HKSAR v. Ho Yan Yu
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DCCC695/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 695 OF 2012 ----------------------
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--------------------- Reasons for Verdict --------------------- 1.This defendant has pleaded not guilty to one account of trafficking dangerous drugs, contrary to section 4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap. 134. The defendant was arrested on 5 June 2012 in possession of 15.26 grammes of a mixture containing 11.91 grammes of heroin hydrochloride. This was a short and straightforward trial. The prosecution’s evidence was not challenged and two police officers gave evidence. The sole issue was whether the defendant was in possession of the heroin for the purposes of trafficking as alleged by the prosecution or whether he possessed the drugs for his own consumption, as claimed by the defendant. The Prosecution’s Case 2.The defendant was a passenger aboard a taxi stopped by the police at a routine roadblock set up in the Mong Kok area at about 10 pm on 5 June. PW1, PC 12237, thought the defendant looked odd and suspicious so opened the passenger door. He saw the defendant drop onto the seat two small tissue-wrapped packages from his right hand. Each tissue contained a resealable plastic bag containing 40 packets or pellets of heroin, 20 blue-coloured ones and 20 white-coloured ones, a total of 80 pellets. The blue ones were bigger in size than the white ones. The dangerous drugs and the plastic wrapping were exhibited as Exhibit P1. 3.Under caution the defendant admitted he bought the dangerous drugs for his own self-consumption. Later on, in a video record of interview, he elaborated and explained where he bought the dangerous drugs and how. He said he paid $10,000 in the form of ten $1,000 notes to a dealer he recognised as a dealer and asked him for “40 big, 40 small”. The dealer took his cash, left the defendant and returned with the dangerous drugs, passing them to the defendant as he waited in his taxi in Mong Kok. Before the defendant could alight from the taxi to take a bus home, the police pulled over this taxi at a roadblock and found the dangerous drugs. 4.He told the police he could take four blue pellets of heroin each day. He agreed he had $5,556.20 seized from his wallet. He worked as vehicle attendant for about $7,500 a month for about six months before he was arrested for this offence. He also explained two white pellets of heroin equalled one blue pellet of heroin. This video record of interview, its transcript and translation is Exhibit P2, A, B and C. Exhibit P3 is two photographs of the dangerous drugs and the plastic wrapping, as well as the tissue paper. Exhibit P4 is the Admitted Facts, which meant the prosecution’s factual case was in the main agreed without a challenge. The stop and search was not challenged. The drugs found in the defendant’s possession and the subsequent chain of evidence was not challenged. Exhibit P5 is a Government Chemist Certificate verifying the purity of the heroin. It was accepted by the defence that the Hong Kong Police Force estimated the value of this amount of heroin to be in the region of $11,200. The Defence Case 5.The defendant elected to give evidence. He admitted he is a drug addict and has been on and off a drug addict since 1997. He said in-chief that he has many previous convictions for simple possession of dangerous drugs but none for trafficking dangerous drugs. In the past he’s been sentenced to prison and five times to a drug addiction treatment centre. 6.Prior to his arrest he lived with his parents rent-free and did not pay towards any board or lodging. His father is retired and his mother is still working, and his only sibling, an elder sister, married and living apart. He himself worked as a vehicle attendant for $7,000-odd a month and had had this job for about six months before his arrest. 7.He explained that when he had dangerous drugs he would take four blue pellets a day. When he didn’t have enough money to buy dangerous drugs he would either take less heroin or take methadone as a substitute. I am sure from the questions and answers of his video record of interview, in particular from paragraphs 1 to 9 to 154 of Exhibit P2A and B, the defendant says his habit is four blue pellets a day and not that he could consume four a day, as suggested by defence counsel. He is clearly discussing how he takes heroin and how much a day. It is not a hypothetical conversation. 8.The defendant gave evidence that he had not registered at a methadone clinic for a number of years but knows one could buy methadone outside such clinics for $1 per milligram. The defendant agreed in cross-examination that the dangerous drugs he was in possession of, if for self-consumption, would last him 15 days, on his own evidence. He agreed that his habit per month cost over $22,000, according to the agreed valuation and his own evidence. He explained, when it was put to him, he was over $15,000 short each month even if he spent his entire $7,000 salary towards his drug habit, that his parents would give him money whenever he was short and whenever he asked. He also had saved some money he had been given by them. 9.He further elaborated, when asked, that his father had retired from the Waters Department as a technician some six to seven years ago. When his father was working his salary was about $20,000 a month. He was now on a pension. His mother, on the other hand, was still working and earned about $10,000 a month. He said that his parents did know he was a drug addict, but when they gave him money he asked for they were not knowingly funding his addiction. 10.He explained that on that material night he took a taxi from his Tseung Kwan O home to Mong Kok because he was in urgent physical need of heroin and in a hurry. He said the taxi driver did or said nothing when he told him to pull over. He then, whilst in the taxi, beckoned a drug dealer to come over and asked for 40 small, 40 big, and gave him $10,000 in cash. The dealer then left to get the dangerous drugs, trusted him not to run off with this large sum of money. The dealer went to a flowerbed, obtained the drugs and came back to the taxi. He said in his video record of interview that he would buy such large quantities to lower the risk of possible arrest by the police. 11.Trafficking has an extensive definition in the Dangerous Drugs Ordinance. The prosecution submit he was in possession of the heroin for the purpose of trafficking it. The prosecution must prove first he possessed the dangerous drug, a fact not challenged. Secondly, the defendant knew the powder was a dangerous drug, a fact not challenged. And, thirdly, the defendant possessed the drugs for the purpose of trafficking, which is disputed. 12.This is the sole issue, and the prosecution must prove this beyond reasonable doubt. The defendant has no burden of proof. Without an admission the prosecution must rely on all the circumstantial evidence to prove and convince the court it can draw an irresistible inference that the defendant possessed the dangerous drugs for the purposes of trafficking. It is well established that an inference of guilt can only be drawn against the defendant if it is the only reasonable inference to be drawn. I refer to Lord Justice Diplock in the often cited decision of R v Kwan Ping On [1979] HKLR 1 at 5, where he says, and I quote:
13.In deciding if an inference of guilt can be drawn I have to look at the circumstances of the case, in particular the relevant and proved facts. In the authority of R v To Luen Sum [1995] 1 HKCLR 318, Bokhary JA, as he then was, made the following observation at page 323, and I quote:
14.In final submissions the defence submit the quantity of drugs alone do not prove beyond reasonable doubt a trafficking offence. The defence also submit the circumstantial evidence is suspicious but not enough for the court to find the only reasonable inference to be drawn is the defendant was in possession for the purpose of trafficking. Defence submits that the fact the defendant’s first response to the police was the drugs were for his own consumption gives consistency to his evidence in court yesterday. In fact he has no previous convictions for trafficking dangerous drugs, only simple possession. 15.The defence also submit the prosecution cannot prove he could not fund his drug habit without selling drugs, as suggested. The court cannot rule out the possibility his parents did give him money when asked and it was sufficient to fund his addiction. After all he is the only son and they may happily have given generously. Moreover, there was no paraphernalia found at the defendant’s home by the police to suggest he packed and weighed dangerous drugs at home for the purposes of trafficking. 16.The defence submit the defendant can only be convicted of simple possession of the dangerous drugs on the evidence. On the other hand, the prosecution submit from the proved facts and evidence before the court the only irresistible inference the court can draw is that the defendant possessed the dangerous drugs for the purposes of trafficking. 17.The prosecution say the defendant, on his own evidence, does not earn enough each month to fund his addiction, a $20,000 a month habit. By giving oral evidence that his parents gave him money whenever he asked and therefore he could afford to buy dangerous drugs he attempted to show he could sustain this habit financially despite an income of $7,000 a month. The prosecution submit that his oral and unsubstantiated evidence that his parents funded his habit beggars belief and is unreasonable. The prosecution suggests, therefore, he could not afford to buy drugs in this quantity for his own use. And the only reasonable inference is that he possessed this for the purposes of trafficking, not his own consumption. He could not afford that luxury. 18.Moreover, the packaging is suspicious. The packaging of the drugs suggests the drugs were made ready for sale. The prosecution questioned where the defendant obtained ten $1,000 notes to pay for the dangerous drugs, as he said. The prosecution questioned whether he would hand over $10,000 cash to a dealer he was not familiar with and let him walk away with it. It was not a simultaneous transaction as one would expect to be the norm. 19.The prosecution say the defendant’s evidence and explanations are not believable and he is not credible. The prosecution contends there is sufficient evidence when one considers it as a whole to draw the irresistible inference the defendant was trafficking this amount of dangerous drugs. After careful consideration I agree with the prosecution. 20.There are factors I consider relevant to that ultimate finding. The quantity of dangerous drugs here is significant and worth over HK$11,000. I do not believe the defendant could afford it. I do not believe his bare assertion that his parents supplement his income upon demand on a regular basis. His attempt to give evidence that he could, with their contributions, afford to buy the dangerous drugs he needed in large quantities and regularly fails. 21.I reject the defendant’s evidence of how he came to be able to buy $11,000 worth of dangerous drugs and still have $5,5000-odd in his pocket, nearly 80 per cent of his monthly salary. I did not believe it was a purchase for his own consumption. 22.I accept he had no suspicious paraphernalia at home, but a drug mule, for example, would not pack dangerous drugs or need such equipment. It is not fatal to the prosecution’s case. I accept he made no admission and in fact said immediately that the drugs were for his own consumption, but the defendant is a long-term hardened drug addict who would know exactly what to say to the police if caught. This is also not fatal to the prosecution’s case. 23.After considering the defence final submissions and the proven facts of the case, I am sure there is more than a mere suspicion he was in possession for the purposes of trafficking. I am sure that I can draw an irresistible inference from the facts as a whole that he was in possession for just that purpose. The prosecution can prove the elements of this charge beyond reasonable doubt. 24.Accordingly the defendant is convicted as charged.
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