HKSAR v. Ho Chi Fai

DCCC 367/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 367 OF 2016

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Reasons for Verdict

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1.The defendant pleaded not guilty to one count of trafficking in a dangerous drug, but indicated his plea to the offence of simple possession. After trial, I now deliver my reasons for verdict as follows.

2.The brief facts of the case are that in the early hours of 18 February 2016, the defendant was seen going to a unit on the 24th Floor of Yuet Fu House, Tin Yuet Estate, Tin Shui Wai.  The police officers intercepted the defendant, who shouted, “There are bad people”.  The defendant was then taken to a staircase for further investigation.

3.Upon body search, the defendant was found to be in possession of the drugs as particularised in the charge sheet.

4.The defendant, under caution, admitted that the dangerous drugs were for his own consumption.

5.Both parties admitted under Section 65C of the Criminal Procedure Ordinance the following facts (Exhibit P24):

(1) The chain of the evidence is not challenged. The drugs seized by the police at about 2:12 am on 18 February 2016 are the same drugs as specified in the Chemist Certificate (Exhibit P21).

(2) The estimated street value of the drugs seized is $3,084.

(3) At 2:15 am on 18 February, upon caution, the defendant said, “Those four packs of ‘K chai’ in the laisee packet are all for my own consumption. I know I was wrong. Give me a chance.”

(4) The defendant participated in the video interview held on 18 February 2016 voluntarily, with the video disc, the transcripts and the translation thereof tendered as Exhibit P14, P22 and P22A.

(5) The photo album containing 14 photographs is tendered as Exhibit P23.

6.Defence counsel has indicated that most of the prosecution case will be agreed and would not object that counsel for the prosecution to lead the witnesses.

PW1- PC10020 Kwok Wing-chu

7.PW1 was tasked, with other officers, to go to the 24th Floor of Yuet Fu House and to keep the flat, Room 2418, under observation.  At the material time he saw the defendant walking towards the said Room 2418 from the lift lobby.  The defendant was not carrying anything in his hands.  PW1 then approached the defendant, who was about to reach the said flat.  The said flat is located at the end of the corridor.  The defendant was facing the said flat, not the flat opposite Room 2418.  When the defendant saw PW1 and the other officers, he immediately turned around and walked back to the lift lobby.

8.When the defendant was intercepted outside the flat, the defendant shouted loudly, “There are bad people”.

9.PW1 took the defendant to the staircase on the 24th Floor for search.  PW1 asked the defendant where was he going.  The defendant replied that he was going to Room 2418 to look for a friend called Tze Tan (transliteration of “bullet”).

10.PW1 conducted a body search on the defendant and found a red laisee packet from the latter’s right front trousers pocket. Inside the said red packet, there were four plastic bags (photo Nos 7 to 10 of the album P23).  In one of these bags there were two smaller plastic bags (photo No 11).  These bags contained dangerous drugs.  From the defendant’s wallet PW1 found cash in the sum of $1,420.  The defendant also has one mobile phone.

11.Under caution, the defendant admitted that the “K chai” in the laisee packet were all for his consumption.  The admission was reduced into a post-recorded statement in the notebook (P13, with the English translation P13A).  The seized exhibits were then passed to the exhibits officer.

12.The party then entered Room 2418 for a house search.  A female occupant opened the door.  The police found one male sitting on the sofa.  They were still wide awake even though it was about 2:20 am at that time.  In the middle of the house search, a male knocked on the door and came into the flat.  The defendant said the flat “belonged to” Tze Tan and these people are his friends.  The police party and the defendant left the premises at about 3:40 am.

13.The defendant was told that he was charged with the offence of trafficking in dangerous drugs at the staircase on the 24th Floor.  PW1 noticed there was “nothing special” about the defendant’s demeanour.

14.Later there was a video-recorded interview (P14, with the transcript as P22 and the English translation as P22A).

15.PW1 believed that when the defendant shouted, “There are bad people”, right outside the flat, the defendant was to tip off the occupants inside the flat that there were police officers outside.

16.The defendant was co‑operative after his arrest.  He did not put up a struggle after being intercepted.

17.There was no cross-examination from the defence.

PW2- PC11867 Ma Kwong-lung

18.On 18 February 2016, he went to Yuet Fu House.  He acted as the exhibits officer of the case and has drawn a sketch of the scene (Exhibit P19, and the translation is P19A).  When the defendant was intercepted outside the flat, he shouted, “There are bad people,” loudly. 

19.PW2 later identified the various exhibits that he got from the defendant.

The post-recorded statement, P13 (translation thereof as P13)

20.Under caution at the scene, the defendant admitted that “Those four packs of ‘K chai’ in the laisee packet are all for my own consumption.”

The video-recorded interview at 8:13 pm on 18 February 2016 (DVD as P14; transcript in Chinese as P22; and the translation in English thereof as P22A).

Entry 19 and 21: PW1 repeated the defendant’s verbal admission above said.

Entry 22 and 24: (the drugs) were for the defendant’s own consumption. They are ketamine.

Entry 32: it is cheaper to buy (the drugs) in one go.

Entry 34: (the drugs) could last for about four days on average.

Entry 36: (means of taking the drugs) by snorting.

Entry 40: No (the defendant did not re-package the drugs that he bought).

Entry 44, 46 and 50: (the reason that the defendant appeared at the scene) The defendant intended to look for a friend who is called On Tsz-kin (nicknamed Tsz Tan) and is living in Room 2418.

Entry 48: for a chat between casual friends.

Entry 52 and 54: (regarding three males, including Tsz Tan, and one female in the flat) the defendant knows them all.

Entry 59: (the drugs so seized) belonged to the defendant.

Entry 84, 86 and 88: (the cash, $1,420 found on the defendant) was the wage that the defendant earned as a casual worker and some were his laisee money; just thousand-odd money, not much.

Entry 90 and 94: part of the money would be used for buying “K chai”.

Entry 96 and 98: (the defendant was living in Tuen Mun). He took a taxi.

Entry 100: (defendant’s occupation) casual plumber and electrical worker.

Entry 102, 107 and 111: the defendant took a taxi from Tsuen Wan MTR Station and got off at Tin Yuet taxi stand.

Entry 115: consumed about 10 grammes (of “K chai”) per day.

21.After the conclusion of the prosecution’s case there was no half-time submission.

22.The defendant elected to give evidence on the general issue.

The evidence of the defendant

23.He is now aged 36.  At the material time, he went to 24th Floor, Yuet Fu House, to look for his friend Tze Tan (which means “bullet”) who lived in Room 2418.  Tze Tan was just one of the defendant’s ordinary friends whom the defendant knew for about four months.  The full name of Tze Tan is On Tsz-kin.

24.The defendant said that on the day after he got the ketamine, he “came back from Tsuen Wan”.  He is an addict, and got the drugs from a trafficker nicknamed “Muscle” in Tsuen Wan.  The defendant paid $2,500 for the drugs.  He had been obtaining ketamine from this trafficker for three to four times.  He told the trafficker that he needed 28 grammes as the price would be cheaper.  The defendant reckoned that 28 grammes means 1 ounce.  (Note:  the exact measurement is 1 ounce equals to 28.35 grammes.)  The defendant said he just had enough money for 1 ounce and did not want to get more.  He added that usually it depended on how much he could afford to buy.

25.After he got the drugs, he came to Tin Shui Wai as it was too late for him to return home in Tuen Mun.  He did not want to disturb his parents late at night.  The defendant explained that they usually did this and stayed up late at night.  They just chatted.  The defendant had contacted Tze Tan before he went to see him.  The defendant intended to stay till dawn and then will return home.

26.The defendant said as a casual worker, he did not work every day.  He had no work on the day of his arrest.  He was paid with daily wages and earned about $8,000 to $9,000 per month.  He did not have to pay his parents for family housekeeping.  The defendant claimed that he has been taking ketamine for about 10 years.  Whenever he felt the need, he would take ketamine by sniffing it.  He took the drugs every day, without any regular interval.  He consumed about 7 to 8 grammes per day.  The drugs so seized would last for about three to four days.  Usually, the defendant would use a small plastic bag to contain 1 gramme of crystal.  He usually took the drug in the toilet.

27.On the day in question, the defendant took a taxi from Tsuen Wan to Tin Shui Wai.  On the way, the defendant said he wanted to test the purity of the drugs and also had an urgent need to take the drug. The defendant maintained that he tested the purity of the drug every time he bought it.

28.The defendant said before he went to the flat he called Tze Tan, who told him that he was not in the flat at the time.  There were some other people in the unit.  The defendant said he intended to wait for Tze Tan at the rear staircase.  He admitted that he knows the male and female in the unit when the police entered the flat and also the man who later knocked on the door.  The second man who came later was Tze Tan.

29.The defendant also confessed that as he has been taking ketamine for more than 10 years, he always wanted to go to the toilet.

30.The defendant denied the drugs were for trafficking purpose.

31.The defendant said those two people inside the flat were astonished when they saw the police and the defendant entering into the flat, but they did not ask why.

32.Under cross-examination, the defendant insisted that the drugs were for his own consumption.  He knew the risk of carrying the drugs in the early hours of the day, but did not want to disturb his parents. He intended to return home at dawn.  He said he worked on 17 February and got paid daily.  He did not have to pay his parents.  They know that the defendant is a drug addict.  The defendant said he inhaled some of the ketamine in the taxi on the way to Tin Shui Wai on the day in order to test the purity of the drug.

33.When asked by this court, the defendant said he did not know that one of the plastic bags containing 14.6 grammes of solid contained no dangerous drugs at all (see the Chemist Certificate P21, item 2, with the label 16CD554/2).

Analysis

34.It is well established that it is the duty of the prosecution to prove the charge against the defendant beyond reasonable doubt, and the defendant has no duty whatsoever to prove anything.  Basically, the defendant did not challenge most of the prosecution case, and admitted that the drugs so seized were for his own consumption.  He confessed that he is a drug addict, taking ketamine for over 10 years, and it has caused harm to his physical health, in particular the necessity of going to the toilet frequently.  In these proceedings, I observed that for some reasons, the defendant did not ask for leave to go to the toilet for the whole morning as there was no morning break.

35.The defendant claimed that he had bought the drugs in Tsuen Wan and took a taxi to travel to Tin Shui Wai, even though he was living in Tuen Mun at the time.  He said he did not want to disturb his parents in the early hours, and instead, he chose to go to the flat of his casual friend, Tze Tan, in Tin Shui Wai.

36.Defence counsel submitted that there was nothing unusual about that.  The defendant even took ketamine on the way to Tin Shui Wai and was under the influence of drugs when being intercepted.  The defendant claimed he just wanted to have a chat with this friend till dawn.  Strangely, he had called Tze Tan and knew that Tze Tan was not in the flat at the time.  The defendant persisted, and said he intended to stay in the staircase of the floor to wait for Tze Tan.

37.The police officers observed that all along the defendant was heading towards Room 2418 (contrary to what was said by the defendant in that he knew that Tze Tan was not in the flat).  When the defendant saw the police officers, he wanted to return to the lift lobby.  The defendant even took the chance to shout loudly that “There are bad people” when being intercepted.  The defendant did not put up any struggle, nor did he allege that the police officers were acting violently and/or improperly.  Such sudden loud uttering of words by the defendant out of the blue on the occasion, in my view, served no purpose but to alert those occupants inside Room 2418.

38.It is to be noted that by then it was around 2 am in the morning, and the defendant was having all the drugs with him. He said he did not return home direct because he was being considerate to his aged parents.  This explanation was a laughable one, in my view, given the fact that his parents knew that the defendant was a drug addict.

39.Inside Room 2418, the police found one male and one female at the time of their entry.  They are no strangers to the defendant.  Tze Tan only arrived at a later stage when the house search was conducted.

40.The defendant said he inhaled some ketamine in the taxi when he was travelling to Tin Shui Wai.  It is strange to see that the defendant had such an urgent need to take the drugs in the presence of a taxi driver.  He also said he took the drugs in order to test the purity, and yet the defendant has no knowledge that one of the plastic bags containing 14.6 grammes of solid contained no dangerous drugs at all.  It has nothing to do with the purity of the drugs, and yet the defendant was ignorant of this matter.

41.The defendant said he could get a cheaper price by buying more.  He usually bought about 1 ounce of ketamine.  On this occasion, the police seized about 24 grammes of a solid/powder (excluding a plastic bag containing 14.6 grammes of a solid), not 28 grammes. The street value of the ketamine was about $3,084, and the defendant still has $1,422 cash in his wallet.

42.I found the defendant is not a credible witness, and I totally reject his evidence.  That said, this court has to consider the evidence put forward by the prosecution to see if the elements of the offence can be proved beyond reasonable doubt.

43.At about 2 am in the morning on the day, the defendant was found to possess a total of 22.68 grammes of a solid and 1.41 grammes of a powder.  All contained ketamine.  On top of that, there was a bag containing 14.6 grammes of a solid containing no dangerous drugs.  The packaging of these dangerous drugs can be seen in the Chemist certificate (P21):  one plastic bag contained 12.7 grammes of a solid, one plastic bag containing 9.98 grammes of a solid, and one plastic bag containing two plastic bags containing a total of 1.41 grammes of a powder, not solid.

44.The fact that the defendant is a drug addict taking ketamine does not mean he could not be a drug trafficker himself.  If the defendant was just the consumer of these drugs, I cannot see why the trafficker would provide the defendant with different packaging of the drugs: some are in solid form and some in powder, containing a much smaller quantity.

45.In terms of purity, the calculation based on the Chemist certificate is also revealing.  For item 1 in the certificate, the purity is 42.59 per cent (12.7 grammes of a solid containing 5.41 grammes of ketamine); for item 3, the purity is 84.16 per cent; and for item 4 it is 53.9 per cent.  In addition to the differences in purity, the packaging is different in that one plastic bag contained two smaller plastic bags (see photo 11 of the album P23).

46.I found it incredible that the defendant would visit a casual friend’s home at 2 am all the way from Tsuen Wan shortly after he claimed he had bought the ketamine.  It is even more unbelievable that the defendant knew that his friend, Tze Tan, was not at home and he intended to wait for his friend at the staircase outside his friend’s flat.  The defendant shouted loudly that “There are bad people” out of the blue outside the flat. His purpose of doing so is obvious.

47.Taking all factors into consideration, I have no doubt that the defendant was trafficking in the ketamine that was seized from him.  That is the only reasonable and irresistible inference that this court can draw.

48.Accordingly, I convict the defendant of the offence of trafficking in a dangerous drug.