HKSAR v. Yam Kai Leung

DCCC 1117/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1117 OF 2016

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REASONS FOR VERDICT

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1.The defendant is charged with one offence of trafficking in a dangerous drug. At the outset of the trial, Mr Yuen for the defendant informed me of the defendant’s readiness to admitting to possession of the drug in question, which was also confirmed by the defendant.

2.The main issue in this case is therefore whether the defendant was in possession of the subject drugs, ie, P1 being 13.4 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride, for the purpose of trafficking.

Prosecution Case

3.The Prosecution called two police officers, PC 14118 (PW1) and Inspector Lo Kwok Kin (PW2) to give evidence.  Exhibits P1 to P9 [see List of Exhibits] were also produced in evidence.

4.The admitted facts [P4] mainly show that (i) P1, ie, 13.4 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride [Ice], was seized from the defendant on 12 September 2016; (ii) P3 (1-11) are photos taken by the police on 12 September 2016.

5.In the early hours of 12 September 2016, PC14118 was on uniform duty with other police officers in Sai Yeung Choi Street North.  At about 01:23 am on the same day, PC14118 saw the defendant pushing a bicycle out from a building situate at Nos 44 – 56, Wong Chuk Street.  The defendant was walking at a normal pace and looking towards the direction of PC14118.  However, upon seeing PC14118, he appeared to be nervous and immediately quickened his pace.  He also put his shoulder bag, which was carried across his shoulder, to his chest position, got on the bicycle and pedalled. 

6.PC14118 immediately went forward to stop him and told him to get off the bicycle and wheel the bicycle onto the pavement.  He conducted a search on the defendant, after telling the defendant that he was suspected of possessing drugs.  As a result of the search, P1 was found from the right front pocket of the defendant’s trousers [P3(7-9)].  Some money at a total of $13,535.50 was also found inside the defendant’s trousers’ pocket and shoulder bag.  PC14118 suspected P1 to be “Ice” and cautioned the defendant.  Under caution, the defendant said that he took it for his own consumption.  The defendant was then arrested and taken to the Shamshuipo police station.

7.Inspector Lo is attached to the Intelligence Division of Narcotics Bureau, Crime Wing, Police Headquarters.  According to him, in September 2016 the average retail price for crystalline solid containing methamphetamine was HK$363 per gramme and P1 could have been sold at the street level to drug abusers for $4,864 [P9].

8.In a video recorded interview taken between 21:58 and 22:05 on 12 September 2016 from the defendant [P7], the defendant under cautioned stated, inter alia, that (i) the subject drugs were Ice and purchased for his own consumption; (ii) the money in question belonged to him and was payments received from the Social Welfare Department and own savings.

9.At the close of the Prosecution case, the Defence did not make any half way submission.  I found that there was a case to answer in respect of the charge against the defendant.

Defence case

10.The defendant elected to give evidence.  No other DW was called. Exhibit D1 was also produced in evidence.

11.The defendant’s evidence mainly showed that:-

(i) the defendant, aged 52, is a CSSA recipient. He has been a drug addict for more than 10 years. He started to take Ice in 2004 and, at the time of his arrest for the present offence, consumed it at a worth of $50/day;

(ii) on the material day, he went to the building in question for an appointment to buy half an ounce of Ice. He bought P1 in cash at $3,500. The drug seller delivered the subject drugs to him on the ground floor of the said building. The said quantity of drugs would last him more than 2 months. The purchase money came from the CSSA payments [D1] that he had received. The subject drugs were for his own consumption;

(iii) he was intercepted by the police when he was on the bicycle intending to ride back to his home in Yau Ma Tei. The journey would take about 10 minutes. Under caution, he told the police that the subject drugs were for his own consumption;

(iv) he purchased the same quantity of Ice from the same source once in last June. The increases in CSSA payments were due to the grant of rental allowance disability allowance and double pay. He spent about $1,700 on rental, $1,500 on food and $1,500 on taking “Ice” on a monthly basis. The money found on him at the time of arrest was all his savings. It was his habit to withdraw all the CSSA payments from his bank account and keep the same on him. He also had the understanding that if he had too much money in his account he would not be granted CSSA payments. There was no lockable storage at the place where he resided.

Analysis of Evidence

12.I remind myself that the Prosecution has the burden to prove all the elements of offence beyond reasonable doubt throughout. 

13.I have carefully considered all the evidence and submissions.  The Defence took no issue on Inspector Lo’s expertise in narcotic valuation.  I am satisfied with his expertise and accept his evidence as expert evidence.  I find both PC14118 and Inspector Lo credible and reliable witnesses.  I see no reason to doubt their testimonies.

14.Although the defendant chose not to answer some of the questions in the record of interview, I would not thereby draw any adverse inference against him for exercising his right.

15.As to the defendant’s testimony, it is, in my view, basically consistent with what he said in the VRI.

16.The Prosecution did not appear to challenge the defendant’s evidence that he was a drug addict.  Under cross examination, he said that he would consume the drug by heating it over the tin foil and inhale the vapour.  In the absence of evidence/suggestion to the contrary, I see no reason to doubt that the defendant is a drug addict.

17.The Prosecution’s stance is that the sum of $13,535 found on the defendant was related to drug trafficking.  Exhibit D1 is a letter issued by the Social Welfare Department dated 20 March 2017 setting out the schedule of Comprehensive Social Security Assistance (CSSA) payments received by the defendant for the period from October 2015 to September 2016.  According to the defendant, the sum of $13,535 was his savings from the CSSA payments.  If what he says is true, he should have had $17,035 on him when he attended the alleged appointment for the purchase of the subject drugs.

18.As revealed in the schedule, the amount of CSSA paid to him dropped from $2,255 for October 2015 to $1,127 for November 2016 and then rose to $1,759 for December 2015 and $2,616 for January 2016 respectively.  The amount for February 2016 was increased to $4,305 and thereafter to $6,325 for March 2016; $6,345 for April 2016; $6,355 for May 2016; $10,395 (which included $4,040 being additional one-off assistance for social security recipients) for June 2016.  For the months from July 2016 to September 2016 he received $6,355, $4620 and $4620 respectively.  

19.The defendant said that he had lived in the cage room, i.e., a room with only a bed inside, in Yau Ma Tei for 6 months.  This means that he should have started renting that room in about February or March 2016.  The increases in CSSA payments for various months appear to be consistent with his evidence that they were due to the grant of rental and disability allowances.

20.He also said that he spent about $1,700 on rent, $1,500 on food and $1,500 on drugs every month.  On the said basis, it might have been possible for him to save up a total of $13,195, i.e., $4,925 [= $6,325+$6,345+$6,355 – $4,700 x 3] for the three months from March to May 2016 plus $3,695 [= $10,395 - $3,200 - $3,500 for bulk purchase of Ice] for June 2016 plus $3,155 [= $6,355 – $3,200] for July 2016 and $1,420 [= $4,620 – $3,200] for August 2016. 

21.It is an admitted fact that the CSSA payment reached the defendant’s bank account on the 4^th day of each month.  After deduction of a few hundred dollars for food and rent for the few days between the 4 September and the day of offence, ie, 12 September 2016, it might, in my view, have been possible for the defendant to be in possession of money at about $17,035 on the material day.

22.The defendant’s evidence was that he received CSSA payment over $10,000 including double pay in June and therefore made the bulk purchase of drugs for the first time.  It cannot be ascertained from the defendant’s evidence as to when in June he made the first bulk purchase of the “more than 2 months’ supply” of drugs.  He however denied the suggestion made by the Prosecution that the first bulk purchase would only have lasted till 4 August 2016.  I note that, as admitted, no incriminating items were found in the defendant’s room.  In other words, no drugs were found in his cage room.  He said that he needed to take Ice every day and the bulk purchase of the more than 2 months’ supply could last him for 70 days.  Assuming that he had run out of the drugs on or about 12 September 2016, it is therefore likely that he might have made the 1^st bulk purchase at the end of June or within the first few days of July.  This time frame does not, in my view, appear to be materially differ from his evidence that the first bulk purchase was made in June 2016.

23.Inspector Lo gave a valuation of the subject Ice at $4,864 based on the average retail price of Ice at $363/gramme.  The Defence challenged this valuation.

24.I note that the said average retail price was in relation to 5 grammes and below of Ice.  Inspector Lo also testified to the effect that one had to buy up to 100 or 200 grammes to get a lower price and that there were other factors affecting the retail price such as (i) the venue as to where the drugs were sold; (ii) the packaging of the drugs; (iii) the method of delivery; (iv) the quality / purity of the drugs; (v) whether the seller was in need of money urgently and wanted to sell all the drugs as quickly as possible.  Regarding the packaging factor, he was having in mind a drug quantity of 125 grammes.  He did not rule out the possibility that, if all the above factors which were favourable to the buyer existed, the defendant might have bought the subject Ice at $3,500, even though he was of the view that $3,500 was a rather low price.

25.However, it is also clear from his evidence that the trafficker would feel safe if he could remain in the building for the transaction without getting down onto the street or the risk of bumping into a policeman on patrol and the risk involved would therefore have some tolerance on the price charged.  It is undisputed that the defendant came out of the building shortly before he was intercepted by PC14118.  If, as alleged, the defendant went there for an appointment to buy the subject Ice, the person/source from whom the defendant had obtained the subject drugs was therefore exposed to a lower risk.  As such, I can’t rule out the possibility that the defendant might have purchased the drugs at a lower price as testified by him.

26.At the VRI, the defendant was asked as to how much the SWD paid him monthly [See Counter 36 of P7].  His answer was over $8,000 [Counter 37].  I note that this is inconsistent with the schedule of payments, particularly in respect of the payments he received for August 2016and September 2016.  Despite the fact that he has not been truthful on this point, he might have been, as analyzed earlier, in possession of sufficient fund to buy the subject drugs. So it will be difficult for the court to draw an inference that he must have trafficked in the drug.

27.The Prosecution pointed out that the defendant had not gained any financial advantage in making bulk purchase since the supply only lasted him for 70 days, i.e., $50/day, which was the same as single purchases.  I do accept that the defendant did not seem to gain any real financial advantage from the bulk purchase.  However, he also mentioned that with bulk purchase there was no need for him to take risk to buy drugs every day.  This explanation is, in my view, not too unreasonable, even though he might still subject himself to the risk of being accused of trafficking by reason of his possession of the quantity of drugs involved.

28.Now the court is left with the evidence of the defendant’s possession of the subject quantity of drug in a public place from which to draw the necessary inference against the defendant that he was trafficking in that drug.  I am of the view that the quantity is not so large that the only available inference to draw from it is that he was in possession of the drugs for the purpose of trafficking.  Thus, I don’t find that the Prosecution has established to the requisite standard that the defendant was in fact trafficking in the subject drug.

29.By reason of my above conclusion, I acquit the defendant of the charge of trafficking and convict him of the offence of possession of a dangerous drug both on his own admission and on the evidence before me in this case.