HKSAR v. Chiu Tik Ho

DCCC 370/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 370 OF 2015

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Reasons for Verdict

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1.The defendant faces one charge of trafficking in a dangerous drug. The defendant admits possession of drug for his own consumption. The issue at trial was whether the defendant possessed the drugs for the purpose of trafficking.

2.The facts of the seizure of the drugs from the defendant were not disputed.  They were that on 6 March 2015, police officers were patrolling Shek Ping House, Long Ping Estate in Yuen Long at 2324 hours.  On reaching the 17th floor, they saw the defendant.  On seeing them, the defendant ran away.  He was intercepted and searched.  Dangerous drugs were found as follows: in his left fist, one transparent resealable bag containing ketamine; on the floor, two resealable plastic bags containing ketamine (these were dropped from the defendant’s right hand); in the defendant’s left front trouser pocket, a resealable plastic bag containing a further 37 plastic bags, each containing ketamine.  In total, 25.26 grammes of a powder containing 10.23 grammes of ketamine were found.

3.Now, the evidence showed that the retail street value of this quantity of ketamine was HK$2,981 at the material time.

4.On arrest and caution, the defendant said, “I bought this K Chai for my own consumption.”  The defendant resided nearby to the location of his arrest on the 17th floor, at Room 1705.  That room was searched.  Nothing relevant was found.

5.The defendant was interviewed by video on return to the police station.  In summary, he maintained that the drugs were for his own consumption.  The voluntariness of the VIR was not challenged.  The defendant said that the statements made therein were truthful, and he said that in his evidence when he gave it in court.

6.A summary of the video-recorded interview: the defendant answered questions relating to the cost of his habit of drug-taking and the quantities of drug consumed.  At tab 68, in answer to a question, he said that he could take 1,000 bucks per day Hong Kong dollars.  This amounted to 14 to 20 grammes of the drug, that he earned fifteen, sixteen thousand Hong Kong dollars per month as a kitchen chef.  When he bought the drugs, they were packed in the same way, ie 40 packets.  He was about to consume the drugs in the three packets in his hands in the staircase nearby.

7.The prosecution contend that due to the quantity of ketamine and the manner in which it was packaged, the only reasonable inference that could be drawn was that the defendant possessed the ketamine for the purposes of trafficking in it. 

The Defence Case

8.The defendant gave evidence.  He also relied on his answers given in the video-recorded interview.  In evidence, he said he was aged 20; he was in employment, earning fifteen to sixteen thousand dollars per month.  He was at the time of his arrest a drug addict.  He had started taking drugs in 2004.  He had received voluntary and compulsory drug addiction treatment centre.  He had been in Hei Ling Chau.  He had been subject to recall to Hei Ling Chau.  On completion of treatment, he had always relapsed. 

9.In evidence, he said he took 5 to 7 grammes daily.  The maximum he would take was more than 10 grammes.  He said he bought 40 grammes because sometimes the supplier would ask him to buy in bulk, and he said, “A loose packet.”  He would take a minimum quantity to control himself to take a certain number of bags per day.  He had not asked for 40 bags.  They were packed like this when he bought them.

10.In the video-recorded interview, when he had said he consumed 14 to 20 grammes daily, he had said this was on a leave day or a holiday.  In cross-examination, he agreed he had never told the police that he consumed 5 to 7 grammes per day.  That was because the police had only asked him how much he could consume in a day.  He would only take the 20 grammes, he said in the video-recorded interview, if he were depressed.  There had been two occasions when he had done this after his release from compulsory treatment in December 2014.  He said those would have been occasions when he was released and being recalled in December 2014.  He said that before this, he had previously paid $2,100 for drugs that lasted him eight days.  He paid about $2,000 for the drugs in this.  

11.The prosecution must of course prove beyond reasonable doubt the defendant trafficked in the drugs, possessed it for the purpose of trafficking.  They say he did that by possessing the drugs for the purpose of trafficking in them.  They say proof of this lies in the packaging of the drugs in 40 separate, easily saleable doses and also in the defendant’s answer in the video-recorded interview which they say showed that his stated consumption of the drugs was beyond his ability to pay for them based on his income as a kitchen worker of fifteen to sixteen thousand Hong Kong dollars per month. 

12.The defence say that the defendant’s evidence shows that his consumption of ketamine is within the normal range for a long-term addict and is also affordable on his stated income, thus provides no evidential support for the inference the prosecution ask for.  They say the packaging of the drug alone cannot provide any irresistible inference to elicit the fact that the defendant had the drugs for the purpose of trafficking in them.

Analysis of the Argument

13.The defendant has given two accounts of his drug consumption and expenditure.  The prosecution say they are in conflict; the defendant says they are compatible because he has been asked two different questions.  In the video-recorded interview, the defendant says specifically he could consume 14 to 20 grammes per day; in evidence, he said he consumed 5 to 7 grammes.  In the cautioned statement, he says he spends a thousand dollars per day on that 14 to 20 grammes.  The amount in his evidence of 5 to 7 grammes would be an expenditure of round about three to four hundred dollars per day or $2,000 every 8 to 10 days.

14.The question asked by the police officer in the video-recorded interview is in the following form.  Question: “Well, how much could you take per day?”  Answer: “I could take (an amount equivalent to) 1,000 bucks per day.”  Question: “How heavy approximately is $1,000 or the amount equivalent to?”  Answer: “About 14 grammes, about 14 to 20 grammes.”

15.It can be seen the question and answer is premised on the amount the defendant could take, not the amount the defendant actually does take.  As presented in the video-recorded interview, the question is ambiguous.  It certainly gives space to the defendant to give an interpretation of it.  The interpretation the defendant gives in evidence is this refers to a possible highest consumption.  It is an available interpretation.

16.Given the ambiguity in the questioning, it is clear that the conflict that the prosecution say that exists in the defendant’s evidence does not actually exist.  

17.The defendant also in submission refers to the expert evidence given in the case of Secretary for Justice v Hii Siew Cheng where it is said in that judgment that expert evidence showed that up to a gramme or more of ketamine can be taken by an experienced user.  And this accords with the defence evidence as to his level of consumption.  

18.If the defendant’s evidence is accepted, then the quantity of drug possessed by the defendant would last him in the order of 7 to 8 or possibly 10 days and would cost him a monthly figure of around HK$10,000.  Neither of these figures are evidence that the defendant would necessarily have to traffic in support of his habit financially or the amount possessed was not reasonably consumable by the defendant. 

19.All that remains from which an inference could be drawn is the packaging of the drug.  The fact that there are 40 packets divided on their face into individual doses is persuasive evidence that the drugs may be distributed.  It would certainly facilitate their distribution.  

20.I do note there is no other evidence in support of the inference of trafficking.  There is no evidence of equipment such as scales or other resealable bags found on the defendant in his possession or in his premises.  Although there are mobile phones seized from the defendant, there is no evidence from mobile phone records of communications.  The defendant was in possession of $70.  There is no evidence of large sums of money possessed by the defendant either in his possession or in his bank account.

21.Thus, the evidence points to the likelihood that the drugs were in the condition found when the defendant received them.  There is no evidence to support the proposition the drugs were apportioned into the 40 bags by him.  I do note the packaging makes the possible distribution of the drug easier, and it does make it more likely at least part of the drugs would be onsold.  But a likelihood is insufficient to support any evidential finding of fact and not sufficient to support the inference that at the time the drugs were possessed for the purpose of trafficking in them.  Thus, the charge as drafted is not supported by the evidence to a criminal standard.

22.However, the defendant can be convicted on the basis of his possession of the drug, on the basis of his plea and the other admitted facts in the case, and so I will convict the defendant of the alternative offence of possession of dangerous drug in respect of his quantity.