HKSAR V.Tam Yee Lam

DCCC447/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 447 OF 2012

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Reasons for Verdict

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1.The defendant faced one count of trafficking in a dangerous drug, namely 5.87 grammes of a crystalline solid containing 5.67 grammes of methamphetamine hydrochloride (“Ice”) on 3 April 2012, near Tower 1, Goodview Garden, Fung On Street, Tuen Mun.

2.The defendant admitted possession but disputed that it was for the purpose of trafficking.

3.He gave evidence saying that he just bought those drugs for his own consumption only.

4.The entire prosecution was agreed by admitted facts (“AF”), essentially stating that on the above date at 0155 hours, police saw the defendant hurrying along the ground floor of Oi Shun House towards the footbridge in the direction of Tsui Ning Garden. Meanwhile, the defendant kept looking around and clenching his fists, and there were no other people in the vicinity. The defendant then walked faster and faster, patted his right front trousers pocket occasionally and acted suspiciously.

5.The police then intercepted and found the defendant trembling all over his body, kept on sweating and stretched his hand towards the trousers pocket.

6.Upon search, from his right front pocket there was one black Marlboro cigarette box containing 5 transparent resealable plastic bags containing “Ice” of different quantities and also 5 empty transparent resealable plastic bags.

7.Upon the government chemist’s analysis, the above 5 plastic bags contained 2.1 grammes, 1.33 grammes, 1.26 grammes, 1.02 grammes and 0.16 grammes of a crystalline solid, respectively containing 2.02 grammes, 1.28 grammes, 1.22 grammes, 0.99 grammes and 0.16 grammes of methamphetamine hydrochloride.

8.Under caution, the defendant said, “The cold stuff is all for my own consumption.” Subsequently, the defendant was brought home for search but there was no suspicious article found.

9.Later on the same day, the defendant also voluntarily attended a video recorded interview, transcript of which was accurate and produced as P12A and P12B.

10.The street value of the drugs was about HK$4,443 and the defendant has a clear record.

11.In the above recorded interview, he said the cold stuff was dangerous drugs, “Ice”.  He did not remember from whom he obtained it.  By that time, he was about to go home by transport and he had the habit of smoking “Ice” for 2 years but he was not sure the quantity he took each time.

12.In court, the defendant gave evidence adopting the content of his recorded interview, but further elaborated that he bought the drugs from Sai Ho on that day and he said 1 to 2 grammes of ice would last him 2 to 3 days.

13.Prior to 3 April, he had not purchased drugs from Sai Ho. It was Sai Ho over the phone offering the defendant some drugs. The defendant said he had no money, but he had a notebook computer to exchange. Sai Ho agreed.

14.On that day, Sai Ho just took a glance of his computer and in exchange for the drugs now found from him. As to the other 5 empty resealable bags, he said he could have used those drugs to measure the quantity for his consumption. All the drugs were for his own consumption. He did not intend to sell or share any part of it to any other person.

Analysis

15.The defendant has a clear record.  He had no burden to prove anything.

16.As pinpointed by Mr Lui for the prosecution, it is quite readily to find the differences between the content of his record of interview and his evidence in court, including not only how and from whom he obtained the drugs, but also the quantity of drugs he took each time.

17.Further, it would be so surprising to find both parties did not even discuss how much drugs would be exchanged for, nor the value of computer been mentioned. The said seller, Sai Ho, did not even check whether the computer was functioning properly.

18.As to the other 5 empty resealable bags, if it were to measure quantity, just 1 plastic bag or other article could simply be used.

19.Clearly, the defendant was not telling the whole truth.  It is apparent from above the defendant’s evidence is untrue.  His explanation in the record of interview and evidence in court are to be rejected.

20.Yet, the burden rests entirely upon the prosecution to prove the case beyond all reasonable doubt.

21.Mr Chau, for the defendant, submits that the drugs involved is not so great to draw irresistible inference for trafficking and there was no other evidence to infer.

22.On the contrary, the defendant did admit at the outset that the cold stuff was for his own consumption and there was simply no evidence that he intended to sell nor share any drugs to others.

23.The prosecution, however, says, at small hours, in possession of 5 bags of “Ice” with 5 other empty plastic bags which would commonly be used for trafficking purpose and with a variety of quantities involved, it shall point to nothing but trafficking.

24.In HKSAR v Chan Chuen Ho [1999] 2 HKCFAR 198, there were similar but not identical facts. The court nevertheless stated that, paragraph F at 203,

“The circumstantial evidence against the appellant was strong. He was in possession of a large quantity of drugs, but it was not so large as to be incompatible for being for his own use. They were packaged in a way suitable for sale but they could have been purchased by him in that form. They were found on him in the street in the very small hours of the morning. They were found on him after he had emerged from a building in which he had rented premises. Having regard to his defence, which failed on possession, there was no reason advanced why he should not have left them in those premises. There was no evidence that he was on his way home to Shatin. His own evidence was to the contrary. Large though it was, the quantity was not such as to lead inevitably to a conclusion of trafficking. There was no evidence that he was an addict or a user of the drugs but that, in the circumstances, is a neutral factor. It is not to be thought that any person with any amount of drugs found in the street in the early hours of the morning must be guilty of trafficking. I do not agree with the Court of Appeal that properly directed there would inevitably have been a conviction for trafficking. Strong though the evidence was, there remains a possibility that the jury may have convicted him of simple possession rather than trafficking.”

25.Each case is decided on its own facts.  When assessing the present case, likewise, the quantity of drugs was not so large to be incompatible for being his own use.

26.The package and with other empty bags, though suspicious, could simply be purchased and given in that form and it could not inevitably lead to the conclusion of trafficking.  It is not to be thought that any person with any amount of drugs at small hours must be guilty of trafficking.

27.In the circumstances, I could not be sure the defendant was in possession of those drugs for the purpose of unlawful trafficking. Therefore, the defendant shall be acquitted on trafficking, but guilty on possession only.

28.In the circumstances, the defendant is thereby convicted of possession of dangerous drugs only.