HKSAR v. LEUNG WAN HING, SAM

DCCC 999/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 999 OF 2013

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

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

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

Reasons for Verdict

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

Introduction

1. The defendant faces 3 charges, namely:

Charge 1 - possession of dangerous drugs, 0.33 gram of methamphetamine hydrochloride, commonly known as ‘Ice’;

Charge 2 - trafficking in dangerous drugs, 4.55 grammes of methamphetamine hydrochloride (Ice);

Charge 3 - possession of Part I poison, 84 tablets of benzhexol.

2. The defendant pleads guilty to charges 1 and 3 but denies charge 2 insofar as it relates to trafficking; his plea to simple possession of charge 2 is not acceptable to the prosecution, and therefore the trial proceeds.

3. The majority of the prosecution case is not disputed. The relevant part may be summarized as follows:

“At around 9 p.m. on 13^th August 2013, the police stopped the defendant in the street near where he lived and found a bag containing 0.33 g of ‘ice’ on his person. He was then brought back to his place for a search; further drugs, 4.55g of ‘ice’ and 84 tablets of benzhexol, were found on the premises, along with an electronic scale, a section of a drinking straw, and some two hundred re-sealable plastic bags of 3 different sizes. The defendant exercised his right to silence throughout the incident.”

4. The issue of the case is whether the drugs found in defendant’s residence, that’s 4.55g of ‘ice’, were as the defendant claimed for personal use or as the prosecution alleged for the purpose of trafficking.

5. At trial, the defendant took the stand and explained how he came by the items and what they were used for. First of all, he described himself as a long-time drug abuser - he took drugs as early as 1989 and changed to use ‘ice’ in 1997; at the time of his arrest he was consuming no more than 0.5g of the drug in a day. He bought 5g of ‘ice’ for $1,500 on the day before his arrest; all the drugs in the present case came from this purchase.

6. There is disagreement over the exact location of some of the exhibits found on the property; I do not think that this has much bearing on the issue of the case. The defendant admitted knowledge of them and sought to explain their presence; the question remains whether his explanations are credible?

The Electronic Scale

7. The defendant explained that the scale was used for two purposes:

(1) - to weigh the drugs he bought to ensure he was not being cheated;

(2) - not to overdose on ‘ice’.

He said he once heard an expert say in court that a person’s normal daily dosage of ‘ice’ is 0.5g, and overdose endangers life, so he always keeps his dosage to that limit.

Re-sealable Plastic Bags

8. Some 200 re-sealable plastic bags seized are of 3 different sizes - large (4’x3’), medium (3’x2’), and small (2 ’x 1’); there are 84 of them large, 81 medium and 45 small.

9. It is part of the admitted facts that a red iron box (exhibit P.5a) contains the electronic scale (exhibit P.5b), a section of straw (exhibit P.5c) and 29 small re-sealable plastic bags (exhibit P.5d) (these form part of the 45 small bags mentioned in the preceding paragraph).

10. The defendant said the large and medium bags were used as snack bag for his son; his girlfriend would put snacks into the bags for the kid to take to school to eat as there was no tuck shop in the school. The small bags were used by the defendant himself for containing drugs.

A section of Straw (About 2 to 3 inches long)

11. The defendant testified that he would use the straw to put drugs into the small bags from the bag containing the 5g of ‘ice’ he bought. He would weigh 0.5g of ‘ice’ and then put it into the small bag.

Defendant’s circumstances

12. He claimed that he did two jobs- one as a decoration worker on a casual basis and the other as a parallel goods trader. ‘The decoration job pays me $550 a day and I get the pay on the day I work’, said the defendant, but he made no mention about how much he earned from parallel goods trading.  Nevertheless, he said he earned on average $15,000 a month.

13. Although he lives with his girlfriend and his 8-year-old son, they do not rely on him for support, for they are living sufficiently on Social Security.

The glass bottle

14. The defendant said that when he consumed drugs at home, he would use a glass bottle to inhale it. The bottle was placed inside the bathroom. He alleged that the police had broken it in the course of house search. He said he did not witness how it happened as he was then handcuffed and made to sit on the sofa in the sitting room, and he was only told about it by a woman officer. The police never showed him any of the broken pieces. It might be inferred from having an inhaling apparatus that he had the drugs for self consumption, now without the glass bottle as proof, he said his defence of personal use is seriously prejudiced.

On the day of Offence

15. The defendant said that he would usually take drugs at home, but when his family members were around, he would go out to the neighbouring guest house and rent a room there to consume it because he did not want them to see it.

16. He said the rental charge was $50 for a minimum of 2 hours, and he would also need some tinfoil to inhale the drugs. He would pay about $10 to an amah at the guest house to get a piece of tinfoil. 

17. That night, fearing that his girlfriend and son might come home from outside, he went out taking a packet of drugs (the subject matter of charge 1) with him for the purpose of consuming it in the guesthouse, but was stopped by the police on the way.

Analysis

18. The prosecution bears the burden of proving the charge beyond all reasonable doubt; being a defendant, he is under no duty to prove anything.

Defendant’s drug habit

19. It is worth noting from the defendant’s own testimony that his mode of drug taking seemed to depend on the location where he would consume it – at home he said he would use a glass bottle; outside we would use tinfoil.

20. The glass bottle was not of very large size, as he described, it was about half the size of a carton of drink (375ml).

21. He disagreed with prosecuting counsel’s suggestion that it would take him 2 to 3 minutes to take the drugs by using the glass bottle, but he said it would take 5 minutes.

Is it credible that he would take drugs in a guesthouse

22. He claimed that he earned an average monthly income of $15,000 by doing two jobs without having to support a family; with that kind of income he could hardly be described as a man of means.

23. One should not lose sight of the nature of the jobs he said he was doing, that’s a casual decoration worker and a parallel goods trader, obviously this type of work would not guarantee him a constant income. The situation the defendant thus faced is like this: on the one hand, he did not have a steady stream of income; whilst on the other, he had some sort of constant expenditure, i.e. he needed money to finance his drug habit which cost him at least a few thousands a month (he said he bought 5g of ice for $1,500 which would last him for 15 to 20 days). Given his circumstances, it makes perfect sense if he would only spend his money when necessary and I expect him to do so too.

24. Was it reasonable that he would spend money renting a room in the guesthouse solely for the purpose of taking drugs? I do not think so. His testimony suggested that he had kept his family members in the dark about his drug habit, and above all he did not want his son to find out about it. 

25. He could hardly do so, as argued by the prosecuting counsel, given the cramped living condition (It’s just a room of a flat as shown in the photos), but I would say that the defendant had every reason to save up for the drugs such that he would not rent a room to take drugs when he could have it done at home for no more than 5 minutes. I am sure he can find the time and the way to do it when needs must.

26. Remember the defendant said he used glass bottle as a means of taking drugs at home, why did he change that to using tinfoil at the guesthouse? Not only would that mean extra costs (pay $10 to an amah) for him but also, and more importantly, he might run the risk of not being supplied with it, say for example the tinfoil ran out. How then would he be able to consume the drugs when that happened?

27. It is clear from the exchanges he had with the prosecuting counsel during cross-examination; the defendant is not a stupid person at all. He knew what the likely consequences of his actions were. When going out with the drugs on him, he said he realized that the police might find out but decided to risk it, and that was why he ended up in court today. A person who was prepared to risk being caught by the police with drugs on him would less likely be worried about the discovery at the same time of a drug inhaling apparatus such as the glass bottle. On the contrary, I think he had all the more reason to take the bottle with him, firstly, to save extra costs of having to buy the tinfoil and the trouble of not being supplied with the tinfoil, and secondly, to have something as proof that he had the drugs for his own consumption. But the hard fact is he had no glass bottle with him at the time he was stopped by the police in the street.

28. It is clear from the above that going out to a neighbouring guesthouse to consume drugs would be more trouble than it’s worth in that

(1) -he had to spend extra money renting a room and getting tinfoil;

(2) -he would run the risk of not having the tinfoil;

(3) -he might be caught by police.

29. Without a doubt, his version that he would take the drugs from home to the neighbouring guesthouse to consume it over there is not worthy of belief. I have no difficulty in rejecting it.

The electronic Scale

“Sold-short”

30. He said one of the reasons he had the scale was to check that he had not been cheated by the drug dealer when he bought the drugs. Given the check would likely be made after the event, I do not think it served any useful purpose; I would agree with the prosecutor that quantity of drugs would be checked at the point of sale. Defendant said he had abused drugs over 30 years (since 1989), I am sure with his experience as a drug buyer, he would have found by now some dealers with whom he felt like doing business.

“Own quantity for consumption”

31. The other reason was that he would weigh the drugs for his own consumption so as not to overdose; he said he once heard an expert say the normal daily dosage is 0.5g of ice, so he kept to that limit by using the scale.

32. When he was being queried by the prosecutor that the 5g ‘ice’ would not last him for 15 to 20 days, if according to him, he would set aside 0.5 g each day; he was quick to point out that he did not say he would consume 0.5 g every day implying that sometimes he might not finish off the amount set aside for the day.

33. The defendant said starting from 1997 he changed to use ‘ice’ instead of heroin, so according to him, he should be an experienced ‘ice’ abuser. Even without the help of an electronic scale, I do not think he would have any difficulty in getting the amount he wanted every day.

Some 200 re-sealable plastic bags

34. These bags are of 3 different sizes - large, medium and small. The defendant said that all the bags except the small ones are used for keeping snacks for his son to take to school. As far as the small bags were concerned, he used them for containing drugs-he would put 0.5g of ‘ice’ into one bag each day.

35. The defendant said the bags had to be bought in one lot of a hundred, that’s why he had so many of them at home. The police found 45 small bags on the property 29 of which were inside a metal box together with the 84 tablets. It is not clear from the evidence whether the defendant would use the small bags one bag a day or in some other manner; but in any event I do not believe him.

36. Being a drug addict and having bought drugs for a long time, I am sure the defendant knew these re-sealable bags could be damning evidence for someone who faced a charge of trafficking in dangerous drugs. If he really wanted to have something to contain drugs for his own use, there are a lot other things he could use and he knew better than to use the re-sealable bags. 

What were the scale and the re-sealable bags really for

37. I think the defendant just put up these lame excuses trying to say that the scale as well as the re-sealable bags had nothing to do with drug packaging for distribution. He’s not telling me the truth. I believe he had a bigger fish to fry with these items, and in fact these things were closely related to the drugs found in his place.

38. When a person wants to sell drugs to others, he’ll need a scale of some kind in order to weigh the drugs to ensure he get the right amount. A re-sealable bag will be the ideal container to put the drugs in. All these things were found on his property together with the drugs. Now I have rejected his explanation as to self-consumption, on the evidence before the court, the only irresistible inference to be drawn is that the drugs were for trafficking only.

Could part of the drugs be for his own use

39. During cross-examination, the prosecutor once put to the defendant that the drugs found on him in the street (the subject matter of charge 1-simple possession) was for trafficking too; but strange to relate, in his final speech, he changed his attitude by submitting that looking at all the surrounding circumstances, it is plausible that some of the drugs (meaning those later discovered in the flat) were for the defendant’s own consumption.

40. Although the prosecution see fit to charge the defendant with simple possession of the packet of drug that was found on him when he was intercepted by the police in the street (to which the defendant has pleaded guilty), of course that’s a matter for the prosecution, it is clear from the prosecution opening they insist that the drugs found on the property as a whole were for trafficking.

41. Insofar as charge 1 (simple possession) is concerned, this is a consensus reached by the parties, while the court will not say that that packet was for trafficking, it does not prevent the court from rejecting the defence version that the defendant would consume the drugs found in his place (the subject matter of charge 2) in the neighbouring guesthouse, which the court has just rejected it with reasons given. The court is, in my view, duty-bound to consider all the evidence of the case and to come to the conclusion it thinks fit.

42. Now come back to the question of whether some of the drugs were for his own consumption. Remember in his testimony, when mentioning about the glass bottle, the defendant once said the bottle was supporting evidence of his assertion that the drugs were for personal use, so he knew it was an important piece of evidence. The defendant said it was the police officer who broke it, but the fact is that none of the broken pieces was ever seized as exhibit. The defendant strikes me as someone who knows his rights, and I am sure he would have asked the officers to seize it as circumstantial evidence for his defence if he had told the truth about the glass bottle.

43. The police witness said there wasn’t any glass bottle and I believe the officer. If it did exist, I would expect the defendant to carry it with him to the guesthouse, but when the police stopped him in the street, no glass bottle was found. I have no doubt in my mind the story of the glass bottle was made up by the defendant himself. And I have no difficulty in ruling out the possibility of part consumption and part trafficking.

Defendant’s self-proclaimed long time drug abuser

44. Apart from his own words, there is no other evidence adduced to support his claim. Whether or not he is a drug addict, I do not think it has any significant bearing on the matter at issue.

45. A person who has no history of drug abuse may simply have the drugs for personal use, but by the same token a harden drug addict may for the first time have the drugs for trafficking. So such background evidence cannot be conclusive of the matter one way or another, one has to consider the evidence as a whole and all the surrounding circumstances to decide the issue.

Conclusion

46. Although the quantity of drugs seized, 4.55g of ‘ice’, cannot be described as considerable, given the presence of packaging materials, e.g. the electronic scale, the straw and the large number of re-sealable bags, clearly the drugs can be packaged in multiple bags. Now I have rejected his assertion of personal use, the only irresistible inference to be drawn in the circumstances is that the defendant had the drugs for the purpose of trafficking.

47. For the reasons given above, I am satisfied that the prosecution have proved the offence of trafficking against the defendant beyond all reasonable doubt, and therefore he is duly convicted of charge 2.