區域法院（刑事）Deputy District Judge A Yim3/4/2018[2018] HKDC 291
DCCC634/2017
A A
B B
DCCC 634/2017
C [2018] HKDC 291 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 634 OF 2017
F F
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HKSAR
H H
v
I LAM CHIU YIN I
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K Before: Deputy District Judge A Yim K
Date: 4 April 2018
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Present: Mr Paul Stephenson, Counsel on Fiat, for HKSAR/Director of
M Public Prosecution M
Mr David Khosa, instructed by Fu & Cheng, for the defendant
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Offences: [1] Trafficking in dangerous drugs（販運危險藥物）
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REASONS FOR VERDICT
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1. The defendant was charged with one count of trafficking in
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dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous
T Drugs Ordinance, Cap 134. T
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Prosecution case
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2. On 28 April 2017 police entered the defendant’s residence
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with search warrant after intercepted the defendant outside the premises.
E Upon entry, the defendant’s wife, 2 minor children and 3 adult relatives of E
the couples were inside the living room
F F
G 3. During the search, a paper box was found on top of a plastic G
cabinet inside the storage room of the premises. Inside the said paper box
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were:-
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(a) 6 plastic bags containing a total of 36.6 grammes of
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white crystalline solids containing 16.6 grammes of
K ketamine; K
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(b) 1 plastic bag containing 12.1 grammes of a white
M powder containing 2.47 grammes of ketamine; M
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(c) 1 plastic bag containing 1 plastic bag containing 2.78
O grammes of cannabis, in herbal form; O
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(d) 1 plastic bag containing 1 hand-rolled cigarette
Q containing 0.19 grammes of cannabis, in herbal form; Q
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(e) 1 electronic scale;
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(f) 1 plastic bag containing 381 nos. of transparent re-
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sealable plastic bags;
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C (g) 1 cigarette rolling machine; C
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(h) 3 boxes of cigarette papers; and
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(i) Cash HK$12,000
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G 4. Further, 5 mobile phones were found beside the said paper on G
the top of the plastic cabinet. The total market value of the ketamine and
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cannabis seized is estimated to be HK$11,342.
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5. Under caution, the defendant stated that the suspected
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dangerous drugs seized were ketamine and cannabis for his self-
K consumption, his wife knew nothing about it. K
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Defence case
M M
6. The drugs and other trafficking related exhibits alleged found
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inside the storeroom were not belonged to the defendant and he had no
O knowledge of such. The defendant’s sister-in-law and brother-in-law who O
had drug related conviction had exclusive use of that room.
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Q 7. The defendant did not make any confession at the scene, he Q
was pressurized to sign on the post record cautioned statement by threat
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and inducement.
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C Alternative procedure C
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8. The burden is on the prosecution to prove the special issue
E beyond all reasonable doubt, the defendant has no burden whatsoever. The E
defendant has a clear record; it is more likely that he was telling the truth.
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All the evidence should be considered as a whole in the light of the defence
G case and the defence submission. Where there is any reasonable doubt, the G
benefit should go to the defendant. It should be noted that when
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considering the special issue, I only had the defence evidence for the
I special issue. I
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9. PC 7792 gave evidence that on 28 April 2017 between 5 pm
K and 5:30 pm his team attended a briefing given by woman inspector Tai K
for a plain clothes anti-narcotic operation with a view to execute a search
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warrant of a target premises at Choi Uk Tsuen. He was provided with
M information of the suspected narcotic activities and the description of a M
named target person. He was instructed to lay an ambush at location
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outside the public toilet of Choi Uk Tsuen and conduct a surveillance there
O together with PC 9169. It was not disputed that the target person was the O
defendant.
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Q 10. PC 7792 gave evidence that at 7:38 pm he saw a male matched Q
the description of the target person moving towards him from the car park
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area and about 20 meters behind him were another two males. Believing
S the male at the front was the target person, he went up calling the name of S
the target person and stopped that man by holding his arm, once he came
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in contact with the man, the man reacted irrationally with agitated
C behaviour. PC 9169 gave similar evidence. C
D 11. PC 7792 gave evidence that outside the public toilet he D
suspected the defendant was involved in drug activities, he stopped the
E E
defendant, revealed his police identity and informed the defendant he was
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suspected of involving in dangerous drug activities. Time being two males
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(later known to be the defendant’s brother-in-law Ho and Lo) rushed G
forward and asked them what had happened. He also produced his warrant
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card and revealed his police identity to the two males. Very soon
I reinforcement came and put the other two males under control. I
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12. PC 7792 gave evidence that further down the alleyway of the
K public toilet, he asked the defendant for his identity card, the defendant K
gave his name and said he left it at home. And he took out the search
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warrant and explained it briefly to the defendant at time he requested to
M conduct a body search on him. PC 9169 said the reinforcement arrived M
after the search, but he did not mention the search warrant at this stage.
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Before the reinforcement arrived, PC 9169 was required to guard against
O the two brothers-in-law, the officer did not notice PC 7792 has taken out O
the search warrant under such circumstances is understandable.
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Q 13. The defendant said during the course both PC 7792 and Q
PC 9169 raised a baton while his brother-in-law Lo first said two officers
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then very quickly rectified and said only one officer raised a rod. The
S officers disagreed that they ever raised a baton against the defendant. The S
officers were to conduct a house search nearby, there was no reason for
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them to cause a commotion there to alert any person inside the premises, I
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considered and accept the officers’ evidence that they revealed their police
C identities at the earliest opportunity and were only using corresponding C
force to calm down the defendant and did not produce their batons.
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E 14. According to PC 7792’s evidence, initially the defendant put E
up a very fierce struggle, after they revealed their police identities he
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calmed down a bit, and upon further producing the search warrant, the
G defendant co-operated with him in the body search. I consider and find G
the defence has exaggeratedly the magnitude of the officers’ actions
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outside the public toilet.
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15. There was no dispute that PC 7792 searched and found certain
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items on the defendant. From the defendant’s left front trousers pocket,
K the officer found cash $2,200, a chain of 7 keys, a door key hold with a car K
key, while in his right front trousers pocket he found a white Samsung
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mobile phone and a black Sony mobile phone. The officer said after he
M found the said items he kept them temporarily during the investigation. M
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16. PC 7792 gave evidence that the defendant agreed to take the
O officers back home to get his identity card. Thus he accompanied the O
defendant all the way to the 122A Choi Uk Tsuen. The search warrant was
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produced and explained to the defendant again outside the ground floor
Q metal gate. The party gained entry to the building by using one of the seven Q
keys found on the defendant, and proceeded to the first floor. On the way
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up, the defendant said the wooden door of the first floor was unlocked and
S PC 9169 opened the wooden door for entry. S
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17. Section 54(2) of the Police Force Ordinance Cap 232 provides
C that if a police officer finds any person in any street whom he reasonably C
suspects of having committed or of being about to commit or of intending
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to commit any offence, it shall be lawful for the police officer:-
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(a) to stop the person for the purpose of demanding that he
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produces proof of his identity for inspection by the
G police officer; G
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(b) to detain the person for a reasonable period while the
I police officer enquires whether or not the person is I
suspected of having committed any offence at any time;
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K (c) to search the person for anything that is likely to be of K
value to the investigation of any offence that the person
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has committed, or is reasonably suspected of having
M committed or of being about to commit or of intending M
to commit; and
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O (d) to detain the person during such period as is reasonably O
required for the purpose of such a search.
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Q 18. PC 7792 was briefed for the operation and was in the belief Q
that the defendant was involved in activities related to dangerous drugs, the
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officer had reasonable grounds to detain the defendant for search and
S enquiry. But I have borne in mind that the fact that the officer had S
reasonable grounds to detain the defendant for investigation and search
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does not mean that the defendant had committed the crime suspected nor
C has any negative bearing on the defendant’s credibility. C
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19. Although the defendant had told the officer his name outside
E the public toilet, the defendant did not have his identity card with him, the E
identity card was placed at home which was a short distance from the
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public toilet, the officer was in possession of a search warrant to the
G defendant’s home, the officer was entitled to check his identity card, before G
he formally released and returned the items taken from the defendant.
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Further, the officer was to carry a house search to a premises which was
I believed in connection with dangerous drugs, the officer was entitled to try I
the keys taken from the defendant to gain entry into the premises.
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K 20. The interception/investigation downstairs and the house K
search were part and partial the same operation, once entered the premises,
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the items taken from the defendant downstairs became items covered by
M the search warrant whether they were with the defendant or with PC 7792. M
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21. Sister Ying gave evidence that Ho entered the premises before
O the arrival of the police, the evidence of the officers suggested otherwise. O
The officers were there to execute a search warrant, they did not know who
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was inside the premises, and did not want to alert any person to dispose of
Q any illicit items therein. They have taken the particulars of Ho downstairs Q
and Ho has learnt their police identity why would the police let Ho to get
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in before them.
S S
22. It is noted that when Ying gave her statement at 20:05 pm
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inside the premises, she said “around 7:30 pm Ho shouting loudly at the
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balcony that the defendant was being stopped by a few males near the toilet
C and asked us went to the balcony to take a look.” However, she testified C
that Ho returned a few minutes before the arrival of the police and told
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them the defendant being hit by someone downstairs, and the wife went
E out to the balcony to take a look. It is noted that Ho was also stopped and E
had his personal particulars taken downstairs, he should have learnt the
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people downstairs were police officers by the time he returned to the
G premises. G
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23. Around 7:30 pm Ho was downstairs shouting, Ying might
I have heard Ho shouting down the balcony but I considered and reject her I
evidence that Ho returned before the arrival of the police. I considered and
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find Ying had attempted to tailor her evidence to fit in the defence case and
K was not a credible witness. K
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24. Ying gave evidence that the police entered the premises with
M
the defendant. The defendant was taken to his bedroom and she asked the M
police what had happened to the defendant, she was told the defendant was
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trafficking in dangerous drug, police started to search the house and
O enquire their identity. She asked for the search warrant and was told the O
defendant was showed the search warrant downstairs. Upon her request,
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an officer showed her the search warrant and she passed it to the wife.
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25. PC 7792, on the other hand, gave evidence that the search
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warrant was explained to the defendant when they were at the main
S
entrance of the building concerned because it was only briefly showed to S
him inside the alleyway of the public toilet. Upon entry of the premises,
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he showed the search warrant to all inside and told them it was suspected
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that the premises were involved in dangerous drug activities and they
C would carry out a house search. I considered and accept the officer’s C
evidence that the search warrant was showed and explained to the
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defendant and all inside the premises as he testified.
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26. According to the defence case, all the relatives were inside the
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living room when the search commenced, and the defendant was told once
G dangerous drug was found; this suggested that the police was not worried G
that those inside the premises oversaw the search and the police wanted the
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defendant to know the result of the search. There was simply no reason for
I the police to keep the defendant inside storeroom 2 as alleged in the I
defence case.
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K 27. It was the evidence of the officers that the couples were K
together during the search, the couples were arrested in the middle of the
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search upon discovery of the suspected dangerous drugs, the paraphernalia
M and the cash and upon caution they made a response respectively. Whereas M
the defence case put to the officers was that the defendant was kept inside
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the storeroom 2 and the wife was breastfeeding her baby inside the
O bedroom during the search, the alleged admission of the defendant was O
partially written down and partially dictated by the officer; the defendant
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was subject to threat and inducement, and he signed under influence of
Q threat and inducement. Q
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28. The defendant testified that when certain items of dangerous
S drugs and money were found he was informed by a police officer while he S
was kept inside storeroom 2. When he was first told dangerous drug(s)
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was found in storeroom 1, he told PC 7792 right the way that the dangerous
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drug(s) was not his, storeroom 1 was not used by them but by the wife’s
C sister and her husband. However, his clarification was ignored. He was C
further notified later that cannabis and cash were found. When he was told
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all insider of the premises would be arrested for the dangerous drugs found
E unless he admitted it, he reiterated that the dangerous drugs were not his. E
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29. The defendant further testified that when the notebook was
G
showed to him for him to complete his admission and for his signature, he G
was told that his family would not be arrested, his wife would be released
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after a couple of bail and his likely sentence was 9 months to a year. It
I took him some time to consider before he wrote down the admission and I
signed on the notebook under influence of threat and inducement.
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K 30. According to the defendant’s evidence, it was the PC 7792 K
who put down “the dangerous drug was “K Chai” and cannabis” on the
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notebook and asked him to write down it was for his own consumption etc.
M The officers were there to investigation a case of trafficking in dangerous M
drugs, suspected paraphernalia and drug proceeds were found but
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according to the defendant’s evidence he was not told to admit any of those
O items. Further, apart from what allegedly had been written on the notebook, O
it was also the defendant’s evidence that the officers did not mention
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suspected “K Chai” was found, the white crystalline solids and the white
Q powder were along referred as suspected dangerous drug by the officers Q
inside the premises.
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S 31. According to the defendant’s evidence, the encounter with the S
police downstairs did not prevent him from putting his explanation to the
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officers, however, he admitted the dangerous drugs were for his own
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consumption, without even seeing and learning the quantity involved. I
C considered and find the defendant’s evidence unbelievable. C
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32. The defendant further gave evidence that after he signed the
E notebook, PC 7792 and PC 9169 took turns to guard him inside the E
storeroom 2. While inside the room with him, PC 9169 chatted with him,
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showed his baby’s photo to him and told him his baby had eczema.
G PC 9169 agreed that his baby was suffering eczema but disagreed that he G
shared this information with the defendant. All of the officers had their
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respective duties that night, PC 9169 would not be free to chat with the
I defendant. I consider and refused the defendant’s evidence. The defendant I
might have learnt the information in some other circumstances but I do not
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consider this would affect the credibility of PC 9169.
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33. The defendant gave evidence that having waited for long
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inside the storeroom 2, he asked PC 9169 if his elder sisters could be
M allowed to leave, PC 9169 went out to ask the inspector and returned to tell M
him to ask his elder sisters to leave. The defendant said he then went
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outside to ask his elder sisters to leave, there and then he saw Ng Choi Ha,
O his wife’s sister who also known as “Van”, cradling his baby. The O
defendant said initially Ying refused to leave, after he ensured her that he
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would be safe, his sister Ying then left and he returned to storeroom 2 with
Q PC 9169. Q
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34. The defendant said he kept on waiting inside the room with
S PC 9169 and Van entered the room and gave his baby to him and his wife S
also came in to have a few words with me. His wife asked why he signed
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on the notebook and made an admission; he told his wife “if I did not sign,
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all of you would then be arrested. I have no choice but to sign it”. Then
C PC 9169 said the air inside the room was not good and told him to take the C
baby out to the living room and waited for the police Dog Unit. The
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defendant also supplemented and said while he was inside the room, his
E wife did bring a meal box to him but took it out after he indicated he did E
not want to eat. If the wife only learnt the defendant’s admission at a later
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stage, it would be natural for her to ask the defendant for the reason at her
G first opportunity as the defendant’s evidence suggested, however, this was G
not the wife’s evidence.
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I 35. According to Lo Tsz Hei’s evidence, sometime after 8 pm I
Uncle Ho requested some meal boxes, he therefore bought 2 to 3 meal
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boxes back and passed them to 2 officers downstairs. Later around
K 9:30 pm Uncle Ho phoned and requested him to get medicine for Aunt K
Ying and reminded him to come back before 10:30 pm. Thus he drove
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over to Tin Yat Estate to get the medicine back for Aunt Ying. The request
M from Ho suggested that the time was tight but Lo Tsz Hei did not tell what M
time he returned with the medicine. Lo Tsz Hei said on his return he saw
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the wife at the balcony with an officer and when he went up and passed the
O medicine to an officer, Van was inside the premises. O
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36. According to the wife after breastfeeding the baby for about
Q an hour, she went out and saw a meal box on the table, she then took it to Q
the defendant while the other relatives were eating at the living room. The
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defendant refused to eat and she took the meal box out and walked out to
S the balcony. An officer followed her to the balcony, she asked and the S
officer offered her a menthol cigarette. The officer told her dangerous
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drugs were found inside her premises and the defendant had made an
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admission, she and the officer had a brief conversation at the balcony
C before she returned to the living room. Yet the wife could not recall who C
that officer was.
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37. The wife said she first learnt the discovery of dangerous drugs
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when she was at the balcony with an officer. According to the wife she
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asked Van came up to look after her children because she knew all would
G
be taken to police station. Van gave evidence that she called the wife at G
21:14:36 and 21:15:24 both calls lasted for 1 minute or less. In the first
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call the wife already informed her that dangerous drugs were found inside
I the storeroom used by her and her husband. That would be impossible to I
reconcile with Mr Lo Tsz Hei’s observation that the wife was outside the
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balcony on his return with the medicine and there was no mention that the
K wife at the balcony before he left around 9:30 pm for the medicine. I K
considered and reject the wife’s evidence as to how she learnt the discovery
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of the dangerous drugs and the alleged conversation she had with an officer
M at the balcony. M
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38. Further, it was not clear from the wife’s evidence when she
O was made to sign on the notebook to confirm her arrest and response upon O
caution. But the wife confirmed during her evidence in chief that she did
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not have any conversation with the defendant when she brought the meal
Q box to the defendant. And when being asked by Mr Khosa whether she Q
entered the storeroom 2 again, she took a long pause and said it seemed
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that she did not, and she said “no” when she was further asked by Mr Khosa
S did she at any time asked the defendant about his admission. The wife’s S
evidence was in direct conflict with the defendant in this material respect.
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SGT 160 confirmed he smoked menthol cigarette but the sergeant
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disagreed that he offered the wife a cigarette at the balcony and had no
C recollection that he told the wife dangerous drug(s) was found from C
storeroom 1.
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39. The house search completed at around 9:30 pm, time being
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the defendant and the wife had been arrested. Van might have called the
F F
wife around 9:14 pm but the wife could not have answered the calls, these
G
calls probably picked up by other relatives inside the premises. According G
to WIP Tai’s evidence because the defendant and the wife would be taken
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back to the police station, for the welfare of the child and baby at the
I premises, the wife was asked to arrange a relative to take care the children I
and Van was allowed to enter the premises to take care the children.
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40. Van gave evidence that she had 2 calls with the wife at
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9:14 pm and 9:15 pm before she went inside the premises around 9:15 pm
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to 9:20 pm. The wife gave similar evidence. However, the call records
M
showed that the wife’s phone was used to make a call to Van at 10:04 pm, M
this suggested that Van was not inside the premises before 10:04 pm and
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casted doubt on their evidence about the 2 calls around 9:15 pm and I have
O reservation that the wife had direct phone conversation with Van over the O
children arrangement. Further, Mr Lo Tsz Hei did not mention seeing Van
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upon his first arrival at the scene nor when he returned with the meal boxes,
Q his first mention of Van was when he went up to the premises after he left Q
the scene again and returned with Ying’s medicine. I consider and rejected
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the evidence of wife and Van that they had any direct telephone
S conversation. I do not consider the call records produced by the defence S
cast any doubt on the prosecution case. I shall refer to this part of the
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evidence when I deal with the general issue later.
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C 41. Both the defendant and the wife said they told the officers at C
the premises that storeroom 1 was used by the wife’s sister Van and her
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husband for storage and they had no knowledge of the dangerous drug(s)
E found inside storeroom 1. Further Van also gave evidence that while she E
was inside the premises she told an officer coming out from storeroom 1
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that the room was used by her and her husband and that her husband had
G dangerous drugs conviction and she even attempted to call her husband to G
check if the dangerous drugs belonged to him. All the three said the
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officers ignored them when they tried to explain the usage of storeroom 1.
I All the officers disagreed they were ever told the storeroom 1 was used by I
Van and her husband at the scene. I consider and accept the officers’
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evidence that they were never told the storeroom 1 was used by Van and
K her husband. K
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42. Everyone inside the premises had given a witness statement
M upon request. SGT 160 gave evidence that Van refused to give a statement M
upon request, saying that she needed to take care the baby and the child.
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According to Van’s evidence she knew her sister and brother-in-law (the
O defendant) had nothing to do with the items found and she even offered to O
call her husband to clarify the situation, but there was no mention that the
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items inside storeroom 1 was belonged to her or her husband in her first
Q statement given on 14 June 2017. Van tried to explain she did not mention Q
it because she was worried and scared. If things did happen as Van said,
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she could have simply repeated what she had said inside the premises. I
S considered and find Van to be an incredible witness and reject her evidence S
that she had told an officer that storeroom 1 was used exclusively by her
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and her husband at the scene.
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43. There was no dispute about the identity of the persons inside
C C
the premises and that the police had confirmed the defendant and his wife
D were the occupants while the relatives were visitors. Further, there was no D
dispute that the police had asked which one was the defendant’s bedroom.
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PC 6780 was assigned to be the exhibit officer and he was required to draw
F F
a sketch of the premises upon the completion of the search. PC 6780 gave
G
evidence that he did ask the defendant about the usage of the storeroom 1 G
and was told it was for placing miscellaneous items before he started to
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search the room, but he did not make a record of that on his notebook,
I because it was only for his memory. The officer referred both storerooms I
as storeroom on his sketch (Exhibit P54(1)). I considered and accept the
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officer’s explanation.
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44. There is no dispute that $12,000 cash was found, but the
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defence said it was not discovered in the way the officers testified by
M referring to the discrepancies of the officer’s evidence. The evidence of M
WIP Tai suggested that she did not check her watch when she made the
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2033 notebook entry at the scene but took the time provided by the PC
O 6780 of the discovery of the seized exhibits as the real time when she O
started making the record. The real time that she learnt the discovery at
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2033 from the officer must be sometime after 2033.
Q Q
45. WIP Tai further gave evidence that after she learnt the
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discovery of the exhibits, she instructed SGT 58722 to ask PC 6780 to
S count the amount of the cash after the search. According to the WIP Tai’s S
evidence the amount of cash was confirmed sometime after the arrest of
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the defendant and his wife.
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C 46. According to SGT 58722’s evidence when he made his C
notebook entry at 2035, he did enter and take a look of the items found and
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learnt the arrest of the defendant inside storeroom 1. Further, SGT 58722
E gave evidence that he did return to the doorway of storeroom 1 and E
reminded PC 6780 to count the money found, he then returned to the living
F F
room. After the entire search on the premises had completed, he left the
G premises with WIP Tai and SGT 160 to discuss the further investigation G
and they returned the premises after the discussion.
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I 47. According to WIP Tai’s evidence, as far as she recalled, the I
figure of $12,000 cash was given and written down by her after completion
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of the room search and the handling of the exhibits seized but she did not
K remember when she was told the figure. WIP Tai gave evidence that this K
happened when she was a bit inside the corridor and PC 6780 was by the
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side of the doorway of storeroom 1. PC 6780 on the other hand gave
M evidence that he only counted the cash when he dealt with the exhibits at M
the living room upon completion of the house search, but he did move from
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room to room to draw the sketch of the premises.
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48. Many things had happened that night, but WIP Tai only made
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very brief entry on her notebook, she mainly relied on her memory as to
Q what had happened. PC 6780 was the one who was responsible to handle Q
the exhibits, I considered and find PC 6780 had a better memory of things
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related to the exhibits, and that the WIP has mistaken the stage of which
S she was told the amount of the cash found did not cast any doubt on the S
evidence of PC 6780.
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49. WIP Tai gave evidence that she instructed PC 7792 and PC
C 9169 to arrest the defendant and his wife when she was at the doorway that C
shown on Photo 6 of the photo album Exhibit P64 while the officers were
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at the entrance of storeroom 1 (the first room on the left) depicted on Photo
E 10. Time being the two officers were focusing on the items discovered by E
PC 6780 and their duties as arresting officers. Three pack of cigarette
F F
paper were found, two of which were of the brand name “ZIG-ZAG” but
G they all looked similar, and the officer mistook all were of the same brand G
name. I considered and accept the officers’ explanation and do not
H H
consider this would affect their credibility.
I I
50. PC 7792 gave evidence that he made simultaneous record of
J J
the arrest at storeroom 1, he held the notebook in his hand to do the writing,
K he recorded down what he said to the defendant while he did the talking K
and he wrote down what the defendant said under caution immediately and
L L
got the defendant to sign to confirm. PC 9169 and PC 6780 gave similar
M evidence except PC 6780 said PC 7792 did the notebook record at the M
position of the table, referring to the table corner in Photo 11 of Exhibit
N N
P64. PC 6780 went on to say PC 7792 wrote on that table when being
O asked if PC 7792 used the table to write. Photo 13 give a better view of O
the table, there were a number of odd items on top of the table, further it
P P
was a table for young child. While PC 7792 was doing the recording of
Q the arrest, PC 6780 was seizing the exhibits, both officers were focusing Q
on their own work, I considered and find PC 6780 has mistaken how PC
R R
7792 made the notebook record at the material time.
S S
51. It is noted that all the exhibits discovered by PC 6780 were
T T
seized by the officer inside storeroom 1, all were within the sight of the
U U
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A A
B B
PC 7792, and it would not be difficult for him to relate the exhibits one by
C one during the arrest of the defendant at storeroom 1. C
D 52. PC 9169 gave evidence that he arrested the wife at the same D
time but the wife appeared to be weak after giving birth to a baby in less
E E
than 2 weeks, and he gave a chair for her to rest during the course of the
F F
arrest. The officer admitted he had mistakenly put down the time of the
G
discovery as the time of the arrest on his notebook but he had clarified the G
mistake in the post record cautioned statement with the wife (MFI 3). I
H H
considered and accept the evidence of the officer. Giving the condition of
I the wife, PC 9169 only made a brief record of the arrest and her exculpatory I
statement at storeroom 1, and did not get the wife to sign right after the
J J
record is understandable, and I do not consider this would cast any doubt
K on PC 7792’s evidence. K
L L
53. Further, the defence case put to PC 7792 was that after he
M
exerted threat and inducement on the defendant, he showed his notebook, M
with the alleged admission written on it, to the defendant for his signature,
N N
the officer disagreed and reiterated that the defendant volunteered the
O admission under caution and he made a record of it. However, when the O
defendant gave evidence, he said the admission, after the word(s) cannabis,
P P
was dictated to him by the officer and the subsequent declaration was also
Q copied as directed under the influence of the threat and inducement (the Q
defendant had highlighted the part of the admission written by him on
R R
Exhibit D3).
S S
54. According to the defendant he was not showed the dangerous
T T
drugs, he was not read the preceding entry, he was prepared to admit the
U U
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A A
B B
unknown quantity of dangerous drugs when he signed on the notebook to
C confirm the admission. I considered and find the defendant’s evidence C
unbelievable. I considered and accept the evidence of PC 7792 and find
D D
the incident happened as he testified and shown in the officer’s notebook
E Exhibit P35 and the Pol 153 (Exhibit P34), and acknowledgement Exhibit E
P34(a).
F F
G 55. I have carefully considered the evidence and the submissions G
that have been made and I am satisfied beyond all reasonable doubt that
H H
the statement was made voluntarily. I did not consider that this is a case
I where I should exercise any general discretion to exclude the statement on I
the grounds of unfairness. The exhibits were admitted into evidence
J J
accordingly.
K K
Findings
L L
M 56. I have reminded myself of the burden and standard of proof. M
It is for the prosecution to prove the defendant’s guilt on each and every
N N
element of the charge beyond all reasonable doubt. The defendant has no
O burden of proof whatsoever. The defendant has a clear record, it was less O
likely that he would commit a crime and more likely that he was telling the
P P
truth. All the evidence should be considered as a whole in the light of the
Q defence case and the defence submission. Where there is any reasonable Q
doubt, the benefit should go to the defendant.
R R
S 57. The information received by the police that the defendant S
trafficked drugs in the vicinity of the public toilet at around 8 pm every
T T
night was only admitted to complete the story and to show why the police
U U
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A A
B B
took action that evening, and not to prove the truth of it. There was no
C direct evidence of trafficking in the present case. C
D D
(a) Trafficking?
E E
58. The dangerous drug, paraphernalia and the money were found
F F
inside a storeroom, and were placed inside a paper box containing
G miscellaneous items. There was no evidence as to the condition of the G
electronic scale at time of the seizure, but the electronic scale was found
H H
not in working condition on the day of final submission. The chain of
I evidence from seizure was admitted, i.e. at all material times the exhibits I
were under the control of the police. Favourable inference must be drawn
J J
for the defendant; it can only be presumed that the scale was not working
K at the time of the seizure. K
L L
59. Further, there was no evidence that what exactly were inside
M the said paper box, it was the evidence of PC 6780 that the miscellaneous M
items inside the paper box were not relevant without elaboration. Again
N N
favourable inference must be drawn for the defendant; it can only be
O presumed that the miscellaneous items inside the paper box were not O
belonged to the defendant.
P P
Q 60. It was the prosecution case that the premises were occupied Q
by the defendant and his wife therefore they were arranged to witness the
R R
house search. At time of the arrest, the defendant was referred to all the
S exhibits found at 20:33 hours, namely the suspected dangerous drugs, large S
amount of re-sealable transparent plastic bags (of various size), electronic
T T
scale, cigarette rolling machine, cigarette paper and a pile of cash; but the
U U
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A A
B B
defendant’s admission was only that “the dangerous drugs “K Chai” and
C cannabis are for my own consumption”. The defendant made no admission C
as to the rest of the items seized. The items were not packed together but
D D
at different places inside the paper box. And there was evidence from the
E defence that the in-law would have access to the storeroom 1. That the E
other items seized from the box were also belonged to the defendant is not
F F
the only inference in the present case.
G G
61. The 5 old mobile phones found inside storeroom 1 did not go
H H
with any sim cards, this was consistent with the defendant’s explanation
I that all were in working condition and he kept them as spare phones. I
J J
62. For the reason mentioned above, I agreed with Mr Khosa that
K there was only evidence of possession in the present case. That the urine K
test conducted upon admission to Lai Chi Kok Reception Centre on 2 May
L L
2017 was negative, was only evidence that 3 days after his arrest there was
M no drug found in his urine, and a possible indication that the defendant was M
not a heavy taker. Even full weight is to be given to the defendant’s
N N
admission, without further evidence, simply base on the quantity of the
O Ketamine and herbal cannabis, evidence in the present case does not O
support a case of trafficking beyond all reasonable doubt.
P P
Q Q
(b) Possession
R R
63. It was the defence case that the admission of the defendant
S S
was unreliable and reiterated that it was made under threat and inducement
T
from the police. According to the defendant’s evidence he had no T
knowledge of the items seized from the paper box and he never took
U U
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A A
B B
dangerous drug. He only admitted possession of the dangerous drug to get
C his wife and sisters out of the matter. C
D 64. In his final submission, Mr Khosa reiterated his comment on D
the credibility of the officers and said PC 7792 could not even remember
E E
whether he had a baton with him when he stopped the defendant outside
F F
the public toilet. The officer gave evidence that he helped to get the batons
G
ready for the operation but he could not remember how many of them got G
the baton. Later it was put to him that “when you first saw the defendant
H H
both you and PC 9169 each got a baton” and it was against this statement
I that the officer said he could not remember. It was the defence case that I
both PC 7792 and PC 9169 raised their baton when they tried to subdue the
J J
defendant. The officers disagreed, the defendant gave evidence that both
K raised their baton while Lo said only one raised a baton. I considered and K
accepted the officers’ evidence.
L L
M
65. Mr Khosa also submitted that the drugs were allegedly found M
by PC 6780 at 8:33 pm, and it did not make sense that the police team
N N
commenced taking witness statements from Ying and Ho at 8:05 pm and
O 8:15 pm respectively. According to the officers, the search was expected O
to take some time, people inside were yet to have their dinner, the officers
P P
made use of the waiting time to take witness statements from the relatives
Q shortly after the commencement of the search was understandable. I Q
considered and accept the officers’ explanation and the decision to take
R R
witness statements from the relatives before the discovery of the dangerous
S drugs did not cast any doubt on the prosecution case. S
T T
U U
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A A
B B
66. Mr Khosa also made comment as to the lack of record of the
C arrival time of Van. The defence tried to prove Van’s arrival time with C
reference to her mobile calls record. The wife clarified in her evidence for
D D
the general issue that her outgoing phone calls record at 10:04 pm was an
E inadvertent one, as far as she was aware Van did not answer that call. Van E
also gave evidence that she did not answer the incoming call at 9:56 pm
F F
and 10:04 pm. It is noted that the duration of the calls at 9:14 pm, 9:15 pm,
G 9:56 pm and 10:04 pm were all recorded as 1 minute. Thus according to G
the evidence of the wife and Van, phone calls that last for 1 minute might
H H
not have been answered at all. I considered and reject the evidence of the
I wife and Van that they had any direct telephone conversation as alleged. I I
do not consider the call records produced by the defence casted any doubt
J J
on the prosecution case.
K K
67. Mr. Lo Tsz Hei clarified when he gave evidence for the
L L
general issue that the time he first noticed the presence of Auntie Van was
M about 15 minutes after he passed the meal boxes to the officers, Auntie Van M
was on the ramp outside the public toilet at that time. And about 5 minutes
N N
later he saw Auntie Van went up to the premises. The premises concerned
O was on the first floor of the house, as Lo Tsz Hei was outside on the ground, O
the best he could tell would be Van had entered the house.
P P
Q 68. Lo Tsz Hei’s evidence was not challenged. According to Lo Q
Tsz Hei’s evidence, when he went up to the flat with the medicine, he saw
R R
his mother had the baby in her arms and people inside were holding their
S clothes. After he passed the medicine to an officer, he went down and left S
with his father after waiting for about 15 minutes. However, Lo Tsz Hei
T T
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A A
B B
was not asked whether his mother also left with him at the same time, I do
C not consider his evidence casted any doubt on the prosecution case. C
D 69. Ying was not a suspect at that time, after the completion of D
the house search and her witness statement, her presence was not required.
E E
Ying knew she needed to take medicine, it would take her less than 30
F
minutes’ drive to home, she could have left and took her medicine home. F
G
Ho did not request for Ying’s medicine at the time he asked the in-law to G
get them meal boxes, this suggested Ying’s medicine was not an issue at
H H
that stage and Ying only decided to stay further at a later stage.
I I
70. All of the relatives inside the flat were not required to stay
J behind and they did leave at the end. Van was allowed to enter the premises J
to take care the children because the defendant and the wife were to be
K K
arrested and be taken back to police station. I do not consider that the
L L
officers failed to recall the actual arrival time of Van would cast any doubt
M
on the prosecution case. M
N 71. PC 9169 gave evidence that the post record of the wife’s N
cautioned statement commenced at 21:32 hours at the scene. The legal
O O
representative of the defendant and wife was already waiting at the police
P station upon their arrival, and both of them exercised their right of silence P
since then. The wife made an exculpatory statement under caution at the
Q Q
scene, there was simply no reason for the officer to forge the time of the
R R
post record. Further, the officer explained that if the post record was done
S
at the police station he would have obtained a file number for the matter by S
then. I considered and accept the evidence of the officer.
T T
U U
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A A
B B
72. PC 9169 also gave evidence that after the completion of the
C post record, the wife was allowed to move around to check her baby. C
WPC 18754 accompanied the wife to breastfeed the baby inside the
D D
bedroom, and they stayed inside the room for about half an hour while he
E was waiting outside. He did not make record of the breastfeeding and E
every movement of the wife but he kept looking on her. I considered and
F F
accept the evidence of the officer.
G G
73. Lo Tsz Hei gave evidence that he saw the wife at the balcony
H H
when he returned with the medicine. The request from Ho for Ying’s
I medicine was made some time after Lo Tsz Hei passed the meal boxes to I
the officers. The fact that Ho emphasised to Lo Tsz Hei that the medicine
J J
was required by 10:30 pm suggested the time was tight. Lo Tsz Hei said it
K took 30 to 45 minutes for a round trip returning with the medicine. K
However, there was no evidence as to the actual time of Lo Tsz Hei
L L
returned with the medicine. I do not consider the evidence of Lo Tsz Hei
M casted any doubt on the prosecution case. M
N N
74. For the reason mentioned above I considered and accept the
O officers’ evidence as to the search, arrest and caution of the defendant. I O
considered and find the defendant was not subject to any threat,
P P
inducement or pressure from the police as he alleged and the admission
Q was given by him voluntarily under caution. Q
R R
75. In considering the appropriate weight to be attached to the
S
admission, I have to consider the evidence as a whole. The defendant in S
his early 40s had a clear record, considered by the village head to be a man
T T
of positive good character, working at a restaurant which he had a share,
U U
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A A
B B
married with two young children. On the day in question, the defendant’s
C wife had just given birth to their new born baby twelve days ago and C
observed by PC 9169 to be in a weak condition.
D D
76. The defendant knew the police came with a search warrant to
E E
search for dangerous drug at his home. Apart from his wife, his sisters
F F
were also inside the premises upon entry, however, only the occupants,
G
namely the defendant and his wife were arranged to witness the search. It G
was simply clear to the defendant that they being the occupants were taken
H H
as the persons in charge and responsible for the premises.
I I
77. The wife gave evidence that the door of storeroom 1 was
J never locked. During the 12 days after the baby was born, her sister Van J
had come to the flat every day to look after her and the baby. Van visited
K K
the flat more often than her husband. Van gave evidence that storeroom 1
L L
was reserved for her family exclusive use after they moved out in 2014.
M
She knew about the paper box in question, but she had no knowledge about M
the items seized from the box. She and her husband had keys to the flat.
N N
She believed the items were belonged to her husband yet her husband never
O admitted those items belonged to him. Van might think her family had O
exclusive use of the storeroom but there was nothing to stop the defendant
P P
to have access into the storeroom 1. I do not consider the evidence of the
Q wife and Van casted any doubt on the prosecution case. Q
R
78. Packets of ‘Pampers’ for the new born baby were placed at R
S
various places inside Storeroom 1, further the 5 mobile phones belonged S
to the defendant were found inside Storeroom 1. I considered and reject
T T
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A A
B B
any evidence that Storeroom 1 was being used exclusively by Van and her
C family. C
D 79. The defence at one stage suggested that the officers were D
entering the premises for a case of possession of dangerous drugs.
E E
However according to the wife and Ying, inside the premises an officer
F F
told them the defendant was suspected of trafficking in dangerous drug and
G
the police was there to carry out a house search with a search warrant. G
H 80. In the presence of the defendant and his wife, dangerous drugs H
were found, the first one being six resealable transparent plastic bags which
I I
contained white powders as per admitted facts Exhibit P62 (while PC 7792,
J PC 9169, and PC 6780 described it to be white crystalline solids in their J
evidence, this exhibit is depicted in Photo 18 of Exhibit P64), the next one
K K
being one resealable transparent plastic bag containing some white powder.
L L
These two items were described as suspected dangerous drugs by the
M
officers at the scene. It is clear from the officers’ evidence that they have M
never referred the white crystalline solids or the white powder as “K Chai”
N N
at the scene, the drug was only examined and confirmed to be Ketamine at
O a later stage. O
P 81. Likewise, according to the officer’s evidence the other P
suspected dangerous drug found was described at the scene as brown herbal
Q Q
lump-like object or brown grass-like substance or brown substance in
R R
herbal form, the item was examined and confirmed to be cannabis in herbal
S
form at a later stage. S
T 82. According to the defendant’s evidence when he was kept T
inside storeroom 2, he was told by PC 9169 that dangerous drug (without
U U
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A A
B B
specifying what type of drug) was found next door and then told by another
C officer that cannabis was found next door. And he was induced and C
pressurized to admit the dangerous drugs found. However, it is noted that
D D
the defendant said under caution “the dangerous drugs “K Chai” and
E cannabis are for my own consumption.” If the drugs were not belonged to E
the defendant how was he able to tell they were “K Chai” and cannabis at
F F
the material time?
G G
83. When the defendant was asked specifically by his counsel
H H
whether PC 9169 showed him any drug or just orally told him that drugs
I were found while he was with PC 7792 inside storeroom 2, the defendant I
only replied he was told by the officer. When being asked by his counsel
J J
whether at the time he was told to write down the passage (later clarified
K by the defendant being the admission highlighted by him as per Exhibit D3) K
whether he was read the preceding entry, the defendant only said PC 7792
L L
told him “now write down it is for your own consumption”, the drugs were
M “K Chai” and cannabis were written down by the officer. But how was it M
possible for the police to be certain at the material time that both of the
N N
white crystalline solids and the white powder were ketamine? According
O to PC 7792 the statement as a whole was an accurate record made by him O
of what the defendant said under caution.
P P
Q 84. After the house search, the cautioned statement was read to Q
the defendant, then he was allowed to read and make alteration to the
R R
statement. The defendant signed to confirm his admission was accurately
S recorded. I considered and find the admission was given by the defendant S
orally and recorded down by the officer accurately.
T T
U U
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A A
B B
85. The defendant and his wife were arrested at the same time
C after the dangerous drugs were found. It was simply clear to the defendant C
that he and his wife were both suspected for trafficking in dangerous drugs.
D D
It was not disputed that the wife did not have knowledge of the dangerous
E drugs. I considered and find the defendant made the admission under E
caution voluntarily at the scene because he was the owner of the dangerous
F F
drugs and he wanted to tell the police that his wife had nothing to do with
G the drugs. I considered and give full weight to the defendant’s admission. G
H H
Conclusion
I I
86. It is observed that not all matters were recorded in the officers’
J J
notebooks. I agreed with Mr Stephenson that the records complained of
K are generally in the nature of memory aides and are not for the purpose of K
being a chronicle of every last event that happened during a particular
L L
operation. I considered and accept the evidence and explanation of the
M respective officers as to their inadvertent mistakes or lack of record in their M
respective notebooks, I do not consider this would affect their creditability.
N N
O 87. The focus of the officers was on their respective duties during O
and related to the house search, the officers invariably resorted to their
P P
memory for matters beyond this. Discrepancies in the officers’ evidence
Q concerned matters not directly related to the house search, for example, the Q
sitting arrangement of the defendant’s sisters upon entry, the arrival of Ho
R R
Sik, the arrangement of dinner, the request and arrival of medicine of Lam
S Suet Ying, the arrangement and arrival of Ng Choi Ha, and details of S
individual officers’ action or movement etc. is understandable. I do not
T T
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A A
B B
consider this would affect the creditability and reliability of the officers’
C evidence related to the house search and the admission of the defendant. C
D 88. For the reasons mentioned above, I considered and find the D
prosecution has proved the defendant was in possession of the dangerous
E E
drugs seized beyond all reasonable doubt but failed to prove the defendant
F F
was trafficking in the said drugs. Hence, I convict the defendant of
G
possession of the dangerous drugs accordingly. G
H H
I I
J ( A Yim ) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 634/2017
C [2018] HKDC 291 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 634 OF 2017
F F
G --------------------- G
HKSAR
H H
v
I LAM CHIU YIN I
---------------------
J J
K Before: Deputy District Judge A Yim K
Date: 4 April 2018
L L
Present: Mr Paul Stephenson, Counsel on Fiat, for HKSAR/Director of
M Public Prosecution M
Mr David Khosa, instructed by Fu & Cheng, for the defendant
N N
Offences: [1] Trafficking in dangerous drugs（販運危險藥物）
O O
P
-------------------------------------- P
REASONS FOR VERDICT
Q Q
--------------------------------------
R R
1. The defendant was charged with one count of trafficking in
S S
dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous
T Drugs Ordinance, Cap 134. T
U U
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A A
B B
Prosecution case
C C
2. On 28 April 2017 police entered the defendant’s residence
D D
with search warrant after intercepted the defendant outside the premises.
E Upon entry, the defendant’s wife, 2 minor children and 3 adult relatives of E
the couples were inside the living room
F F
G 3. During the search, a paper box was found on top of a plastic G
cabinet inside the storage room of the premises. Inside the said paper box
H H
were:-
I I
(a) 6 plastic bags containing a total of 36.6 grammes of
J J
white crystalline solids containing 16.6 grammes of
K ketamine; K
L L
(b) 1 plastic bag containing 12.1 grammes of a white
M powder containing 2.47 grammes of ketamine; M
N N
(c) 1 plastic bag containing 1 plastic bag containing 2.78
O grammes of cannabis, in herbal form; O
P P
(d) 1 plastic bag containing 1 hand-rolled cigarette
Q containing 0.19 grammes of cannabis, in herbal form; Q
R R
(e) 1 electronic scale;
S S
(f) 1 plastic bag containing 381 nos. of transparent re-
T T
sealable plastic bags;
U U
V V
-3-
A A
B B
C (g) 1 cigarette rolling machine; C
D D
(h) 3 boxes of cigarette papers; and
E E
(i) Cash HK$12,000
F F
G 4. Further, 5 mobile phones were found beside the said paper on G
the top of the plastic cabinet. The total market value of the ketamine and
H H
cannabis seized is estimated to be HK$11,342.
I I
5. Under caution, the defendant stated that the suspected
J J
dangerous drugs seized were ketamine and cannabis for his self-
K consumption, his wife knew nothing about it. K
L L
Defence case
M M
6. The drugs and other trafficking related exhibits alleged found
N N
inside the storeroom were not belonged to the defendant and he had no
O knowledge of such. The defendant’s sister-in-law and brother-in-law who O
had drug related conviction had exclusive use of that room.
P P
Q 7. The defendant did not make any confession at the scene, he Q
was pressurized to sign on the post record cautioned statement by threat
R R
and inducement.
S S
T T
U U
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A A
B B
C Alternative procedure C
D D
8. The burden is on the prosecution to prove the special issue
E beyond all reasonable doubt, the defendant has no burden whatsoever. The E
defendant has a clear record; it is more likely that he was telling the truth.
F F
All the evidence should be considered as a whole in the light of the defence
G case and the defence submission. Where there is any reasonable doubt, the G
benefit should go to the defendant. It should be noted that when
H H
considering the special issue, I only had the defence evidence for the
I special issue. I
J J
9. PC 7792 gave evidence that on 28 April 2017 between 5 pm
K and 5:30 pm his team attended a briefing given by woman inspector Tai K
for a plain clothes anti-narcotic operation with a view to execute a search
L L
warrant of a target premises at Choi Uk Tsuen. He was provided with
M information of the suspected narcotic activities and the description of a M
named target person. He was instructed to lay an ambush at location
N N
outside the public toilet of Choi Uk Tsuen and conduct a surveillance there
O together with PC 9169. It was not disputed that the target person was the O
defendant.
P P
Q 10. PC 7792 gave evidence that at 7:38 pm he saw a male matched Q
the description of the target person moving towards him from the car park
R R
area and about 20 meters behind him were another two males. Believing
S the male at the front was the target person, he went up calling the name of S
the target person and stopped that man by holding his arm, once he came
T T
U U
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A A
B B
in contact with the man, the man reacted irrationally with agitated
C behaviour. PC 9169 gave similar evidence. C
D 11. PC 7792 gave evidence that outside the public toilet he D
suspected the defendant was involved in drug activities, he stopped the
E E
defendant, revealed his police identity and informed the defendant he was
F F
suspected of involving in dangerous drug activities. Time being two males
G
(later known to be the defendant’s brother-in-law Ho and Lo) rushed G
forward and asked them what had happened. He also produced his warrant
H H
card and revealed his police identity to the two males. Very soon
I reinforcement came and put the other two males under control. I
J J
12. PC 7792 gave evidence that further down the alleyway of the
K public toilet, he asked the defendant for his identity card, the defendant K
gave his name and said he left it at home. And he took out the search
L L
warrant and explained it briefly to the defendant at time he requested to
M conduct a body search on him. PC 9169 said the reinforcement arrived M
after the search, but he did not mention the search warrant at this stage.
N N
Before the reinforcement arrived, PC 9169 was required to guard against
O the two brothers-in-law, the officer did not notice PC 7792 has taken out O
the search warrant under such circumstances is understandable.
P P
Q 13. The defendant said during the course both PC 7792 and Q
PC 9169 raised a baton while his brother-in-law Lo first said two officers
R R
then very quickly rectified and said only one officer raised a rod. The
S officers disagreed that they ever raised a baton against the defendant. The S
officers were to conduct a house search nearby, there was no reason for
T T
them to cause a commotion there to alert any person inside the premises, I
U U
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considered and accept the officers’ evidence that they revealed their police
C identities at the earliest opportunity and were only using corresponding C
force to calm down the defendant and did not produce their batons.
D D
E 14. According to PC 7792’s evidence, initially the defendant put E
up a very fierce struggle, after they revealed their police identities he
F F
calmed down a bit, and upon further producing the search warrant, the
G defendant co-operated with him in the body search. I consider and find G
the defence has exaggeratedly the magnitude of the officers’ actions
H H
outside the public toilet.
I I
15. There was no dispute that PC 7792 searched and found certain
J J
items on the defendant. From the defendant’s left front trousers pocket,
K the officer found cash $2,200, a chain of 7 keys, a door key hold with a car K
key, while in his right front trousers pocket he found a white Samsung
L L
mobile phone and a black Sony mobile phone. The officer said after he
M found the said items he kept them temporarily during the investigation. M
N N
16. PC 7792 gave evidence that the defendant agreed to take the
O officers back home to get his identity card. Thus he accompanied the O
defendant all the way to the 122A Choi Uk Tsuen. The search warrant was
P P
produced and explained to the defendant again outside the ground floor
Q metal gate. The party gained entry to the building by using one of the seven Q
keys found on the defendant, and proceeded to the first floor. On the way
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up, the defendant said the wooden door of the first floor was unlocked and
S PC 9169 opened the wooden door for entry. S
T T
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17. Section 54(2) of the Police Force Ordinance Cap 232 provides
C that if a police officer finds any person in any street whom he reasonably C
suspects of having committed or of being about to commit or of intending
D D
to commit any offence, it shall be lawful for the police officer:-
E E
(a) to stop the person for the purpose of demanding that he
F F
produces proof of his identity for inspection by the
G police officer; G
H H
(b) to detain the person for a reasonable period while the
I police officer enquires whether or not the person is I
suspected of having committed any offence at any time;
J J
K (c) to search the person for anything that is likely to be of K
value to the investigation of any offence that the person
L L
has committed, or is reasonably suspected of having
M committed or of being about to commit or of intending M
to commit; and
N N
O (d) to detain the person during such period as is reasonably O
required for the purpose of such a search.
P P
Q 18. PC 7792 was briefed for the operation and was in the belief Q
that the defendant was involved in activities related to dangerous drugs, the
R R
officer had reasonable grounds to detain the defendant for search and
S enquiry. But I have borne in mind that the fact that the officer had S
reasonable grounds to detain the defendant for investigation and search
T T
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does not mean that the defendant had committed the crime suspected nor
C has any negative bearing on the defendant’s credibility. C
D D
19. Although the defendant had told the officer his name outside
E the public toilet, the defendant did not have his identity card with him, the E
identity card was placed at home which was a short distance from the
F F
public toilet, the officer was in possession of a search warrant to the
G defendant’s home, the officer was entitled to check his identity card, before G
he formally released and returned the items taken from the defendant.
H H
Further, the officer was to carry a house search to a premises which was
I believed in connection with dangerous drugs, the officer was entitled to try I
the keys taken from the defendant to gain entry into the premises.
J J
K 20. The interception/investigation downstairs and the house K
search were part and partial the same operation, once entered the premises,
L L
the items taken from the defendant downstairs became items covered by
M the search warrant whether they were with the defendant or with PC 7792. M
N N
21. Sister Ying gave evidence that Ho entered the premises before
O the arrival of the police, the evidence of the officers suggested otherwise. O
The officers were there to execute a search warrant, they did not know who
P P
was inside the premises, and did not want to alert any person to dispose of
Q any illicit items therein. They have taken the particulars of Ho downstairs Q
and Ho has learnt their police identity why would the police let Ho to get
R R
in before them.
S S
22. It is noted that when Ying gave her statement at 20:05 pm
T T
inside the premises, she said “around 7:30 pm Ho shouting loudly at the
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balcony that the defendant was being stopped by a few males near the toilet
C and asked us went to the balcony to take a look.” However, she testified C
that Ho returned a few minutes before the arrival of the police and told
D D
them the defendant being hit by someone downstairs, and the wife went
E out to the balcony to take a look. It is noted that Ho was also stopped and E
had his personal particulars taken downstairs, he should have learnt the
F F
people downstairs were police officers by the time he returned to the
G premises. G
H H
23. Around 7:30 pm Ho was downstairs shouting, Ying might
I have heard Ho shouting down the balcony but I considered and reject her I
evidence that Ho returned before the arrival of the police. I considered and
J J
find Ying had attempted to tailor her evidence to fit in the defence case and
K was not a credible witness. K
L L
24. Ying gave evidence that the police entered the premises with
M
the defendant. The defendant was taken to his bedroom and she asked the M
police what had happened to the defendant, she was told the defendant was
N N
trafficking in dangerous drug, police started to search the house and
O enquire their identity. She asked for the search warrant and was told the O
defendant was showed the search warrant downstairs. Upon her request,
P P
an officer showed her the search warrant and she passed it to the wife.
Q Q
25. PC 7792, on the other hand, gave evidence that the search
R R
warrant was explained to the defendant when they were at the main
S
entrance of the building concerned because it was only briefly showed to S
him inside the alleyway of the public toilet. Upon entry of the premises,
T T
he showed the search warrant to all inside and told them it was suspected
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that the premises were involved in dangerous drug activities and they
C would carry out a house search. I considered and accept the officer’s C
evidence that the search warrant was showed and explained to the
D D
defendant and all inside the premises as he testified.
E E
26. According to the defence case, all the relatives were inside the
F F
living room when the search commenced, and the defendant was told once
G dangerous drug was found; this suggested that the police was not worried G
that those inside the premises oversaw the search and the police wanted the
H H
defendant to know the result of the search. There was simply no reason for
I the police to keep the defendant inside storeroom 2 as alleged in the I
defence case.
J J
K 27. It was the evidence of the officers that the couples were K
together during the search, the couples were arrested in the middle of the
L L
search upon discovery of the suspected dangerous drugs, the paraphernalia
M and the cash and upon caution they made a response respectively. Whereas M
the defence case put to the officers was that the defendant was kept inside
N N
the storeroom 2 and the wife was breastfeeding her baby inside the
O bedroom during the search, the alleged admission of the defendant was O
partially written down and partially dictated by the officer; the defendant
P P
was subject to threat and inducement, and he signed under influence of
Q threat and inducement. Q
R R
28. The defendant testified that when certain items of dangerous
S drugs and money were found he was informed by a police officer while he S
was kept inside storeroom 2. When he was first told dangerous drug(s)
T T
was found in storeroom 1, he told PC 7792 right the way that the dangerous
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drug(s) was not his, storeroom 1 was not used by them but by the wife’s
C sister and her husband. However, his clarification was ignored. He was C
further notified later that cannabis and cash were found. When he was told
D D
all insider of the premises would be arrested for the dangerous drugs found
E unless he admitted it, he reiterated that the dangerous drugs were not his. E
F F
29. The defendant further testified that when the notebook was
G
showed to him for him to complete his admission and for his signature, he G
was told that his family would not be arrested, his wife would be released
H H
after a couple of bail and his likely sentence was 9 months to a year. It
I took him some time to consider before he wrote down the admission and I
signed on the notebook under influence of threat and inducement.
J J
K 30. According to the defendant’s evidence, it was the PC 7792 K
who put down “the dangerous drug was “K Chai” and cannabis” on the
L L
notebook and asked him to write down it was for his own consumption etc.
M The officers were there to investigation a case of trafficking in dangerous M
drugs, suspected paraphernalia and drug proceeds were found but
N N
according to the defendant’s evidence he was not told to admit any of those
O items. Further, apart from what allegedly had been written on the notebook, O
it was also the defendant’s evidence that the officers did not mention
P P
suspected “K Chai” was found, the white crystalline solids and the white
Q powder were along referred as suspected dangerous drug by the officers Q
inside the premises.
R R
S 31. According to the defendant’s evidence, the encounter with the S
police downstairs did not prevent him from putting his explanation to the
T T
officers, however, he admitted the dangerous drugs were for his own
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consumption, without even seeing and learning the quantity involved. I
C considered and find the defendant’s evidence unbelievable. C
D D
32. The defendant further gave evidence that after he signed the
E notebook, PC 7792 and PC 9169 took turns to guard him inside the E
storeroom 2. While inside the room with him, PC 9169 chatted with him,
F F
showed his baby’s photo to him and told him his baby had eczema.
G PC 9169 agreed that his baby was suffering eczema but disagreed that he G
shared this information with the defendant. All of the officers had their
H H
respective duties that night, PC 9169 would not be free to chat with the
I defendant. I consider and refused the defendant’s evidence. The defendant I
might have learnt the information in some other circumstances but I do not
J J
consider this would affect the credibility of PC 9169.
K K
33. The defendant gave evidence that having waited for long
L L
inside the storeroom 2, he asked PC 9169 if his elder sisters could be
M allowed to leave, PC 9169 went out to ask the inspector and returned to tell M
him to ask his elder sisters to leave. The defendant said he then went
N N
outside to ask his elder sisters to leave, there and then he saw Ng Choi Ha,
O his wife’s sister who also known as “Van”, cradling his baby. The O
defendant said initially Ying refused to leave, after he ensured her that he
P P
would be safe, his sister Ying then left and he returned to storeroom 2 with
Q PC 9169. Q
R R
34. The defendant said he kept on waiting inside the room with
S PC 9169 and Van entered the room and gave his baby to him and his wife S
also came in to have a few words with me. His wife asked why he signed
T T
on the notebook and made an admission; he told his wife “if I did not sign,
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all of you would then be arrested. I have no choice but to sign it”. Then
C PC 9169 said the air inside the room was not good and told him to take the C
baby out to the living room and waited for the police Dog Unit. The
D D
defendant also supplemented and said while he was inside the room, his
E wife did bring a meal box to him but took it out after he indicated he did E
not want to eat. If the wife only learnt the defendant’s admission at a later
F F
stage, it would be natural for her to ask the defendant for the reason at her
G first opportunity as the defendant’s evidence suggested, however, this was G
not the wife’s evidence.
H H
I 35. According to Lo Tsz Hei’s evidence, sometime after 8 pm I
Uncle Ho requested some meal boxes, he therefore bought 2 to 3 meal
J J
boxes back and passed them to 2 officers downstairs. Later around
K 9:30 pm Uncle Ho phoned and requested him to get medicine for Aunt K
Ying and reminded him to come back before 10:30 pm. Thus he drove
L L
over to Tin Yat Estate to get the medicine back for Aunt Ying. The request
M from Ho suggested that the time was tight but Lo Tsz Hei did not tell what M
time he returned with the medicine. Lo Tsz Hei said on his return he saw
N N
the wife at the balcony with an officer and when he went up and passed the
O medicine to an officer, Van was inside the premises. O
P P
36. According to the wife after breastfeeding the baby for about
Q an hour, she went out and saw a meal box on the table, she then took it to Q
the defendant while the other relatives were eating at the living room. The
R R
defendant refused to eat and she took the meal box out and walked out to
S the balcony. An officer followed her to the balcony, she asked and the S
officer offered her a menthol cigarette. The officer told her dangerous
T T
drugs were found inside her premises and the defendant had made an
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admission, she and the officer had a brief conversation at the balcony
C before she returned to the living room. Yet the wife could not recall who C
that officer was.
D D
37. The wife said she first learnt the discovery of dangerous drugs
E E
when she was at the balcony with an officer. According to the wife she
F F
asked Van came up to look after her children because she knew all would
G
be taken to police station. Van gave evidence that she called the wife at G
21:14:36 and 21:15:24 both calls lasted for 1 minute or less. In the first
H H
call the wife already informed her that dangerous drugs were found inside
I the storeroom used by her and her husband. That would be impossible to I
reconcile with Mr Lo Tsz Hei’s observation that the wife was outside the
J J
balcony on his return with the medicine and there was no mention that the
K wife at the balcony before he left around 9:30 pm for the medicine. I K
considered and reject the wife’s evidence as to how she learnt the discovery
L L
of the dangerous drugs and the alleged conversation she had with an officer
M at the balcony. M
N N
38. Further, it was not clear from the wife’s evidence when she
O was made to sign on the notebook to confirm her arrest and response upon O
caution. But the wife confirmed during her evidence in chief that she did
P P
not have any conversation with the defendant when she brought the meal
Q box to the defendant. And when being asked by Mr Khosa whether she Q
entered the storeroom 2 again, she took a long pause and said it seemed
R R
that she did not, and she said “no” when she was further asked by Mr Khosa
S did she at any time asked the defendant about his admission. The wife’s S
evidence was in direct conflict with the defendant in this material respect.
T T
SGT 160 confirmed he smoked menthol cigarette but the sergeant
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disagreed that he offered the wife a cigarette at the balcony and had no
C recollection that he told the wife dangerous drug(s) was found from C
storeroom 1.
D D
39. The house search completed at around 9:30 pm, time being
E E
the defendant and the wife had been arrested. Van might have called the
F F
wife around 9:14 pm but the wife could not have answered the calls, these
G
calls probably picked up by other relatives inside the premises. According G
to WIP Tai’s evidence because the defendant and the wife would be taken
H H
back to the police station, for the welfare of the child and baby at the
I premises, the wife was asked to arrange a relative to take care the children I
and Van was allowed to enter the premises to take care the children.
J J
40. Van gave evidence that she had 2 calls with the wife at
K K
9:14 pm and 9:15 pm before she went inside the premises around 9:15 pm
L L
to 9:20 pm. The wife gave similar evidence. However, the call records
M
showed that the wife’s phone was used to make a call to Van at 10:04 pm, M
this suggested that Van was not inside the premises before 10:04 pm and
N N
casted doubt on their evidence about the 2 calls around 9:15 pm and I have
O reservation that the wife had direct phone conversation with Van over the O
children arrangement. Further, Mr Lo Tsz Hei did not mention seeing Van
P P
upon his first arrival at the scene nor when he returned with the meal boxes,
Q his first mention of Van was when he went up to the premises after he left Q
the scene again and returned with Ying’s medicine. I consider and rejected
R R
the evidence of wife and Van that they had any direct telephone
S conversation. I do not consider the call records produced by the defence S
cast any doubt on the prosecution case. I shall refer to this part of the
T T
evidence when I deal with the general issue later.
U U
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C 41. Both the defendant and the wife said they told the officers at C
the premises that storeroom 1 was used by the wife’s sister Van and her
D D
husband for storage and they had no knowledge of the dangerous drug(s)
E found inside storeroom 1. Further Van also gave evidence that while she E
was inside the premises she told an officer coming out from storeroom 1
F F
that the room was used by her and her husband and that her husband had
G dangerous drugs conviction and she even attempted to call her husband to G
check if the dangerous drugs belonged to him. All the three said the
H H
officers ignored them when they tried to explain the usage of storeroom 1.
I All the officers disagreed they were ever told the storeroom 1 was used by I
Van and her husband at the scene. I consider and accept the officers’
J J
evidence that they were never told the storeroom 1 was used by Van and
K her husband. K
L L
42. Everyone inside the premises had given a witness statement
M upon request. SGT 160 gave evidence that Van refused to give a statement M
upon request, saying that she needed to take care the baby and the child.
N N
According to Van’s evidence she knew her sister and brother-in-law (the
O defendant) had nothing to do with the items found and she even offered to O
call her husband to clarify the situation, but there was no mention that the
P P
items inside storeroom 1 was belonged to her or her husband in her first
Q statement given on 14 June 2017. Van tried to explain she did not mention Q
it because she was worried and scared. If things did happen as Van said,
R R
she could have simply repeated what she had said inside the premises. I
S considered and find Van to be an incredible witness and reject her evidence S
that she had told an officer that storeroom 1 was used exclusively by her
T T
and her husband at the scene.
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43. There was no dispute about the identity of the persons inside
C C
the premises and that the police had confirmed the defendant and his wife
D were the occupants while the relatives were visitors. Further, there was no D
dispute that the police had asked which one was the defendant’s bedroom.
E E
PC 6780 was assigned to be the exhibit officer and he was required to draw
F F
a sketch of the premises upon the completion of the search. PC 6780 gave
G
evidence that he did ask the defendant about the usage of the storeroom 1 G
and was told it was for placing miscellaneous items before he started to
H H
search the room, but he did not make a record of that on his notebook,
I because it was only for his memory. The officer referred both storerooms I
as storeroom on his sketch (Exhibit P54(1)). I considered and accept the
J J
officer’s explanation.
K K
44. There is no dispute that $12,000 cash was found, but the
L L
defence said it was not discovered in the way the officers testified by
M referring to the discrepancies of the officer’s evidence. The evidence of M
WIP Tai suggested that she did not check her watch when she made the
N N
2033 notebook entry at the scene but took the time provided by the PC
O 6780 of the discovery of the seized exhibits as the real time when she O
started making the record. The real time that she learnt the discovery at
P P
2033 from the officer must be sometime after 2033.
Q Q
45. WIP Tai further gave evidence that after she learnt the
R R
discovery of the exhibits, she instructed SGT 58722 to ask PC 6780 to
S count the amount of the cash after the search. According to the WIP Tai’s S
evidence the amount of cash was confirmed sometime after the arrest of
T T
the defendant and his wife.
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C 46. According to SGT 58722’s evidence when he made his C
notebook entry at 2035, he did enter and take a look of the items found and
D D
learnt the arrest of the defendant inside storeroom 1. Further, SGT 58722
E gave evidence that he did return to the doorway of storeroom 1 and E
reminded PC 6780 to count the money found, he then returned to the living
F F
room. After the entire search on the premises had completed, he left the
G premises with WIP Tai and SGT 160 to discuss the further investigation G
and they returned the premises after the discussion.
H H
I 47. According to WIP Tai’s evidence, as far as she recalled, the I
figure of $12,000 cash was given and written down by her after completion
J J
of the room search and the handling of the exhibits seized but she did not
K remember when she was told the figure. WIP Tai gave evidence that this K
happened when she was a bit inside the corridor and PC 6780 was by the
L L
side of the doorway of storeroom 1. PC 6780 on the other hand gave
M evidence that he only counted the cash when he dealt with the exhibits at M
the living room upon completion of the house search, but he did move from
N N
room to room to draw the sketch of the premises.
O O
48. Many things had happened that night, but WIP Tai only made
P P
very brief entry on her notebook, she mainly relied on her memory as to
Q what had happened. PC 6780 was the one who was responsible to handle Q
the exhibits, I considered and find PC 6780 had a better memory of things
R R
related to the exhibits, and that the WIP has mistaken the stage of which
S she was told the amount of the cash found did not cast any doubt on the S
evidence of PC 6780.
T T
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49. WIP Tai gave evidence that she instructed PC 7792 and PC
C 9169 to arrest the defendant and his wife when she was at the doorway that C
shown on Photo 6 of the photo album Exhibit P64 while the officers were
D D
at the entrance of storeroom 1 (the first room on the left) depicted on Photo
E 10. Time being the two officers were focusing on the items discovered by E
PC 6780 and their duties as arresting officers. Three pack of cigarette
F F
paper were found, two of which were of the brand name “ZIG-ZAG” but
G they all looked similar, and the officer mistook all were of the same brand G
name. I considered and accept the officers’ explanation and do not
H H
consider this would affect their credibility.
I I
50. PC 7792 gave evidence that he made simultaneous record of
J J
the arrest at storeroom 1, he held the notebook in his hand to do the writing,
K he recorded down what he said to the defendant while he did the talking K
and he wrote down what the defendant said under caution immediately and
L L
got the defendant to sign to confirm. PC 9169 and PC 6780 gave similar
M evidence except PC 6780 said PC 7792 did the notebook record at the M
position of the table, referring to the table corner in Photo 11 of Exhibit
N N
P64. PC 6780 went on to say PC 7792 wrote on that table when being
O asked if PC 7792 used the table to write. Photo 13 give a better view of O
the table, there were a number of odd items on top of the table, further it
P P
was a table for young child. While PC 7792 was doing the recording of
Q the arrest, PC 6780 was seizing the exhibits, both officers were focusing Q
on their own work, I considered and find PC 6780 has mistaken how PC
R R
7792 made the notebook record at the material time.
S S
51. It is noted that all the exhibits discovered by PC 6780 were
T T
seized by the officer inside storeroom 1, all were within the sight of the
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PC 7792, and it would not be difficult for him to relate the exhibits one by
C one during the arrest of the defendant at storeroom 1. C
D 52. PC 9169 gave evidence that he arrested the wife at the same D
time but the wife appeared to be weak after giving birth to a baby in less
E E
than 2 weeks, and he gave a chair for her to rest during the course of the
F F
arrest. The officer admitted he had mistakenly put down the time of the
G
discovery as the time of the arrest on his notebook but he had clarified the G
mistake in the post record cautioned statement with the wife (MFI 3). I
H H
considered and accept the evidence of the officer. Giving the condition of
I the wife, PC 9169 only made a brief record of the arrest and her exculpatory I
statement at storeroom 1, and did not get the wife to sign right after the
J J
record is understandable, and I do not consider this would cast any doubt
K on PC 7792’s evidence. K
L L
53. Further, the defence case put to PC 7792 was that after he
M
exerted threat and inducement on the defendant, he showed his notebook, M
with the alleged admission written on it, to the defendant for his signature,
N N
the officer disagreed and reiterated that the defendant volunteered the
O admission under caution and he made a record of it. However, when the O
defendant gave evidence, he said the admission, after the word(s) cannabis,
P P
was dictated to him by the officer and the subsequent declaration was also
Q copied as directed under the influence of the threat and inducement (the Q
defendant had highlighted the part of the admission written by him on
R R
Exhibit D3).
S S
54. According to the defendant he was not showed the dangerous
T T
drugs, he was not read the preceding entry, he was prepared to admit the
U U
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B B
unknown quantity of dangerous drugs when he signed on the notebook to
C confirm the admission. I considered and find the defendant’s evidence C
unbelievable. I considered and accept the evidence of PC 7792 and find
D D
the incident happened as he testified and shown in the officer’s notebook
E Exhibit P35 and the Pol 153 (Exhibit P34), and acknowledgement Exhibit E
P34(a).
F F
G 55. I have carefully considered the evidence and the submissions G
that have been made and I am satisfied beyond all reasonable doubt that
H H
the statement was made voluntarily. I did not consider that this is a case
I where I should exercise any general discretion to exclude the statement on I
the grounds of unfairness. The exhibits were admitted into evidence
J J
accordingly.
K K
Findings
L L
M 56. I have reminded myself of the burden and standard of proof. M
It is for the prosecution to prove the defendant’s guilt on each and every
N N
element of the charge beyond all reasonable doubt. The defendant has no
O burden of proof whatsoever. The defendant has a clear record, it was less O
likely that he would commit a crime and more likely that he was telling the
P P
truth. All the evidence should be considered as a whole in the light of the
Q defence case and the defence submission. Where there is any reasonable Q
doubt, the benefit should go to the defendant.
R R
S 57. The information received by the police that the defendant S
trafficked drugs in the vicinity of the public toilet at around 8 pm every
T T
night was only admitted to complete the story and to show why the police
U U
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B B
took action that evening, and not to prove the truth of it. There was no
C direct evidence of trafficking in the present case. C
D D
(a) Trafficking?
E E
58. The dangerous drug, paraphernalia and the money were found
F F
inside a storeroom, and were placed inside a paper box containing
G miscellaneous items. There was no evidence as to the condition of the G
electronic scale at time of the seizure, but the electronic scale was found
H H
not in working condition on the day of final submission. The chain of
I evidence from seizure was admitted, i.e. at all material times the exhibits I
were under the control of the police. Favourable inference must be drawn
J J
for the defendant; it can only be presumed that the scale was not working
K at the time of the seizure. K
L L
59. Further, there was no evidence that what exactly were inside
M the said paper box, it was the evidence of PC 6780 that the miscellaneous M
items inside the paper box were not relevant without elaboration. Again
N N
favourable inference must be drawn for the defendant; it can only be
O presumed that the miscellaneous items inside the paper box were not O
belonged to the defendant.
P P
Q 60. It was the prosecution case that the premises were occupied Q
by the defendant and his wife therefore they were arranged to witness the
R R
house search. At time of the arrest, the defendant was referred to all the
S exhibits found at 20:33 hours, namely the suspected dangerous drugs, large S
amount of re-sealable transparent plastic bags (of various size), electronic
T T
scale, cigarette rolling machine, cigarette paper and a pile of cash; but the
U U
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defendant’s admission was only that “the dangerous drugs “K Chai” and
C cannabis are for my own consumption”. The defendant made no admission C
as to the rest of the items seized. The items were not packed together but
D D
at different places inside the paper box. And there was evidence from the
E defence that the in-law would have access to the storeroom 1. That the E
other items seized from the box were also belonged to the defendant is not
F F
the only inference in the present case.
G G
61. The 5 old mobile phones found inside storeroom 1 did not go
H H
with any sim cards, this was consistent with the defendant’s explanation
I that all were in working condition and he kept them as spare phones. I
J J
62. For the reason mentioned above, I agreed with Mr Khosa that
K there was only evidence of possession in the present case. That the urine K
test conducted upon admission to Lai Chi Kok Reception Centre on 2 May
L L
2017 was negative, was only evidence that 3 days after his arrest there was
M no drug found in his urine, and a possible indication that the defendant was M
not a heavy taker. Even full weight is to be given to the defendant’s
N N
admission, without further evidence, simply base on the quantity of the
O Ketamine and herbal cannabis, evidence in the present case does not O
support a case of trafficking beyond all reasonable doubt.
P P
Q Q
(b) Possession
R R
63. It was the defence case that the admission of the defendant
S S
was unreliable and reiterated that it was made under threat and inducement
T
from the police. According to the defendant’s evidence he had no T
knowledge of the items seized from the paper box and he never took
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dangerous drug. He only admitted possession of the dangerous drug to get
C his wife and sisters out of the matter. C
D 64. In his final submission, Mr Khosa reiterated his comment on D
the credibility of the officers and said PC 7792 could not even remember
E E
whether he had a baton with him when he stopped the defendant outside
F F
the public toilet. The officer gave evidence that he helped to get the batons
G
ready for the operation but he could not remember how many of them got G
the baton. Later it was put to him that “when you first saw the defendant
H H
both you and PC 9169 each got a baton” and it was against this statement
I that the officer said he could not remember. It was the defence case that I
both PC 7792 and PC 9169 raised their baton when they tried to subdue the
J J
defendant. The officers disagreed, the defendant gave evidence that both
K raised their baton while Lo said only one raised a baton. I considered and K
accepted the officers’ evidence.
L L
M
65. Mr Khosa also submitted that the drugs were allegedly found M
by PC 6780 at 8:33 pm, and it did not make sense that the police team
N N
commenced taking witness statements from Ying and Ho at 8:05 pm and
O 8:15 pm respectively. According to the officers, the search was expected O
to take some time, people inside were yet to have their dinner, the officers
P P
made use of the waiting time to take witness statements from the relatives
Q shortly after the commencement of the search was understandable. I Q
considered and accept the officers’ explanation and the decision to take
R R
witness statements from the relatives before the discovery of the dangerous
S drugs did not cast any doubt on the prosecution case. S
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66. Mr Khosa also made comment as to the lack of record of the
C arrival time of Van. The defence tried to prove Van’s arrival time with C
reference to her mobile calls record. The wife clarified in her evidence for
D D
the general issue that her outgoing phone calls record at 10:04 pm was an
E inadvertent one, as far as she was aware Van did not answer that call. Van E
also gave evidence that she did not answer the incoming call at 9:56 pm
F F
and 10:04 pm. It is noted that the duration of the calls at 9:14 pm, 9:15 pm,
G 9:56 pm and 10:04 pm were all recorded as 1 minute. Thus according to G
the evidence of the wife and Van, phone calls that last for 1 minute might
H H
not have been answered at all. I considered and reject the evidence of the
I wife and Van that they had any direct telephone conversation as alleged. I I
do not consider the call records produced by the defence casted any doubt
J J
on the prosecution case.
K K
67. Mr. Lo Tsz Hei clarified when he gave evidence for the
L L
general issue that the time he first noticed the presence of Auntie Van was
M about 15 minutes after he passed the meal boxes to the officers, Auntie Van M
was on the ramp outside the public toilet at that time. And about 5 minutes
N N
later he saw Auntie Van went up to the premises. The premises concerned
O was on the first floor of the house, as Lo Tsz Hei was outside on the ground, O
the best he could tell would be Van had entered the house.
P P
Q 68. Lo Tsz Hei’s evidence was not challenged. According to Lo Q
Tsz Hei’s evidence, when he went up to the flat with the medicine, he saw
R R
his mother had the baby in her arms and people inside were holding their
S clothes. After he passed the medicine to an officer, he went down and left S
with his father after waiting for about 15 minutes. However, Lo Tsz Hei
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was not asked whether his mother also left with him at the same time, I do
C not consider his evidence casted any doubt on the prosecution case. C
D 69. Ying was not a suspect at that time, after the completion of D
the house search and her witness statement, her presence was not required.
E E
Ying knew she needed to take medicine, it would take her less than 30
F
minutes’ drive to home, she could have left and took her medicine home. F
G
Ho did not request for Ying’s medicine at the time he asked the in-law to G
get them meal boxes, this suggested Ying’s medicine was not an issue at
H H
that stage and Ying only decided to stay further at a later stage.
I I
70. All of the relatives inside the flat were not required to stay
J behind and they did leave at the end. Van was allowed to enter the premises J
to take care the children because the defendant and the wife were to be
K K
arrested and be taken back to police station. I do not consider that the
L L
officers failed to recall the actual arrival time of Van would cast any doubt
M
on the prosecution case. M
N 71. PC 9169 gave evidence that the post record of the wife’s N
cautioned statement commenced at 21:32 hours at the scene. The legal
O O
representative of the defendant and wife was already waiting at the police
P station upon their arrival, and both of them exercised their right of silence P
since then. The wife made an exculpatory statement under caution at the
Q Q
scene, there was simply no reason for the officer to forge the time of the
R R
post record. Further, the officer explained that if the post record was done
S
at the police station he would have obtained a file number for the matter by S
then. I considered and accept the evidence of the officer.
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72. PC 9169 also gave evidence that after the completion of the
C post record, the wife was allowed to move around to check her baby. C
WPC 18754 accompanied the wife to breastfeed the baby inside the
D D
bedroom, and they stayed inside the room for about half an hour while he
E was waiting outside. He did not make record of the breastfeeding and E
every movement of the wife but he kept looking on her. I considered and
F F
accept the evidence of the officer.
G G
73. Lo Tsz Hei gave evidence that he saw the wife at the balcony
H H
when he returned with the medicine. The request from Ho for Ying’s
I medicine was made some time after Lo Tsz Hei passed the meal boxes to I
the officers. The fact that Ho emphasised to Lo Tsz Hei that the medicine
J J
was required by 10:30 pm suggested the time was tight. Lo Tsz Hei said it
K took 30 to 45 minutes for a round trip returning with the medicine. K
However, there was no evidence as to the actual time of Lo Tsz Hei
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returned with the medicine. I do not consider the evidence of Lo Tsz Hei
M casted any doubt on the prosecution case. M
N N
74. For the reason mentioned above I considered and accept the
O officers’ evidence as to the search, arrest and caution of the defendant. I O
considered and find the defendant was not subject to any threat,
P P
inducement or pressure from the police as he alleged and the admission
Q was given by him voluntarily under caution. Q
R R
75. In considering the appropriate weight to be attached to the
S
admission, I have to consider the evidence as a whole. The defendant in S
his early 40s had a clear record, considered by the village head to be a man
T T
of positive good character, working at a restaurant which he had a share,
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married with two young children. On the day in question, the defendant’s
C wife had just given birth to their new born baby twelve days ago and C
observed by PC 9169 to be in a weak condition.
D D
76. The defendant knew the police came with a search warrant to
E E
search for dangerous drug at his home. Apart from his wife, his sisters
F F
were also inside the premises upon entry, however, only the occupants,
G
namely the defendant and his wife were arranged to witness the search. It G
was simply clear to the defendant that they being the occupants were taken
H H
as the persons in charge and responsible for the premises.
I I
77. The wife gave evidence that the door of storeroom 1 was
J never locked. During the 12 days after the baby was born, her sister Van J
had come to the flat every day to look after her and the baby. Van visited
K K
the flat more often than her husband. Van gave evidence that storeroom 1
L L
was reserved for her family exclusive use after they moved out in 2014.
M
She knew about the paper box in question, but she had no knowledge about M
the items seized from the box. She and her husband had keys to the flat.
N N
She believed the items were belonged to her husband yet her husband never
O admitted those items belonged to him. Van might think her family had O
exclusive use of the storeroom but there was nothing to stop the defendant
P P
to have access into the storeroom 1. I do not consider the evidence of the
Q wife and Van casted any doubt on the prosecution case. Q
R
78. Packets of ‘Pampers’ for the new born baby were placed at R
S
various places inside Storeroom 1, further the 5 mobile phones belonged S
to the defendant were found inside Storeroom 1. I considered and reject
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B B
any evidence that Storeroom 1 was being used exclusively by Van and her
C family. C
D 79. The defence at one stage suggested that the officers were D
entering the premises for a case of possession of dangerous drugs.
E E
However according to the wife and Ying, inside the premises an officer
F F
told them the defendant was suspected of trafficking in dangerous drug and
G
the police was there to carry out a house search with a search warrant. G
H 80. In the presence of the defendant and his wife, dangerous drugs H
were found, the first one being six resealable transparent plastic bags which
I I
contained white powders as per admitted facts Exhibit P62 (while PC 7792,
J PC 9169, and PC 6780 described it to be white crystalline solids in their J
evidence, this exhibit is depicted in Photo 18 of Exhibit P64), the next one
K K
being one resealable transparent plastic bag containing some white powder.
L L
These two items were described as suspected dangerous drugs by the
M
officers at the scene. It is clear from the officers’ evidence that they have M
never referred the white crystalline solids or the white powder as “K Chai”
N N
at the scene, the drug was only examined and confirmed to be Ketamine at
O a later stage. O
P 81. Likewise, according to the officer’s evidence the other P
suspected dangerous drug found was described at the scene as brown herbal
Q Q
lump-like object or brown grass-like substance or brown substance in
R R
herbal form, the item was examined and confirmed to be cannabis in herbal
S
form at a later stage. S
T 82. According to the defendant’s evidence when he was kept T
inside storeroom 2, he was told by PC 9169 that dangerous drug (without
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specifying what type of drug) was found next door and then told by another
C officer that cannabis was found next door. And he was induced and C
pressurized to admit the dangerous drugs found. However, it is noted that
D D
the defendant said under caution “the dangerous drugs “K Chai” and
E cannabis are for my own consumption.” If the drugs were not belonged to E
the defendant how was he able to tell they were “K Chai” and cannabis at
F F
the material time?
G G
83. When the defendant was asked specifically by his counsel
H H
whether PC 9169 showed him any drug or just orally told him that drugs
I were found while he was with PC 7792 inside storeroom 2, the defendant I
only replied he was told by the officer. When being asked by his counsel
J J
whether at the time he was told to write down the passage (later clarified
K by the defendant being the admission highlighted by him as per Exhibit D3) K
whether he was read the preceding entry, the defendant only said PC 7792
L L
told him “now write down it is for your own consumption”, the drugs were
M “K Chai” and cannabis were written down by the officer. But how was it M
possible for the police to be certain at the material time that both of the
N N
white crystalline solids and the white powder were ketamine? According
O to PC 7792 the statement as a whole was an accurate record made by him O
of what the defendant said under caution.
P P
Q 84. After the house search, the cautioned statement was read to Q
the defendant, then he was allowed to read and make alteration to the
R R
statement. The defendant signed to confirm his admission was accurately
S recorded. I considered and find the admission was given by the defendant S
orally and recorded down by the officer accurately.
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85. The defendant and his wife were arrested at the same time
C after the dangerous drugs were found. It was simply clear to the defendant C
that he and his wife were both suspected for trafficking in dangerous drugs.
D D
It was not disputed that the wife did not have knowledge of the dangerous
E drugs. I considered and find the defendant made the admission under E
caution voluntarily at the scene because he was the owner of the dangerous
F F
drugs and he wanted to tell the police that his wife had nothing to do with
G the drugs. I considered and give full weight to the defendant’s admission. G
H H
Conclusion
I I
86. It is observed that not all matters were recorded in the officers’
J J
notebooks. I agreed with Mr Stephenson that the records complained of
K are generally in the nature of memory aides and are not for the purpose of K
being a chronicle of every last event that happened during a particular
L L
operation. I considered and accept the evidence and explanation of the
M respective officers as to their inadvertent mistakes or lack of record in their M
respective notebooks, I do not consider this would affect their creditability.
N N
O 87. The focus of the officers was on their respective duties during O
and related to the house search, the officers invariably resorted to their
P P
memory for matters beyond this. Discrepancies in the officers’ evidence
Q concerned matters not directly related to the house search, for example, the Q
sitting arrangement of the defendant’s sisters upon entry, the arrival of Ho
R R
Sik, the arrangement of dinner, the request and arrival of medicine of Lam
S Suet Ying, the arrangement and arrival of Ng Choi Ha, and details of S
individual officers’ action or movement etc. is understandable. I do not
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B B
consider this would affect the creditability and reliability of the officers’
C evidence related to the house search and the admission of the defendant. C
D 88. For the reasons mentioned above, I considered and find the D
prosecution has proved the defendant was in possession of the dangerous
E E
drugs seized beyond all reasonable doubt but failed to prove the defendant
F F
was trafficking in the said drugs. Hence, I convict the defendant of
G
possession of the dangerous drugs accordingly. G
H H
I I
J ( A Yim ) J
Deputy District Judge
K K
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M M
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