HKSAR v. Kong Cho Man, Joe

DCCC 1058/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1058 OF 2012

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REASONS FOR VERDICT

1.The defendant stands trial on a single count of trafficking in 17.75 grammes of a solid containing 14.13 grammes of ketamine; 0.23 gramme of a powder containing 0.16 gramme of ketamine; and 0.17 gramme of a solid containing 0.14 gramme of cocaine, 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 failure to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance, Chapter 115.

2.In summary at approximately 9.18 a.m. on the 17 August last year the police saw the defendant outside No. 60 Lok Shan Road in Hung Hom standing by private car GG 192.  The defendant was the registered owner of the private car.  The police suspecting the defendant was in possession of dangerous drugs approached and conducted a body search.  PC 6982 found from a pocket of the defendant’s trousers a purple zip up holder, inside which was a re-sealable plastic bag and a piece of white paper, both found on examination to contain ketamine.  On a search of the car two re-sealable plastic bags were found under the carpet of the driver’s seat, one containing ketamine and the other cocaine.  At the police station the defendant was found in possession of HK$26,140 and RMB100.

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 defendant by his plea says that the drugs were for his own consumption and not for trafficking.

Evidence

Prosecution Evidence

4.The prosecution case has largely been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221    (exhibits P17 & P17A), including the finding of the ketamine and cocaine from the defendant’s trouser pocket and the ketamine and cocaine in the car (see paragraphs 4 and 10); the defendant was the registered owner of private car GG 192 (see paragraph 9); the chain of exhibits relating to the drugs (see paragraphs 16 & 17 as read with the Government Chemist Certificate, exhibit P2); and the seizing of HK$26,140 and RMB100 from the defendant (see paragraph 15). 

5.The prosecution called two live witnesses PC 6982 (PW1), the arresting officer, who gave evidence as to the reason why he intercepted the defendant; and DSIP Leung Kin Man (PW6), who gave expert evidence as to the street value of ketamine.

6.PC 6982 testified that he saw the defendant looking to the left and the right whilst talking to two males.  When the defendant noticed the presence of the police he became a bit anxious.  PC 6982 therefore thought the defendant was suspicious and decided to approach him for enquiry.

7.In cross-examination PC 6982 agreed the defendant told him the two males were his friends and that they had just happened to meet there.  PC 6982 confirmed that no drugs were found on either of these two men.  PC 6982 further agreed that there was a possibility that the defendant when looking around was looking at the oncoming traffic and also looking at his two friends.

8.DSIP Leung Kin Man explained how information was gathered as to the street value of ketamine.  I was satisfied he was able to give expert evidence as to street value.  DSIP Leung said in August last year the price of ketamine was $126 per gramme and therefore the street value of the ketamine seized was $2,265.  This was calculated based on seizures of 5 grammes or less.

9.DSIP Leung further explained that normally speaking the drugs would be cheaper if bought in larger quantities.  Of the three packets of ketamine seized DSIP Leung said the price of the packet of ketamine found in the car and containing 13.47 grammes would be cheaper than $126 per gramme but not significantly cheaper.  The price of the other two packets of ketamine would be based on $126 per gramme. 

Defence evidence

10.The defendant elected not to give evidence and called no witnesses.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  The prosecution must prove the charge beyond reasonable doubt.   This does however mean there is no evidence from the defendant to undermine, contradict, or explain the evidence led by the prosecution.

11.I have carefully considered all the evidence and the submissions made by Miss Whitfort and Mr Leung.  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.

12.The only issue to be determined is whether the ketamine and cocaine were for trafficking or may have been for the defendant’s own consumption.

Drug addiction

13.There is no evidence before the court as to whether or not the defendant was a drug addict at the time of arrest.  There can be no doubt in the past the defendant has been a drug addict.  This is clearly evidenced by the fact the defendant has five previous convictions for possession of dangerous drugs between 2001 and 2007 and was sentenced to treatment in a drug addiction treatment centre in 2002 and 2003 (see paragraph 22 of the admitted facts, exhibit P17). 

14.Mr Leung submits that by reason of these convictions and attendance at a drug addiction treatment centre the defendant may still have been a drug addict at the time of his arrest.  The fact of previous convictions, the last of which was 5 years before the defendant’s arrest and his last attendance at a drug addiction treatment centre was in 2003, almost 9 years before arrest, do not in my view support the assertion the defendant may still have been an addict at the time of his arrest.  The fact remains however there is no evidence before the court as to whether or not the defendant was a drug addict at the time of 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.The prosecution submit that taking into account the quantity of drugs possessed by the defendant; that there were two different drugs and that a substantial sum of money was found on the defendant the only inference to draw is that the drugs were for trafficking.  The prosecution also submit relying on the decision in HKSAR v Ho Ka Kei CACC 378/2009 the court can take into account the demeanour of the defendant immediately prior to arrest. 

17.I am satisfied in the circumstances of this case that the observations of PC 6982 leading to the arrest of the defendant do not assist in determining whether the only inference to draw is that the drugs were possessed for trafficking.  Nor do I find any assistance in the evidence of the street value of the drugs.  I will now specifically address the evidence as to the quantity of the drugs and the finding of the cash.

Quantity of drugs

18.The defendant was found in possession of 14.29 grammes of ketamine and 0.14 gramme of cocaine.  Whilst the defendant was not found in possession of the drugs in the early hours of the morning I nevertheless 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.Relying on Chan Chuen Ho Mr Leung submits that this quantity is not so large as to be incompatible with possession for own use.  Whether the circumstantial evidence, including the quantity of drugs, is sufficient to establish an irresistible inference of trafficking depends on the facts of the case (see for example HKSAR v Lee Chun Tat CACC 271/2005 and on appeal to the Court of Final Appeal in FAMC 52/2006).

20.The courts may take judicial notice of the average consumption of drug addicts or rely on expert evidence as to drug usage.  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 at paragraph 92 as applied in HKSAR v Chau Leong Wa CACC 51/2012).  The total quantity of ketamine being 14.29 grammes the defendant had in his possession at least 57 doses. 

21.Mr Leung submits the number of doses would be less for experienced users.  In Hii Siew Cheng it was said that experienced users having developed tolerance for ketamine may consume up to a gramme or more during the course of a single evening (see paragraph 64).  This may well be, however, whilst emphasising no adverse inference is drawn from the defendant remaining silent, as noted earlier there is no evidence before the court as to whether or not the defendant was a drug addict at the time of arrest and if so how much drugs he was consuming. 

Possession of $26,140

22.The defendant was found in possession of $26,140.  I direct myself before taking this evidence into account I must be satisfied that there is no realistic possibility of the money being in the defendant’s possession for reasons other than drug dealing (see for example R v Grant [1996] 1 Cr. App R 73 as applied in HKSAR v Law Chi Hung CACC 341/2004 and on appeal to the Court of Final Appeal in FAMC 73/2005).

23.The sum of money was not an insignificant sum of money possessed by the defendant at the same time as he possessed a substantial quantity of ketamine and a small quantity of cocaine.  I am satisfied the possession of this sum of money together with the drugs is both relevant and probative to the issue of whether the defendant possessed the drugs for the purpose of trafficking.  In considering this evidence I take into account the submission of Mr Leung that the defendant was not seen to pass any drugs or receive any money from the two males he was talking to and no drugs were found on these two males.

Verdict

24.Mr Leung relying on Chan Chuen Ho submits that the circumstantial evidence is insufficient to establish an irresistible inference of trafficking.  In considering this submission I note that in Lee Chun Tat, a case where the defendant remained silent at the time of arrest and elected not to give evidence, a similar submission was made and rejected by the majority of the Court of Appeal, which the Court of Final Appeal said was plainly correct. 

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

(i) the quantity was equivalent to at least 57 doses;

(ii) the ketamine was contained in three different quantities and found both in a pocket of the defendant’s trousers and concealed under the carpet at the driver’s seat together with a packet of cocaine; and

(iii) the defendant had with him a substantial amount of cash;

I find I am satisfied so I am sure the only inference to draw is that the defendant possessed the dangerous drugs for the purpose of trafficking.

26.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Leung both individually and collectively, including that trafficking cannot be easily inferred from the  number of packets of drugs and their packaging; no re-sealable plastic bags or scales were found in either the defendant’s car or in his home (see paragraph 14 of the admitted facts, exhibit P17); and the defendant was not seen leaving his home in the early hours of the morning as in Chan Chuen Ho.  Nothing said by Mr Leung causes me to doubt the only inference to draw is that defendant possessed the dangerous drugs for the purpose of trafficking. 

27.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted as charged.