HKSAR v. Zzaman Md Asadu

DCCC 238/2018

[2018] HKDC 1301

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 238 OF 2018

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Reasons for Verdict

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Charge

1.The Defendant pleads not guilty to a charge of drug trafficking.  He is willing to plead guilty to simple possession but the prosecution does not accept it.  A trial takes place on the original charge of drug trafficking.

Prosecution case

2.It is admitted in writing (P5) under s. 65C of the Criminal Procedure Ordinance, Cap. 221, that the Defendant was stopped by 2 police officers near the junction of Canton Road and Haiphong Road, Tsim Sha Tsui at around 3 pm on 18/1/2018. They discovered a small metal box (P7) which contained 14 transparent resealable plastic bags with a certain substance (P8).  He was arrested at the scene.  He showed the police his Form 8 recognisance paper.  With the assistance of a Bengali interpreter at the police station, the police post-recorded the arrest of the Defendant.  He had stated under caution, “I bought these drugs for my own consumption a few times.  I bought them for $5,000 from an unknown male at Chunking Mansion today.”  He had $90.50 cash on him. 

3.The government chemist certificate (P1) described the substance as 10 grammes of a mixture containing 6 grammes of cocaine. 

4.A video-recorded interview under caution was conducted by the police with him on 19/1/2018, which contained the following answers, among others:

(1) The drug was for his own consumption;

(2) He bought it from a person who looked Nigerian;

(3) He bought the 14 packets of drug together for $5,000, a much cheaper price per packet than buying a single packet;

(4) He had no job but had horse racing winnings of $12,000 to pay for the drug;

(5) The 14 packets would last one month.

5.The drug price expert’s statement is admitted under s. 65B of the Criminal Procedure Ordinance (P6).  Ten grammes of cocaine (powder) could be sold for $10,560 at street level whereas 10 grammes of cocaine (crack) could be sold for $12,580 at street level. 

6.PW1 PC19258 is the only witness in court for the prosecution.  He says that the 14 packets of drug were found in the Defendant’s right trouser pocket.  It is suggested to him in cross-examination that he had actually found them from a flower bed near the Defendant, who was smoking when approached by the police. He denies this suggestion.

7.The Defendant elects to give evidence.  He calls no witnesses.  He had one criminal record only, simple possession of drug resulting in a fine of $2,000 on 22/12/2016 (D1).  He claims to be a political refugee from Bangladesh, arriving in Hong Kong in 2014.  He claims to own a shop in Bangladesh with a rental income equal to $7,000 per month.  He would ask his mother to remit him the money every one or two months from Bangladesh.  He also got money enough for his accommodation and daily living expenses from the ISS. 

8.He had won $12,000 from racing horse bets the day before the arrest.  He spent $5,000 on the drug and let his roommate keep $4,000 for him, so he would not spend that sum also on drug.  The drug was bought not long before the arrest. At around 3 pm, he put the 14 packets of drug in a flower bed when he was smoking as the police were approaching. 

9.He had said in the video-recorded interview that the 14 packets of drug would last one month.  He then explains in court that sometimes he would consume 1 to 1.5 packets per day but sometimes less.  It depends on whether he had money at the relevant time.  Generally speaking, he would share his drug with his friends, who would also share theirs with him.  For the 14 packets of drug in question, his friends might consume them if they did not have the money to buy drug. 

My findings

10.The Defendant in the witness box has virtually admitted that the drug in question might be made available to his friends.  The complete offence is proved.  Mr. Boyton for the defence does not argue otherwise.

Verdict

11.I convict the Defendant as charged.