HKSAR v. Malik Kamran

DCCC 907/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 907 OF 2016

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Reasons for Verdict

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1.The defendant faces a single charge of trafficking in a dangerous drug contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. The allegation is that on 10 July 2016 in Sham Shui Po the defendant trafficked in a dangerous drug being 8.19 grammes of a crystalline solid containing 8 grammes of methamphetamine hydrochloride colloquially known as “Ice”.

2.The defendant was apprehended in Sham Shui Po carrying 8 grammes of Ice with a street value of $2,940.  He says the drugs are for his own consumption.  The prosecution say he possessed the drugs for the purpose of trafficking in them.  The issue for the court to decide is simply due to the circumstances of his possession of the drug, can the court infer that the drugs were possessed for the purpose of trafficking in them.  The prosecution case consisted of Admitted Facts entered as Exhibit P6.  The salient features of those Admitted Facts were as follows:

3.The defendant was on 10 July 2016 at about 6.30 in the evening stopped by police officers at a pedestrian subway in Pei Ho Street in Sham Shui Po in Kowloon.  At the time of his interception the defendant was carrying in his right hand a red recycle bag and in the left hand a purple recycle bag and a green recycle bag.  When the red recycle bag was searched a white paper box was found which is Exhibit 2.  The white paper box was opened and inside amongst other things were four packets of resealable transparent plastic bags containing crystalline substances.  This is described as Exhibit 3.  The crystalline substance in Exhibit 3 was sent to a Government Chemist who determined it contained 7.46 grammes of a crystalline solid containing 7.29 grammes of methamphetamine hydrochloride.  The defendant was taken to Sham Shui Po Police Station where there was a further body search.  A further packet of transparent resealable bag containing a crystalline substance was located. This was found to contain 0.71 grammes of methamphetamine hydrochloride. Therefore in total on 10 July the defendant was found in possession of a 8.19 grammes of a crystalline solid containing 8 grammes of methamphetamine hydrochloride.  It was agreed the street value of this drugs was $2,940.  On arrest, the defendant was found in possession of $810. 

4.It is also agreed the defendant is a Pakistani National, an asylum seeker and a Form 8 holder issued by the Department of Immigration.  The defendant not being entitled to work in Hong Kong committing a criminal offence if he does so and is agreed to be reliant upon the Hong Kong Branch of the International Social Services for financial support.

5.The defendant voluntarily took part in a police interview on 11 July 2016.  He admitted to being in possession of the recycle bag and its contents including the Ice.  He admitted also Ice had been found by the police in his trouser pocket when he had been body searched at the Police Station.  The defendant said that he bought all the Ice from an unknown Chinese male at the Mongkok MTR Station.  He had no way of contacting that person.  He stated he paid the sum of $400 for all the Ice.  The Ice was not for trafficking but for his own consumption and the money used to pay for the Ice had been given to him by friends.

6.The evidence of the defence consisted of the evidence from the defendant and also from a witness of his, a Mr But. Mr But was called initially and the purpose of Mr But being called was to indicate that he had provided money to the defendant from which the purchase of the drugs could have been made.  Mr But was of clear record, he knew the defendant through his family and had known him from seven to eight years through the family.  He said he had met him at a festival on 7 July in Tsimshatsui and given him $2,000 which his family, that is the defendant’s family, had given to Mr But’s family in Pakistan.  The amount was supposed to be $5,000 but the defendant had only taken $2,000.  $3,000 had been left with Mr But to be presumably claimed later.  He said in cross-examination that he had maybe done this between five to seven times since 2008 when the defendant came to Hong Kong.  He did not know how much he had given on each time but it was between $3,000 to $5,000. 

7.In addition to the evidence of Mr But was the evidence of the defendant.  The evidence of the defendant in this case mirrored the matters that he had told the police following his arrest on 11 July.  He started off in his evidence by admitting that he was stopped on 10 July and the Ice was found on him in a bag and also in his pocket.  He said he had been on Ice for a long time, seven to eight years.  He spends as much money as he has on Ice.  He said he can consume five packets of Ice in one day, “That I can consume 3 to 4 grammes per day”, is his evidence.  He said that in 2014 and 2015 he had been convicted of possession of dangerous drugs.  He had two previous convictions for that offence but no convictions for trafficking. 

8.In respect of his purchase of the drugs he said he had met a Chinese male in Mongkok who said “Do you have money, I need some money, I will give you more”, that is the expression.  The defendant said he had $400.  The dealer had asked him for $500 but he had given him $400.  He said “He gave me that bag”, that must be the bag found in his hand.  He said he was unaware how much the quantity was.  He had purchased one to four times before.  He had about HK$1,200.  Two to three days before he got money, he said “from my family”, that would be the money from Mr But.  He took $2,000 and said that he would get the $3,000 later.  He did this because if he got all the money in one go he said he would simply spend it.  He told the police that the drugs were for his own consumption.

9.He said he did not receive support from ISS.  He did not earn a living by selling drugs.  He purchased drugs, he said, when he had the money to do so.  He said he was actually taking 3 to 4 grammes a day. He said he would not do it every day, he said “Do whatever is available”.  He said he would not consume that much, $400-worth every two days but the drugs would last him two days.  It was put to him the drugs cost almost $3,000 on the open market and that had been agreed.  He said he just bought them in Sham Shui Po.  He did not know why the drugs had been sold to him at such a low value.

10.As far as the case is concerned the prosecution must prove this case against the defendant beyond reasonable doubt.  The prosecution in this case allege that the defendant trafficked in the dangerous drugs in which he was in possession of.  In this case the defendant is said to have had the drugs in his possession in order to do what has been described as dealing in the drug.  The prosecution case, as I have said, must be proved beyond reasonable doubt. 

11.There is no direct evidence that the defendant trafficked in the drug, he was simply found in possession of them.  The prosecution are required to prove the trafficking of the drug by way of an inference, that is a fact that must be proved and as a fact it must be proved like all other facts beyond reasonable doubt and the burden remaining on the prosecution at all times.  It is sometimes said that it must be the only available reasonable inference that can be drawn from the initial facts that the prosecution have proven.  The prosecution say the initial facts proved, that is the defendant’s possession of the drug, of this quantity of drug in a public place is sufficient to prove beyond a reasonable doubt the defendant must have had those drugs in order to deal in or with.

12.The resolution of this issue must come by way of an assessment of all the evidence I have heard.  The Admitted Facts which constitute the prosecution case are necessarily proved beyond reasonable doubt, each and every one of them admitted there.  The defendant has given evidence as has his witness, Mr But.  The defendant’s evidence in summary is that he possessed the drugs to consume them himself.  Now that is something that I must assess that evidence as to whether that can be relied upon but it was clear to me that the defendant’s evidence as to his consumption of the drug was something unbelievable.  He said clearly in evidence he would consume between 3 to 4 grammes of the drug per day when he was in possession of the drug. 

13.Now I make reference now to the case of HKSAR v Tam Yi Chun which is found at [2014] HKCA 279 which made reference to another case that dealt with the question of assessment of the quantities of drugs consumed, the consumed Ice, when determining a tariff and that case is AG v Ching Kwok Hung [1991] 21 HKLR page 125.  In that case the Court of Appeal received expert evidence about consumption of Ice and this was referred to in the case of Tam Yi Chun again.  The court made reference to the evidence as follows:

14.It said:

“One-tenth of a gramme of Ice without re-use would 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 re-used and its effects last between 2 to 12 hours with the average being anywhere in the middle of that period”.

Reference was made to Dr Leung who had given the evidence about this. Dr Leung, it said,

“Was of the view that on the basis of use and re-use 10 to 15 hits could be obtained from 1 gramme”.

It was also his view, and this is echoed in the American publications which had been referred that:

“Ice is more addictive than heroin and a user can be hooked by a first time”.

And it is said that:

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

15.So in summary I repeat that again, that one-tenth of a gramme of Ice will be sufficient for three to four hits and that would mean that 1 gramme of Ice would provide between 30 to 40 doses or hits for the average user.

16.The defendant said that he could consume 3 to 4 grammes per day.  This would lead to a figure by my calculation of between 30 to 45 undiluted hits which the defendant would use in one day.  That clearly, given that one hit could last up to two to 12 hours means that the defendant’s evidence about what he told me about his consumption of the drug must clearly be untrue. 

17.Furthermore, the defendant says he bought what was almost $3,000-worth of the drug for $400.  Again, I assess this as being clearly untrue.  It cannot be the case that any dealer would sell such what are pure drugs at such a grossly under‑value.  To suggest that this is possible is frankly, in my view, absurd.  Traffickers are in business as much as anyone else. 

18.I had no hesitation in finding the defendant had been untruthful as to these two keys areas related to his consumption of the drug and the price at which he bought them.   I have therefore no hesitation in rejecting the defendant’s evidence about his use, his consumption of the drug and the price at which he obtained them.  It may well be that Mr But had given him $2,000 and that would have put the defendant in the position to make a purchase of drugs but I did not accept the defendant had bought the drugs at a low price.

19.The defendant also says he only took drugs when he was in funds or had the money.  This does not accord with his status as a consumer of the drug and I reject the defendant’s evidence on this.  The defendant also on his own admission has two previous convictions for possession of the drug.

20.Having rejected the defendant’s evidence, can the inference therefore be drawn on the evidence that I have which is the prosecution facts that the defendant trafficked in the drug that he was found in possession of?

21.On the basis of the expert evidence accepted by the Court of Appeal, the 8 grammes of Ice which the defendant had could provide between 80 to 120 undiluted doses for an addict.  Furthermore, this drug was possessed in a public place.  This is clearly far beyond the needs of any individual consumer of the drug.  Furthermore, the defendant appears to have no source of income besides infrequent cash amounts for his family from Mr But.  This would clearly not be sufficient to fund the nature of the addiction that the defendant appears to have or the quantity of drugs that he had. 

22.I found that this quantity of drug, the number of doses that it could provide to an average addict is far beyond that that would be held by a person for his own consumption.  The defendant possessed these in a public place.  In my view, these drugs are clearly possessed in this way for commercial sale or trafficking or distribution to other users and they must be possessed for that purpose.  That clearly is trafficking the drug.  I draw the inference from the defendant’s possession of the drug that he must have been trafficking in those drugs when he possessed them in Sham Shui Po and was arrested by the police.

23.Having reached that conclusion of fact, the prosecution have proved all elements of this case beyond a reasonable doubt and the defendant must be convicted of the charge.