HKSAR v. Xiang Zhentie

DCCC 713/2022

[2023] HKDC 800

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 713 OF 2022

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REASONS FOR VERDICT

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1.The defendant pleads not guilty to a single charge of trafficking in a dangerous drug. He is willing to plead guilty to possession but that had been rejected by the prosecution.

The prosecution case

2.At 0001 hours on 29^th August, 2017, a black private car stopped for a red traffic light near No 8 Yee On Street, Kwan Tong, the police officers who had followed the vehicle took this opportunity to approach the 2 occupants of the car.

3.Sgt Lee showed the defendant his police ID and asked the defendant to get off the front passenger seat, but the defendant did not comply and had to be forcibly pulled out of the car by Sgt Lee and DPC10563 (“PW1”).  When the defendant was taken to the road side, he immediately dropped a black hand bang and a cigarette packet he was holding on the ground, PW1 retrieved the items and found nothing suspicious.

4.At 0003 hours, the defendant was frisked by PW1, a transparent resalable bag containing 6.49 g of a solid containing 6.08 g of cocaine was found in the right front pocket of the defendant’s shorts.  The defendant was shown the transparent bag and a struggle ensued.  The defendant was arrested for the offence of possession of dangerous drug, under caution, the defendant replied “it has nothing to do with me”.

5.Between 0355 and 0437 hours on 29^th August 2017, with the consent of the defendant, a house search was conducted at his residence by PW1, as a result, 1 electronic scale was found inside a paper bag (see P-4, photos 24-26 a paper bag containing the scale) and an another electronic scale was found inside a transparent plastic box with a blue cover. (see P-4, photos 25 and 29, a transparent plastic box with a blue cover containing the scale) PW1 said the 2 electronic scales were functioning properly. (P4- photos 27 and 33)

6.A black plastic bag containing 2 transparent bags each containing a quantity of small transparent resalable plastic bags (86 and 67 bags respectively) were found inside the same transparent plastic box with a blue cover. (see P-4 photos 29-30)

7.In August 2017, the drugs could have been sold to drug abusers at street level for HK$8,482.42.

The video record of interview

8.The defendant basically refused to answer most of the questions put to him, the ones that he did answer were not of any real significance.

The defence case

9.The defendant does not dispute he was in possession of the drugs in question.  He said he bought the drugs for self-consumption at about 5:00 pm on 28^th August 2017 from a person called Kit Chai, after getting the drugs, he was picked up by his friend in a car to have meal together.  He agreed just after midnight, he was stopped by police in his friend’s car, upon search drug was found on him.

10.He further stated that the transparent resalable bags found at his residence, he would put the dangerous drugs into the small bags so he could bring the drugs to work for his own consumption.

11.As to the scales, the one in the paper bag was not functioning properly, the other placed in the transparent plastic box was in working order, the electronic scales were used to weight the amount of drugs he consumed each time so he wouldn’t consume too much.

Analysis

12.I bear in mind the burden of proof is on the prosecution throughout, I was told during the course of the defendant giving evidence, he had been convicted of possession of dangerous drugs before, no adverse inference would be drawn against him.

13.I reject the evidence of the defendant, I find his evidence is wholly incredible and contrary to common sense.

14.For instance, the defendant said he bought the drugs at around 5:00 pm in Cheung Sha Wan, after getting the drugs he was picked up by his friend in a car in Cheung Sha Wan so to have a meal together.  The trouble is why would he risk being caught by the police but not taking the drugs home when his residence was in the same area.  When asked in cross examination he agreed he could have easily brought the drugs back home, but for the sake of convenience, he decided to carry with him the drugs and didn’t think he would get caught when he knew by carrying those drugs, there was a higher risk of being discovered.  It is totally illogical not to spend a few moments to take home the drugs but spent hours on the street. (he was stopped by the police just after midnight, some 7 hours after he bought the drugs)

15.The defendant did explain why he had the transparent resealable bags at home, he would put the drugs into a bag so that he could take it to his work place for his own consumption.  The defendant said he took drugs 3 to 4 times a week, each time he would consume 0.5 to 0.6 grams.  If he only took drugs a few times a week, it wasn’t necessary for him to bring drugs to his workplace for his consumption, why couldn’t he wait till he got home, otherwise he would have exposed himself to a greater risk of being discovered while going to work.  Besides, he said he was working as a construction worker for fire hose facilities, by consuming drugs at his workplace, he again further exposed himself the risk of being discovered by his colleagues while he was taking drugs, that could lead to reporting the matter to the police.  Why took those risks when it was plainly unnecessary.

16.The defendant also told the court he used the electronic scale to weight the drugs he consumed, there was 2 scales, only the one in the transparent plastic box was functioning properly.  When asked why he had to hide the electronic scale in the transparent plastic box, he said he was worried his family members would see it.  One might wonder why then he just put the other electronic scale inside a paper bag where it was easily visible to others.

17.Moreover, the defendant was asked why didn’t he throw away the broken electronic scale placed inside the paper bag, he said he just had not thought about it.  If he was worried his family members seeing the scale, one would have thought that when the scale was broken, the natural thing to do was to dispose of it straight away rather than keeping it.

18.It’s obvious the defendant is lying.  Having rejected the evidence of the defendant, it’s still for the prosecution to prove its case.

19.Counsel submits that trafficking in a dangerous drug is not the only inference to be drawn, it is equally possible that he was only in possession of those drugs for self use.  Counsel has in support of his argument drawn my attention to 2 Reasons for Verdict of the District Court[1], these 2 cases share a common feature, the defendants were found to be in possession of dangerous drugs packed in numerous small packets or in granular forms on them upon stopped and searched by police, the Court found that trafficking was not the only inference.

20.I am also referred to another Magistracy Appeal case, in that case, police raided a karaoke bar, upon search of the appellant, in the left cup of her bra, a plastic bag wrapped by a rubber band containing 13 small plastic bags containing 1.49 g of solid containing 1.4 g of cocaine.  In the right cup of her bra was a plastic bag wrapped with the rubber band in which were 12 small plastic bags containing 1.46 g of solid containing 1.18 g of cocaine.  The appellant had HK$26,000 cash in her wallet.  The appellant court overturned the conviction for trafficking and concluded that it was equally compatible with possession for self consumption.

21.Lastly, a Court of Appeal case, in Li Ka Lun[2], the appellant was driving a private car with a passenger on board, the appellant parked his car at a car park, he alighted his car and walked towards another car, at this juncture, he was intercepted by C&E officers and a struggle ensued, he was later subdued, upon search, 8.59 g of a solid containing 7.69 g of cocaine packed in 28 small packets were found from his right front trousers’ pocket.  A further 0.74 g of a solid containing 0.67 g of cocaine in 3 packets were found in the middle control compartment of the car driven by the appellant.  The value of the drug was HK$10,430.94.

22.The appellant was convicted after trial as the trial judge rejected his evidence for self use.  The Court of Appeal had reservation how the judge rejected the appellant’s evidence.  But the Court of Appeal pointed out even if all the explanations of the appellant were rejected, the court still has to consider whether guilt is the only inference to be drawn.

23.The Court of Appeal further commented, the quantity of the drugs were not insubstantial, but it was still within what a drug addict could possibly buy in a single purchase.  And the appellant might very well be a very reckless man, that might explain why he had so many packets of drugs with him but he still took the risk of driving from Monk Kok to Shatin. Financially, the appellant was quite sound, he could afford the drugs.

24.The Court of Appeal concluded trafficking was not the only inference and convicted the appellant for possession of dangerous drugs instead.

25.I do not find these Judgments are of direct relevance, of course the legal principles remain applicable and those cases do share some similarities as in the present case, but every case depends on its own facts.

26.In the present case, the drugs found on him at scene was in a single resealable packet, not in small packages, the electronic scales and small transparent bags were found at his residence.  Is there a nexus between the drugs, the small bags and the scales, had these been found at the same place, I would have come to that conclusion, but they weren’t.  Assuming there was a nexus between these items, but the drugs are not of such large quantity, even couple with the bags and scales, these are not determining factors.

27.I have not overlooked the facts that no apparatus were found either inside the car where the defendant was stopped nor at his residence, there was no evidence suggesting drugs were being consumed inside the car by the defendant.  But lacking of these factors does not necessarily mean that the drugs were for trafficking.

28.Taking all these matters into consideration, I cannot say in certain term that trafficking is the only inference, I agreed with the defense counsel that both trafficking and possession are equally possible.  I find the defendant is guilty of possession.