HKSAR v KO WAI SHING (D1)

DCCC 416/2019

[2020] HKDC 56

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 416 OF 2019

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REASONS FOR VERDICT

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1.  In these proceedings Mr Ko Wai Shing (“D1”) and Mr Chan Hon Lun (“D2”), were jointly charged with a total of four offences, three of which are related to dangerous drugs:-

(i) “Trafficking in a dangerous drug”, its subject matter was 2,910 millilitres of a liquid containing 3.26 kilos of gamma-butyrolactone (GBL);

(ii) “Possession of dangerous drug”, its subject matter was 34 millilitre of a liquid containing 36.6 grammes of GBL and 34 millilitres of liquid containing 0.08 grammes of methamphetamine;

(iii) “Possession of apparatus fit and intended for inhalation or injection of a dangerous drug”, involving one inhaling device, seven tubes, two droppers, three straws and two syringes;

(iv) “Possession of Part I poison”, the subject matter being 20 tablets containing sildenafil.

2.  All these offences took place on 1 June 2018 at Room B, Flat F, 10th Floor, Leung Chau Building, No 78 Un Chau Street, Sham Shui Po, Kowloon (hereinafter referred to as “the address”). 

3.  Both defendants pleaded not guilty to all the counts.  At the end of the trial the prosecution fairly conceded that there had not been sufficient evidence against D2 in respect of Charge 1.  On this basis, Charge 1 against D2 is dismissed.

Undisputed facts

4.  Much of the background information leading to the prosecution was not in dispute and had been admitted by both parties under Section 65C of the Criminal Procedure Ordinance, Cap 221 (see P33).

5.  The followings are what I deduced from the undisputed facts to be essential to understanding my findings:-

(i) on 31 May 2018, Custom Officers intercepted a parcel from Lithuania at the Airmail Centre of Hong Kong International Airport. It contained three bottles of liquid, with total volume of 2.91 litres containing 3.26 kilogrammes of GBL (subject matter of Charge 1), a dangerous drug as listed in schedule I of the Dangerous Drugs Ordinance.

(ii) the recipient of the parcel was one “Clement Ko” and the address was “Room F, 10th Floor, Leung Chau Building, Sham Shui Po”. The contact phone number of the recipient was also enclosed;

(iii) On 1 June 2018, Customs Officers carried out a controlled delivery of the parcel to the address at 10 am. Ko Wai Shing (D1) answered the main door stated he was the person named in the Delivery Note (P24). He also produced his own ID card to confirm his identity. He signed on the Delivery Note to acknowledge receipt of the parcel. The contact phone number of the recipient was also confirmed to be the same as that of D1’s cell phone;

(iv) after D1 revealed that he was tenant to Unit B of the address, Custom officers knocked at the door to the unit. Chan Hon Lun (D2) was inside the room and answered the door;

(v) Unit B had been rented under D1’s name since 1st November 2014 (see P29 and 29A). Both defendants resided therein at the material time;

(vi) Custom officers found and seized the following items in Unit B:-

On a desk next to the bed:

· an inhaling device (P4) consisting of a bottle with 34 millilitres of liquid, of which 0.08 grammes were methamphetamine (P5). There was also a plastic straw inserted into the device and a glass tube with a bulb-shaped end;

· a plastic box containing three glass tubes each with a bulb-shaped ends (P6 to 8), two plastic droppers (P9 to 10), a rubber tube (P11) and a plastic cap (P12).

In a drawer of the bedside cabinet:

· two bottles containing a total 34 millilitres of liquid containing 36.6 grammes of GBL (P13 to 14);

· two small bottles containing 20 tablets (P15A-B) containing sildenafil (a Part I poison), three plastic straws (P16 to 18); a syringe without needle (P20); a syringe attached with a hypodermic needle and a needle cap (P21); two glass tubes with bulb-shaped end (P22 to 23).

D1’s cautioned statement (P25 to 25A)

6.  The defence took no issue on the voluntariness and the accuracy of the statement. 

· Under caution, D1 admitted that D2 was his boyfriend. They had been living in Unit B for two years.

· As to the subject matter of Charge 1, D1 stated he ordered it online for about HK$1,000 for “cleaning wheel rims, wipe and clean dirty things”.

· As to the subject matter of Charge 3 (P4, the inhaling device) and the liquid containing methamphetamine therein (P5, subject matter of Charge 2), D1 admitted that P4 was used for consuming ‘Ice’ and it belonged to his boyfriend, D2.

· As to P13 to 14 (bottles with GHB), D1 stated that they were cleaning agents used to clean vehicles.

· As to the contents of the plastic box (P6 to 12), D1 stated that they belonged to D2. They were together with the “Ice kettle (P4) tools for consuming ‘Ice’.

· As to the two bottles of blue pills (P15A-B), D1 admitted that they were sexual enhancement drugs to be used by himself and his boyfriend, D2.

D1’s admissions

7.  In respect of Charge 1, D1 in effect admitted to have imported the GBL but stated that he had intended to use it as a cleaning agent.  In respect of the two bottles of GBL found in the drawers of the Unit B, D1 admitted that he had possession of the same but stated that it was used as a cleaning agent for his car cleaning business.

8.  As to the contents of the plastic box P6 to 12 (part of the subject matter of Charge 3) and P4 (the ice kettle), D1 stated that he knew what they were and what the purpose of the same, but they stated that they did not belong to him but to D2.

D2’s cautioned statement (P31 to 31A)

9.  What D2 said under caution was not in dispute.  His record had been produced without objection from the defence.

10.  As to the subject matter of Charge 1 (GBL), D2 stated that he had asked D1 to buy it for “snorting” and that he knew it was “Popper”.  He also confirmed that D1 was his boyfriend and they were living together. 

11.  As to the subject matters of the other three counts, D2 denied knowledge of their nature.

Live witness

12.  The prosecution called three other live witnesses:-

(i) PW1 (CO15150) was the exhibit officer. She had the custody of the parcel containing P1 to 3 when the same was intercepted. She drew a sketch indicating the positions where various items were seized in Unit B (P26 and 26A). She also confirmed that the unit consisted of one double bed.

(ii) PW2 (CO06143) was the arresting officer of D1.

(iii) PW3 (CO15107) arrested D2.

13.  The substance of what all the three officers said had not been challenged under cross-examination and I accept their evidence. 

Expert witness

14.  Dr Chan Chi Keung (PW4) was called as an expert on clinical toxicology. His status as an expert was not challenged and I accept his evidence as an expert.  He produced a statement (P34) and augmented the same by giving more detailed explanations. 

15.  PW4 explained that GBL is a solvent and re-agent used in the chemistry industry either as an intermediate for manufacturing another chemical or as a cleaning agent.  GBL is also a pro-drug to gamma hydroxybutyric acid (GHB), which after ingestion by human beings would be converted into GHB, commonly known as “date rape drug”.  Depending on the dosage and the metabolism of the individuals, GHB would cause the following symptoms:-

· confusion;

· euphoria;

· memory loss;

· drowsiness;

· deep coma;

· respiratory depression;

· apnoea;

· cerebral hypoxia.

16.  The confusion and euphoria associated with GBL use increase the chance of risky behaviour and accidental injuries, similar to the effect of alcoholic intoxication.  The victim also tends to suffer anterograde amnesia, making it difficult for him or her to recall events precipitating its ingestion or sexual assault (if any) inflicted.

17.  GBL and GHB are indistinguishable in their clinical effects.  They had been used in criminal settings for drug-facilitated assault.  GBL had been used as a recreational drug but there is a narrow safety margin between recreational dosage and poison dosage.  GBL can be used together with other drugs of abuse, over-dosage of which would lead to severe poisoning and death.

18.  GBL and GHB had been also reported to be in high usage amongst homosexual men.  Based on existing studies, a dosage greater than 2.4 gramme could cause deep coma and could be potentially lethal for a 50-kilogramme-weight man.

19.  There is no data to gauge its prevalence in Hong Kong or average dosage for an abuser.  Since GBL could last for hours, a dosage of 1.13 gramme GBL per day is sufficient for a normal GBL abuser.  Based on average dosage of 1.13 gramme, the quantity found in the Charge 1 (that is, 3.29 kilogrammes) represents 2,917 days of usage. 

20.  Under cross-examination by counsel for D1, PW4 conceded that this study was conducted outside Hong Kong and therefore it is difficult to say how the characteristic of the local population would affect such estimates.  Furthermore, a regular abuser would develop resistance to the drug and it is difficult to say what a regular abuser’s average dosage might be.

21.  PW4 was also asked by the undersigned about the use of ‘Popper’: it is an alkyl nitrite which, once inhaled could relax the anal sphincter and had been used to facilitate anal intercourse.  It is therefore a totally different drug its propensities and method of consumption are different from alkyl nitrite.  The prosecution agreed that alkyl nitrite nor a dangerous drug or Part 1 Poison.

22.  The website from which D1 purchased the GBL indeed recommended the same to be used for ‘legal and industrial usage only’, such as ‘research and development, paint and rust remover, and an additive for paint stripper’ (see P32, the website printout of Top Cleaner).

23.  D2 admitted to have asked D1 to order the GBL, to be used as ‘Popper’, which is a different chemical not listed as a dangerous drug.  Their recreational usages are different.  GBL is consumed by ingestion while ‘Popper’ is to be inhaled.  Therefore, the evidence against D2 is not sufficient to prove that he has aware of the substance D1 had actually ordered.  There is no evidence to support the content that D2 was aware of the nature of the dangerous drug found: see HKSAR v Chui Chi Wai & Anor, CACC 338/1998, [1999] 3 HKLRD 841.

24.  On this basis, the prosecution conceded that there was no evidence against D2 for Charge 1 and it was therefore dismissed.

Discussions

25.  This is a criminal prosecution.  The prosecution has a duty to prove all the elements of each charge against each defendant individually beyond all reasonable doubt before this court could convict.

26.  In respect of Charges 2 to 4, although the defendants are jointly charged, whatever guilt this court might be found against one defendant cannot be attributed to another.  So the trial in effect is equivalent to five separate trials and the court ought to consider the evidence against each count for each defendant separately.

27.  At the end of the prosecution’s case, both defendants elected not to give evidence.  They also elected not to adduce evidence in their defence. They had exercised their right to silence.  No adverse inference would be drawn against them.  It did not affect in any way the burden of proof was bestowed on the prosecution.

Charge 1

28.  The 1st defendant is charged with trafficking the GBL in Hong Kong. Section 2 of the Dangerous Drugs Ordinance defines trafficking as “importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug or possessing the dangerous drug for the purpose of trafficking”.

29.  D1 admitted he knew of the content of the parcel and that he was instrumental in arranging for the same to be shipped to Hong Kong.  The chemical composition of the GBL had been clearly spelt out at the website advertising for its sale. 

30.  There is no room for dispute that D1 had imported into Hong Kong the GBL, knowing its content, and therefore such act falls into the definition of trafficking in section 2 of the Dangerous Drugs Ordinance.

Mens rea

31.  The next question to be considered is the D1’s mens rea.  This court accepts that prosecution must provide evidence to show that D1 knew that the chemical he imported to Hong Kong as being the nature of a dangerous drug.  On this point, the prosecution sought to rely on the circumstances of the case and also what he said under caution. 

32.  What the defendant said under caution is a mixed statement, in that he only admitted to have been instrumental in the importation of the GBL but contended they were to be used for an innocent purpose. 

33.  I bear in mind the rules of considering what the defendant said under caution in a criminal trial: whatever is said outside of this court is generally considered to be hearsay and could not be admissible, subject to a few exceptions, one of which being if what he said outside the court amounts to an admission of guilt.  What he denied outside of this court will be considered self-serving and therefore, strictly speaking, not admissible. 

34.  However, in considering the statements containing both exculpatory and inculpatory matters, the court would consider the whole of the circumstances, including the whole of what he said under caution, in order to consider the weight to be given to the inculpatory part of what he said.

35.  Basically, D1 contended that the GBL was to be used as a cleaning agent.  There was no other evidence why the GBL was needed specifically for what the defendant intended and why was GBL needed instead of other legal cleaning agents freely available in a hardware store in Hong Kong, and why would anyone spend about $1,000 to place an order for the substance to be shipped from Lithuania for industrial use.

36.  In addition, he had two small bottles of GBL inside his room.  They were found inside the drawer in a cabinet next to his bed and, if that was for industrial use, why would it be found in his bedroom? 

37.  I found this exculpatory part of his statement so unrealistic that I cannot place any weight on them.  Nor can I find any part of his statement raise of any reasonable doubt to his favour.

38.  Under the circumstances, I found that the only possible inference was he knew that the GBL was some kind of dangerous drug and D1 had imported it to Hong Kong.

39.  In respect of the subject matter of Charge 2 and 3, D1 admitted to know of the existence and the nature but claimed that they belonged to his boyfriend, D2. 

40.  In respect of Charge 4, he admitted that they were for sexual enhancement.

41.  The question to be determined is whether he was in possession of the apparatus, the dangerous drug, as well as the Part I poison.

On possession

42.  Possession itself is not defined in the ordinance, but a lot of case law had been evolved to explain this concept.  In essence, possession involved custody and control, and ownership is not an essential element.  Physical control was in the sense of the ability to use it, as may be desired, within the parameters of practicality and the law, and to exclude others, and of the intention to exercise such control. 

43.  Once possession is proved, the ability and intention to retain them can be readily inferred and, to explain it simply, a person is in possession of something if he has knowledge of its presence and has some control over it: see the discussion and summary of the law at paragraph 29 to 39 of Archbold Hong Kong 2019.

44.  The mere contention that the items were his boyfriend’s is neither here nor there, as ownership is not an essential element in possession.  Even if I were to accept D1’s contention that those items (is the dangerous drugs, the apparatus, the Part I poisons) did not belong to him, the facts are quite clear:  he knew of their presence, he knew of their nature and he lived in the same small unit.  The only logical conclusion therefore is that he had the ability to control and use them as he desired. 

45.  Therefore, I found D1 guilty of Charges 1, 2, 3 and 4. 

46.  In respect of the case against D2, there was no admission of knowledge on possessed his part. 

47.  The evidence is highly suspicious.  He had been living with D1 in that flat for over two years.  They were in a relationship.  The room was small. But I cannot ignore the fact that mere presence cannot indicate that he knew of the existence of those items, less that he had control over them.

48.  Therefore, in the absence of further evidence, I would have to give the 2nd defendant, albeit reluctantly, the benefit of the doubt and acquit him of Charges 2, 3 and 4.