HKSAR v. Ng Chi Wai

DCCC 886/2024

[2025] HKDC 1551

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 886 OF 2024

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REASONS FOR VERDICT

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1.The defendant faces a Charge Sheet consisting of two charges as follows.

2.Charge 1 is Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 9 March 2024, at the carpark entrance on Ground Floor, Harbour Centre Tower 2, No 8 Hok Cheung Street, Hung Hom, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 10.60 grammes of a solid containing 8.71 grammes of cocaine.

3.Charge 2 is Doing an act or a series of acts tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101(1)  of the Criminal Procedure Ordinance, Cap 221.

4.The defendant pleaded not guilty to Charge 1 but guilty to the alternative offence of Possession of a dangerous drug.  The prosecution did not accept the guilty plea resulting in a trial on the original charge.

5.The defendant pleaded guilty to Charge 2.  Sentencing on Charge 2 was adjourned until the end of trial relating to Charge 1.

Prosecution case

6.At about half-past 10 in the evening on the day in question, the defendant was acting furtively at the car park on Ground Floor of a building. Plainclothes police officers stopped and searched him.  During the search, defendant claimed he did not have his HKID card on him.  The defendant attempted to walk away but was stopped.  The defendant continued to move around but was pressed down.

7.When the defendant was down, he was seen chewing something.  He was repeatedly asked to spit it out.

8.Eventually, the defendant spat out a bloodstained transparent bag containing 8.71 grammes of cocaine narcotic in powder form.  He said he was frightened and wanted to swallow the packet, which had been in his clothes, but he hurt himself.

9.The defendant was arrested and under caution, he said he bought the cocaine for his own consumption.

10.Back at the station, two mobile phones were found on the defendant.

11.In a cautioned VRI taken in the evening of the next day, the defendant said:

(a)  He was a driver earning $25,000 per month;

(b)  Inside the transparent bag was powder cocaine;

(c)  He became frightened when he was intercepted so he took the transparent bag from this right jacket pocket and placed it in his mouth; and

(d)  The transparent bag was chewed broken and bloodstained.

12.Police drug expert estimated that the retail value of the cocaine in question would be $9,635 if sold in quantities of 5 grammes or less.

Defence case

13.Defence case is the defendant possessed the drug for self-consumption only.

Issue in the case

14.The sole issue is whether on the whole of the evidence, the court can draw the only reasonable and irresistible inference that the defendant possessed the drug for the purpose of unlawful trafficking.

Procedural history

15.Prosecution case consisted almost entirely of Admitted Facts Exh P6, the salient features of which have been reproduced in the “Prosecution case” section above.

16.Prosecution called only one witness PW1 PC26723, the arresting officer.

17.After the close of the prosecution case, the defence made half-time submissions on the basis that there was no evidence of trafficking especially in a case where the defendant is a person of clear record.  Prosecution replied that there was nothing found at his home to show the defendant was a drug user; that the authorities show that the large quantity of drug in this case would last a regular cocaine user for more than one month.  Upon consideration of submissions from both sides and upon review of the relevant evidence, I ruled there is a prima-facie case of trafficking in relation to Charge 1.

18.Defendant elected to give evidence but called no other witnesses.  I assess his evidence with the same objective standard as that I used when assessing prosecution evidence but bearing always in mind that the prosecution bears the burden of proof.

19.After close of all evidence, parties made oral submissions.  I have duly considered them but will not repeat them here.

Summary of prosecution evidence

PW1 PC26723

20.PW1 repeated the course of interception and arrest which has largely been agreed under the Admitted Facts exhibit P6.

21.In the witness box, PW1 saw the relevant CCTV footages exhibit P4 from 3 angles and identified the parties present in the carpark at the material time.

22.During cross-examination, PW1 agreed that the defendant waved at the security guard while coming out of the building and leaving the carpark before re-entering.  PW1 agreed that when stopped by the police at the carpark, the defendant pointed in the direction of the white stationary car while explaining where he was going.

23.However, PW1 said the defendant did not explain he worked in the building; nor did PW1 ask the defendant about it.

24.PW1 agreed there was no cash or keys on the defendant.  There also came a time when someone brought the defendant’s HKID card to him in Hung Hom Police Station.

25.PW1 agreed it was the defendant’s mother who went over to open the defendant’s home door for the purpose of a house search.

Summary of defence evidence

Defendant

26.Defendant worked and is still working at Phoenix Company at Unit 04B of 12/F of Harbour Centre Tower 2.  His role was as a driver for the boss.  He earned $25,000 per month.  On the night in question, he left the building through the carpark exit and waved at the security guard.  He went out temporarily to buy dangerous drug to take back to office to consume.

27.On his way back, he was intercepted by police.  He pointed at the direction of the white car (the direction of the building entrance).  He told the police he wanted to go back to office.

28.His HKID card, his home keys, his wallet containing cash were all in office.

29.He paid $5,000 for the half ounce (roughly 14 grammes)  of dangerous drug.  Only 10 odd grammes were found.  It was possible he had swallowed the balance.

30.It was cheaper to buy half ounce.  If he bought 1 gramme, it would be $800.  There would be a discount if one bought in large quantity.

31.He consumed the drug in a cigarette roll.  He would place 0.17-0.20 gramme into each cigarette by using a little weight which he hid on top of a cabinet in the office.  He consumed 3 such cigarettes daily ie roughly 0.5-0.6 gramme daily.  Half ounce or 14 grammes would last him almost a month.

32.He would consume drug in office before his boss came and he would also take some after work (in the office).

33.As regards his HKID card, it was a colleague who brought it to Hung Hom Police Station after he had made an outgoing call.

34.His mother did not live with him.  He made a call to his mother who then went over to his home to open the door for the police with spare key(s).

35.He is married.  His wife is a saleslady and earned $22,000 per month. They have one child.  Wife pays for the child’s tuition and private tuition fees.

36.From his salary, he pays $10,000 for his other expenses including the utilities.

37.Under cross-examination, the defendant said that he had been taking cocaine for one year to one year and a half.  He bought the drug from a designated place in a park less than 100 metres from his office.  The defendant felt it was less risky to buy more in one go and kept the unused portion in his office.  His wife did not know he took drug.

38.Although he took one dose of cocaine in the morning in office, he did not drive when high on cocaine.  He took his second cigarette after work at about 9:30 pm after his boss had left.

39.His third cigarette was also taken after work.  He went home immediately thereafter by bus.

40.He has a locker in the office.  Only the boss and no one else works there. It is a currency exchange company: the Hung Hom office occupying 1,000 odd square feet is the boss’s private office; the other office staffed by colleagues is in Sheung Wan Centre.

41.The colleague who brought his HKID card to Hung Hom Police Station was from Sheung Wan Centre office.  The defendant gave him/her the passcode for entering the Hung Hom office.

42.When the defendant made the outgoing call, he made it to the boss.  The boss then arranged for someone to bring the HKID card to the defendant.

43.He has stopped taking drug since the arrest.  He took drug during that time because he was having a bad mood caused by marital relationship.

44.The first time he bought from the seller Ah Keung he only bought 2 grammes costing about $1,600.  Ah Keung did not keep the drug with him.  He told a subordinate to come down from a slope to deliver the drug to the defendant.

My consideration

45.I reminded myself the burden of proof lies entirely on the prosecution throughout the standard being beyond a reasonable doubt.  Defence does not need to prove anything least so the defendant’s innocence.

46.I reminded myself the defendant has no criminal record[1]. That means two things.  First, compared with a person with a criminal record, any statements made in or out of court by the defendant is more likely to be true.  Second, compared with the same person, the defendant is less likely to commit a criminal offence.

47.I first assess the credibility and reliability of the evidence given by the witnesses.

PW1 PC26723

48.PW1’s evidence was unremarkable save and except it laid the foundation for the defendant’s evidence which was to follow.

49.Defence did not challenge PW1’s evidence.

50.Having considered his evidence, save and except one aspect, I found the part of his evidence that was not already contained in the Admitted Facts credible and reliable.  I give that evidence full weight.

51.That one aspect that I have some reasonable doubts on was PW1’s evidence that the defendant did not explain he worked in the building nor did PW1 ask about it.  This piece of evidence does not sit well with PW1’s evidence that the defendant pointed towards the direction of the white stationary car (as can be seen from the CCTV footage)  explaining where he was going.

Defendant

52.What the defendant said in evidence was consistent with the CCTV footage.  It seems that he had some permanent connection with the building of which the carpark formed part.  The fact that he was not carrying any personal effects save and except his two mobile phones supported his claim that he was returning to his office after being temporarily out.  The fact that he was carrying one plastic bag containing dangerous drug rather than many smaller packets supported his claim that he was not trafficking.

53.What the defendant said in evidence was consistent with what he said under caution at the scene and during a cautioned VRI conducted on the next day.

54.From the way in which the defendant expressed himself, I could see that he was not an articulate person.  His job as a driver certainly did not require him to do a lot of talking.  There was a minor unclear feature in his evidence ie whether he talked on the phone with a colleague directly during which he passed on the office door passcode to him/her.  However, this minor aspect did not detract me from finding generally that the defendant’s evidence was credible and reliable.

Detailed analysis of the evidence

55.Prosecution’s strongest point was their reliance on the “authorities” which seemed to suggest that the daily consumption rate of a cocaine addict was 0.2 gramme of the drug.  No case name was mentioned by the prosecution.

56.I can find at least one Court of Appeal authority on the subject which is HKSAR v Cheung Ho Kit CACC 242/2018 [2019] HKCA 557, which recorded the fact that at trial the parties there agreed the expert opinion that the average daily consumption of cocaine per addict was 0.2 gramme.

57.In a first instance District Court case HKSAR v Fan Chi Ho DCCC 808/2018 [2020] HKDC 478, the expert evidence as to daily consumption rate of cocaine is summarized as follows:

“119. In summary the evidence of Dr Lau is that the daily consumption of cocaine is highly variable because the usage pattern was irregular which was indicative of recreational use. Depending on the purity of the cocaine a typical chronic user would take between 25 to 50 mg per insufflation and would repeat the dose many times a day with a daily dose of 0.2 to 0.5 gm whereas a new user may stop after one or two insufflations and would not use cocaine regularly. A heavy user may binge on cocaine up to 2-3 gm in repeated doses.”

58.In the present case, no expert evidence was called by the prosecution.

59.The evidence of the defendant was that he consumed about 0.5-0.6 gramme daily.  This is at least on par with the daily consumption rate of the typical chronic user as opined by the expert in Fan Chi Ho.

60.Besides, in this case, only 10.6 grammes solid (powder)  containing 8.71 grammes of cocaine was ever recovered by the police.  If the defendant was to lie, he could easily say that he only bought 10 grammes for self-use, and not 14 grammes as was his evidence.

61.I found what the defendant said in evidence generally including what he said about his daily consumption rate is possibly true.

62.This will necessarily mean that the prosecution has failed to prove their case of trafficking beyond a reasonable doubt.

Conclusion

63.For the above reasons, I found the defendant not guilty of Charge 1 as charged but I found him guilty of the statutory alternative of possession of a dangerous drug.