HKSAR v. Amir Ubaidilah
Read the full judgment text of DCCC 557/2015 on BabelCite. This District Court judgment.
1. The defendant, Amir Ubaidilah, appeared before me facing a charge of ‘Trafficking in Dangerous Drugs’.
Cites 1 case
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DCCC 557/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 557 OF 2015 -----------------------
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--------------------------------------- REASONS FOR VERDICT --------------------------------------- Charge and plea 1.The defendant, Amir Ubaidilah, appeared before me facing a charge of ‘Trafficking in Dangerous Drugs’. 2.The charge concerned 10.28 grammes of a solid containing 5.88 grammes of cocaine and 0.87 grammes of a crystalline solid containing 0.83 gramme of methamphetamine hydrochloride, all found on the person of the Defendant on 26 March 2015 outside Pat Heung Central Primary School, Kam Sheung Road, Pat Heung, New Territories. 3.The defendant pleaded not guilty to the charge. He admitted possession of the drugs for self consumption. The background of the defendant 4.The defendant is a 32 years old Indonesian. He arrived in Hong Kong on 25 March 2013. He is an asylum seeker and is not permitted to work in Hong Kong. 5.He received monthly financial subsidy from the International Social Service at the material times, HK$300 for transport expenses and HK$1,500 to cover the rental for his accommodation in Tuen Mun. The arrest and the seisure of the drugs 6.It is an admitted fact that at around 9:17 pm, DPC 34736 (“PW1”) arrested the defendant outside Pat Heung Central Primary School, Kam Sheung Road, Pat Heung, for the offence of “Possession of dangerous drugs”. 7.A body search on the defendant at the scene revealed the following items:-
The street value of the drugs seized 8.Detective Senior Inspector Chan Lap Koon of the Narcotics Bureau estimated that the average retail price of 10.28 grammes of a solid containing 5.88 grammes of cocaine in March 2015 was HK$10,969 and the average price of 0.87 grammes of a crystalline solid containing 0.83 gramme of methamphetamine hydrochloride in March 2015 was HK$345. DSI Chanexplainedhow he arrived at the estimated values of the 2 drugs in his statement produced under section 65B of Cap 221 (Exhibit P9). 9.PW1 gave evidence in court that after the arrest and the defendant and the seizure of the drugs, he calculated the initial estimated street value of the drugs and arrived at the amount of HK$5,288.88. He did the calculation based on the information provided by the Narcotics Bureau and his own experience. The initial estimated street value he arrived at had to be confirmed by the Narcotics Bureau. The video recorded interview on 27March 2015 10.In the afternoon on 27 March 2015, a video recorded interview was conducted with the defendant by PW1 with the assistance of an Indonesian interpreter. The defendant’s answers to the questions asked during the interview were given voluntarily and were accurate and correct. The original disc is produced as Exhibit P6 and the transcript and the certified English translation are produced as Exhibits P6A and P6B respectively. A case to answer and the defendant’s election 11.I found that the Defendant had a case to answer. The Defendant elected to give evidence but called no defence witness. A summary of the defendant’s evidence 12.The defendant testified that he was a user of cocaine. On the day in question, he bought the drugs in question from his supplier in the area of Kam Sheung Road sometime before his arrest. He asked to buy 5 packets of cocaine, but for reasons unknown to him, one of the packets he received was ice, not cocaine. He thought he was given 5 packets of cocaine. 13.The defendant said he consumed cocaine by smoking, ie he would put the cocaine into cigarettes for smoking. He would use cocaine 2 to 3 times daily, the cocaine he bought on the day could last for approximately a week. He was not a user of ice. 14.The defendant paid HK$300 for each packet of cocaine. The total price for the 5 packets of drugs found on him was HK$1,500. 15.For the HK$11,000 cash found on him, the defendant said HK$500 belonged to a friend of his. For the remaining balance of HK$10,500, the defendant said he won HK$5,000 odd from lottery and betting on soccer. He had worked part-time as construction site worker for 3 days at a daily wages of HK$600. He received monthly from HK$1,800 from the International Social Service. 16.For the 3 mobile phones found on his person, the defendant said he used one for internet browsing and another one for making telephone calls in Hong Kong, for the remaining one, he brought it with him to Hong Kong from Indonesia. 17.The defendant said all the drugs found on him were not for trafficking. The issue 18.The only issue is why the defendant possessed the drugs in question. 19.The prosecution submits that given the status of the defendant, the street value of the drugs and the large amount of money found on the defendant’s person, the only irresistible inference must be that the defendant was trafficking in dangerous drugs. Closing Submissions 20.I am grateful to Mr. Wong for the Prosecution and Mr. Pickavant for the Defence for their detail closing submissions. Discussion The Retail Value of the Drugs 21.The statement of DSI Chan was produced pursuant to Section 65B of Cap. 221. All along it was the understanding of the Prosecution and this Court that the statement of DSI Chan was produced as a expert report. Mr. Pickavant took issue with the expert status of DSI Chan in his closing. I canvassed the matter with the parties. Mr. Wong confirmed all along it was the Prosecution’s intention that Exhibit P9 was produced as an expert report. I indicated to Mr. Pickavant that if he had any misunderstanding about the status of P9, I would allow him to withdraw the admission and I shall hear evidence on the issue of the retail value of the drugs. Mr. Pickavant then indicated he would accept P9 is an expert report. 22.Mr. Pickavant took issue with paragraph 7(a) of DSI Chan’s statement which reads :
23.Mr. Pickavant submitted DSI Chan was talking about ice, not cocaine, in paragraph 9. 24.I do not agree. One should also read paragraphs 7 and 8.
25.Reading the 3 paragraphs as a whole the ‘methamphetamine’ in paragraph 9 s clearly a typo. The figure of HK$1,067 was clearly the average retail price for one gramme of solid containing cocaine, the one that DSI referred to in paragraph 8. When DSI Chan mentioned the quantity of 10.28 grammes in paragraph 9 , he was obviously talking about 10.28 grammes of solid containing 5.58 grammes of cocaine, the same quantity that he referred to in paragraph 7(a), this he stated in paragraph 7 “as mentioned in 7(a)” after the word “methamphetamine”. 26.In my judgment, even without paragraph 9, I can do a simple calculation with the average retail price stated in paragraph 8 and the quantity of cocaine seized in the case. I would still arrive at the figure of HK$10,969.
27.For the retail street value of the drugs in question, the estimated value provided by DSI Chan was different from the one provided PW1. According to DSI Chan the estimated street value of the cocaine and Ice in question was HK$11,318 whereas according to PW1, the estimated street value of the drugs in question was HK$5,288.88. 28.DSI Chan had the advantage of have access to the information as stated in paragraphs 3 to 5 of his statement. It was indeed one of his duties to collect, analyze and disseminate drug-related information. I am aware that PW1 had the advantage of knowing the area where the alleged offence took place. PW1 said the estimate he made was an initial one and was subject to confirmation by the Narcotics Bureau. 29.Having read the statement of DSI Chan and heard the evidence of PW1 in court and upon hearing counsel, in the end, I have come to the conclusion that I should attach full weight to the statement of DSI Chan. 30.As for the initial estimate made by PW1, but for the inclusion of it in the Admitted Facts (Exhibit P8), it is doubtful if the estimate by PW1, who is clearly not qualified to give opinion evidence on average street value of drugs, could be admitted as evidence. 31.In my judgment, even if the lower of the 2 estimated street values is accepted, i.e. HK$5,288.88, there was no reason why the supplier would sell the drugs in question at a fraction of their average street values. I do not believe the Defendant’s evidence that he was able to obtain the drugs in question for HK$1,500 when the same quantity of drugs could be sold for HK$ 5,288.88 at retail level. 32.If the Defendant’s role was only that of buyer at retail level, I do not believe he could obtain the drugs in question for HK$1,500. The HK$11,000 Cash Found on the Defendant 33.The Defendant said in his evidence that the HK$11,000 found on him consisted of:-
34.The HK$5,000 winnings were won approximately 2 months before his arrest, putting aside the issue of how is it that the Defendant still had his winnings intact 2 months later, the winnings were not interest earning and they would not grow with time, so were his HK$1,8000 earnings from working part-time. The Defendant gave evidence he had to work part-time as the financial assistance from the International Social Service was insufficient to make ends meet; in other words, he would not be able to save any money from the financial assistance (It should be noted that when asked about how he came by the HK$11,000 in the video recorded interview, the Defendant told the police that he won the money from the Jockey Club, he did not mention a word about his earnings from working part-time (Counter 87 to 90 of Exhibit P6B). 35.Assuming that:-
the 4 items mentioned by the Defendant only added up to a total sum of HK$9,100, the Defendant still could not explain why he had HK$11,000 cash on him at the time of his arrest. Whether the Defendant Could Afford the Drugs 36.The Defendant said he would use cocaine 2 to 3 times daily and the cocaine he bought on 26th March 2015 could last for approximately a week. He had taken cocaine for 5 months prior to 26th March 2015. 37.Based on the average retail value of cocaine as stated in the statement of DSI Chan, the Defendant would need to spend over HK$40,000 on cocaine per month. 38.Even if we take the estimate given by PW1, it would still cost the Defendant over HK$20,000 per month. 39.It is difficult to see how the Defendant could afford to purchase 5.88 grammes of cocaine per week given his financial status. 40.Even if the Defendant had won HK$5,000 from gambling approximately 2 months before his arrest and he had earned $1,800 by working part-time as construction site worker, it is difficult to see how he could maintain his drugs consumption without eating into the aforesaid winnings and his earnings. The Packet of Ice Found on the Defendant 41.The Defendant could not explain why there was a packet of ice among the drugs found on him. He asked for 5 packets of cocaine but was instead given 4 packets of cocaine plus a packet of ice. It is implicit in the evidence of the Defendant that his supplier had either made a mistake or it was a deceitful act on the part of the supplier. 42.From the Admitted Facts (Exhibit P8) and the Government Chemist’s Certificate (Exhibit P5), one can see that the cocaine was in white coloured powder form whereas the ice was in the form of crystalline substance. It is difficult to see how the supplier and the Defendant could fail to notice the difference when the drugs changed hands. 43.If the supplier wanted to adulterate a packet of ice in the cocaine he sold to the Defendant in order to earn some extra profit, he could have simply charged the Defendant more for the cocaine. From the statement of DSI Chan, the Defendant was buying the cocaine at a fraction of the average retail price of the drugs. 44.I do not think the presence of the packet of ice found on the Defendant was the result of a mistake or deceitful selling on the part of another person. 45.In my judgement, the Defendant could not quite explain why, if he needed cocaine for self-consumption, he had a packet of ice on him on the day in question. The Winnings 46.The evidence of the Defendant as to how he won his bets on football and his explanation on the same subject in his record of interview were both given by the Defendant with grotesque vagueness. I agree with the comment made by Mr. Wong that “even if a person could not recall the date a bet was put on he would at least remember the particular football match he placed the bet on.” In my judgment, the evidence of the Defendant and his explanation on the same issue in his video record of interview do not have a ring of truth (Counter 90 to 126). The Supplier 47.I agree with the observations made by Mr. Wong that the Defendant’s evidence in court conflicts with the answers he gave to the police in some material aspects. 48.The Defendant said in his evidence that he had the telephone of the supplier in one of 3 telephones found on him, i.e. the one that he used to make phone calls. In the video recorded interview, he was asked if he had any way of contacting his supplier the Defendant answered “No” (Counter 143 and 146 of P6B). 49.Under cross-examination, the Defendant said he was able to recognize his supplier on 26th March 2015 as the transaction in question was the second time that the same supplier sold drugs to him. In counter 142 to150, the Defendant was unable to provide any details about the supplier other than that he was a male of Pakistani or Indian descent, that he had no means to contact the supplier and he could not recognize the supplier. 50.The Defendant said in his evidence that he obtained the drugs in the Kam Sheung Road area; yet in his video recorded interview, the Defendant told the police that he did not know the street, nor the district, where he obtained the drugs (Counter 163 to 174 of P6B). 51.The inconsistencies and contradictions between the in-court evidence of the Defendant and what he told the police in P6 shows that both the in-court evidence and the exculpatory explanations given by the Defendant in P6 are not worthy of belief and unreliable. Rejection of the In-Court Evidence of the Defendant and the Exculpatory Explanations in P6 52.Based on the above analysis, I reject the evidence of the Defendant and his exculpatory explanations in P6. What the Defendant said as to: -
is not the truth and cannot be the truth. Conclusion 53.The Prosecution bears the burden of proof throughout. The Prosecution must prove all the elements of the offence beyond all reasonable doubt. 54.It is an admitted fact the cocaine and ice were found on the Defendant person. The only issue is why the Defendant had the drugs in his possession. 55.On the day in question, the Defendant had in his possession two types of dangerous drugs worth over HK$10,000. The Defendant was an asylum seeker in Hong Kong who was not permitted to work. He was found in possession also of HK$11,000 cash. I rejected the Defendant’s evidence that he earned HK$5,000 from lottery and football bets and HK$1,800 from working part-time. I rejected the Defendant’s evidence he could afford the drugs. The drugs were not large in quantity but there was no way that the defendant could afford the drugs. 56.I am sure the Defendant did not possess the drugs in question for his self-consumption. The only irresistible inference I can draw from the evidence is that the Defendant possessed the 4 packets of cocaine and one packet of ice for the purpose of unlawful trafficking. 57.For the reasons given, I convict the Defendant as charged.
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Cases cited in this judgment
Further hearings and rulings under DCCC 557/2015