HKSAR v. Chu Kin-shan, Christopher

DCCC 497/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 497 OF 2013

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

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

Reasons for Verdict

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

1.The defendant pleaded not guilty to a sole charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars are that he unlawfully trafficked in 34.32 grammes of a powder containing 27.17 grammes of ketamine on 21 March 2013 outside Waldorf Shopping Centre, Tuen Mun.

3.Although the defendant pleaded not guilty to trafficking, he did plead guilty to possession of the dangerous drugs.  The prosecution refused to accept this alternative plea.

4.To summarize, the defendant was stopped and searched at 7.48 pm by PW1, a police officer.  Three transparent resealable plastic bags containing the ketamine were found in the defendant’s left front trouser pocket.   He also had in his possession two mobile phones and $897.40. Under caution, the defendant said he bought the ketamine for his own consumption only.  Nothing suspicious was found in a subsequent house search.

The Evidence

The Prosecution’s Case

5.The stop and search by PW1, PC 58430, was not challenged, nor was the possession of the quantity of ketamine found on the defendant.  The prosecution’s case has largely been admitted by the defence pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, and is admitted as Exhibit P7.

6.In it, it was admitted that the drugs, P1, were found in the defendant’s trouser pocket (paragraph 1).  He made an admission under caution of possession for self-consumption (paragraph 3).  The chain of evidence was proper (paragraph 5).  Exhibit P2 was a photograph of the drugs, P1.  The government chemist certificate was P6, and the street value of the drugs, P1, was $4,084 (paragraphs 6, 7 and 9).

7.The prosecution only called one witness, PC 58430, who gave evidence of the defendant’s arrest and the subsequent video-recorded interview that was challenged.

8.The video-recorded interview was challenged by the defendant and its voluntariness was in issue.  The video-recorded interview was dealt with by way of special procedure, a trial within a trial.

9.The defendant alleged the police officer, PW1, refused his request to call his family to arrange legal representative to assist him.  He asked twice before the video-recorded interview commenced.  He was told by PW1 to co-operate and that the police were too busy to arrange for him to make a telephone call.  The video-recorded interview was also conducted late at night, nearly midnight, to be specific, at 11.47 pm, lasting 22 minutes.  

10.It was not challenged a Notice to Persons in Custody, a POL 153, was served and explained to the defendant at 8.40 pm on the day of his arrest, exhibited as P9.  He was made aware of his rights.  A post-recorded statement was made of what he had said under caution.  This preceded the video recorded interview.

11.PW1 gave evidence that the defendant was aware of his rights and had made no request to call anyone before his video recorded interview commenced.  He asked the defendant if he was fit to attend an interview and if he had any requests.  He also said he did not require any medical attention. 

12.The defendant elected to give evidence on the special issue.  He said he asked on two separate occasions to call his mother but was refused.  He said he was scared and wanted a lawyer to represent him. PW1 told him to co-operate and the video recorded interview would not take long, then he could call home.

13.The issue was the conflicting evidence of PW1 and the defendant; credibility was the issue. 

14.The defendant did not say he was tired or felt unwell at the time of the video recorded interview.  On the contrary, he agreed in cross-examination that he felt fine and did not require medical attention.  He was asked why he answered that there was no need when asked in the interview if he needed a lawyer present.  He tried to answer this question by saying he had already asked but was unsuccessful, that PW1 had said he had to finish the video record of interview first; and lastly, that he did not know why he had said that.

15.The sole issue to be determined in relation to the video recorded interview is the question of voluntariness.  If the prosecution can prove beyond reasonable doubt on the whole of the evidence that the interview was voluntary, then it is admissible.  If for any reason it was not voluntary, then it is inadmissible.

16.There is no question of law to decide upon in this case, nor was there any need to consider an exercise of discretion.  There were two conflicting versions of evidence and it was a question of who I believed.

17.I carefully considered the evidence of both PW1 and the defendant and the course of events from his arrest leading up to the interview.  I believed PW1’s evidence that the defendant was served a POL 153, signed a post-recorded statement, then agreed to a video recorded interview without making any requests to call anyone.  I rejected the defendant’s evidence.

18.I found after careful consideration of the evidence, submissions, including the allegations made by and the evidence of the defendant, and having due regard for the 1992 Rules and Directions on the Questioning of Suspects, I was satisfied as to the voluntary nature of the video record of interview.  It was admitted into evidence.  I further found no ground to exercise my discretion to exclude it.  The video record of interview is Exhibit P3 with the transcript and translation P5 and P5A respectively.

The Defence Case

19.In the general issue, the defendant elected not to give evidence as is his right.  The failure of the defendant to give evidence is no evidence of his guilt, it proves nothing one way or the other. The consequence of doing so was to leave the prosecution case enjoying the advantage of not being undermined, contradicted or explained by evidence from the defendant.  

20.The defendant did however call his mother to give evidence of the origin of the $800 odd found on his person.

21.She gave evidence that two weeks before his arrest for this offence, the defendant, her son, had just been released from Hei Ling Chau Drug Addiction Treatment Centre.   When he was released, he was paid HK$600 for work done whilst serving that order.

22.Upon his release, she gave him HK$1,000 and his father also gave him HK$1,000.  She gave evidence that she did not want to give him money to buy drugs with but gave him this amount of money because he told her he wanted to buy shoes.

23.On 21 March, the date of the defendant’s arrest, she had given him an additional $200 for travelling expenses and $600 to apply for a renewed Home Visit Permit at the Tuen Mun Immigration Office.  He had an appointment at 4.30 pm.  He still had $800 odd on him later that evening when arrested because he had missed the 4.30 appointment; he had not paid for the permit.

My Findings

24.The prosecution must prove the charge beyond reasonable doubt.  The defendant has nothing to prove.  I considered the definition of trafficking in section 2 of the Dangerous Drugs Ordinance.

25.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.  I repeat, the defendant by his plea says that he did possess the drugs for his own use and consumption but not trafficking.

26.There is no admission or direct proof of trafficking.  In order to draw an irrefutable inference 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.  That I quote from Lord Diplock in The Queen v Kwan Ping Bong [1979] HKLR 1 (page 5). 

27.The sole issue is whether the dangerous drugs was for trafficking or was it for the defendant’s own consumption.

28.The prosecution rely on the quantity of drugs found on the defendant on the street, the packaging of the amount of ketamine, the fact he told the police he was unemployed and by inference unable to finance a drug habit.  In the video recorded interview he told the police he took ketamine two to three times a week and on each occasion he would spend two to three hundred dollars buying 3 to 4 grammes of ketamine.  On this occasion he bought this amount of dangerous drugs to obtain a discount.  He paid $1,800, for drugs worth $4,084 with money his family had given him.  This is a large discount he obtained from a stranger who approached him in Tuen Mun.

29.The prosecution is aware that the sole fact a person with drugs in their possession is found on the streets cannot be in itself enough to prove trafficking.  The Court of Appeal made that clear in Chan Chuen Ho v HKSAR [1999] 2 HKCFAR 198 at page 203.

30.A factor that could indicate possession for self-consumption would be an ability to finance a drug addiction habit; a habit that should also be substantiated. 

31.The video recorded interview records the defendant telling the police he was unemployed; there is no evidence to suggest otherwise.  He says he paid $1,800 from the money he obtained from family.  His mother gave evidence he was given $2,000 upon his release from Hei Ling Chau to add to his $600 salary he received.  Her evidence was that he had some $2,600 two weeks prior to his arrest.  At the same time she said she limited his money so he could not buy dangerous drugs.  Her evidence is non-sensical.  I am sure it was an attempt to try and explain how he could buy dangerous drugs in bulk as alleged.  For someone with no income he had to give an explanation how he was able to buy dangerous drugs for his own consumption, and it was his mother who provided such an explanation.  However, it is a bare assertion.  I doubt a mother who says she knew she had to limit her son’s cash supply to prevent him buying drugs would provide him with sufficient cash to do just that.

32.There is no direct evidence before the court the defendant was a drug addict at the time of his arrest.  I have no reason not to believe he was recently released from a drug addiction treatment centre order, but that proves he had a drug addiction problem before he was sent there.  The fact remains that I have no evidence before me that indicates he was a drug addict when arrested and would therefore purchase ketamine to feed his habit. The fact he is recalled under a supervision order to Hei Ling Chau is not direct evidence of addiction. 

33.I note his video recorded interview refers to taking ketamine two to three times a week.  According to what he told the police, he paid between 400 and 900 dollars per week for between 6 to 12 grammes a week.  At one time he would buy 3 to 4 grammes to inhale.  Here he is in possession of 34.32 grammes of ketamine, that would provide him with between 8 to 11 doses approximately.  At two to three times a week, that would last him about five weeks, at most.

34.However, I doubt the defendant would inhale 3 to 4 grammes a time.  The court can take judicial notice of the average consumption of a drug addict and expert evidence as to drug usage.  No expert was called in this case, but I referred myself to the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  There it was accepted that recreational doses ranged from 10 to 250 milligrammes when taken nasally.  A Professor K Lee gave expert evidence of ketamine drug addicts’ habits and said further at paragraph 64 of that authority that experienced users who have developed tolerance can use up to a gramme or more of ketamine during the course of a single evening.  To inhale 3 to 4 grammes regularly is hard to believe. 

35.I rejected what the defendant told the police as far as his drug habit is concerned and doubt his financial ability to buy in bulk.  I reject his allegation he possessed the ketamine for self-consumption.

36.I do make specific reference to PW1’s evidence that he approached the defendant because he was a target.  Be that as it may, it is not evidence he was in possession for the purposes of trafficking.  PW1 did not elaborate further and the defendant did not challenge he was in possession of the drugs.  The remark does not prejudice the defendant.  The fact PW1 said the defendant was patting or pressing the pocket containing the dangerous drugs also does not assist in deciding whether the only inference to be drawn is possession for trafficking, but demeanour at the time of arrest can be relevant.  Also the fact the defendant struggled with the police is not evidence of trafficking. 

37.The only remaining issue is whether on the prosecution’s evidence the only reasonable inference that can be drawn is that the defendant possessed the ketamine for the purpose of unlawful trafficking.

38.I found no evidence the defendant could afford to pay for a significant amount of ketamine even if heavily discounted.

39.I found no evidence he was a drug addict at the time of arrest.  I rejected the defendant’s attempt to convince the police he had a habit that required between 6 to 12 grammes a week over two to three occasions.

40.I rejected the evidence he bought the ketamine for himself at 6 pm but did not take it straight home to Tung Chung from Tuen Mun.  Instead he went to have something to eat and was arrested nearly two hours after buying the ketamine.  I do not believe he would take that risk instead of going straight home.

41.Accordingly, I am satisfied so I am sure the only inference to be drawn is that the defendant possessed the ketamine for the purposes of trafficking.

42.I did consider all submissions made on behalf of the defendant but nothing said caused me to doubt my finding that there was sufficient evidence collectively for me to draw the one and only inference required. 

43.I am satisfied that the prosecution can prove beyond reasonable doubt all the elements of this charge.  The defendant is convicted as charged.