HKSAR v. WONG LAI KUEN

DCCC 707/2018

[2019] HKDC 493

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 707 OF 2018

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REASONS FOR VERDICT

1.  The defendant stands trial on a single count of trafficking in 8.30 grammes of a mixture containing 6.93 grammes of heroin hydrochloride and 0.27 gramme of a crystalline solid containing 0.25 gramme of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1).

2.  The defendant pleads not guilty to trafficking but guilty to possession of the dangerous drugs.  The defendant has also pleaded guilty to one charge of possession of 105 tablets and 3 tablet fragments containing zopiclone, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance[2](charge 2) and one charge of possession of apparatuses fit and intended for the injection or inhalation of dangerous drugs, contrary to section 36 of the Dangerous Drugs Ordinance (charge 3).

3.  Trafficking in relation to dangerous drugs includes “…or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking”[3].  The prosecution case is that on the evidence the only inference to draw is that the defendant possessed the drugs for the purpose of trafficking.  The defence case is that the heroin and the ice were for the defendant’s own consumption.

Prosecution Evidence

4.  In summary the defendant resided with her mother at Room 403, Lung On House, Lower Wong Tai Sin (II) Estate.  At about 1200 hours on the 6 June 2018 the police executed a search warrant. 

5.  The police found on a table inside the defendant’s bedroom a black box containing the heroin and the ice together with the zopiclone tablets; eighteen plastic wrappers and thirteen empty transparent re-sealable plastic bags; an electronic scale and inside a white box 110 tablets of midazolam.  

6.  The police also found in the top drawer of a cabinet in the defendant’s bedroom apparatuses for injecting heroin and inhaling ice and the tablet fragments of zopiclone. 

7.  The whole of the prosecution case has been admitted pursuant to section 65C of the Criminal Procedure Ordinance[4], including the finding of the drugs and apparatuses[5]; photographs[6]; and the chain of evidence[7].  

8.  The statement of DSIP Lo was read pursuant to section 65B of the Criminal Procedure Ordinance regarding the estimated market price of the heroin; the ice and the midazolam and the zopiclone[8].

9.  In the opinion of DSIP Lo the heroin could have been sold for $7,196 based on the price of $867 per gramme; the ice for $143 based on the price of $531 per gramme; the midazolam for $5,280 based on the price of $48 per tablet and the zopiclone for $432 based on the price of $4 per tablet.

10.  Admitted in evidence is the arrest of the defendant and that under caution the defendant said everything found by the police belonged to her and had nothing to do with her mother[9].

11.  Also admitted in evidence is a video recorded interview[10].  In summary the defendant, inter alia, told the police the drugs were purchased from Ah Shing (see counter 24) and the midazolam (Blue Gremlin) was prescribed by Dr Chan Sai-Man (see counters 25-52 and 212-215).  The statement of Dr Chan Sai Man Simon confirming that he prescribed midazolam to the defendant on 5 June 2018 was read into evidence[11].

12.  The defendant told the police that the day before she went to the 7-11 downstairs of her home to look for Ah Shing; Ah Shing sold her the heroin at a low price of $7,000 and treated her to the ice (see counters 53-78; 95-102; 135-156; 188-205; 216-229 and 443-456).

13.  Ah Shing asked her to look after the black box containing the zopiclone (Pak Kwa Tsz), the plastic wrappers, the empty transparent re-sealable plastic bags and an electronic scale while he went to China to see his sick wife and that he would collect the black box after three days (see counters 64; 79-94; 236-249; 282-293; 315-330 and 419-436).

14.  The defendant described Ah Shing to the police and how to contact him (see counters 103-135; 258-263).

15.  Admitted in evidence is that the defendant had a mobile phone and $2,100 in her wallet[12].  In the video recorded interview the defendant said that the phone was used to call her friends and her son and the money was her savings for daily expenses (see counters 157- 172).

16.  The defendant said that she did casual jobs from time to time but her income was mainly CSSA of $4,700; the money for the drugs was from her savings and money given to her by her son and that her son gave her $4,000-$5,000 per month (see counters 173-183; 230-235 and 264-277).

17.  The defendant said she had the habit of taking drugs for around 20 years; the apparatuses found in her bedroom was for smoking ice and injecting heroin; she took about 0.2 gramme of heroin twice a day and seldom took ice (see counters 250-257; 278-281; 295-314; 347-414; 437-452 and 457-465).

18.  Admitted in evidence is that inside the defendant’s bedroom three electronic scales were found in the top drawer of a cabinet[13]. In the video recorded interview the defendant said that the electronic scales had been used by her friends a long time ago and did not work anymore (see counters 331-346). 

Defence evidence

19.  The defendant elected to give evidence.  No witnesses were called on her behalf.  The defendant testified, inter alia, about her drug addiction and the purchase of the heroin and the ice.

Drug addiction

20.  The defendant testified she had been taking drugs for twenty odd years and had sixteen previous convictions related to drugs.  

21.  At the time of arrest, the defendant said she was consuming heroin twice a day and would consume about 0.4 gramme of heroin each day.  The defendant would consume the heroin at home but if she needed to work she would wrap the heroin in the plastic wrappers and then put the heroin in a plastic bag so she could consume the heroin when she was at work. 

22.  The defendant explained that one of the electronic scales belonged to her for weighing the drugs to ensure she had a suitable amount for injection.

23.  The defendant testified that she did not take ice every day and that the last time she had taken ice was about one week before her arrest. 

Purchase

24.  The defendant testified that the day before she was arrested she bought the heroin from Ah Shing for $7,000 and that Ah Shing gave her the ice for free.  The defendant bought this quantity of heroin because the price was cheaper and to reduce the number of times she needed to meet drug persons on the street.  The defendant said the heroin would last for twenty days. 

25.  Ah Shing told the defendant he needed to go to China and asked the defendant to look after three electronic scales for him.  Ah Shing said he would collect the electronic scales after three days. 

26.  In cross-examination the defendant said that she telephoned Ah Shing on the morning of 5 June to buy heroin; Ah Shing went to the defendant’s home where he weighed the drugs; Ah Shing also asked her to look after the zopiclone while he went to China; and that Ah Shing could not look after the weighing scales and zopiclone because he lived on the street.

Income and expenses

27.  The defendant testified that each month she received CSSA of $4,200 and around $3,500 from her son.  In addition, the defendant had $3,000 savings and that before her arrest she did cleaning work on a casual basis earning $450 per day.  The defendant said that the work was not fixed and that she would work whenever she wanted to work.

28.  In cross-examination the defendant said on average she earned $5,000-6,000 per month which income she did not report to the Social Welfare Department and for which she had no records and that her son paid her in cash therefore there were no bank records to show these payments. 

29.  In re-examination the defendant said she worked on average ten days per month.

30.  The defendant lived with her mother who was responsible for paying the rent and daily expenses.  The defendant did not have to contribute towards the household expenses.  

31.  In cross-examination the defendant said that her own daily expenses depended on how much money she had but basically would be about $3,000 per month; she would spend her days at home and her mother would buy the food and that she would spend around $10,000 on drugs each month and $700-800 per month for midazolam.

Discussion

32.  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. 

33.  I direct myself that I must be sure of the defendant’s guilt.  On the other hand, if the court thinks that the defence evidence 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.

34.  In cross-examination the defendant agreed that in 2007 she was convicted and sentenced to 10 months’ imprisonment for trafficking in dangerous drugs.  The fact that the defendant has a previous conviction for unlawful trafficking does not mean that she is not telling the truth about why she possessed the heroin and the ice and does not mean that the defendant was dealing in or with the heroin and ice, or possessing the heroin and ice for the purpose of trafficking. 

35.  I have carefully considered all the evidence and the submissions of Mr Hung and Mr Wu.

36.  There are a number of inconsistencies between the defendant’s evidence and what the defendant told the police in the video recorded interview, in particular the circumstances the defendant bought the drugs from Ah Shing and the ownership of the plastic wrappers, empty plastic bags and the electronic scales[14]. 

37.  In cross-examination the defendant said that she telephoned Ah Shing who went to her home and weighed the heroin[15] whereas she told the police she went to 7-11 to find Ah Shing[16].  The defendant also told the police she did not know Ah Shing’s telephone number[17].

38.  In cross-examination the defendant agreed what she told the police was inconsistent with her evidence in court.  The defendant said that what she told the court was the truth and that she was afraid if she told the police the truth her family would be affected. 

39.  I reject the defendant’s evidence as to the circumstances she purchased the heroin and the ice. 

40.  In evidence the defendant said that one electronic scale was for her use and three belonged to Ah Shing[18] whereas she told the police one electronic scale belonged to Ah Shing and that three electronic scales were used by her friends a long time ago and did not work[19].

41.  In cross-examination the defendant said she did not tell the police in the video recorded interview that the three electronic scales were used by her friends a long time ago and did not work.  The relevant part of the video recorded interview was therefore played in court after which the defendant accepted she did say this to the police. 

42.  The defendant said that what she told the court was the truth and that she regarded what she told the police was the same namely that the electronic scale had been given by a friend.

43.  In evidence the defendant said she used the plastic wrappers and empty re-sealable transparent plastic bags to pack the drugs when she went out to work[20] whereas the defendant told the police they belonged to Ah Shing[21]. In answer to the court the defendant said what she told the court was correct and that she did not know why she told the police they belonged to Ah Shing[22].

44.  I reject the defendant’s evidence about the electronic scales; the plastic wrappers and the empty re-sealable plastic bags. 

45.  I remind myself that the rejection of defence evidence as to the circumstances she purchased the heroin and the ice and about the electronic scales; the plastic wrappers and the empty re-sealable plastic bags 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

46.  There is no direct evidence of actual trafficking. I have therefore examined the circumstances surrounding the arrest of the defendant to determine whether the only inference to draw is that the defendant was dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking. 

47.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

48.  The prosecution relies on the quantity of drugs possessed by the defendant which they say the defendant was unable to afford and the presence of the plastic wrappers, re-sealable plastic bags and electronic scales[23].

Quantity of drugs

49.  The defendant was found in possession of 6.93 grammes of heroin and 0.25 gramme of ice.   

50.  The courts may take judicial notice of the average consumption of drug addicts or rely on expert evidence as to drug usage.  It has long been accepted that the average consumption of a heroin addict is between 0.25 and 0.7 gramme of heroin per day[24].

51.  One aspect of the defendant’s evidence which is consistent with what she told the police is that she had the habit of taking drugs for around twenty years and that she injected heroin twice a day[25].

52.  A long criminal record for drug offences supports that the defendant was a long term drug abuser.  The finding of apparatuses for injecting heroin and smoking ice in her home supports that the defendant was abusing drugs at the time of her arrest.  The quantity of drugs the defendant said she consumed is consistent with the average consumption of heroin by a drug addict. 

53.  In the circumstances I am not satisfied this is a case where quantity alone provides a clear indication of trafficking.

Was the defendant able to afford to buy the drugs?

54.  The evidence of DSIP Lo was that the heroin could have been sold for $7,196 and the ice for $143[26]. The defendant told both the police and the court that she paid $7,000 for the heroin and that the ice was given to her for free[27]. 

55.  There were inconsistencies between what the defendant told the police about her income and the evidence she gave in court.  The defendant told the police that she did casual work but her income was mainly CSSA of $4,700 per month[28]whereas in evidence the defendant said she earned on average $5,000-$6,000 per month from casual cleaning work[29].

56.  The defendant told the police that the money for the drugs were from her savings and money given to her by her son.  The defendant told the police her son gave her $4,000 - $5,000 per month[30] whereas in evidence the defendant said her son gave her around $3,500 per month[31]. 

57.  I have my reservations about how much the defendant earnt from casual work however to be noted is that in the video recorded interview the police did not ask the defendant any details of her casual work for example what work, when she worked or how much she earnt. 

58.  Although there are some inconsistencies between what the defendant told the police and her evidence in court about how much her CSSA payments were; how much her son gave her and how much she earnt from casual work, I find on the evidence the defendant may have been able to afford to pay for the drugs. 

The presence of the plastic wrappers, re-sealable plastic bags and electronic scales

59.  The presence of the plastic wrappers, re-sealable plastic bags and electronic scales gives rise to suspicion that the heroin and the ice were for sale. 

60.  Having carefully considered all the evidence and taking into account, inter alia, that:

(i) the defendant was a long term drug addict;

(ii) this is not a case where quantity alone provides a clear indication of trafficking, there being no evidence the quantity possessed by the defendant is inconsistent with that which drug addicts would buy for their own consumption;

(iii) the drugs were found in the defendant’s home;

(iv) the defendant was not seen leaving her home with the drugs;

(v) apparatuses for injection of heroin and smoking of ice were found in the premises;

(vi) there is no evidence the defendant operated a divan; and

(vii) the defendant was not in possession of a substantial amount of cash for which there was no realistic possibility of the money being for reasons other than drug dealing,

I find I am not satisfied by reason of the presence of the plastic wrappers, re-sealable plastic bags and electronic scales that the only inference to draw is that the defendant was trafficking in the drugs.

61.  I find the prosecution have failed to prove beyond reasonable doubt that the defendant was dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking.  The benefit of the doubt is given to the defendant and she is acquitted of trafficking and convicted on her own plea to possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance.