HKSAR v. Lui Yin Lung
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DCCC 333/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 333 OF 2012 --------------------------
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-------------------------- REASONS FOR VERDICT -------------------------- CHARGE 1.The defendant was charged with a count of trafficking in a dangerous drug, namely 23.79 grammes of a solid containing 20.17 grammes of cocaine, and 1.32 grammes of powder containing 0.97 gramme of ketamine. Such offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 2.The defendant pleaded not guilty to the charge but indicated that he was prepared to plea guilty to possession of a dangerous drug. 3.The sole issue is whether the case has been proved beyond reasonable doubt that the defendant was in possession of the dangerous drugs for trafficking purpose. 4.The prosecution has called 5 witnesses. The defendant chose to testify but called no witness. The prosecution case based solely on circumstantial evidence. Evidence of the case 5.Part of the prosecution case was dealt with by way of:-
Evidence from the prosecution 6.About 2.15 am on 8 March 2012, the defendant boarded PW1’s taxi at the roundabout of Shek Tau Street, Kwai Chung, the defendant requested PW1 to go to Chuen Yuen Secondary School also at Kwai Chung. About one odd minute after, they arrived at the roundabout outside Yat Kwai House, Kwai Chung Estate. The defendant requested PW1 to wait for him. 7.Having got off the taxi, the defendant stood by the rear of the taxi. He was seen using his mobile phone and at the time looking towards the direction of Yat Kwai House. Shortly after the police approached the defendant who then turned around and trying to board the taxi but was stopped by the police. 8.Upon search by DSPC 50799 (“PW2”) the arresting officer,
were found from the right front pocket of the defendant’s trousers. 9.The defendant refused to tell what those dangerous drugs were and remained silent. No further question was put to the defendant. 10.Subsequently the defendant was arrested for the offence of trafficking in a dangerous drug. Under caution he admitted that he got the ‘Coke’ for his own consumption. 11.Upon further search, a pile of cash of about $18,000 (Exh P-3) and 2 mobile phones (Exhs P-4 and P-5) were found inside the black shoulder bag (Exh P-8) carried by the defendant. A wallet containing $10odd was found at the rear right pocket of the defendant’s trousers. 12.The defendant was brought to a police private car, where PW2 made a post-record of the defendant’s arrest in his note-book. The defendant refused to sign the record. 13.Meanwhile, upon the request of the police to look for dangerous drug, PW1 brought them to the location ie Shek Tau Street roundabout where he picked up the defendant. Nothing suspicious was found at the vicinity of the said location. 14.A house search was conducted on the defendant’s residence at Tsing Yi and nothing suspicious was discovered . Retail price of drugs in question 15.DSIP Leung Kin Man (“PW4”) of the Narcotics Bureau, Police Headquarters stated out that cocaine was categorised into two different forms, the basic cocaine and crack cocaine. The average retail price per gramme, for transaction of 5 grammes and below in March 2012 was HK$1,144 for cocaine, HK$1,532 for crack cocaine and HK$116 for ketamine. The quantity of 23.79 grammes of a solid containing 20.17 grammes of cocaine could have been sold at street level to abusers for HK$27,215 (ie 23.79 grammes x HK$1,144). The quantity of 1.32 grammes of a powder containing 0.97 gramme of ketamine could have been sold at street level to abusers for HK$153 (ie 1.32 grammes x HK$116). 16.PW4 agreed that purchase price for quantity over 5 grammes of dangerous drugs (like cocaine or ketamine in our case) would cost less. He could only say that the selling price of 1 kg of cocaine would be about HK$410,000. As to how much discount one could have obtained from the drug supplier for quantity over 5 grammes, PW4 was unable to tell. 17.PW4 pointed out that the cocaine in question was in the form of ‘crack’ cocaine. It would seem that if by the same deduction and mathematical calculation, the same quantity of crack cocaine could have sold at street level to abusers for HK$36,446 (ie 23.79 grammes x HK$1,532). 18.PW4’s statement dated 8 May 2012 was admitted as evidence under s 65B of the Criminal Procedure Ordinance, Cap 221 to be Exh P-9. Daily dosage of drugs in question 19.A statement dated 4 July 2012 which was made by Dr M Lam (“PW5”), a Consultant Psychiatrist of the Tuen Mun Substance Abuse Clinic of Castle Peak Hospital was uncontested. This court is satisfied with the expertise of Dr Lam. The said statement was then tendered as evidence under s 65B of the Criminal Procedure Ordinance to be Exh P-10. 20.Dr Lam identified Exh P-1 to be crack cocaine. He pointed out that the daily dosage used by abusers varies a lot: (i) Recreational abusers would usually use less than one gram in a day; (ii) regular abusers would usually use one to two grammess a day; and (iii) crack smokers may use higher dosage. 21.He also pointed out that regular ketamine abusers would usually sniff one to two grammes a day. DEFENCE EVIDENCE (i) Background and occupation 22.The defendant is a 27 year old married man. He was residing with his parents, his wife and a 3 year old son at Tsing Yi. He used to be a car salesman and a cook. In October 2011, the defendant had attended and passed a hygiene manager course on food hygiene (see Exh D-3). 23.Just before arrest, he started working on 16 January 2012 as a food hygiene manager at Chu Kee Restaurant and earning $18,000 per month. Since 29 February 2012 he switched to working part-time (6:30 pm – 10:30 pm) there, as he had another job in the day time as a van driver (9 am – 5 pm) earning $12,000 per month. He received salary in cash from Chu Kee Restaurant, once on 7 February 2012 for $11,400 and the second time was on 7 March 2012 where he received $12,400 cash. He claimed that he contributed $2,000 to his parents and $4,000 to his wife monthly and that he had made some savings of about $40,000 when he was a car salesman in 2007 and 2008. Such sum was not put into his bank account but was kept inside his wardrobe in his residence all along. (ii) Daily addiction 24.The defendant admitted that he was a drug addict. He first took cocaine in 2003 and became addicted to it in 2008. He needed to take cocaine almost daily with a dosage of 0.3 – 0.4 gramme per day. He had to spend about $6,000 to $7,000 per month on cocaine. The mode of consumption was by putting the cocaine into cigarettes. He normally kept the drugs at home inside his wardrobe. He consumed the drugs inside the toilet at home or at the rear staircase. As for ketamine, the defendant used to be heavily addicted to it in the period 2000 to 2009 and had to consume 1 gram a day but in recent years as he was relying more on cocaine, he reduced his taking of ketamine to about $100 per week. The quantity of cocaine in this case would have lasted him 2 months. 25.The defendant had always bought drug from the drug supplier Ah Kin who offered him cheaper price. (iii) On the day in question 26.On 7 March 2012, the defendant received his salary of $12,400 in cash. Having finished work in Chu Kee Restaurant at about 10:30 pm, the defendant called Ah Kin intending to purchase drug from him. It was then agreed by Ah Kin to supply the defendant 1 oz (approximately 24 grammes) of cocaine for $14,000 and that some free ketamine would be given to the defendant. The defendant claimed that Ah Kin could give him 50% discount for buying one oz of cocaine as opposed to buying ‘one drop’ (ie 0.3 gramme). 27.Whilst the defendant was waiting in the Restaurant, Ah Kin called at 2 am and asked the defendant to go to Shek Tau Street at Kwai Chung. 28.Upon arrival, the defendant was told to get the drugs in a nearby flower bed as before. The defendant did accordingly. Having checked the crack cocaine, the defendant contacted Ah Kin and was told to go to Chuen Yuen Secondary School to make payment for the cocaine. Having arrived at the said school in a taxi driven by PW1, he called Ah Kin again. About a minute after, the police officers approached him and asked why he was there. When drugs were found on him, the defendant admitted to the police that they were cocaine and were for self consumption. The defendant gave his explanation as to where, when and how he obtained the drugs upon questioning, but was eventually arrested for trafficking in dangerous drugs. 29.At that time, the defendant had on him $18,000 cash, $12,400 of which were the salary he received on the previous day, the remaining cash was the defendant’s own savings. When the defendant realised that PW2’s note book entry did not record fully the incident at scene, he refused to sign to confirm the contents of the said entry. The prosecution’s contention 30.The prosecution case based mainly on the amount of drugs seized. The prosecution further submitted that the defendant’s evidence was doubtful including the circumstances and the place where the defendant and the said drug were found, his employment, the value of the said drugs and the amount of money found on the defendant. COURT’S OBSERVATIONS AND FINDINGS (i) Defendant’s employment 31.The defendant claimed that he worked as a hygiene manager/manager from January 2012 to February 2012 at the Chu Kee Restaurant. Thereafter, he worked part time at the same restaurant and worked also as a van driver. Such claim was obviously to prove that he has the means to buy the drugs and to justify his carrying the cash at the material time. 32.If the defendant was actually so employed, some formal and credible proof of work including documents of his employment could have been easily obtained and produced, but none of these had been tendered by the defence. A copy of the business registration certificate of Chu Kee Restaurant was produced and marked as Exh D-2. It is noted that Exh D-2 was actually produced from a photo taken of the said certificate when the same was still hanging on the wall. This court does not accept that Exh D-2 was obtained from the Restaurant by proper mean and is doubtful of its original source. 33.Moreover, being a hygiene manager of a relatively small size restaurant with the monthly income of $18,000 and having claimed what duties he had performed in the Restaurant, it is unbelievable that the defendant had no knowledge as to whether there were refrigerator and freezer in the kitchen of the Restaurant. 34.Being a manager and despite of his claim that he spent about 80% to 90% of his time working on tables in the Restaurant, it would be implausible that he seldom went upstairs of the Restaurant and that he was not required to go there to serve the guests. This court finds that the defendant did not reveal the truth of his occupation and his source of income. (ii) Quantity of drugs in question 35.The defendant claimed that he was a drug addict and had a history of drug abuse. Such claim was not challenged by the prosecution. He claimed he had to take cocaine once a day with dosage of 0.3 to 0.4 gramme, the cocaine in question (ie 23.79 grammes of a solid containing 20.17 grammes of cocaine), would have lasted him 2 months. He also claimed that he spent about $100 per week on ketamine. 36.According to Dr Lam, the usual consumption of a regular cocaine addict is around one to two garmmes a day and for crack smoker higher dosage may be taken. Hence, the quantity of cocaine found in this case would possibly have lasted a regular abuser for about 3 weeks. 37.The quantity of cocaine found on the defendant cannot on one hand be categorised as minute. Such quantity could not on the other hand be said to be so huge as to raise the inference of trafficking irresistibly, nor was it so incompatible with the defendant’s own use. 38.A transparent packet which contained 1.32 grammes of powder containing 0.97 gramme of ketamine was also found on the defendant. Such quantity of ketamine even if combined with the cocaine in question though large could not provide a clear indication of trafficking. (iii) Inconsistencies in prosecution’s case 39.DPC 33889 (“PW3”) the officer who had gone back to Shek Tau Street roundabout with the taxi driver testified that they searched the vicinity for suspicious items. He explained that suspicious items meant suspect or gang member of the defendant. PW3 denied that the police were there to see if any dangerous drug could be found at the flower bed. 40.The taxi driver, PW1, revealed that he brought the police officer upon request to the said roundabout, where he picked up the defendant to look for dangerous drugs. Upon arrival, he saw two police officers going near the flower bed to look for something for about one minute, but in vain. 41.The visit and search of the flower bed by the police could be due to certain information obtained at the time of arrest. This court could not exclude the possibility that the police was being told that the dangerous drugs found on the defendant were taken from the flower bed of Shek Tau Street roundabout. (iv) Being questioned by police at scene 42.PW2 said that when some suspected dangerous drugs were found on the defendant he immediately questioned him as to the nature of these items, but the defendant closed his eyes and remained silent. When being cautioned at scene, the defendant admitted that the drug was cocaine and it was for his own consumption. But later the defendant refused to sign on the police notebook entry which recorded the above scenario. 43.The court holds the view that in the circumstances under which the dangerous drugs were found, it would be unusual for PW2 to ask only a question, and if upon seeing no reaction from the defendant, for PW2 to cease questioning further. As this court considers that it was only natural, reasonable and even justified for the police to investigate and ask further question of the defendant under such situation. The silence of the defendant may be due to reason other than uncooperation. To stop at one question which the defendant gave no response and made no attempt to ascertain from the defendant seemed rather unusual. 44.The fact that an arrested person admitted possession of dangerous drugs under caution but later refused to sign to confirm such admission may be consistent with the defendant’s change of mind, but in view of the above observations made by the court of the prosecution’s evidence, the probability of the defendant’s version on what was conversed at the arrest scene could not be excluded. Conclusion 45.Apart from the drugs found on the defendant, there was nothing found both on him and his residence to suggest or to infer that the defendant was trafficking the drugs other than being in possession of them for self consumption. Money found on him was sufficient to pay for the said drugs. The assertions made by the defendant may open to be questioned and the evidence presented to this court by the prosecution may seem strong but is still insufficient to remove all reasonable doubt and/or warrant a conviction for trafficking in a dangerous drug. 46.The prosecution could not establish its case of trafficking in a dangerous drug beyond all reasonable doubt. The defendant is acquitted of the charge, but is convicted of possession of a dangerous drug, under s 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.
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Further hearings and rulings under DCCC 333/2012