HKSAR v. Bolante Ivy Joy Villanueva

DCCC 742/2019

[2020] HKDC 966

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 742 OF 2019

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REASONS FOR VERDICT

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1.The defendant faces a charge of "Trafficking in a dangerous drug" (Charge 1) and a charge of "Breach of condition of stay" (Charge 2).

2.She pleaded guilty to Charge 2.  Regarding Charge 1, the defendant pleaded guilty to "simple possession" but the prosecution decided to proceed with "trafficking".  This trial relates to Charge 1 only.

The Prosecution Case

3.About 8:00 p.m. on 14 March 2019, PC 19258 (PC1) and his team conducted an operation at Flat B4, 11^th Floor, Block B, Chung King Mansions, Nos.36-44 Nathan Road, Tsim Sha Tsui ("the Flat").

4.About 8:43 in the same evening, PC1 intercepted a Bangladeshi male surnamed Kibrea as he came out of the Flat.  A pink keychain (Exhibit P1) with 2 keys (Exhibits P1A and P1B) were found on Mr. Kibrea.  Using those keys, PC1 opened the main door of the Flat, which consisted of 5 sub-divided units or rooms.  PC1 and PC 12197 (PC2) escorted Mr. Kibrea into the Flat.  Upon entry, PC1 saw 2 Filipino females (one being the defendant) and a Chinese male coming out of Room 2.

5.PC1 searched the defendant's black handbag and found a green keychain (Exhibit P2) with 2 keys (Exhibits P2A and P2B); 2 mobile phones (Exhibits P3 and P4) and cash in the sum of $7,430 (Exhibit P5).  The defendant was the tenant of Room 5 in the Flat.

6.The Flat was searched pursuant to a search warrant.  As the Exhibits Officer, PC 18113 (PC3) tested the 2 keys found on the defendant.  One could open the door to Room 5; whereas the other could not open any door in the Flat.  PC3 also tested the 2 keys found on Mr. Kibrea.  They could respectively open the main door to the Flat and the door to Room 5.

7.PC3 searched Room 5 in the presence of Mr. Kibrea and the defendant.  Behind the white plastic cabinet placed at the foot of the bed, he found a yellow pouch (Exhibit P7) containing 4 transparent resealable plastic bags which contained a total of 11.86 grammes of a crystalline solid containing 11.69 grammes of methamphetamine hydrochloride (Exhibits P8 to P11).

8.In the late afternoon on 15 March 2019, a video recorded interview of the defendant was conducted.  The VCD, its transcript and the certified English translation are Exhibits P14, P14A and P14B.

9.The defence admitted the facts stated above.  The prosecution produced the expert report of Dr. Lau Fei Lung (PW1) on the daily consumption of "ICE" under section 65B of the Criminal Procedure Ordinance (Cap.221).  Only one witness, WSIP Wong Chi Man (PW2), was called to give evidence on the street value of "ICE" in March 2019.

The Defence Case

10.The defendant elected not to give evidence or call any witness. This is her right; I drew no adverse inference against her in this regard.

Assessment and Analysis of Evidence

11.The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.

12.The defendant has a clear record. I have directed myself on her good character accordingly.

13.The defence has practically admitted the entire prosecution case. Defence counsel Ms. Draycott, SC submitted that Mr. Kibrea had the key to the defendant's room. He tried to flee the Flat and was handcuffed[1]. The defendant could have easily shifted the blame to him, but she bravely admitted possession of the drugs found.

14.Regarding the defendant's financial ability, Ms. Draycott submitted that there is a ready market for freelance cleaning workers in Hong Kong. She argued that in reality, most people who hire part-time cleaners in Hong Kong do not ask for employment papers. In any event, although the defendant was an overstayer, she possessed a genuine Hong Kong Identity Card. Ms. Draycott further submitted that the urine sample collected from the defendant on 19 March 2019 (5 days after her arrest) was tested positive for "ICE", which proves that she was a user.

15.Ms. Draycott concluded that the defendant's claim that she possessed the "ICE" found in her room for self-consumption only is likely to be true. The prosecution is unable to rebut her claim beyond reasonable doubt. In other words, possession for the purpose of trafficking is not the only reasonable inference to be drawn.

16.It is not in dispute that as at 14 March 2019, the defendant had overstayed in Hong Kong for about 3.5 years. Prior to September 2015, she worked as a foreign domestic helper earning $4,200 per month[2]. The defendant claimed that she started living in Room 5 of the Flat since November 2018 by paying a daily rent of $200[3]. Regarding her income, she claimed that she would sometimes work as a cleaner[4].

17.The defendant admitted that the 4 bags of drug found in Room 5 were "ICE" and that they belonged to her; she would consume it sometimes[5]. She claimed that she purchased the drug at $2,000 in February 2019; she would take the drug when she felt unwell[6].

18.In respect of the defendant's financial ability, I would not speculate anything about the "black market" for freelance cleaners in Hong Kong. I would apply common sense. The defendant is not a legally employable person in Hong Kong. She may have a Hong Kong Identity Card, but hers does not bear the word "Permanent" or the "3 asterisks" (commonly knowns as "3 stars"). I accept that a "black market" for illegal

workers may well exist in Hong Kong, but I consider that the Government has publicized widely enough the importance of employers verifying the job seekers' eligibility for employment. As a juror, I do not accept that the defendant had the ability to maintain a stable monthly income.

19.Rent alone would cost the defendant $6,000 per month. Other basic needs such as food[7] and transportation[8] all cost money. The defendant also possessed 2 mobile phones, which she claimed she would use to access social media[9]. She must have had to pay some fees each month. As a juror, I question the defendant's ability to make her ends meet, needless to say the extra money to feed her allegedly "occasional" need for "ICE". Yet, she was able to save up over $7,000 in cash to send home to her daughter[10].

20.The defendant admitted that she separated the drug into 4 bags[11]. If she bought the "ICE" for self-consumption, why would she repackage the drug into 4 different bags of different quantities[12]? It involved extra work and served no purpose. When asked about the amount of each dosage she consumed, she was unable to tell[13].

21.According to PW1's report, for the majority of chronic users of "ICE", they typically consume 0.1 gramme to 0.5 gramme per day[14]. Ms. Draycott did not take issue with these figures. On this basis, the drug found in the defendant's room could last her between 23 and 116 days. Since the defendant claimed that she is not a regular user and would only consume "ICE" on a need basis[15], Exhibits P8 to P11 would certainly last her more than 23 days. She was asked why she bought such a large quantity, she said it would be difficult if there is no supply[16].

22.I have not overlooked PW2's evidence that in March 2019, the estimated retail value of the "ICE" found in this case was $6,523. I am aware that PW2's calculation is based on the price information of the purchase of much smaller quantities (i.e. 1 gramme or less). She accepted it is possible that if purchased in larger quantities, the price would be cheaper.

23.In my view, it matters not if the defendant purchased the "ICE" at $2,000 or $6,500. As a juror, I do not accept that she had the ability to earn a stable monthly income to finance her daily expenses which include rent, phone charges, occasional drugs and surplus savings by working as an

illegal freelance cleaner. I also reject her claim that the "ICE" found in her room was for her own consumption. If she purchased the drug solely for self-consumption, there was simply no need for her to repackage it into different bags of different quantities.

24.Based on the reasons stated above, I draw the irresistible inference that the defendant possessed Exhibits P8 to P11 for the purpose of unlawful trafficking; at least a substantial portion, if not entirely. I am aware that the defendant's urine sample was tested positive for "ICE". A drug user can be a trafficker as well; the 2 statuses are not mutually exclusive.

25.Based on the evidence before me, I am satisfied that the prosecution has proved beyond reasonable doubt all elements of the offence. I find the defendant guilty of Charge 1.