HKSAR v. Khan Amjed and Another

DCCC 1057/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1057 OF 2016

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Reasons for Verdict

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1.The 1st and 2nd defendant in this case are married and pleaded not guilty to the following:

Charge 1

The 1st defendant is charged with trafficking 18.03 grammes of cannabis in herbal form and 2.84 grammes of a crystalline solid containing 2.74 grammes of methamphetamine hydrochloride. These drugs were found in his bag on 23 August 2016 on the 3rd Floor, Podium, of Lai Man Court, Shaukeiwan Plaza.

Charge 2

The 1st defendant is also charged with trafficking 89.12 grammes of cannabis in herbal form. These drugs were found in a fridge in their home on the 6th Floor of Lai Man Court on the same day, 23 August.

Charge 3

The 2nd defendant is charged with trafficking 5.8 grammes of cannabis in herbal form, also on 23 August, which were found in her bag, as well as 11.55 grammes of cannabis resin found in her bra.

2.The defendants do not deny carrying drugs and the 1st defendant storing drugs in their fridge at home, but deny it was for the purposes of trafficking.  Both indicated they would plead to alternative charges of possession of the same drugs for their own consumption, but the prosecution did not accept that proposition.

3.What is at issue here is whether or not the prosecution has proved beyond reasonable doubt the defendants unlawfully trafficked those same drugs or whether they were for their own consumption.

4.Trafficking in relation to dangerous drugs includes “supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking”.  I refer to the definition of trafficking in Section 2 of the Dangerous Drugs Ordinance.

The prosecution case

5.On 23 August 2016, the police team involved here were from the North Point Police Station and had obtained a search warrant for Flat B, 6th Floor, Lai Man Court, Shaukeiwan Plaza, on the grounds it was suspected dangerous drugs were in the premises.  The 1st and 2nd defendant lived in those premises.

6.At 2.32 pm, police officers PW1 and PW2 spotted the defendants leaving the main entrance of Lai Man Court and walk out onto the podium.  They intercepted the defendants and revealed their police identities. Both defendants were resistant to the police and did not co-operate, so much so that both had to be pressed to the ground and subdued physically.

7.The 1st defendant had refused to let PW1 search him and tried to walk away.  He and the 2nd defendant spoke to each other in their mother tongue.  PW1 had to use force to restrain the 1st defendant and pin him down.  Likewise, the 2nd defendant did not keep still as ordered and walked away from PW2.  The 2nd defendant tried to shrug off PW2 and then run away.  PW2 had no choice but to restrain her and pin her to the ground as well. 

8.After both defendants were subdued, the police searched their bags.  PW1 found three plastic bags filled with cannabis in herbal form and one bag of “Ice” in the 1st defendant’s black waist bag.  He arrested and cautioned the 1st defendant, who replied, “It’s mine,” in English. PW2 found one plastic bag of cannabis in herbal form in the 2nd defendant’s handbag.  Under arrest and caution, the 2nd defendant remained silent.

9.Other police officers, including a WPC, arrived at the podium to assist PW1 and PW2.  The search warrant was produced and explained to the defendants, who were then escorted back upstairs so their home could be searched.

10.The keys to their home were found in the 2nd defendant’s handbag.  The 2nd defendant suddenly threw herself at the wall outside their front door, banging her head against it.  She was stopped by the WPC.  Despite this, she said she did not require medical attention.  The WPC, PW3, then took the 2nd defendant into a room and searched her body.  She found two pellets of cannabis resin wrapped in plastic in the 2nd defendant’s bra. She was arrested and cautioned, and once again remained silent.

11.The flat was then thoroughly searched in the presence of the defendants.  The following were found:

(a) the drugs of Charge 2 were found in the fridge. One big bag containing 83.2 grammes of herbal cannabis was found in a purpose-made false compartment of a Kool-Aid drink canister. It was accessed from the bottom of this can. Another bag containing 5.92 grammes of the same drug was also found. Only the 1st defendant’s fingerprints were found on the dangerous drugs in the fridge;

(b) three “Ice” bottles or pipes were found on a shelf in a bedroom;

(c) a wooden box was found on a bed and in it the police found a small pair of scissors, a cutter, a roll of plastic wrap, a lighter, and 25 resealable small plastic bags.

12.When arrested, both defendants had some cash on them: the 1st defendant $940 and the 2nd defendant $10,870.20.  The 1st defendant also had two mobile phones in his possession.

13.It was agreed in the admitted facts, P69, amongst other facts, the estimated street retail value of the drugs in Charge 1 was in total $4,914; in Charge 2, $19,606; and in Charge 3 $2,175 - a total of $26,695. 

14.There were no admissions of trafficking from either defendant.

15.The prosecution relies on an accumulation of circumstantial evidence to draw the irresistible inference the defendants were in possession for the purpose of trafficking.  The prosecution’s stance is that the defendants were not drug addicts or users, and were caught in the process of trafficking, taking drugs out of their home for that purpose.

16.The police interviewed the defendants separately under caution and videotaped.  The defendants arranged a lawyer to come to the police station and accompany them both during their interviews.

17.Under caution, in P54, a video recorded interview, the 1st defendant told the police he did not realise that he had the “Ice” in his bag with the cannabis.  He was going out at the time with the drugs to meet his friends and smoke together, meaning the drugs.  That is at counter 404 to 408, in P54B, the certified translation of the interview.

18.The 1st defendant said in court he would buy drugs monthly in Tsim Sha Tsui from a “Tommy” and he smoked it to relax, but he was not allowed to smoke it at home by his wife.  The smell was too strong.

19.The 2nd defendant was interviewed and also accompanied by the same lawyer.  She admitted possession of the cannabis and the resin found in her bag and bra.  She, however, refused to answer almost all other questions put to her, which was her right to silence.  When asked if she was a drug addict, she said she had nothing to say.  Then she was asked, “What are the cannabis resin for?” and she said, “I don’t know.  Nothing to say.”  I refer to counters 424 to 427, P57B, the certified translation of the interview.

20.The prosecution called PW1 and PW2, who arrested the 1st and 2nd defendant respectively.  PW3, WDPC7514, was called and gave evidence of the 2nd defendant banging her head against the wall and finding the cannabis resin in her bra during a body search.  These witnesses were not cross-examined to any extent.  Their evidence was not challenged.  The same applies to PW4, the Exhibits Officer, who searched the home and produced the relevant exhibits.

21.The fact that at the scene the defendants were first arrested for possession of dangerous drugs and not trafficking is neither here nor there and certainly not indicative of the strength of the evidence.

The defence case

22.Both defendants elected to give evidence.  Both claimed the drugs on their persons and the 1st defendant’s drugs at home were for their own consumption, not for sale, not to be delivered nor to be shared with others, not even each other.

23.The 1st defendant said in evidence that they lived in that flat with the flat-owner.  He would come back every night.  He and his wife paid $4,000 per month in rent. 

24.The 1st defendant had the cannabis and “Ice” in his bag because he and the 2nd defendant were on their way by public transport to their friend’s home in Tung Chung.  He would consume his drugs and she would consume her drugs found on her.  He intended to take all the drugs himself and not share them with anyone else.  He took drugs to forget his worries and help with pain.  The “Ice” he took as an appetite-suppressant because he ate too much and had put on too much weight.  He said he was not allowed to smoke dangerous drugs at home because of the smell;  the 2nd defendant had forbidden it.

25.He planned to spend four to five days in Tung Chung.  He had no clothes or toiletries on him for such a long stay, because he never brushes his teeth nor changes his clothes often. 

26.He explained that he bought dangerous drugs once a month, as did the 2nd defendant.  It was cheaper to buy in bulk and he was less likely to be arrested if with the 2nd defendant.  He had spent $3,500 for that month’s supply on him and the 2nd defendant had paid $500.  He paid a similar amount every month.

27.The 1st defendant explained the cannabis in the fridge was concealed in a Kool-Aid tin to disguise its smell and keep it cool. It all belonged to him.  He would not share any of this amount of drugs with anyone else.

28.As for exhibits, he described the “Ice” bongs as his, for his own use.  The plastic wrap was for wrapping things.  The small transparent resealable bags were used for bagging up loose change for buses and cigarettes.  He produced Exhibit D1 and D2, a box of foreign coins and Hong Kong coins, bagged in these same bags.  He also agreed the cannabis found were in the same type of bags.

29.Exhibit D3 are a bundle of medical reports and invoices, as well as test results which show the 1st defendant had been diagnosed with type 2 diabetes and dyslipidaemia.  He has had diabetes for the past six-odd years.  It is very poorly controlled.  He has not taken medication regularly nor eaten properly.  In court he showed me his swollen ankles, black toes and dark skin patches on his calves.  He said his eyesight has worsened from this disease.  He is on Social Welfare assistance and labelled a disabled recipient.  He said in court cannabis and “Ice” helps with the pain he suffers from. 

30.In Exhibit D3 are two referral letters to the Pamela Youde Nethersole Eastern Hospital from a doctor at the Canossa Hospital, dated 18 October 2016 and 16 May 2017.  In that last letter dated one week before the first day of this trial, the doctor writes:  “He was involved in litigation because he was found taking ‘Ice’ with the intention of appetite suppression.” The defendant agrees this is what he told the doctor recently at this appointment.  This is not evidence of the truth.

31.In cross-examination, he agrees part of his evidence differ from the contents of his video recorded interview, but he explains that during that interview he was under pressure, he did not understand at the time, he was scared, and he did as his lawyer present advised. 

32.In particular, he had no recollection of saying to the police that he was going that day to meet his friends to smoke.  He had no recollection of this being written in his video recorded interview.  He also said he did not say this, but said to the police he was going to a friend’s home to smoke. 

33.He agreed in cross-examination that his marriage to the 2nd defendant was a traditional Pakistani marriage, where the husband had total dominance over his wife. 

34.He said she would consume dangerous drugs with him and they would do that in Tung Chung two to three times a month, so their home would not smell.  He then also said he would smoke at home if she was not at home, but in the toilet.  He said he did not take “Ice” regularly, but then said he took it once a day.  They would go together to Tsim Sha Tsui to buy drugs.  He stressed he would buy his and she would buy hers, but if they were together they were less likely to be suspected by the police as a couple.

35.As a couple, they also received $11,000 Social Welfare assistance per month.  The 2nd defendant was arrested with $10,780 in cash on her person.  The 1st defendant described her as a miser who saved all the money he gave her, to explain that large amount.

36.The 1st defendant denied when put to him they were trafficking drugs at the time and went out as a couple so police were less likely to suspect them.  He also denied there was any struggle from them when the police stopped them. 

37.When asked how he afforded for himself and the 2nd defendant to buy dangerous drugs every month whilst on CSSA, he explained he had income from another source and explained the situation.  It is an income that is not steady and will fluctuate, but by its very nature it was accepted by the prosecution he had another source of income, albeit sporadic.

38.The 2nd defendant’s evidence was similar to the 1st defendant’s.  She had the dangerous drugs in her handbag and hidden in her bra for her own consumption only.  She had taken cannabis in herbal and resin form for one and a half years due to back pains and also to accompany the 1st defendant.  She had spinal surgery earlier this year and is still not very mobile.  Her medical documents relating to her back problem and surgery were exhibited as Exhibit D4.

39.She explained she was going to Tung Chung empty-handed for four to five days because she had clothes and necessities already there.  She had no cigarettes or Rizla papers in her bag to roll her own cannabis cigarettes, but where they were going they could buy these items everywhere. 

40.She had no intention to share her drugs with anyone, not even the 1st defendant, just like he would not share his with her. Although they always went to buy dangerous drugs together, they would buy their own dangerous drugs separately.  She did not know that the Kool-Aid tin in the fridge had a secret compartment and that it concealed a lot of cannabis in herbal form.  She explained where she said in her video recorded interview that she did not know what the cannabis resin pellets were for, she had said this by mistake.

41.She also explained the reason she struggled on the podium was because her religion did not allow a man not her husband to touch her.  She banged her head against the wall because policemen were holding her, not a WPC.  She denied PW3, the WDPC, was with her outside her home before they entered. 

42.She agreed she had over $10,000 in her bag, but the reason being she did not want to leave her money at home in case of a theft.  She did not use her husband’s safe for her money, because he kept his cigarettes in it.  She then said to the contrary that she would sometimes use the safe to keep her money.

43.The 2nd defendant has a clear record.  I have warned myself accordingly of this fact and directed myself in accordance with the decision in Tang Siu Man v HKSAR (No 2) (1997-8) 1 HKCFAR 107. 

The law

44.The prosecution has a duty to prove all charges beyond reasonable doubt.  The defendants have nothing to prove.  The evidence against each defendant must be considered separately and independently, nor do these charges fall or stand together.

45.I did refer myself to the definition of “trafficking” in Section 2 of the Dangerous Drugs Ordinance.  I also referred myself to the authority of HKSAR v Chan Hong [1998] 2 HKC 688 at page 690, the English translation at E, where the Court of Appeal held, refusing leave to appeal:

“Trafficking was given a very extensive meaning in the Dangerous Drugs Ordinance, Cap 134. A part of the definition relevant to this case was dealing with a dangerous drug and possessing a dangerous drug for the purpose of trafficking. Not all manner of possession of a dangerous drug amounted to dealing with a drug. It all depended on the act of dealing and the purpose or use involved. The mere fact that the defendant moved about on the street with the dangerous drug was not sufficient to constitute dealing with the dangerous drug. In order to draw an inference that the defendant was dealing with the dangerous drug, one must have regard to the circumstances at the time as well as other factors such as the intent, use and purpose which the defendant had when carrying the dangerous drug, the time and place of the incident, and the quantity of the drug found. In respect of possession of a dangerous drug for the purpose of trafficking, prosecution did not have to prove any act of dealing with the drug. All they had to prove was that the defendant possessed the drug and had the intention of and capability to make use of the whole or part thereof for the purpose of trafficking.”

(Paragraph 58) The prosecution’s case against both defendants is that, on the evidence before the court, the only inference to be drawn is that each defendant possessed the drugs for the purpose of trafficking. It is well established that an inference of guilt can only be drawn against the defendant if it is the only reasonable compelling inference to be drawn.

(Paragraph 59) I refer to the often cited decision in R v Kwan Ping Bong [1979] HKLR 1 and what Lord Diplock said in particular at page 5:

“The inference must be the only one that no reasonable man could fail to draw from the direct facts proved.”

My findings

46.I have carefully considered the evidence and submissions made.  There is no direct evidence of trafficking, which means I have to examine the circumstances surrounding the arrest of the defendants and the result of the home search to determine whether the only inference to draw is that the defendants were both dealing in or with the dangerous drug or possessing the dangerous drug for the purposes of trafficking.

47.As I have reminded myself above, when drawing inferences, the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved. 

48.The fact that the defendants had drugs on them in the street does not de facto infer trafficking.  The same applies to the quantity of the drugs on them.  Although I can take into account the demeanour of the defendants immediately prior to arrest and at arrest, here their reaction does not infer they possessed drugs for the purposes of trafficking over a possibility they possessed drugs for their own consumption.  The same also applies to the search warrant obtained.  It is not to be inferred the drugs found were for the purposes of trafficking.

49.However, after careful consideration of the evidence and submissions, I do not believe the defendants were both on their way to Tung Chung for a few days’ staycation with nothing but their own drugs. I take into account they did not have cigarettes, lighters or Rizlas, the rolling paper required to smoke the cannabis, be it in herbal or resin form. They had no toiletries, clothes or underwear, nothing of that nature.

50.The 1st defendant told the police in his interview he was out to go and meet his friends to smoke.  This is quite different to his evidence in court.  In fact, he had to justify why he had three bags of cannabis and 2.74 grammes of “Ice” on him, which is why I am sure he fabricated this staycation.  I reject his explanation for the discrepancy highlighted.  The video recorded interview is clear as to what he said under caution.

51.Both defendants had difficulty and were in pain when moving around.  The 1st defendant had bad legs and feet from mismanaged diabetes and the 2nd defendant had spinal problems giving her pain, yet both say they travelled to Tung Chung to smoke drugs to relieve their pain.  They would go from Shau Kei Wan to Tung Chung by public transport, a significant and lengthy journey.  The 1st defendant said they did this several times a month. I find this hard to believe.

52.They explained they did not want to smoke at home because of the smell, yet the 1st defendant said he smoked “Ice” once a day.  Even if it was in his toilet, “Ice” smells too.  As the 2nd defendant confirms, she did not like that, the smell of “Ice”.

53.The 1st defendant told the court in evidence that the owner of the house lived there permanently, I am sure as a way of explanation for their movements.  However, this is not what he told the police.  He said under caution his boss would sometimes stay overnight in the home that they rented.  Again, I am sure he is fabricating facts to suit their evidence.

54.The police officers described the 1st and 2nd defendants’ strong resistance when they intercepted them.  In fact, they resisted so much they were dramatically both pressed to the ground before they were subdued.  The 2nd defendant then tried to self-harm by bashing her head against the wall outside their front door. 

55.The 2nd defendant explained why she reacted in this way, but it made no sense.  PW2 would not have had to lay a hand on her and physically touch her when he stopped her if she had not attempted to flee.

56.The officers’ evidence was not challenged.  Yet, the 1st defendant, in the witness-box, denied he had resisted or struggled when arrested.  It affects his credibility.

57.It appears the 1st defendant also tried to distance himself from the packet of “Ice” when he told the police under caution that he did not realise the “Ice” was in the same bags as the three bags of cannabis.  In court, he said he had intended to take the “Ice” as well as the cannabis to Tung Chung.  He explained he had said something different under caution because he was under pressure, did not understand at the time, was scared, and did as his lawyer advised.  He offers four explanations for this discrepancy.  Yet, the information about the “Ice” was offered to the police during the interview and not in answer to a question.  See counters 405 to 431 at Exhibit P54B.

58.The 1st and 2nd defendant do both look like a traditional Pakistani couple and the 1st defendant confirmed they were one where the male is dominant and the wife subservient.  Yet, their evidence is they go out together to buy drugs.  He buys his and she buys hers, and they do not share each other’s stash of dangerous drugs.  He hid drugs from her in a tin in the fridge.  Having seen them in court and then give evidence, it is difficult to imagine and believe this is the way they live their lives. 

59.What also convinces me the drugs were not for their own consumption is the value of the dangerous drugs overall versus what they spend each month on average on their drug-shopping trip to Tsim Sha Tsui.

60.The 1st defendant said every month he would buy approximately $3,500 worth of drugs and she, the 2nd defendant, would buy about $500 worth of drugs, and, in fact, they had just paid that amount a day earlier in Tsim Sha Tsui before their arrest for their month’s supply.  They only go out once a month to avoid the risk of arrest that goes with buying little but often from dealers on the street.  They also got it cheaper in bulk.

61.Yet, in the admitted facts, P69, the dangerous drugs on the 1st defendant’s person for Charge 1 was worth an estimated street value of $4,914 and the dangerous drugs in the 2nd defendant’s bag and bra were worth $2,175.  This is more than the $3,500 and $500 the 1st defendant said they had spent a day earlier.

62.I accept bulk buying may and will be cheaper, but I doubt the 2nd defendant’s drugs would be four times cheaper than the estimated street value.  In addition, the dangerous drugs in the fridge the 1st defendant said all belonged to him had an estimated street value of $19,606. This is about a four months’ supply if the 1st defendant was given a third discount of the estimated retail street value.  He had no need to go to Tsim Sha Tsui to buy drugs the day before to take to a staycation in Tung Chung because he had a substantial supply at home already.

63.I said above, having observed the 2nd defendant, I doubted her evidence and obviously it is dangerous to make a finding against a defendant on appearances only and I stress I do not here.

64.The 2nd defendant told me in detail in her oral evidence how she would make a cigarette from the resin or cannabis in herbal form to smoke it.  However, in a statement made under caution after arrest, she said she did not know what the cannabis resin was for, at counter 424 to 428 at P57B.  It was a simple question.  I reject her explanation that she mistakenly said this.  This is an anomaly that causes me to doubt her evidence.

65.She says under caution she did not know what the resin hidden in her bra was for, yet by the trial she explains she smokes it and describes how she smokes it.  She explains she needs cigarettes, a lighter and rolling paper, none of which either defendant had in their possession with the drugs nor, it seems, at home, other than lighters.

66.The two pellets of resin found in her bra were individually wrapped with plastic and then put in a small transparent resealable plastic bag.  There was a wooden open box found on a bed in the flat.  Photograph 16 of 61 photos in P70 show that box.  In it was a pair of scissors, a paper cutter, a lighter, 25 resealable plastic bags, and a small or mini roll of cling film.  These small bags were identical to the ones containing cannabis in both forms.  All the items in that box were useful for wrapping and packing these drugs. 

67.I have made a note of the fact there is no electronic scale, but I do note that of the five smaller bags of herbal cannabis found on the 1st defendant, 2nd defendant and in the fridge, all weigh very much the same, between 5.63 grammes to 6.31 grammes.  The two pellets of resin weighed 5.95 and 5.6 grammes respectively.  The weight of the five bags and two pellets are almost equal to each other, so were clearly weighed at some stage when packed.

68.It is not fatal to the prosecution’s case that there is some packing material at home but no scales.  In turn, the absence of the scales does not support the allegation of self-consumption.

69.I reject the 1st and 2nd defendants’ evidence because of the discrepancies I have highlighted.  The explanation offered at trial by the 1st defendant was different to what he said after his arrest under caution.  The 2nd defendant went from not knowing what the resin was for to rolling it herself and smoking it habitually. 

70.The figures and value of the drugs found on the defendants and in their home totalled over $26,000.  Even taking into account a discount on a bulk purchase, there was too much for a couple who would buy once a month to cut down their risk of arrest.  They had no need to buy more with so much cannabis at home.  I do not believe they bought the dangerous drugs of Charges 1 and 3 the day before their arrest for themselves.

71.I doubt that they had bought dangerous drugs for pain relief, yet would travel from the end of Hong Kong Island to the other end of Lantau Island to smoke the drugs to get pain relief and do this a couple of times a month.

72.The 1st defendant said he took “Ice” for appetite suppressant.  I see a big man carrying a lot of weight, so there is no evidence of this use of this drug “Ice”.  He did not offer any evidence of weight loss from taking “Ice” as he alleged, to demonstrate he was an “Ice” abuser. 

73.However, there are “Ice” bongs in the house, all clean.  The 1st defendant says he uses them, but cleans them after each use.  I find that oddly fastidious for a man who says he rarely changes his clothes and has never brushed his teeth.  I cannot, however, completely disregard the presence of those bongs and it may be that he did take “Ice”, but he had no “Ice” bongs on him when arrested going out to use elsewhere.

74.Although I reject the defendants’ evidence, I must still find the prosecution proves its case beyond reasonable doubt.  The defence submit the evidence before the court is not sufficient to establish an irresistible inference of trafficking.  I reminded myself again that when drawing inferences it must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

75.Having considered the evidence and submissions, I take into account that:

(1) 1st defendant had three packets of cannabis and one packet of “Ice” in one bag. All the bags of cannabis were of almost equal weight;

(2) the 1st defendant had hidden in a secret compartment of a can in his fridge a significant amount of cannabis;

(3) the 2nd defendant had dangerous drugs hidden in two places on her: in her bag and in her bra;

(4) both defendants were leaving home with the dangerous drugs, going out, but I reject the evidence they were going out to consume these drugs themselves over several days;

(5) I reject the evidence they were heavy or habitual abusers of cannabis themselves and that all the drugs of all three charges were for their own use;

(6) there were bags and cling film or plastic in a box in the flat that was the same packaging as those bags and pellets of dangerous drugs found.

76.I am sure the only inference to draw is that 1st and 2nd defendant possessed the dangerous drugs on the podium after leaving home to go out was for the purpose of trafficking.  This finding is in relation to Charge 1 and 3.

77.I am sure the only inference to draw is that the 1st defendant possessed the cannabis hidden in a tin in his fridge when he was not a habitual user or addict was for the purpose of the trafficking, Charge 2.

78.Accordingly, and despite the 2nd defendant’s clear record, both defendants are convicted as charged.