HKSAR v. Tse Sum Ho

DCCC 669/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 669 OF 2015

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Reasons for Verdict

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1.The defendant is charged with trafficking in a dangerous drug, the drug being 6.36 grammes of a crystalline solid containing 6.10 grammes of methamphetamine hydrochloride, the drug commonly known as “Ice”.

2.The defendant has indicated that he would plead guilty to possession of that drug, but he indicates that he disputes that he had that drug for the purpose of trafficking.  The defendant said the drugs were for his own self-consumption.

3.So the issue at trial is whether the defendant possessed the drugs for his own consumption; and, if not, whether the inference can be drawn from the defendant’s possession of this quantity of the drug that he possessed those drugs for the purpose of unlawful trafficking in them.

4.This is what can be called a stop and search case, and the prosecution case is based entirely on facts admitted by the defendant.  The facts are as follows:  that on 14 February 2015 at 0155 hours, PW1 and PW2, two police officers, observed the 1st and 2nd defendants acting suspiciously outside Tin Ming House, Tin Ping Estate, Sheung Shui, in the New Territories.  When the 1st and 2nd defendants saw PW1, they immediately lowered their heads and walked away.

5.PW1 and PW2 intercepted the 1st and 2nd defendants respectively and carried out searches on the 1st and 2nd defendants.

6.Upon search of the 1st defendant - that is, this defendant - the following items were found in his left front trouser pocket: firstly, one transparent resealable bag, which is Exhibit P6, containing 1.57 grammes of a crystalline solid which contained 1.5 grammes of methamphetamine hydrochloride - “Ice”; secondly, one transparent resealable plastic bag containing five transparent resealable bags containing 1.73 grammes of a crystalline solid which contained 1.66 grammes of methamphetamine hydrochloride; thirdly, one transparent resealable plastic bag containing four transparent resealable plastic bags which contained 1.36 grammes of a crystalline solid which contained 1.31 grammes of methamphetamine hydrochloride; and fourthly, one transparent resealable plastic bag containing five transparent resealable plastic bags containing 1.7 grammes of a crystalline solid which contained 1.63 grammes of methamphetamine hydrochloride.  Two mobile phones were recovered, and a small amount of cash.

7.The estimated street value of the dangerous drugs seized from the defendant was $2,842.

8.Under caution for the offence of trafficking, this defendant said, “I have nothing to say”.

9.Paragraph 7 of the facts shows that on the same day in the morning between 10.34 and 10.44, the defendant’s house was searched.  No paraphernalia for the purpose of taking drugs was found, nor any paraphernalia associated with trafficking.

10.On the same day a video-recorded interview was taken from the defendant, and the defendant, amongst other things, said he had purchased the “Ice” found on him for his own consumption, and he had paid $2,000 for it.

11.The full interview was produced, as was the Government Chemist Certificate for the drugs seized.

12.It was also agreed that the defendant was a person of previous clear record.

13.The defendant’s video-recorded interview transcripts were produced in full.  There was some more detail given in the transcripts, and this established the defendant had taken drugs since he was 18 years old; taken “Ice” by inhalation.  He was asked:  “How much do you take on each occasion?”  He said:  “I take almost 1 gramme on each occasion.”  And he was asked:  “How much does 1 gramme cost?”  The answer was:  “1 gramme costs approximately $200.”  He was asked:  “How often do you take it?”  And the answer was:  “Every” - and then he said:  “I take it once every two, three days.”  He was asked how the drug was obtained.  He said:  “A person touted it to me on the street.”  He again said the drugs were for his own consumption, and he normally consumed it in public toilets in the Sheung Shui area.  He thought the drugs were worth about $2,000.

14.At notation 91, the police officer summarised the admissions earlier made.

15.In terms of the defence case, the defendant did not give or call any evidence, and no adverse inference can be drawn from that decision.  It is admitted he is a person of clear record.  In submission it was said on behalf of the defendant that an inference of trafficking cannot be drawn from the proven facts in that it cannot be the only reasonable inference that can be drawn from those proven facts.  It was said there was no evidence that the value of the drugs is beyond the defendant’s means, that the defendant must traffic in order to support his drug‑taking habit.  It was also said there was no evidence that the quantity is so large that the defendant must be trafficking in it.  It was also said there is no evidence of packaging materials or paraphernalia or trafficking materials at his home.  There were no electronic scales and no resealable plastic bags.  It is also noted there was no evidence of materials for consumption of the drug at his home, but that is explained, it is said, by the fact that the defendant said he consumed the drug at a public toilet in Sheung Shui.

16.The defendant is charged with trafficking in this dangerous drug.  There is a total of 6.10 grammes of the narcotic methamphetamine hydrochloride.  By section 4 of Cap 134, the defendant must be proved beyond reasonable doubt to have procured, supplied or dealt in the drug or possessed the drug for the purpose of procuring, supplying or dealing in it.

17.The prosecution say in this case the defendant must have possessed these drugs for supplying or dealing with them or in them.

18.The defendant has a clear record.  That is clearly relevant in assessing his credibility and also his propensity to commit an offence of this nature.  The defendant has admitted, both in his record of interview and through the Admitted Facts, that he possessed the drugs in question.  In order to establish their case, the prosecution would require an inference to be drawn from those facts.  Such an inference may only be drawn if it is the only reasonable inference to be drawn from the proven facts.  Also, the prosecution are required to prove their case beyond reasonable doubt, and that burden remains upon them at all times throughout the case.

19.The prosecution, of necessity, must base its case on the evidence of consumption of the drug, and I have been referred to the case of Tam Yee Chun [2014] 3 HKLRD 691, and in that case, the Court of Appeal discussed evidence that had been received both in that case and in earlier cases on the consumption of the drug “Ice”.  It was evidence that was accepted by and acted upon by that court, who said I can also accept such evidence and act upon it in drawing inferences.  At page 697, the court refers to evidence that had been given, and says as follows:

“One-tenth of a gramme of ‘Ice’, without reuse, will be sufficient for three to four of what, in the vernacular, are called ‘hits’.  An ‘Ice’ addict needs far less of the substance than does a heroin addict.  ‘Ice’ can be used and reused.  Its effect lasts between two to 12 hours, with the average being somewhere in the middle of that period.”

It goes on to say:

“Dr Leung was of the view that on the basis of use and reuse, 10 to 15 ‘hits’ could be obtained from 1 gramme.  It was also his view, and this is echoed in the American applications to which we have been referred, that ‘Ice’ is more addictive than heroin.”

At the bottom of page 698, the court quotes:

“Generally, it would be proper for trial courts to bear in mind that the amounts required by the personal abuser as opposed to the trafficker are considerably smaller in the case of ‘Ice’ than they are in the case of heroin.”

At page 700, the court refers to what is described as “The experience of Ching Kwok Hung”.  I have been referring earlier to the Ching Kwok Hung , and the court said:

“Dr Tse endorsed much of what was said about ‘Ice’ in Ching Kwok Hung”.

This is at paragraph 26.

“It is, he said, usually of a very high purity, and can be used or reused readily.  The average of each dosage for new or infrequent users of the drug is in the range of 0.05 to 0.1 grammes per day.  For such new or infrequent users of ‘Ice’, each ‘hit’ can bring about an effect lasting up to 12 hours, as they often purchase half a gramme to be shared among them, using a single bottle.”

It then goes on to say:

“As for regular users of ‘Ice’, the average daily consumption is in the range of 0.1 to 0.5 grammes, and that is contrasted with the consumption level for an addict of heroin.”

20.It was on the basis of that evidence the court dealt with the tariff sentencing for “Ice”.  I note that the defendant says that he had been consuming “Ice” since the age of 18, and on the indictment, the defendant is described as being aged 21 years old, and that would mean a three-year consumption if that evidence is accepted, which possibly could put his daily consumption, on the basis of the evidence accepted in Tam Yee Chun, as between the range of one-tenth to half a gramme daily.

21.The prosecution say that the only reasonable inference to be drawn from this evidence is that the defendant had the drugs in his possession for the purposes of supplying or dealing in them to others. They must base that proposition on three elements:  the quantity of the drug possessed by the defendant being what they would say is far beyond the daily needs of a consumer of “Ice”; secondly, the packaging of the drugs.  The drugs are found in, originally, four transparent resealable plastic bags which contained a further 15 resealable plastic bags in which the drugs were contained, and those further bags of five, four and five bags contained smaller quantities of drugs themselves, and it may be argued that the individual bags possessed within this haul are more suited to the needs of a daily consumer and are readily distributable in that form.  And finally, the fact that all the drugs were held by the defendant outside his home, in the street, at 0155 hours, the early hours of the morning, and it may be argued it would be unusual for a consumer to have all these drugs on his person at that time of the morning unless possibly he’d bought the drugs in bulk and was taking them home.

22.The defendant, in answer to this, points out that there is no evidence as  to his inability to afford the $2,000‑odd that the drugs in fact cost, and so there is no assistance can be drawn from the value of the drugs in drawing any inference.  There is no evidence that the defendant is a supplier in the sense of weighing and apportioning the drugs into the packets they are found.  There is no consumption or trafficking paraphernalia found at his home or on him.  It can also be said the defendant has, since his video-recorded interview taken on the same day, always maintained the drugs were for his own consumption, and also, the defendant has given a ready explanation of his consumption of the drug.

23.The first issue to approach is the explanation offered by the defendant in his record of interview, and the most salient feature in the defendant’s answers must be those given about his consumption of the drug.  He was asked:  “How much do you take on each occasion”, and he said:  “I take almost 1 gramme on each occasion.”  “1 gramme - it’s 1 gramme”, and he said:  “M’m.”  That’s an affirmative answer.  “And that is taken once every two, three days.”

24.The defendant’s consumption of the drug can be seen against the evidence accepted in Ching Kwok Hung and Tam Yee Chun, where it said one-tenth of a gramme of “Ice” without reuse would be sufficient for three to four “hits”.  It said on the basis of use and reuse, 10 to 15 “hits” could be obtained from 1 gramme, each “hit” lasting between two to 12 hours.  The other evidence at page 701 is for regular users of “Ice”, the average daily consumption is in the range of 0.1 to 0.5 grammes.  That would be a tenth to half a gramme.

25.But it is clear that the defendant’s consumption of the drug as set out in this interview is higher than the evidence given and accepted by the court in the case of Tam Yee Chun as being the average daily consumption, and would be twice as much, even taken at the highest level of consumption.  The defendant did say he took that much, 1 gramme, on each occasion.

26.On that basis, the drugs that he possessed, with the quantity being 6 grammes, would, on the basis of what he says, last him for six days or six separate consumptions of the drug, and on the basis of evidence accepted in Tam Yee Chun, that quantity of drug could be sufficient to provide 60 days’ consumption on the smallest quantity taken by the consumer.

27.But it is clear from the evidence I have and from what the defendant said in his record of interview that what he says about his consumption of the drug is not correct.  He is taking far more in a single consumption of the drug than the evidence would show that even the regular user would take, and for that reason, I find that I cannot place any reliance upon what the defendant has said about his drug consumption in his record of interview, and it is clearly untrue and is designed to maximise what the defendant says is his daily consumption, and the purpose of that must be to make it appear the drug would last for a shorter period, and that would justify his possession of an amount that would far exceed the normal requirements of a daily consumer or even an addict of the drug.

28.I find, therefore, that I should reject what evidence has been put forward by the defendant as to his daily consumption of the drug based on his record of interview.

29.The undisputed facts show that the total of the drug would provide far more than the daily needs of the average consumer of the drug or a regular consumer of the drug.  These drugs were also, as I have already noted, possessed in the early hours of the morning in a public place. The drugs themselves had also been broken down into manageable and consumable portions in the 15 bags which were possessed by the defendant.

30.I find that when all these facts are taken together, they are capable of proving to a criminal standard - that is, beyond reasonable doubt - that I can draw the inference that the drugs were themselves possessed by the defendant at that time for the purpose of trafficking in them; namely, for the purpose of distributing to others by way of dealing or supplying in them.

31.I can therefore convict the defendant, as proved beyond reasonable doubt, of the offence of trafficking in dangerous drugs.