HKSAR v. Hau Pak Kwan

DCCC 975/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 975 OF 2015

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Reasons for Verdict

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1.The defendant, Mr Hau, faces a single charge of trafficking in a dangerous drug. The defendant has admitted, and the charge was put to him, to possession of that dangerous drug under section 8 of the same ordinance. So the issue the court faces today is determination as to whether the defendant was in fact trafficking in the dangerous drug that he was found and admitted to be possession of.

2.The prosecution case was admitted.  It consisted of the following facts in summary.  At about 5 o’clock on 17 July 2015, a patrolling police officer saw the defendant acting suspiciously.  He stopped the defendant and conducted inquiry on him.  A body search was conducted and found in the defendant’s right front trouser pocket was a transparent resealable plastic bag containing a white brick-like fragment of a suspected dangerous drug.  The defendant was arrested and cautioned for possession of a dangerous drug at the scene.

3.On the same day the police took the defendant to the Mong Kok Police Station where the transparent resealable plastic bag containing the suspected dangerous drug was weighed, put into a tamperproof envelope and sealed.  The tamperproof envelope and contents was later examined and it was determined that it contained 21.7 grammes of heroin hydrochloride which is a dangerous drug control under the Dangerous Drugs Ordinance, Cap 134.

4.The defendant was interviewed under caution at the Mong Kok Police Station again on 17 July 2015. The contents of the video-recorded interview were admitted.  In summary, the defendant said that he had been a drug addict for 10 years, he consumed ‘Ice’ and heroin.  On the day of his arrest on 17 July 2015, he intended to go to the Sincere Podium to look for phones but changed his mind and wanted to acquire drugs first.  He obtained 28 grammes of heroin worth $15,000 from “Ah Kuen” at a park near Mong Kok Road at about 1400 hours on the day of arrest, but he did not pay Ah Kuen as he said he would do it the next time.  He could not provide the contact information for Ah Kuen.  He planned to go home after obtaining the heroin but he was stopped and arrested by the police. 

5.He had over $100,000 gambling winnings each month regularly.  He would use the money to buy drugs. The money he won would usually be placed under his bed, but at the time he did not have any money at home as he had lent cash of $230,000 to a friend called “Ah Yung” two days before the arrest.  He did not have the contact information of Ah Yung.  He worked as a sales person in Wan Chai by selling financial packages in a company named Emperor Bullion, receiving a salary of $20,000 per month.  He would store heroin inside a cookie box, placed in his bedroom.

6.The prosecution produced evidence from Mr Fong Chin‑yuen, manager for the departmental administrative management at the Emperor Group.  He confirmed there is no record of the defendant’s employment at the Emperor Group of companies which includes Emperor Bullion.  It also admitted that no paraphernalia for consumption of heroin was found by the police during the search at the defendant’s premises where he had admitted he lived. 

7.The opinion of Dr Tang, a professor in the Department of Psychiatry at the Chinese University of Hong Kong was admitted.  His expertise is in the dangerous drugs consumption.  It is not disputed that the daily consumption of a regular Chinese heroin user was 0.9 grammes.  Accordingly, the 21.7 grammes of heroin found was adequate for 24.1 days.

8.More so, evidence was admitted from Detective Inspector Lo who estimated the retail value of the heroin seized, that is Exhibit P1, was $22,764: that is 28 grammes of heroin at $813 per gramme.

9.The defence case was evidenced by the defendant who gave evidence himself and subject to cross-examination.  In summary, it is that he is estranged from his family.  He is a heroin addict.  From 3 June 2015 to 15 July 2015 he worked for a furniture manufacturer and received a salary at the end of the month.  He produced two cheques he had received.  One was for $9,680, it was dated 30 June 2015.  That cheque he said he had cashed.

10.He was a long-term drug consumer.  He consumed slightly less than 1 gramme per day.  He estimated his consumption of the drug would take slightly longer than the government expert (stated?).  He produced his criminal record to support his assertion that he was a drug addict, also evidence was produced from the defendant’s entry into Lai Chi Kok Prison after arrest where he tested positive for opiates, amongst other drugs.

11.The defendant’s criminal record contains 25 recorded occasions where he has been before the court to be convicted.  He initially started in 2003 where he was placed on probation for 18 months.  In 2004, he was sent to a Drug Addiction Treatment Centre for the first time.  He was sent again to a Drug Addiction Treatment Centre in 2005, in 2008, in 2009, in 2010 and in 2011.  The defendant also has convictions for theft for burglary, resisting arrest and assault.

12.The defendant said the on the 2 July 2015, he had pawned a stolen watch, an Audemars Piguet watch, for $27,000.  A receipt was produced form the pawn broker for that pawning incident. 

13.He was eventually arrested and cautioned for this offence and later convicted for the offence relating to the watch in November 2015 and received a 8 month prison sentence. His evidence would have been that by early July 2015, he had the money from his work and the money from pawning the watch.  That was a total of over $36,000. He had decided to bulk purchase heroin which he said would last him for over a month.

14.He bought the dangerous drug and was arrested shortly afterwards.  The drug was bought for $15,000 as he said in his cautioned statement.  He kept his dangerous drugs and consumption paraphernalia in a Kelsen cookie jar container under his bed in his flat.  This was not discovered by the police.  He believed, and is speculation on his part, it was not found the police because his girlfriend removed it.

15.He said his explanation in the record of interview for the sources of money to buy the drugs were lies and he told lies to cover up the actual source of the money for the drugs which is theft and pawning of the Audemars Piguet watch.  

16.As far as the law is concerned, the defendant faces one charge of trafficking in a dangerous drug. The prosecution must prove to a criminal standard that is beyond reasonable doubt that the defendant trafficked in the heroin found on him.  Trafficking of course is dealing or supplying in the heroin.  The prosecution must of course also rely on inference in this case.  If an inference is to be drawn against the defendant as a matter of fact, it must be the only reasonable inference that is available.  The prosecution must prove the case beyond reasonable doubt.

17.The prosecution say the defendant lied in his record of interview about the source of his money to buy the drugs, and they are right about that because he has admitted that.  They say I can use these lies to draw an inference that the defendant told those lies out of a realisation of guilt. 

18.They also say that the quantity of the drugs and the absence of consumption paraphernalia show the defendant was a dealer or distributor of the drugs and his record of interview show that on occasions he may well have been what is called a social trafficker supplying the drugs to his friend.

19.They say that the possession of the drug in public place on that occasion and at that time had all the indicia of a drug trafficking enterprise.  They say the defendant was clearly a trafficker in that he was probably a courier or deliverer of the drug on that date.

20.My findings as far as the defendant is clearly a drug addict.  There is ample evidence to support that.  His criminal record shows a long-term experience of drugs and many occasions on which he is determined to be a drug addict and sent to Drug a Addiction Treatment Centre.  Also his entry into the Correctional Services Department custody shows that he had taken opiates within a short period of being confined.  There is no reason for me to doubt the defendant’s evidence about his drug habit and consumption needs. 

21.In fact, as I have noted earlier, the defendant said he would take longer to consume the drug than the prosecution expert in fact said.  The absence of consumption paraphernalia at his house is puzzling, but it does not displace the other evidence in court that clearly shows his addiction. 

22.I also find, as admitted again by the defendant, that he lied in his record of interview about the source of his money to purchase the drugs.  The question is what use could be made of that, of those lies in this case.  

23.However, the defendant has established by the pawning record, by his conviction record, that in July he was in fact in possession of the money from the pawn and also from his job. So the defendant was in funds to buy the drugs.  So it will be difficult for the court to draw an inference that the defendant must have trafficked in the drug or been in a position to traffic in the drug in order to obtain the funds to support his drug addiction on that occasion. 

24.I also note that there is a difference between the prosecution and the defence as to the purchase price of the drug.  The evidence from the prosecution is as to the average retail sale value of the drug in July 2015.  Naturally, that figure will encompass both the highest and lowest sale prices of the drug.  I do find it cannot be used in this case to displace the evidence that the defendant gave of the purchase price for the drug that he paid.

25.The court is left in this case with the possession of this quantity of drug in a public place as the source of evidence from which to draw the necessary inference against the defendant that he was trafficking in that drug.  I find the quantity is not so large as to make this the only available inference is possible to draw in this case.  Thus, it is not possible for the prosecution to establish to a criminal standard in this case that the defendant was in fact trafficking in the drug which he had possession of.

26.That being my conclusion, the defendant will be acquitted of the charge of trafficking and convicted of the offence of possession of a dangerous drug both on his own admission and on the evidence called in this case.