A A
B B
DCCC 437/2017
[2018] HKDC 21
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 437 OF 2017
E ____________ E
HKSAR
F v F
RAI SHIVA
G G
____________
H H
Before: HH Judge Dufton
I Date: 11 January 2018 I
Present: Mr Lee Pak Chau, counsel on fiat, for HKSAR
J Mr Chan Pak Kong, instructed by C.K.Mok & Co, J
assigned by the Director of Legal Aid, for the defendant
K
Offences: (1) Trafficking in a dangerous drug K
(販運危險藥物)
L
(2) Possession of liquor for sale without a liquor licence L
(為售賣而無牌管有酒類)
M M
REASONS FOR VERDICT
N N
1. The defendant pleads not guilty to one charge of trafficking
O in 9.39 grammes of cocaine, contrary to section 4 of the Dangerous Drugs O
Ordinance1 and one charge of possession of nineteen cans of beer for sale
P P
without a liquor licence, contrary to sections 17 (3B) and 46 (1) and (3)
Q of the Dutiable Commodities Ordinance 2. Q
R R
S S
T 1
T
Cap 134.
2
Cap 109.
U U
V V
2
A A
B B
Prosecution case
C C
2. In summary the prosecution case is that in the early hours of
D 8 January 2017 DPC 8422 intercepted male Chung Po Shan at the D
intersection of Hart Avenue and Chatham Road South. Chung Po Shan
E E
led DPC 8422 and DPC 9510 to premises on the 13th floor of Tung Wui
F Commercial Building, No. 27 Prat Avenue (“the premises”) which were F
operated as an unlicensed bar. After Chung Po Shan rang the doorbell the
G G
defendant opened the inner door of the premises.
H H
3. Inside the left front pocket of the defendant’s trousers DPC
I I
9510 found a transparent re-sealable bag containing sixteen smaller re-
J sealable plastic bags containing 2.73 grammes of cocaine. J
K K
4. DPC 6826 searched the premises and found inside a safe in
L
the kitchen an electronic balance; a large quantity of empty re-sealable L
plastic bags and a transparent re-sealable bag containing thirty-eight
M M
smaller re-sealable plastic bags containing 6.66 grammes of cocaine. The
N nineteen cans of beer were found inside the refrigerator in the kitchen. N
O 5. The prosecution relies on admissions made by the defendant O
in the premises; the post-recording of those admissions in the police
P P
station and admissions made in a video recorded interview.
Q Q
Defence case
R R
6. The defence case in summary is that the defendant went to
S S
the premises to take drugs; he did not open the door for the police; the
T cocaine found in his trouser pocket was for his own consumption; the T
U U
V V
3
A A
B B
cocaine found in the safe did not belong to him; he did not operate an
C unlicensed bar and the nineteen cans of beer did not belong to him. C
D 7. The defendant did not make any admissions in the premises D
and challenged the admissibility of the oral statements made on arrest; the
E E
post-record and the video recorded interview.
F F
Evidence
G G
8. The prosecution called DPC 9510 (PW1), who arrested the
H H
defendant and conducted the video recorded interview; DPC 6826
I (PW3)3, the exhibits officer and who also took part in the video recorded I
interview; and two interpreters, a Nepalese interpreter Khatiwada Ganga
J J
4
Kumar (PW2) and a Chinese/English police interpreter Lau Lai King
K K
(PW4)5. DPC 8422 (PW5) who intercepted Chung Po Shan; and two
L
senior police officers DSSGT Lo (PW6) and DSIP Au Yeung Tak (PW7), L
the officer in charge, were tendered for cross-examination.
M M
9. Facts have been admitted pursuant to section 65C of the
N N
Criminal Procedure Ordinance6, including the finding of the drugs in the
O defendant’s trousers’ pocket and the nineteen cans of beer in the O
refrigerator; the analysis of the drugs and the beer; photographs 7 ; the
P P
chain of evidence and that the premises was not licensed to sell alcohol.
Q Q
R R
3
PW 2 on the list of witnesses attached to the prosecution opening.
S 4 S
PW 10 on the list of witnesses attached to the prosecution opening.
5
PW 11 on the list of witnesses attached to the prosecution opening.
T 6
T
Cap 221. Exhibits P68 & P68A.
7
Exhibit P65 (1-34).
U U
V V
4
A A
B B
10. The defendant elected to give evidence on both the special
C and general issues. No witnesses were called on his behalf. C
D 11. In reaching my verdict I remind myself of the burden and D
standard of proof and that the burden is on the prosecution throughout.
E E
The defendant has to prove nothing. I direct myself that I must be sure of
F the guilt of the defendant on each charge before I can convict, each F
charge to be considered separately. On the other hand, if the court thinks
G G
that the defence evidence pointing to innocence is true or may be true, it
H would follow that the defence has raised sufficient doubt in the H
prosecution case and the defendant entitled to be acquitted.
I I
J 12. I remind myself that when drawing inferences from the J
evidence a court may only draw an inference if that inference is the only
K K
reasonable inference to draw from the proved facts. If from the facts
L proved there is a reasonable inference to draw against a defendant as well L
as one in his favour the adverse inference cannot be drawn.
M M
N 13. I have carefully considered all the evidence and the N
submissions of Mr Lee and Mr Chan.
O O
Prosecution evidence
P P
Q 14. The alternate procedure was adopted. I will first summarise Q
the prosecution evidence8.
R R
S S
T T
8
Also see §§5-28 of the prosecution closing submission for a summary of the prosecution evidence,
witness by witness.
U U
V V
5
A A
B B
13th floor Tung Wui Commercial Building (“the premises”)
C C
15. In summary in the early hours of 8 January 2017 DPC 9510
D was on duty in plain clothes. At around 02:23 a.m. DPC 9510 received a D
call for assistance from DPC 8422, who had intercepted male Chung Po
E E
Shan at the intersection of Chatham Road South and Hart Avenue in Tsim
F Sha Tsui. F
G G
16. In cross-examination DPC 8422 explained that at around
H 01:50 a.m. he was instructed by DSSGT Lo to carry out an operation on H
the 9th floor of Hai Xin Building on Hart Avenue. DSSGT Lo confirmed
I I
the police had received information that an unlicensed bar where drugs
J were sold was operated on the 9th floor of Hai Xin Building and therefore J
in the early hours of 8 January 2017 he instructed DPC 8422 to go to the
K K
9th floor of Hai Xin Building.
L L
17. On arrival at the building DPC 8422 could see from the
M M
ground floor that the lights on the 9th floor were not on. DPC 8422
N therefore checked the CCTV in the security office. After checking the N
CCTV DPC 8422 went to patrol in the vicinity. DPC 8422 saw a male
O O
acting suspiciously near the entrance of Hai Xin Building whose
P appearance was similar to a male DPC 8422 had seen on the CCTV P
appear twice on the 9th floor. DPC 8422 intercepted the male who was
Q Q
called Chung Po Shan.
R R
18. DPC 8422 made enquiries with Chung Po Shan during which
S Chung Po Shan told DPC 8422 that he had intended to go to an S
unlicensed bar on the 9th floor but the bar was not open and that he was
T T
about to go to an unlicensed bar on the 13th floor of Tung Wui
U U
V V
6
A A
B B
Commercial Building, No. 27 Prat Avenue which had been opened by his
C friend ‘Wah Chai’, who had earlier solicited him to buy dangerous drugs. C
D 19. DPC 9510 went to join DPC 8422. DPC 8422 informed D
DPC 9510 that there were suspected activities of an unlicensed bar and
E E
trafficking dangerous drugs on the 13th floor of Tung Wui Commercial
F Building. Chung Po Shan agreed to take the police to the premises. DPC F
9510 and DPC 8422 together with Chung Po Shan went to the 13th floor
G G
of Tung Wui Commercial Building.
H H
20. On the way DPC 9510 and DPC 8422 met up with their team
I I
members, including the officer in charge DSIP Au Yeung Tak; DSSGT
J Lo; DSGT 34655; DPC 54307 and DPC 13220. DSIP Au Yeung Tak J
instructed DPC 9510; DPC 8422 and DPC 54307 to go to the premises on
K K
the 13th floor together with Chung Po Shan. In cross-examination DPC
L 9510 said he met DSIP Au Yeung Tak on the ground floor of Tung Wui L
Commercial Building.
M M
N 21. Admitted in evidence is that DPC 9510; DPC 8422 and DPC N
9
54307 went to the premises on the 13th floor at around 2:40 a.m. On
O O
reaching the 13th floor Chung Po Shan entered the password and rang the
P doorbell. The defendant opened the wooden door. Before entering the P
premises DPC 9510 showed his warrant card and explained why the
Q Q
police were there. In cross-examination both DPC 9510 and DPC 8422
R agreed the wooden door is the door shown in photograph 4, which was R
described as the inner door.
S S
T T
9
See §2 of the admitted facts, exhibit P68.
U U
V V
7
A A
B B
22. In cross-examination DSSGT Lo said DPC 9510; DPC 8422
C and DPC 54307 went to the 13th floor first and that he followed them by C
taking a different lift. In cross-examination DSIP Au Yeung Tak said he
D D
arrived at the premises at around 02:30. This was earlier than the time he
E said he had seen Chung Po Shan on the ground floor of Tung Wui E
Commercial Building. On clarification by the court DSIP Au Yeung Tak
F F
said he entered the premises around 02:35-02:40.
G G
23. After entering the unit DPC 9510 saw two other males and
H one female in the living room and some alcoholic drinks and glasses on a H
table 10 . In cross-examination DPC 9510 said the three persons were
I I
sitting on the sofa by the table with the alcoholic drinks and glasses as
J J
shown in photograph 15.
K K
24. The police conducted investigation with the persons found in
L the premises. DPC 9510 made investigation with the defendant. This L
took place in the first room after entering the premises on the right side of
M M
the corridor as shown on the sketch 11 and photographs 7 & 8. In cross-
N examination both DSSGT Lo and DSIP Au Yeung Tak said that when N
they entered the premises the defendant was already inside the room.
O O
P 25. DPC 9510 conducted a search on the defendant. Admitted in P
evidence is that a plastic bag containing sixteen packets of cocaine was
Q Q
found in the trousers’ pocket of the defendant12. DPC 9510 said the drugs
R were found in the front left pocket. DPC 9510 also found a bunch of five R
10
S In cross-examination DPC 8422 said that after entering the premises he took Chung Po Shan into S
the second room on the right. After entering the room DPC 8422 was told by other colleagues
that there were two other males and one female inside the premises.
T 11
T
Exhibit P72.
12
See §3 of the admitted facts, exhibit P68 as read with §§5 & 6.
U U
V V
8
A A
B B
keys from the defendant’s trousers’ pocket13. In cross-examination DPC
C 9510 agreed he made no mention of finding the keys from the trousers’ C
pocket of the defendant in either his police notebook or in his witness
D D
statement made on 20 January 2017.
E E
26. At 02:45 a.m. DPC 9510 arrested and cautioned the
F defendant for trafficking in dangerous drugs. DPC 9510 spoke to the F
defendant in Punti. Under caution the defendant replied in Punti that he
G G
planned to sell the cocaine to the customers to make some money.
H H
27. At 02:48 DPC 6826, the exhibit officer, arrived at the
I I
premises together with SGT 52788 and DPC 49045. DSSGT Lo briefed
J them that the premises were believed to be managed as an unlicensed bar J
and that DPC 9510 had found dangerous drugs upon search of the
K K
defendant and had arrested him for trafficking in dangerous drugs. In
L cross-examination DPC 6826 said this briefing took place in the living L
room.
M M
N 28. At 02:50 arrangements were made for the defendant, Chung N
Po Shan and the other three persons to wait in the living room. DPC
O O
9510 took the defendant from the small room to the living room. In the
P living room DPC 9510 handed the drugs and the keys to DPC 6826. P
Q 29. At 03:12 DPC 6826 began to search the premises. The Q
search was witnessed by all the persons in the premises including the
R R
defendant. DPC 9510 and the defendant moved along as DPC 6826
S conducted the search. In cross-examination DPC 6826 said that the S
T T
13
Exhibit P71.
U U
V V
9
A A
B B
defendant and DPC 9510 stood aside to watch the search and therefore
C did not block the vision of the other males and the female. C
D 30. At 03:18 DPC 6826 searched the open kitchen. Inside the D
kitchen was a blue and white coloured safe with the door half open as
E E
shown in photographs 22-24. On the top shelf of the safe DPC 6826
F found a plastic bag inside which were red lined and blue lined transparent F
re-sealable bags containing suspected dangerous drugs. DPC 6826
G G
counted the bags and found there was a total of thirty eight bags
H containing suspected dangerous drugs14. In cross-examination DPC 6826 H
said that on finding the drugs in the safe he shouted out he saw drugs and
I I
that after counting the bags he held the bags in his hands to show the
J J
others in the room saying there were thirty-eight bags.
K K
31. After DPC 6826 found the drugs in the safe DPC 9510
L immediately cautioned the defendant for trafficking in dangerous drugs. L
Under caution the defendant replied in Punti that all the cocaine in the
M M
safe belonged to him and that he planned to sell the cocaine to customers
N for alcoholic drinks to make money 15 . DPC 9510 then cautioned the N
O O
P 14 P
The finding of the drugs is admitted but not where they were found. See §4 (a)-(d) of the
admitted facts, exhibit P68 as read with §§5 & 6.
Q 15
The reference to ‘he planned to sell the cocaine to customers for alcoholic drinks to make money’ Q
in the reply under caution was originally translated as ‘he planned to sell the cocaine to customers
to make money’ with no reference to alcoholic drinks. After reviewing the evidence, I drew to the
R R
attention of the parties and the interpreter that the Chinese characters used for customers appeared
to be different to those used earlier in evidence when DPC 9510 testified as to the reply under
S caution after the first arrest for trafficking in dangerous drugs. The audio was replayed in court. S
Reference was also made to the certification of the reply in the post-record in which the Chinese
characters were originally translated as drinkers. The certified translation corrected this to
T drinking customers. Mr Chan stated both translations were acceptable to the defence. After T
consideration the court interpreter amended his translation from ‘customer’ to ‘customers for
alcoholic drinks’.
U U
V V
10
A A
B B
defendant for operating an unlicensed bar. The defendant replied in Punti
C that he was the person in charge of the unlicensed bar. C
D 32. DPC 6826 also found inside the safe a black electronic D
balance16; a piece of card with the word “Bee” on17; and a black plastic
E E
18 19
bag containing one plastic bag inside which were empty blue lined
F transparent bags and one bag containing empty red lined re-sealable F
plastic bags20. On top of the safe DPC 6826 found a piece of paper 21; a
G G
22 23
tenancy agreement and a demand for rates .
H H
33. In the kitchen DPC 6826 found nineteen cans of beer24and
I I
ten bottles of non-alcoholic drink25 in the refrigerator. DPC 6826 also
J found in the kitchen seventeen glasses and fourteen ashtrays 26 ; three J
plastic jugs with the name Johnnie Walker 27 ; a pair of tongs 28 and a
K K
plastic container29.
L L
M M
16
Exhibit P57. Also see §4 (b) of the admitted facts, exhibit P68.
N N
17
Exhibit P58. Also see §4 (d) of the admitted facts, exhibit P68.
18
Exhibit P80.
O O
19
Exhibit P81.
20
P Exhibit P59. Also see §4 (c) of the admitted facts, exhibit P68. P
21
Exhibit P79.
22
Q Exhibit P78. Q
23
Exhibit P82.
R 24
Exhibit P60. Also see §4 (e) of the admitted facts, exhibit P68. R
25
Exhibit P83.
S 26 S
Exhibits P61 & P62. Also see §4 (f) of the admitted facts, exhibit P68.
27
Exhibit P84.
T 28
T
Exhibit P85.
29
Exhibit P86.
U U
V V
11
A A
B B
34. In the living room DPC 6826 seized from the table shown in
C photograph 17 the bottle of whiskey 30 ; the four glasses containing C
31 32
alcohol and the four dice cups with twenty dice .
D D
35. After the search was completed DPC 9510 took the
E E
defendant back to the first room where he issued a Notice to Persons in
F Custody33. DPC 9510 explained the notice to the defendant in Punti. The F
defendant said he understood the notice, had no requests and signed on
G G
the notice.
H H
36. The police then waited for the arrival of officers from the
I I
Identification Bureau to lift fingerprints and take photographs. At around
J 7:30 a.m. after the police had finished their work in the premises DPC J
9510 took the defendant to the Tsim Sha Tsui police station.
K K
L
37. In cross-examination DPC 9510 said that the defendant, L
Chung Po Shan and the other three persons found in the premises were all
M M
taken to the police station in the same police vehicle. DPC 9510 escorted
N the defendant and DPC 8422 escorted Chung Po Shan. N
O Tsim Sha Tsui Police Station O
P P
38. At 07:41 DPC 9510 issued another Notice to Persons in
Q Custody34 this time together with a Nepalese version 35. DPC 9510 again Q
R 30
Exhibit P87. R
31
Exhibit P88
S 32 S
Exhibit P89.
33
Exhibit P73.
T 34
T
Exhibit P74.
35
Exhibit P74B.
U U
V V
12
A A
B B
explained the content to the defendant. The defendant said he understood;
C had no request to make and signed on both the Chinese and Nepalese C
versions of the notice.
D D
39. After the defendant was returned to the custody of the Duty
E E
Officer DPC 9510 post-recorded the arrest of the defendant in his police
F notebook36. DPC 9510 testified that the post-record accurately recorded F
the arrest and caution and the replies made by the defendant. In cross-
G G
examination DPC 9510 said he had contacted the Nepalese interpreter
H who said he would only be available to help the next day. H
I I
40. At 8:37 the next morning DPC 9510 took the defendant
J from the custody of the Duty Officer. With the assistance of the Nepalese J
interpreter Khatiwada Ganga Kumar, DPC 9510 issued another Notice to
K K
Persons in Custody37. The notice was bilingual in Chinese and English.
L The Nepalese interpreter interpreted the notice to the defendant in L
Nepalese who signed after saying he understood his rights. The
M M
defendant had no requests to make.
N N
41. The post-record was translated into English in the note book
O O
of DPC 9510 by the police interpreter Lau Lai King38 and from English
P into Nepalese by the Nepalese interpreter Khatiwada Ganga Kumar 39. P
Q 42. After the Nepalese interpreter completed writing the Q
Nepalese translation he read the post-record to the defendant in Nepalese
R R
S 36 S
Exhibit P69 (1), pages 15-23.
37
Exhibit P75.
T 38
T
Pages 30-42, exhibit P69(1).
39
Pages 43-57, exhibit P69(1).
U U
V V
13
A A
B B
after which DPC 9510 asked the defendant whether he had any alterations,
C corrections or additions to make. The defendant replied “No need”. DPC C
9510 then wrote out the ending declaration which was also translated into
D D
English and Nepalese in his note book40. After the Nepalese interpreter
E read the declaration the defendant signed the notebook. E
F 43. DPC 9510 then served a copy of the post-record to the F
defendant which the defendant acknowledged receipt of at 11:35 a.m.
G G
41
after the Nepalese interpreter had translated the content to him .
H H
44. After completing the post-record DPC 9510 together with
I I
DPC 6826 conducted a video recorded interview 42 . The interview
J commenced at 11:41 and finished at 12:54. The defendant acknowledged J
receipt of a copy of the interview43. The Nepalese interpreter also acting
K K
as a witness interpreted the content of the receipt before the defendant
L signed acknowledging receipt. L
M M
Voir dire
N N
45. The defence objected to the admissibility of the replies
O attributed to the defendant in answer to caution (“the oral statements”); O
the post-recording of those replies44 and the video recorded interview45.
P P
Q Q
R 40
A new police notebook (exhibit P69(2)) was used to complete the declaration. R
41
Exhibit P76. The receipt was in English only.
S 42 S
Exhibit P70.
43
Exhibit P77.
T 44
T
Exhibit P69.
45
Exhibit P70.
U U
V V
14
A A
B B
46. Guided by the decision in HKSAR v Okafor46as applied in
C HKSAR v Ip Chun Yin47these are my reasons for ruling the oral statements, C
the post-record and the video recorded interview admissible in evidence.
D D
47. The defence objected to the admissibility on the grounds of
E E
threats, violence and inducements as particularised in the written grounds
F of objection submitted by Mr Chan 48. F
G G
Prosecution evidence
H H
48. The prosecution relied on the evidence of DPC 9510; DPC
I 6826 and the two interpreters Khatiwada Ganga Kumar and Lau Lai King I
together with the evidence of DPC 8422; DSSGT Lo; and DSIP Au
J J
Yeung Tak who were tendered for cross-examination.
K K
49. DPC 9510; DPC 6826 and DPC 8422 testified that they did
L L
not nor did anybody else in their presence at any time threaten or assault
M the defendant or make any promises or offer any inducements 49. The M
interpreters both testified that they did not see anyone threaten, hit,
N N
induce or make any promises to the defendant. All seven prosecution
O witnesses denied the allegations put to them as contained in the grounds O
of objection.
P P
Q Q
R R
46
[2012] 1 HKLRD 1041.
S S
47
CACC 241/2014.
T
48
See the written grounds of objection, marked “A” for identification. T
49
Mr Lee asked DPC 8422 a few questions but did not ask DSSGT Lo and DSIP Au Yeung Tak any
questions.
U U
V V
15
A A
B B
Defence evidence
C C
50. The defendant gave evidence in English 50 . No witnesses
D were called on his behalf. The defendant’s evidence was largely D
consistent with the grounds of objection save that he did not give
E E
evidence that he was taught what to say as particularised in paragraph 25
F of the grounds of objection including that he was taught to say that he F
bought the wine and beer from Wellcome supermarket; the bar had just
G G
been operated for a few days; the opening had been delayed; he should
H not mention the name of the seller of the drugs and should say he sold the H
drugs to customers for earning money.
I I
J 51. With regard to what the defendant was told to say in the J
video recorded interview in evidence-in-chief the defendant testified that
K K
in the premises DPC 9510 told him that he should know there were
L glasses, beer, glass plates and other items51; that the small key was for the L
safe and the big key for the main door52 and explained to him about the
M M
electronic scale.
N N
52. In the police station just before the video recorded interview
O O
was conducted the defendant testified he was taken to the toilet where he
P was given a cigarette. DPC 9510 told him the same things that he had to P
Q 50
The defendant initially began giving evidence in Nepalese. However, after a few minutes the Q
defendant said he was not satisfied with the English translation of the Nepalese interpreter and
asked to give evidence in English. I gave leave to Mr Chan to discuss with the defendant in what
R R
language he wished to give his evidence. After discussing with Mr Chan the defendant confirmed
he wished to give evidence in English. A new Nepalese interpreter was arranged who remained in
S court to interpret whenever the defendant was unable to express himself in English or did not S
understand what was asked. The Nepalese interpreter was only called upon once during the
evidence of the defendant to translate one word from Nepalese into English.
T 51
T
Also see §24 of the written grounds of objection.
52
Also see §22 of the written grounds of objection.
U U
V V
16
A A
B B
be strong and to face earth when answering questions53. The defendant
C said he had first been told of this inside the premises54. The defendant C
explained he was told to say whatever was found in the premises was his
D D
and whatever he was shown was his.
E E
53. In cross-examination when Mr Lee put to the defendant that
F there was no agreement reached with DPC 9150 and DSSGT Lo as to F
what he should say in the video recorded interview and that he was not
G G
taught what to say, the defendant replied the agreement was with Chung
H Po Shan and not the police and that the police instructed him how to H
answer the questions but did not tell him exactly what to say.
I I
J Discussion J
K K
54. I carefully considered all the evidence and the submissions
L
of Mr Lee and Mr Chan. Although the evidence of what happened in the L
premises and at the police station were inter-related I considered the
M M
admissibility of the oral statements; the post-record and the video
N interview separately. N
O 55. The issue was one of credibility. I had no hesitation in O
rejecting the defendant’s evidence. I did not find his evidence credible.
P P
The rejection of the defence evidence was not determinative of
Q admissibility. The burden of proving admissibility was on the Q
prosecution to prove beyond reasonable doubt.
R R
S S
53
Also see §30 of the written grounds of objection.
T 54
T
Also see §21 of the written grounds of objection.
U U
V V
17
A A
B B
56. Having carefully considered all the evidence I was satisfied
C so I was sure that the police officers and interpreters were witnesses of C
truth who gave credible and reliable evidence.
D D
The premises
E E
F 57. I did not find credible the defendant’s evidence that because F
drugs had been found on his body and therefore he was going to prison
G G
and that Chung Po Shan said he had a newly born baby to look after;
H would give the defendant $50-60,000; and that the case might not go to H
the District Court55, he agreed with Chung Po Shan that he would say the
I I
place was his and all the drugs were his.
J J
58. Mr Chan submitted that the evidence of the police officers
K K
was too good to be true; unbelievable and laughable, in particular that
L
Chung Po Shan went to the premises voluntarily; witnessed the search L
and was also arrested for trafficking in the drugs found in the safe; there
M M
was no conversation between Chung Po Shan and the defendant; and that
N DPC 8422 did not know who informed the lawyer of Chung Po Shan to N
56
go to the premises .
O O
59. I accepted the evidence of DPC 8422 that he intercepted
P P
Chung Po Shan who agreed to take the police to the premises on the 13th
Q floor of Tung Wui Commercial Building having told the police the Q
premises were opened by his friend ‘Wah Chai’, who had earlier solicited
R R
him to buy drugs. In the circumstances I did not find surprising Chung
S Po Shan was taken to the premises, witnessed the search and was also S
T 55
T
Also see §§10-18 of the written grounds of objection.
56
See §§5-9 of the defendant’s closing submissions on the special issue.
U U
V V
18
A A
B B
arrested. Equally I did not find surprising there was no conversation
C between Chung Po Shan and the defendant or that DPC 8422 did not C
know who informed the lawyer to go to the premises.
D D
60. Mr Chan also submitted that DPC 9510 was not honest and
E E
reliable and had not told the whole truth. The basis of this submission
F was two-fold. First, the evidence of DPC 9510 that while in the premises F
he did not know the nickname of the defendant was “Wah Chai” whereas
G G
DSIP Au Yeung Tak testified he was told by DPC 9510 that defendant’s
H nickname was “Wah Chai”. Second, towards the end of the video H
recorded interview the defendant addressed DPC 9510 as “Mak Sir”,
I I
whereas in cross-examination DPC 9510 disagreed he introduced himself
J
to the defendant as “Mak Sir”57. J
K K
61. In the video recorded interview DPC 9510 does not
L introduce himself as “Mak Sir” or refer to the defendant as “Wah Chai”. L
In the interview when DPC 6826 asks the defendant how his friends
M M
addressed him, the defendant replied “Wah Chai” 58 . Thereafter DPC
N 6826 referred to the defendant as “Wah Chai”. N
O O
62. Whilst it was not possible to reconcile the inconsistency in
P the evidence between DPC 9510 and DSIP Au Yeung Tak I found this P
discrepancy did not cause me to doubt the evidence of DPC 9510.
Q Q
Similarly, the fact the defendant towards the end of the video recorded
R interview referred to DPC 9510 as “Mak Sir” did not cause me to doubt R
the evidence of DPC 9510, whose name is Lui Tak Ming.
S S
T T
57
See §10 of the defendant’s closing submissions on the special issue.
58
See counters 886-895.
U U
V V
19
A A
B B
63. I rejected the defendant’s evidence that in the premises he
C and Chung Po Shan were both assaulted by the police and that the police C
told Chung Po Shan to settle the matter after which Chung Po Shan
D D
reached a deal with the defendant that he would say the place was his and
E all the drugs were his. E
F 64. Not only did the defendant admit possession of all the drugs F
but also that he sold drugs and that he planned to sell the drugs found on
G G
59
him and in the safe to drinking customers to earn money . I find
H inherently improbable that anyone would admit drugs belonged to them H
when in fact they belonged to someone else and also admit those drugs
I I
were for sale.
J J
65. Having carefully considered all the evidence and the
K K
submissions made I found I was satisfied beyond reasonable doubt that
L the oral statements, if said, were said voluntarily, each reply being L
considered separately.
M M
N The police station N
O Post-record O
P P
66. I did not find credible the defendant’s evidence that he did
Q not pay attention to what the Nepalese interpreter read out to him because Q
the police officers were playing on their mobile phones and talking loudly
R R
so he could not hear what the Nepalese interpreter said and that he just
S signed without paying attention to what was written because the police S
T T
59
See post-record and the video recorded interview counters 317-322; 444-452; 485-563; 602-673
and 702-714.
U U
V V
20
A A
B B
told him to do as they say60. In cross-examination the defendant said he
C did not pay attention because a deal had already been reached. C
D 67. I found inherently improbable that DPC 9510 having gone to D
the trouble of writing down the post-record and arranging for a translation
E E
to be made in English and Nepalese, which took in the region of three
F hours to complete, that the defendant would sign the notebook without F
first finding out what was written in the notebook 61 . I accepted the
G G
evidence of the Nepalese interpreter that he read the post record to the
H defendant who said there was no need to make any correction and that he H
did not remember the police officers talking loudly or the defendant
I I
asking him to tell the police to keep quiet.
J J
68. In the video recorded interview DPC 9510 recited the arrest
K K
of the defendant and the replies made by the defendant62. When DPC
L 9510 was reciting the finding of the drugs in the safe the defendant L
queried what was translated saying he wanted to know clearly what
M M
exactly was being said before he could agree with what DPC 9510 said63.
N This shows the defendant paid attention to what was said to him. N
O O
69. Having carefully considered all the evidence and the
P submissions made I found I was satisfied beyond reasonable doubt that P
the post-record was signed voluntarily.
Q Q
R R
S 60 S
Also see §27 of the written grounds of objection.
61
See for example HKSAR v Ng Ka Ho CACC 283/2011.
T 62
T
See counters 113-264.
63
See counters 161-246.
U U
V V
21
A A
B B
70. In reaching this finding I considered the evidence of DPC
C 9510, given in cross-examination, that whilst in the premises he also post- C
recorded the replies in his notebook. This is found on pages 12-13 of the
D D
notebook64. Mr Lee explained that the prosecution did not rely on the
E post-record on pages 12 and 13 and therefore did not ask DPC 9510 any E
questions about this part of the notebook or translate this part for
F F
certification.
G G
71. Mr Chan submitted that this evidence was totally
H unbelievable65. In summary in cross-examination Mr Chan first referred H
DPC 9510 to the entry at 02:45 (page 12) where DPC 9510 recorded the
I I
arrest and caution of the defendant for trafficking in dangerous drugs and
J J
the reply of the defendant under caution. DPC 9510 said he read the
K
content to the defendant and asked the defendant to sign if he agreed that K
is what he said under caution. DPC 9510 also gave the defendant the
L L
opportunity to read the notebook but did not ascertain whether the
M
defendant could read or write Chinese. The defendant signed the M
notebook. DPC 9510 said he forgot to mention about making this record
N N
in his evidence-in-chief.
O O
72. Later in cross-examination Mr Chan referred DPC 9510 to
P the entries at 03:21 and 03:24 on pages 12 and 13 where DPC 9510 P
recorded the arrest and reply to caution for trafficking in dangerous drugs
Q Q
found in the safe and for operating an unlicensed bar. DPC 9510 said he
R also forgot to mention this in his evidence-in-chief. R
S S
64
Exhibit P69 (1).
T T
65
See §12 of the defendant’s closing submissions on the special issue.
U U
V V
22
A A
B B
73. DPC 9510 agreed that when he made the post record on
C pages 15-23 he copied the defendant’s replies as recorded at pages 12-13. C
When asked by Mr Chan why he did not ask the defendant to sign as he
D D
had done in the premises DPC 9510 replied that when serving the Notice
E to Persons in Custody in the police station (exhibit P74) the defendant E
indicated he needed a Nepalese version to read (exhibit P74B) therefore
F F
DPC 9510 wrote the post-record out first before the arrival of the
G Nepalese interpreter. G
H 74. The fact that DPC 9510 forgot to tell the court in his H
evidence-in-chief that whilst in the premises he also recorded in his
I I
notebook the replies of the defendant which he asked the defendant to
J J
sign did not cause me to doubt that the subsequent post-record was signed
K
by the defendant voluntarily. Neither did the fact that DPC 9510 waited K
until the next day when the Nepalese interpreter arrived before reading
L L
this post-record to the defendant.
M M
Video recorded interview
N N
75. I had no hesitation in rejecting the defendant’s evidence that
O O
he speaks only simple Chinese and that it was suggested by DPC 9510
P that he speaks Cantonese in the video recorded interview so that the P
interview would finish faster66.
Q Q
76. Whilst I cannot judge the proficiency of the defendant’s
R R
Cantonese the transcript of the video recorded interview shows that the
S defendant has a good understanding of Cantonese. In cross-examination S
the defendant agreed that he had no difficulty understanding the Chinese
T T
66
Also see §30 of the written grounds of objection.
U U
V V
23
A A
B B
spoken by the police officers and had no difficulty in answering the
C questions in Chinese. C
D 77. This was also clear from his evidence in court, the defendant D
throughout frequently quoting verbatim what the police officers said in
E E
67
Cantonese . Further, on one occasion the defendant corrected the
F English translation by the court interpreter of what he said in Chinese. F
G G
78. The transcript from counters 161-220 show that the
H defendant questioned whether there was a mistake in the translation of H
what DPC 9510 said when reciting the finding of the drugs in the safe.
I I
This led to the defendant requesting DPC 9510 to speak to him direct in
J Chinese and that if he did not understand he would ask for a Nepalese J
translation. The defendant then began speaking in Chinese (Punti dialect).
K K
DPC 9510 however said the translation would continue and that they
L would take their time in doing the translation. L
M M
79. After finishing reciting the finding of the drugs in the safe
N and the arrest of the defendant DPC 9510 cautioned the defendant and N
asked which language he wished to speak. The defendant said Chinese.
O O
When DPC 9510 clarified whether this was Cantonese, the Punti dialect,
P the defendant replied in Punti dialect “Hong Kong Punti dialect, Ah Sir”. P
DPC 9510 also said that if the defendant did not understand his Chinese
Q Q
he could ask to change to the Nepalese language 68.
R R
80. From that point on no more Nepalese was spoken. After a
S few more questions were asked DPC 9510 asked the defendant if he S
T 67
T
The court interpreter translated these in court into English.
68
See counters 221-298.
U U
V V
24
A A
B B
could understand the Punti dialect, Cantonese he spoke. The defendant
C replied he understood what had been said so far69. C
D 81. In the grounds of objection, the defendant is said to have D
become angry at the end of the interview when the police asked him
E E
about the 9th floor. This was because the defendant had only agreed to
F admit possessing the drugs found in the premises and operating the bar. F
After the interview finished and before the interpreters left the police
G G
70
scolded the defendant and asked if he wanted to be beaten .
H H
82. In evidence the defendant said he became angry when the
I I
police showed him exhibits he had never seen before which were not part
J of the deal. Whilst the transcript clearly shows the defendant becoming J
angry and swearing at the police officers when they showed him the
K K
exhibits I rejected this was because there was a deal71.
L L
83. The transcript shows the defendant was unhappy about
M M
alcohol found in glasses having been put in plastic bottles. When DPC
N 6826 starts to show him these exhibits the defendant immediately asks N
what are the white ones. After DPC 6826 explains what happened was
O O
normal procedure and that it was impossible to keep the liquor in the
P glass the defendant said he understood and that he was sorry. P
Q 84. The fact that the defendant at the end of the interview said Q
that he told a lie about the 9th floor did not cause me to doubt the
R R
prosecution evidence. On his own evidence the defendant said he also
S S
69
See counters 291-336.
T
70
See §§32-33 of the written grounds of objection and §13 of the defendant’s closing submissions T
on the special issue.
71
See counters 1191-1249.
U U
V V
25
A A
B B
told the police at the premises he slept at the 9th floor and when shown
C the keys that three of them were for the 9th floor72. C
D 85. I accepted the evidence of the interpreters that they did not D
remember the defendant being shouted at or threatened after the interview
E E
was concluded. I rejected the defendant’s evidence that when he was
F taken to the 9th floor the police threw away everything they found 73. F
G G
86. I rejected the defendant’s evidence that in the premises he
H reached a deal with Chung Po Shan to admit possession of all the drugs H
found in the premises and that the place was his. I rejected the
I I
defendant’s evidence that the police told him to say whatever was found
J in the premises was his. J
K K
87. Not only did the defendant admit possession of all the drugs
L
but also that he sold drugs and that he planned to sell the drugs found on L
74
him and in the safe to drinking customers to earn money . I find
M M
inherently improbable that anyone would admit drugs belonged to them
N when in fact they belonged to someone else and also admit those drugs N
were for sale.
O O
88. Having carefully considered all the evidence and the
P P
submissions made I found I was satisfied beyond reasonable doubt that
Q the video recorded interview was given by the defendant voluntarily. Q
R R
72
S Also see §22 of the written grounds of objection. S
73
See §§34-35 of the written grounds of objection and §14 of the defendant’s closing submissions
T on the special issue. T
74
See post-record and the video recorded interview counters 317-322; 444-452; 485-563; 602-673
and 702-714.
U U
V V
26
A A
B B
89. In reaching my findings I also considered the submission of
C Mr Chan that the defendant was induced by the payment of bail in respect C
75
of an outstanding warrant of arrest . Admitted in evidence was that DPC
D D
9510 executed a warrant of arrest at 9:30 a.m. on 8 January 76. This was
E around two hours after arriving at the police station. Also admitted in E
evidence is that at 14:36 the same day the bail paper was issued after cash
F F
bail of $4,000 was paid77.
G G
90. In cross-examination DPC 9510 agreed that no money was
H found on the defendant. When asked if he knew the $4,000 bail was paid H
DPC 9510 said he was not clear because as far as he knew the defendant
I I
was not given bail that day. DPC 9510 disagreed he told the defendant
J J
that it would be better for him to pay; asked Chung Po Shan to pay on
K
behalf of the defendant and that Chung Po Shan having only $2,000 K
asked the other arrested persons to pay.
L L
91. I accepted the evidence of DPC 9510 that he did not tell the
M M
defendant it would be better if he paid the bail money and asked Chung
N Po Shan to pay for him. The payment of bail for the warrant of arrest did N
not cause me to doubt the prosecution evidence and did not cause me to
O O
doubt that the next day the post-record was signed voluntarily and the
P video recorded interview was given voluntarily. P
Q Q
R R
75
See §28 of the written grounds of objection and §§15-17 of the defendant’s closing submissions
S S
on the special issue.
76
See §2 of the further admitted facts, exhibit P68A.
T 77
T
See §3 of the further admitted facts, exhibit P68A.
U U
V V
27
A A
B B
92. Nothing said by Mr Chan caused me to doubt the
C prosecution evidence and that the oral statements, if said, were said C
voluntarily; the post-record was signed voluntarily and the video recorded
D D
interview was given voluntarily.
E E
93. I was satisfied so I was sure the defendant was not assaulted,
F threatened, induced or made any promises. F
G G
94. At all times the defendant was made aware of his rights. The
H defendant was served three Notices to Persons in Custody. First in the H
premises (exhibit P73); second on arrival at the police station (exhibit
I I
P74) together with a Nepalese translation (exhibit P74B) and third prior
J to the video recorded interview (exhibit P75), the content of which was J
translated to the defendant by the Nepalese interpreter and which the
K K
defendant confirmed in the video recorded interview he had received and
L had no request to make 78. The defendant was further cautioned at the L
beginning of the video recorded interview79.
M M
N 95. Applying the principles established in HKSAR v Lam Tat- N
ming 80 I found no grounds to exercise my discretion to exclude from
O O
evidence the oral statements attributed to the defendant; the post-
P recording of those statements or the video recorded interview on the P
grounds of unfairness.
Q Q
R R
S S
78
See counters 45-65.
T 79
T
See counters 265-277.
80
[2000] 2 HKLRD 431.
U U
V V
28
A A
B B
Trafficking in a dangerous drug and possession of liquor for sale without
C a liquor licence C
D Prosecution evidence D
E E
96. The prosecution relies on the evidence of DPC 9510 and
F DPC 6826 together with the evidence of DPC 8422; DSSGT Lo and F
DSIP Au Yeung Tak who were tendered for cross-examination. This
G G
evidence has already been summarised81.
H H
97. Briefly, after Chung Po Shan pressed the doorbell of the
I premises the defendant opened the inner door. DPC 9150 revealed his I
police identity and entered the premises. Two other males and a female
J J
were found in the living room.
K K
98. Shortly after the police commenced their investigation. The
L L
defendant was taken into a small room where DPC 9510 conducted a
M search on the defendant. Admitted in evidence is that a plastic bag M
containing sixteen packets of cocaine was found in the trousers’ pocket of
N N
the defendant82. DPC 9510 also found a bunch of five keys from the
O defendant’s trousers’ pocket83. O
P P
99. At 02:45 a.m. DPC 9510 arrested and cautioned the
Q defendant for trafficking in dangerous drugs. Under caution the Q
defendant replied in Punti that he planned to sell the cocaine to the
R R
customers to make some money.
S S
81
See §§14-36.
T 82
T
See §3 of the admitted facts, exhibit P68 as read with §§5 & 6.
83
Exhibit P71.
U U
V V
29
A A
B B
100. At 03:12 DPC 6826 began to search the premises in the
C presence of the defendant, Chung Po Shan and the other persons found in C
the premises. On the top shelf of the blue and white coloured safe DPC
D D
6826 found a plastic bag inside which was a total of thirty eight bags
E containing cocaine84. E
F 101. DPC 9510 immediately cautioned the defendant for F
trafficking in dangerous drugs. Under caution the defendant replied in
G G
Punti that all the cocaine in the safe belonged to him and that he planned
H to sell the cocaine to customers for alcoholic drinks to make money. H
DPC 9510 then cautioned the defendant for operating an unlicensed bar.
I I
The defendant replied in Punti that he was the person in charge of the
J J
unlicensed bar.
K K
102. DPC 6826 also found inside the safe a black electronic
L balance85; a piece of card with the word “Bee” on86; and a black plastic L
bag 87 containing one plastic bag 88 inside which were empty blue lined
M M
transparent bags and one bag containing empty red lined re-sealable
N plastic bags89. On top of the safe DPC 6826 found a piece of paper 90; a N
tenancy agreement91 and a demand for rates92.
O O
P 84
The finding of the drugs was admitted but not where they were found. See §4 (a)-(d) of the P
admitted facts, exhibit P68 as read with §§5 & 6.
85
Q Exhibit P57 as read with §4 (b) of the admitted facts, exhibit P68. Q
86
Exhibit P58 as read with §4 (d) of the admitted facts, exhibit P68.
R 87
Exhibit P80. R
88
Exhibit P81.
S 89 S
Exhibit P59 as read with §4 (c) of the admitted facts, exhibit P68.
90
Exhibit P79.
T 91
T
Exhibit P78.
92
Exhibit P82.
U U
V V
30
A A
B B
103. From the refrigerator DPC 6826 found nineteen cans of
C beer93and ten bottles of non-alcoholic drink94. In the kitchen DPC 6826 C
95
found seventeen glasses and fourteen ashtrays ; three plastic jugs with
D D
the name Johnnie Walker96; a pair of tongs97 and a plastic container98. In
E the living room DPC 6826 seized from the table shown in photograph 17 E
the bottle of whiskey99; the four glasses containing alcohol 100and the four
F F
dice cups with twenty dice 101.
G G
104. Admitted in evidence is the Government Chemist Certificate
H certifying all the drugs found contained cocaine and that the electronic H
balance and the piece of card contained traces of cocaine102.
I I
J 105. Admitted in evidence is that the Government Chemist J
examined one of the nineteen cans of beer which was found to contain
K K
alcohol and that the premises were not licensed to sell alcohol 103.
L L
106. The prosecution also relies on the post-record of the oral
M M
statements and the admissions made in the video recorded interview,
N including that the defendant bought about 20 grammes of cocaine for N
O O
93
Exhibit P60 as read with §4 (e) of the admitted facts, exhibit P68.
94
P Exhibit P83. P
95
Exhibits P61 & P62 as read with §4 (f) of the admitted facts, exhibit P68.
96
Q Exhibit P84. Q
97
Exhibit P85.
R 98
Exhibit P86. R
99
Exhibit P87.
S 100 S
Exhibit P88
101
Exhibit P89.
T 102
T
See exhibit P63 as read with §6 of the admitted facts, exhibit P68
103
See §§7 & 12 of the admitted facts, exhibit P68.
U U
V V
31
A A
B B
$8,000-$9,000; divided the cocaine into smaller bags for sale at $400;
C placed the cocaine in the bar, some in the safe and some in his trousers’ C
104
pocket and sold the cocaine to earn money but did not sell any that day ;
D D
the electronic scale; a paper card and re-sealable transparent plastic bags
E were for measuring and dividing the cocaine 105; and that he operated the E
premises as a bar; one of the keys found on him was for the main gate; he
F F
paid about $20,000 per month for rent; sold the cans of beer to customers
G and sold liquor and cocaine in the premises106. G
H Defence evidence H
I I
107. In summary the defendant testified that after finishing his
J work in Chungking Mansions he walked towards Hart Avenue where he J
met Chung Po Shan, someone he had known for around one year. Chung
K K
Po Shan asked the defendant if he wanted to play some drugs. The
L defendant replied yes. Chung Po Shan then walked towards Hai Xin L
Building but did not go inside and continued instead to Prat Avenue
M M
where he took the defendant to the premises.
N N
108. The defendant said he must have met Chung Po Shan after
O O
11 p.m. and believed he arrived at the premises at around 12 explaining
P that the shop in Chungking Mansions having closed at 11 p.m. he walked P
to Mody Road and then to Hart Avenue. In cross-examination the
Q Q
defendant said that he first went for a meal before walking to Hart
R Avenue. R
S S
104
See counters 317-563; 602-714; 878-1022 & 1023-1064.
105
T See counters 1065-1095. T
106
See counters 562-673; 714-877 & 1147-1275. Also see §§31 (5) and 32 (5) of the prosecution
closing submission.
U U
V V
32
A A
B B
109. Inside the premises Chung Po Shan asked the defendant how
C much drugs he wanted. The defendant replied that he only had around C
$1,200 with him. Chung Po Shan then went towards the toilet and when
D D
he returned he gave the defendant twenty packets of cocaine. The
E defendant was sitting at the table shown on photograph 16 on which can E
be seen some bottles and a banana. Chung Po Shan and the defendant
F F
then smoked four of the packets of cocaine.
G G
110. After smoking the cocaine Chung Po Shan wrote something
H on a piece of paper. After a while the doorbell rang. Chung Po Shan H
opened the door and let in two males and one female. They sat at the
I I
table opposite the defendant and talked with Chung Po Shan. The
J J
defendant did not pay attention to what they said. Chung Po Shan also
K
served them with beer or whiskey. K
L 111. After a while Chung Po Shan said he was going out to buy L
some cigarettes. The defendant remained in the premises explaining that
M M
from his experience of taking cocaine he needed to sit in one place for 20-
N 30 minutes without moving or talking to anyone. In cross-examination N
the defendant said that Chung Po Shan did not instruct him to look after
O O
the premises on his behalf or look after the other three customers.
P P
112. About 40-50 minutes later Chung Po Shan returned
Q Q
accompanied by police officers. The defendant adopted his evidence
R given on the voir dire as to what happened when the police arrived. In R
summary the defendant testified that he was sitting at the same table
S S
when the police entered the premises and did not open the inner door for
T the police. T
U U
V V
33
A A
B B
113. On seeing Chung Po Shan the defendant stood up. Chung Po
C Shan addressing the defendant by his Chinese name “Wah Chai” told the C
defendant to take everything out. The defendant replied he only had
D D
sixteen packets left. The police then said “Don’t move we are police
E officers” at which time the defendant realised the persons with Chung Po E
Shan were police officers.
F F
114. DPC 9510 then took the defendant to a small room near the
G G
entrance of the premises. The defendant told DPC 9510 there were drugs
H in his trousers’ pocket. DPC 9510 then seized the drugs and left the room. H
I I
115. When DPC 9150 returned to the room he asked the
J defendant where the key to the locker was. The defendant told DPC 9150 J
that he did not know and that he only went to the premises with Chung Po
K K
Shan to take some drugs.
L L
116. The defendant remained in the room throughout and did not
M M
witness the search of the premises, including the finding of the drugs in
N the safe. N
O 117. While in the room the defendant heard Chung Po Shan being O
assaulted. Afterwards Chung Po Shan was brought into his room. Chung
P P
Po Shan asked the defendant to do him a favour by saying the place was
Q his and all the drugs were his. The defendant having drugs in his pocket Q
for which he would be going to prison and Chung Po Shan promising him
R R
$50,000-$60,000 and saying the case would not go to the District Court
S the defendant agreed to Chung Po Shan’s proposal. S
T T
U U
V V
34
A A
B B
118. No keys were found on the defendant. A police officer
C brought the keys into the room and placed them on a table. The C
defendant told DPC 9510 that he recognised three keys for the 9th floor
D D
but did not know about the other two. DPC 9510 told him one was for
E the locker and one for the main door. E
F 119. The defendant was never cautioned in the premises and F
never said that he planned to sell the cocaine to the customers to make
G G
some money; that all the cocaine in the safe belonged to him and that he
H planned to sell the cocaine to customers for alcoholic drinks to make H
money; and that he was the person in charge of the unlicensed bar.
I I
J 120. In the video recorded interview, the defendant said he lied J
when telling the police that he operated the premises as an unlicensed bar
K K
because DPC 9510 had directed him to say what was found in the
L premises was his. The defendant also lied when he said the sixteen L
packets were for sale to others to earn money; the drugs found in the safe
M M
were his and were for sale to drinking customers and that the monthly
N rental was around $20,000. The defendant said he lied because of the N
deal he had with Chung Po Shan.
O O
P 121. In cross-examination when Mr Lee put that the defendant P
was not instructed by DPC 9510 or any police officer on how to answer
Q Q
questions in the video recorded interview, the defendant replied that
R maybe he was not instructed how to answer all the questions but was told R
to say yes to most questions and to accept that everything found in the
S S
premises was his.
T T
U U
V V
35
A A
B B
122. The defendant testified he had been to the premises two or
C three times before with Chung Po Shan; that he believed Chung Po Shan C
owned all the items found in the premises; and that nothing in the
D D
premises belonged to him.
E E
123. The defendant also testified that he takes cough syrup daily
F and cocaine when he has money, sometimes two to three times per week F
or only once a week. The defendant would usually buy his cocaine in
G G
Tsim Sha Tsui from Chung Po Shan. When taking drugs alone the
H defendant would usually smoke ten to fifteen packets over five to six H
hours.
I I
J 124. In January 2017 the defendant said he would stand in Ap Liu J
Street and buy second hand mobile phones which he would sell to repair
K K
shops for a profit. On average the defendant said he would earn less than
L $20,000 each month. On the night he was arrested the defendant took six L
to seven mobile phones to the repair shop in Tsim Sha Tsui and sold them
M M
for a profit. In cross-examination the defendant said the work he had that
N night in Chungking Mansion was the selling of the mobile phones to the N
repair shop and that he made a profit of around $1,500.
O O
P Discussion P
Q 125. I have carefully considered all the evidence and the Q
submissions of Mr Lee and Mr Chan.
R R
S 126. I have no hesitation in rejecting the defendant’s evidence. I S
do not find his evidence credible, for example I do not find credible the
T T
defendant’s evidence he was taken to the premises by Chung Po Shan and
U U
V V
36
A A
B B
was left in the premises with persons he did not know. I find inherently
C improbable that if Chung Po Shan was the person in charge of the C
premises he would leave the defendant and other customers on their own,
D D
in particular considering there were other drugs in the premises.
E E
127. I do not find credible the defendant’s evidence that he lied in
F the video recorded interview because he had reached a deal with Chung F
Po Shan to say the place was his and all the drugs were his and that the
G G
police had told him to answer yes to most questions and to say that
H everything found in the premises was his. H
I I
128. Not only did the defendant admit possession of all the drugs
J but also that he sold drugs and that he planned to sell the drugs found on J
him and in the safe to drinking customers to earn money 107 . I find
K K
inherently improbable that anyone would admit drugs belonged to them
L when in fact they belonged to someone else and also admit those drugs L
were for sale.
M M
N 129. In oral submission Mr Chan repeated his submission on the N
voir dire that the payment of the bail in respect of an outstanding warrant
O O
of arrest supported the defendant’s evidence that he had reached a deal
P with Chung Po Shan. For the reasons already given I reject there was a P
deal with Chung Po Shan to say the place was his and all the drugs were
Q Q
his and the police told the defendant to answer yes and that everything
R found in the premises was his. This submission does not cause me to R
doubt the findings I have made.
S S
T T
107
See post-record and the video recorded interview counters 317-322; 444-452; 485-563; 602-673
and 702-714.
U U
V V
37
A A
B B
130. I remind myself that the rejection of the defendant’s
C evidence is not determinative of the issues in the case. The defendant has C
to prove nothing. A case in which defence evidence is called and is not
D D
believed is no different from one in which no evidence is called. In either
E case the burden is on the prosecution to prove the defendant’s guilt E
beyond reasonable doubt.
F F
131. I am satisfied so I am sure the prosecution witnesses are
G G
honest and reliable witnesses upon whose evidence I can safely rely.
H H
132. I am satisfied when first arrested for trafficking in dangerous
I I
drugs the defendant said under caution that he planned to sell the cocaine
J to the customers to make some money; when arrested for trafficking in J
dangerous drugs found in the safe said under caution that all the cocaine
K K
in the safe belonged to him and that he planned to sell the cocaine to
L customers for alcoholic drinks to make money; and when arrested for L
operating an unlicensed bar said under caution that he was the person in
M M
charge of the unlicensed bar.
N N
Trafficking in a dangerous drug
O O
133. I am satisfied full weight is to be attached to the admissions
P P
made by the defendant both in the premises and in the video recorded
Q interview that all the drugs were his and that he planned to sell the drugs. Q
I reject the defendant’s evidence that the drugs found in his trousers’
R R
pocket were for his own consumption.
S S
134. Taking into account the quantity of drugs found both in the
T T
defendant’s pocket and in the safe, the packaging of the drugs, the finding
U U
V V
38
A A
B B
of an electronic balance and a piece of card with traces of cocaine
C together with a large quantity of empty plastic bags of the same type C
containing the cocaine and the admissions of the defendant, I am satisfied
D D
so I am sure the defendant possessed all the cocaine for the purpose of
E trafficking. E
F Possession of liquor for sale without a liquor licence F
G G
135. I accept the evidence of DPC 9510 that he found a bunch of
H five keys from the defendant’s trousers’ pocket, one of which the H
defendant admitted in the video recorded interview was for the main gate
I I
of the premises108.
J J
136. I am satisfied full weight is to be attached to the admissions
K K
made by the defendant both in the premises and in the video recorded
L
interview that he was the person in charge of the unlicensed bar and that L
he sold liquor to the customers. I reject the defendant’s evidence that he
M M
was taken to the premises by Chung Po Shan to consume drugs.
N N
137. By virtue of regulation 25A (a) of the Dutiable Commodities
O (Liquor) Regulations the sale of liquor at any premises for consumption O
on those premises is prohibited except on the authority of a liquor licence.
P P
By virtue of section 17 (3B) of the Dutiable Commodities Ordinance
Q where regulations prohibit the sale or supply of liquor except on the Q
authority of a liquor licence no person shall possess for sale liquor except
R R
on the authority of such a licence.
S S
T T
108
See counters 1250-1265.
U U
V V
39
A A
B B
138. Taking into account the finding of the nineteen cans of beer,
C the premises were not licensed to sell alcohol and the admissions of the C
defendant, I am satisfied so I am sure the defendant possessed the
D D
nineteen cans of beer for sale without a liquor licence.
E E
139. In reaching this finding I have carefully considered the
F submission of Mr Chan that the tenancy agreement (exhibit P78) and the F
hand written paper (exhibit P79) found on top of the safe indicate the
G G
109
premises belonged to a new company and not the defendant .
H H
140. During the video recorded interview the defendant was
I I
shown these two documents together with the rates demand (exhibit
J P82)110. The tenancy agreement was referred to as a rental receipt. When J
asked if he knew the tenant named in the agreement the defendant replied
K K
that it might be the preceding tenant. Asked about the hand written paper
L the defendant exercised his right to silence saying he had nothing to say. L
M M
141. This submission does not cause me to doubt the defendant
N possessed the nineteen cans of beer for sale without a liquor licence. N
O 142. I have also considered Mr Chan’s submission that the police O
found no signboard, no price list or money and that the other three
P P
111
persons found in the premises may be the proprietors .
Q Q
143. In cross-examination DPC 9510 said he did not know the
R R
name of the bar; did not see any signboard outside the 13th floor; did not
S S
109
See §§4-6 of the closing submissions on behalf of the defendant.
T 110
T
See counters 1095-1146.
111
See §§7-9 of the closing submissions on behalf of the defendant.
U U
V V
40
A A
B B
see any advertisement that the premises were operated as a bar; did not
C see any menu or price list; did not find any money in the premises and did C
not find any mobile phone, wallet or money on the defendant.
D D
144. In what was clearly an informal bar where drugs were
E E
packaged and sold it is not surprising there was no signboard or
F promotion of the premises. When asked in the video recorded interview F
about the other three persons the defendant said they were customers who
G G
112
came for drinks .
H H
145. This submission does not cause me to doubt the defendant
I I
possessed the nineteen cans of beer for sale without a liquor licence.
J J
146. In reaching my verdict I have carefully considered
K K
everything said on behalf of the defendant by Mr Chan both individually
L
and collectively. Nothing said by Mr Chan causes me to doubt the L
findings I have made. I am satisfied so I am sure there are no material
M M
and significant discrepancies, improbabilities or omissions in the
N evidence which cause me to doubt the findings I have made. N
O 147. I am satisfied so I am sure the prosecution have proved all O
the elements of both charges beyond reasonable doubt, both charges
P P
considered separately. The defendant is convicted as charged.
Q Q
R R
(D. J. DUFTON)
S S
District Judge
T T
112
See counters 810-854.
U U
V V
A A
B B
DCCC 437/2017
[2018] HKDC 21
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 437 OF 2017
E ____________ E
HKSAR
F v F
RAI SHIVA
G G
____________
H H
Before: HH Judge Dufton
I Date: 11 January 2018 I
Present: Mr Lee Pak Chau, counsel on fiat, for HKSAR
J Mr Chan Pak Kong, instructed by C.K.Mok & Co, J
assigned by the Director of Legal Aid, for the defendant
K
Offences: (1) Trafficking in a dangerous drug K
(販運危險藥物)
L
(2) Possession of liquor for sale without a liquor licence L
(為售賣而無牌管有酒類)
M M
REASONS FOR VERDICT
N N
1. The defendant pleads not guilty to one charge of trafficking
O in 9.39 grammes of cocaine, contrary to section 4 of the Dangerous Drugs O
Ordinance1 and one charge of possession of nineteen cans of beer for sale
P P
without a liquor licence, contrary to sections 17 (3B) and 46 (1) and (3)
Q of the Dutiable Commodities Ordinance 2. Q
R R
S S
T 1
T
Cap 134.
2
Cap 109.
U U
V V
2
A A
B B
Prosecution case
C C
2. In summary the prosecution case is that in the early hours of
D 8 January 2017 DPC 8422 intercepted male Chung Po Shan at the D
intersection of Hart Avenue and Chatham Road South. Chung Po Shan
E E
led DPC 8422 and DPC 9510 to premises on the 13th floor of Tung Wui
F Commercial Building, No. 27 Prat Avenue (“the premises”) which were F
operated as an unlicensed bar. After Chung Po Shan rang the doorbell the
G G
defendant opened the inner door of the premises.
H H
3. Inside the left front pocket of the defendant’s trousers DPC
I I
9510 found a transparent re-sealable bag containing sixteen smaller re-
J sealable plastic bags containing 2.73 grammes of cocaine. J
K K
4. DPC 6826 searched the premises and found inside a safe in
L
the kitchen an electronic balance; a large quantity of empty re-sealable L
plastic bags and a transparent re-sealable bag containing thirty-eight
M M
smaller re-sealable plastic bags containing 6.66 grammes of cocaine. The
N nineteen cans of beer were found inside the refrigerator in the kitchen. N
O 5. The prosecution relies on admissions made by the defendant O
in the premises; the post-recording of those admissions in the police
P P
station and admissions made in a video recorded interview.
Q Q
Defence case
R R
6. The defence case in summary is that the defendant went to
S S
the premises to take drugs; he did not open the door for the police; the
T cocaine found in his trouser pocket was for his own consumption; the T
U U
V V
3
A A
B B
cocaine found in the safe did not belong to him; he did not operate an
C unlicensed bar and the nineteen cans of beer did not belong to him. C
D 7. The defendant did not make any admissions in the premises D
and challenged the admissibility of the oral statements made on arrest; the
E E
post-record and the video recorded interview.
F F
Evidence
G G
8. The prosecution called DPC 9510 (PW1), who arrested the
H H
defendant and conducted the video recorded interview; DPC 6826
I (PW3)3, the exhibits officer and who also took part in the video recorded I
interview; and two interpreters, a Nepalese interpreter Khatiwada Ganga
J J
4
Kumar (PW2) and a Chinese/English police interpreter Lau Lai King
K K
(PW4)5. DPC 8422 (PW5) who intercepted Chung Po Shan; and two
L
senior police officers DSSGT Lo (PW6) and DSIP Au Yeung Tak (PW7), L
the officer in charge, were tendered for cross-examination.
M M
9. Facts have been admitted pursuant to section 65C of the
N N
Criminal Procedure Ordinance6, including the finding of the drugs in the
O defendant’s trousers’ pocket and the nineteen cans of beer in the O
refrigerator; the analysis of the drugs and the beer; photographs 7 ; the
P P
chain of evidence and that the premises was not licensed to sell alcohol.
Q Q
R R
3
PW 2 on the list of witnesses attached to the prosecution opening.
S 4 S
PW 10 on the list of witnesses attached to the prosecution opening.
5
PW 11 on the list of witnesses attached to the prosecution opening.
T 6
T
Cap 221. Exhibits P68 & P68A.
7
Exhibit P65 (1-34).
U U
V V
4
A A
B B
10. The defendant elected to give evidence on both the special
C and general issues. No witnesses were called on his behalf. C
D 11. In reaching my verdict I remind myself of the burden and D
standard of proof and that the burden is on the prosecution throughout.
E E
The defendant has to prove nothing. I direct myself that I must be sure of
F the guilt of the defendant on each charge before I can convict, each F
charge to be considered separately. On the other hand, if the court thinks
G G
that the defence evidence pointing to innocence is true or may be true, it
H would follow that the defence has raised sufficient doubt in the H
prosecution case and the defendant entitled to be acquitted.
I I
J 12. I remind myself that when drawing inferences from the J
evidence a court may only draw an inference if that inference is the only
K K
reasonable inference to draw from the proved facts. If from the facts
L proved there is a reasonable inference to draw against a defendant as well L
as one in his favour the adverse inference cannot be drawn.
M M
N 13. I have carefully considered all the evidence and the N
submissions of Mr Lee and Mr Chan.
O O
Prosecution evidence
P P
Q 14. The alternate procedure was adopted. I will first summarise Q
the prosecution evidence8.
R R
S S
T T
8
Also see §§5-28 of the prosecution closing submission for a summary of the prosecution evidence,
witness by witness.
U U
V V
5
A A
B B
13th floor Tung Wui Commercial Building (“the premises”)
C C
15. In summary in the early hours of 8 January 2017 DPC 9510
D was on duty in plain clothes. At around 02:23 a.m. DPC 9510 received a D
call for assistance from DPC 8422, who had intercepted male Chung Po
E E
Shan at the intersection of Chatham Road South and Hart Avenue in Tsim
F Sha Tsui. F
G G
16. In cross-examination DPC 8422 explained that at around
H 01:50 a.m. he was instructed by DSSGT Lo to carry out an operation on H
the 9th floor of Hai Xin Building on Hart Avenue. DSSGT Lo confirmed
I I
the police had received information that an unlicensed bar where drugs
J were sold was operated on the 9th floor of Hai Xin Building and therefore J
in the early hours of 8 January 2017 he instructed DPC 8422 to go to the
K K
9th floor of Hai Xin Building.
L L
17. On arrival at the building DPC 8422 could see from the
M M
ground floor that the lights on the 9th floor were not on. DPC 8422
N therefore checked the CCTV in the security office. After checking the N
CCTV DPC 8422 went to patrol in the vicinity. DPC 8422 saw a male
O O
acting suspiciously near the entrance of Hai Xin Building whose
P appearance was similar to a male DPC 8422 had seen on the CCTV P
appear twice on the 9th floor. DPC 8422 intercepted the male who was
Q Q
called Chung Po Shan.
R R
18. DPC 8422 made enquiries with Chung Po Shan during which
S Chung Po Shan told DPC 8422 that he had intended to go to an S
unlicensed bar on the 9th floor but the bar was not open and that he was
T T
about to go to an unlicensed bar on the 13th floor of Tung Wui
U U
V V
6
A A
B B
Commercial Building, No. 27 Prat Avenue which had been opened by his
C friend ‘Wah Chai’, who had earlier solicited him to buy dangerous drugs. C
D 19. DPC 9510 went to join DPC 8422. DPC 8422 informed D
DPC 9510 that there were suspected activities of an unlicensed bar and
E E
trafficking dangerous drugs on the 13th floor of Tung Wui Commercial
F Building. Chung Po Shan agreed to take the police to the premises. DPC F
9510 and DPC 8422 together with Chung Po Shan went to the 13th floor
G G
of Tung Wui Commercial Building.
H H
20. On the way DPC 9510 and DPC 8422 met up with their team
I I
members, including the officer in charge DSIP Au Yeung Tak; DSSGT
J Lo; DSGT 34655; DPC 54307 and DPC 13220. DSIP Au Yeung Tak J
instructed DPC 9510; DPC 8422 and DPC 54307 to go to the premises on
K K
the 13th floor together with Chung Po Shan. In cross-examination DPC
L 9510 said he met DSIP Au Yeung Tak on the ground floor of Tung Wui L
Commercial Building.
M M
N 21. Admitted in evidence is that DPC 9510; DPC 8422 and DPC N
9
54307 went to the premises on the 13th floor at around 2:40 a.m. On
O O
reaching the 13th floor Chung Po Shan entered the password and rang the
P doorbell. The defendant opened the wooden door. Before entering the P
premises DPC 9510 showed his warrant card and explained why the
Q Q
police were there. In cross-examination both DPC 9510 and DPC 8422
R agreed the wooden door is the door shown in photograph 4, which was R
described as the inner door.
S S
T T
9
See §2 of the admitted facts, exhibit P68.
U U
V V
7
A A
B B
22. In cross-examination DSSGT Lo said DPC 9510; DPC 8422
C and DPC 54307 went to the 13th floor first and that he followed them by C
taking a different lift. In cross-examination DSIP Au Yeung Tak said he
D D
arrived at the premises at around 02:30. This was earlier than the time he
E said he had seen Chung Po Shan on the ground floor of Tung Wui E
Commercial Building. On clarification by the court DSIP Au Yeung Tak
F F
said he entered the premises around 02:35-02:40.
G G
23. After entering the unit DPC 9510 saw two other males and
H one female in the living room and some alcoholic drinks and glasses on a H
table 10 . In cross-examination DPC 9510 said the three persons were
I I
sitting on the sofa by the table with the alcoholic drinks and glasses as
J J
shown in photograph 15.
K K
24. The police conducted investigation with the persons found in
L the premises. DPC 9510 made investigation with the defendant. This L
took place in the first room after entering the premises on the right side of
M M
the corridor as shown on the sketch 11 and photographs 7 & 8. In cross-
N examination both DSSGT Lo and DSIP Au Yeung Tak said that when N
they entered the premises the defendant was already inside the room.
O O
P 25. DPC 9510 conducted a search on the defendant. Admitted in P
evidence is that a plastic bag containing sixteen packets of cocaine was
Q Q
found in the trousers’ pocket of the defendant12. DPC 9510 said the drugs
R were found in the front left pocket. DPC 9510 also found a bunch of five R
10
S In cross-examination DPC 8422 said that after entering the premises he took Chung Po Shan into S
the second room on the right. After entering the room DPC 8422 was told by other colleagues
that there were two other males and one female inside the premises.
T 11
T
Exhibit P72.
12
See §3 of the admitted facts, exhibit P68 as read with §§5 & 6.
U U
V V
8
A A
B B
keys from the defendant’s trousers’ pocket13. In cross-examination DPC
C 9510 agreed he made no mention of finding the keys from the trousers’ C
pocket of the defendant in either his police notebook or in his witness
D D
statement made on 20 January 2017.
E E
26. At 02:45 a.m. DPC 9510 arrested and cautioned the
F defendant for trafficking in dangerous drugs. DPC 9510 spoke to the F
defendant in Punti. Under caution the defendant replied in Punti that he
G G
planned to sell the cocaine to the customers to make some money.
H H
27. At 02:48 DPC 6826, the exhibit officer, arrived at the
I I
premises together with SGT 52788 and DPC 49045. DSSGT Lo briefed
J them that the premises were believed to be managed as an unlicensed bar J
and that DPC 9510 had found dangerous drugs upon search of the
K K
defendant and had arrested him for trafficking in dangerous drugs. In
L cross-examination DPC 6826 said this briefing took place in the living L
room.
M M
N 28. At 02:50 arrangements were made for the defendant, Chung N
Po Shan and the other three persons to wait in the living room. DPC
O O
9510 took the defendant from the small room to the living room. In the
P living room DPC 9510 handed the drugs and the keys to DPC 6826. P
Q 29. At 03:12 DPC 6826 began to search the premises. The Q
search was witnessed by all the persons in the premises including the
R R
defendant. DPC 9510 and the defendant moved along as DPC 6826
S conducted the search. In cross-examination DPC 6826 said that the S
T T
13
Exhibit P71.
U U
V V
9
A A
B B
defendant and DPC 9510 stood aside to watch the search and therefore
C did not block the vision of the other males and the female. C
D 30. At 03:18 DPC 6826 searched the open kitchen. Inside the D
kitchen was a blue and white coloured safe with the door half open as
E E
shown in photographs 22-24. On the top shelf of the safe DPC 6826
F found a plastic bag inside which were red lined and blue lined transparent F
re-sealable bags containing suspected dangerous drugs. DPC 6826
G G
counted the bags and found there was a total of thirty eight bags
H containing suspected dangerous drugs14. In cross-examination DPC 6826 H
said that on finding the drugs in the safe he shouted out he saw drugs and
I I
that after counting the bags he held the bags in his hands to show the
J J
others in the room saying there were thirty-eight bags.
K K
31. After DPC 6826 found the drugs in the safe DPC 9510
L immediately cautioned the defendant for trafficking in dangerous drugs. L
Under caution the defendant replied in Punti that all the cocaine in the
M M
safe belonged to him and that he planned to sell the cocaine to customers
N for alcoholic drinks to make money 15 . DPC 9510 then cautioned the N
O O
P 14 P
The finding of the drugs is admitted but not where they were found. See §4 (a)-(d) of the
admitted facts, exhibit P68 as read with §§5 & 6.
Q 15
The reference to ‘he planned to sell the cocaine to customers for alcoholic drinks to make money’ Q
in the reply under caution was originally translated as ‘he planned to sell the cocaine to customers
to make money’ with no reference to alcoholic drinks. After reviewing the evidence, I drew to the
R R
attention of the parties and the interpreter that the Chinese characters used for customers appeared
to be different to those used earlier in evidence when DPC 9510 testified as to the reply under
S caution after the first arrest for trafficking in dangerous drugs. The audio was replayed in court. S
Reference was also made to the certification of the reply in the post-record in which the Chinese
characters were originally translated as drinkers. The certified translation corrected this to
T drinking customers. Mr Chan stated both translations were acceptable to the defence. After T
consideration the court interpreter amended his translation from ‘customer’ to ‘customers for
alcoholic drinks’.
U U
V V
10
A A
B B
defendant for operating an unlicensed bar. The defendant replied in Punti
C that he was the person in charge of the unlicensed bar. C
D 32. DPC 6826 also found inside the safe a black electronic D
balance16; a piece of card with the word “Bee” on17; and a black plastic
E E
18 19
bag containing one plastic bag inside which were empty blue lined
F transparent bags and one bag containing empty red lined re-sealable F
plastic bags20. On top of the safe DPC 6826 found a piece of paper 21; a
G G
22 23
tenancy agreement and a demand for rates .
H H
33. In the kitchen DPC 6826 found nineteen cans of beer24and
I I
ten bottles of non-alcoholic drink25 in the refrigerator. DPC 6826 also
J found in the kitchen seventeen glasses and fourteen ashtrays 26 ; three J
plastic jugs with the name Johnnie Walker 27 ; a pair of tongs 28 and a
K K
plastic container29.
L L
M M
16
Exhibit P57. Also see §4 (b) of the admitted facts, exhibit P68.
N N
17
Exhibit P58. Also see §4 (d) of the admitted facts, exhibit P68.
18
Exhibit P80.
O O
19
Exhibit P81.
20
P Exhibit P59. Also see §4 (c) of the admitted facts, exhibit P68. P
21
Exhibit P79.
22
Q Exhibit P78. Q
23
Exhibit P82.
R 24
Exhibit P60. Also see §4 (e) of the admitted facts, exhibit P68. R
25
Exhibit P83.
S 26 S
Exhibits P61 & P62. Also see §4 (f) of the admitted facts, exhibit P68.
27
Exhibit P84.
T 28
T
Exhibit P85.
29
Exhibit P86.
U U
V V
11
A A
B B
34. In the living room DPC 6826 seized from the table shown in
C photograph 17 the bottle of whiskey 30 ; the four glasses containing C
31 32
alcohol and the four dice cups with twenty dice .
D D
35. After the search was completed DPC 9510 took the
E E
defendant back to the first room where he issued a Notice to Persons in
F Custody33. DPC 9510 explained the notice to the defendant in Punti. The F
defendant said he understood the notice, had no requests and signed on
G G
the notice.
H H
36. The police then waited for the arrival of officers from the
I I
Identification Bureau to lift fingerprints and take photographs. At around
J 7:30 a.m. after the police had finished their work in the premises DPC J
9510 took the defendant to the Tsim Sha Tsui police station.
K K
L
37. In cross-examination DPC 9510 said that the defendant, L
Chung Po Shan and the other three persons found in the premises were all
M M
taken to the police station in the same police vehicle. DPC 9510 escorted
N the defendant and DPC 8422 escorted Chung Po Shan. N
O Tsim Sha Tsui Police Station O
P P
38. At 07:41 DPC 9510 issued another Notice to Persons in
Q Custody34 this time together with a Nepalese version 35. DPC 9510 again Q
R 30
Exhibit P87. R
31
Exhibit P88
S 32 S
Exhibit P89.
33
Exhibit P73.
T 34
T
Exhibit P74.
35
Exhibit P74B.
U U
V V
12
A A
B B
explained the content to the defendant. The defendant said he understood;
C had no request to make and signed on both the Chinese and Nepalese C
versions of the notice.
D D
39. After the defendant was returned to the custody of the Duty
E E
Officer DPC 9510 post-recorded the arrest of the defendant in his police
F notebook36. DPC 9510 testified that the post-record accurately recorded F
the arrest and caution and the replies made by the defendant. In cross-
G G
examination DPC 9510 said he had contacted the Nepalese interpreter
H who said he would only be available to help the next day. H
I I
40. At 8:37 the next morning DPC 9510 took the defendant
J from the custody of the Duty Officer. With the assistance of the Nepalese J
interpreter Khatiwada Ganga Kumar, DPC 9510 issued another Notice to
K K
Persons in Custody37. The notice was bilingual in Chinese and English.
L The Nepalese interpreter interpreted the notice to the defendant in L
Nepalese who signed after saying he understood his rights. The
M M
defendant had no requests to make.
N N
41. The post-record was translated into English in the note book
O O
of DPC 9510 by the police interpreter Lau Lai King38 and from English
P into Nepalese by the Nepalese interpreter Khatiwada Ganga Kumar 39. P
Q 42. After the Nepalese interpreter completed writing the Q
Nepalese translation he read the post-record to the defendant in Nepalese
R R
S 36 S
Exhibit P69 (1), pages 15-23.
37
Exhibit P75.
T 38
T
Pages 30-42, exhibit P69(1).
39
Pages 43-57, exhibit P69(1).
U U
V V
13
A A
B B
after which DPC 9510 asked the defendant whether he had any alterations,
C corrections or additions to make. The defendant replied “No need”. DPC C
9510 then wrote out the ending declaration which was also translated into
D D
English and Nepalese in his note book40. After the Nepalese interpreter
E read the declaration the defendant signed the notebook. E
F 43. DPC 9510 then served a copy of the post-record to the F
defendant which the defendant acknowledged receipt of at 11:35 a.m.
G G
41
after the Nepalese interpreter had translated the content to him .
H H
44. After completing the post-record DPC 9510 together with
I I
DPC 6826 conducted a video recorded interview 42 . The interview
J commenced at 11:41 and finished at 12:54. The defendant acknowledged J
receipt of a copy of the interview43. The Nepalese interpreter also acting
K K
as a witness interpreted the content of the receipt before the defendant
L signed acknowledging receipt. L
M M
Voir dire
N N
45. The defence objected to the admissibility of the replies
O attributed to the defendant in answer to caution (“the oral statements”); O
the post-recording of those replies44 and the video recorded interview45.
P P
Q Q
R 40
A new police notebook (exhibit P69(2)) was used to complete the declaration. R
41
Exhibit P76. The receipt was in English only.
S 42 S
Exhibit P70.
43
Exhibit P77.
T 44
T
Exhibit P69.
45
Exhibit P70.
U U
V V
14
A A
B B
46. Guided by the decision in HKSAR v Okafor46as applied in
C HKSAR v Ip Chun Yin47these are my reasons for ruling the oral statements, C
the post-record and the video recorded interview admissible in evidence.
D D
47. The defence objected to the admissibility on the grounds of
E E
threats, violence and inducements as particularised in the written grounds
F of objection submitted by Mr Chan 48. F
G G
Prosecution evidence
H H
48. The prosecution relied on the evidence of DPC 9510; DPC
I 6826 and the two interpreters Khatiwada Ganga Kumar and Lau Lai King I
together with the evidence of DPC 8422; DSSGT Lo; and DSIP Au
J J
Yeung Tak who were tendered for cross-examination.
K K
49. DPC 9510; DPC 6826 and DPC 8422 testified that they did
L L
not nor did anybody else in their presence at any time threaten or assault
M the defendant or make any promises or offer any inducements 49. The M
interpreters both testified that they did not see anyone threaten, hit,
N N
induce or make any promises to the defendant. All seven prosecution
O witnesses denied the allegations put to them as contained in the grounds O
of objection.
P P
Q Q
R R
46
[2012] 1 HKLRD 1041.
S S
47
CACC 241/2014.
T
48
See the written grounds of objection, marked “A” for identification. T
49
Mr Lee asked DPC 8422 a few questions but did not ask DSSGT Lo and DSIP Au Yeung Tak any
questions.
U U
V V
15
A A
B B
Defence evidence
C C
50. The defendant gave evidence in English 50 . No witnesses
D were called on his behalf. The defendant’s evidence was largely D
consistent with the grounds of objection save that he did not give
E E
evidence that he was taught what to say as particularised in paragraph 25
F of the grounds of objection including that he was taught to say that he F
bought the wine and beer from Wellcome supermarket; the bar had just
G G
been operated for a few days; the opening had been delayed; he should
H not mention the name of the seller of the drugs and should say he sold the H
drugs to customers for earning money.
I I
J 51. With regard to what the defendant was told to say in the J
video recorded interview in evidence-in-chief the defendant testified that
K K
in the premises DPC 9510 told him that he should know there were
L glasses, beer, glass plates and other items51; that the small key was for the L
safe and the big key for the main door52 and explained to him about the
M M
electronic scale.
N N
52. In the police station just before the video recorded interview
O O
was conducted the defendant testified he was taken to the toilet where he
P was given a cigarette. DPC 9510 told him the same things that he had to P
Q 50
The defendant initially began giving evidence in Nepalese. However, after a few minutes the Q
defendant said he was not satisfied with the English translation of the Nepalese interpreter and
asked to give evidence in English. I gave leave to Mr Chan to discuss with the defendant in what
R R
language he wished to give his evidence. After discussing with Mr Chan the defendant confirmed
he wished to give evidence in English. A new Nepalese interpreter was arranged who remained in
S court to interpret whenever the defendant was unable to express himself in English or did not S
understand what was asked. The Nepalese interpreter was only called upon once during the
evidence of the defendant to translate one word from Nepalese into English.
T 51
T
Also see §24 of the written grounds of objection.
52
Also see §22 of the written grounds of objection.
U U
V V
16
A A
B B
be strong and to face earth when answering questions53. The defendant
C said he had first been told of this inside the premises54. The defendant C
explained he was told to say whatever was found in the premises was his
D D
and whatever he was shown was his.
E E
53. In cross-examination when Mr Lee put to the defendant that
F there was no agreement reached with DPC 9150 and DSSGT Lo as to F
what he should say in the video recorded interview and that he was not
G G
taught what to say, the defendant replied the agreement was with Chung
H Po Shan and not the police and that the police instructed him how to H
answer the questions but did not tell him exactly what to say.
I I
J Discussion J
K K
54. I carefully considered all the evidence and the submissions
L
of Mr Lee and Mr Chan. Although the evidence of what happened in the L
premises and at the police station were inter-related I considered the
M M
admissibility of the oral statements; the post-record and the video
N interview separately. N
O 55. The issue was one of credibility. I had no hesitation in O
rejecting the defendant’s evidence. I did not find his evidence credible.
P P
The rejection of the defence evidence was not determinative of
Q admissibility. The burden of proving admissibility was on the Q
prosecution to prove beyond reasonable doubt.
R R
S S
53
Also see §30 of the written grounds of objection.
T 54
T
Also see §21 of the written grounds of objection.
U U
V V
17
A A
B B
56. Having carefully considered all the evidence I was satisfied
C so I was sure that the police officers and interpreters were witnesses of C
truth who gave credible and reliable evidence.
D D
The premises
E E
F 57. I did not find credible the defendant’s evidence that because F
drugs had been found on his body and therefore he was going to prison
G G
and that Chung Po Shan said he had a newly born baby to look after;
H would give the defendant $50-60,000; and that the case might not go to H
the District Court55, he agreed with Chung Po Shan that he would say the
I I
place was his and all the drugs were his.
J J
58. Mr Chan submitted that the evidence of the police officers
K K
was too good to be true; unbelievable and laughable, in particular that
L
Chung Po Shan went to the premises voluntarily; witnessed the search L
and was also arrested for trafficking in the drugs found in the safe; there
M M
was no conversation between Chung Po Shan and the defendant; and that
N DPC 8422 did not know who informed the lawyer of Chung Po Shan to N
56
go to the premises .
O O
59. I accepted the evidence of DPC 8422 that he intercepted
P P
Chung Po Shan who agreed to take the police to the premises on the 13th
Q floor of Tung Wui Commercial Building having told the police the Q
premises were opened by his friend ‘Wah Chai’, who had earlier solicited
R R
him to buy drugs. In the circumstances I did not find surprising Chung
S Po Shan was taken to the premises, witnessed the search and was also S
T 55
T
Also see §§10-18 of the written grounds of objection.
56
See §§5-9 of the defendant’s closing submissions on the special issue.
U U
V V
18
A A
B B
arrested. Equally I did not find surprising there was no conversation
C between Chung Po Shan and the defendant or that DPC 8422 did not C
know who informed the lawyer to go to the premises.
D D
60. Mr Chan also submitted that DPC 9510 was not honest and
E E
reliable and had not told the whole truth. The basis of this submission
F was two-fold. First, the evidence of DPC 9510 that while in the premises F
he did not know the nickname of the defendant was “Wah Chai” whereas
G G
DSIP Au Yeung Tak testified he was told by DPC 9510 that defendant’s
H nickname was “Wah Chai”. Second, towards the end of the video H
recorded interview the defendant addressed DPC 9510 as “Mak Sir”,
I I
whereas in cross-examination DPC 9510 disagreed he introduced himself
J
to the defendant as “Mak Sir”57. J
K K
61. In the video recorded interview DPC 9510 does not
L introduce himself as “Mak Sir” or refer to the defendant as “Wah Chai”. L
In the interview when DPC 6826 asks the defendant how his friends
M M
addressed him, the defendant replied “Wah Chai” 58 . Thereafter DPC
N 6826 referred to the defendant as “Wah Chai”. N
O O
62. Whilst it was not possible to reconcile the inconsistency in
P the evidence between DPC 9510 and DSIP Au Yeung Tak I found this P
discrepancy did not cause me to doubt the evidence of DPC 9510.
Q Q
Similarly, the fact the defendant towards the end of the video recorded
R interview referred to DPC 9510 as “Mak Sir” did not cause me to doubt R
the evidence of DPC 9510, whose name is Lui Tak Ming.
S S
T T
57
See §10 of the defendant’s closing submissions on the special issue.
58
See counters 886-895.
U U
V V
19
A A
B B
63. I rejected the defendant’s evidence that in the premises he
C and Chung Po Shan were both assaulted by the police and that the police C
told Chung Po Shan to settle the matter after which Chung Po Shan
D D
reached a deal with the defendant that he would say the place was his and
E all the drugs were his. E
F 64. Not only did the defendant admit possession of all the drugs F
but also that he sold drugs and that he planned to sell the drugs found on
G G
59
him and in the safe to drinking customers to earn money . I find
H inherently improbable that anyone would admit drugs belonged to them H
when in fact they belonged to someone else and also admit those drugs
I I
were for sale.
J J
65. Having carefully considered all the evidence and the
K K
submissions made I found I was satisfied beyond reasonable doubt that
L the oral statements, if said, were said voluntarily, each reply being L
considered separately.
M M
N The police station N
O Post-record O
P P
66. I did not find credible the defendant’s evidence that he did
Q not pay attention to what the Nepalese interpreter read out to him because Q
the police officers were playing on their mobile phones and talking loudly
R R
so he could not hear what the Nepalese interpreter said and that he just
S signed without paying attention to what was written because the police S
T T
59
See post-record and the video recorded interview counters 317-322; 444-452; 485-563; 602-673
and 702-714.
U U
V V
20
A A
B B
told him to do as they say60. In cross-examination the defendant said he
C did not pay attention because a deal had already been reached. C
D 67. I found inherently improbable that DPC 9510 having gone to D
the trouble of writing down the post-record and arranging for a translation
E E
to be made in English and Nepalese, which took in the region of three
F hours to complete, that the defendant would sign the notebook without F
first finding out what was written in the notebook 61 . I accepted the
G G
evidence of the Nepalese interpreter that he read the post record to the
H defendant who said there was no need to make any correction and that he H
did not remember the police officers talking loudly or the defendant
I I
asking him to tell the police to keep quiet.
J J
68. In the video recorded interview DPC 9510 recited the arrest
K K
of the defendant and the replies made by the defendant62. When DPC
L 9510 was reciting the finding of the drugs in the safe the defendant L
queried what was translated saying he wanted to know clearly what
M M
exactly was being said before he could agree with what DPC 9510 said63.
N This shows the defendant paid attention to what was said to him. N
O O
69. Having carefully considered all the evidence and the
P submissions made I found I was satisfied beyond reasonable doubt that P
the post-record was signed voluntarily.
Q Q
R R
S 60 S
Also see §27 of the written grounds of objection.
61
See for example HKSAR v Ng Ka Ho CACC 283/2011.
T 62
T
See counters 113-264.
63
See counters 161-246.
U U
V V
21
A A
B B
70. In reaching this finding I considered the evidence of DPC
C 9510, given in cross-examination, that whilst in the premises he also post- C
recorded the replies in his notebook. This is found on pages 12-13 of the
D D
notebook64. Mr Lee explained that the prosecution did not rely on the
E post-record on pages 12 and 13 and therefore did not ask DPC 9510 any E
questions about this part of the notebook or translate this part for
F F
certification.
G G
71. Mr Chan submitted that this evidence was totally
H unbelievable65. In summary in cross-examination Mr Chan first referred H
DPC 9510 to the entry at 02:45 (page 12) where DPC 9510 recorded the
I I
arrest and caution of the defendant for trafficking in dangerous drugs and
J J
the reply of the defendant under caution. DPC 9510 said he read the
K
content to the defendant and asked the defendant to sign if he agreed that K
is what he said under caution. DPC 9510 also gave the defendant the
L L
opportunity to read the notebook but did not ascertain whether the
M
defendant could read or write Chinese. The defendant signed the M
notebook. DPC 9510 said he forgot to mention about making this record
N N
in his evidence-in-chief.
O O
72. Later in cross-examination Mr Chan referred DPC 9510 to
P the entries at 03:21 and 03:24 on pages 12 and 13 where DPC 9510 P
recorded the arrest and reply to caution for trafficking in dangerous drugs
Q Q
found in the safe and for operating an unlicensed bar. DPC 9510 said he
R also forgot to mention this in his evidence-in-chief. R
S S
64
Exhibit P69 (1).
T T
65
See §12 of the defendant’s closing submissions on the special issue.
U U
V V
22
A A
B B
73. DPC 9510 agreed that when he made the post record on
C pages 15-23 he copied the defendant’s replies as recorded at pages 12-13. C
When asked by Mr Chan why he did not ask the defendant to sign as he
D D
had done in the premises DPC 9510 replied that when serving the Notice
E to Persons in Custody in the police station (exhibit P74) the defendant E
indicated he needed a Nepalese version to read (exhibit P74B) therefore
F F
DPC 9510 wrote the post-record out first before the arrival of the
G Nepalese interpreter. G
H 74. The fact that DPC 9510 forgot to tell the court in his H
evidence-in-chief that whilst in the premises he also recorded in his
I I
notebook the replies of the defendant which he asked the defendant to
J J
sign did not cause me to doubt that the subsequent post-record was signed
K
by the defendant voluntarily. Neither did the fact that DPC 9510 waited K
until the next day when the Nepalese interpreter arrived before reading
L L
this post-record to the defendant.
M M
Video recorded interview
N N
75. I had no hesitation in rejecting the defendant’s evidence that
O O
he speaks only simple Chinese and that it was suggested by DPC 9510
P that he speaks Cantonese in the video recorded interview so that the P
interview would finish faster66.
Q Q
76. Whilst I cannot judge the proficiency of the defendant’s
R R
Cantonese the transcript of the video recorded interview shows that the
S defendant has a good understanding of Cantonese. In cross-examination S
the defendant agreed that he had no difficulty understanding the Chinese
T T
66
Also see §30 of the written grounds of objection.
U U
V V
23
A A
B B
spoken by the police officers and had no difficulty in answering the
C questions in Chinese. C
D 77. This was also clear from his evidence in court, the defendant D
throughout frequently quoting verbatim what the police officers said in
E E
67
Cantonese . Further, on one occasion the defendant corrected the
F English translation by the court interpreter of what he said in Chinese. F
G G
78. The transcript from counters 161-220 show that the
H defendant questioned whether there was a mistake in the translation of H
what DPC 9510 said when reciting the finding of the drugs in the safe.
I I
This led to the defendant requesting DPC 9510 to speak to him direct in
J Chinese and that if he did not understand he would ask for a Nepalese J
translation. The defendant then began speaking in Chinese (Punti dialect).
K K
DPC 9510 however said the translation would continue and that they
L would take their time in doing the translation. L
M M
79. After finishing reciting the finding of the drugs in the safe
N and the arrest of the defendant DPC 9510 cautioned the defendant and N
asked which language he wished to speak. The defendant said Chinese.
O O
When DPC 9510 clarified whether this was Cantonese, the Punti dialect,
P the defendant replied in Punti dialect “Hong Kong Punti dialect, Ah Sir”. P
DPC 9510 also said that if the defendant did not understand his Chinese
Q Q
he could ask to change to the Nepalese language 68.
R R
80. From that point on no more Nepalese was spoken. After a
S few more questions were asked DPC 9510 asked the defendant if he S
T 67
T
The court interpreter translated these in court into English.
68
See counters 221-298.
U U
V V
24
A A
B B
could understand the Punti dialect, Cantonese he spoke. The defendant
C replied he understood what had been said so far69. C
D 81. In the grounds of objection, the defendant is said to have D
become angry at the end of the interview when the police asked him
E E
about the 9th floor. This was because the defendant had only agreed to
F admit possessing the drugs found in the premises and operating the bar. F
After the interview finished and before the interpreters left the police
G G
70
scolded the defendant and asked if he wanted to be beaten .
H H
82. In evidence the defendant said he became angry when the
I I
police showed him exhibits he had never seen before which were not part
J of the deal. Whilst the transcript clearly shows the defendant becoming J
angry and swearing at the police officers when they showed him the
K K
exhibits I rejected this was because there was a deal71.
L L
83. The transcript shows the defendant was unhappy about
M M
alcohol found in glasses having been put in plastic bottles. When DPC
N 6826 starts to show him these exhibits the defendant immediately asks N
what are the white ones. After DPC 6826 explains what happened was
O O
normal procedure and that it was impossible to keep the liquor in the
P glass the defendant said he understood and that he was sorry. P
Q 84. The fact that the defendant at the end of the interview said Q
that he told a lie about the 9th floor did not cause me to doubt the
R R
prosecution evidence. On his own evidence the defendant said he also
S S
69
See counters 291-336.
T
70
See §§32-33 of the written grounds of objection and §13 of the defendant’s closing submissions T
on the special issue.
71
See counters 1191-1249.
U U
V V
25
A A
B B
told the police at the premises he slept at the 9th floor and when shown
C the keys that three of them were for the 9th floor72. C
D 85. I accepted the evidence of the interpreters that they did not D
remember the defendant being shouted at or threatened after the interview
E E
was concluded. I rejected the defendant’s evidence that when he was
F taken to the 9th floor the police threw away everything they found 73. F
G G
86. I rejected the defendant’s evidence that in the premises he
H reached a deal with Chung Po Shan to admit possession of all the drugs H
found in the premises and that the place was his. I rejected the
I I
defendant’s evidence that the police told him to say whatever was found
J in the premises was his. J
K K
87. Not only did the defendant admit possession of all the drugs
L
but also that he sold drugs and that he planned to sell the drugs found on L
74
him and in the safe to drinking customers to earn money . I find
M M
inherently improbable that anyone would admit drugs belonged to them
N when in fact they belonged to someone else and also admit those drugs N
were for sale.
O O
88. Having carefully considered all the evidence and the
P P
submissions made I found I was satisfied beyond reasonable doubt that
Q the video recorded interview was given by the defendant voluntarily. Q
R R
72
S Also see §22 of the written grounds of objection. S
73
See §§34-35 of the written grounds of objection and §14 of the defendant’s closing submissions
T on the special issue. T
74
See post-record and the video recorded interview counters 317-322; 444-452; 485-563; 602-673
and 702-714.
U U
V V
26
A A
B B
89. In reaching my findings I also considered the submission of
C Mr Chan that the defendant was induced by the payment of bail in respect C
75
of an outstanding warrant of arrest . Admitted in evidence was that DPC
D D
9510 executed a warrant of arrest at 9:30 a.m. on 8 January 76. This was
E around two hours after arriving at the police station. Also admitted in E
evidence is that at 14:36 the same day the bail paper was issued after cash
F F
bail of $4,000 was paid77.
G G
90. In cross-examination DPC 9510 agreed that no money was
H found on the defendant. When asked if he knew the $4,000 bail was paid H
DPC 9510 said he was not clear because as far as he knew the defendant
I I
was not given bail that day. DPC 9510 disagreed he told the defendant
J J
that it would be better for him to pay; asked Chung Po Shan to pay on
K
behalf of the defendant and that Chung Po Shan having only $2,000 K
asked the other arrested persons to pay.
L L
91. I accepted the evidence of DPC 9510 that he did not tell the
M M
defendant it would be better if he paid the bail money and asked Chung
N Po Shan to pay for him. The payment of bail for the warrant of arrest did N
not cause me to doubt the prosecution evidence and did not cause me to
O O
doubt that the next day the post-record was signed voluntarily and the
P video recorded interview was given voluntarily. P
Q Q
R R
75
See §28 of the written grounds of objection and §§15-17 of the defendant’s closing submissions
S S
on the special issue.
76
See §2 of the further admitted facts, exhibit P68A.
T 77
T
See §3 of the further admitted facts, exhibit P68A.
U U
V V
27
A A
B B
92. Nothing said by Mr Chan caused me to doubt the
C prosecution evidence and that the oral statements, if said, were said C
voluntarily; the post-record was signed voluntarily and the video recorded
D D
interview was given voluntarily.
E E
93. I was satisfied so I was sure the defendant was not assaulted,
F threatened, induced or made any promises. F
G G
94. At all times the defendant was made aware of his rights. The
H defendant was served three Notices to Persons in Custody. First in the H
premises (exhibit P73); second on arrival at the police station (exhibit
I I
P74) together with a Nepalese translation (exhibit P74B) and third prior
J to the video recorded interview (exhibit P75), the content of which was J
translated to the defendant by the Nepalese interpreter and which the
K K
defendant confirmed in the video recorded interview he had received and
L had no request to make 78. The defendant was further cautioned at the L
beginning of the video recorded interview79.
M M
N 95. Applying the principles established in HKSAR v Lam Tat- N
ming 80 I found no grounds to exercise my discretion to exclude from
O O
evidence the oral statements attributed to the defendant; the post-
P recording of those statements or the video recorded interview on the P
grounds of unfairness.
Q Q
R R
S S
78
See counters 45-65.
T 79
T
See counters 265-277.
80
[2000] 2 HKLRD 431.
U U
V V
28
A A
B B
Trafficking in a dangerous drug and possession of liquor for sale without
C a liquor licence C
D Prosecution evidence D
E E
96. The prosecution relies on the evidence of DPC 9510 and
F DPC 6826 together with the evidence of DPC 8422; DSSGT Lo and F
DSIP Au Yeung Tak who were tendered for cross-examination. This
G G
evidence has already been summarised81.
H H
97. Briefly, after Chung Po Shan pressed the doorbell of the
I premises the defendant opened the inner door. DPC 9150 revealed his I
police identity and entered the premises. Two other males and a female
J J
were found in the living room.
K K
98. Shortly after the police commenced their investigation. The
L L
defendant was taken into a small room where DPC 9510 conducted a
M search on the defendant. Admitted in evidence is that a plastic bag M
containing sixteen packets of cocaine was found in the trousers’ pocket of
N N
the defendant82. DPC 9510 also found a bunch of five keys from the
O defendant’s trousers’ pocket83. O
P P
99. At 02:45 a.m. DPC 9510 arrested and cautioned the
Q defendant for trafficking in dangerous drugs. Under caution the Q
defendant replied in Punti that he planned to sell the cocaine to the
R R
customers to make some money.
S S
81
See §§14-36.
T 82
T
See §3 of the admitted facts, exhibit P68 as read with §§5 & 6.
83
Exhibit P71.
U U
V V
29
A A
B B
100. At 03:12 DPC 6826 began to search the premises in the
C presence of the defendant, Chung Po Shan and the other persons found in C
the premises. On the top shelf of the blue and white coloured safe DPC
D D
6826 found a plastic bag inside which was a total of thirty eight bags
E containing cocaine84. E
F 101. DPC 9510 immediately cautioned the defendant for F
trafficking in dangerous drugs. Under caution the defendant replied in
G G
Punti that all the cocaine in the safe belonged to him and that he planned
H to sell the cocaine to customers for alcoholic drinks to make money. H
DPC 9510 then cautioned the defendant for operating an unlicensed bar.
I I
The defendant replied in Punti that he was the person in charge of the
J J
unlicensed bar.
K K
102. DPC 6826 also found inside the safe a black electronic
L balance85; a piece of card with the word “Bee” on86; and a black plastic L
bag 87 containing one plastic bag 88 inside which were empty blue lined
M M
transparent bags and one bag containing empty red lined re-sealable
N plastic bags89. On top of the safe DPC 6826 found a piece of paper 90; a N
tenancy agreement91 and a demand for rates92.
O O
P 84
The finding of the drugs was admitted but not where they were found. See §4 (a)-(d) of the P
admitted facts, exhibit P68 as read with §§5 & 6.
85
Q Exhibit P57 as read with §4 (b) of the admitted facts, exhibit P68. Q
86
Exhibit P58 as read with §4 (d) of the admitted facts, exhibit P68.
R 87
Exhibit P80. R
88
Exhibit P81.
S 89 S
Exhibit P59 as read with §4 (c) of the admitted facts, exhibit P68.
90
Exhibit P79.
T 91
T
Exhibit P78.
92
Exhibit P82.
U U
V V
30
A A
B B
103. From the refrigerator DPC 6826 found nineteen cans of
C beer93and ten bottles of non-alcoholic drink94. In the kitchen DPC 6826 C
95
found seventeen glasses and fourteen ashtrays ; three plastic jugs with
D D
the name Johnnie Walker96; a pair of tongs97 and a plastic container98. In
E the living room DPC 6826 seized from the table shown in photograph 17 E
the bottle of whiskey99; the four glasses containing alcohol 100and the four
F F
dice cups with twenty dice 101.
G G
104. Admitted in evidence is the Government Chemist Certificate
H certifying all the drugs found contained cocaine and that the electronic H
balance and the piece of card contained traces of cocaine102.
I I
J 105. Admitted in evidence is that the Government Chemist J
examined one of the nineteen cans of beer which was found to contain
K K
alcohol and that the premises were not licensed to sell alcohol 103.
L L
106. The prosecution also relies on the post-record of the oral
M M
statements and the admissions made in the video recorded interview,
N including that the defendant bought about 20 grammes of cocaine for N
O O
93
Exhibit P60 as read with §4 (e) of the admitted facts, exhibit P68.
94
P Exhibit P83. P
95
Exhibits P61 & P62 as read with §4 (f) of the admitted facts, exhibit P68.
96
Q Exhibit P84. Q
97
Exhibit P85.
R 98
Exhibit P86. R
99
Exhibit P87.
S 100 S
Exhibit P88
101
Exhibit P89.
T 102
T
See exhibit P63 as read with §6 of the admitted facts, exhibit P68
103
See §§7 & 12 of the admitted facts, exhibit P68.
U U
V V
31
A A
B B
$8,000-$9,000; divided the cocaine into smaller bags for sale at $400;
C placed the cocaine in the bar, some in the safe and some in his trousers’ C
104
pocket and sold the cocaine to earn money but did not sell any that day ;
D D
the electronic scale; a paper card and re-sealable transparent plastic bags
E were for measuring and dividing the cocaine 105; and that he operated the E
premises as a bar; one of the keys found on him was for the main gate; he
F F
paid about $20,000 per month for rent; sold the cans of beer to customers
G and sold liquor and cocaine in the premises106. G
H Defence evidence H
I I
107. In summary the defendant testified that after finishing his
J work in Chungking Mansions he walked towards Hart Avenue where he J
met Chung Po Shan, someone he had known for around one year. Chung
K K
Po Shan asked the defendant if he wanted to play some drugs. The
L defendant replied yes. Chung Po Shan then walked towards Hai Xin L
Building but did not go inside and continued instead to Prat Avenue
M M
where he took the defendant to the premises.
N N
108. The defendant said he must have met Chung Po Shan after
O O
11 p.m. and believed he arrived at the premises at around 12 explaining
P that the shop in Chungking Mansions having closed at 11 p.m. he walked P
to Mody Road and then to Hart Avenue. In cross-examination the
Q Q
defendant said that he first went for a meal before walking to Hart
R Avenue. R
S S
104
See counters 317-563; 602-714; 878-1022 & 1023-1064.
105
T See counters 1065-1095. T
106
See counters 562-673; 714-877 & 1147-1275. Also see §§31 (5) and 32 (5) of the prosecution
closing submission.
U U
V V
32
A A
B B
109. Inside the premises Chung Po Shan asked the defendant how
C much drugs he wanted. The defendant replied that he only had around C
$1,200 with him. Chung Po Shan then went towards the toilet and when
D D
he returned he gave the defendant twenty packets of cocaine. The
E defendant was sitting at the table shown on photograph 16 on which can E
be seen some bottles and a banana. Chung Po Shan and the defendant
F F
then smoked four of the packets of cocaine.
G G
110. After smoking the cocaine Chung Po Shan wrote something
H on a piece of paper. After a while the doorbell rang. Chung Po Shan H
opened the door and let in two males and one female. They sat at the
I I
table opposite the defendant and talked with Chung Po Shan. The
J J
defendant did not pay attention to what they said. Chung Po Shan also
K
served them with beer or whiskey. K
L 111. After a while Chung Po Shan said he was going out to buy L
some cigarettes. The defendant remained in the premises explaining that
M M
from his experience of taking cocaine he needed to sit in one place for 20-
N 30 minutes without moving or talking to anyone. In cross-examination N
the defendant said that Chung Po Shan did not instruct him to look after
O O
the premises on his behalf or look after the other three customers.
P P
112. About 40-50 minutes later Chung Po Shan returned
Q Q
accompanied by police officers. The defendant adopted his evidence
R given on the voir dire as to what happened when the police arrived. In R
summary the defendant testified that he was sitting at the same table
S S
when the police entered the premises and did not open the inner door for
T the police. T
U U
V V
33
A A
B B
113. On seeing Chung Po Shan the defendant stood up. Chung Po
C Shan addressing the defendant by his Chinese name “Wah Chai” told the C
defendant to take everything out. The defendant replied he only had
D D
sixteen packets left. The police then said “Don’t move we are police
E officers” at which time the defendant realised the persons with Chung Po E
Shan were police officers.
F F
114. DPC 9510 then took the defendant to a small room near the
G G
entrance of the premises. The defendant told DPC 9510 there were drugs
H in his trousers’ pocket. DPC 9510 then seized the drugs and left the room. H
I I
115. When DPC 9150 returned to the room he asked the
J defendant where the key to the locker was. The defendant told DPC 9150 J
that he did not know and that he only went to the premises with Chung Po
K K
Shan to take some drugs.
L L
116. The defendant remained in the room throughout and did not
M M
witness the search of the premises, including the finding of the drugs in
N the safe. N
O 117. While in the room the defendant heard Chung Po Shan being O
assaulted. Afterwards Chung Po Shan was brought into his room. Chung
P P
Po Shan asked the defendant to do him a favour by saying the place was
Q his and all the drugs were his. The defendant having drugs in his pocket Q
for which he would be going to prison and Chung Po Shan promising him
R R
$50,000-$60,000 and saying the case would not go to the District Court
S the defendant agreed to Chung Po Shan’s proposal. S
T T
U U
V V
34
A A
B B
118. No keys were found on the defendant. A police officer
C brought the keys into the room and placed them on a table. The C
defendant told DPC 9510 that he recognised three keys for the 9th floor
D D
but did not know about the other two. DPC 9510 told him one was for
E the locker and one for the main door. E
F 119. The defendant was never cautioned in the premises and F
never said that he planned to sell the cocaine to the customers to make
G G
some money; that all the cocaine in the safe belonged to him and that he
H planned to sell the cocaine to customers for alcoholic drinks to make H
money; and that he was the person in charge of the unlicensed bar.
I I
J 120. In the video recorded interview, the defendant said he lied J
when telling the police that he operated the premises as an unlicensed bar
K K
because DPC 9510 had directed him to say what was found in the
L premises was his. The defendant also lied when he said the sixteen L
packets were for sale to others to earn money; the drugs found in the safe
M M
were his and were for sale to drinking customers and that the monthly
N rental was around $20,000. The defendant said he lied because of the N
deal he had with Chung Po Shan.
O O
P 121. In cross-examination when Mr Lee put that the defendant P
was not instructed by DPC 9510 or any police officer on how to answer
Q Q
questions in the video recorded interview, the defendant replied that
R maybe he was not instructed how to answer all the questions but was told R
to say yes to most questions and to accept that everything found in the
S S
premises was his.
T T
U U
V V
35
A A
B B
122. The defendant testified he had been to the premises two or
C three times before with Chung Po Shan; that he believed Chung Po Shan C
owned all the items found in the premises; and that nothing in the
D D
premises belonged to him.
E E
123. The defendant also testified that he takes cough syrup daily
F and cocaine when he has money, sometimes two to three times per week F
or only once a week. The defendant would usually buy his cocaine in
G G
Tsim Sha Tsui from Chung Po Shan. When taking drugs alone the
H defendant would usually smoke ten to fifteen packets over five to six H
hours.
I I
J 124. In January 2017 the defendant said he would stand in Ap Liu J
Street and buy second hand mobile phones which he would sell to repair
K K
shops for a profit. On average the defendant said he would earn less than
L $20,000 each month. On the night he was arrested the defendant took six L
to seven mobile phones to the repair shop in Tsim Sha Tsui and sold them
M M
for a profit. In cross-examination the defendant said the work he had that
N night in Chungking Mansion was the selling of the mobile phones to the N
repair shop and that he made a profit of around $1,500.
O O
P Discussion P
Q 125. I have carefully considered all the evidence and the Q
submissions of Mr Lee and Mr Chan.
R R
S 126. I have no hesitation in rejecting the defendant’s evidence. I S
do not find his evidence credible, for example I do not find credible the
T T
defendant’s evidence he was taken to the premises by Chung Po Shan and
U U
V V
36
A A
B B
was left in the premises with persons he did not know. I find inherently
C improbable that if Chung Po Shan was the person in charge of the C
premises he would leave the defendant and other customers on their own,
D D
in particular considering there were other drugs in the premises.
E E
127. I do not find credible the defendant’s evidence that he lied in
F the video recorded interview because he had reached a deal with Chung F
Po Shan to say the place was his and all the drugs were his and that the
G G
police had told him to answer yes to most questions and to say that
H everything found in the premises was his. H
I I
128. Not only did the defendant admit possession of all the drugs
J but also that he sold drugs and that he planned to sell the drugs found on J
him and in the safe to drinking customers to earn money 107 . I find
K K
inherently improbable that anyone would admit drugs belonged to them
L when in fact they belonged to someone else and also admit those drugs L
were for sale.
M M
N 129. In oral submission Mr Chan repeated his submission on the N
voir dire that the payment of the bail in respect of an outstanding warrant
O O
of arrest supported the defendant’s evidence that he had reached a deal
P with Chung Po Shan. For the reasons already given I reject there was a P
deal with Chung Po Shan to say the place was his and all the drugs were
Q Q
his and the police told the defendant to answer yes and that everything
R found in the premises was his. This submission does not cause me to R
doubt the findings I have made.
S S
T T
107
See post-record and the video recorded interview counters 317-322; 444-452; 485-563; 602-673
and 702-714.
U U
V V
37
A A
B B
130. I remind myself that the rejection of the defendant’s
C evidence is not determinative of the issues in the case. The defendant has C
to prove nothing. A case in which defence evidence is called and is not
D D
believed is no different from one in which no evidence is called. In either
E case the burden is on the prosecution to prove the defendant’s guilt E
beyond reasonable doubt.
F F
131. I am satisfied so I am sure the prosecution witnesses are
G G
honest and reliable witnesses upon whose evidence I can safely rely.
H H
132. I am satisfied when first arrested for trafficking in dangerous
I I
drugs the defendant said under caution that he planned to sell the cocaine
J to the customers to make some money; when arrested for trafficking in J
dangerous drugs found in the safe said under caution that all the cocaine
K K
in the safe belonged to him and that he planned to sell the cocaine to
L customers for alcoholic drinks to make money; and when arrested for L
operating an unlicensed bar said under caution that he was the person in
M M
charge of the unlicensed bar.
N N
Trafficking in a dangerous drug
O O
133. I am satisfied full weight is to be attached to the admissions
P P
made by the defendant both in the premises and in the video recorded
Q interview that all the drugs were his and that he planned to sell the drugs. Q
I reject the defendant’s evidence that the drugs found in his trousers’
R R
pocket were for his own consumption.
S S
134. Taking into account the quantity of drugs found both in the
T T
defendant’s pocket and in the safe, the packaging of the drugs, the finding
U U
V V
38
A A
B B
of an electronic balance and a piece of card with traces of cocaine
C together with a large quantity of empty plastic bags of the same type C
containing the cocaine and the admissions of the defendant, I am satisfied
D D
so I am sure the defendant possessed all the cocaine for the purpose of
E trafficking. E
F Possession of liquor for sale without a liquor licence F
G G
135. I accept the evidence of DPC 9510 that he found a bunch of
H five keys from the defendant’s trousers’ pocket, one of which the H
defendant admitted in the video recorded interview was for the main gate
I I
of the premises108.
J J
136. I am satisfied full weight is to be attached to the admissions
K K
made by the defendant both in the premises and in the video recorded
L
interview that he was the person in charge of the unlicensed bar and that L
he sold liquor to the customers. I reject the defendant’s evidence that he
M M
was taken to the premises by Chung Po Shan to consume drugs.
N N
137. By virtue of regulation 25A (a) of the Dutiable Commodities
O (Liquor) Regulations the sale of liquor at any premises for consumption O
on those premises is prohibited except on the authority of a liquor licence.
P P
By virtue of section 17 (3B) of the Dutiable Commodities Ordinance
Q where regulations prohibit the sale or supply of liquor except on the Q
authority of a liquor licence no person shall possess for sale liquor except
R R
on the authority of such a licence.
S S
T T
108
See counters 1250-1265.
U U
V V
39
A A
B B
138. Taking into account the finding of the nineteen cans of beer,
C the premises were not licensed to sell alcohol and the admissions of the C
defendant, I am satisfied so I am sure the defendant possessed the
D D
nineteen cans of beer for sale without a liquor licence.
E E
139. In reaching this finding I have carefully considered the
F submission of Mr Chan that the tenancy agreement (exhibit P78) and the F
hand written paper (exhibit P79) found on top of the safe indicate the
G G
109
premises belonged to a new company and not the defendant .
H H
140. During the video recorded interview the defendant was
I I
shown these two documents together with the rates demand (exhibit
J P82)110. The tenancy agreement was referred to as a rental receipt. When J
asked if he knew the tenant named in the agreement the defendant replied
K K
that it might be the preceding tenant. Asked about the hand written paper
L the defendant exercised his right to silence saying he had nothing to say. L
M M
141. This submission does not cause me to doubt the defendant
N possessed the nineteen cans of beer for sale without a liquor licence. N
O 142. I have also considered Mr Chan’s submission that the police O
found no signboard, no price list or money and that the other three
P P
111
persons found in the premises may be the proprietors .
Q Q
143. In cross-examination DPC 9510 said he did not know the
R R
name of the bar; did not see any signboard outside the 13th floor; did not
S S
109
See §§4-6 of the closing submissions on behalf of the defendant.
T 110
T
See counters 1095-1146.
111
See §§7-9 of the closing submissions on behalf of the defendant.
U U
V V
40
A A
B B
see any advertisement that the premises were operated as a bar; did not
C see any menu or price list; did not find any money in the premises and did C
not find any mobile phone, wallet or money on the defendant.
D D
144. In what was clearly an informal bar where drugs were
E E
packaged and sold it is not surprising there was no signboard or
F promotion of the premises. When asked in the video recorded interview F
about the other three persons the defendant said they were customers who
G G
112
came for drinks .
H H
145. This submission does not cause me to doubt the defendant
I I
possessed the nineteen cans of beer for sale without a liquor licence.
J J
146. In reaching my verdict I have carefully considered
K K
everything said on behalf of the defendant by Mr Chan both individually
L
and collectively. Nothing said by Mr Chan causes me to doubt the L
findings I have made. I am satisfied so I am sure there are no material
M M
and significant discrepancies, improbabilities or omissions in the
N evidence which cause me to doubt the findings I have made. N
O 147. I am satisfied so I am sure the prosecution have proved all O
the elements of both charges beyond reasonable doubt, both charges
P P
considered separately. The defendant is convicted as charged.
Q Q
R R
(D. J. DUFTON)
S S
District Judge
T T
112
See counters 810-854.
U U
V V