HKSAR v. Cheung Ho Hang

DCCC 651/2018

[2019] HKDC 1068

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 651 OF 2018

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REASONS FOR VERDICT

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INTRODUCTION

1.The defendant is charged with the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.  The Particulars of Offence read:-

“CHEUNG Ho-hang, on the 2^nd day of May, 2018, on a taxi bearing registration mark JK7101, outside Nos. 43-45 Portland Street, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 38.0 grammes of a solid containing 31.8 grammes of cocaine.”

2.The defendant pleaded not guilty to the charge but indicated that he was prepared to plead guilty to the charge of possession of a dangerous drug.  The prosecution did not accept the defendant’s guilty plea to the lesser charge.

3.At trial, the prosecution produced a set of Admitted Facts by virtue of section 65C of Cap. 221 as Exhibit P7.  Exhibits P1, P2, P3(1)-(4), P4, P4A, P5, P6A, P6B were produced under Exhibit P7.  The prosecution also produced Dr Lau Fei Lung’s expert report dated 11 July 2019 pursuant to section 65B of Cap. 221 as Exhibit P8.  The entire prosecution case was presented to this court by production of the aforesaid exhibits.  No prosecution witness was required to testify.

4.After I ruled a case to answer, the defendant elected to testify.  In addition, the defence called Dr Tung Chi Kwong (“DW1”) to show that the defendant had cocaine dependence.  DW1’s medical report on the defendant dated 29 October 2018 was produced as Exhibit D1 by virtue of section 65B of Cap. 221.  During DW1’s testimony, a Consultation Summary dated 19 October 2017 signed by DW1 was produced as Exhibit D2.  Further, a memo dated 16 July 2019 from the Chief Superintendent in Lai Chi Kok Reception Centre was produced as Exhibit D3 by virtue of section 65B of Cap. 221.  It was stated in Exhibit D3 that the result of the immunoassay test conducted on the urine sample collected from the defendant on 5 May 2018 indicated “Cocaine (1158/1000) Positive” and “Reading of the test over 1000 may possibly indicate the presence of the testing agents in his urine specimen”.

5.It was the defence case that the defendant was in possession of the dangerous drug for his own consumption, not for trafficking.

6.It was stated in the Admitted Facts that the defendant had a clear record in Hong Kong.  I bear that in mind in analyzing evidence in this case – the defendant’s credibility is high and his propensity in committing an offence is low.

7.I also bear in mind that the burden of proof lies on the prosecution to prove the case beyond all reasonable doubt.

PROSECUTION’S CASE

8.At about 10 pm on 2 May 2018, PC19218 (“PW1”) saw a taxi with registration number JK7101 (the “Taxi”) near Pitt Street in Portland Street, Yau Ma Tei turning left to Portland Street from Waterloo Road.  Afterwards, the Taxi stopped outside Nos. 43-45 Portland Street, with hazard flasher on.  For 2 to 3 minutes no one was getting on or off the Taxi.  PW1 then approached the Taxi slowly.  Inside the Taxi were the driver (“PW2”) and the defendant.  The defendant was the only passenger in the Taxi and was sitting on the left rear passenger seat, without any actions of getting the change from PW2.

9.PW1 tried to open a door of the Taxi but it was locked.  He knocked the window of the Taxi and PW2 unlocked the door.  Having opened the door next to the right rear passenger seat, PW1 showed the defendant and PW2 his police warrant, and demanded a search.  PC10356 (“PW3”) assisted PW1 in leading the defendant out of the Taxi from the left rear passenger seat.

10.When the defendant was getting off the Taxi, PW1 saw the defendant put his right hand into his front right shorts pocket and took out two white items which the defendant dropped on the left rear passenger seat of the Taxi.  PW1 searched the Taxi and seized the aforesaid two white items.  Upon inspection, PW1 found that the aforesaid two white items were white solid contained in two transparent resealable plastic bags with red line, each wrapped with a piece of white tissue paper.

11.Between 10:55 pm and 11 pm on 2 May 2018, DSPC50023 took 2 photos of the Taxi and 2 photos of the aforesaid two white items.  Those 4 photos were produced as Exhibit P3(1)-(4).

12.As a result of body search on the defendant, PW3 found that the defendant had a mobile phone, a wallet containing HK$150, a Hong Kong passport and a key.  

13.PW2 did not know the defendant and had not seen him before 2 May 2018.  PW2 had received an order on 2 May 2018 to pick up the defendant from a bus stop in Siu Hong Court, Tuen Mun.  When PW2 picked up the defendant at 9:34 pm, the defendant asked to go to Mong Kok District.  During the ride, the defendant had asked PW2 to change the destination to Inn Hotel in Yau Ma Tei.  When PW2 arrived at Inn Hotel outside Nos. 43-45 Portland Street, the defendant did not get off the Taxi.

14.The fare for the taxi ride to take the defendant from Siu Hong Court in Tuen Mun to Inn Hotel in Yau Ma Tei was HK$213.10.  The taxi fare receipt for the ride taken between 9:34 pm and 10:02 pm on 2 May 2018 was produced as Exhibit P4, and its certified English translation as Exhibit P4A.  After the body search on the defendant had been conducted, the defendant paid HK$150 he had on him to PW2 to settle the taxi fare.  PW2 waived the outstanding balance of HK$63.10.  After having paid HK$150 to PW2, the defendant had no money left.

15.Government Chemist examined the aforesaid two white items and found that they contained a total of 38.0 grammes of a solid containing 31.8 grammes of cocaine.

16.On 3 May 2018, a house search was conducted at the defendant’s house in Sheung Shui with nothing incriminating found.

17.The defendant voluntarily participated in a cautioned video-recorded interview between 6:13 pm and 6:28 pm on 3 May 2018 (the “VRI”).  Transcript of the VRI and certified English translation of that transcript were produced as Exhibits P6A and P6B respectively.  In that interview, the defendant said inter alia:-

(i) He denied ownership of the two packets of cocaine when he was cautioned by the police at 10:15 pm on 2 May 2018 because he was too frightened to admit it;

(ii) He knew that they were cocaine;

(iii) On average, he took 3 grammes of cocaine per day;

(iv) He bought the cocaine from a female friend called Ah She in Tuen Mun at the price of HK$15,000;

(v) After he had bought the cocaine, he called a taxi to take him from Tuen Mun to Yau Ma Tei to meet a friend for drinks;

(vi) He used to be a scaffolding worker. As of 3 May 2018 when he was interviewed, he was living on his savings; and

(vii) As he was going to a drug treatment centre soon, he intended to consume more (cocaine) in one go before he was admitted to the drug treatment centre.

18.According to Detective Senior Inspector Ho Yan Kit, in May 2018, the quantity of cocaine in this case could have been sold at the street level to drug abusers for HK$41,230 (powder) or HK$48,450 (crack), which were the respective average retail prices calculated as follows:-

38 grammes x HK$1,085 per gramme (powder) = HK$41,230

38 grammes x HK$1,275 per gramme (crack) = HK$48,450

19.The effect of cocaine is summarized in Dr Lau Fei Lung’s expert report (Exhibit P8). On daily dosage of cocaine, it was stated in Exhibit P8:-

“Daily consumption of cocaine is highly variable. As usage pattern for cocaine is irregular. In a study done in US, as compared to methamphetamine, the users tend to has fewer days of use in a week. They tend to use it in the evening or weekend and consume more frequent doses per day.

Cocaine is often adulterated when sold on black markets, pure cocaine is very potent a stimulant and seldom seen in Hong Kong market. A typical chronic user takes 25 to 50 mg (depending on the purity of the drug) per insufflation. He would repeat the dose many times a day with an average daily dose of 0.5 gm. However, for a new user, he may stop after 1 or 2 insufflations and not using it regularly. On the other hand, heavy users can have binge of cocaine up to 2-3 gm a day after taking repeat doses.

Lethal dose is reported at 1 gm if taken within a short period of time. However, susceptible individuals have died from as little as 30 mg applied to mucous membranes, whereas chronic addicts may tolerate up to 5 grams daily.”

DEFENCE CASE

20.Simply put, the defence case is that the defendant was in possession of the subject cocaine for his own consumption.

21.In his evidence-in-chief, the defendant said inter alia:-

(i) He is now 24 years old. He first came into contact with cocaine on his 18^th birthday. Initially, he took it once every few days. When he reached 18½ years of age, he started to get hooked to it. He hid himself at home and took cocaine every day. At that period of time, he took 3 grammes of cocaine every day and he did it for several days in one go before he went to sleep;

(ii) When asked how much he paid for getting cocaine, the defendant testified that it varied. It could be several thousand dollars. Initially, he paid several thousand dollars for each purchase. It subsequently reached a level that he could pay the seller on a monthly basis, ie he bought cocaine on credit;

(iii) He continued taking cocaine until he was 19. One day, he saw an old man with white powder on his body collapsed on the street. Seeing that, the defendant told himself that he did not want to end up like that old man. He therefore sought assistance from a social worker to help him get rid of his drug addiction. He was admitted to a voluntary drug treatment centre called Caritas Wong Yiu Nam Centre in Hang Hau (“WYN”) when he was 19. He stayed there for 3 months;

(iv) For one year he had left WYN, he did not use any dangerous drugs;

(v) On his 20^th birthday, he consumed cocaine again;

(vi) The next day after his 20^th birthday, he approached his social worker and asked to be admitted to WYN again. It was scheduled for him to be admitted to WYN in one month. During that one-month period prior to his re-admission to WYN, he consumed cocaine every day;

(vii) He left WYN after he had stayed there for a month. When he left WYN, he was clear of his drug addiction. He worked as a scaffolding worker earning HK$1,000 per day;

(viii) He relapsed into taking cocaine one year after he had left WYN. It was his birthday when he consumed cocaine again. When he consumed cocaine, he did not like being seen by others. He hid himself at home and consumed it;

(ix) Then he asked to be admitted into another drug treatment centre to get rid of his habit. This time, he was referred to a voluntary drug treatment centre called the Lodge of Rising Sun in Tuen Mun. He stayed there for 11 months from April 2017 until he left in mid to late March 2018. Starting from July 2017 when he was staying at the Lodge of Rising Sun, he was employed by a car cleaning company on a monthly basis;

(x) In mid-April 2018, he consumed cocaine again. Once he relapsed into taking cocaine, he told his social worker about it so that he could be re-admitted to the Lodge of Rising Sun. His social worker told him that he had to wait for one month before he could be re-admitted into the Lodge of Rising Sun. He testified that he was due to be re-admitted to the Lodge of Rising Sun about 8 days after 2 May 2018;

(xi) During that time in April 2018, he worked for the car cleaning company on a casual basis earning HK$500 per day;

(xii) In April 2018 when he relapsed into taking cocaine, initially he was still able to go to work occasionally. It got worse later on to the extent that he hid himself at home to consume cocaine. There was one occasion when he consumed cocaine 4 days in a row. On the 2^nd day, he had hallucination that his mother asked him how many times he had to be admitted to the drug treatment centres to kick off his habit. He had to take multiple dosage of medicine prescribed by the doctor of Tuen Mun Substance Abuse Clinic to help him fall asleep;

(xiii) Yet he could not prevail over cocaine. He consumed it again and could not sleep. He had hallucination that his fellow villagers said he was good for nothing and he was useless even if he stayed alive. He wanted to kick off his drug habit and he did not want his family to worry about him. He wanted to end his life. He got a bag of charcoal and tried to commit suicide by burning charcoal at home. His younger sister found that out and stopped it. She also flushed away his cocaine into the toilet. He then fell asleep. When he woke up, he felt like nothing had happened. He looked for people to supply him with cocaine but it was too early that no one answered his calls. In his evidence, he said once he had no way to obtain cocaine, he would become very disturbed. So he went to Tuen Mun to play video-arcade games. He ran into a woman called Ah She in an amusement game centre and she offered to sell him cocaine at a bargain. So he followed her to a bus stop in Siu Hong Court and obtained two packets of cocaine. He paid her HK$15,000. After he bought the cocaine, he tested it first at the bus stop. It was sometime between 8 pm and 9 pm. After he tested the cocaine and found it acceptable, he called a taxi to go to Kowloon to have drinks with his friend;

(xiv) When the taxi stopped at Portland Street, he did not get off the taxi because he did not have enough money to pay for the taxi fare. So he called his friend and asked him to go to where the taxi stopped and to pay for him. He had no idea where his friend was at the time when he called his friend. He testified that he had hallucination at that time, that he was overdosed, and that once he took cocaine, he would experience hallucination;

(xv) He testified that since he started taking cocaine when he was 18, he had not taken any other dangerous drugs other than cocaine; and

(xvi) When asked how long the subject two packets of cocaine would have lasted, the defendant said it varied, and that if he wanted to have a binge, he could have used it up in 4 or 5 days.

22.In cross-examination, the defendant said inter alia:-

(i) During his stay at the Lodge of Rising Sun between April 2017 and March 2018, he was required to pay a fee of HK$100 per day to the Lodge of Rising Sun for the services given by the Lodge of Rising Sun;

(ii) When he was referred to the Lodge of Rising Sun, he was receiving Comprehensive Social Security Assistance[1] (CSSA). Throughout his stay at the Lodge of Rising Sun, he was receiving CSSA granted by the centre so much so that he did not have to pay for the fee of HK$100;

(iii) Once he woke up on 2 May 2018, he had already planned to consume cocaine and so he took HK$15,000 with him. When he went out at about 6 pm that day, he wanted to consume cocaine. When asked about how much cocaine he intended to buy on 2 May 2018, the defendant testified that he had no plan. He just asked Ah She how much stuff could be bought for HK$15,000 and then he was given a specific quantity;

(iv) Other than the HK$15,000 he used to pay for the cocaine on 2 May 2018, he still had HK$20,000 to HK$30,000 savings left;

(v) On the topic of his transportation expenses, prosecuting counsel started with the time when the defendant was staying at the Lodge of Rising Sun. The defendant testified that during his stay at the Lodge of Rising Sun, there was no transportation expenses as his friend Ho Kin Hing who was also staying at the Lodge of Rising Sun used to drive him to work. Prosecuting counsel then asked about the defendant’s transportation expenses during the time he was living at his mom’s home. The defendant said when he lived at his mom’s place, he had been consuming cocaine and he would not go out. He testified “Why would I go out? I did not want to see people”;

(vi) When asked about how much money was spent on buying cocaine in April 2018, the defendant said several tens of thousands;

(vii) It cost HK$1,000 to buy 1 gram of cocaine;

(viii) He normally bought crack cocaine, and it could not be snorted;

(ix) Since April 2018 when he relapsed into taking cocaine, he had bought cocaine on 3 occasions. For the first two occasions, he bought cocaine from the seller who sold cocaine on a “per drop” basis (one “drop” weighs 0.24 gram). That seller gave him credit for buying cocaine and so he owed the seller money. On the third occasion, he bought from Ah She the subject 2 packets of cocaine in this case;

(x) During his 11-month stay at the Lodge of Rising Sun from April 2017 to March 2018, he had never consumed cocaine;

(xi) During his stay at the Lodge of Rising Sun, he had a day off from work every week since July 2017. As he did not have the guts to go back to Sheung Shui where he lived, he stayed in Tuen Mun to play video-arcade games and hence he got to know Ah She there;

(xii) By 2 May 2018, he had already seen Ah She for more than 20 times;

(xiii) On 2 May 2018, he had spent about 2 hours at the amusement game centre where he met Ah She. Ah She offered to sell him cocaine once he entered the entrance of the amusement game centre. Ah She said the stuff could be sold to him at a bargain price because she had to meet the quota;

(xiv) The purchase from Ah She on 2 May 2018 was the first time he had transaction with her;

(xv) Although he had told Ah She that he had HK$15,000 to buy cocaine, Ah She did not tell him how much cocaine he would get in return. Neither did he ask Ah She how much he would get in return for payment of HK$15,000. He testified that it was because Ah She had told him that he would not get it any less than what he could get from the seller(s) who sold cocaine on a “per drop” basis;

(xvi) Regarding the friend the defendant was going to have a drink with in the evening of 2 May 2018, the defendant said that friend was a scaffolding colleague. It was the first time he was going to have a drink with him. He had seen that friend/colleague at work for more than 5 days. He made the arrangement to have a drink with that friend/colleague in the afternoon of 2 May 2018 before he left home. By the time he had made such arrangement with that friend/colleague, he had already had the fantasy to take cocaine;

(xvii) When he boarded the Taxi, at first he had asked the driver to take him to Mong Kok. He then called his friend/colleague who said he (the latter) was in the vicinity of Inn Hotel and told the defendant to call again when the defendant arrived. He had called his friend/colleague 2 to 3 times when he was in the Taxi. The last time he called his friend/colleague, he told his friend/colleague that he (the defendant) was downstairs and it was okay for his friend/colleague to go downstairs to collect him;

(xviii)When the prosecuting counsel asked him whether he considered it risky to carry all the cocaine from Tuen Mun to Yau Ma Tei, the defendant testified that he had no choice, that he could not go home to consume it because once he consumed it, he would burn charcoal again; and

(xix) When the prosecuting counsel asked whether he was afraid that the police would find him, the defendant testified that he was not afraid, and that he had already told his mother and family members to call the police to arrest him.

23.There was no re-examination on the defendant.

24.DW1’s evidence-in-chief is mainly those contained in Exhibits D1 and D2.  DW1 confirmed that when he diagnosed the defendant as a cocaine dependent, he relied on a lot of the defendant’s account.  DW1 said he did not test the defendant’s urine sample to see if the defendant had really been taking cocaine or not.  

ANALYSIS OF EVIDENCE

25.There was no dispute on any of the evidence presented by the prosecution.  I accept the prosecution’s case.

26.That said, I still have to consider if it is possible that the defendant was in possession of the subject two packets of cocaine for his own consumption.  If the answer is in the affirmative, I will have to acquit him on the charge of trafficking.  Even if the answer is in the negative, I still have to consider whether, with the evidence presented by the prosecution, I can draw an only irresistible inference that the defendant was in possession of the subject two packets of cocaine for the purpose of trafficking.

27.In light of the contents of Exhibit D3, I am prepared to accept that the defendant had the habit of taking cocaine at the material time.  That tallies with DW1’s finding that the defendant had cocaine dependence syndrome.  However, DW1 did not tell how heavy the defendant’s drug addiction was at the material time.  Neither did Exhibit D3.  There is simply no evidence in this aspect from DW1 (and so Exhibits D1 and D2 prepared by DW1) or Exhibit D3.

28.Regarding the defendant’s evidence, I have the following observations:-

(i) (a) According to the defendant, when he woke up on 2 May 2018, he already had the fantasy to consume cocaine. He tried to call his usual supplier(s) but nobody answered. He testified that once he had no way to obtain cocaine, he would become very disturbed. So he left home at about 6 pm that day and went to Tuen Mun with the intent to consume cocaine. He also carried HK$15,000 with him to buy cocaine;

(b) It was also the defendant’s evidence that once he entered the entrance of the amusement game centre, Ah She already offered to sell him cocaine. Yet, he stayed around in the amusement game centre for about 2 hours before he went with Ah She to the bus stop at Siu Hong Court to collect the subject two packets of cocaine at about 9 pm. He tested the cocaine at the bus stop and found it acceptable. Then he called a taxi to go to Kowloon to have drinks with his friend;

(c) The defendant did not testify that he was going to consume cocaine (in the presence of his friend or not) when he was with his friend with whom he planned to have drinks;

(d) On one hand, the defendant was giving us a picture that he was so desperate to obtain and consume cocaine so much so that he could not wait for his usual supplier(s) to answer his calls and had to go to Tuen Mun and purchased cocaine from someone from whom the defendant had never purchased cocaine beforehand. On the other hand, except from his testing of the cocaine at the bus stop at Siu Hong Court, there is no evidence that from 6 pm until at least 10 pm when the Taxi stopped outside Nos. 43-45 Portland Street, the defendant had taken an adequate dose of cocaine to feed his desperate desire for cocaine. In this regard, the defendant did not testify that he was going to consume cocaine (in the presence of his friend or not) when he was with his friend with whom he planned to have drinks. According to the defendant’s own version, he might have to refrain from using the cocaine for a further while after he arrived at Yau Ma Tei at about 10 pm that day. I find the defendant’s evidence in this aspect conflicting and unconvincing;

(ii) (a) Towards the end of cross-examination when the prosecuting counsel asked the defendant whether he considered it risky to carry all the cocaine from Tuen Mun to Yau Ma Tei, the defendant testified that he had no choice, that he could not go home to consume it because once he consumed it, he would burn charcoal again;

(b) According to the defendant’s aforesaid explanation, in the evening of 2 May 2018 he was avoiding going home to take the cocaine because he would commit suicide once he consumed cocaine. Following this line of explanation, at the material time the defendant must be contemplating himself committing suicide once he consumed the cocaine, hence he did not go home to consume the cocaine in order not to cause trouble to his family by his suicide or attempted suicide;

(c) However, in his video-recorded interview, he did not mention contemplating committing suicide after he consumed the subject cocaine. On the contrary, he mentioned contemplating being admitted to a drug treatment centre soon and so he wanted to have a binge before his admission to the drug treatment centre (see paragraph 114 of Exhibit P6B). I find the defendant’s explanation for not going home whilst carrying the subject cocaine totally unconvincing;

(iii) (a) Whilst on the topic of the defendant’s evidence that he would burn charcoal again once he consumed cocaine, note must be taken that in the defendant’s evidence-in-chief when defence counsel asked the defendant how long the subject two packets of cocaine would have lasted, the defendant said it varied, and that if he wanted to have a binge, he could have used it up in 4 or 5 days;

(b) I find it difficult to reconcile the defendant’s testimony in that regard with his evidence that he would burn charcoal again once he consumed cocaine. Did he mean that he would burn charcoal after he had finished consuming the whole lot of cocaine he bought from Ah She in 4 or 5 days? If so, did it mean that in the meantime before he finished the whole lot of cocaine, he was able to control himself not to burn charcoal? If not and if he would burn charcoal once he consumed cocaine, then why did he bother buying HK$15,000 worth of cocaine? I do not accept the defendant’s evidence that he would burn charcoal again once he consumed cocaine. I also refuse to accept his explanation for not going home in Sheung Shui but to travel from Tuen Mun to Yau Ma Tei whilst he was carrying the subject cocaine;

(iv) (a) According to the defendant, the purchase of cocaine on 2 May 2018 from Ah She was the very first purchase he had from Ah She. Before that he had never purchased cocaine from Ah She. Yet, when Ah She approached him and offered to sell cocaine to him at a bargain, he just told Ah She that he had HK$15,000 to buy cocaine. Ah She did not tell him how much cocaine he would get in return. Neither did he ask Ah She how much he would get in return for payment of HK$15,000;

(b) As an experienced cocaine user as the defendant depicted himself, I find it unconvincing that the defendant did not ask Ah She about the price of the cocaine she was going to sell at a bargain. After all, he had never bought cocaine from Ah She before. The price might be more expensive than the price the defendant could get from his usual supplier(s). The price might be cheaper than the usual price. If the price was cheaper than usual and on the basis that the defendant was going to be admitted to a drug treatment centre in 8 days (putting aside the defendant’s testimony that he would burn charcoal once he consumed cocaine), he might not be able to finish the cocaine Ah She was going to sell him by the time he went to the drug treatment centre. In such event, he might want to pay less than HK$15,000 to get the right amount of cocaine so that by the time he was admitted to the drug treatment centre in 8 days, there would be no surplus. As I said before, I find the defendant’s evidence regarding the purchase of cocaine from Ah She without asking the price unconvincing;

(v) (a) During cross-examination, the defendant testified that he was not afraid to be found out by the police that he was in possession of the subject cocaine, and that he had already told his mother and family members to call the police to arrest him (for taking drugs generally);

(b) On the other hand, at the video-recorded interview conducted on 3 May 2018 he told the police that he had denied ownership of the two packets of cocaine when he was cautioned by the police at 10:15 pm on 2 May 2018 because he was too frightened at the moment and he did not dare to admit it (paragraphs 17 and 18 in Exhibit P6B).

(c) His testimony that he was not afraid to be found out by the police that he was in possession of the subject cocaine is inconsistent with his answer in the video-recorded interview;

(vi) (a) At the beginning of his video-recorded interview, the defendant said he was not familiar with Tuen Mun (paragraph 52 of Exhibit P6B);

(b) But when the police officer asked him where he usually went to play video games, the defendant said in San Hui, Tuen Mun (paragraphs 103 and 104 of Exhibit P6B). During cross-examination, he also testified that since July 2017, he stayed in Tuen Mun to play video games because he did not have the gut to go back to Sheung Shui;

(c) The defendant’s original answer in his video-recorded interview that he was not familiar with Tuen Mun is inconsistent with his subsequent answer in the same video-recorded interview and his testimony during cross-examination;

(vii) In his evidence-in-chief, the defendant testified that since he started taking cocaine when he was 18, he had not taken any other dangerous drugs other than cocaine. That is different from what he told DW1 in his consultation with DW1 on 19 October 2017. In this connection, the middle of page 1 of Exhibit D2 reads:-

“B. SECONDARY ABUSED DRUGS(S) (OTHER ACTIVE DRUGS IN PAST 1 YEAR)

Nimetazepam, MDMA – recreational use in disco setting.”

(viii) The defendant testified in cross-examination that the last time he called his friend/colleague when he was still in the Taxi, he told his friend/colleague that he (the defendant) was downstairs and it was okay for his friend/colleague to go downstairs to collect him. That testimony is different from his answers in the video-recorded interview when he said he did not contact others after he had arrived outside Nos 43-45 Portland Street (paragraphs 89 to 92 of Exhibit P6B).

29.I find the defendant neither credible nor reliable.  I refuse to accept his exculpatory testimony and answers in the video-recorded interview.  I give full weight to his inculpatory testimony and answers in the video-recorded interview.

30.In light of the contents contained in Exhibit D3, I am prepared to accept that the defendant did consume cocaine prior to his arrest in the evening of 2 May 2018.  That said, it does not mean that the subject cocaine was for the defendant’s own consumption.  Needless to say, a drug addict can still be a drug trafficker.  As I have refused to accept his exculpatory testimony and answers in the video-recorded interview, there is no accepted evidence that the defendant had heavy cocaine addiction.

31.The prosecution still has the burden to prove this case beyond all reasonable doubt.  In this connection, I have carefully considered both parties’ closing submissions and case reports, including HKSAR v Chan Chuen Ho FACC 4/1998 and HKSAR v Cheng Kong Sang CACC 371/2008. I have also considered the relevant paragraphs in Archbold Hong Kong 2018[2] referred to me by Mr Khosa. 

FINDINGS

32.Each case turns on its own facts.  In the present case, it is not in dispute that the defendant was in possession of the subject cocaine, namely 38 grammes of a solid containing 31.8 grammes of cocaine.  It was not a small quantity.  The subject cocaine had a relatively high purity of 83.68% (31.8 ÷ 38 = 83.68%).  The defendant was in Yau Ma Tei which was far away from his home in Sheung Shui at about 10 pm.  I do not accept that he was carrying the subject cocaine for his own consumption. Indeed, Dr Lau Fei Lung opined that “heavy users can have binge of cocaine up to 2-3 gm a day after taking repeat doses”.  The defendant also said in his video-recorded interview that on average he would take 3 grammes of cocaine per day.  The subject cocaine would have been good enough for his consumption for 12.67 days (38 g ÷ 3 g/day = 12.67 days) or 10.6 days (31.8 g ÷ 3 g/day = 10.6 days).  Even on his evidence that he was going to be admitted to a drug treatment centre in 8 days, the amount of the subject cocaine was more than he needed before his admission to the centre.  Further, he had with him HK$150 only which was not even enough to pay for his already incurred taxi fare for his taxi ride from Tuen Mun to Yau Ma Tei, let alone the expenses to pay for his alleged drinking gathering and then his way back home in Sheung Shui eventually.  In fact, after he had paid HK$150 to PW2, he had no money left.  The absence of sufficient fund with him at the material time to do anything further after the taxi ride (which cost HK$213.1), coupled with the presence of the subject cocaine which could be sold for a substantial amount of money, also point to the only irresistible inference that at the material time, the defendant was carrying the subject cocaine for the purpose of passing it on to others as a courier or a seller in return for a reward (be it courier fee, price for the cocaine or otherwise). 

33.In light of the aforesaid, I draw an irresistible inference that the defendant was in possession of the subject cocaine for the purpose of trafficking.  I am satisfied that the prosecution has proved beyond all reasonable doubt every single element required in the charge of drug trafficking.  I therefore find the defendant guilty as charged.