HKSAR v. Ma So Heung

DCCC 330/2020

[2021] HKDC 426

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 330 OF 2020

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REASONS FOR VERDICT

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The defendant faces a charge of "Trafficking in a dangerous drug". She pleaded guilty to "simple possession" but the prosecution decided to proceed with "trafficking".

The Prosecution Case

2.About 6:05 p.m. on 6 March 2020, outside an amusement game centre (named "Shun Cheong") located near the junction of Cheung Wong Road and Mongkok Road, WSgt 57008 searched the defendant.  The following items were found in the right front pocket of her denim shorts :-

A piece of white tissue (Exhibit P5) which contained:

(i)  a 5 cm x 4 cm blue edge transparent resealable plastic bag (Exhibit P4) which contained:

(a)  2 transparent resealable plastic bags (red edge; 4 cm x 3 cm) which contained a total of 1.28 grammes of a crystalline solid containing 1.26 grammes of methamphetamine hydrochloride (collectively Exhibit P1);

(b)  2 transparent resealable plastic bags (blue edge; 4 cm x 3 cm) which contained a total of 4.27 grammes of a crystalline solid containing 4.21 grammes of methamphetamine hydrochloride (collectively Exhibit P2); and

(ii)  2 empty 5 cm x 4 cm blue edge transparent resealable plastic bags (collectively Exhibit P3).

3.The waist bag carried by the defendant was also searched.  It contained banknotes of Hong Kong currency in various denominations which added up to a total sum of $10,440.

4.The defendant was arrested for "simple possession" by PC 22974. Under caution, she said "The 'ice' is for my own consumption[1]." In her 12-minute video recorded interview which took place later on in the same evening, the defendant elected not to answer any questions[2].

5.The defence admitted all the facts stated above.  No live witnesses were called by the prosecution.  Under section 65B of the Criminal Procedure Ordinance (Cap.221), the prosecution produced the expert reports of (i) DSIP Wong Ka-chun on the street value of "ICE" in March 2020 (Exhibit P16); and (ii) Dr. Tse Man-li on the daily consumption of "ICE" (Exhibit P17).

The Defence Case

6.The defendant elected to give evidence but did not call any defence witness.

7.The defendant claimed that she has been taking "ICE" for 10 odd years. She voluntarily disclosed her criminal records to prove her relevant convictions and DATC Orders[3].

8.The defendant explained that she had just collected the "ICE" at Shun Cheong before she was stopped and searched. She purchased the drug in question at $2,500 for her own consumption. She immediately sat down on a stool when she saw police officers. She also claimed that Exhibits P1 and P2 could last her for about 2 weeks.

9.Regarding the cash found in her waist bag, the defendant said it was partly her own money and partly revenue of her party room business. She claimed that she and her business partner were operating a party room located at Prince Edward Road West.

Assessment and Analysis of Evidence

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

11.The defendant voluntarily disclosed her criminal record. I drew no adverse inference against her in this regard.

12.According to Dr. Tse's report, for typical "ICE" abusers in Hong Kong who have developed tolerance to the drug, their average daily consumption ranges from 0.1 to 0.5 gramme[4]. Defence counsel Mr. Boyton did not take issue with these figures. On this basis, the drug found in the defendant's shorts pocket could last her between 11 and 55 days. The defendant claimed that Exhibits P1 and P2 could last her for about 2 weeks, which seems to be a reasonable assertion.

13.According to DSIP Wong's report, in March 2020, the estimated retail value of the "ICE" found in this case was $3,491[5]. His calculation is based on the price information of the purchase of narcotics of 5 grammes and below[6]. The defendant claimed that she purchased Exhibits P1 and P2 at $2,500. Dangerous drugs are illegal commodities, it is common sense that they have their own market and that their prices (be it retail or wholesale) are determined by many factors unknown to the public. Unlike stocks, bonds or precious metals, the so-called "market prices" of dangerous drugs are certainly more arbitrary. As a juror, I am unable to say that the alleged purchase price of Exhibits P1 and P2 was unreasonably low.

14.In the present case, there is no evidence of the defendant handing over drugs to others or receiving money from others. Looking at the quantity and packaging of Exhibits P1 and P2 alone, I simply cannot rule out the possibility of self-consumption. I note that 2 empty blue edge transparent resealable plastic bags (Exhibit P3) were wrapped in the same piece of tissue paper (Exhibit P5) together with the 2 packets of "ICE". In my view, it does not assist the prosecution or defence. I accept that it was odd for the seller to have thrown in 2 empty plastic bags on the house when selling drugs to the defendant, if she was in fact buying as she has claimed. On the other hand, I am quite certain that the presence of Exhibit P3 does not support an inference of trafficking. It makes no sense for the defendant, if she were a trafficker, to divide or repackage Exhibits P1 and P2 into smaller portions at Shun Cheong (which is a public place) and without any tools (such as spoons and electronic scales).

15.Regarding the cash carried by the defendant, I do find her explanation doubtful. The COVID-19 pandemic was at its peak (or one of its peaks) in March 2020. Even if the defendant was a proprietor of a party room, it is highly doubtful that her party room could be in operation legally at that time. Not to mention that she could not even state the full address of her party room or produce any relevant documents to show the existence of such a business entity. As a juror, I do not find the defendant's account for her possession of over $10,000 cash credible.

16.Mr. Boyton submitted that even if the defendant's evidence is completely rejected by the court, the prosecution still lacks sufficient evidence to support an irresistible inference of trafficking. I agree with him.

17.As I have already explained, based on the quantity and packaging of Exhibits P1 and P2 as well as the defendant's addiction history, I cannot rule out the possibility of self-consumption. The 2 empty blue edge transparent resealable plastic bags are neither here nor there.

18.In relation to the cash, even if I reject the defendant's explanation, there could be many other reasons for her possession of over $10,000. Revenue of selling drugs is a possibility, but it is not such a significant sum that trafficking must be the only reasonable inference.

19.Based on the reasons stated above, I am not satisfied that the prosecution has proved beyond reasonable doubt all elements of the offence. Hence, I find the defendant not guilty of "trafficking". On the other hand, based on her admission of possessing Exhibits P1 and P2 and all the evidence before me, I find the defendant guilty of "possession".