HKSAR v. Yeung Wai Ho, Henry

DCCC 877/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 877 OF 2011

---------------------

--------------------------------------

REASONS FOR VERDICT

--------------------------------------

Overview

1.The defendant pleaded not guilty to one count of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The prosecution case

2.The prosecution case is largely undisputed.  On the evening on 15 June 2011, 3 uniform police officers namely PW1 PC59089, PW2 WPC9121 and PW3 PC4606 together with Woman Inspector Hui arrived at Fu Yee House, Fu Cheong Estate, Shum Shui Po, Kowloon in response to a complaint of noise by youngsters.  PW3 was responsible for filming the operation for the Police Public Relation Branch.  At about 2025 hours in that evening, PW1 and PW2 saw the defendant and a male who was later known as Szeto Chi Ching (“Szeto”) walking towards the lift lobby at the podium. PW1 and PW2 then approached them.  When PW1 asked Szeto whether he knew the defendant, he answered in the negative but when the defendant was asked whether he knew Szeto, he said “yes”.  Upon feeling suspicious, the defendant and Szeto were separated for investigation.

3.Whilst PW1 observed that the defendant “kept moving” and could not stand still, he suspected that the defendant might have taken drugs and asked for a body search.  The defendant’s front jeans pockets were searched but nothing illicit was found.  PW1 then told the defendant that he was about to search his rear jeans pocket.  At this juncture, the defendant pushed on PW1’s chest and fled. After running for about 20 meters, the defendant fell onto the ground and PW3 came to offer assistance by pressing down the lower body of the defendant.  The defendant put up struggle but was eventually subdued and handcuffed.

4.After that, PW1 continued to search his rear jeans pocket in which 8 transparent re-sealable plastic bags containing white powder were found (Exhibit P1-P8).  When PW1 showed them to the defendant and asked what they were, the defendant gave no response.

5.At about 2035 hours in that evening, PW1 declared arrest on the defendant for the offence of “Possession of a Dangerous Drug”.  Under caution, the defendant said that he had nothing to say.

6.PW2 was assigned to conduct search on Szeto but nothing illicit was found.

7.Later Exhibit P1 to P8 were examined by Government Chemist Kwok Nai Chiu whose Chemist Certificate is produced as Exhibit P9 in which it is confirmed that Exhibit P1 to P8 contain a total of 108.41 grammes of a powder containing 79.80 grammes of ketamine.

8.Exhibit P10 is a photo depicting the condition of Exhibit P1 to P8 when they were seized.

9.Exhibit P11 is the Admitted Facts which states, amongst other things, that the street value of the seized ketamine was HK$12,033.

10.Exhibit P12 is the expert report compiled by Dr Lam Ming who stated, amongst other things, the usual daily dosage of ketamine by abusers.

The defence case

11.The defendant elected to give evidence but called no defence witness to testify on his behalf.

12.The defendant has two previous convictions of “Possession of a Dangerous Drug” in 2008 and 2010 respectively.  In 2008, the drug involved was cannabis whilst ketamine was involved in 2010.  He was sentenced to DATC in 2010 and was released in July 2010.

13.He admitted that he was a drug abuser who spent about HK$300-400 daily on ketamine in about June 2011.  He was unemployed since March 2011.  He had savings of HK$15,000 and could ask his parents for money if necessary.  On 16 June 2011, he was due for recall to DATC.  He went to the podium of Fu Yee House to buy ketamine from Szeto on the day in question.

14.When he arrived at the podium, Szeto pointed at the flowerbed and asked him to get the drugs himself.  He then found a black-coloured plastic bag and took out one packet. He paid HK$800 for that packet and immediately sniffed about “3 inches” long ketamine.  After taking the drug, he was “high”, “free” and “his mind was blank” afterwards.  He had no recollection of how he was approached by PW1 and PW2 and what had happened at the podium.  It was until the time when he found himself inside the police station, he remembered that he was told that he had caused injuries to PW1.  In essence, he had no idea as to why there were 7 other packets of ketamine found inside his rear jeans pocket.

15.He came to know Szeto who was also known as “Ah Dick” in 2009.  Exhibit D1 is a photo taken in 2010 showing Szeto on the left in the front row whilst Exhibit D4 is a printout of Facebook messages between Szeto and him.  The exhibits were intended to show that he indeed knew Szeto for quite some time.  Exhibit D2 is the sketch marked by PW3 showing the layout of the podium and the respective positions where he and Szeto were spotted.  As confirmed by the Admitted Facts Exhibit D3, Szeto gave an invalid ID card number to PW2 upon enquiry and Szeto has convictions of the offence of “Trafficking in a Dangerous Drug” and “Resisting a police officer in the execution of his duty” on 26 July 2010.

Directions

16.I bear in mind that the burden is on the prosecution to prove every element of the offence beyond a reasonable doubt.  The defendant has no burden to prove or disprove anything.  If his evidence is true or maybe true, the benefit of the doubt should go to him.

Issues

17.At trial, the first issue to be resolved is whether the defendant had knowledge that he was carrying ketamine in his rear jeans pocket.  If the answer is in the affirmative, whether he possessed those drugs for the purpose of unlawful trafficking. 

Evaluation of the evidence

18.The credibility and reliability of all prosecution witnesses is not challenged by the defence. Having carefully considered their testimonies, all the exhibits, their demeanour and counsel’s submissions, I find that all of them are honest and reliable witnesses.

19.As to the defence case, whilst it is true that Szeto has previous drug trafficking conviction and lied about his ID number, this does not necessarily lead to the conclusion that the defendant could not be a trafficker at the same time.  A scrutiny of all the evidence is called for.

20.The defendant said in his evidence that he was due for recall in the afternoon of the following day.  This arrangement had been made in a week before 15 June 2011.  He also said that he was considering himself taking too much drugs and wished to get rid of his addiction.  He therefore intended have some drugs before the recall.  He bought a packet of ketamine at HK$800 which doubled his average daily consumption of HK$300 to HK$400.  If he could not finish the packet before recall, he would throw them away.  In my view, as a habitual abuser, he should know the likely effect of about “3 inches” of ketamine on him.  If he knew that he would be “high” or “free” and his mind might go blank, he must appreciate that it would be extremely risky if he carried the remaining drugs with him in a public place since his unusual conduct might attract the attention of others and even police officers.

21.The defendant also testified that Sezto asked him to get the drugs himself from the flowerbed which was about 27 feet away at the podium.  When he found the black-coloured plastic bag, he could feel that there were a number of packets with considerable quantity inside.  Even though some drug dealers might wish to distinct themselves from the drugs so as to prevent apprehension, it is wholly unbelievable that Szeto would have left all drugs unattended in a distance and allowed the defendant to approach his “stocks” without accompanying him.  Also it was the defendant’s evidence that he telephoned Szeto and mentioned the quantity that he wished to buy.  If this was the case, why was it necessary for Szeto to bring a whole bag of drugs with him for the transaction?

22.The defendant averred that he had no recollection of what had happened after taking drugs but a hallucination of running in a tunnel.  In other words, either Szeto or someone else had put all the drugs into his rear pocket.  It begs the question of why Szeto or the other would have done that.  If it was Szeto, the drugs found inside the rear pocket must come from the black plastic bag placed at the flowerbed.  If Szeto had already noticed the presence of police officers at the podium, he, as a drug dealer, would not take the risk of getting any packets out from the bag and could simply walk away.  If Szeto was not aware of any police officers, it is inherent improbable that he would place the drugs on someone who was apparently behaving under the influence of drugs.  If it was not Szeto who did that, it is wholly unthinkable that a drug dealer would place the drugs inside the jeans pocket of a complete stranger.  Thus I find that the assertion that the 7 other packets might have been planted by others is plainly implausible.

23.Having carefully considered the defendant’s evidence, all the exhibits, his demeanour and the overall circumstances, he does not impress me as an honest and reliable witness. Accordingly his evidence is rejected.

24.Even though the testimony of the defendant is rejected, the burden remains on the prosecution to prove the offence beyond reasonable doubt.

25.In the closing speech delivered by the defence, the presumption provision regarding possession as stipulated in section 47 of the Dangerous Drugs Ordinance was once addressed.  It was however submitted by the prosecution that such presumption was not relied upon at this trial.

26.Insofar as the mental condition of the defendant is concerned, PW1 testified that the defendant “kept moving” and “giggled” at the time of interception.  When PW1 first approached the defendant and asked if he knew Szeto, he answered “yes”.  PW1 then carried out the search during which he first patted the front pocket of the defendant. When he found that there might be something inside, he then asked the defendant to take them out.  At that juncture, the defendant took out keys and coins. Plainly the defendant, as I found, was able to follow and understand instructions and he must be conscious about the situation.  Furthermore when PW1 indicated that he was about to search the rear pocket, the defendant pushed him away and fled.  Without a doubt, his attempt to flee was, in my view, the result of his knowledge of drugs inside his rear pocket.  He must have a clear mind as to what was happening at the material time, albeit he might appear to be under the influence of drugs.

27.Also by looking the size of each packets, it is inherent improbable that the defendant was not aware of the presence of 8 packets of substance inside his rear pocket.

28.Having considered all the circumstances, I am sure that the defendant knew he had 8 packets of substance in his rear pocket and they were all ketamine.

29.As a matter of principle, the mere fact that the defendant was found in the possession of drugs in a public place does not constitute an act of trafficking.  It is incumbent upon the prosecution to prove that the defendant “had the intention and ability to use all or part of drug for trafficking purposes”[1].

30.In the present case, all packets are almost identical in terms of weight, size and packaging (Exhibit P10- the photo).  Secondly the street value was HK$12,033.  Thirdly the overall narcotic content involved was 79.80 grammes.  According to Exhibit P12, Dr Lam Ming stated that “the patients of Tuen Mun Substance Abuse Clinic reported that they usually sniffed half to one packet in each occasion”.  A packet is generally about 0.2 gramme in weight.  Some patients reported that they abused ketamine “compulsively and heavily up to 2g every day” and a few reported cases are up to 6 grammes a day.  In the premises, the quantity involved in the present case is sufficient to supply about 399 doses for 0.2 gramme abusers and about 39 doses for 2 grammes abusers.

31.At the material time, the defendant was unemployed whose financial support for his substance abuse and living was from his parents and the alleged savings.  Given the overall surrounding circumstances, it is plainly inconceivable that the substantial quantity of drugs he possessed was for the sole purpose of self consumption.

32.Having considered all the circumstances, I find the only reasonable irresistible inference is that the defendant possessed all the drugs in question for the purpose of trafficking.

33.By reasons of the aforesaid, I am satisfied that prosecution has proved each and every element of the offence beyond reasonable doubt.  Accordingly the defendant is convicted as charged.