HKSAR v. Ngo Kin Chung

DCCC 299/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 299 OF 2016

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Reasons for Verdict

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1.The defendant has pleaded not guilty to one charge of trafficking in a dangerous drug. He accepts he possessed the drugs, and says they were for his own consumption. The issue is whether the defendant possessed the drugs for the purposes of trafficking in them.

2.The background is as follows.  The defendant was stopped by the police on 2 February 2016 at 1.15 in the early hours of the morning whilst driving his car in Hong Kin Road in Sai Kung.  A search of the defendant was conducted.  In his right trouser pocket a small black bag was found.  It contained 71 plastic bags which contained 17.1 grammes of a solid which contained 13 grammes of the drug cocaine.

3.It is agreed as an Admitted Fact that the street value of that cocaine is $18,348.

4.Also found within a white shoulder bag of the defendant’s were three mobile phones and HK$26,260.

5.The defendant claimed the drugs were for his own consumption and maintained that claim in court.

6.The defendant was later interviewed.  The contents of his interview are admitted.  In summary, he said that he worked as a decoration worker earning HK$20,000‑odd per month.  He bought the drugs in Mong Kok on 1 February - that is, the evening before - at about 2100 hours, for HK$14,000.  He was a drug addict.  He bought the drugs for self-consumption.  It would be sufficient for one month’s consumption.  He bought a large quantity because he foresaw that the price would increase in the Lunar New Year.

7.He possessed the HK$26,200, but this was to pay for internal renovation of his residence which was in progress at the time.

8.At trial the defendant admitted his possession of the drug and his admissions in the interviews.  He gave evidence and called witnesses to establish that the money in his possession came from a legitimate source, namely his salary for January and the Lunar New Year bonus; that he was conducting renovations to his property, and needed the remaining cash in his possession to pay for them.

9.I will deal briefly with the evidence and preliminary issue.  The prosecution called the two officers involved in the initial arrest and detention of the defendant.  It was the evidence of PW1 that he had arrested and then cautioned the defendant for the offence of trafficking in a dangerous drug.  The defendant had then replied, “Ah Sir, the cocaine is for my own consumption.  Give me a chance.”  This had later been written down in the form of a post-recorded statement and adopted by signature by the defendant.

10.Although the defendant never disputed that he had said this, the admissibility of the post-recorded statement was challenged on the basis the defendant was not arrested or cautioned for trafficking in a dangerous drug.  It was also said that the money found in the white shoulder bag had not been seized at the time of the defendant’s arrest and that the defendant had been brought back to the Sai Kung Police Station, where the 2nd prosecution witness had told him that “They would not bother your car and money”.  The defendant said he had taken this to mean that if he was co‑operative and signed the post‑recorded statement, that he could keep his car and money and, as a result of this inducement, had signed the post‑recorded statement.

11.The defendant gave evidence on this issue under the alternative procedure.  He said he had not been allowed to read the post-recorded statement; it had not been read to him; that the money in the shoulder bag had been taken while he was asleep in an interview room at Sai Kung Police Station.  The defendant also gave evidence of the alleged inducement given by the 2nd prosecution witness.

12.In their evidence, PW1 and PW2 rejected the defendant’s assertions.  PW1 said he had arrested the defendant for trafficking in dangerous drugs and cautioned him.  PW2 denied he had ever said the words attributed to him by the defendant.  PW1 had said the three mobile phones and money were seized at 2.07 in the morning at Sai Kung Police Station and it was handed to PW2 as Exhibits Officer.  Both PW1 and PW2 denied that anything was ever said to the defendant about the money or car.  PW1 said the post-record was taken as is recorded in the document, that the defendant both read it and signed it and also wrote out the ending declaration; also, that the defendant had earlier been given, and read and signed, a POL153 - that is, a notice to persons in custody which set out his rights.

13.The resolution of this issue was factual and a question of credibility.  The prosecution does need to prove beyond reasonable doubt that the post-recorded document was given voluntarily and that no unfairness was involved in obtaining the defendant’s signature.  The question of voluntariness relates to the alleged inducement made to the defendant.

14.I found both PW1 and PW2 to be reliable and truthful witnesses.  They were consistent in giving a credible and reasonable account of what occurred.  There was no dispute that PW1 had accurately evidenced what the defendant had said after the drugs had been found.  It is inconceivable that PW1, on seeing 71 bags of cocaine or drug, together with a large sum of cash and three mobile phones, would not bother to arrest the defendant and then not caution him for trafficking in a dangerous drug.

15.I find the defendant’s assertion that this was omitted to be both incredible and unbelievable.  Furthermore, I am sure that PW2 did not make any inducement to the defendant.  PW2 was not in a position to say anything about the money or the car.  Furthermore, the defendant admitted he had been asleep and he was a cocaine addict.  The defendant appeared to me to be a highly unreliable witness on these matters.  I rejected his evidence given in the special issue in its entirety.

16.In fact, in the video-recorded interview, which the defendant conceded was voluntarily made, he had conceded that he had been arrested and cautioned for trafficking in a dangerous drug.  When this was put to him in cross-examination, he simply gave answers which I will describe as unresponsive.

17.I fully accept PW1 and PW2’s evidence as to the conduct of the defendant’s arrest and the taking of his post‑recorded statement.  It was clearly voluntary and admissible, and there was no unfairness in how it was obtained.  I admitted it into evidence.

18.As I noted earlier, the defendant’s possession of the drug and his initial and later verbal utterances were fully admitted by him.

19.The defendant gave evidence on the general issue.  It was his evidence that he had taken drugs since 2002, originally using ketamine, and more recently, cocaine.  He said he spent HK$10,000-odd on cocaine.  He was employed at Yat Cheung Construction as a foreman, earning $1,000 per day.  This would mean his income would vary between $20,000 to $25,000 per month.  The vehicle he had driven on 1 February 2016 was his own private car.  On that day, he had received, in cash, salary of $22,000 for January and a New Year bonus of $20,000, totalling $42,000.  All this was paid in cash.

20.He called two witnesses from Yat Cheung, the 2nd and 3rd defence witnesses.  They were in a position to confirm this payment had been made to the defendant in cash on that day.  He bought the drugs in a nightclub in Mong Kok that evening for $14,000.  There was a discount.  He bought a large quantity as the price was expected to rise during the Lunar New Year.  The $14,000 was for 70 pellets, and one was given to him as a bonus.  He did say he would normally consume between two to three pellets per day.  The market price of a pellet was $300.

21.When he received the drugs, the drugs were already packaged into the 71 packets.  When he was stopped by the police and when the drugs were found by PW1, he did say, “Ah Sir, give me a chance.  The cocaine is for my consumption.”

22.He had the remaining 26,200 to pay his decoration worker, a man called “Ah Bo”.  The defendant had been using “Ah Bo” to renovate his house since November 2015.  He had made a downpayment of $70,000.  By the end of January, 70 to 80 per cent of the work had been completed, and “Ah Bo” was expecting a further $20,000 to complete the additional work, and the balance of the moneys that was carried by him on the evening of 1 February 2016 would be used to make that payment.

23.The defendant said he had three Smartphones. They were needed for work to talk to the contractors and workers.  He had a Samsung S6 which he used for calls and internet, but it did not have a large quota for minutes.  When it was used up, he used the other two phones to make outgoing calls on a “pay as you go” basis, and the calls were made to other workers and contractors and were necessary for work.

24.The defendant said he would normally purchase 20 to 30 pellets, which would last him eight to 10 days.  As far as his expenses were concerned, he spent money on living expenses; maintaining the car; he gave his girlfriend HK$4,000 to HK$5,000 per month.

25.I noted that the 2nd and 3rd witnesses for the defence established the payment of the $42,000 to the defendant in cash on 1 February 2016.  The defendant also called as the 4th defence witness “Ah Bo”, who confirmed the work on the defendant’s property and also that he was owed around $20,000 and was expecting payment at that time.

26.As far as the submissions were concerned, the prosecution said this was a large quantity of drugs possessed away from home in the small hours of the morning, pre‑packaged for easy distribution; that the defendant could not support his living expenses and his drug habit from his known income; that the defendant had been evasive and inconsistent as to how he had funded the renovation of his property.  The defendant also possessed a large amount of money in cash and a number of mobile phones, all indicia of a drug trafficker’s modus operandi.

27.The defence say the defendant has all along been consistent.  He has always said the drugs were for his own consumption.  The defendant is an admitted long-term addict.  This is supported by the fact that cocaine was found in his body on his detention by the Correctional Services Department, and this was evidenced by a letter from the Correctional Services Department.  Thus there can be no doubt that the defendant was a consumer of cocaine; that the defendant had established the legitimacy of the source of the cash he carried on the night of 1 February 2016; and that had also put him in funds to buy the drugs on that evening.  He had also explained why he possessed the three mobile phones, and it was reasonable for him to have these phones given his job as a foreman who needed to contact the contract workers.

28.The defendant had also properly explained why he would purchase such a large quantity of cocaine by taking advantage of the discounted price in usage over a long period of one month, and that the method in which the drugs were packaged was beyond his control - that would have been how the dealer would give it to him - and that in all the circumstances, it was said no reasonable inference could be drawn and no irresistible inference could be drawn that the defendant possessed the drugs for the purpose of trafficking.

29.The defendant faces one count of trafficking in a dangerous drug.  The prosecution must prove the offence beyond a reasonable doubt.  The burden of proof remains on the prosecution at all times.

30.The defendant admits possession of the dangerous drug for his own consumption, but denies trafficking in it.  The prosecution say the defendant possessed the drugs for the purpose of trafficking in them.

31.By section 2 of Cap 134, “trafficking” is defined as, inter alia, “Procuring, supplying or otherwise dealing in or with the dangerous drug or possessing the dangerous drug for the purpose of trafficking”.

32.The prosecution case is based on the defendant possessing the drug for the purposes of trafficking in it.  The prosecution ask the court to draw an inference from the surrounding circumstances that the defendant possessed the drugs for the purpose of trafficking.  For such an inference to be drawn as a factual conclusion, it must, like any other fact, be proved beyond reasonable doubt.  More succinctly said, it must be the only reasonable inference that can be drawn from the proved circumstantial facts.

33.Now I look at those circumstantial facts. Firstly, the possession of the $26,200.  The possession of the HK$26,200 is said by the prosecution to be a circumstance which may assist in drawing this inference.  However, the evidence of the 2nd and 3rd defence witnesses did, in my finding, establish that the defendant did receive $42,000 in cash on 1 February 2016 as part of his remuneration from his employer.  It cannot by inference be said to be the product of drug sales.  It cannot assist the prosecution except to establish that the defendant was in funds to buy drugs.

34.Now I consider other financial considerations raised by the prosecution.  Nevertheless, the defendant’s financial position is relevant to consideration as to whether the defendant would be required to traffic in these narcotics in order to meet his outgoings.  The actual agreed street value of the cocaine the defendant bought was $18,416.70.  Cocaine is an expensive drug.  This, the defendant said, would last him one month.  It is reasonable to find that in any one month then, the defendant’s expenditure on cocaine should be in the region of $18,000, rather than the $10,000‑odd that the defendant had said it cost him monthly.  He also had said that he used two to three pellets each day, each pellet being sold at $300; on his account, an expenditure of between $600 to $900 per day.  That would lead to a monthly expenditure of between $18,000 and $27,000.  At this level of expenditure, and given that the defendant gave $4,000 to $5,000 to his girlfriend, the defendant cannot afford his expenditure on drugs on his known income.

35.The conclusion must therefore be drawn that another source of income must be available to the defendant to maintain his expenditure on cocaine.

36.The defendant also had added expenditure to cover the HK$90,000 renovations to his house.  The defendant was asked how he afforded this, and when questioned about this, altered his evidence in cross-examination.  Firstly, he said he reduced his cocaine consumption by one half for three to four months, and when this was shown to be insufficient, he then said he used his savings.

37.I found the defendant’s explanation of this to be both evasive and untruthful.  He altered his evidence without any regard to its truthfulness.  I rejected the defendant’s evidence on this issue.  I also rejected the defendant’s evidence that he spent $10,000‑odd a month on cocaine.  This evidence was contradicted by the agreed market value of the drug and the defendant’s own evidence about his daily consumption of the drug and its cost.  Furthermore, I found the defendant’s evidence about receiving of discount on the drug to be both untruthful and incredible.  It would mean that the drugs were being sold at considerably under the agreed market price. Surely no trafficker would accept the risk of trafficking and then sell at a loss or under the market price.  I reject the defendant’s evidence on this.  I reject the defendant’s evidence as to the price he paid for the drugs.

38.The facts establish that the defendant was in possession of 17.1 grammes of a mixture containing 13 grammes of cocaine in the early hours of the morning of 2 February 2016.  He appears to have been returning home where he lived in Sai Kung.  It is an established fact that the drugs were found to be in a readily distributable form; in fact, divided into 71 individual or undivided doses.  The street value of these drugs is over $18,000.  I rejected the defendant’s evidence he bought those drugs for only 14,000.

39.The defendant had a sum of money, some of which could be part of the $42,000 given to him earlier that evening by the 2nd defence witness.  The defendant’s finances show that his actual monthly income is insufficient to meet his evident expenditure, especially as it is established in evidence that he would spend up to or more than $18,000 per month on drugs alone.

40.I find, from these facts, that the defendant would, of necessity, have to sell all or part of the drugs to meet his expenditures, which include feeding his own addiction.  I am reinforced in this finding by the fact that the drugs were already broken down into a form that allowed for their immediate distribution.

41.I find, from these facts, that it is possible to draw the inference to a criminal standard - that is, beyond a reasonable doubt - that the defendant did, in fact, possess the dangerous drugs for the purposes of trafficking in them.

42.That is the offence he is charged with, and I convict him of that offence accordingly.