear
K K
staircase to beat him up and frame him, taking a huge risk of Mr.
L Kwan being able to hear or see what was going on and reporting the L
matter to the police or the defendant’s father.
M M
111. Furthermore, it is not disputed that the defendant had the keys to
N N
the flat with him at the time and that the flat was empty. The police
O officers had a valid search warrant for the flat. Would it not be O
much easier, if the police officers were minded to frame the
P P
defendant, to simply bring the defendant into the flat, close the door
Q and then beat him up and frame him? Why take the risk of doing it Q
in the rear staircase at around 8 pm, when residents would be
R R
expected to be coming home or be home having dinner and likely to
S S
run into the police officers and hear any noises outside.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 27 -
A A
B 112. With the amount of drugs (154 g of powder containing 113.1g of B
ketamine) that the police are using to frame the defendant, and with
C C
an officer who had never lost a ‘dd’ case, it would be obvious to
D him that simply finding the drugs inside the defendant’s home D
would be enough evidence to bring a charge of trafficking in
E E
dangerous drugs against the defendant.
F F
113. I also find it inherently improbable that PW1 would fabricate the
G G
defendant’s confession in the way that he supposedly did.
H H
114. In relation to the drugs found on the defendant in the corridor, the
I I
defendant said he had nothing to say, which is his right and does not
J amount to a confession at all. J
K K
115. In relation to the drugs found on the computer desk inside the flat,
L the defendant’s confession was only as to its possession for L
self-consumption. The defendant did not confess to trafficking in
M M
the drugs.
N N
116. If they are fabrications, they are useless fabrications and PW1 has
O O
left a lot of room for the defendant to maneuver. Why would the
P police officers conspire to do so much against the defendant in P
order to accomplish so little?
Q Q
The defendant’s strong character
R R
117. It is the defendant’s evidence in the witness box that as soon as he
S S
was pressed on to the floor in the corridor by PW3 and the other
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 28 -
A A
B Police officers, he yelled out. The defendant was also able to call B
out to his friend Ah Chiu to use his phone to video the Police.
C C
118. It is also the defendant’s evidence that while he was still pressed
D D
down, he saw his neighbour Mr. Kwan and the defendant was able
E
to tell him to keep an eye on what was going on (Mr. Kwan’s E
F
evidence does not corroborate the defendant’s evidence on this F
particular point, which will be dealt with below).
G G
H
119. If the above evidence from the defendant is true, then it is proof H
that the defendant is someone who is not afraid to speak up even
I I
when under pressure. Yet, there is no evidence from the defendant
J that he had shouted out for help when he was assaulted by the Police J
officers in the rear staircase. I find that the only reason that the
K K
defendant did not say that he had shouted out about Police brutality
L is because it did not happen. L
M M
120. Furthermore, despite being beaten up by Police officers and told to
N confess, the defendant refused to do so. If true, this would also go to N
show that the defendant is someone of principle, able to remain
O O
sturdy despite Police abuse.
P P
No complaints
Q Q
121. I find it inherently improbable then that someone of the
R defendant’s age, experience and strong character would choose not R
to complain to the Duty Officer at the Police station about how he
S S
had been assaulted and framed by the police officers and PW3.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 29 -
A A
B 122. According to the defendant’s own evidence, he has 7 previous B
convictions. It was not the first time that he had been to a police
C C
station. It was not the first time that he had been arrested by the
D police. It was not the case of, say, a teenager being arrested for the D
first time and too scared to complain to anyone about police
E E
impropriety. I find that the only reason why the defendant did not
F complain to the Duty Officer about PW3 framing him and police F
officers assaulting him is because it never happened. The defendant
G G
had made it up in order to discredit the evidence of the police
H officers. H
I I
Failure to point out specific facts in cross-examination
J 123. I find that the defendant had failed to, through his counsel, put J
important facts to the prosecution witnesses.
K K
L 124. The defendant’s counsel did not point out in cross-examination of L
PW3 that the defendant had called out to Ah Chiu to take a video
M M
and then PW3 had went up to stop Ah Chiu from doing so. It was
N not pointed out to PW1 that the 11 Chinese characters on page 117 N
were not there when the notebook was shown to the defendant. It
O O
was not pointed out to PW1, PW2 or PW3 that while the defendant
P was still being pressed on the floor in the corridor, he had said to Mr. P
Kwan to keep an eye on what was going on.
Q Q
R R
125. I find the failure to put the relevant facts to the witnesses as one of
S
the bases for finding that the defendant is not an honest witness. S
T The defence witnesses T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 30 -
A A
B 126. In assessing the evidence of the defence witnesses I have first of all B
reminded myself that they are not independent witnesses. Mr.
C C
Kwan is a long time friend of the defendant’s father and they have
D been neighbours for some 20 years. Mr. Kwan watched the D
defendant grew up. Mr. Chan and the defendant went to school
E E
together and they have been friends for over 10 years. As such, I
F must be mindful of the possibility that they might not want to see F
the defendant in trouble.
G G
H 127. Having seen and heard Mr. Kwan and Mr. Chan, I find the version H
of fact as told by them inherently improbable.
I I
J 128. There is no reason whatsoever for the police officers to lie about J
the presence of Mr. Chan and Ah Ming, if they were really there. If
K K
the police are framing the defendant, and if Mr. Chan and Ah Ming
L L
were there, it would make no sense for the police to completely
M
erase their presence. It would have been much easier for the police M
to take down their particulars and then send them away before
N N
proceeding to assault and frame the defendant.
O O
129. Upon the basis that there was no reason for the police to lie about
P Mr. Chan and Ah Ming’s presence, there can be two explanations as P
to the absence of Mr. Chan and Ah Ming in the prosecution witness’
Q Q
evidence. Either Mr. Chan and Mr. Kwan are lying about Mr. Chan
R and Ah Ming’s presence, or PW1, PW2 and PW3 were not aware R
that Mr. Chan and Ah Ming were there.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 31 -
A A
B 130. I find that it is unlikely that the police officers would not be aware B
of the presence of Chan and Ah Ming given the fact that the incident
C C
took place in the corridor on the 4th floor. The only irresistible
D inference is then that Mr. Kwan and Mr. Chan lied about the latter’s D
presence at scene that day, and I do so find.
E E
F
Discrepancies F
131. In relation to the evidence of Mr. Kwan, I note first of all that there
G G
was no mention in the defendant’s evidence that Mr. Kwan had
H asked the defendant if he needed him to call his father. If Mr. Kwan H
really did say that to the defendant then it would be highly unlikely
I I
that the defendant would not remember it. It would also be highly
J unlikely that the defendant would refuse Mr. Kwan’s offer, given J
that it is the defendant’s case that he was being apprehended by the
K K
Police for no reason at all. The defendant was also already aware
L that he was going to be ill treated by the Police and so had the L
presence of mind to tell his friend to video what was going on. The
M M
defendant was supposed to have asked Mr. Kwan to keep an eye on
N things. If that is the truth, then an offer from Mr. Kwan to call the N
defendant’s father must have been most welcome. Yet the
O O
defendant supposedly did not take up the offer.
P P
132. I also find it strange that Mr. Kwan would choose not to call the
Q Q
defendant’s father when the Police said there was no need to do so.
R Mr. Kwan has been a friend and neighbour of the defendant’s father R
for over 20 years. Mr. Kwan watched the defendant grew up. Mr.
S S
Kwan had no idea that the defendant has any drug related previous
T convictions. As far as Mr. Kwan was concerned, the defendant is T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 32 -
A A
B just a normal young man. Yet there the defendant was, being B
pressed on to the ground outside his own home by plainclothes
C C
Police officers. Any reasonable person in Mr. Kwan’s position
D would have made the call to the defendant’s father, no matter what D
the Police or the defendant said.
E E
F
133. Furthermore, Mr. Kwan said he had tapped the defendant’s head F
when he saw the defendant again later on when he was bringing the
G G
trash out. Yet, according to the defendant’s evidence, no such
H
tapping was mentioned. The defendant’s evidence was that when he H
saw Mr. Kwan taking out the trash, the defendant merely nodded to
I I
Mr. Kwan.
J J
134. Mr. Kwan was also wrong in his evidence about how PW3 sergeant
K K
had an injury on his leg, which Mr. Kwan was able to see because
L the sergeant had his pants rolled up. No injury to PW3’s leg was at L
all mentioned in the admitted facts. It was never put to PW3 that his
M M
leg was injured, or that he had shown his leg injury to the neighbour
N at scene. I find that the reason why Mr. Kwan got the place of the N
injury to PW3 wrong is because he is lying about the matter.
O O
P 135. Having considered very carefully the evidence of Mr. Kwan, I find P
that he is not a truthful witness and I refuse to accept his evidence. I
Q Q
also find that given the inherent improbability of his evidence, Mr.
R Chan is also not a truthful witness and I refuse to accept his R
evidence as to the attire of the defendant on the day as well as his
S S
presence.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 33 -
A A
B 136. The burden is of course still on the prosecution to prove the B
elements of the offences, and given the contention put forward by
C C
the defendant, in particular the attire of the defendant on the day.
D D
137. I find that there is no reason why the police officers would have to
E E
make up the attire of the defendant to frame him. As I mentioned
F above, if the police officers were to frame the defendant, all that F
they have to do is to say that the drugs were found inside the flat, or
G G
that the drugs were being carried by the defendant, perhaps strapped
H on his waist by the shorts and covered by the white t-shirt that the H
defendant alleged he was wearing. There is no reason why the
I I
police would have to do what the defendant alleged them to have
J done in order to frame the defendant. J
K K
138. I find that the prosecution has proved beyond reasonable doubt that
L L
the defendant was found in possession of the transparent plastic bag
M
when he left flat 409. I find that the police officers did find from the M
computer desk of the defendant’s bedroom inside flat 409 another
N N
transparent plastic bag containing the additional dangerous drugs.
O O
Charge 1
P 139. I find that the prosecution has proved beyond reasonable doubt that P
PW3 was in the due execution of his duty when he assisted PW1
Q Q
and PW2’s interception of the defendant in the corridor. I find that
R R
the defendant did use both his hands to push PW3 on his chest area,
S
causing him to fall back against the wall behind him. I find that S
PW3 did suffer an abrasion to his left hand as a result of the
T T
defendant’s push.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 34 -
A A
B B
140. I find that the defendant did assault PW3 and find the defendant
C C
guilty of charge 1.
D D
Charge 2
E E
141. I find that the defendant was in possession of exhibits P-1 and P-2,
F which contained a total of 154g of a powder containing 113.1g of F
ketamine, when he was intercepted and searched by PW1 in the
G G
corridor of 4th floor Shui Moon House. I find that given the quantity
H of drugs and the manner that the drugs were packaged and the fact H
that the defendant was leaving the flat with the drugs hidden inside
I I
his underpants, the only irresistible inference is that the defendant
J was in possession of the drugs for the purpose of trafficking. I find J
that the trafficking was unlawful.
K K
L 142. I convict the defendant of charge 2 accordingly. L
M M
Charge 3
N 143. I find that the defendant was in possession of exhibit P-3, which N
contained 11.7g of a powder containing 8.2g of ketamine, when it
O O
was found on the computer desk inside the defendant’s bedroom in
P flat 409. P
Q Q
144. I find however that given the fact that the defendant has 6 previous
R convictions for possession of dangerous drugs, the fact that the R
ketamine was found inside the defendant’s home, the fact that the
S S
defendant had left the drug behind in the flat after bringing with him
T the large amount of drugs that was inside his underpants and found T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 35 -
A A
B to be for trafficking, and more importantly, the defendant’s B
confession to PW1 that the drugs on the computer desk were for his
C C
self-consumption, there is a real possibility that those drugs were
D for his own consumption. D
E E
145. I grant the benefit of the doubt to the defendant and find him not
F
guilty of trafficking in the drugs found on the computer desk. F
G G
Lesser offence
H 146. Given that the drugs were in fact found in the defendant’s bedroom H
I
and that the defendant had confessed to the possession of those I
drugs, pursuant to section 42(1) and Schedule 3 of the Dangerous
J J
Drugs Ordinance, I convict the defendant of the lesser offence of
K
possession of dangerous drug under section 8(1)(a) and (2) of the K
same Ordinance.
L L
M M
N N
(Douglas T.H .Yau)
District Judge
O O
P P
Q Q
R R
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
A A
B DCCC 70/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 70 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
IP TSZ YAU
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 28th May 2015 at 9:34 am I
Present: Mr. Philip William Swainston, Solicitor on fiat, for HKSAR
J J
Mr. Oliver Davies instructed by M/s Wong & Co,
K K
for the Defendant
L
Offences: 1) Assaulting a police officer in the execution of his duty L
(襲擊執行職責的警務人員)
M M
2-3) Trafficking in a dangerous drug (販運危險藥物)
N ---------------------------- N
Reasons for Verdict
O O
----------------------------
P 1. The defendant pleaded not guilty to one count of assaulting a Police P
officer, contrary to section 63 of the Police Force Ordinance,
Q Q
Cap.232 and two counts of trafficking in dangerous drugs, contrary
R to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, R
Cap.134.
S S
T Background T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 2 -
A A
B 2. Police mounted an anti-narcotics operation and laid ambush outside B
the defendant’s home in Shui Moon House, Tin Shui Wai, Tuen
C C
Mun. The defendant was apprehended in the corridor outside his
D flat. The defendant allegedly pushed a sergeant against the wall in D
the process, causing the sergeant to suffer a minor injury (charge 1).
E E
F 3. The defendant was searched and drugs contained in a bag were F
allegedly found from inside the defendant’s underpants (charge 2).
G G
A house search was then conducted at the defendant’s home and
H further drugs and cash of $21,000 were found on a computer desk H
inside the defendant’s bedroom (charge 3).
I I
J 4. It is the prosecution’s case that the defendant was cautioned at J
scene and confessed that the $21,000 and ketamine found on the
K K
computer desk inside the flat was his and for his self-consumption.
L L
The defendant denied making such a confession and accused the
M
Police of fabricating the confession and his signature. M
N Issues N
5. It is the prosecution’s case that at the time of his arrest, the
O O
defendant was wearing a yellow jacket and blue jeans. The bag of
P ketamine in charge 2 was found inside the defendant’s underpants. P
Q Q
6. The defendant’s case, however, is that he was wearing a pair of
R R
black shorts and white t-shirt, with no underpants. It was only after
S
the defendant was brought back into his home and at the S
defendant’s request that he had put on underpants and changed into
T T
the jacket and jeans.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 3 -
A A
B B
7. The defendant made some serious accusations against the Police. It
C is the defendant’s case that he was never in possession of any of the C
dangerous drugs allegedly found on his person and in his bedroom.
D D
He never assaulted any Police officer. Instead of being searched in
E E
the corridor outside his flat, the defendant was brought to the rear
F
staircase where he was threatened to confess and where a sergeant F
took out a bag of things, presumably dangerous drugs, and told the
G G
defendant to admit that it was his. The defendant was also assaulted
H
there. H
I I
8. It is the prosecution’s case that the defendant was alone at the time
J of his apprehension outside his flat, and that there were nobody else J
in the vicinity. The defendant gave evidence himself and called two
K K
defence witnesses to corroborate his evidence as to his attire at the
L time he was subdued in the corridor outside his flat, and that two of L
the defendant’s friends were also present at the scene of
M M
apprehension and that those two friends themselves were held by
N the Police officers in the rear staircase for 3 hours before they were N
allowed to leave.
O O
9. Although the defence witnesses’ evidence do not say directly as to
P P
how the Police had threatened the defendant and planted the drugs
Q against the defendant, their evidence, if accepted, would cast a Q
reasonable doubt on the credibility of the prosecution witnesses.
R R
The court will have to consider whether the prosecution witnesses’
S S
wrong description of the attire of the defendant, and their failure to
T
acknowledge the presence of the two friends of the defendant was T
an act of lying or mere forgetfulness on the part of the witnesses. If
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 4 -
A A
B the wrong description and failure to mention was deliberate, the B
court will then have to consider whether such conduct would render
C C
the rest of the evidence of the prosecution witnesses unreliable and
D incredible. D
E E
Summary of Prosecution evidence
F 10. PW1 PC9486, PW2 PC8245 and PW3 Sergeant 58794 gave F
evidence for the prosecution.
G G
PW1 PC9486
H H
11. On 9 November 2014, they together with 5 other police officers
I I
carried out an anti-narcotics operation at the 4th floor of Shui Moon
J House in Tin Shui Wai. J
K K
12. At around 7:52pm, PW1, PW2 and PW3 were standing at a corner
L of the lift lobby on 4th floor when the defendant came out of flat 409 L
and walked towards the officers’ direction. PW1 immediately
M M
walked out of their corner, approached the defendant and told him
N that he was a police officer. N
O O
13. The defendant immediately turned around towards flat 409. PW1
P together with his teammates immediately went up to stop him and P
PW1 showed the defendant his police warrant card again,
Q Q
explaining to him that they found him looking suspicious and
R asking the defendant to show his proof of identity. R
S S
14. At that moment, the defendant used both his hands to push against
T the chest of PW3 Sergeant 58794 causing him to bump against the T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 5 -
A A
B wall behind him. PW1 and PW2 went up to stop the defendant, who B
kept on waving around his limbs and struggling.
C C
15. The defendant was eventually pressed on to the floor and subdued
D D
by the police officers and handcuffed by PW1. After the defendant
E E
had calmed down, he was brought back on his feet. PW1 conducted
F
a quick pat down search of the defendant and noticed something F
bulging around his waist area. Upon a more careful search, PW1
G G
found a bag stuffed between the defendant’s waist and his
H
underpants. PW1 took out the bag and found that it was a H
transparent re-sealable plastic bag. Inside were 12 other transparent
I I
plastic bags. Inside each of the 12 bags was some white powder.
J PW1 suspected that they were the dangerous drug ketamine. J
K K
16. PW1 also found 5 keys, one mobile phone and an identity card
L belonging to the defendant from his trousers pocket. PW1 then L
arrested and cautioned the defendant for assaulting a police officer
M M
and trafficking in dangerous drugs. Under caution, the defendant
N said he had nothing to say. PW1 immediately wrote down what the N
defendant said under caution in his notebook and then released the
O O
handcuff on the defendant’s right hand to let him sign in his
P notebook for confirmation. P
Q 17. PW2 took over the bags with suspected drugs, the keys and the Q
phone for safe custody.
R R
S 18. Meanwhile, PW1 showed a search warrant for flat 409 to the S
defendant and explained to him the contents of the warrant as well
T T
as the rights he was entitled to. At 8:02pm, in the presence of the
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 6 -
A A
B defendant, PW2 used the keys seized from the defendant to unlock B
the gate and wooden door of flat 409. There was no one inside the
C C
flat.
D D
19. PW1, PW2 and PW3 then entered the flat. PW1 asked the defendant
E E
which room was his and the defendant pointed it out. PW1 then
F entered that room and saw a re-sealable bag with white powder F
inside, two mobile phones and a stack of money on the computer
G G
desk inside the room. The money was later counted and found to be
H cash of $21,000. H
I I
20. PW1 cautioned the defendant again and asked the defendant to
J whom the bag, phones and money belonged. The defendant said J
words to the effect that the ‘K chai’ was for his self-consumption
K K
and the money was also his. PW1 immediately recorded what the
L L
defendant said in his notebook and then showed the defendant what
M
he had recorded. PW1 then released the handcuff on the defendant’s M
right hand for him to sign against the record. PW1 then handed over
N N
the found items to PW2 for his safe keeping.
O O
21. PW1 continued to search the flat until 9:30pm but nothing
P P
suspicious was found and he left the flat with the defendant at 11pm
Q to go to Tin Shui Wai1 police station, and later to Tuen Mun police Q
station.
R R
S S
1
T This was mistakenly stated as Cheung Sha Wan Police station when the verdict was read out in court on T
28th May 2015. The mistake was pointed out by Mr. Davies for the defendant at the end of the verdict and
corrected in this Reasons for Verdict.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 7 -
A A
B 22. According to PW1, at the time the defendant was first seen in the B
corridor outside flat 409, he was wearing a yellow jacket, blue jeans
C C
and flip flops. The defendant did not have any cash, octopus card or
D credit card on him. D
E E
23. It is the evidence of PW1 that in the course of subduing the
F defendant in the corridor, someone did open the door from inside F
the flat opposite to 409 and asked what was going on. PW1 however
G G
just focused on dealing with the defendant and did not pay attention
H to that person and have no idea if that neighbor said or did anything H
at all.
I I
J 24. It was pointed out in cross-examination to PW1 that he did not J
record in his first notebook that the drugs were found inside the
K K
defendant’s underpants.
L L
M
25. According to PW1, he did read out the contents of the second M
notebook entries but the defendant had refused to sign against it to
N N
confirm.
O O
PW2 PC8245
P 26. PW2 was one of the team members mentioned in PW1’s evidence. P
Q Q
27. At around 7:52pm, PW2 was with PW1 and PW3 near the lobby on
R R
the 4th floor of Shui Moon House conducting observation when
S
PW1 suddenly went towards the corridor outside flat 409. PW2 and S
PW3 followed and then saw a man outside flat 409. The man was
T T
wearing a yellow jacket, zipped up, blue jeans and flip flops and
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 8 -
A A
B was walking towards the witness. He was later identified as the B
defendant.
C C
28. PW2 saw that the moment PW1 told the defendant that they were
D D
police officers, the defendant turned around to leave. PW2 and his
E E
colleagues went up to stop him. PW1 repeated that he was a police
F
officer and showed the defendant his warrant card. PW2 and PW3 F
also showed their warrant card.
G G
H
29. When PW1 demanded to conduct a body search on the defendant, H
he suddenly used both his hands to push towards the chest area of
I I
PW3 and caused him to fall against the wall behind him. The
J defendant at once turned around to run away but PW2 and his J
colleagues apprehended him, who kept on waving around his arms
K K
trying to ward them off. PW2 and PW1 then subdued the defendant
L by pressing him on to the floor. PW1 handcuffed the defendant and L
then helped him up. When PW1 proceeded to search the defendant,
M M
he found from the right side of his waist near his underpants, a
N transparent re-sealable plastic bag. PW2 saw the search clearly N
because he was standing right next to them.
O O
P 30. PW1 continued to search the defendant and found from his pants P
some keys, a mobile phone and an identity card. PW1 then declared
Q Q
arrest on the defendant and cautioned him. PW1 then handed over
R the items found on the defendant to PW2 for him to seize them as R
exhibits.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 9 -
A A
B 31. PW2 then saw PW1 showed a search warrant to the defendant, B
explaining the contents of the warrants and his rights. PW1, PW2
C C
and PW3 then took the defendant into flat 409, with PW2 using the
D keys found from the defendant to unlock the gate and wooden door D
of the flat.
E E
F
32. There was no one inside the flat. They asked the defendant which F
room he occupied and he told them. PW1 then searched the room in
G G
front of the defendant. PW2 saw him found a transparent plastic bag
H
with white powder inside, 2 mobile phones and some cash from on H
top of a computer desk inside the room. PW1 then cautioned the
I I
defendant for trafficking in dangerous drugs. The found items were
J then handed over to PW2 for his custody. J
K K
33. PW2 was the police officer that drew the P-18 sketch of the flat.
L Room 3 on the sketch is the room that the defendant said was his. L
M M
34. During cross-examination, PW2 confirmed PW1’s evidence that
N the handcuffs on the defendant had been released for him to sign his N
name. The first time the defendant was asked to sign was in the
O O
corridor outside flat 409 after PW1 had declared arrest on the
P defendant. The second time was inside flat 409 after the suspected P
bag of drugs was found on the computer desk. PW2 saw the
Q Q
defendant signed in the notebook of PW1.
R R
35. It is PW2’s evidence that when he first intercepted the defendant, he
S S
did not see anyone else at the scene. PW2 however did see a
T
neighbor in the opposite flat of 409 turned up to make enquiries at T
the time when the defendant was being subdued.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 10 -
A A
B B
PW3 Sergeant 58794
C C
36. PW3 is the sergeant mentioned in the evidence of PW1 and PW2.
D D
37. At around 7:52pm on the night in question, PW3 saw the defendant
E being stopped by PW1 and PW2 at the corridor near flat 409. The E
defendant was wearing a yellow jacket, blue jeans and flip flops.
F F
G 38. PW3 saw PW1 showing the defendant his warrant card. At that G
moment, the defendant turned and tried to go back to the direction
H H
of flat 409. The three police officers immediately went up to stop
I him and then showed him their warrant cards again. I
J J
39. When PW1 demanded to see the defendant’s proof of identity and
K K
requested to search his person, the defendant suddenly used both
L
hands to push on PW3’s chest area, causing him to fall backwards L
against the wall behind him. As a result of the push, the back of
M M
PW3’s left hand suffered an abrasion and bled. It is admitted fact
N
that PW3 was later taken to Tuen Mun Hospital where he was N
examined by Dr. Wong who found a fresh abrasion to PW3’s left
O O
hand.
P P
40. PW3 did not witness the search of the defendant by PW1 because
Q he did not think it was necessary for him to do so. He was later told Q
that a transparent re-sealable plastic bag was found.
R R
S 41. PW3 later entered flat 409 with the defendant. PW1 asked the S
defendant which room was his and then PW1 conducted a search of
T T
the room.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 11 -
A A
B B
42. During cross-examination, PW3 confirmed that there were no other
C people outside flat 409 at the material time other than the police C
officers. He did see a resident who came out from the flat opposite
D D
409. The man stayed for about 1 minute.
E E
Summary of defence evidence
F F
The defendant’s evidence
G G
43. The defendant fully understood his rights and elected to give
H evidence. H
I I
44. The defendant is 32 and was working as a delivery worker on a
J casual basis, earning about $5,000 per month. The defendant J
voluntarily disclosed in his evidence-in-chief that he has 6 previous
K K
criminal convictions for possession of dangerous drugs, with the
L most recent being in 2007. L
M M
45. The defendant has been living in flat 409 for almost 20 years.
N N
46. On 9 November 2014, at just before 8pm, the defendant was home
O O
alone when he received a phone call from his childhood friend ‘Ah
P Chiu’. The defendant had lent $1,000 to Ah Chiu two weeks ago P
and Ah Chiu called to say that he had arrived at the 4th floor lift
Q Q
lobby to repay the money.
R R
47. The defendant therefore brought his wallet, mobile phone and keys
S S
and went out to the lift lobby wearing a white t-shirt, black shorts
T and flip flops. The defendant was not wearing any underpants. T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 12 -
A A
B B
48. At the lift lobby, the defendant saw his friend Ah Chiu with his
C friend Ah Ming. Ah Chiu handed over $1,000 to the defendant. The C
two chatted for about 1 minute and then the defendant turned
D D
around to go home. Suddenly someone put a hand on his shoulder
E E
from behind and pulled him. The defendant recognized him as the
F
PW3 Sergeant. Then another 2 or 3 people who claimed they were F
police officers came out and pressed him on to the floor between the
G G
lift lobby and the corridor of flat 409.
H H
49. The defendant yelled out. He then saw his two friends being
I I
brought by the police to the corridor. The defendant called out to Ah
J Chiu to use his phone to video what was going on. PW3 however J
stopped Ah Chiu and told him not to do so. It must be pointed out
K K
here that this allegation was never put to PW3 in cross-examination.
L L
50. Ah Chiu and Ah Ming were then ordered by the police to squat
M M
down. Then the defendant’s neighbor Mr. Kwan came out from the
N flat opposite to 409. The defendant was however unable to N
remember Mr. Kwan’s flat number.
O O
51. Mr. Kwan came out and asked PW3 what was going on and PW3
P P
told him that the defendant had assaulted a police officer. The
Q defendant heard Mr. Kwan asking PW3 whether it was necessary Q
for him to call an ambulance but PW3 said there was no need to do
R R
so. Again, this was not put to PW3 in cross-examination.
S S
T
52. The defendant, despite being on the floor, told Mr. Kwan to keep an T
eye on what was going on. Yet again, this was not put to PW3 in
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 13 -
A A
B cross-examination. Mr. Kwan talked for a short while with the B
police and then returned to his flat.
C C
53. Meanwhile, Ah Chiu and Ah Ming were brought to the rear
D D
staircase by two police officers. The defendant is not able to say
E E
who the officers were.
F F
54. Then PW2, PW3 and two other police officers took the defendant to
G G
another staircase on the other side. There, two police officers that
H
had not given evidence, assaulted the defendant, saying that the H
defendant had offended their superior. The defendant did not give
I I
details as to this assault in his evidence-in-chief.
J J
55. The police officers then pretended to make a phone call, asking the
K K
defendant if he believed that he was going to summons someone to
L come, saying something about getting something for the defendant, L
telling him to confess.
M M
N 56. The defendant then saw PW3 took out a big transparent bag from N
the bottom of the mesh near the water meter room and brought it
O O
over to the defendant to show him, telling the defendant to confess.
P P
57. The defendant told the officer not to frame him up. PW3 then swore
Q at the defendant and said that since he had started doing “dd” case Q
he had never lost. Then the sergeant took out a key to open the door
R R
to flat 409.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 14 -
A A
B 58. Then 2 police officers brought the defendant out of the staircase for B
a house search. On the way at the lobby, the defendant saw Mr.
C C
Kwan again. The defendant nodded to him.
D D
59. The defendant was then brought back to his home at flat 409.
E E
During the search of his home, one of the police officers who gave
F
evidence brought the defendant into one of the rooms. There the F
defendant saw some money and white powder on the computer
G G
desk. Then the police officer told the defendant to confess. The
H
defendant said he will not. The defendant was then told to sit in the H
sofa in the sitting room.
I I
J 60. After a while, the defendant told the police that he felt cold and that J
he would like to change his clothing. The defendant was permitted
K K
to so and it was only then that the defendant had put on the yellow
L jacket and a pair of blue jeans. The defendant also put on a pair of L
white briefs. According to the evidence of PW1, the defendant was
M M
wearing a pair of black underpants with an elastic band. Counsel for
N the defendant did not challenge the colour of the underpants in N
cross-examination of PW1, just that why PW1 did not seize the
O O
underpants as exhibit.
P P
61. The defendant then waited for police vehicles and was later brought
Q Q
to the police station.
R R
62. It is the defendant’s evidence at first that prior to his arrival at the
S S
police station, he had not signed in any police notebook. The
T
defendant however later confirmed in his evidence-in-chief that it is T
his signature at the 19:56 entry on page 117 of the first notebook of
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 15 -
A A
B PW1. It is his evidence that he signed this inside the flat and not in B
the corridor as PW1 said.
C C
63. When the defendant was later cross-examined, he claimed that the
D D
contents of this first notebook entry at page 117 was never read over
E
to him. It is further the defendant’s evidence upon being E
F
cross-examined that when he read the page 117 entry, the 7 Chinese F
characters ‘trafficking in dangerous drugs’ ( 販運危險藥物罪)
G G
were not there when he was given the notebook to read. The
H defendant also claimed that the 4 Chinese characters ‘I have nothing H
to say’ (我無嘢講) were also not there when he was given the
I I
notebook to read. It is the defendant’s evidence that those
J characters were all written by the police officer. The fact of the J
missing characters was never pointed out to PW1 in his
K K
cross-examination.
L L
64. The defendant however was not sure whether the place for the 7
M M
Chinese characters were left blank or not. He was however sure that
N the place for the 4 Chinese characters were left blank when he read N
it. When the defendant was asked why he did not mention this to his
O O
legal representatives so that they could put this to PW1 when he
P gave evidence, the defendant explained that it was not until his own P
cross-examination that he could read the notebook and that before
Q Q
that he could not read the notebook. When asked if he had ever seen
R a copy of the notebook, the defendant answered that he did not R
remember.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 16 -
A A
B 65. The defendant denied that the signature on page 118 of the same B
notebook was his. He did however in his cross-examination agreed
C C
that the 3 Chinese characters were the characters in his Chinese
D name. He also denied that he had said words to the effect that the D
ketamine was for his self-consumption or that the money was his at
E E
all.
F F
66. As for the cash that the police said were found on the computer desk,
G G
the defendant said that it was his money but that they were kept
H
inside a drawer at the head of the bed. When asked by his counsel H
how much money that would be, the defendant answered “$21,000”.
I I
This differed with the version put to the prosecution witnesses by
J the defendant’s counsel, which was that there was only $20,000, J
with the $1,000 being repayment by Ah Chiu to the defendant made
K K
in the lift lobby.
L L
67. The defendant was then asked about the $1,000 from Ah Chiu and
M M
he said that the police had seized it and he did not know what had
N happened to it. N
O O
68. It is the defendant’s evidence that he had never seen any dangerous
P drugs inside his home at any time on that day prior to his arrest, nor P
did he have any drugs on his person when he left his flat to meet Ah
Q Q
Chiu that day.
R R
69. In cross-examination, the defendant further confirmed that he has a
S S
previous criminal conviction for taking conveyance without
T
authority in 2005. The defendant said that he was not a drug addict T
in November 2014.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 17 -
A A
B B
70. The defendant confirmed in cross-examination that it was PW3
C who went up to stop Ah Chiu from taking a video. It was then C
pointed out to the defendant that his counsel never put that to PW3
D D
in cross-examination.
E E
F
71. The defendant said he did not ask his neighbour Mr. Kwan to take a F
video because he saw that Mr. Kwan did not have a phone with him.
G G
The defendant repeated that he did ask Mr. Kwan to pay attention to
H
what was going on. H
I I
72. Counsel for the prosecution asked the defendant why he did not
J request an identification parade to identify the officers who brought J
Ah Chiu and Ah Ming to the rear staircase. The defendant
K K
explained as follows. As soon as he had received copies of the
L witness statements he had passed them on to his legal L
representatives. It was not until the prosecution witnesses had given
M M
evidence that the service number of the other officers was
N mentioned. It is the defendant’s evidence that he was sure he could N
identify those officers.
O O
73. It is the defendant’s evidence that it was PW3 who had taken out a
P P
big transparent bag from the water meter that was near the mesh
Q cover and said that he had never lost a ‘dd’ case. When asked if that Q
was said in the presence of PW2, the defendant said that it was “at
R R
the back of PW2”, but that PW2 was close enough to have heard
S S
what was said by PW3. It must be noted that this was not pointed
T
out to PW2 or PW3 in their cross-examination. T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 18 -
A A
B 74. It was in cross-examination that the defendant first mentioned that B
he was searched in the rear staircase, and that the police officers had
C C
also seized the defendant’s wallet in addition to the keys and mobile
D phone the defendant had on him. It is the defendant’s evidence that D
since he did not have any pockets in his clothing when he left his
E E
flat, he simply carried everything in his hand, that is to say, the
F bunch of keys, the wallet and one mobile phone. F
G G
75. During the defendant’s cross-examination, it was suggested to him
H that when the defendant was brought inside flat 409, he pointed out H
to the police officers where his bedroom was. The defendant
I I
answered that he did.
J J
76. At the end of the defendant’s cross-examination, I inquired with the
K K
defendant if he was allowed to see the Duty Officer when he was
L L
brought back to Tin Shui Wai police station. The defendant said he
M
was allowed to see the Duty Officer, but he did not complain about M
what PW3 did to the Duty Officer, nor did he file any complaint
N N
about the sergeant or the other police officers at all. Neither
O prosecution counsel nor defence counsel had any follow up O
questions.
P P
DW1 Mr. Kwan Yu Chan
Q Q
77. Mr. Kwan is 59 and a construction and mechanical maintenance
R R
worker. He lives in flat 406, which is right opposite the defendant’s
S flat 409, in Shui Moon House, Tin Shui Wai. He has one previous S
conviction for fraud in 1987 when he was fined $2,000. The fraud
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 19 -
A A
B he perpetrated was against his employer for payment of work that B
he in fact had not done.
C C
78. Mr. Kwan has been living at flat 406 for about 23 years. He had
D D
known the defendant and his father for about the same length of
E E
time and has been their neighbour for over 20 years.
F F
79. At around 8pm on 9 November 2014, Mr. Kwan was home having
G G
dinner when he heard some noise outside his unit. He opened the
H
wooden door to have a look and saw some people outside. He asked H
what they were doing and one of them said ‘Police’. Mr. Kwan then
I I
opened the iron gate as well to see what was going on. He saw
J several people in the corridor, and 2 young men squatting in the J
corridor. Mr. Kwan did not know the young men but nevertheless
K K
asked them what was going on and one of the young men said
L something about how he did not put up a struggle and so there he L
was.
M M
N 80. Mr. Kwan was then told by one of the Police officers that somebody N
was consuming dangerous drugs there. Mr. Kwan was surprised
O O
about that, and asked if the person lived on the same floor. At the
P same time, Mr. Kwan saw that someone was being pressed down on P
the floor in the corridor by people whom he believed were Police
Q Q
officers.
R R
81. After the Police officers moved aside, Mr. Kwan saw that the
S S
person on the floor was the defendant. The Police officers asked
T him if he knew the defendant and Mr. Kwan said yes, and that he T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 20 -
A A
B lived in the opposite flat. The defendant did acknowledge Mr. B
Kwan by addressing him. Mr. Kwan then asked the defendant what
C C
he was doing there and whether he needed to call the defendant’s
D father for him. D
E E
82. Police officers said since the defendant was an adult, there was no
F
need to do so. One of the Police officers who was squatting down F
next to the defendant mentioned to Mr. Kwan that his leg was
G G
injured. Mr. Kwan could see the leg had what looked like a few dots
H
of blood and asked if the officer needed a plaster or medicine. The H
officer said he did not need it.
I I
J 83. A Police officer then wrote down the personal particulars of Mr. J
Kwan on something like a clipboard, including his name, telephone
K K
number and identity card information. Mr. Kwan then returned to
L his flat and continued with his dinner. L
M 84. About 10 odd minutes later, Mr. Kwan went to bring the trash out. M
When he opened the door of his flat, he saw the defendant was
N N
being taken into room 409 by the Police. Mr. Kwan tapped on the
O defendant and asked if he was all right. Then the defendant entered O
into the flat and Mr. Kwan continued to take the trash out to the lift
P P
lobby. When there, he bumped into the Police officer who had taken
Q his particulars earlier and Mr. Kwan asked him what happened. The Q
officer told him that dangerous drugs were found in the rear
R R
staircase and that the Police were waiting for forensic people to
S S
come and examine it. Mr. Kwan told the officer to check carefully
T
because something like that had never happened before. Mr. Kwan T
then returned to his flat.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 21 -
A A
B B
85. It is Mr. Kwan’s evidence that the defendant was wearing a white
C C
t-shirt, flip flops, and a pair of dark coloured shorts that looked like
D boxer shorts. D
E E
86. After the incident that night, the Police had never contacted Mr.
F
Kwan again. It is Mr. Kwan’s evidence that it was the defendant’s F
father who had asked him to come to court to tell what he saw, that
G G
he did not know anything about the defendant’s previous
H
convictions, and that he was not lying to try to get the defendant out H
of trouble.
I I
DW2 Chan Hung Chiu
J J
87. Mr. Chan is one of the two young men whom Mr. Kwan saw
K K
squatting in the corridor that day, and is the ‘Ah Chiu’ mentioned
L by the defendant in his evidence. L
M M
88. Mr. Chan is 28 and lives in Tin Shui Wai. He is of clear criminal
N record. He works as a transportation worker. He had known the N
defendant for over 10 years and they are friends.
O O
P 89. It is Mr. Chan’s evidence that at around 8 pm on 9 November 2014, P
he went up to the 4th floor of Shui Moon House to repay $1,000 to
Q Q
the defendant. He had borrowed the money about 2 weeks ago. Mr.
R Chan went there together with his friend Leung Chi Ming (Mr. R
Leung was not called as a witness).
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 22 -
A A
B 90. When they arrived at the lift lobby on the 4th floor, since Mr. Chan B
did not want to go into the defendant’s home, he telephoned the
C C
defendant and told him to come out. The defendant did come out.
D At that time, the defendant was wearing a white t-shirt and black D
shorts. Mr. Chan could not remember what footwear the defendant
E E
had on.
F F
91. Mr. Chan then gave the $1000 to the defendant who then turned to
G G
return home while Mr. Chan waited for the lift to leave. It was then
H
that Mr. Chan saw two men rushed out from the landing of the H
staircase to get hold of the defendant. Mr. Chan and his friend were
I I
also held by another person who came out from the staircase on the
J other side. J
K K
92. After the men got hold of the defendant, they pressed him down to
L the ground in the corridor, near the flat opposite to the defendant’s L
room 409. Mr. Chan and his friend were then taken by someone,
M M
who had identified themselves as Police officers, to near the
N defendant’s flat and were ordered to squat down. N
O O
93. Mr. Chan remembered that the defendant asked him to use his
P mobile phone to take a video of what was happening but the Police P
stopped him from doing so. Then a neighbour came out to see what
Q Q
was going on. The Police told him that they were working, and later
R said that the defendant was in possession of dangerous drugs and R
had assaulted a Police officer.
S S
T
94. Mr. Chan and his friend were then taken to the landing of the T
staircase that was nearer the defendant’s flat. There they were
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 23 -
A A
B searched and their identity cards checked. They sat there and waited B
for about 3 hours before the Police allowed the two of them to leave
C C
via the staircase.
D D
Findings
E E
95. It is for the prosecution to prove beyond reasonable doubt all the
F elements of the offences. Although the defendant had voluntarily F
disclosed his previous convictions, it is not evidence towards the
G G
defendant’s guilt, merely his credibility as a witness, if at all.
H H
96. I find the prosecution witnesses honest and reliable. I find that they
I I
have not been shaken under cross-examination.
J J
The notebook entries
K K
97. According to PW1, he had cautioned the defendant twice. The first
L time was while they were still in the corridor and when the drugs L
were found from inside the defendant’s underpants. In relation to
M M
this caution, the record that PW1 made was just that he had arrested
N the defendant for the offences of assaulting a police officer and N
trafficking in a dangerous drug. There was no mention in the record
O O
as to where the drug was found. For this, the defendant indicated he
P had nothing to say. P
Q Q
98. The second caution was administered after drugs were found inside
R the defendant’s room. In this record, PW1 had clearly recorded R
where the suspected drugs and the money were found, that is to say,
S S
“on a computer desk in your room”.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 24 -
A A
B 99. PW1’s explanation as to why there was no mention of finding the B
drugs from the defendant’s underpants is that the circumstances at
C C
that time did not allow him to do so, because he had to enter the flat
D to conduct a house search. D
E E
100. PW1 agreed that he did not serve a copy of this notebook entry
F
where the defendant had allegedly confessed to the witness. PW1 F
explained that it was his ‘usual practice’ that such a copy would not
G G
be given to the defendant. A copy of the post-recorded notebook
H
entry (“the second notebook”) was however given to the defendant. H
I I
101. In the second notebook, PW1 clearly sets out more details of the
J alleged assault and trafficking, specifically mentioning how the J
defendant had pushed Sergeant 58974 (PW3) against the wall and
K K
that the drugs were found in the defendant’s underwear.
L L
102. I find that it is understandable that PW1 would not write down the
M M
full details of the arrest while still in the corridor. As he said in
N evidence, it was a contemporaneous record of what the defendant N
had said under caution. I accept PW1’s explanation that he had later
O O
on in his post recorded notebook entry set out in details what was
P said in the corridor. P
Q 103. I find that PW1 is telling the truth when he said he had given the Q
notebook for the defendant to read and sign and that the defendant
R R
did sign both the signatures at page 117 and page 118 of the first
S S
notebook (P-14).
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 25 -
A A
B 104. According to the defendant, in relation to the 11 Chinese characters B
at page 117 of PW1’s first notebook, they were left blank when he
C C
read them. Yet this significant fact was never put to PW1.
D D
105. I also find it inherently improbable that the defendant had never
E E
read the notebook prior to giving evidence in court. It is his own
F
evidence that he had been given a copy of the notebook, which he F
had passed on to his legal representatives. If that is the case, it is
G G
incredible that the defendant himself did not read the contents of the
H
notebook before passing the notebook on to the lawyers. It is even H
more incredible that counsel preparing for trial would not show or
I I
refer the contents of the notebook to the defendant. I find that the
J defendant is not telling the truth when he said those Chinese J
characters were not there when he first read them at scene. I find
K K
that he is not telling the truth when he said that he did not say those
L things recorded in the notebook. L
M M
106. I find that the defendant did say the words as recorded by PW1 in
N his first notebook voluntarily. I find that it is an accurate record of N
what the defendant had said under caution after his arrests in the
O O
corridor and inside flat 409.
P P
The defendant’s version of facts inherently improbable
Q Q
107. I find the defendant’s version of how the police had brought him to
R the rear staircase to beat him up and frame him inherently R
improbable for the following reasons.
S S
T 108. According to evidence of all the prosecution witnesses, they were T
aware of the presence of Mr. Kwan the neighbour who had come
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 26 -
A A
B out from his flat to inquire about what was going on at the time. B
According to Mr. Kwan’s own evidence, he had called out to the
C C
defendant to ask him if he needed to call his father. This was when
D the defendant was still being pressed on the floor and was within D
earshot of the prosecution witnesses.
E E
F
109. If that was the case, the police must have heard this and be aware F
that Mr. Kwan was someone who cared about the well being of the
G G
defendant. They would also be aware that Mr. Kwan knew who the
H
defendant was and was familiar enough with the defendant’s father H
to know his phone number.
I I
J 110. Given these facts, I find it inherently improbable that the police J
officers would still choose to bring the defendant to the 4 th floor rear
K K
staircase to beat him up and frame him, taking a huge risk of Mr.
L Kwan being able to hear or see what was going on and reporting the L
matter to the police or the defendant’s father.
M M
111. Furthermore, it is not disputed that the defendant had the keys to
N N
the flat with him at the time and that the flat was empty. The police
O officers had a valid search warrant for the flat. Would it not be O
much easier, if the police officers were minded to frame the
P P
defendant, to simply bring the defendant into the flat, close the door
Q and then beat him up and frame him? Why take the risk of doing it Q
in the rear staircase at around 8 pm, when residents would be
R R
expected to be coming home or be home having dinner and likely to
S S
run into the police officers and hear any noises outside.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 27 -
A A
B 112. With the amount of drugs (154 g of powder containing 113.1g of B
ketamine) that the police are using to frame the defendant, and with
C C
an officer who had never lost a ‘dd’ case, it would be obvious to
D him that simply finding the drugs inside the defendant’s home D
would be enough evidence to bring a charge of trafficking in
E E
dangerous drugs against the defendant.
F F
113. I also find it inherently improbable that PW1 would fabricate the
G G
defendant’s confession in the way that he supposedly did.
H H
114. In relation to the drugs found on the defendant in the corridor, the
I I
defendant said he had nothing to say, which is his right and does not
J amount to a confession at all. J
K K
115. In relation to the drugs found on the computer desk inside the flat,
L the defendant’s confession was only as to its possession for L
self-consumption. The defendant did not confess to trafficking in
M M
the drugs.
N N
116. If they are fabrications, they are useless fabrications and PW1 has
O O
left a lot of room for the defendant to maneuver. Why would the
P police officers conspire to do so much against the defendant in P
order to accomplish so little?
Q Q
The defendant’s strong character
R R
117. It is the defendant’s evidence in the witness box that as soon as he
S S
was pressed on to the floor in the corridor by PW3 and the other
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 28 -
A A
B Police officers, he yelled out. The defendant was also able to call B
out to his friend Ah Chiu to use his phone to video the Police.
C C
118. It is also the defendant’s evidence that while he was still pressed
D D
down, he saw his neighbour Mr. Kwan and the defendant was able
E
to tell him to keep an eye on what was going on (Mr. Kwan’s E
F
evidence does not corroborate the defendant’s evidence on this F
particular point, which will be dealt with below).
G G
H
119. If the above evidence from the defendant is true, then it is proof H
that the defendant is someone who is not afraid to speak up even
I I
when under pressure. Yet, there is no evidence from the defendant
J that he had shouted out for help when he was assaulted by the Police J
officers in the rear staircase. I find that the only reason that the
K K
defendant did not say that he had shouted out about Police brutality
L is because it did not happen. L
M M
120. Furthermore, despite being beaten up by Police officers and told to
N confess, the defendant refused to do so. If true, this would also go to N
show that the defendant is someone of principle, able to remain
O O
sturdy despite Police abuse.
P P
No complaints
Q Q
121. I find it inherently improbable then that someone of the
R defendant’s age, experience and strong character would choose not R
to complain to the Duty Officer at the Police station about how he
S S
had been assaulted and framed by the police officers and PW3.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 29 -
A A
B 122. According to the defendant’s own evidence, he has 7 previous B
convictions. It was not the first time that he had been to a police
C C
station. It was not the first time that he had been arrested by the
D police. It was not the case of, say, a teenager being arrested for the D
first time and too scared to complain to anyone about police
E E
impropriety. I find that the only reason why the defendant did not
F complain to the Duty Officer about PW3 framing him and police F
officers assaulting him is because it never happened. The defendant
G G
had made it up in order to discredit the evidence of the police
H officers. H
I I
Failure to point out specific facts in cross-examination
J 123. I find that the defendant had failed to, through his counsel, put J
important facts to the prosecution witnesses.
K K
L 124. The defendant’s counsel did not point out in cross-examination of L
PW3 that the defendant had called out to Ah Chiu to take a video
M M
and then PW3 had went up to stop Ah Chiu from doing so. It was
N not pointed out to PW1 that the 11 Chinese characters on page 117 N
were not there when the notebook was shown to the defendant. It
O O
was not pointed out to PW1, PW2 or PW3 that while the defendant
P was still being pressed on the floor in the corridor, he had said to Mr. P
Kwan to keep an eye on what was going on.
Q Q
R R
125. I find the failure to put the relevant facts to the witnesses as one of
S
the bases for finding that the defendant is not an honest witness. S
T The defence witnesses T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 30 -
A A
B 126. In assessing the evidence of the defence witnesses I have first of all B
reminded myself that they are not independent witnesses. Mr.
C C
Kwan is a long time friend of the defendant’s father and they have
D been neighbours for some 20 years. Mr. Kwan watched the D
defendant grew up. Mr. Chan and the defendant went to school
E E
together and they have been friends for over 10 years. As such, I
F must be mindful of the possibility that they might not want to see F
the defendant in trouble.
G G
H 127. Having seen and heard Mr. Kwan and Mr. Chan, I find the version H
of fact as told by them inherently improbable.
I I
J 128. There is no reason whatsoever for the police officers to lie about J
the presence of Mr. Chan and Ah Ming, if they were really there. If
K K
the police are framing the defendant, and if Mr. Chan and Ah Ming
L L
were there, it would make no sense for the police to completely
M
erase their presence. It would have been much easier for the police M
to take down their particulars and then send them away before
N N
proceeding to assault and frame the defendant.
O O
129. Upon the basis that there was no reason for the police to lie about
P Mr. Chan and Ah Ming’s presence, there can be two explanations as P
to the absence of Mr. Chan and Ah Ming in the prosecution witness’
Q Q
evidence. Either Mr. Chan and Mr. Kwan are lying about Mr. Chan
R and Ah Ming’s presence, or PW1, PW2 and PW3 were not aware R
that Mr. Chan and Ah Ming were there.
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 31 -
A A
B 130. I find that it is unlikely that the police officers would not be aware B
of the presence of Chan and Ah Ming given the fact that the incident
C C
took place in the corridor on the 4th floor. The only irresistible
D inference is then that Mr. Kwan and Mr. Chan lied about the latter’s D
presence at scene that day, and I do so find.
E E
F
Discrepancies F
131. In relation to the evidence of Mr. Kwan, I note first of all that there
G G
was no mention in the defendant’s evidence that Mr. Kwan had
H asked the defendant if he needed him to call his father. If Mr. Kwan H
really did say that to the defendant then it would be highly unlikely
I I
that the defendant would not remember it. It would also be highly
J unlikely that the defendant would refuse Mr. Kwan’s offer, given J
that it is the defendant’s case that he was being apprehended by the
K K
Police for no reason at all. The defendant was also already aware
L that he was going to be ill treated by the Police and so had the L
presence of mind to tell his friend to video what was going on. The
M M
defendant was supposed to have asked Mr. Kwan to keep an eye on
N things. If that is the truth, then an offer from Mr. Kwan to call the N
defendant’s father must have been most welcome. Yet the
O O
defendant supposedly did not take up the offer.
P P
132. I also find it strange that Mr. Kwan would choose not to call the
Q Q
defendant’s father when the Police said there was no need to do so.
R Mr. Kwan has been a friend and neighbour of the defendant’s father R
for over 20 years. Mr. Kwan watched the defendant grew up. Mr.
S S
Kwan had no idea that the defendant has any drug related previous
T convictions. As far as Mr. Kwan was concerned, the defendant is T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 32 -
A A
B just a normal young man. Yet there the defendant was, being B
pressed on to the ground outside his own home by plainclothes
C C
Police officers. Any reasonable person in Mr. Kwan’s position
D would have made the call to the defendant’s father, no matter what D
the Police or the defendant said.
E E
F
133. Furthermore, Mr. Kwan said he had tapped the defendant’s head F
when he saw the defendant again later on when he was bringing the
G G
trash out. Yet, according to the defendant’s evidence, no such
H
tapping was mentioned. The defendant’s evidence was that when he H
saw Mr. Kwan taking out the trash, the defendant merely nodded to
I I
Mr. Kwan.
J J
134. Mr. Kwan was also wrong in his evidence about how PW3 sergeant
K K
had an injury on his leg, which Mr. Kwan was able to see because
L the sergeant had his pants rolled up. No injury to PW3’s leg was at L
all mentioned in the admitted facts. It was never put to PW3 that his
M M
leg was injured, or that he had shown his leg injury to the neighbour
N at scene. I find that the reason why Mr. Kwan got the place of the N
injury to PW3 wrong is because he is lying about the matter.
O O
P 135. Having considered very carefully the evidence of Mr. Kwan, I find P
that he is not a truthful witness and I refuse to accept his evidence. I
Q Q
also find that given the inherent improbability of his evidence, Mr.
R Chan is also not a truthful witness and I refuse to accept his R
evidence as to the attire of the defendant on the day as well as his
S S
presence.
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 33 -
A A
B 136. The burden is of course still on the prosecution to prove the B
elements of the offences, and given the contention put forward by
C C
the defendant, in particular the attire of the defendant on the day.
D D
137. I find that there is no reason why the police officers would have to
E E
make up the attire of the defendant to frame him. As I mentioned
F above, if the police officers were to frame the defendant, all that F
they have to do is to say that the drugs were found inside the flat, or
G G
that the drugs were being carried by the defendant, perhaps strapped
H on his waist by the shorts and covered by the white t-shirt that the H
defendant alleged he was wearing. There is no reason why the
I I
police would have to do what the defendant alleged them to have
J done in order to frame the defendant. J
K K
138. I find that the prosecution has proved beyond reasonable doubt that
L L
the defendant was found in possession of the transparent plastic bag
M
when he left flat 409. I find that the police officers did find from the M
computer desk of the defendant’s bedroom inside flat 409 another
N N
transparent plastic bag containing the additional dangerous drugs.
O O
Charge 1
P 139. I find that the prosecution has proved beyond reasonable doubt that P
PW3 was in the due execution of his duty when he assisted PW1
Q Q
and PW2’s interception of the defendant in the corridor. I find that
R R
the defendant did use both his hands to push PW3 on his chest area,
S
causing him to fall back against the wall behind him. I find that S
PW3 did suffer an abrasion to his left hand as a result of the
T T
defendant’s push.
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 34 -
A A
B B
140. I find that the defendant did assault PW3 and find the defendant
C C
guilty of charge 1.
D D
Charge 2
E E
141. I find that the defendant was in possession of exhibits P-1 and P-2,
F which contained a total of 154g of a powder containing 113.1g of F
ketamine, when he was intercepted and searched by PW1 in the
G G
corridor of 4th floor Shui Moon House. I find that given the quantity
H of drugs and the manner that the drugs were packaged and the fact H
that the defendant was leaving the flat with the drugs hidden inside
I I
his underpants, the only irresistible inference is that the defendant
J was in possession of the drugs for the purpose of trafficking. I find J
that the trafficking was unlawful.
K K
L 142. I convict the defendant of charge 2 accordingly. L
M M
Charge 3
N 143. I find that the defendant was in possession of exhibit P-3, which N
contained 11.7g of a powder containing 8.2g of ketamine, when it
O O
was found on the computer desk inside the defendant’s bedroom in
P flat 409. P
Q Q
144. I find however that given the fact that the defendant has 6 previous
R convictions for possession of dangerous drugs, the fact that the R
ketamine was found inside the defendant’s home, the fact that the
S S
defendant had left the drug behind in the flat after bringing with him
T the large amount of drugs that was inside his underpants and found T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V
- 35 -
A A
B to be for trafficking, and more importantly, the defendant’s B
confession to PW1 that the drugs on the computer desk were for his
C C
self-consumption, there is a real possibility that those drugs were
D for his own consumption. D
E E
145. I grant the benefit of the doubt to the defendant and find him not
F
guilty of trafficking in the drugs found on the computer desk. F
G G
Lesser offence
H 146. Given that the drugs were in fact found in the defendant’s bedroom H
I
and that the defendant had confessed to the possession of those I
drugs, pursuant to section 42(1) and Schedule 3 of the Dangerous
J J
Drugs Ordinance, I convict the defendant of the lesser offence of
K
possession of dangerous drug under section 8(1)(a) and (2) of the K
same Ordinance.
L L
M M
N N
(Douglas T.H .Yau)
District Judge
O O
P P
Q Q
R R
S S
T T
U U
CRT21/28.5.2015 DCCC70/2015/REASONS FOR VERDICT
V V