HKSAR v. Lou Wan Man Carol

DCCC 274/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 274 OF 2015

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

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

---------------------
Reasons for Verdict
---------------------

1.The defendant faces two charges, one is trafficking in a dangerous drug and the second one is possession of an offensive weapon.

2.On 25 August 2014, police conducted an operation at a flat rented by the defendant in Sham Shui Po.  In her bedroom, on a table, was found almost 5 grammes of methamphetamine and 5 grammes of cannabis, together with two electronic scales and 40 resealable, transparent plastic bags.  The defendant said the drugs were for her own consumption.  Between the bed and the wall was found a machete, a knife, a torch and a sword, all in a bag. 

3.The issue on the 1st charge was whether the defendant possessed the drugs for the purposes of trafficking in them.  On the 2nd charge, the issue was whether the defendant actually possessed the four found items and if she did so, were all or any of them offensive weapons.

4.The police operation occurred at 12.05 am on 25 August 2014 at the defendant’s flat at Room C, 1st Floor, 56A Wong Chuk Street, Sham Shui Po.  The drugs were found on a table in the bedroom.  They were:

(a) three transparent bags containing 4.83 grammes of a solid containing 4.73 grammes of methamphetamine hydrochloride, commonly known as 'Ice';

(b) one transparent plastic bag containing 5.77 grammes of herbal cannabis;

(c) two electronic scales; and

(d) Forty transparent resealable bags.

5.In the same room, between the bed and the wall were found:

(1) a machete 59.5 centimetres in length;

(2) a knife 23 centimetres in length;

(3) a saw 58 centimetres in length; and

(4) a torch shaped like a baseball bat.

6.On arrest and caution, the defendant said the drugs were for her own consumption.

7.At the time, there were three other persons present in the flat, two males and one female.

8.It was agreed that the street value of the 'Ice' would be $2,199.05 and the cannabis $639.07.

9.The defence did not dispute the circumstances of the discovery of the drugs and the items described as weapons.  The defendant admitted to possession of the drugs for her own consumption and the fact that she was the tenant of the premises.  Also the street value of the drugs is admitted. 

10.Records of interview were taken from the defendant.  The defendant was questioned extensively.  Three statements were taken on 25 August 2014 and one on 26 August 2014.  These statements were challenged following a special issue investigation.  I declined to admit the statements. 

11.In summary, I found that in the first statement, which was the first video-recorded interview, it was apparent that the defendant was not fit to be interviewed.  Her responses to questioning were, at times, practically incoherent and nonsensical.  She appeared listless and dull.  The conduct of the interview in these circumstances was oppressive.  It also meant that the earlier two written interviews and notebook entry could also have been conducted while the defendant was in a similar or worse condition.  All those records are inadmissible.

12.The further statement taken on the next day, 26 August, was based on that inadmissible questioning of the previous day and could not be admitted on any principle of fairness.

13.One statement taken in December was admitted. The voluntariness was not challenged.  The defendant said she used the resealable plastic bags to pack accessories at home.

14.The defendant did not give or call evidence on the general issue.

15.It was agreed, however, that one of the men in the flat at the time of the police entry to the flat was a Mr Lam.  This person had convictions for possession of offensive weapons and offences of violence. Furthermore, his DNA had been located on the handle of the machete. 

16.The defendant did not give or call evidence.  No adverse inference can be drawn from this decision. 

17.The submission of the defendant’s case was as follows.  In respect of Charge 1, trafficking, that there was no direct evidence that the defendant was involved in trafficking in the drugs found in her home.  The prosecution case relied upon inferences being drawn.  In respect to the quantity of drugs, there was no evidence for consumption figures for an addict or retail consumer in respect of either drug.  However, when looking at the 'Ice', assuming a rate of consumption of up to 1 gramme per day, then the drugs would last less than four to five days and the almost 5 grammes of either drug could not be said to be an excessive quantity for an addict to have for their own consumption.  The possession of the plastic bags did not point definitively to the fact that these drugs would be used for trafficking and there was no evidence that any of those bags had contained drugs.  In respect to the possession of the electronic scales, they could be used to weigh drugs but there was no evidence that they had been.  It was said that, taken together, suspicion arises from these items but they were not sufficient to allow the court to draw an irresistible inference as to trafficking. 

18.In respect of Charge 2, it was said that being the tenant of the flat and having the key were not sufficient to draw the inference that she also possessed the offensive weapons.  She was not alone in the flat and the finding of Mr Lam’s DNA on the handle of the machete showed he had contact with the weapon, there being no such evidence in respect of the defendant, and in these circumstances, it would be unsafe to draw the inference that the defendant possessed the weapons.

19.Naturally, the burden to prove these charges remains on the prosecution at all times.  The prosecution must prove the charges beyond reasonable doubt. 

20.In respect of Charge 1, the charge of trafficking includes possession for the purposes of trafficking.  Any inference to be drawn must be capable of proving a fact beyond reasonable doubt.  It must be the only reasonable inference.  That has been described as an irresistible inference.

21.The prosecution relies upon the setting of the discovery of the drugs to establish the 1st charge.  The quantity of the drugs is not and cannot really be relied upon.  Although the quantity of the drug is clearly beyond a single dose, the quantity alone cannot provide evidence of a certainty that it was so large that there would necessarily have to be a distribution of the drugs.  Furthermore, there are two different kinds of drugs so the cumulative total of the drugs cannot assist in drawing an inference as to trafficking. 

22.There are other undisputed facts that are capable of leading to the drawing of an inference of possession for the purpose of trafficking.  These are the finding of the 40 resealable plastic bags and the two electronic scales.  They are important as they provide a means for the division of the drug into smaller doses and the capacity to put them into individual doses in the resealable bags. 

23.It is submitted that such an inference should not be drawn as the resealable bags are a commonplace feature of Hong Kong households. They have other purposes than holding drugs; they can be used to store household items such as jewellery.  The same argument can be used for the electronic scales.  Furthermore, it is said there is no trace of drugs on these items so they cannot be established to have been used to package any drug.

24.In the evidence, it is clear that the plastic bags and the scales were found together with the drugs on a table in the bedroom.  This appears to show that they were stored together with the drugs for use together with the drugs.  The logical conclusion of storing together is that they would be used together.  It was submitted that a consumer of the drug might wish to ascertain the weight of the drug and divide it up for daily use. There is another possible use of the scales and bags other than weighing and bagging for distribution to others. 

25.I must admit I find the notion that a consumer may weigh his drugs before or after purchasing them and place them into a bag before taking them out for a day’s supply is unlikely.  It appears such a possibility is speculative.  The drugs, the plastic bags and the scales are placed together, stored together.  In the absence of any explanation to the contrary, is the only inference that can reasonably be drawn from those facts that the drugs, or part of them, were to be weighed and apportioned into plastic bags for the purpose of sale and distribution by the person who possessed them, that being the defendant by undisputed admission? 

26.I find that the difficulty with drawing this conclusion as the sole inference is the fact of the small quantity of either drug, a few days’ supply.  Can one conclude so that one is sure that the only purpose of those drugs will be to traffic in all or part of them?  Clearly, there is what I describe as more than suspicion, but has it been established as a fact? 

27.I consider the quantity of drugs in this case is not sufficient to reach the definitive conclusion that the amount would have to be trafficked despite the existence of paraphernalia that would assist in trafficking.  It may be that some of the drugs were to be sold; it may be there was not enough left to sell any of them.  In this case, therefore, the irresistible inference that takes one onto a conviction of trafficking cannot be established beyond reasonable doubt on the 1st charge.  However, on this charge, the defendant must be convicted of possessing these drugs and I have to convict her accordingly.

28.On the 2nd charge, the four items alleged to be offensive weapons were found in a bedroom of the flat of which the defendant is the tenant.  There was evidence that a person in the flat at the time of the defendant’s arrest had come into contact with the handle of the machete and there was no such contact evidence for the defendant.  It is not possible to draw the irresistible inference that the defendant’s tenancy proves that she possesses all things within the flat, especially when there is evidence pointing in the opposite direction because of the presence of Mr Lam’s DNA on the machete.

29.I do not find that the necessary inferences can be drawn to establish the defendant was necessarily in possession of the four of those offensive weapons.  The prosecution cannot prove the element of possession beyond reasonable doubt.  The charge against the defendant fails on that basis.  She is acquitted on Charge 2.