HKSAR v. Wong Wai Wah

DCCC 854/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2016

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REASONS FOR VERDICT

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Charge

1.The defendant stands trial on a single count of trafficking in 12.7 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride, commonly known as “ice”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.  The defendant pleads not guilty to trafficking but guilty to possession of the “ice”. 

2.The particulars of the offence show that the defendant on 11 April 2016, outside Ground Floor, No. 131 Fa Yuen Street, Mongkok, in Hong Kong, unlawfully trafficked in “ice”.

Issue

3.It is not in dispute that the defendant possessed the “ice” described in the charge.  The only issue for consideration was the reason for the defendant’s possession of the “ice”.  The prosecution submitted that the court is able to draw an irresistible inference that the defendant was in possession of the “ice” for the purpose of trafficking in it whilst the defendant maintained that he possessed the “ice” for the purpose of consuming it.

Admitted Facts

4.The prosecution case is admitted in accordance with section 65C of the Criminal Procedure Ordinance.  At around 9.04 pm on 11 April 2016, the defendant was arrested by PC10745 at the address described in the charge.  Upon search, a packet containing 12.5 grammes of “ice” was found in the defendant’s front left pocket of his trousers.  Under caution, the defendant claimed that it was for self-use. 

5.The defendant was brought back to Mongkok Police Station where PC10745 took two records of interviews with him.  Both of them were post-records of what the defendant had said under caution at the scene of arrest.  The first record of interview post-recorded the defendant’s reply.  “The ‘ice’ is for my own consumption.  I have nothing else to say.”  (Exhibit P1 and P1A)  The second record of interview post-recorded that the defendant, when being asked by PC10745 to produce a proof of identity, said, “I lost my wallet two days ago.  I still have not applied for a replacement.”  (Exhibit P2 and P2A)

6.Between 1236 hours and 1252 hours on 11 April 2016, DPC58802 conducted a video-recorded interview (VRI) (Exhibit P3, P3A and P3B) with the defendant.  Under caution, the defendant claimed, inter alia, that:-

(1) he knew that “ice” was a dangerous drug;

(2) he needed the “ice” for reducing stress and for refreshing himself;

(3) he had had the habit of smoking “ice” for two years;

(4) he had purchased the “ice” from a casual friend, Pai Chai, in Mongkok that morning for $1,200 and Pai Chai said it would be much cheaper to buy half an ounce from him in one go;

(5) it was the second time he bought dangerous drugs from Pai Chai;

(6) the “ice” seized was for his own consumption and it could sustain him for more than half a month;

(7) he smoked “ice” by using a glass bottle and a glass “dau”, inserting a straw into the glass bottle and using a lighter to burn the glass bottle;

(8) he took “ice” three to four times a day;

(9) he was a renovation worker earning around $20,000 a month, and he spent around 2,000 a month on “ice”; and

(10) he lost his mobile phone in the morning after purchasing the “ice” from Pai Chai, and therefore he had no means to contact Pai Chai.

7.Exhibits P1 to P3 are accurate records of interview and VRI that were given by the defendant voluntarily.  The estimated value of the “ice” at the material time was approximately HK$3,848 if calculated from purchases of 5 grammes or less as contained in relevant police statistics.

8.Having admitted the above facts and played the VRI in open court, the prosecution closed its case. 

No-case Submission

9.Mr Boyton, counsel for the defendant, made a submission of no case to answer and referred to the second limb of R v Galbraith [1980] 73 Cr App R 124.  He submitted that the prosecution having the burden to prove the case against the defendant beyond a reasonable doubt failed to prove the defendant possessed the “ice” for the purpose of trafficking because:-

(1) no expert witness was called to testify in respect of the daily consumption rate/dosage of a drug addict;

(2) there was nothing to disprove the version of the defendant who claimed in the VRI that the “ice” was for his consumption, he took “ice” three to four times a day, and the amount of “ice” found on him could sustain him for over half a month;

(3) the defendant was arrested for the offence of possession of the dangerous drug as opposed to trafficking in a dangerous drug; and

(4) no paraphernalia, for example, electronic scale, was found on the defendant.

10.Mr Littlewood, counsel for the prosecution, submitted that the court was able to draw an irresistible inference from all the circumstances of the case that the defendant possessed the “ice” for the purpose of trafficking because:-

(1) the amount of “ice” seized, being 12.5 grammes, was not small;

(2) in paragraph 27 of HKSAR v Tam Ling Yuen CACC 524 of 2011, the Court of Appeal said that as for regular users of “ice”, the average daily consumption is in the range of 0.1 to 0.5 gramme. As such, the “ice” seized in the present case would last for 30 days for the defendant’s consumption. This was contrary to what the defendant had said in the VRI that the “ice” would last for over half a month for his consumption; and

(3) the estimated value of the “ice” seized was $3,848. However, the defendant said he had bought it at 1,200.

11.Mr Littlewood said points 2 and 3 above showed that the defendant was not telling the truth.

12.Having heard submissions from both sides, considered the evidence of the prosecution and borne in mind the principles laid down in R v Galbraith, I found there was a case to answer.

Defence Case

13.The defendant exercised his right not to testify nor call any defence witnesses.  In his closing submissions, Mr Boyton adopted his submissions in halftime and emphasised that if what the defendant had said in the VRI might be true, then there was a doubt in the prosecution case and the defendant should therefore be acquitted of trafficking in “ice”.

14.At a later stage, Mr Boyton wrote to the court and attached to his letter two authorities for the consideration of the court, namely, HKSAR v Lam Wai Sum CACC 289 of 2015 and HKSAR v Lee Wai Kei [2016] HKLRD 795.  The Court of Appeal in both cases made references to the expert evidence adduced in the respective trials in relation to the daily dosage of “ice” of drug abusers.

Analysis

15.I have carefully considered all the evidence and the submissions of both counsel.  In reaching my verdict, I bear in mind that the prosecution has the burden to prove the charge against the defendant beyond a reasonable doubt. The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt.  If what the defendant told the police that the “ice” was intended for his own consumption is true or may be true, it will follow that the defence has raised a sufficient doubt in the prosecution case and the defendant should therefore be acquitted.  I remind myself that when drawing inferences from the evidence, the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved. 

16.In reaching my verdict, I have considered the post‑records and the VRI, both the inculpatory and exculpatory parts in accordance with the principles in R v Sharp [1988] 1 WLR 7.  I have considered the entirety of the VRI and the inculpatory parts.  These are true admissions, and I attach full weight. Insofar as the exculpatory parts are concerned, there is no evidence which contradicts what the defendant has said.  Besides, given the immediate response when being cautioned at the scene, I am prepared to attach weight to the exculpatory parts as well. 

17.The prosecution said that the defendant was telling lies in the VRI. However, even if I find that the defendant did tell lies in the VRI, it does not necessarily mean that the prosecution has proved the charge of trafficking in “ice” against the defendant beyond a reasonable doubt.  As alleged by the prosecution, what the defendant had claimed in the VRI was inconsistent with the evidence agreed between the prosecution and the defence in two aspects. First, the estimated value of the “ice” seized was $3,848 and the defendant claimed that he bought it at $1,200.  In other words, the defendant was able to buy the “ice” at a much cheaper price. 

18.It is noted that in the admitted facts that the estimated value of the “ice” was calculated from purchases of 5 grammes or less.  As such, I asked Mr Littlewood how the court should read, interpret, come to a more accurate estimate of the value of the “ice” seized in this case as the amount of “ice” obviously far exceeded 5 grammes.  Mr Littlewood said that there was no statistics showing the estimated value of the “ice” from purchases over 5 grammes but one could assume that if the “ice” was bought in bulk, one could buy at a cheaper price.  In other words, what he said was that the “ice” seized was valued less than $3,848.

19.The defendant claimed that he was a renovation worker earning $20,000 a month and he simply spent 2,000 on “ice” per month.  There is simply no evidence adduced by the prosecution to contradict his claim.  Without knowing the basis of how the estimated value was calculated, whether buying in bulk would be cheaper and if yes, how much less the price would be, I find that little weight could be attached to this piece of evidence, that is, the estimated value of the “ice” was 3,848.  The estimated value did not assist the prosecution in proving that the defendant was not financially capable of buying the “ice” at the price claimed or at a higher price but less than $3,848.

20.Second, the prosecution said that the “ice” seized would last for consumption for 30 days as opposed to what the defendant had said in the VRI that it would last for more than half a month.  Mr Littlewood asked this court to take judicial notice of the daily dosage of a drug addict and to make reference to what the Court of Appeal had said in Tam Ling Yuen, that is, as for regular users of “ice”, the average daily consumption is in the range of 0.1 gramme to 0.5 gramme.

21.On the contrary, Mr Boyton referred this court to paragraph 16 of Lam Wai Sum.  In that case, Dr Leung was called to give expert evidence at the trial.  On appeal, the Court of Appeal made references to the trial judge’s summing-up in respect of the evidence of Dr Leung which is as follows:-

“Dr Leung accepts that there is a further category of persons who may be called, and I quote, ‘experienced users’, who have developed a tolerance to the ‘ice’ drug, and who may take four to five hits within a few hours in order to achieve their high. For these ‘experienced users’, Dr Leung accepts that they may use as much as 0.5 gramme to 1 gramme of the ‘ice’ per day.”

22.Besides, Mr Boyton referred this court to paragraph 15(2) of Lee Wai Kei in which the Court of Appeal referred to a paragraph in the summing-up in which the trial judge said:-

“...remind the jury that it was unsafe and unsatisfactory to reject the daily consumption alleged by the applicant on the sole reliance of one set of research data.”

23.Without written or oral submissions from Mr Boyton, it is believed that what Mr Boyton intends to say is that the defendant is an experienced user who has developed tolerance to “ice” and may consume more “ice” than the amount suggested in Tam Ling Yuen or even to the extent of consuming 0.5 gramme to 1 gramme of “ice” per day.  If so, the “ice” seized on him would last for his consumption for 12 to 24 days.

24.In the present case, the prosecution, unlike the aforementioned cases, did not call any expert to give evidence on the daily dosage, average dosage for frequent or infrequent users of “ice” and the consumption pattern of a drug addict, in particular, in like situation of the defendant in terms of his alleged drug-taking habit and history.  I do not agree with the prosecution that the court is able to and should take judicial notice in respect of the daily dosage of “ice” of a drug addict.  I find that in the present case before me, there is simply no evidence on this aspect. 

25.Further, the authorities referred to by both parties in fact did not assist the court in determining this issue.  It is not known if the defendant has developed a tolerance to “ice”, and if yes, his tolerance level and hence the average dosage required for each consumption in a day.  Bearing in mind that it is for the prosecution to prove its case and based on the evidence before me, I am unable to say that the quantity possessed by the defendant is inconsistent with the amount that drug addicts would buy for their consumption.

26.For the reasons given above, I find that on the evidence before me, it is not a case where quantity alone is proof of trafficking.  Besides, it is noted that the “ice” seized was contained in one single packet.  It was not divided into smaller amount and contained in different packets.  It will be more indicative of trafficking if a person has in his possession a number of packets of drugs and is seen lingering around on the street as though waiting for a buyer.

27.Furthermore, no drug paraphernalia commonly associated with drug-trafficking activities, for example, electronic scale and large amount of resealable transparent plastic bags, was found on the defendant.  Also, he was not found in possession of a substantial amount of cash, for which there was no realistic possibility of the money being for reasons other than drug dealing. 

28.Having considered all the evidence and the submissions made, I find I am not satisfied the only inference to draw is that the defendant was trafficking in the “ice” seized.  I find the prosecution has failed to prove that the defendant was in possession of the “ice” for the purpose of trafficking.  In light of the circumstances, the defendant is acquitted of trafficking. 

29.However, as I have stated above, I attach full weight to the admissions made by the defendant that he knew what he possessed was “ice” and that he was actually in possession of the “ice” in question.  On this basis, I am sure that he is guilty of the offence of possession of a dangerous drug, contrary to section 8 of the Dangerous Drug Ordinance.