HKSAR v. Chui Yuet Kwan, Ady

DCCC 445/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 445 OF 2014

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REASONS FOR VERDICT

1.The defendant stands trial on a single count of trafficking in 10.34 grammes of a crystalline solid containing 10.08 grammes of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. The defendant pleads not guilty to trafficking but guilty to possession of the ice (charge 1). At the beginning of the trial the defendant pleaded guilty to a charge of possession of four plastic bags containing traces of ketamine, contrary to section 8 of the Dangerous Drugs Ordinance (charge 2).

Introduction

2.In summary at around 3:38 p.m. on the 20 February this year the police intercepted the defendant outside an amusement game centre at No.2 Marsh Road in Wanchai. The defendant was found in possession of two re-sealable plastic bags each containing ice and one empty re-sealable plastic bag containing eleven smaller empty re-sealable plastic bags.  Under caution the defendant said the ice was for her own consumption.  In the evening the defendant was taken to her home where the police found four plastic bags each containing traces of ketamine the subject of charge 2. 

3.The prosecution case is that the only inference to draw from the evidence is that the defendant possessed the ice for the purpose of trafficking.  The defence case is that the ice was for the defendant’s consumption.  Possession of the ice having been admitted the only issue to be determined is whether the ice was for trafficking or was or may have been for the defendant’s own consumption. 

4.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).  

Evidence

Prosecution Evidence

5.The arrest of the defendant and the finding of the ice and plastic bags have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (see paragraphs 2-4 of the admitted facts, exhibit P11).  Also admitted is the street value of the ice (see paragraph 5); the finding of the ketamine in the defendant’s home (see paragraph 6); and photographs, exhibit P10 (see paragraph 9).

6.Three video recorded interviews (exhibits P6-P8) have been admitted in evidence (see paragraph 7 of the admitted facts), in which the defendant inter alia, says that the ice was for her own consumption.  In reaching my verdict I have considered the interviews, both the inculpatory and exculpatory parts, in accordance with the principles in R v Sharp (1988) 1 WLR 7.

7.The prosecution called one witness Dr Tang Wai Kwong to give expert evidence on the consumption of ice by drug abusers.  Dr Tang adopted as part of his evidence his report dated 18 August 2014 (exhibit P12).  In the report Dr Tang sets out his qualifications and experience in the field of drug abuse.  On this evidence I ruled Dr Tang an expert witness who could give expert evidence on drug abuse including the consumption of ice. 

Defence evidence

8.The defendant elected to give evidence.  No witnesses were called on her behalf.  In summary the defendant, aged 37 and single, testified that she was a hairdresser earning a basic salary of $8,000 per month plus a bonus.  Living with her family the defendant did not have to pay rent.  Living expenses included telephone bills; transportation; lunch at work and cigarettes.  This would cost about $2,000 per month.  After deducting all expenses the defendant said she would have around $5,000 to spend each month.

Drug abuse

9.The defendant testified she took both ice and ketamine.  The defendant said she first took ice when she was 16 and stopped when she was 21.  About 2 years ago, after her father passed away, the defendant resumed taking ice.  At first the defendant took ice more frequently, about 5-6 times per week for half a year.  Then over the next year to a year and a half the defendant started to take less ice, about 2-3 times per week. 

10.In cross-examination the defendant said she had taken ice in the few days prior to arrest by using a pot and a glass moulded into the shape of ball in which she put the ice for smoking.  Asked where she kept the device when not in use the defendant replied that she would pour out the water and keep the device somewhere else.  Asked again where the device was kept the defendant replied in the toilet.  When Mr Haddon-Cave put no device was found during a search of her flat the defendant replied the police only looked in the wardrobe and not the toilet.

11.Sometimes the defendant would take ice and sometimes ketamine.  The defendant said she first started taking ketamine 4 years ago.  The defendant would take ketamine 4-5 times per week when she was having fun or when feeling unhappy. 

Arrest

12.On the day of arrest the defendant went to Causeway Bay to purchase ice.  This was arranged by her friend Ah Yee.  Ah Yee did not meet the defendant as arranged but sent another friend Ah Sam to accompany the defendant because the defendant had said she was scared to go alone. 

13.The defendant arrived outside Sogo at about 2:30 p.m. and for a while was accompanied by Ah Sam.  Ah Sam had a quarrel with her boyfriend and had to leave.  The defendant then waited on her own for a person called Ah Fai who was to sell her the drugs. 

14.The defendant had met Ah Fai once before in Kowloon when getting something together with Ah Yee.  In answer to the court the defendant said she was scared because she was not familiar with Ah Fai however when Ah Sam left the defendant nevertheless remained to wait for Ah Fai because she needed to buy ice.

15.Ah Fai arrived about 2:45 p.m. and the deal took place.  The defendant initially took out $1,000.  Ah Fai gave the defendant a bag of ice and asked the defendant if she would buy more.  The defendant agreed and paid Ah Fai $1,500 for another bag of ice.  The defendant then put the ice in her trouser pocket and walked towards Wanchai.  Ah Fai followed the defendant. 

16.Afraid that Ah Fai would find out where she lived the defendant went into an amusement game centre to play video games.  When Ah Fai was not paying attention to her the defendant took the opportunity to leave.  As she was leaving the defendant was intercepted and arrested by the police. 

17.In cross-examination when asked where she was going when she was intercepted by the police the defendant replied she was going to Kowloon to buy a device for smoking ice because the one she had at home was broken.  In answer to the court when asked why she did not go home the defendant repeated that she was afraid that Ah Fai would find out where she lived so she went into the amusement game centre to play video games.

18.The ice was for the defendant’s own consumption.  In cross-examination the defendant said that she had bought ice 10 times over the past two years each time paying about $500-$1,000 with the ice lasting her about half a month.  The defendant agreed on this occasion she bought considerably more than her average purchase explaining this was because the ice was cheap.  At first the defendant said she did not know how long this quantity of ice would have lasted her. Asked again by Mr Haddon-Cave the defendant said this would depend on whether she was in a good mood when she would take less or in a bad mood when she would take more.   The defendant then said the ice would have lasted her about two months.

19.The twelve empty plastic bags were given to her by Ah Yee about a month earlier. The defendant put them in her bag because she thought they were useful and intended to use them for keeping things for example SIM cards, SD cards, earrings and damaged accessories such as chains. 

20.In cross-examination when asked if she had any other similar plastic bags in her handbag when arrested the defendant replied that she had two bags in her wallet, one containing a SIM card and the other an SD card.  The defendant said she also had one larger bag, similar to the size of the bag containing the eleven smaller bags, in which she had put a watch with a broken strap.  When put by Mr Haddon-Cave that the plastic bags were carried on the street for reselling ice and not for putting other items in the defendant disagreed saying she had them with her even now. 

Consideration of the evidence

21.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 ice was intended for her 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.

22.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.

23.I have carefully considered all the evidence and the submissions made by Mr Haddon-Cave and Mr Woon.  I have no hesitation in rejecting the defendant’s evidence.  I do not find her evidence credible.  For example I do not find credible the defendant’s evidence as to her abuse of ice.  The defendant’s evidence that she first started taking ice when she was 16 some 21 years ago; stopped when she was 21 and resumed again after the death of her father about 2 years ago is inconsistent with what she told the police in two of the video interviews. 

24.In the first video interview (exhibit P6) when asked how long she had been taking dangerous drugs the defendant replied she had taken ice for three months (see counters 125-126 and 143-146).  In the third video interview (exhibit P8) when asked how long it had been since she started the habit of taking ice the defendant again replied she had started three months ago only and that she took ice two or three times per week (see counters 29-34).

25.In cross-examination when asked why she told the police she had only taken drugs for three months the defendant replied that she said this because she had stopped taking drugs for a period of time and then took drugs again.  When Mr Haddon-Cave reminded the defendant of her earlier evidence that she had taken drugs for two years the defendant said she meant she had not taken ice continuously during these two years.  

26.When the court referred the defendant to the specific entries in the two video interviews and asked why she did not tell the police the truth about her drug habit the defendant replied that she was very scared.  The defendant repeated that there had been a period of time when she quit taking drugs and said that prior to her arrest she had been taking drugs for three months.  The defendant explained that in November last year when her mother discovered her taking ice she promised not to take anymore.  However when her grandma fell ill in December the defendant was upset and resumed taking drugs. 

27.I do not find credible the defendant’s evidence in cross-examination that the ice would have lasted her for two months.  This again is inconsistent with what the defendant told the police in the third video interview that the drugs would last around half to one month (see exhibit P8, counters 35-36).  The defendant again explained that she was scared when she told this to the police.    

28.I reject the defendant’s explanations for the discrepancies in her evidence and what she told the police about how long she had been taking drugs and how long the drugs would have lasted her.  Whilst someone may well be scared on being arrested the fact remains the defendant told the police not once but twice, in two separate video interviews, that she had only been taking ice for three months. 

29.Notwithstanding the defendant’s explanation the twelve empty plastic bags were for keeping things in such as earrings and damaged accessories is consistent with what she told the police in thefirst video interview, exhibit P6 (see counters 209-226), I do not find this explanation credible.  I do not find credible the defendant would carry with her for one month empty plastic bags.   

30.I do not find credible the defendant’s evidence that she bought the drugs from a person called Ah Fai who then followed her to the amusement game centre.  I find inherently improbable that a trafficker in drugs would remain with the buyer thereby increasing the risk of him being arrested if the buyer was stopped by the police. 

31.I do not find credible the defendant’s evidence that on leaving the amusement game centre she intended to go shopping to buy a device for smoking ice.  Although the defendant also told the police in the first video interview (exhibit P6) that she was going to Kowloon for shopping (see counters 121-124) I find inherently improbable that having just bought a relatively large quantity of ice the defendant would go to an amusement game centre to play video games and then go shopping and not go home.    

32.I reject the defendant’s evidence in court and in the video interviews that she bought ice from Ah Fai for her own consumption.  I remind myself that the rejection of the defendant’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Trafficking

33.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

34.The defendant was found in possession of two plastic bags containing a total of 10.08 grammes of ice.  Mr Woon submits the quantity is not so large that the irresistible inference must be the defendant was trafficking and refers to the decision of the Court of Final Appeal in Chan Chuen Ho v HKSAR [1999] 2 HKCFAR 198.

35.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:

“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.”

36.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. 

37.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; HKSAR v Cheng Kong Sang CACC 371/2008; HKSAR v Ho Ka Kei CACC 378/2009 and HKSAR v Chau Leong Wa CACC 51/2012).

The average consumption of drug addicts

38.Dr Tang acknowledged that the consumption rate of ice is highly variable between abusers and that there is a lack of data on daily ice consumption among abusers in Hong Kong (see paragraphs 4 & 6 of Dr Tang’s report).  In giving his opinion Dr Tang therefore relied on a study conducted on the Mainland (see paragraph 7 of Dr Tang’s report).

39.In re-examination Dr Tang explained that it was not a routine question of his to ask for the daily rate of consumption of drug abusers he treated.  This was because the abuser did not talk in terms of grams and would not know the purity of the drug.  For these reasons Dr Tang based his evidence on hard facts explaining that the study in China was a large scale study of ethnic Chinese abusers. 

40.The study was based on 1464 Chinese abusers who abused ice over a period of between 1-197 months with an average use of 53 months.  The conclusion of the study was that the daily use of these abusers would range from 0.1 gram to 2 grams with an average daily dose of 0.13 gram.  Further 87% of abusers used less than 0.2 gram (see paragraph 7 of Dr Tang’s report).  Dr Tang was of the opinion that a person who had abused drugs for 3 months, 2-3 times per week was a light user. In answer to the court Dr Tang was of the opinion that the average daily use, being based on a much longer duration of use, would be higher than the dosage for someone who had been abusing drugs for only three months. 

41.Mr Woon submits that very little weight should be attached to the opinion of Dr Tang because the study he relied on was based on abusers in Shanxi Province in Northern China and that it would have been more accurate if the study was from abusers in Guangzhou or Shenzen whose culture is more similar to abusers in Hong Kong.   

42.Dr Tang regarded the study as accurate and reliable.  I accept the opinion of Dr Tang which is consistent with the consumption rates of ice given in the recent case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 where evidence was heard by the Court of Appeal from Dr Tse Man Li, Consultant and Deputy Director of the Hong Kong Poison Information Centre.  The average abuse dosage for new or infrequent users of ice was said to be in the range of 0.05 to 0.1 grammes per day (see paragraph 26 of the judgment).  As for regular users of ice, the average daily consumption was said to be in the range of 0.1 to 0.5 grammes (see paragraph 27 of the judgment).

43.Applying the average daily consumption rate to the amount of ice found on the defendant Dr Tang is of the opinion this would last for 77.5 days (see paragraph 9 of Dr Tang’s report).  The ice would last longer in the case of a light user who has abused drugs for only 3 months, 2-3 times per week and less time if the average is at the upper range of 0.5 gramme given by Dr Tse in Tam Yi Chun.

44.Dr Tang also relies on a large scale European survey of users that the average amount of ice usually bought per purchase is 2.2 grams.  Without any evidence of the amounts Chinese abusers usually buy I am satisfied I should place no weight on this part of Dr Tang’s evidence.  

Twelve empty smaller packets

45.The defendant was also found in possession of eleven empty smaller plastic bags which were inside a larger empty plastic bag (collectively exhibit P4 as seen in photographs 5-8) which empty bags are clearly suitable for further packaging of the ice.  In considering this evidence I have borne in mind the submission of Mr Woon that the twelve empty bags are not strong evidence to support the defendant was trafficking, in particular considering the bags could be used for a variety of reasons and not just for packaging ice and that if the defendant intended to repackage the ice she would have done this in a toilet or cubicle of the amusement game centre. 

Verdict

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

(i) the defendant was stopped on the street;

(ii) found in possession of 10.08 grammes of ice;

(iii) which quantity would last for 77.5 days for an average abuser and longer for a lighter user thereby making this a considerable quantity for a lighter user or an average user to possess; and

(iv) the defendant was also found in possession of twelve empty plastic bags suitable for further packaging the ice;

I find I am satisfied so I am sure the only inference to draw is that the defendant possessed the ice for the purpose of trafficking. I am satisfied the defendant was dealing with the ice and was not possessing the ice for the purpose of enabling her, at some future time, to consume.

47.In drawing the inference that the defendant possessed the ice for the purpose of trafficking I have placed no weight on the packaging of the ice in two separate bags.  Nor have I placed any weight on the admitted street value of $4,621.98 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. 

48.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Woon both individually and collectively, including no weighing scale for dividing the ice or large amounts of cash were found on the defendant or at her home and that no phone records were produced showing the defendant communicating with others shortly before her arrest.  Nothing said by Mr Woon causes me to doubt the only inference to draw is the defendant possessed the ice for the purpose of trafficking.  I have also taken into account there is no evidence before the court that the amusement game centre where the defendant was arrested was a place where traffickers or purchasers of drugs resorted. 

49.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 traces of ketamine on her own plea and admission of the facts relating to that charge.