HKSAR v. LAM WING SZE

DCCC 856/2022

[2023] HKDC 764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 856 OF 2022

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Reasons for Verdict

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1.  Now, this is a reasonably straightforward case. The case has two defendants, the 1^st and the 2^nd defendants, who are jointly charged with, one, possession of apparatuses fit and intended for the inhalation of dangerous drugs; and two, trafficking in dangerous drugs contained in a safe or strongbox found in Room 1205 of the “IW Hotel” at Wai Yip Street, Kwun Tong.

2.  The 2^nd defendant pleaded guilty to both charges on day 1.  The 1^st defendant pleaded guilty to the 1^st charge on day 1. Upon their pleas and admission of the facts, the 2^nd defendant was convicted of both charges whereas the 1^st defendant was convicted of Charge 1, leaving Charge 2 to be tried.

3.  The 1^st defendant’s trial for Charge 2 took three days, during which the prosecution produced a set of Admitted Facts, which is marked as P26, in which almost the whole of the prosecution’s case is included.  In addition, the prosecution called two prosecution witnesses to supplement on a few minor aspects.

4.  Now, this is the gist of what is admitted in P26: 

(1)  Both of the defendants had occupied Room 1205 of the IW Hotel for a period of 69 days on a continuous basis. That is between 25 February and 2 May 2022. Over the period, the total hotel room bill amounted to $33,100.

(2)  On the morning of 2 May 2022, the police mounted an anti-narcotics raid at the IW Hotel.

(3)  At about 4 minutes past 9 in the morning of that day, the police intercepted the 2^nd defendant at the lobby of the hotel and made various inquiries.

(4)  Following a body search of the 2^nd defendant, the police found in his possession, among others, a mobile phone, $21,316 in cash, a car key, and the hotel room access key card for Room 1205.

(5)  Police used the key card found on D1 to enter Room 1205. Upon entering the room, the 1^st defendant was found sitting on the bed, holding one inhaling device bottle with a black straw containing dangerous drugs in it. That inhaling device or bong, as it was called at one time, is Exhibit P9, and the dangerous drugs inside, Exhibit P9A.

(6)  Shortly thereafter, 2^nd defendant was also escorted back to Room 1205 for further investigation.

(7)  The police subsequently conducted a room search in the presence of the two defendants and seized, among others, the following items. From inside an unlocked portable safe which was actually more like a strongbox, as I said earlier, which was found lying on the shelf opposite the tail end of the bed, the police found:

(i)  one pink and white plastic bag which contained one resealable plastic bag containing 0.12 grammes of a solid containing 0.09 grammes of cocaine. These are marked as P4 and P5 respectively;

(ii)  also inside the same pink and white plastic bag, four resealable plastic bags containing a total of 10 grammes of a solid containing 8.61 grammes of ketamine. These have been marked as P6 during the trial;

(iii)  again also inside the same pink and white plastic bag, one plastic bag containing 0.25 grammes of a crystal solid containing 0.25 grammes of methamphetamine hydrochloride, commonly called ‘Ice’. These have been marked as Exhibit P7. Now, these three items were in fact the dangerous drugs set out in the 2^nd charge;

(iv)  also inside the portable safe or the strongbox, which has been marked as Exhibit P3, the police found one $20 bill folded into a small packet containing 0.04 grammes of a solid containing ketamine;

(v)  in the same strongbox, police found one electronic scale;

(vi)  a bundle of 80 small resealable plastic bags.

5.  Now, the police found also the following items from other parts of the room: 

(1)  one inhaling device bottle with an orange-coloured straw attached to it, containing 7 grammes of a liquid, which was later found to contain 0.18 grammes of a solid containing 0.14 grammes of ‘Ice’. Now, these have been marked as Exhibit P10 and P10A respectively;

(2)  one empty inhaling device bottle found on the table next to the basin inside the bathroom. This becomes Exhibit P11; and

(3)  one cigarette lighter found on the headboard of the bed, now produced as P22.

6.  Now, on the same day, the 1^st defendant was arrested and cautioned on two occasions by WPC27953.  Following a caution for suspected possession of apparatus fit and intended for inhalation of dangerous drugs, the 1^st defendant replied that she was about to consume these things which were her boyfriend’s treat.

7.  Under caution, following her second arrest for allegedly trafficking in dangerous drugs, the 1^st defendant replied that she was unaware of the presence of drugs in the room and that the two ‘Ice’ bottles did not belong to her.

8.  On 2 May 2022, a video interview under caution was conducted with the 1^st defendant.

9.  The government chemist, Dr Tang Hei-yu, later confirmed in the Government Chemist’s Certificate dated 20 May 2022 that all the drugs seized as stated earlier were found to be those dangerous drugs and their weights so stated in the Government Chemist’s Certificate.

10.  Now, following the seizure of the three inhaling devices from Room 1205, subsequent expert forensic analyses of DNA samples were carried out.  A comparison of the human DNA samples taken from both defendants with traces of human DNA found on the inhaling device with the orange straw was also made.  The results show that the 1^st defendant was the possible major source of the DNA on that inhaling device, meaning P10, and that the 2^nd defendant was the possible minor source of the DNA on that same device.

11.  In May 2022, the estimated street value of all the drugs found in this case was about HK$5,000.

12.  Now, in respect of the two prosecution witnesses called, they in fact added little to the prosecution’s case.  PW1, WDPC27953, was the arresting officer of the 1^st defendant.  She confirmed in her evidence that:  

(1)  The police had a search warrant at the time of the raid.

(2)  The 1^st defendant was sitting on the bed at the material time when the police entered. The various things which we see piling up on the bed in some of the photos taken by the police were, however, only put there during the search.

(3)  The portable safe, now after that was found, the 1^st defendant was arrested for trafficking in dangerous drugs, to which the 1^st defendant said, “I do not know there are dangerous drugs inside this room. These two bongs are not mine,” referring to P10 and P11.

(4)  The officer later did the video interview with the 1^st defendant.

13.  Now, let me now say a word about the 1^st defendant’s video interview.  The 1^st defendant claimed in this interview that: 

(1)  At the time of police entry, she was “zoning out on her bed”.

(2)  Exhibit P9 was, she said, handed to her by the 2^nd defendant as a treat. As for the other things, and Exhibit P10 and 11 included, the 1^st defendant said, “I have never found things at all, never checked, never seen them.”

(3)  When the 1^st defendant was shown the portable safe, that is Exhibit P3, and the contents inside, the 1^st defendant said she had never seen these items before and did not know what they were. The box or the safe, rather, she said belonged to the 2^nd defendant. She said it was locked with a password and she had never opened it.

14.  PW2 was PC25538.  He is the Exhibit Officer in the case and he is the one who did the search and drew a sketch, which is marked as Exhibit P21.  The sketch was used mainly to show the location or spots where the various exhibits were found.

15.  Now, this officer confirmed that the portable safe was in fact found by him on the shelf or glass table opposite the tail end of the bed.  He said whilst it had a combination lock, it was not locked at the time.

16.  Lastly, the officer confirmed that the 2^nd defendant had a Volkswagen which was a 5-door hatchback parked on the ground floor of the hotel.  Nothing suspicious, however, was found on it.

17.  Now, at the end of the prosecution’s case, I found that there is a case for the 1^st defendant to answer on the 2^nd charge. The 1^st defendant elects not to testify as is her right, but produced a set of Admitted Facts which was marked as Exhibit D2, and called the 2^nd defendant as her witness.

18.  Now, I will deal with Exhibit D2 first.  It basically covers only one matter, namely the finding of the 2^nd defendant’s fingerprints on four areas inside the room; three in the bathroom of Room 1205, and one on a Coca-Cola can placed on the glass shelf underneath the TV set.  That is the same shelf where Exhibit P3, the portable safe, was found by the police officer.

19.  Now turning to the evidence given by the 2^nd defendant, he told the court that he is born in Hong Kong but educated in Australia where he received a degree.  His mother, he said, has a prosperous garment business.

20.  Upon returning to Hong Kong, 2^nd defendant said he joined the entertainment industry as a singer.  After a brief stint, he founded a restaurant with investments from his mother and friends.  He ran that restaurant for about 5 years but it had since been closed.  He is married and has a son who is now 8 years old.

21.  Now, after the restaurant business was folded, the 2^nd defendant said he lived on a subsidy given by his mother which was around HK$17,500 a month.  And he said he supplemented that income by working as a part-time cleaner at the Hong Kong Jockey Club and also as an Uber driver.

22.  Turning to the events closer to the case, the 2^nd defendant said he moved to the hotel in question after he ran into trouble with his wife, a little more than two months prior to the day of the police raid.  The hotel rent was about four to five hundred dollars per day, which amounted to about HK$12,000 per month.  The 1^st defendant, he said, was his girlfriend since February 2020.

23.  Now the 2^nd defendant said he had been a long-time drug user himself, and so was the 1^st defendant although she had managed to get rid of these habits at one time.

24.  The 2^nd defendant said Exhibit P3, that is the portable safe, was bought by him only a few days prior to the day of the police raid.  He bought it for fun, although it ended up being used to hold the dangerous drugs in the case.  The dangerous drugs, he said, was delivered to him after he placed an order using WhatsApp the day before.

25.  As to the three inhaling devices, namely P9 to P11, 2^nd defendant said he bought them at Temple Street.  2^nd defendant admitted that Exhibit P9, which the 1^st defendant was holding at the time when the police entered, was given to her by him earlier that morning.

26.  As to the dangerous drugs found inside Exhibit P3, the portable safe, 2^nd defendant said that they belonged to him.  He said, “No one else had touched or dealt with them.”  The 2^nd defendant said, “Prior to 2 May 2022, the 1^st defendant would only touch the drugs and have access to a hookah when he gave it to her.”

27.  When asked about Exhibit P10, the 2^nd defendant said he had never allowed the 1^st defendant to use it.  However, when it was pointed out to him by his own counsel that it actually had the 1^st defendant’s DNA on it, the 2^nd defendant said the 1^st defendant must have used it without his knowledge.

28.  Under cross-examination, the 2^nd defendant admitted that he was the 1^st defendant’s drug supplier and he admitted also that both the 1^st defendant and he himself had used Exhibit P9 for consumption of ‘Ice’.

29.  In respect of Exhibit P3, the portable safe, the 2^nd defendant agreed with prosecuting counsel’s suggestion that one of the reasons for him to buy it was that it could easily be taken as a book in public, in a public place, rather, but the 2^nd defendant denied that it was used to minimise the risk of him being caught with drugs inside.

30.  The 2^nd defendant said Exhibit P3 was placed by him on the glass table next to the bed when he was first asked in cross-examination, and as one can see from the photo album, that glass table the 2^nd defendant was referring to was on the right-hand side of photo 8.

31.  In re-examination, however, the 2^nd defendant told us that he actually placed the portable safe on the shelf underneath the TV set when he left the room.

32.  Now, in my view, as we do not know whether the safe in question might have been pushed around a bit from the time when the 1^st defendant put it on the glass table to the time when the police found it in the raid, I do not think it is fair for the court to seek to draw any conclusion from it.

33.  Now turning to the drugs found inside Exhibit P3, the 2^nd defendant said he got them the day before from his regular supplier at around $4,000.  He said this would last him for about a week to two.  When he returned to Room 1205 with the drugs, he said the 1^st defendant was there but when he put the drugs inside Exhibit P3 which was later that day, he believed that the 1^st defendant was asleep.

34.  Now, in any event, the 2^nd defendant admitted that before the police raid he had used Exhibit P8, that is the banknote which was folded up, for sniffing the ketamine.  He admitted also to have used Exhibit P9 to consume ‘Ice’ and Exhibit P10, another bong or hookah, to consume cocaine.  He said whilst he himself was a daily user of drugs, the 1^st defendant only used it three to four times a week, and that is only when he treated her to it.

35.  The 2^nd defendant also disagreed with the prosecution’s suggestion that when he left the hotel room in the morning of 2 May, he had deliberately left the portable safe unlocked.  However, he agreed that before he left the room, he handed the 1^st defendant Exhibit P9 for her use, and he agreed also that in effect, he was telling the 1^st defendant that he was treating her to any drugs in the safe.

36.  More importantly, when asked by prosecuting counsel if he had gone to the portable safe for particular drugs for the 1^st defendant to consume and said to the 1^st defendant, “I treat you to this drug”, the 2^nd defendant said “Yes”.  And when asked which packet of drugs did he select for the 1^st defendant, he said, “Packet of ‘Ice’.”

37.  Now, a good part of the prosecution’s cross-examination on day two was about the 2^nd defendant’s financial state.  As they do not, in my view, really advance the case of either parties, I do not think I need to go into that here.

38.  However, when the 2^nd defendant was asked about the empty plastic bags and the electronic scale found in Exhibit P3, 2^nd defendant said he used the scale to weigh the dangerous drugs he bought and his intention was to package the dangerous drugs, meaning the ketamine in this case, into smaller bags so that he could use them when he is outside.

39.  Lastly, he disagreed that because he is short of money, he and the 1^st defendant decided to supplement their living by selling dangerous drugs to others.  And he also denied that he and the 1^st defendant had both participated in the preparation of the small packets for that purpose.  He said whilst he had the intention of doing that, that was yet to be done.

Credibility and Reliability of Witnesses

40.  Here, I think I need to say a little about the two prosecution witnesses called.  So far as they are concerned, no issue has been taken with their evidence by the defence and there is no reason for me to doubt their credibility or reliability.

41.  As for the 2^nd defendant, he was, in my view, telling the court a mixed bag of truth, half-truths, and lies.  I am prepared to accept the following matters:

(1)  He had a subsidy from his mother of around HK$17,000 to HK$18,000 per month.

(2)  Both he and the 1^st defendant were drug users.

(3)  He had treated the 1^st defendant regularly to drugs he bought.

(4)  Exhibit P3, the portable safe, and the contents inside, meaning the drugs, the electronic scale and the empty bags all belonged to him.

(5)  On the morning of 2 May, the 2^nd defendant had given the 1^st defendant Exhibit P9, which we know had 28 grammes of liquid containing traces of cocaine inside.

(6)  The 2^nd defendant was in effect telling the 1^st defendant of his conduct that he was treating her to any drugs in the safe.

42.  In this regard, I think one may also want to bear in mind that Exhibit P10 was also found to have the 1^st defendant’s DNA which tends to show that the 1^st defendant was likely to have used it on a previous occasion.

43.  The second thing to bear in mind is that the portable safe, when found, was lying unlocked on the shelf opposite the tail end of the bed where the 1^st defendant was sitting.

44.  Lastly, I also find that he had in fact told the 1^st defendant in that same morning before he left the room, “I treat you to this drug”, and he had selected the packet of ‘Ice’ for her, not the cocaine.

45.  I have, however, grave doubts about the 2^nd defendant’s evidence in relation to his intended use of the electronic scale and the small plastic bags inside the safe.  His evidence that he was only to use them to pack the ketamine into smaller bags so that he could himself take it when he was out is, in my view, unbelievable.

46.  I have little doubts that these bags were to be used by him for packaging the drugs for resale to other people.  In fact, the 2^nd defendant admitted under cross-examination that apart from the 1^st defendant, he had also supplied drugs to other people.  In this connection, I agree with the prosecution that the 2^nd defendant was doing this in order to supplement his income.

47.  Also, I am very sceptical about the 2^nd defendant’s claim that he had worked as a cleaner for a cleaning contractor at the Hong Kong Jockey Club three times a week for a very meagre earning of $5,000 per month.  That simply does not sit well with the 2^nd defendant’s background and lifestyle.  He has a rich mother; he is living in a hotel room with a girlfriend; he is driving a car and, clearly, using drugs for recreation.  That said, however, as this also has only limited relevance to the issue at hand, I do not propose to say more about it at this stage.

48.  Now, before I were to give my views on the evidence, I think I should also say a quick word on the 1^st defendant’s video interview.  It is a very short interview where only a few things were touched on.

49.  My view on what the 1^st defendant has said there is that it was likewise a mixed bag.  I am sure that the 1^st defendant was not telling the truth when she said during the interview that she had not thumbed through the things inside Exhibit P3.  She is certainly not telling the truth when she said she had not used Exhibit P10 before.  The latter was proved to be false by the finding of her DNA on it and the former was clearly contradictory to what the 2^nd defendant had said about his offer of the contents in Exhibit P3 to her as a treat.

50.  The next topic is the 1^st defendant’s connection with the drugs inside Exhibit P3, the safe.  Now bearing in mind the fact that:

(1)  The 1^st and the 2^nd defendants had been living together at the hotel for over two months;

(2)  that both of them were drug users and they in effect shared a common pool of drugs;

(3)  the 1^st defendant had been helping herself to, among others, Exhibit P10, possibly without the 2^nd defendant’s knowledge;

(4)  in the morning of 2 May 2022, 2^nd defendant had handed the 1^st defendant Exhibit P9 and told her in effect that he was treating to any drugs in Exhibit P3, and then proceeded to pick the packet of ‘Ice’ for her from it.

51.  I am sure that the 1^st defendant had full knowledge of what is being contained inside Exhibit P3.  But, of course, knowledge alone is not enough for the charge of trafficking she is facing.  The question I have to ask myself is whether there is sufficient evidence to show some element of encouragement and/or control, to borrow the terms from the Court of Appeal’s judgment in HKSAR v Siu Mo Nor, Isis [2005] 3 HKC 130, a case brought to my attention by defence counsel.

52.  In this regard, I am also mindful of another judgment from the Court of Appeal in the case of HKSAR v Ng Hung Chi, CACC 186/2000, in which the Court of Appeal said this:

“21. Yet it cannot, we think, be gainsaid that mere storage is not in itself trafficking. Storage might well be, and very frequently is, but part of an exercise in trafficking to which the storeman is, in one way or another, a party. On the other hand, and by way of example only, the addict who stores a quantity of drugs in a drawer for intended self-consumption is not, by that storage, constituted a trafficker.”

53.  In the Court of Appeal’s opinion, the court has to look for other evidence before it could find the defendant a party to trafficking.  These may include, for example, evidence of a joint enterprise with another person who himself, or through another, would be selling the drugs (see paragraph 22 of the judgment).

54.  Now, with these principles in mind, I look again at the question of whether the 1^st defendant was in possession of Exhibit P3 and the dangerous drugs inside.  In relation to the packet of ‘Ice’, the answer, in my view, must be yes.  As I have mentioned earlier, before the 2^nd defendant left the room that morning, he had given the 1^st defendant Exhibit P9 and selected the packet of drugs for her. With that in mind, I am satisfied so that I am sure that the 1^st defendant was in possession of the packet of ‘Ice’ for her own consumption.

55.  As to the rest of the contents inside, however, I will simply say that having thought long and hard enough about it, I cannot feel as sure as I should be that she had sufficient control of it.  I would let the 1^st defendant, therefore, have the benefit of doubt.

56.  On what is before me, I do not think one can be sure that the 1^st defendant had assumed control of the ketamine, the cocaine, or for that purpose, the scale and the empty plastic bags inside Exhibit P3 which, as I have said earlier, clearly belonged to the 2^nd defendant.

Conclusion

57.  That being the view I have arrived at, I find the 1^st defendant not guilty of trafficking under the 2^nd charge but guilty of possession of the 0.25 grammes of methamphetamine hydrochloride.