HKSAR v. Lai Kwai Po

DCCC 499/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 499 OF 2014

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of trafficking in 37.27 grammes of a powder containing 27.35 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1) and guilty to one charge of possession of 41 tablets containing a Part 1 poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138 (charge 2).

Introduction

2.In summary at about 5:40 p.m. on the 29 March this year the police intercepted the defendant when he left his home at Flat A on the second floor of No. 429 Shanghai Street.  The police found inside a red bag carried by the defendant four transparent plastic bags, three of which were later found on examination to contain ketamine.  Also found in the bag were the 41 tablets containing a Part 1 poison.  Under caution the defendant said he had just bought the ketamine and in a subsequent video interview said he intended to consume the ketamine.

3.Trafficking in relation to dangerous drugs includes, “…supplying 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).  

4.The prosecution case is that the only inference to draw from the evidence is that the defendant possessed the ketamine for the purpose of trafficking.  The defence case is that the ketamine was for the defendant’s consumption.

Evidence

Prosecution Evidence

5.The whole of the prosecution case has been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P1), including the finding of the ketamine and the Part 1 poison from the red bag carried by the defendant (see paragraph 3 as read with paragraphs 10 & 11); that the defendant was intercepted as he was leaving his home which was later searched with nothing of significance found (see paragraphs 1, 2 & 6); photographs (exhibit P2) and the retail value of the ketamine (see paragraph 12). 

6.Also admitted in evidence is that when first cautioned for trafficking the defendant replied he had just bought the drugs (see paragraph 4) and in a video interview (exhibit P3) conducted later the same day the defendant, inter alia, said he intended to consume the ketamine.

7.The voluntariness of the reply under caution and the video interview has been admitted (see paragraphs 4 & 9).  By agreement of the prosecution and the defence as the video interview required editing only an edited copy of the certified translation of the video interview was produced.

Defence evidence

8.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.   

9.The defendant relies on the explanation given to the police in the video interview that the ketamine was intended for his own consumption.  In reaching my verdict I have considered the interview, both the inculpatory and exculpatory parts, in accordance with the principles in R v Sharp (1988) 1 WLR 7.

10.Possession of the ketamine having been admitted the only issue to be determined is whether the ketamine was for trafficking or was or may have been for the defendant’s own consumption.

11.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 guilt of the defendant before I can convict.  If what the defendant told the police that the ketamine was intended for his own consumption 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.

12.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.

13.I have carefully considered all the evidence and the submissions made by Mr Turnbull and Miss Chong.  Mr Turnbull submits that considering the quantity of the ketamine; the packaging of the ketamine; and that the defendant was arrested when leaving his home the only inference to draw is that the defendant intended to supply the ketamine to other users.  Mr Turnbull also seeks to rely on an answer given in the video interview that the defendant did not consume ketamine.   

14.Miss Chong submits that the evidence relied on by the prosecution does not lead to the irresistible inference that the defendant was trafficking in the ketamine and places particular reliance on the decision of the Court of Final Appeal in Chan Chuen Ho v HKSAR [1999] 2 HKCFAR 198. 

Drug addiction

15.The defendant in the video interview said that he has consumed ketamine (“K” or “K chai”) and heroin (“4-chai”) for “Many years, 10 odd years, several decades” (see counters 176-184). 

16.I am prepared to accept that the defendant is a drug addict having on the 7 April (nine days after his arrest) been admitted to the Queen Elizabeth Hospital for nine days suffering from severe drug withdrawal symptoms (see paragraph 13 of the admitted facts, exhibit P1).

17.Mr Turnbull submits that although an addict the defendant is not a ketamine addict and refers the court to his answer at counter 68 of the video interview when he replies “No” to the question “Did you consume these two kinds of drugs?” (referring to the ketamine and the tablets found on the defendant)

18.Miss Chong submits this is unfair as the defendant had earlier in the interview said the ketamine was intended for his consumption (counter 24) and later in the interview said that he consumed ketamine and heroin (see counters 176-181). Miss Chong referring to the admitted fact that the defendant was admitted to hospital for severe drug withdrawal symptoms submits this supports what the defendant said in the video interview that he was addicted to ketamine. 

19.I find nothing unfair in the way Mr Turnbull made his submission.  Mr Turnbull saying this may not be the strongest point fairly drew the court’s attention to the answer at counter 181 where the defendant says he takes ketamine and heroin and therefore the answer at counter 68 may be viewed as ambiguous. 

20.Taken in isolation the answer at counter 68 may be read as saying the defendant was not a consumer of ketamine.  On first reading the question and answer at counters 67 & 68 which are immediately preceded by the defendant telling the police after buying the ketamine and the tablets he went home to sleep I understood the officer to be asking the defendant whether he had consumed the ketamine and tablets after returning home to sleep. 

21.At the beginning of the interview the defendant said that he bought the drugs intending to consume them (see counter 24).  The answer at counter 24 is not necessarily inconsistent with the answer at counter 68 however looking at the interview as a whole including the questions and answers preceding the answer at counter 68 and that later in the interview the defendant says he had taken ketamine and heroin for over 10 years (see counters 176-184), I am not satisfied that the defendant in the answer at counter 68 was saying he does not take ketamine. 

22.I do not however accept that the admitted fact of the defendant’s admission to the Queen Elizabeth Hospital supports that he is a ketamine addict.  The admitted fact refers to the doctors being of the opinion that the defendant had a history of intravenous drug use which is consistent with heroin addiction.  I note in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 the court heard expert evidence that ketamine is generally evaporated to form a powder that is then snorted or compressed into tablets (see paragraph 57 of the judgment).

23.Accepting the defendant is a drug addict I turn to consider whether the ketamine was for trafficking or was or may have been for the defendant’s own consumption.

Trafficking

24.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 trafficking in a dangerous drug. 

Quantity of drugs

25.The defendant was intercepted as he was leaving his home and found in possession of 27.35 grammes of ketamine which were contained in three plastic bags.  Miss Chong submits that the quantity is not so large as to be incompatible with possession for own use and relies on the decision of the Court of Final Appeal in Chan Chuen Ho v HKSAR. 

26.In that case the appellant was stopped and searched sometime after 3:00 a.m. when leaving the building where he had rented premises.  The appellant was found in possession of 37.28 grammes of heroin contained in seven reusable plastic bags.  The court said at page 203F-I, a passage relied on by Miss Chong:

“The circumstantial evidence against the appellant was strong. He was in possession of a large quantity of drugs but it was not so large as to be incompatible for being for his own use. They were packaged in a way suitable for sale but they could have been purchased by him in that form. They were found on him in the street in the very small hours of the morning. They were found on him after he had emerged from a building in which he had rented premises. Having regard to his defence, which failed on possession, there was no reason advanced why he should not have left them in those premises. There was no evidence that he was on his way home to Shatin. His own evidence was to the contrary. Large though it was, the quantity was not such as to lead inevitably to a conclusion of trafficking. There was no evidence that he was an addict or a user of the drugs but that, in the circumstances, is a neutral factor. 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. I do not agree with the Court of Appeal that properly directed there would inevitably have been a conviction for trafficking. Strong though the evidence was, there remains a possibility that the jury may have convicted him of simple possession rather than trafficking.”

27.The Court of Final Appeal was not however saying that in such circumstances a court cannot convict of trafficking.  The context in which this was said was whether it was appropriate to apply the proviso where the trial judge had misdirected the jury.  That this is so was made clear by the Chief Justice in a subsequent decision of the Court of Final Appeal in Lee Chun Tat v HKSAR FAMC 52/2006. 

28.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 v HKSAR v Leung Ming Lun CACC 8/2008 and HKSAR v Lee Chun Tat CACC 271/2005 and on appeal to the Court of Final Appeal in FAMC 52/2006 and the cases cited by Miss Chong HKSAR v Cheng Kong Sang CACC 371/2008 and HKSAR v Ho Ka Kei CACC 378/2009).

Judicial notice as to the average consumption of drug addicts

29.Notwithstanding the submission to the contrary I am satisfied that a court may take judicial notice of the average consumption of drug addicts without the need for expert evidence to be called.  In HKSAR v Chau Leong Wa CACC 51/2012 the Court of Appeal approved the trial judge taking into account the opinion of Professor Lee as to ketamine consumption which was accepted by the Court of Appeal in Hii Siew Cheng.  The opinion of Professor Lee was that recreational doses range from 10-250 mg when taken nasally.  27.35 grammes of ketamine would therefore provide more than 109 doses. 

30.Mr Turnbull referring the court to Hii Siew Cheng also very fairly drew the court’s attention to the decision in Secretary for Justice v Ng Wing Yi CAAR 4/2013 where the court was told the normal daily dosage for an addict was 1-2 grammes (see paragraph 7 of the judgment).  On this basis 27.35 grammes of ketamine would provide an addict a supply of between 13-27 days.  The court in that case was also told that addicts usually buy in quantities sufficient for one to two days consumption.

31.Miss Chong submits that without evidence being called I should totally disregard that said in Ng Wing Yi.  Although in court I said that Ng Wing Yi appears to qualify what was said in Hii Siew Cheng about the daily dosage of an addict on a further reading of Hii Siew Cheng this is not so.  The part of Professor Lee’s opinion cited earlier relates to recreational users.  Professor Lee 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 of the judgment).  This is largely consistent with that said in Ng Wing Yi.

32.Miss Chong further submits that the defendant being a long term abuser of drugs his intake may be more.  Whilst accepting the defendant is a drug addict and he told the police he had taken ketamine and heroin for over 10 years there is no other evidence before the court as to the defendant’s consumption of ketamine. 

33.I am satisfied I can take into account the opinion of Professor Lee, accepted by the Court of Appeal in Hii Siew Cheng, as to the consumption of ketamine.  I accept however that I would need to hear evidence before placing any reliance on how much an addict would usually buy.

Why was the defendant leaving his home with the ketamine?

34.In the video interview after the defendant claimed he bought the drugs that morning and then went home to sleep he was asked where he intended to go when he was stopped.  The defendant replied he was going out to eat something (see counters 69 & 70).  Later in the interview when asked why he left home with the ketamine in his bag the defendant replied he wanted to put them outside to avoid being arrested when he put them at home (see counters 170-171 & 174-175).  Asked where outside he would put them the defendant replied “Just find a place randomly (and) put (them) thereat” (see counters 172-173).

35.Miss Chong submits the defendant’s explanation that he thought it was unsafe to keep the ketamine and tablets at his home is supported by the fact that Chan Shek Kin who was arrested together with the defendant and according to the video interview lived with the defendant, was convicted of possession of ice (see paragraph 5 of the admitted facts, exhibit P1).  The defendant therefore, so the submission goes, may have considered that it was unsafe to leave the drugs at home as they may be stolen or consumed by Chan or Chan’s friends who came to the flat to consume drugs or the police would arrest Chan in the flat in the course of which the drugs would be seized.

36.I have no hesitation in rejecting this submission. Not only is this pure speculation on the part of Miss Chong there being no evidence before the court that is why the defendant took the ketamine from his home but this is also inconsistent with what the defendant said to the police.  The defendant told the police that he wanted to avoid being arrested at home not that he thought Chan may steal his drugs or be arrested by the police. 

37.Further I do not find credible the defendant’s explanation as to why he had the ketamine with him when he was leaving his home.  I do not find credible that the defendant would after buying ketamine, intending to consume the ketamine, take the ketamine home only to then, after sleeping, take the ketamine out to avoid being arrested at home.  As Mr Turnbull submits if the defendant thought his home was not safe why take them home in the first place. 

38.That the defendant would place the ketamine somewhere randomly beggars belief.  Whether a recreational user or an addict of ketamine the quantity was comparatively substantial. I find inherently improbable that the defendant would take out such a quantity of ketamine if the ketamine was for his own use and risk being arrested on the street with the drugs.  Equally I do not find credible the defendant would leave home to get something to eat taking with him such a quantity of ketamine. 

39.I am satisfied no weight is to be attached to the defendant’s explanation that he purchased the ketamine that morning intending to consume the ketamine; took the ketamine home and then, after sleeping, took the ketamine out to place somewhere randomly so as to avoid being arrested at home, which explanation was not made on oath, has not been repeated on oath and has not been tested by cross-examination (see HKSAR v Wong Tai Shing CACC 259/2006 and HKSAR v Wong Ka Wah CACC 260/2006).

Verdict

40.Having carefully considered all the evidence and taking into account that:

(i) the defendant was stopped when leaving his home;

(ii) found in possession of 27.35 grammes of ketamine (contained in three separate plastic bags); and

(iii) which quantity was equivalent to at least 109 doses for recreational use and between 13-27 days’ supply for an addict,

I find I am satisfied so I am sure the only inference to draw is that the defendant possessed the ketamine for the purpose of trafficking. I am satisfied in transporting the ketamine from his home the defendant was dealing with the ketamine and was not taking the ketamine out from his home for the purpose of enabling him, at some future time, to consume. I find inherently improbable that a user of ketamine, whether a recreational user or an addict, would take such a quantity out from his home and risk being arrested on the street with the drugs.

41.In drawing the inference that the defendant possessed the ketamine for the purpose of trafficking I have placed no weight on the packaging of the ketamine in three separate bags together with a bag containing caffeine. Nor have I placed any weight on the agreed retail value of $4,397.86 there being no evidence before me as to the basis of this value, for example whether this is based on bulk purchase or the price per gramme or an even smaller quantity. 

42.In addition I am satisfied that when the defendant told the police in the video interview he took the drugs out to avoid being arrested at home and that he would place them somewhere randomly this was a deliberate and material lie designed to account for why he was taking the ketamine out from his home, which lie supports the prosecution case (see HKSAR v Wong Tai Shing CACC 234/2005 (paragraph 17) and HKSAR v Wong Tai Shing CACC 259/2006 (paragraph 14).

43.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Miss Chong both individually and collectively, including that trafficking cannot be easily inferred from the quantity of drugs and their packaging; there was no paraphernalia suggestive of trafficking such as empty plastic bags or weighing scales found on the defendant or in his home; and that there was no suggestion the place where the defendant was arrested was a place where traffickers or purchasers of drugs resorted.  Nothing said by Miss Chong causes me to doubt the only inference to draw is that the defendant possessed the ketamine for the purpose of trafficking. 

44.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 of trafficking in a dangerous drug.  The defendant is also convicted of possession of a Part 1 poison on his own plea and admission he possessed the 41 tablets found on examination to contain a Part 1 poison (see paragraphs 3, 10 & 11(c)).