HKSAR v. Magar Dhurba Kumar

CACC 342/2019

[2020] HKCA 885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 342 OF 2019

(ON APPEAL FROM DCCC NO 967 OF 2018)

_______________

_______________

________________

J U D G M E N T

________________

Introduction

1.The applicant was charged with trafficking in a dangerous drug, namely 13.55 grammes of a crystalline solid containing 10.92 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded not guilty to the charge but indicated that he would plead guilty to possession of the drugs.  This plea was not accepted by the prosecution and the case proceeded to trial before District Court Judge Stanley Chan (the judge).  At the conclusion of the trial on 5 November 2019, the judge convicted the applicant of the charge and sentenced him to a term of imprisonment of 6 years and 3 months. 

2.On 29 November 2019, the applicant filed a notice of appeal for leave to appeal against his conviction.

The prosecution case

3.At about 8:20 pm on 1 August 2018, the applicant was intercepted by a police officer (PW1) outside the ground floor of No 15 Hong King Street, Yuen Long.  At the same time, the applicant dropped an item on the ground.  The police officer picked up the item and found it to be a piece of wrapping foil, which contained two resealable transparent plastic bags and one smaller resealable plastic bag.

4.The applicant was arrested by the police officer.  The contents of the three resealable bags seized were later analysed by the government chemist who certified that the two larger bags contained a total of 13.4 grammes of crystalline solid containing 10.8 grammes of Ice; and the smaller bag contained 0.15 gramme of a crystalline solid containing 0.12 gramme of Ice.

5.The applicant was taken to the Yuen Long police station where he was searched.  He was found to have on him one mobile telephone, an Octopus card, $1,700 in Kazakhstani Tenge (equivalent to about $36 Hong Kong currency) and $1 RMB. 

6.In a video record of interview, the applicant denied possession of the piece of foil and knowledge of what was contained in it.  He said he was standing at next to his bicycle at the bicycle parking area, looking for a friend, when he was arrested.[1] 

7.The applicant’s residence was later searched but nothing suspicious was found.

The defence case

8.It should be noted at the outset that the position of the applicant changed at trial.  He admitted that the drugs were in his possession at the time of his arrest but claimed that the drugs were for his own consumption.  The issue at trial therefore centered on whether the applicant had the drugs for his own use or for the purpose of trafficking.

9.Most of the prosecution case was agreed, and of particular relevance to the present application was paragraph 10 of the Admitted Facts, which read:

“At the time of the incident, the average retail price of methamphetamine per gram was HK$532. Accordingly if sold on a per gram basis the total value of the dangerous drugs seized would be HK$7,209.”[2]

10.The applicant elected to give evidence.  He admitted that he was in possession of the drugs, and that he lied in his video record of interview.  On the day of his arrest, he asked his supplier for $3,000 worth of Ice and was given the two larger bags of drugs.  The Ice in the two bags was yellow in colour, which the applicant believed was of poor quality.  By contrast, the Ice in the smaller bag was of white in colour, and it was given to him as a sample of “new stuff” and as compensation for the poor quality of the Ice in the other two bags.  After receiving the drugs, and as he was about to unlock his bicycle to go home, he was intercepted by the police.  He told the police that the drugs were for his own use.

11.However, in the applicant’s video record of interview, which referred to the police officer’s post record in his notebook of what the applicant said when he was arrested and cautioned, it is noted that the applicant did not make any response.[3]

12.The applicant testified that the price for half an ounce of good quality Ice was around $5,000 to $6,000 (half an ounce is about 14 grammes and the two larger bags were 13.4 grammes). The applicant worked as a construction worker, and on the day before his arrest, he had been paid his wages for 15 days work in the sum of $3,500.  All the Ice he had purchased was for his own consumption, and this would last for about 7 to 10 days.  He said he had been consuming Ice since 2008, using an Ice bottle.  He did not consume the Ice at home, but rather he would consume the Ice in “Mini Chung King” Plaza, where he hid the Ice bottle. 

13.In support of the applicant’s addiction to Ice, the defence also relied on the his positive urine test result for the presence of amphetamine which was conducted on 4 August 2019, three days after his arrest.

The reasons for verdict

14.The judge directed himself on the burden and standard of proof, and that the applicant’s admission of possession would not cause any prejudice against him in deciding whether he was trafficking in the drugs as alleged.[4] However, he noted that the applicant by admitting possession meant that he had knowledge of the Ice.

15.The judge accepted the evidence of PW1, who observed the applicant acting furtively before intercepting him.  Taking note of the admission that the drugs seized were worth $7,209 (thus more than the $3,000 which was the sum of money the applicant said he had paid for the drugs; and more than his wages for 15 days work); and that the police found no lighter on him or Ice bottle at his residence, the judge did not accept the applicant’s evidence and rejected the submission that possession of the drugs was consistent with a bulk purchase. He also held that the positive result of the urine test did not necessarily mean that the applicant could not be engaging in trafficking of the drugs.

16.On the basis of the police officer’s observation and what the applicant said in his video record of interview, the judge found that the applicant at the material time was waiting for someone at the scene.  He found that the only reasonable and irresistible inference was that the applicant possessed the drugs for the purpose of trafficking.

The ground of appeal

17.Mr Trevor Beel, for the applicant, advances one ground of appeal, complaining that the judge had failed to properly evaluate the evidence. 

18.Mr Beel submits that there was no evidence of the value of the drugs in question if they had been bought in bulk.  He points out that the admission in paragraph 10 of the Admitted Facts was made on the basis of selling the drugs per gramme.  He explains that the defence initially contested the prosecution’s valuation of the drugs, as it might be relied on to show that the applicant could not afford the drugs.  This was the subject of discussion with the judge, and after he indicated that he did not regard this as the prosecution’s purpose, the matter was resolved by paragraph 10.  Mr Beel submits that the judge did not properly take into account the nuance of this paragraph. 

19.When Mr Beel mentioned his objection about the relevance of the street value of the drugs, the judge stated: “I think that may be you’re reading too much into the position ... not necessarily about the affordability of a particular defendant”,[5] but he also said that “… under the VRI, the defendant mentioned about his earning … the court might infer some sort of unfavourable opinion about this – the financial status”;[6] and later “And I notice that … there is some – a vast difference or discrepancy between the street value given by the police and by the defendant … that if it’s purchased in bulk … the price is different”.[7]

20.Mr Beel refers to the applicant’s testimony that the price for half an ounce of good quality Ice was around $5,000 to $6,000.  It was submitted that the Ice in the two larger bags was of poor quality as it was yellowish in colour, and this was the reason the price was only $3,000. 

21.Mr Beel points to the applicant’s testimony that, on the day before his arrest, he had been paid $3,500 in wages, and submits that this was consistent with the fact that the applicant did not have any Hong Kong money upon arrest as he had just purchased the drugs. 

22.It was also pointed out by Mr Beel that the Ice in the smaller bag was clearly different from the Ice in the two larger bags.  He complains that the judge did not make any findings as to why there was a smaller bag.  He contends that the applicant’s testimony that the drugs in the smaller bag were a sample was a plausible explanation and possession of the drugs for the purpose of trafficking was not the only and irresistible inference that could be drawn .

23.Mr Beel also relies on the fact that there was no evidence that the quantity of drugs seized was beyond the usage of an addict; and that the applicant’s urine test after his arrest was positive for amphetamine.

24.Mr Beel submits that the judge did not properly take into account these matters but instead placed undue reliance on the value of the drugs being more than the applicant’s wages for 15 days.

The respondent’s submission

25.Ms Audrey Parwani, for the respondent, submits that the judge was aware of the initial dispute as to the value of the Ice, and that it was eventually resolved by paragraph 10 of the Admitted Facts.  The judge was bound to accept and consider this paragraph as conclusively proven.  While there was no evidence, apart from the applicant’s own assertion of the value of the Ice if purchased in bulk, the judge rejected his testimony of this being a bulk purchase taking into account a number of factors.  This included inconsistencies between the applicant’s testimony and his video record of interview (his initial denial of possession and knowledge; and that he was looking for a friend as opposed to being in the process of unlocking his bicycle to go home) and the lack of drug paraphernalia (a lighter and Ice bottle).  She submits that the applicant was not convicted only on the basis that he could not afford the Ice. 

26.As for the Ice in the two larger bags being of poorer quality than the smaller bag (said to be a sample of better quality Ice), Ms Parwani points out that, based on the government chemist’s findings, the purity of the Ice in the larger bags was in fact higher than the smaller bag (80.6% compared to 80%).  The judge found that all the drugs were in the applicant’s possession for the purpose of trafficking, and so nothing turned on the lack of any specific finding in relation to the smaller bag.

27.Ms Parwani submits that the judge was correct to conclude that the applicant’s positive urine test could only show that he took Ice before his arrest, and that this did not preclude a finding that he was involved in drug trafficking.

28.On the usage of Ice by a drug addict, Ms Parwani submits that the lack of evidence on this was neither here nor there.  The judge properly rejected the applicant’s evidence and found that he was waiting for someone before his arrest and that the only reasonable inference in all the circumstances was that he was involved in drug trafficking.

Discussion

29.The judge was clearly focused on the issue that Mr Beel now raises in this application, namely whether the applicant purchased the drugs in bulk at a discount price for his own consumption.

30.In oral submissions, Mr Beel crystallized his argument under the sole ground of appeal by submitting that the judge misunderstood and wrongly applied the admitted fact under paragraph 10 that the drugs if sold on a per gramme basis would be $7,209 when the drugs were purchased by the applicant on a bulk basis.

31.The only evidence that the drugs were purchased on a bulk basis came from the applicant which was rejected by the judge.  The applicant was little or no cash on him at the time of his arrest but in possession with drugs that had a street value of $7,209.  The judge fully appreciated that the admitted fact in paragraph 10 represented the retail value of the drugs if sold, on the streets in quantities of one gramme.

32.As pointed out by Mr Beel there was no evidence as to the costs of drugs if purchased in bulk, except from the applicant, whose evidence had been rejected by the judge.  It still remained that the applicant had in his possession drugs with a street value of $7,209 which the judge noted.

33.Having rejected the applicant’s evidence, the judge went on to address the evidence that proved the case against the applicant.  He found that the applicant was in possession of the drugs in a public place behaving suspiciously as described by the police officer, looking around and acting furtively.  He noted that the applicant had stated in his video record of interview that he had no knowledge of the drugs and that he was looking out for a friends.  Whereas in his testimony, he said he was about to unlock his bicycle to return home.  He dismissed the suggestion that the drugs were for the applicant’s own consumption, noting how they were packaged and the lack of any items or equipment for consumption of the drugs, such as a lighter and Ice bottle.  The judge noted that the value of the drugs was more than his wages for 15 days work.

34.I agree with the submissions of Ms Parwani that the judge has properly considered the evidence and addressed the relevant issues in making his findings of fact and coming to the conclusion that the applicant was guilty of the charge.

Conclusion

35.Having considered the issue raised by this sole ground of appeal, I am not satisfied that it is reasonably arguable and accordingly leave is refused.

36.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Audrey Parwani, SPP of the Department of Justice, for the respondent

Mr Trevor Beel, instructed by Krishnan & Tang, for the applicant

[1] Appeal Bundle (AB), at 70-104.

[2] AB, 9.

[3] AB, 83-86, Counters 143-149.

[4] AB, 10-19.

[5] AB, 110N-O.

[6] AB, 110Q-S.

[7] AB, 111H-K.