HKSAR v. Yiu Chiu Fung

DCCC 279/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 279 OF 2014

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Reasons for Verdict

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The Charge

1.The defendant faces one charge of trafficking in a dangerous drug.  The drug concerned in the charge is 23.81 grammes of a mixture containing 8.76 grammes of cocaine.  The drugs were seized from the defendant’s person in the early hours of 13 February 2014 in a lane in Pak Heung in Yuen Long.

2.The defendant at the time of his arrest said the drugs were for his own consumption.  The defendant admits possession of the drug but denies the drugs were for trafficking. 

3.The prosecution does not present any direct evidence that the defendant was trafficking in these drugs but says an inference can be drawn from the circumstances surrounding the defendant’s uncontested evidence of possession of the drug.

4.The prosecution evidence was largely proved by a set of admitted facts, Exhibit P9.  The arresting officer was also called.  His evidence was uncontested. 

5.The admitted facts established that at 2.37 hours in the morning of 13 February 2014 the defendant was stopped by PW1 when he was seen to be acting suspiciously.  A search was conducted.  PW1 discovered, firstly, two transparent resealable plastic bags containing white powder inside the left pocket of the defendant’s jacket, this is P1; three mobile phones, this is P2; and $16,523.80 in cash, that was P3.  The defendant immediately told PW1 the bags contained cocaine. 

6.On arrest, he said, “Ah sir, give me a chance. The stuff is for my own consumption.”  The contents of P1 were found to be the 23.81 grammes of a mixture containing 8.76 grammes of cocaine.  Nothing suspicious was found in the defendant’s vehicle or in his residence, that of his parents or his girlfriend’s family.  All those locations were searched. 

7.It is agreed that at the material time the estimated street value of the cocaine seized was $35,120. 

8.The examination -- also agreed was that the examination of the telephone records of the defendant’s three phones possessed by him that between 00.30 hours that morning and 2037 hours on 13 February, a total of seven calls were made or received by those phones for durations between 6 and 74 seconds each. 

9.PW1 was called.  His evidence did not add anything to the admitted facts. 

10.The defence case is as follows.  The defendant gave evidence.  He is 28 years old, single.  He has a girlfriend and a 3-year-old daughter.  I am told that he has no previous convictions for drug offences but was found to be in breach of a probation order in 2006 due to a positive urine test as a result of consumption of cocaine. 

11.He said he worked during the daytime as a car component dealer earning around $20,000 per month.  He also worked at a bar near the place where he was arrested.  He was employed there as a bartender. He worked there from 9 pm to 3 am daily earning between $5,500 and $10,000 per month.

12.He did not dispute the finding of the cocaine on his body.  He says in evidence he bought it for his own consumption.  He smoked it in a cigarette.  He said it was crack cocaine.  He had been taking it for two to three years, smoking the drug one to two times per week after work.  He spent about $10,000 per month on cocaine.  He bought the cocaine from one “Ah Sing”.  He would telephone and Ah Sing would deliver the drugs to a bus stop outside the bar where he worked.  He paid $10,000 for the drugs.  He would consume the drug at such a rate that the drug purchased by him would last one month. 

13.He was cross-examined about the three mobile phones in his possession.  He said one was in his girlfriend’s name and two had prepaid S-I-M or SIM cards.  He said he kept one as a number for his car component business and one for bar job related matters.  He in fact received two calls whilst PW1 was with him, and he said those related to the sale of a vehicle, a Toyota Alphard for a Mr Lau.  The other call to the other prepaid SIM card phone related to a Mr Lo who was booking a table at the bar.  He said that he had the two prepaid SIM cards as he owed money to the telecom company who would not extend him any further credit.

14.He confirmed that he had no other sources of income besides his income from the car component business and the bar work. 

15.The prosecution case is that the defendant possessed the drugs for the purpose of trafficking in them.  They say the inference that the defendant possessed the drugs for this purpose can be drawn from the following:  (a) firstly, his possession of three phones, two with prepaid SIM cards which would provide necessary anonymity; secondly, the receipt on those phones of a number of calls in the early hours of the morning; thirdly, the possession by him of the quantity of cocaine, the 23.81 grammes of a solid, whose estimated street value at $35,000 would exceed the defendant’s monthly income; and, furthermore, the possession by the defendant of $16,000 odd in cash. 

16.It was said by the prosecution the defendant must have lied about paying only $10,000 in cash for the drugs and about the nature of the calls received by him in the early hours of the morning on 13 February 2014.  The prosecution say the defendant must have been lying as realisation of guilt. 

The Defence Case

17.The defence say that there is no evidence of the dosage or use of cocaine save that of the defendant, and his evidence on his consumption of the drug, and the rate of his consumption of the drug, would stand unchallenged.  There is no evidence of any ancillary paraphernalia for trafficking in the drug.  There were searches conducted at the defendant’s premises, all the premises the defendant was connected with and his vehicle. There were no further bags, resealable or otherwise, scales or items for separating the drugs out.  The drugs were contained in two large amounts in two plastic bags. 

18.It is said the defendant had been frank about his possession of the drug and he had always said it was for his own consumption.  It is said the quantity of drugs alone could not support an inference that the drugs were for trafficking.  It is also said that the evidence of the valuation of the drug although agreed could not be relied upon with any certainty as the drug content of the mixture was very low and the drugs were themselves bought in bulk, not in one gramme doses.   

19.It was also said the evidence of the possession and use of the mobile phones was inconclusive.   The first prosecution witness had in fact been present when two of the calls were taken at the time when the defendant was arrested.  The defendant’s evidence that these were work related remained uncontradicted by that witness who had not given any evidence about them at all. 

20.Trafficking in a dangerous drug includes possessing the drug, the dangerous drug, for the purposes of trafficking.  It is established by section 2 of Cap 134.  In this case, as a matter of fact, the defendant admits possession of the drug.  There is no direct evidence of trafficking or that the possession was for the purpose of trafficking.  The prosecution must rely upon the drawing of an inference to establish that fact.

21.To establish such a fact by way of inference, it must be proved beyond reasonable doubt.  In order to do so, the inference must be the only one that can reasonably be drawn in the circumstances.  It must be the only reasonable and compelling inference that can be drawn to satisfy the burden and standard of proof.

22.The quantity of drug is 23.81 grammes of a mixture with a narcotic content of 8.76 grammes of cocaine.  The only evidence I have in respect of consumption of this drug is from the defendant.  He said he would consume this quantity in a month, using it two times a week which should be a rate of 7 odd grammes per week.  He was not cross-examined on this aspect of the matter. 

23.Although this does not appear to be an excessive claim, nevertheless, one might expect an addict to buy in smaller quantities to avoid the risk of being found with such a large quantity of the drug despite the other benefits of possible price reductions.  Nevertheless, the quantity of drug in this case is not sufficiently large that an inference of trafficking can be drawn from the quantity of drug seized alone.

24.What can be established is that the quantity of drug would provide a consumer with a sizeable quantity that far exceeds the amount required for daily consumption.  The prosecution rely not only upon the quantity of drug found, they rely upon the possession of the three mobile phones.  They say this is an excessive number.  Two of them have prepaid SIM cards and the content of the seven short conversations of them in the two hours around the finding of the drug on the defendant’s person, all the calls made on these phones have been logged and records of them have been produced. 

25.There is, before the court, no evidence beside that of the defendant as to whom the calls were made to or from.  There is no evidence that the calls followed a pattern that may be expected where drugs have been trafficked.  As such, the possession of the phones and the evidence of the calls is not compelling either for or against the defendant.  I consider the number of phones possessed by the defendant without further evidence falls into the same category.  

26.Looking at the finances in this case.  The prosecution rely upon the defendant’s means and the amount of money found upon him.  The defendant says he purchased the drugs for $10,000.  He also had $16,523 in his possession.  This would mean that he left the bar that evening on his own account with $26,523, almost a whole month’s salary.  If the figure of $35,000 is adopted, that being the estimated street value of the drug at that time, then the figure would be over $50,000, and clearly in excess of his monthly salary.

27.If it could be established, that the defendant had substantial cash assets that clearly exceeded his stated income and means, then the excess cash could be the result of the selling and trafficking in of drugs.  However, I do note that it is submitted by the defence that taking the higher figure for the value of the drugs in this case, they say, may be erroneous.

28.The figure produced by the prosecution is a figure based on a calculation based on the quantity of the solid, that being 23.81 grammes, valued at which is multiplied by 1,475, to give a figure of 35,120.  The defence say this does not distinguish between the relative purity of the drug.  In this case the content of cocaine is 8.76 which is something like a 30 per cent purity.  It is said that it is possible that may affect the sale price.

29.It is also said that the purchase in bulk in an area such as Yuen Long may also lead to a reduction in price.  However, the agreed street value of the cocaine seized in paragraph 30 of the admitted facts is one of $35,120.  That is a figure proved as a fact in this case.  This means that on that basis the defendant must have had in his possession or access to on the evening of 13 February 2014 a sum in excess of $50,000, far in excess of the sum of $26,000 which was evidenced by him.

30.Furthermore, it must then also be the case that the sum of $10,000 attributed by the defendant to the value of the drugs bought by him is simply wrong and untrue.  The defendant would not on the valuation of $35,120 be in a position to purchase these drugs even if he used all his monthly income.  Furthermore, he told the court that he purchased these drugs on a monthly basis.  It would mean that his earned income could not match his monthly purchase of drugs even if all of it was spent on drugs.  Put it colloquially, he could not afford his own habit. 

31.The defendant gave evidence to this in his defence.  The fact that he is a consumer of cocaine is not challenged, nor is his previous involvement with the court because of cocaine challenged either. I consider it can be accepted in this case as a fact that he is a consumer of cocaine.  I do not however consider that his evidence about his earnings and his rate of consumption for this drug to be reliable in any way.

32.I am sure the defendant has lied about this aspect of his evidence and I certainly reject his evidence about how he consumed the drug and the way in which he funded his consumption of the drug.  As I said, I am prepared to accept he is a consumer of the drug.  The rest of his evidence, I reject.  I particularly reject his evidence about the amount he purchased for the drug, the sources of his income for the purchase of the drug and his evidence about his income generally. 

33.I accept the evidence of the drug seized at a street value of over $35,000 and that the defendant would have had to pay somewhere in that region for the drugs.  There is unchallenged evidence that the defendant has an income of between $25,000 to $30,000 per month.  Thus, as I say, the drugs purchased by him far exceed his monthly income.  I therefore can draw the inference that aside from his evident source of income, the defendant must therefore be able to access other funds, despite the defendant saying in cross-examination he had no other source of funds.

34.Thus I draw the irresistible inference that the defendant’s ability to fund and purchase the drugs would arise out of his onward selling of at least part of the drugs found in his possession. Furthermore, that must be how the money to fund the acquisition of the drugs in this charge must have been obtained.

35.In the absence of any other evidence to the contrary and in the light of the quantity of drugs found, together with the price of those drugs, I find that this is the only reasonable and compelling conclusion.  I therefore find beyond reasonable doubt that the defendant had possessed these drugs and possessed them, the drugs are the subject of the charge, and possessed those drugs for the purposes of trafficking in them and convict him accordingly of that charge.