HKSAR v. ANMOL SINGH

DCCC 726/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 726 OF 2013

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

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

Reasons for Verdict

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

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

2.   The particulars are that on the evening of 21 June 2013 he was outside 80-82 Morrison Hill Road in Wan Chai and unlawfully trafficked in a dangerous drug, namely 43.34 grammes of a powder containing 22.78 grammes of ketamine.

3.   The issue is whether or not the defendant knew the dangerous drugs were in a plastic bag carried by him when he was stopped by two police officers who thought he looked and acted suspiciously.

4.   The defendant does not deny the drugs were in a bag carried by him, but he denies any knowledge of its existence.  He denies any intent to unlawfully traffic the ketamine.

The Prosecution Case

5.   The prosecution called two police officers to give evidence.  Both were, at the material time, in plain clothes and on an anti-dangerous drugs operation in the Morrison Hill Road vicinity. Members of their team were nearby.

6.   PW1, PC11036, saw the defendant first. He saw the defendant emerge from a pedestrian subway at speed and stop.  He watched the defendant pace back and forth at the mouth of the subway.  He was also looking around as if waiting for or looking for someone.  PW1 could see a plastic bag in one hand.  After half a minute, the defendant walked in the direction of the two police officers, who were standing near a bus stop.  The officers let him walk past and then followed him.  After a short distance, they stopped him.  Nothing suspicious was found on his person after a search.

7.   Exhibit P8 is a photo album produced, and photo 6 shows where the defendant was intercepted, and photo 7 is the back alley where he was searched.  Exhibit P8 was produced by Admitted Facts, Exhibit P9.

8.   After a body search, PW1 searched the defendant’s bag in his hand.  In a yellow plastic bag PW1 found a smaller black plastic bag.  In that black bag was an empty plastic box-like container.  In the yellow bag, and placed under the black bag, PW1 found two bags of ketamine wrapped inside a tissue.

9.   PW1 then arrested the defendant in English for trafficking in dangerous drugs.  The defendant replied several times that he did not know. 

10.   Both police officers say the defendant did attempt to flee approximately three times.  PW2 had initially one hand on the defendant’s shoulder, but after a second attempt to leave, PW2 put both hands on the defendant’s shoulders.  He then cuffed the defendant because he was a flight risk.

11.   The defendant gave a video-recorded interview the next day, but it was not challenged.  It was produced as Exhibit P7. 

12.   It was agreed the drugs were worth, on the street, $5,330.

13.   The defendant is not a Hong Kong resident. He is an Indian national who is seeking asylum in Hong Kong.  He came here in 2006 and has been for the past five years a street sleeper.

The Defence Case

14.   The defendant elected to give evidence. He explained how he lived in the subway near the Jockey Club Racecourse and was not the only one.  He survived with food from the Sikh temple nearby and some money from his Indonesian girlfriend, who worked here in Hong Kong as a domestic helper.

15.   He gave evidence that he did not know he had drugs in his possession placed between the two plastic bags.  He explained that he earlier that evening had been to the Sikh temple for dinner.  He was late, and had to take the food away.  On the way there he found a plastic box and used it as a container for the food he collected.  He took the food back to the subway to eat.  He then found a black plastic bag, and he put it in his yellow bag.  He went to the toilet nearby after eating to wash his hands.  He left his plastic bag, the yellow one, unattended with his belongings.

16.   When he returned from the toilet, he saw a friend near his belongings.  He then wanted to buy water from a nearby 7‑Eleven shop, and this friend said he would accompany him.  The defendant took his yellow bag, with the black bag in it, with him to carry water bottles.

17.   When asked why he also put in the empty plastic box‑like container into the black bag, he said he had no reason to do that.  He then said, when asked the same question in cross‑examination, that he was afraid someone may take it or throw it away if he left the empty plastic box with his belongings and suitcase in the subway.

18.   He said he and this other male left the subway to go to the 7-Eleven, but were stopped by the police at street level. His friend was also stopped but later released. 

19.   The first time he knew of the drugs in his bag was when the police searched his bag.  He told the police later in an interview that he had taken the bags from where he slept in the subway.  In his evidence he said he left the bag unattended when he went to the toilet, and that friend in the subway who walked with him to 7-Eleven was a drug addict. When he left it there, there were no drugs in the yellow bag, and later, when the police searched it, there were two bags of ketamine wrapped in a tissue. He said it could be that the drugs were put in that bag when he went to wash his hands.  He did not suggest this to the police, as he did not want to frame anyone.

20.   The defendant denied that he acted nervously, was looking around, or even tried to get away from the two police officers.  He denied he was alone when stopped by the police.

21.   The prosecution has the burden of proof and must prove this offence beyond reasonable doubt.  The prosecution must prove the defendant knowingly had physical custody of the ketamine.  The proper test where knowledge of presence of drugs is required is a subjective one.

22.   The defendant does not need to prove that he did not know the drugs were in the bag.  I refer to the definition of “trafficking” in section 2 of the Dangerous Drugs Ordinance, Cap 134, and that includes procuring, supplying or otherwise dealing in or with the dangerous drugs or possessing the dangerous drugs for the purpose of trafficking.

23.   There is no statutory provision that once possession is proved, a presumption of trafficking exists.  A quantity of ketamine alone does not prove trafficking.  If possession and knowledge is proved, and I quote from Archbold, the 2013 Hong Kong Edition:

“To draw an inference that the defendant was dealing with a dangerous drug for the purposes of trafficking, the court would look at the circumstances at the time as well as other factors such as the intent, use and purpose that the defendant had when carrying the dangerous drug, the time and place of the incident, and the quantity of the drug found.”

That is a quote from HKSAR v Chan Hong [1998] 2 HKC at 688 and referred to in paragraph 29‑31 at page 1705 of this edition of Archbold.

24.   This is not the case here, that the defendant admits possession, but denies an intention to traffic.  Here he denies knowledge of the drugs he carried in his plastic bag.  The main issue is knowledge.

25.   I heard submissions from both the prosecution and defence.  The defence submit the defendant’s first response of “I don’t know” and his subsequent denial in his interview supports his evidence.  It was submitted that his explanation and his evidence showed there was an inherent probability that he did have no knowledge of the existence of the drugs.  It was submitted there was insufficient evidence to infer knowledge.

26.   It was suggested the police officers’ evidence as to his three attempts to flee were inconsistent and unreliable, and there was no evidence that he did not co‑operate with the police.

27.   I considered all the evidence of the police officers and the defendant, as well as the physical exhibits, in particular the two plastic bags, Exhibits P1 and 2; the empty plastic box-like container, Exhibit P3; the tissue and drugs, Exhibits P4 and 5.  I considered how the bag was packed and where the drugs were placed and found.  I considered the submissions of both counsel.

28.   After carefully considering all of the above, I am sure the police officers were telling the truth.  Their evidence was not shaken, nor were there any discrepancies; material discrepancies that were so serious that I doubted the veracity of their evidence.  Where they found the drugs and how the bag was packed was not challenged.

29.   On the other hand, I did not believe the defendant’s evidence.  I am sure the drugs were deliberately placed between two plastic bags and wrapped in tissue.  I am sure an empty container was placed in the inner plastic bag for two reasons:  firstly, to bulk out the bags so they appeared to contain something of substance as opposed to small bags of drugs; secondly, to press down or keep in place the two bags of ketamine that were placed under the black bag.  Perhaps it was hoped that the drugs would remain undetected if the gap between the two bags was not carefully examined in the event of police intervention.

30.   I reject the defendant’s evidence he found the black bag not long before he left the subway and put it in the yellow bag because the yellow bag handles were about to break.  I reject his evidence that he took the plastic boxlike container with him to 7‑Eleven just in case someone took it or threw it away.  He says he took it with him to safeguard this plastic container, yet he left in the subway all his belongings, including a suitcase, his bedding and his wallet.  His evidence is nonsensical.

31.   I do not believe his insinuation that the only way the drugs could have made their way into what was his empty yellow plastic bag was if someone else placed them there without telling him.  Someone did it in the 10 minutes he left for the toilet.  I am sure this suggestion was a desperate attempt to distance himself from the drugs found in his bag, and it is not believable.

32.   I am sure the defendant had knowledge.  I am sure he was alone, as described by the police officers, and not with another man who possibly was the real owner of the drugs.  I am sure this alleged friend and drug addict was fictional.  I am sure the defendant acted in such a manner that aroused the suspicions of the police officer, PW1.  His demeanour attracted his attention, and this officer’s suspicion was accurate.

33.   Demeanour alone does not insinuate guilt, but here it led to the police officers’ decision to stop and search the defendant.  Likewise, an attempt to flee from the police, even if only half-hearted, is not evidence of guilt.  It can be, however, considered as part and parcel of the events or circumstances that lead to an arrest.

34.   I found the defendant’s evidence incredible, and I rejected it.  I am sure I can infer from the prosecution’s evidence, as well as the manner in which the bags were packed and the drugs hidden between the two plastic bags, that the defendant had knowledge of the drugs in his possession.

35.   The prosecution can prove beyond reasonable doubt that the defendant knowingly had physical custody of the ketamine.

36.   Did he possess the ketamine for the purposes of trafficking is the next question.  I am aware that if the only evidence is the defendant had possession of a significant quantity of drugs on the street, that would not be enough to infer an intention to traffic.  The court must look at all the circumstances such as the time of the day, the location, the quantity of drugs, the value; the arrested person’s own circumstances and situation; in some, but not in this case, also the arrested person’s explanation behind the possession.

37.   Here, the police arrested the defendant at about 10 pm on the street.  He was carrying a large quantity of drugs, powder weighing over 43 grammes.  The value of the drugs was significant, $5,330.  The defendant is unemployed, has no income or discernible savings that would make this quantity of drugs likely to have been bought by him.

38.   Accordingly, I infer from the value and the quantity of drugs the defendant was carrying, as well as his personal financial situation, that he was carrying the drugs for the purposes of trafficking.  There is no other reasonable explanation.  I find it an irresistible inference.

39.   I am sure, accordingly, the prosecution has proved the elements of this charge beyond reasonable doubt, and I convict the defendant as charged.