HKSAR v. Yun Jungmin

DCCC 26/2020

[2020] HKDC 1168

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 26 OF 2020

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RULING

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1.Defendant pleads guilty to one count of trafficking in dangerous drugs. He pleads guilty on the basis that he had the drugs specified in the charge with him when he departed Hong Kong for Macau. In law, that was trafficking because Defendant was taking the drugs out of Hong Kong.

2.In mitigation, Defence Counsel says Defendant had those drugs purely for his own use.  Prosecutor does not accept that, so a Newton hearing is held to decide on the issue. 

Newton hearing

3.Prosecutor relies on the Admitted Facts, Exhibit P5.  According to those facts, Defendant was intercepted by Customs and Excise officers at the Customs Departure Hall of the Hong Kong-Macau Ferry Terminal in Sheung Wan.  The officers found in Defendant’s bag one plastic bag of 35 Ecstasy tablets, Exhibit P1; one small container with 50 Ecstasy tablets, P2; one plastic bag containing two smaller bags of herbal cannabis, P3; and one plastic bag containing seven smaller bags of ‘Ice’, P4.

4.The 85 Ecstasy tablets contained 17.81 grammes of 3,4-methylenedioxymethamphetamine. The herbal cannabis weighed 8.89 grammes and the ‘Ice’ was 5.45 grammes of a crystalline solid containing 5.37 grammes of methamphetamine hydrochloride.

5.Under caution, Defendant told the investigators that he bought the drugs from a black guy in Tsim Sha Tsui “for happy”.  He paid $5,000 for them.

6.Defendant had a Hong Kong-Macau ferry ticket with him.  The ferry was scheduled to leave Hong Kong at 10 pm that night.  Defendant had arrived in Hong Kong at 7.40 pm earlier that day by ferry from Macau.

7.When Defendant was arrested, he had with him a mobile phone and some foreign currencies.

8.It is said the estimated street value of all the drugs in question was around HK$10,800.  However, there is no individual calculation for each component.

9.Three days after his arrest, Defendant’s urine was tested in the Correctional Services Department.  His urine showed some reaction to the respective tests of amphetamine, benzodiazepine, cannabis, cocaine and opiate. The respective readings were 917, 714, 677, 713 and 739.  Since those readings did not pass the 1,000 benchmark in each case, Defendant’s urine was reported as being negative to the various drug tests.

Defendant’s evidence

10.Defendant elects to give evidence in the Newton hearing.

11.Defendant is aged 39 now.  He is a Korean national.

12.Defendant says he was a luxury car salesman in Korea, earning commission and salary.  The income was not fixed, but on average he earned around the equivalent of HK$70,000 each month.

13.Defendant says he had taken dangerous drugs for about a year.  At first, he consumed Ecstasy. Later, he also took ‘Ice’.  He says he took drugs less frequently on working days.  During the weekends, he would consume more.  The consumption was not regular or fixed.  He says he would take about five Ecstasy tablets on one occasion.  He says that the ‘Ice’ in question would be sufficient for his use on seven to ten occasions.  Defendant says he had not taken cannabis before, but he bought cannabis this time because he heard that cannabis could help sleeping.

14.Defendant says that in Korea a friend would supply drugs to him.  He himself had come to Hong Kong several times and had bought drugs from the same broker on two previous occasions.  The broker was introduced to him by his friend.

15.Defendant says this time he paid HK$5,000 for the Ecstasy, ‘Ice’ and cannabis.  The drugs here were cheaper than in Korea.

16.Defendant says he had not changed the packaging of the drugs.  The supplier had also given him a resealable bag with three smaller bags inside.

17.Defendant says the drugs were for his own use.  He would not share them with others.  He arrived alone in Macau on 26 August 2019 for sightseeing.  On 28 August, he came to Hong Kong to shop at the Peninsula Hotel and to buy dangerous drugs here.

18.Defendant says he had not taken any dangerous drugs for two weeks prior to his going to Macau.  The reason is that he had no drugs to consume then.

Final submission

Prosecution

19.Prosecutor points out that Defendant in his antecedent statement told the police his monthly income was equivalent to HK$20,000, while in court he says he earned on average HK$70,000 a month.

20.Prosecutor refers to Defendant’s urine tests where the reaction figures to various drugs were all below the positive benchmark.  She notes that Defendant has an explanation for this; ie he had not taken any drugs prior to his going to Macau.  Prosecutor says she is prepared to accept Defendant was a user of Ecstasy and ‘Ice’ but certainly not cannabis.  Yet, Defendant had cannabis as one of the three drugs in his possession when he was caught.

21.Prosecutor submits that the quantities and packaging of the drugs in question suggest Defendant had the drugs not entirely for his own use.  So it was another aspect of trafficking, apart from the fact Defendant was taking the drugs out of Hong Kong.

Defence

22.Defence Counsel says Defendant has demonstrated himself to be a forthcoming and reliable witness.

23.Counsel says Defendant has a decent job and income which fluctuated, but was still decent.  His bank account, as revealed in photo 5 of D-1, showed that Defendant was financially comfortable.

24.Counsel says Defendant paid around HK$7,000 for his sightseeing trip from Korea to Macau.  During that period, he came to Hong Kong to buy some dangerous drugs for only HK$5,000.  Counsel says it makes no commercial sense for one to say Defendant was trafficking in such situation.

25.Counsel says Defendant has testified that he took five Ecstasy tablets on each occasion.  So the 85 tablets in question could be used by him on 17 occasions.  The ‘Ice’ could be used by him on seven to ten occasions.  And the cannabis was bought by Defendant for the first time to help his sleep.

26.Defendant says the drugs in question could last for his use for one to three months.  Counsel says this long period only suggests that Defendant was not a regular user.

27.Counsel says Defendant has explained in his evidence that he had not taken drugs for more than two weeks prior to the urine test in the Correctional Services Department.  That explains why the test results were not strong.

28.Counsel says the three drugs in question were not of such quantities and packaging to suggest Defendant had them for trafficking rather than for his own use.

Ruling

29.Defendant had three kinds of dangerous drugs in his possession when he was in the course of leaving Hong Kong for Macau.

30.Defendant says he went from Korea to Macau for sightseeing.  During that period, he came to Hong Kong briefly on 28 August 2019 for shopping and to buy dangerous drugs in Tsim Sha Tsui.  He says he had no drugs to take for two weeks prior to the overseas trip.  He knew drugs here were cheaper than in Korea.

31.Defendant was tested for various drugs in the Correctional Services Department three days after his arrest.  The drug contents were not high enough to reach the benchmark for positive classification.  However, there were some readings for each kind.  Actually, the amphetamine reading was 917, almost reaching the 1,000 benchmark for positive test.

32.Prosecutor failed to rebut Defendant had a decent job and income in Korea.  I agree with Defence Counsel’s submission that there is no commercial sense to say Defendant spent $7,000 for his overseas trip to buy only $5,000 of drugs in Hong Kong for the purpose of trafficking.

33.The three drugs in question, individually or collectively, were indeed not of such quantities and packaging that Defendant could not have them for his own use.  Prosecution failed to rebut Defendant’s saying that the three drugs were all for his own use.

34.Defendant had just bought the drugs in question in Hong Kong. Then he was returning to Macau.  He was thus in the course of exporting the drugs out of Hong Kong. In law, that was already trafficking in dangerous drugs to which Defendant has pleaded guilty.