HKSAR v. Tse Chi Wai

DCCC 842/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 842 OF 2012

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REASONS FOR VERDICT

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1.The defendant stands trial on a single count of trafficking in 12.82 grammes of a crystalline solid containing 12.19 grammes of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. The defendant pleads not guilty to trafficking but guilty to possession of the dangerous drugs. The defendant has also pleaded guilty to a charge of assaulting a police officer.

2.In summary at about 00.25 hours on the 11th July 2012 the police arrested the defendant outside No. 178A Tung Chau Street, in Sham Shui Po.  Upon search the police found from the left front pocket of the defendant’s trousers a transparent re-sealable plastic bag containing another bag inside which was the ice.    

3.Trafficking in relation to dangerous drugs includes, “…or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking” (see the definition of trafficking in section 2 of the Dangerous Drugs Ordinance). The prosecution case is that on the evidence the only inference to draw is that the defendant possessed the drugs for the purpose of trafficking. The defence case is that the defendant was on his way home, having just purchased the drugs for his own consumption.

Evidence

Prosecution Evidence

4.The whole of the prosecution case has been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221       (exhibit P13), including the finding of the drugs (exhibits P1-2) from the defendant’s trouser pocket (see paragraph 2); the chain of exhibits relating to those drugs (see paragraph 10 as read with the Government Chemist Certificate, exhibit P10); and the street price of the drugs found on the defendant (see paragraph 9). 

5.Also admitted in evidence is what the defendant said under caution (exhibit P4) and in a video interview (exhibit P9).  In summary when first cautioned for trafficking the defendant replied the ice was for his own consumption.  In the video interview conducted later the same day the defendant gave some details about his drug addiction (counters 41-44, and 151-162); purchase of the ice (counters 59-68, 83-150, 163-174 and 234-307); and that he was unemployed and not in receipt of social welfare (counters 195-198). 

Defence evidence

6.The defendant elected to give evidence.  No witnesses were called on his behalf.  The defendant testified, inter alia, about his drug addiction; his employment and the purchase of the ice.

7.I have carefully considered all the evidence and the submissions of Mr Parry and Mr Cheung.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt.  On the other hand if the court thinks that the defence evidence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

8.The issues to be determined are whether at the time of arrest the defendant was or may have been a drug addict; and whether the ice was for trafficking, the defendant dealing in the drugs to support his addiction or whether the ice may have been for his own consumption.

Drug addiction

9.The defendant testified he was a drug addict and had been sentenced to the DATC on four occasions in 2000, 2003, 2006 and 2009.  The first two occasions was for possession of dangerous drugs and the third occasion was for possession of part 1 poisons.  I have not been told either in chief or in cross-examination why the defendant was sentenced to DATC in 2009. 

10.At the time of arrest the defendant said he was consuming half a gramme of ice, twice a day, every other day.  The defendant used a pot to inhale the ice at home. In cross-examination the defendant explained that after his last release from DATC he resumed taking ice.  At first he would take ice every 2-3 days and that his monthly consumption was about 3.5 grammes.  The defendant said he had been taking 1 gramme a day, every other day for the last six months. 

11.There is no doubt in the past the defendant has been a drug addict.  This is clearly evidenced by the fact the defendant has been to the DATC on four occasions between 2000 and 2009, which sentence requires a finding he is drug dependant.  This does not however mean at the date of arrest the defendant was still a drug addict or even taking drugs.

12.The defendant’s evidence in court that he took ice twice a day, every other day, differs from what he told the police.  In the video interview the defendant said he took ice 3-4 times per day (see counters 151-162).  The defendant’s explanation given in cross-examination that he was referring to when he was on holiday is simply not credible.

13.Mr Parry submits that the defendant has exaggerated his drug intake. Unfortunately the police did not ask any further questions about the defendant’s drug habit, for example how much drugs per day he would take and how long the drugs would have lasted him.  The defendant may well have exaggerated his drug intake but without knowing how much ice he took each day as opposed to how many times, one does not know if what he told the police is more or less than what he told the court in evidence.

14.Whilst the defendant has been inconsistent in how often he takes drugs, looking at his history of drug taking, in particular having been found to be a drug dependant in 2000, 2003, 2006 and 2009, I cannot rule out that he had resumed taking ice after his last discharge from the DATC and was still taking drugs at the time of his arrest. 

Trafficking

15.There being no direct evidence of actual trafficking I have examined the circumstances surrounding the arrest of the defendant to determine whether the only inference to draw is that the defendant was dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking. 

16.I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

17.The prosecution rely on the quantity of drugs possessed by the defendant on the street just after midnight and the fact that the defendant told the police he was unemployed and therefore by inference had insufficient monies to support his drug habit.

Quantity of drugs

18.The defendant was found just turned midnight in possession of a just over 12 grammes of ice.  I remind myself of that said by the Court of Final Appeal in Chan Chuen-ho v HKSAR [1999] 2 HKCFAR 198 at 203 that:

“It is not to be thought that any person with any amount of drugs found in the streets in the early hours of the morning must be guilty of trafficking.”

19.Mr Parry refers me to Attorney General v Ching Kwok Hung [1991] 2 HKLR 131 where evidence was heard by the trial judge from Chief Inspector Kruger Young of the Narcotics Bureau and Dr Leung, a Government Chemist, as to the nature, use and prevalence of ice.  On appeal the Court also received submissions based on special reports on ice prepared by drug enforcement agencies in the United States. 

20.The Court stated that informed opinion was that one-tenth of a gramme of ice without reuse would be sufficient for three to four “hits” (see page 128J), whereas Dr Leung was of the view that, on the basis of use and reuse, 10 to 15 “hits” could be obtained from one gramme of ice (see page 129C).  Mr Parry submits the quantity of ice found on the defendant is therefore equivalent to at least 120 “hits”.

21.The courts may take judicial notice of the average consumption of drug addicts or rely on expert evidence as to drug usage.  It has long been accepted that the average consumption of a heroin addict is between 0.25 and 0.7 grammes of heroin per day (see for example HKSAR v Au Yeung Fu CACC 208/2000).  Also based on extensive up-to-date data on the use of ketamine it is accepted that recreational doses range from      10-250 mg when taken nasally (see Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 as applied in HKSAR v Chau Leong Wa CACC 51/2012). 

22.I am not satisfied I can place any reliance on the consumption of ice as set out in Ching Kwok Hung.  The information must be viewed in context that at that time there was little or no evidence of the general use of ice in Hong Kong (see page 128D).  As noted by the Court of Appeal at page 128F:

“Ice has made a start in this Territory. We should attempt to nip the process in the bud.”

23.In my view more up-to-date information is required before reliance can be placed on what is the usual consumption of ice.  This is particularly so in this case where the defendant has been to the DATC four times over a period of 10 years for as noted in Ching Kwok Hung at page 129F prolonged use can create tolerance resulting in the abuser having to resort to heavier dosages.

24.This information could easily have been made available to the court by for example calling a Government Chemist or a medical doctor with expertise in substance abuse, as was the case in HKSAR v Lee Sau Kam DCCC 1080/2008, which stated that chronic abusers commonly consumed 250 millilitres to one gramme per day.  Similarly expert evidence on cocaine was adduced inHKSAR v Yeung Chi Keung      DCCC 206/2006, which evidence was the subject of appeal to the Court of Appeal in CACC 355/2006 and to the Court of Final Appeal in    FAMC 50/2007. 

25.Without more up-to-date information I am unable to say that the quantity possessed by the defendant is inconsistent with that which drug addicts would buy for their own consumption.  Even if I was to take the usage given in HKSAR v Lee Sau Kam, albeit at the upper end, this would not be inconsistent with what the defendant says he was taking every other day. 

26.For the reasons given I find therefore on the evidence before the court this is not a case where quantity alone provides a clear indication of trafficking (see for example HKSAR v Ho Ka-kei CACC 378/2009and HKSAR v Cheng Kong Sang CACC 371/2008).

Purchase of the ice

27.The defendant said he was employed as a foot masseur working part time for Chi Chuk Chang Lok in Jordan.  The defendant could choose which days he worked with his working hours between 10 a.m. and 9 p.m.  The defendant would earn $10,000 – $13,000 per month, including tips and would be paid every two weeks. 

28.Prior to working for Chi Chuk Chang Lok the defendant was also working as a foot masseur for Modern Beauty between June 2010 and May 2012.  The employment contract was produced as exhibit D1.  From this employment the defendant earned $15,000 – $18,000 per month, including tips.

29.On the day of arrest the defendant returned home after finishing work.  The defendant then telephoned a friend called Ah Ling asking if there were any drugs available for him to buy.  The defendant asked for          14 grammes, which he was told would cost him $5,000, the money coming from his savings.  The defendant bought this quantity of ice because the price was cheaper than buying a smaller quantity.

30.The defendant then went to Sham Shui Po where he met Ah Ling. After paying Ah Ling the $5,000 in cash the defendant waited for a phone call informing him where to collect the ice.  Around midnight the defendant received the phone call telling him to collect the ice from a drainage pipe in a rear alley off Tung Chau Street.  After collecting the ice the defendant was about to go take a mini bus home when he was arrested by the police.

31.I have no hesitation in rejecting the defendant’s evidence he was in employment at the time of arrest.  This is wholly inconsistent with what the defendant said in the video interview that he was unemployed (see counters 195-198).  The defendant’s explanation he regarded himself as self employed and therefore told the police he was unemployed is simply unbelievable.

32.Although I find the defendant may have resumed taking ice after his last discharge from the DATC I have no hesitation in rejecting his evidence as to the circumstances he bought the ice.  This again is inconsistent with what he told the police in the video interview.  At first the defendant said he paid for the ice by leaving the money and later said he got a friend, who he could not find, to use his bank account to make the transfer (see counters101-146 and 243-259). Further the defendant made no reference at all to a person called Ah Ling. 

Verdict

33.Having rejected the defendant’s evidence he was employed at the time of arrest and the circumstances in which he bought the drugs, this leaves the court to consider whether on the remaining evidence the only inference to draw is that the defendant was trafficking in the ice.  As stated earlier the prosecution rely on the quantity of drugs possessed by the defendant on the street just after midnight and the fact that the defendant told the police he was unemployed and therefore by inference had insufficient monies to support his drug habit.

34.Having carefully considered all the evidence and taking into account, inter alia, that:

(i) the defendant may still be an addict;

(ii) this is not a case where quantity alone provides a clear indication of trafficking, there being no evidence the quantity possessed by the defendant is inconsistent with that which drug addicts would buy for their own consumption;

(iii) whilst the defendant said he was unemployed and not in receipt of social welfare, the police unfortunately did not ask the defendant for example how long he had been unemployed and from where he got the money to pay for the drugs, leaving no direct evidence to contradict that the defendant may have paid for his drugs from savings;

(iv) the defendant was not seen leaving his home with the drugs;

(v) the defendant was not in possession of a substantial amount of cash for which there was no realistic possibility of the money being for reasons other than drug dealing;

(vi) there was no packaging indicative of trafficking found on the defendant or at his home; and

(vii) there is no evidence the defendant was at a place known for drug trafficking; or was lingering around as though waiting for a buyer or was in any other way acting suspiciously;

I find I am not satisfied the only inference to draw is that the defendant was trafficking in the drugs. Whilst the fact of unemployment gives rise to suspicion, perhaps strong suspicion, this is not enough in the circumstances of this case. I find the prosecution have failed to prove the defendant was dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking. The benefit of the doubt is given to the defendant and he is acquitted of trafficking and convicted on his own plea to possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance.

35.I wish to add that in reaching my verdict I have considered the admitted evidence that the street value of the ice was $9,063                (see paragraph 9 of the admitted facts, exhibit P13), which was substantially more than the $5,000 the defendant says he actually paid.  Without knowing the basis of this value, for example whether this is based on bulk purchase or the price per gramme or an even smaller quantity I found little weight could be attached to this evidence.