HKSAR v. Magar Dhurba Kumar

DCCC 967/2018

[2019] HKDC 1646

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 967 OF 2018

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Reasons for Verdict

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1.The defendant pleaded not guilty to one count of trafficking in 10.92 grammes of Ice. From the outset, the defendant has indicated his plea to possession of the dangerous drugs as he claimed that all the dangerous drugs were for his own consumption. Most of the Prosecution case was agreed. The Arresting Officer was the only witness called by the prosecution. I now deliver the reasons for verdict as follows.

The Prosecution Case

2.The defendant was intercepted on the street in Yuen Long. Upon body search, the police found two large resealable plastic bags containing a total of 13.4 grammes of crystalline solid and one smaller bag containing just 0.15 gramme of a crystalline. These crystalline solid contained narcotic content of Ice. The defendant did not have any Hong Kong dollars cash on him, but $1,700 Kazakhstani Tenge (equivalent to about HK$36 odd) and RMB $1. He also has one mobile phone and one Octopus card. No contraband was found in the defendant’s residence in Tai Shu Ha Road East, Yuen Long.

The Defence Case

3.The defendant admitted that the dangerous drug is Ice and he bought the two large bags for HK$3,000. The smaller bag of Ice was given to him as a sample. The defendant elected to give evidence to say that all the drugs were for his own consumption.

The Trial

4.Pursuant to section 65C of Criminal Procedure Ordinance, Cap 221, the following facts (Exhibit P6) are admitted:

1. At about 8:20 pm on 1 August 2018, PC 16636 Chan intercepted the defendant outside the ground floor of No. 15 Hong King Street, Yuen Long. The defendant took out something wrapped in a piece of silver-coloured foil from his bag and dropped it onto the ground. PC 16636 immediately picked it up and, from the said foil, found two resealable transparent plastic bags and one smaller resealable plastic bag.

2. Government chemist confirmed that the two resealable plastic bags contained a total of 13.4 grammes of crystalline solid containing 10.8 grammes of methamphetamine hydrochloride. The smaller plastic bag contained 0.15 gramme of a crystalline solid containing 0.12 gramme of methamphetamine hydrochloride.

3. Upon body search, the police found one mobile phone, an Octopus card, $1,700 Kazakhstani Tenge (equivalent to HK$36 odd) and RMB $1 on the defendant.

4. A house search at the defendant’s residence at Room A, Lot 1869 to 1870, Tai Shu Ha Road East found nothing suspicious.

5. On 2 August 2018, the defendant attended a video recorded interview (VRI) with the assistance of an interpreter. The content of the VRI was voluntarily made and was accurate. The VRI is produced and marked as exhibit P4, and the transcript thereof as exhibit P4(1) with its English translation as P4(1A).

6. A photo album which contains photos of exhibits P1, P2, the defendant’s clothing and other personal belongings, the scene at Hong King Street in Yuen Long, is produced and marked as exhibit P5(1-24).

7. On 4 August 2018, a urine test of the defendant showed that it was positive to amphetamine.

8. The chain of evidence of the exhibits will not be challenged.

9. At the material time, the average retail price of methamphetamine was $532 per gramme, and accordingly, if the drugs seized were sold on the basis of each gramme, the street value would be around $7,209.

PW1 - PC 16636 Chan Ka-ho

5.At the material time, PW1 was on duty patrolling in plainclothes in the area near Hong King Street in Yuen Long. He saw the defendant wandering around and not standing still. When the defendant saw PW1 looking at him, the defendant avoided PW1’s eyesight. PW1 observed the defendant for about two minutes.

6.PW1 then intercepted the defendant. As instructed, the defendant put his hands behind him. PW1 saw the defendant holding his wallet in his right hand and a silver coloured object in his left hand. The defendant then dropped the silver coloured object on the ground. PW1 then picked the object up and found the object is a foil containing two larger resealable plastic bags and one smaller one. These three bags contained crystalline substance. Photo 18 and 19 of the photo album P5 show what the defendant was wearing at the time. Photo 15 shows the defendant’s grey coloured slippers. Upon body search, the defendant was found to have one Octopus card, one mobile phone, $1,700 Kazakhstani Tenge, RMB $1. The officer did not conduct any check of the transaction records of the Octopus card.

7.Under cross-examination, PW1 maintained that he did observe the defendant for roughly one to two minutes. He did not ask the defendant where did he get the drugs. PW1 maintained that when he spotted the defendant, the defendant looked suspicious. He did not take part in the VRI.

The Defendant’s VRI taken on 2 August 2018 (Exhibits P4 and P4(1A))

Entry 149 - (The police officer) pointed at an object on the ground and asked is this yours? I said no. I don’t know. I was arrested.

Entry 171 - he (the officer) picked that up from behind, not from the front.

Entry 175 - I did not know (what was that)

Entry 179 - I parked the cycle and was sitting there (the cycle parking place)

Entry 191 and 195 - the bus stop of No. 18 minibus

Entry 219 - I did not get it at all (the three resealable plastic bags). I don’t know how it was received. He asked my ID and I gave the ID card.

Entry 221 - I don’t know about other things.

Entry 233 - I did not care (the suspicious material on the ground). I was next to the cycle (bicycle).

Entry 237 - I had asked money with a friend. I was looking for a friend who goes to work. The police came directly all of a sudden from the front.

Entry 241 - I have not at all touched it (the three resealable bags). I was repeatedly told this is yours. I said no.

Entry 245 - I said how is it mine? This is not mine (the three bags).

Entry 253 - I have not touched it.

Entry 257, 261, 263 - worked in construction. $600 to $700 per day. I am paid $700 per day.

Entry 267 - I got paid every 15 days.

Entry 271, 273 - No continuous work, sometimes $10,000 to $15,000, about $12,000 to $15,000

Entry 278 - (monthly expenses) drink beer, smoke cigarettes, eat rice. Around $2,000 to $5,000.

Entry 286, 288 - took heroin, and also black hashish.

8.After the close of the Prosecution case, there was no half time submission. The defendant elected to give evidence.

The defendant’s evidence on general issue

9.He was born in Nepal in 1968. He came to Hong Kong in December 1995. He was married and has two adult kids.

10.In 2018, the defendant used to work in construction field, and earned about $12,000 to $15,000 per month. He paid $2,000 to $2,500 for rent. He started to take Ice in 2008 but he also took heroin and cannabis resin. He took Ice three times a day. He consumed drugs not at home, but sometimes in public toilets in ‘Mini Chung King’ Plaza. The defendant said he used to buy more than $3,000 Ice. He knew that 14 grammes equals to half an ounce. The defendant was told by the supplier that the drug the defendant got this time was not of good quality hence he gave the defendant more. The defendant said if the drugs is white, it should be of good quality. After he takes the drugs, he will know whether the drug is good or bad. The defendant was of the opinion that at the time of his arrest, the price of the drug of good quality for ½ ounce can fetch around HK$5,000 to $6,000. The defendant claimed that the drugs so seized can last for about 7 to 10 days.

11.On the day of his arrest, the defendant worked in Lok Ma Chau as a general labour in a rubbish dumping area. He has a driving licence since 1999. The defendant said at the time he was employed by a Nepali boss. His wage was $700 per day and the defendant was paid every 15 days or every month. The defendant would get wages in cash somewhere when his boss contacted him.

12.On the day in question, the defendant said he went to a park after work. His boss would drive him to and from work in Yuen Long. Because he did not have any more drugs, the defendant called his friend, Sakav, to get the drugs in the park. The defendant told Sakav to bring Ice worth $3,000. The defendant had bought drugs from this man for about five to seven times. Sakav gave the defendant three bags of drugs and the defendant gave him $3,000. Sakav told the defendant that the smaller bag was a sample for him. That was a ‘new stuff’. The substance in the smaller bag is whiter and the defendant believed the quality is better. The defendant found the substance in the two larger bags is yellowish which means the quality is not that good.

13.After that, he went to get his bike near the place of his arrest. When he was about to unlock his bike, the police officer came forward and asked for his ID card. The defendant dropped the drugs onto the ground. The officer picked it up. He told the officer that the drugs were for his use and not to share. The defendant did not tell the officer that he has the bike with him.

14.Under cross-examination, the defendant said after he bought the drugs, he went to get his bike to return home. By then it was about 7:30 pm. The defendant said he stood by the bike stand and was looking around to see if there were any of his friends around. Apart from spending about $9000 in buying Ice, the defendant also spent money on buying cannabis, food and beer. The defendant drank two to three bottles of beer every day. He got his salary of $3,500 just one day before his arrest. The defendant said he did not keep any record of his salary. His boss kept the record. He immediately spent $3,000 on drugs.  The defendant took three doses of drugs per day. On 1 August 2018, the defendant took one shot in the morning, and one in the evening. He took the drugs at the ‘Mini Chung King’ Plaza. He used Ice bottle to consume Ice. He hid the Ice bottle in one of the toilet cubicles in the plaza. He did not keep any Ice bottle at home. When asked why the police cannot find any lighter on him, the defendant said he was not sure. At times, the defendant used his Octopus card to pay for things or food that he bought.

Analysis

15.It is the duty of the Prosecution to prove the case beyond reasonable doubt. The defendant has no duty to prove anything. It is noted that the defendant admitted possession of the dangerous drug for self-consumption, and that also means that the defendant knew the nature of the dangerous drug. The fact that the defendant admitted simple possession of the drugs would not cause any prejudice against the defendant in my analysis of the evidence so presented by the Prosecution as to whether the defendant was trafficking in the dangerous drugs so charged.

16.The facts of the case are straight forward. The defendant was intercepted and he was seen dropping the silver coloured foil onto the ground. It transpired that the foil contained two larger and one smaller plastic bags which contained dangerous drugs commonly known as Ice. The two larger bags contained a total of 13.4 grammes of crystalline solid while the smaller bag 0.15 gramme of a crystalline solid. The colour of the crystalline solid in the two larger bags is yellowish while that in the smaller bag whiter in colour. No contraband nor Hong Kong dollars was found on the defendant. The defendant has a mobile phone and an Octopus card plus some foreign currencies with him. There was no Ice bottle found on the defendant. No Ice bottle was found in the defendant’s residence. The defendant in the VRI categorically denied he knew anything about what was contained in the foil. The defendant suggested that he was waiting for one of his friends when he was arrested at the bike parking area.

17.The defendant elected to give evidence. He claimed that on the day of his arrest, he was off from work and went to the park to meet the drug supplier who gave him two larger bags and one smaller bag of Ice. He paid $3,000 for the drugs. The smaller bag of Ice is whiter in colour and the defendant believed the quality is better. He said the smaller bag was a sample for him to try. The defendant said he went to the area to get his bike to return home. The police officer said he observed the defendant wandering around there for about one to two minutes. The defendant in his VRI said he had no knowledge of the drugs so seized. He mentioned that he was looking for friends. However, when giving evidence in court, the defendant said he was about to unlock his bike to return home. The defendant said he lied a bit when he gave answers in the VRI.

18.I find the police officer who put the defendant under observation a credible witness. His evidence was not shattered under cross-examination. He saw the defendant looking around and acting furtively. Upon interception, the defendant dropped the silver coloured package foil onto the ground. The two resealable plastic bags containing a total of 13.4 grammes of crystalline while the smaller one contained just 0.15 gramme of crystalline. The defendant claimed that the smaller bag was given to him as a free sample. It is admitted that the drugs so seized worth more than $3,000 that the defendant said he paid for. Defence counsel at one stage disputed the street value suggested by the police but eventually accepted that the value of the drugs was about $7,200 odd (paragraph 10 of the Admitted Facts). The defendant talked about his monthly expenses and how he got his salary sometimes at regular intervals.

19.The defendant said he got $3,500 as part of his salary on 31 July and yet he paid $3,000 for the drugs the next day. In the VRI, the defendant said he earned about $12,000 to $15,000 per month. He took heroin and black hashish (cannabis resin). As a professional judge, I would disregard the defendant’s answer at entry 286. That answer should have been edited. The defendant said he can borrow money or even ask for salary in advance in order to show that he has the financial means to support his drug purchases. No Hong Kong dollars were found on the defendant except some KZT dollars, the Octopus card and $1 Renminbi (paragraph 3 of the Admitted Facts). No Ice bottle was found in the defendant’s residence. The police cannot find any lighter on the defendant either. The fact that the result of the defendant’s urine test on 4 August 2018 was positive to amphetamine, in my judgment, can only show that the defendant did take Ice before his arrest at about 8 pm on 1 August. It does not necessarily mean that the defendant could not be engaging in drugs trafficking activity. I do not accept the defendant as a credible witness. I do not accept the defence submission that possession of the two larger bags of Ice is consistent with the bulk purchase of drugs.

20.Although I do not believe the version put forward by the defendant, it is still the duty of the Prosecution to prove the case against the defendant.

21.The defendant admitted possession of the drugs in question. Given the observation of the officer at the scene and what was said by the defendant in the VRI, I am satisfied that the defendant at the material time was waiting for someone. The defendant now admitted possession of the drugs even though in the VRI he denied he had anything to do with the foil package and the drugs at all. The quantities of the two larger bags are much more than the one in smaller bag. No Ice bottles can be located. The value of the drugs was still more than his 15-day wages or salary, even though Defence counsel at one stage disputed about the estimated street value of the drugs so seized.

22.Taking all the circumstances into consideration, I am of the view that the only reasonable and irresistible inference is that the defendant was possessing the drugs for the purpose of trafficking. Accordingly, the defendant is convicted of the offence of trafficking in a dangerous drug.