HKSAR v. Leung Eric Chun-yung

DCCC 392/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 392 OF 2015

----------------------

----------------------

---------------------

Reasons for Verdict

---------------------

1.The defendant faces one charge of trafficking in a dangerous drug.

2.On the evening of 12 March 2015, the defendant was stopped by police by his motorcar, which was parked outside Tuen Mun MTR station.  On a search of the defendant, police found a plastic bag containing ketamine in his jacket and a search of the car found another bag wrapped in tissue paper in the car’s driver door.  This bag, the one in the driver’s door, contained four bags of ketamine, 42 small bags of cocaine and 20 plain empty plastic bags.  The defendant told police that all the drugs were for his own consumption.

3.At trial, the defendant has admitted he possessed these drugs and he said he did this for his own consumption.

4.The prosecution contended that the court could draw the irresistible inference that the drugs were possessed by the defendant for the purposes of him trafficking in them, and that was the issue at trial.

The facts

5.The evidence surrounding the finding of the drugs and the contents of the defendant’s records of interview was admitted.

6.In essence, these facts show that the interception of the defendant took place at 6.30 pm on 12 March 2015.  The defendant had driven to Tuen Mun MTR station in a private car and was parked there. 

7.The search of the defendant and his car disclosed the following:

(1) a plastic bag seized from the defendant’s right jacket pocket (that is Exhibit 1). This bag contained 15.6 grammes of a powder containing 7.04 grammes of ketamine;

(2) in the driver’s door, wrapped in tissue paper, there was found a plastic bag (Exhibit P2) containing 42 plastic bags containing 6.54 grammes of a solid containing 3.15 grammes of cocaine (that is Exhibit P2A);

(3) also, four plastic bags containing 36.1 grammes of a powder containing 14.9 grammes of ketamine (that is Exhibit P3); and

(4) finally, 20 empty plastic bags Exhibit P5.

8.At the time of the arrest, the defendant admitted all the drugs belonged to him, and that they were ketamine and cocaine for his own consumption.

9.When interviewed later in a video recorded interview, he said he had bought the drugs in Wong Tin Sin.  He came to Tuen Mun to look for a friend, that he did not have a fixed living place and slept in a car or a guesthouse.  He did not say how much he purchased the drugs for.

10.The prosecution, as part of their evidence, called evidence of the value of the drugs seized.  This was given by the second prosecution witness.  The second prosecution witness was relying upon information collated from other sources.  He gave evidence as an expert. 

11.PW2 said that the average retail price of a gramme of the mixture containing ketamine was $118 in March 2015 and for the gramme of the mixture containing cocaine was on average $1,067 in March 2015. On his calculation, the value of the ketamine possessed by the defendant was $6,111 and the value of the ketamine was $6,978, that the drugs were totally valued at HK$13,079.

12.Further evidence given was that the average purity of the drug ketamine in 2015 was 57 per cent of the mixture and the average purity of cocaine in the mixture in March 2015 was 54 per cent.

13.In this case, the purity of the ketamine was around 42 per cent and the cocaine was about in line with the average.  He said he could not exclude the possibility that if the purity of the drug was substantially less than normal, that it may affect street price, but normally the purchaser would not know the purity of the drug when purchased.

14.He said that where there was a bulk purchase, this generally would not affect the purchase price until the amount exceeded 250 grammes.

The defence case

15.The defendant gave evidence. 

16.Contrary to his statement in the video recorded interview, he said that in March 2015 he lived at home with his mother.  He made no contribution to her and he lived there free.  He said that he had said this in the video recorded interview to avoid the police raiding his living space at his mother’s home on what would have been his mother’s birthday. 

17.He was unemployed at the time of arrest. However, he had worked from December 2014 to February 2015 for Wan Tak Construction as a driver and had earned 20-odd thousand dollars-odd per month. He had worked up to 11 February 2015.

18.In fact, since the age of 18, the defendant had been continuously employed in the construction industry, save for his periods of incarceration in prison or a Drug Addiction Treatment Centre for possession of dangerous drug offences.  He had amassed savings of around $50,000 in his HSBC account and 70,000-odd dollars in his MPF account.  The evidence of the defendant’s working life was well documented in his evidence and there was documentation to support that.

19.He had taken drugs for seven to eight years, firstly cocaine and then ketamine.  He had been to Drug Addiction Treatment Centre twice and his consumption of drugs had increased over the years.

20.He said he consumes about less than 1 gramme of ketamine each time he consumes it, but he consumes a number of times each day, so each day he said it is less than 4 grammes, By implication, it would be in the region of that figure.  He would consume five to six packets of cocaine - the small packets - along with the ketamine.  By his calculations, the drugs he possessed would last him about 10 days.

21.He had bought the drugs the same day from Ah Chau in Wong Tai Sin.  He said he bought about 2 ounces, which is about 50 grammes, of ketamine for about $2,500.  This would last him about 10 days.  He also bought about 40 packets of cocaine.  He was given two for free for totally $3,000.  He said it was $5,500, but he was given two packets for free.  He was told this time by Ah Chau the drugs were not so good.

22.After purchasing the drugs, he went to Tuen Mun to meet a friend.  On arriving at Tuen Mun, but before leaving the car, he took out a packet to try the drugs by tasting it.  He put these drugs back in the pocket of his jacket he was then wearing. 

23.He said the 20 empty plastic bags were to apportion out his daily consumption, as he would leave the bulk of the drugs in his home and carry a daily consumption dose with him in the plastic bag or bags.

24.He had actually paid $5,200 to Ah Chau.  He was found with $2,147, so he had around $7,000 in cash on that day.  The source of the money was his savings from his employment and some “lai see”. 

25.As I said earlier, evidence was provided of his Mutual Provident Fund and savings and there was also documentary evidence to support his work and employment history.

26.The argument is as follows.

27.The prosecution say that PW2 established that the average price of the drugs purchased by the defendant would be in the region of 13,000-odd dollars and if he consumed the quantity that he said he did, meaning the drugs would last for 10 days, then he would be spending nearly $39,000 in a 30-day monthly period.

28.The defendant’s acknowledged income was much less than this.  Clearly, it was said he must have another source of income and his reluctance to say in the video recorded interview what he purchased the drugs for clearly showed he understood this problem.

29.Furthermore, his explanation for the possession of the empty bags was highly unlikely. 

30.Also his explanation for carrying one of the bags out from the car was unlikely.

31.So the combination of these factors would allow the court to easily draw the inference that the defendant was trafficking in the drugs that he possessed that day.

32.The defence say:

(1) that there was no evidence that the defendant’s evidenced consumption of the drug was excessive;

(2) that the defendant’s ability to consume the drugs in 10 days was not rebutted in any way.

As an aside, I think in the leading case involving the consumption of ketamine, it is said that a hardened addict could consume up to a gramme on one dose and would consume it more than once a day, so there is support in that for the defendant’s level of consumption.

(3) that the defendant’s drug addiction is well evidenced in the case.

We can see his period in Drug Addiction Treatment Centres, his sentence for possession of dangerous drugs, and the positive result for consumption of cocaine on his admission to Lai Chi Kok. The absence of a reading in respect of ketamine is not significant, because he was not tested for that on admission to Lai Chi Kok.

(4) the defendant also had told the police straightaway the drugs were for self-consumption;

(5) that the defendant had told police he lived in a guesthouse and car to avoid a raid of his home taking place on his mother’s birthday, her birthday being 13 March;

(6) that his employment history showed he was a construction worker with a good income of around $20,000, except when he had been incarcerated, and he had always worked except when he had been imprisoned or in a Drug Addiction Treatment Centre.

33.On the defendant’s evidence, his income was sufficient to support his drug addiction and allowed for some savings over the year. Therefore, he had no need to traffic in the drugs.  He lived with his parents and had no other real living expenses. 

34.It was said his evidence about the purchase price of the drugs should be accepted, that the second prosecution witness’ evidence deals with average prices for drugs.  Clearly, it is said, in an individual case, the figures could be higher or lower.

35.In this case, the quality of the drug ketamine was said to be poor, its purity being 41 per cent odd, being almost 20 per cent lower than the monthly average of 57 per cent for that month, and the purchase location of Wong Tai Sin was a place where cheaper drugs could be bought. 

36.The defendant’s evidence, it was said, as to the cost of the drugs, should be accepted.  That being the case, there was no other basis on which to draw any inference adverse to the defendant’s evidence.

37.The considerations I apply must be as follows.

38.The prosecution must prove the charge beyond reasonable doubt.  The court before convicting must be satisfied so that it is sure of the defendant’s guilt.

39.Trafficking in a dangerous drug includes procuring, supplying or otherwise dealing in or with a dangerous drug, or possessing the drug for the purpose of trafficking.  Here it is said the dangerous drug was possessed for the purpose of trafficking. 

40.In a case such as this, where there is no direct evidence that the defendant trafficked in the drug, the factual conclusion that the defendant possessed the drug for the purpose of trafficking can only be drawn from circumstantial evidence as an inference of fact from other facts established in evidence.

41.For such an inference to be drawn, it must be an irresistible inference, namely, the only inference that can reasonably be drawn from such facts.

42.The issue in this case is clear:  did the defendant possess the drugs on that day at that time for the purposes of trafficking in them?

43.The first issue to be resolved is going to be one of credibility. 

44.The only witness whose truthfulness was directly challenged was that of the defendant.  Although PW2’s evidence was challenged, it was not on the basis of PW2’s veracity, but rather as to whether his evidence, which dealt only in averages, could be applicable to the individual purchase the defendant made.

45.The defendant’s evidence was challenged by the prosecution, particularly his evidence of the price which he paid for the drugs.  Prosecution say his evidence was not and could not be true or reliable, as it varied considerably from that of PW2’s as to the average price of the drug.

46.It is also said the defendant had waited until giving evidence before actually putting a price to his drug purchase.

47.The average purchase price evidenced by PW2 was, as I said earlier, $118 per gramme of ketamine, $1,067 per gramme of cocaine, respectively totalling 6,101 and 6,978. 

48.The defendant’s evidence was the ketamine was sold for 2,500 and the cocaine for 3,000, with two packets for free, a total of $5,200.

49.Thus the ketamine is less than 50 per cent of the average price and the cocaine is also around 50 per cent of the average price.

50.PW2 conceded that the purity of the drugs may, he said, affect the price, although he thought it was unlikely the purchaser would know the purity.  He said the location of the purchase would not affect the price. 

51.The defendant said the drugs were cheaper because of their lower purity and the location, Wong Tai Sin.  The evidence of purity was 57 per cent on average for ketamine and 54-odd for cocaine.

52.Thus, in this case, as I have already indicated, the ketamine was less pure by a certain percentage, 20 per cent odd, and the cocaine was more or less the same as average.

53.I accepted PW2’s evidence that a bulk purchase would be one involving in excess of 250 grammes, so in this case there should be no discount for that.

54.Thus, the defendant’s purchase would not be sufficiently large to warrant a deduction on this basis.

55.I also accepted, for economic reasons, clearly that there should be no regional difference in purchasing price.

56.Thus the only basis of a discount being offered to the defendant in this case would be the reduction in quality from the average quality for that month for the ketamine.

57.This argument does not necessarily apply to cocaine, which is around the normal average quality.

58.I find that this argument of the or the evidence of the defendant, that he would get a discount of the form he did because of the purity he got, does not logically apply. 

59.The discount to the defendant is far beyond that one would expect from a discount for the alleged lack of purity.  One would consider that the decline or the discount of over 50 per cent would surely eventually put the dealer out of business. 

60.Further, the defendant could make an instant profit by onselling to another retail user, if he could always obtain or get or obtain a supply of such cheap drugs.

61.I consider, having heard the defendant’s evidence and compared it with all the other evidence in the case, that the defendant’s evidence about the purchase price of the drugs is untrue.  It is contrived so as to provide a figure that it was affordable for him, having regard to his known and evidenceable income.  It is clearly at odds with the evidence I accept for the price of drugs and what must be the reality of a commercial enterprise for selling drugs on the street.

62.I also believe, having seen and heard the defendant, that other areas of his evidence are contrived in the same way.

63.Firstly, his explanation for why he had separated the drugs and put one part in jacket.  This is contrived to provide an explanation for this anomaly.  It was meant to divert from the conclusion that the defendant had separated the drugs and was carrying some of them as he left the car, no doubt for the purpose of on-moving them.

64.Also, I found that his evidence about living at home and not paying any expenses was also contrived in the same way.  I do not believe that this defendant, who said he stored drugs at home, was trying to protect his mother, as he said in evidence.  He was trying to provide evidence of minimal expenses so as to present evidence that his drug habit was affordable without him having to resort to selling the drugs.

65.Overall, I found the defendant had provided an account designed to minimise the price he paid for the drugs, because he knew that to admit the actual cost of the purchase would mean that he could not afford the drugs.  He could not admit he could not afford his admitted drug habit on his known income.

66.I found the defendant to be untruthful and unreliable and I rejected his evidence as to how and why, at what price he had obtained the drugs, as to where he lived, and as to why he had separated the drugs out.  Clearly, there is no reason why the cocaine should have been sold at any discount and his evidence is unbelievable.

67.Although it is a fact of this case that the ketamine was of a lower purity than average, I do not find that the discount the defendant says he received is rationable or reasonable.  It is a fabrication. 

68.Even a 20 per cent deduction in price would give a price in the region of $4,500, which, combined with the proper average price of cocaine, would have the defendant spending in the region of $11,000 on a 10-day period.  Again, that would amount to $33,000, which is again far in excess of the defendant’s earning capacity.

69.However, in this case, I am prepared to accept that the drugs would have been sold at the average price. 

70.I also found that the evidence of the possession of empty plastic bags to be compelling, that there was a necessity and would have been a distribution of the drugs by the defendant and they were there for that purpose. 

71.I did not accept that they would be placed there by a retailer for the defendant’s convenience.  Again, that seems to me to be absurd and I rejected that evidence.

72.I found that, based on the facts that were proved and admitted, that the only inference that could reasonably be drawn is that the defendant must have been in a position where he would have to have onsold the drugs in whole or in part, and that is the only reasonable inference that could be drawn on these facts, and the defendant possessed the drugs for that purpose.

73.That being my finding of fact, I convict the defendant as charged of this offence.