HKSAR v. Lee Pui Sze, Angle

DCCC 1126/2023

[2025] HKDC 498

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1126 OF 2023

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REASONS FOR VERDICT

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1.The Defendant pleaded not guilty to a charge of trafficking dangerous drugs, but pleaded guilty to possession of dangerous drug, the Prosecution refused to accept her plea to a lesser charge.

2.The Defence does not dispute possession of all the drugs and said that all the drugs were for her own consumption.

3.The drugs were:-

(a)  P3 – a metal box containing 20 transparent plastic bags – containing a 3.34 g of a solid containing 3.03 g of cocaine.

(b)  P4 – a metal box containing 20 transparent plastic bags containing a 3.46 g of a solid containing 2.96 g of cocaine.

(c)  P5 – a tissue paper containing 4 plastic bags containing a total of 0.65 g of a solid containing 0.57 g of cocaine.

4.The issues before this Court were:-

(a)  Where was P5 (4 packets of drugs were wrapped by a piece of tissue paper)  found from the Defendant?

(i)  The Prosecution said from the inner compartment of her handbag.

(ii)  The Defendant said from the cup of her bra.

(b)  What were the 44 packets of drugs for?

(i)  The Prosecution said they were all for trafficking.

(ii)  The Defence said that 4 packets from her bra were bought in March and they have become stale. While the 40 packets found from the handbag were bought just before the arrest. They were all for her own consumption.

5.The admitted has summarized most of the prosecution case, as most of the facts were not in dispute.

6.The Prosecution called PW1 (the taxi driver)  and PW2 (the arresting officer)  to give evidence to provide further details of its case.

(a)  At around 1:55 am on 2 April 2023, the Defendant got into PW1’s taxi and told him to take her to Ka Wai Chuen Car park in Hunghom and then to Mongkok. The Defendant was only the passenger sat at rear left of the taxi.

(b)  At around 2:07 am, PW2 who was in uniform was onboard (sitting at the front passenger seat)[1] the police vehicle AM7073 and was behind the taxi.

Station Lane incident

(c)  At about 2:08 am, the Defendant told PW1 to stop the Taxi at Station Lane near Ka Wai Chuen Car Park. PW2 saw the taxi stopped in the middle of the road in Station lane. While AM7073 was 4 to 5 meter behind the taxi.

(d)  The Defendant opened the window and stretched out her hand to deliver something to a South Asian male. The male then immediately went back to Kai Wai Car Park. The male did not give anything to the Defendant.

(e)  PW1 could not see what was being passed to the male. PW2 described the object was “smaller than the palm”.

(f)  The Defendant then told PW1 to drive her to Mongkok.

At the traffic light of Ma Tau Wai Road and Tai Wan Road

(g)  The taxi then turned left and drove along Ma Tau Wai Road and stopped at the traffic light of Tai Wan Road.

(h)  When AM7037 stopped by the right side of the taxi, PW2 looked at the Defendant who also saw PW2. The Defendant lowered her head. Her left hand was on the left side of the handbag, her right hand was on the right side of the handbag, she then moved her right hand to cover her handbag while her left hand just moved a little bit[2].

(i)  PW2 used the loud speaker to ask the taxi to stop at a safe place.

Outside Ka Pong Lau

(j)  The taxi then stopped near Ka Pong Lau. AM7073 stopped in front of it.

(k)  PW2 asked the Defendant to show her ID card, she replied that she lost it. PW2 noticed the Defendant was in a state of panic and she grabbed the handbag with her hands firmly.

(l)  PW2 asked the Defendant to alight from the taxi and went to the pavement of Ka Pong Lau.

The search of the handbag[3]

7.PW2 opened the bag and found in the largest compartment contained Exhibits P3 and P4 - the two metal boxes each containing 20 individual packed transparent plastic bag in which containing white crystal.

8.From the inner compartment of the handbag - PW2 found a piece of tissue (P5)  wrapped with 4 transparent plastic bag with blue line.  The shape of the tissue was being “grabbed with wrinkles”[4].

The arrest

9.PW2 arrested the Defendant for possession of dangerous drugs of Exhibits P3, P4 and P5’s content of drugs.

10.The Defendant said under caution that:

“Ah sir, those dangerous drugs are for my own consumption, give me a chance. It has nothing to do with the taxi driver.”[5]

The Defendant gave evidence

11.Her evidence mainly said that she was an occasional drug abuser.  The last time she took drug was in early March, about a month before the arrest.

12.In early March 2023, she bought 10 packs of cocaine for $4,000.  She consumed 6 packs with 4 packets left.

13.On 31 March 2023, she was laid off and she received $9,000 cash from the restaurant owners of whom she has worked for a year.

14.On 1 April 2023, when she left home, she used the tissue paper (P5)  to wrap the remaining 4 packets of cocaine and put them inside the cup of her bra.

15.She also took the $9,000 cash and went to play mahjong in Jordan from 2 pm to 10 am.  She had a windfall of about $13,000.  She had a total of about $22,000 ($9,000 + $13,000).

16.She then went to a bar.  As she was feeling unhappy, she “smoked cocaine” in the toilet of the bar.  However, as the cocaine was the left over from the March purchase, it became stale.

17.She then ordered 40 packets of cocaine which was delivered to her at the entrance of the bar.

18.Between midnight to 1:00 am, her friend Ah Mei called her and asked for a loan of $1,500 from her.  Ah Mei arranged her Nepalese boyfriend to pick up the $1,500.

19.The Police then stopped her and P3 and P4 were found from her handbag.

20.As to the 4 packets of drugs[6], the Defendant said that they were found from her bra when WPC35077 arrived at the scene and took her to the police vehicle for a body search.

Analysis of evidence

21.When I assess all the evidence before me, I bear in mind that it is the duty of the Prosecution to prove its case beyond all reasonable doubt.  The Defendant has no duty to prove anything.

22.As the Defendant is a person with clear record, I direct myself as to her propensity to commit the offence is low and her credibility in given evidence.

23.If the account of event provided by the Defendant is or may be true, the Defendant is entitled to an acquittal.

Where was P5 (tissue with the drugs)  was found?

24.(a)  The Defendant admitted that she was in possession of all the drugs, but disputed that P5 was found from the inner compartment of her handbag.

(b)  She said that it was found from her bra by WPC35077[7] in a Police vehicle.

(c)  PW2 was the arresting officer, when he made the arrest, he had already found P3, P4 and P5. The arrest was done before WPC35077 arrived.

(d)  PW2 is a male Police officer, he would not conduct a body search of the Defendant who is a female.

(e)  As the record of interview[8] formed part of the admitted facts, the preamble said that :-

“Also, (I)  found upon search from the inner compartment of your bag a piece of white tissue paper wrapping four blue lined transparent resealable plastic bags containing solids of suspected dangerous drugs. I now arrest you ….”.

(f)  When the Defence put its case to PW2, it was alleged that P5 was found from the pocket of the clothing of the Defendant, it was not from the bra.

(g)  Looking at the photographs of this case,[9] her upper garment did not appear to have any pocket. The Defence did not establish whether her trouser had pocket or not.

(h)  As to the shape of the tissue which can be seen from Photos 12 and 17 of P13, it does not appear to be squashed flat. The 4 packets of drugs wrapped by tissue paper were all containing in 4 tiny resealable bags, 2.5 cm x 2.5 cm. If the tissue were hidden in the bra cup, how could it be still appeared like a lump in the photo?

(i)  I found her evidence as to how WPC35077 conducted the body search on her was simply not credible. She said that she took the tissue (P5)  with drugs[10] out to WPC35077. She also had to remove her upper garment to become half-naked.

(j)  She said that she was sitting inside the Police vehicle, which was parked in a public place. There was nothing to cover the windscreen of the Police vehicle. That means anyone including the male police officers from outside could have seen her half-naked body.

(k)  Then she changed her evidence that she forgot whether she was half-naked or not.

(l)  It would be a humiliating incident to remove all her upper garment to expose her upper body. It is totally absurd that she could not remember whether it happened or not.

(m)  That gives an impression that she made up her story along the way when she gave evidence.

(n)  I rejected the Defendant’s claim that the tissue wrapped with the 4 packs of drugs[11] were found from her bra inside the Police vehicle by WPC35077.

(o)  I concluded that it was found from the inner compartment of her handbag by PW2 before WPC35077 arrived at the scene.

The reason she ordered more drugs (P3 and P4)

25.She said that P5 was ordered in early March, a batch of 10 packs for a price of $4,000.

26.That means each pack is $400 ($4,000/10).

27.She took 6 packets with remainder 4 left over.  But it became stale.  As such, she ordered some fresh one (P3 and P4)  $11,000 for 40 bags as it was cheaper to order in larger quantity.

28.That means each pack is $275 ($11,000/40).

29.She claimed that she started to take cocaine since 2015/2016.  That means it was nothing new to her that drugs can become stale.  The question to ask: why did she has to order 40 packets? It would be a waste of money when she left them for a while without finishing them all bearing in mind she was just laid off and consequentially unemployed.

30.The other reason that she ordered more was because she was unhappy and she wanted to take drugs. The Defendant did not explain why she was unhappy.  

Was P5 really the left over drugs from the March purchase?

31.The Defendant does not dispute possession.

32.The packaging of P3, P4 and P5 are the same.  They were all contained in the 2.5 cm x 2.5 cm transparent plastic bag which all have a blue line on it.

33.The average quantity per bag:-

Exhibit number	Total number of bags	Total gram of a solid	Average per bag
P3	20	3.34 g	0.167 g
P4	20	3.46 g	0.173 g
P5	4	0.65g	0.162g

34.The Defendant also said that P3, 4 and 5 were all from the same supplier.

35.In view of the same packaging, in the same type of plastic bag and in similar quantity, it is clear to me that all the drugs were ready for distribution in the drug market.  I do not accept what the Defendant said that P5 were the left over drugs from the March purchase.

The Defendant’s financial situation

36.(a)  $9,000 cash wage when she was laid off.

(b)  $13,000 winning from mahjong.

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$22,000 in total

(c)  $11,000 spending on drugs – just before the arrest.

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$11,000 left with her

37.She was laid off just a day before the arrest.  She claimed that she could get a job with an hourly wage of $60 if she wanted to.  However, she did not have a job to line up.  She was a waitress/casual worker in a Thai restaurant.  Her work experience is very much limited to low income jobs.

38.Assuming that she did receive $9,000 as wages (as she claimed it was cash – therefore no tracing in the bank account)  from the Thai restaurant and won $13,000 (I regarded this as a total bare assertion)  from playing mahjong, those money was just enough to keep her going for a month or so.

39.Any reasonable person would ask: why spend about $11,000 to buy drugs?  Bearing in mind, the 10 packets of drug she bought a month ago, she only consumed 6 packets.  Why spent $11,000 to purchase 40 packets?  It definitely would become waste.

40.She said for 40 packets, the price is cheaper.

(i)  That means it was $275 per packet ($11,000/40).

(ii)  Normal retail price was $400 per packet.

(iii)  That means each pack she saved $125.

41.When she sold the drug, each packet she made $125.  That was what the Prosecution said that the Defendant would profit from retailing the cocaine.  I agree.

The reason to stop at Station Lane - The $1,500 loan to her friend

42.The Defendant started from Jordan.  Her intended destination was Mongkok.  She told PW1 to stop at Station Lane first.

43.She explained that she needed to stop at Station Lane to pass on a loan of $1,500 to her friend’s boyfriend.

44.Her friend called her around midnight and said that she needed money urgently.  However, the Defendant did not know:-

(a)  her friend ‘s full name, only called her by “AH Mei”.

(b)  Where she lived?

(c)  Why she needed the money so urgently? (that was mid-night)

(d)  When she could return the $1,500?

45.As to the boyfriend of Ah Mei, the Defendant hardly knew of him as they never talked, did not know his name as he was Nepalese, but had met him during social gathering with Ah Mei.

46.On the day in question, the Defendant just passed the $1,500 to the boyfriend of AH Mei.  They did not talk to each other.  The Defendant did not call Ah Mei afterward regarding the $1,500.

47.She did not ask Ah Mei or her boyfriend to come over to her (such as in Mongkok or Jordan)  to collect the money.  She took taxi, incurred more expenses, to deliver the cash.

48.The Defendant also said that she did not know how to do transfer money online.  I out rightly rejected the Defendant assertion bearing in mind that:-

(a)  The Defendant was about 49 years old at the time of the offence. She studied and lived in Canada before returning to Hong Kong around 2015.

(b)  This kind of simple technology has been around for some time and does not require scientific knowledge to operate.

49.She herself just lost her job and she only had about $11,000 after spending $11,000 in buying drugs.

50.There was actually about $9,500 ($11,000 - $1,500)  left with her.  Only half a month of her previous earning.  It just does not make sense that an unemployed person would provide a loan, in the early hours, to her friend not knowing when she would be able to return the money.

51.I found the Defendant’s assertion that she went to Station Lane to deliver a loan was unbelievable. I reject her explanation. 

What was passed to the boyfriend of Ah Mei?

52.It was not in dispute that the Defendant had passed something to a male at station Lane.  PW1 and PW2 saw it.  Both of them could not tell what was being passed to that Male.

53.PW2 said that the object was smaller than a palm.

54.The Defendant demonstrated in Court by clenching her fist.  When it was just one piece of $1,000 and one piece of $500, why it has to be clenched in a fist?

55.The drugs were all contained in 2.5 cm x 2.5 cm transparent plastic bags.

56.When they were held onto the palm and clenched in her fist, her fist is big enough to cover the small size of the plastic bag.  That explained why it was difficult for anyone to see that object being passed to that male.

57.The Defence submitted that it is unlikely that the Defendant would be conducting an illicit transaction so openingly and in such proximity and direct view of PW1 and PW2.

(a)  The police vehicle was behind the taxi. Obviously, the Defendant as a passenger was not required to pay attention to the road condition. Her focus was to look for the male and to deliver the items to him swiftly.

(b)  The items held in the Defendant‘s fist was so small that both PW1 and PW2 could not see what it was.

(c)  The transaction did take place. That explained why the Defendant was so nervous that she lowered her head when she saw PW2 in the Police vehicle and she moved her right hand to cover her handbag (which contained 40 packs of cocaine)  as shown in the sketch[12].

(d)  She knew what she had been up to when she passed the item to the so-called Au Mei’s boyfriend.

58.With all these information in mind, any reasonable person would come to the one and only one conclusion that the Defendant delivered the drugs to that male.

From Jordan to Mongkok

59.The Defendant got into a taxi in Jordan and told the taxi driver PW1 to take her to Kai Wai Chuen, then to Mongkok.

(a)  In Jordon – The Defendant bought the drugs.

(b)  In Kai Wai Chuen – She stopped the taxi to pass on something to the South Asian Male.

(c)  In Mongkok – She intended to book a room in a guesthouse for 2 to 3 days to take her 40 packs of drugs.

60.There are plenty of guesthouse in Jordan, why she needed to take a taxi all the way to Mongkok? Clearly, the whole purpose was to make it justified and necessary to stop at Kai Wai Chuen when she was on route to Mongkok.

61.This explanation is obviously not persuasive and lack of credibility.

62.The Prosecution in his final submission did not address whether for a total quantity of a narcotic content of 6.56 grammes of cocaine to be consumed within 2 to 3 days would be overdosed or not.

63.The Prosecution then provided 2 cases in relation to “daily average dosage of cocaine” in :-

(a)  HKSAR v YEUNG Chi Leung[13];

(b)  HKSAR v YEUNG Chi Leung[14]

64.The drugs in these appeal cases were crack cocaine.  However, in the present case, the GCC did not specify whether the drugs were crack cocaine or cocaine in powder form.

The absence of paraphernalia associated with the drugs

65.The Defendant said that she took cocaine by way of smoking with the cigarette.  There was no cigarette or lighter found in her handbag or during the house search.

Conclusion

66.I accepted all the evidence of the prosecution witnesses are honest and reliable.  I rejected the Defendant evidence as they are not credible.  I attached no weight to what she said under caution that she had those drugs for her own use/consumption.

67.P5 was found in the inner compartment of her handbag.  Those drugs wrapped in tissue paper was convenient for her to retrieve from the handbag.

68.All the drugs were in the same type of transparent bags and were pre-packed in similar weight for easy re-distribution. 

69.She took the taxi to deliver drugs to the South Asian male and her next stop in Mongkok was the same. 

70.To this end, I found the prosecution case proved beyond all reasonable doubts.  The Defendant is convicted as charged.