HKSAR v. GURUNG LAXMAN

DCCC 501/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 501 OF 2015

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Reasons for Verdict

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1.  The defendant, a 32-year-old Nepalese Hong Kong resident, was charged with one count of trafficking in dangerous drugs, contrary to Section 4 of the Dangerous Drugs Ordinance. The drugs involved are 7.23 grammes of a crystalline solid containing 7.09 grammes of methamphetamine hydrochloride, commonly known as “Ice”. He pleaded not guilty to trafficking, but admitted possession of the drugs in question.

2.  Substantial parts of the prosecution case are not in dispute.

3.  The trial turns on a very narrow issue:  whether the defendant had the drugs for the purpose of, as the prosecution put it, trafficking or, as the defence say, for his own consumption.  

4.  The undisputed facts can be summarised as follows.

5.  At around 9.15 on the morning of March 2, 2015, the police went to a makeshift shelter in the sitting-out area to the rear of Battery Street, Yau Ma Tei.  The makeshift shelter, as can be seen from the photograph, was a bed made up on the sofa with some wooden planks as shelters. It has no door or window and it was open to public view.

6.  Inside the shelter, the defendant sat on the sofa along with another man.  In fact, the defendant was sitting on a packet of drugs at that time.  As soon as he stood up, as instructed by the police, that revealed the packet of drugs.  The drugs were put in three bags:  one big bag contained almost the whole lot, and two smaller bags.  The drugs were wrapped in tissue paper with Sellotape into one single packet. 

7.  The drugs, after analysis, were found to be a total of 7.23 grammes of a crystalline solid containing 7.09 grammes of “Ice”.

8.  The street value of the drugs is estimated to be around $2,863.

9.  Here is the summary of the defendant’s evidence.

10.  He tells the court that he is a long-term drug abuser.  He had abused drugs at 16 for the first time and he said he was not constantly relying on drugs.  It was kind of an on-and-off situation. 

11.  He came off drugs for a period of time and then relapsed.  He spent a couple of years in a drug rehabilitation centre like the Christian Zheng Sheng College in the past, and about three years ago, he went to another similar centre, St Stephen’s Society, for a few weeks to deal with his drug problem.

12.  During the three months just before the day of offence, he said he took about 1 gramme of “Ice” once a day about four to five times a week.  He would usually buy 7 grammes of “Ice” each time, enough for seven days.  He paid 1,300 for that.  He did that because that saved him the trouble having to buy drugs every day.  He also said he would only consume drugs at home because it was safer in that way.

13.  As far as the drugs in the present case are concerned, he said he got it from a new dealer introduced to him by his friend. What happened was at around 11 pm the night before the day of offence, the defendant went to a games centre to buy drugs.  He paid 1,300 and went home to wait for the drugs. 

14.  A few hours later, at around 3 to 4 am in the morning, he got a call telling him to go to the sitting-out area.  He arrived there at 5-ish.  After getting the drugs, he fell asleep because he had not taken drugs since 1 March and he was suffering withdrawal symptoms at that time and was feeling sleepy.

15.  After waking up, he said he just sat there and talked to his friends and it was in these circumstances the police came and found the drugs.  He intended to take the drugs home for consumption.

16.  The onus is always on the prosecution to prove the charge beyond all reasonable doubt.  The defendant is under no duty to prove anything and the court is told that the defendant has no previous conviction relating to drugs whatsoever.

17.  Having heard the evidence of the defendant, I do not think that the defendant has been fully frank with the court.  As far as his account is concerned, some are true, some are not. 

18.  I do not believe that he had the drugs for his own consumption, because his behaviour was not consistent with those who buy drugs for own use. 

19.  I think it is right to say the mentality for those who buy drugs for own use and those who sell drugs is different.  In order to avoid detection by the police or other law enforcement agents, the buyer, after getting the drugs, would want to find a safe place to hide the drugs. 

20.  In the present case, I would expect the buyer to go home as soon as possible.  In other words, the buyer would keep his time staying outside as short as possible. 

21.  On the other hand, because of the different nature of the trade, for those who have to go out to sell drugs, these traffickers need to stay out in order to carry on their trade.  They will have to run the risk of being arrested, and this is the risk they have to take.

22.  Now, looking at what the defendant did after he got the drugs, he tells the court that he got there at 5-ish.  I do not know what time he got the drugs, but it is clear from the evidence that after he got the drugs he fell asleep for some time and then when he woke up he stayed there and talked to his friends.

23.  He was specifically asked about this by his counsel.  Defence counsel asked him “why you decided to sit inside the hut, after having received the dangerous drugs”.  His answers were:  the dangerous drugs were bought in that area; “my friend was also there”; he “just sits and talks with my friend”.

24.  I see no evidence to suggest that he had the intention at that time to go home.  As he had told the court, he was at that time suffering withdrawal symptom, feeling sleepy and he also said he consumed drugs at home.  I am just wondering why he did not go home at that time after getting the drugs. Clearly, he was there for other purposes. 

25.  He tells the court that he is a long-term drug abuser, which I accept to be true, and that showed he needs the financial means to support his habit.  He said at around that time he had a part-time job, making about 8 to 9 thousand a month.  He also said he contributes about 2 to 3 thousand to his parents.  Taking that into account, that would leave him only 5 to 6 thousand to use for himself.

26.  He said around that time he spent on drugs 1,300 for 7 grammes, lasting him for a week.  That would add up to slightly more than 5,000 to spend on drugs.  Even according to his calculation, the amount he used on drugs almost used up his income.  If the street value as provided by the prosecution is used - that is, about 2,800 for 7 grammes of “Ice” - his drug bills will be larger than his income.

27.  Given a situation like this, no doubt the defendant would have to cast around for other source of funds to support his habit. 

28.  He said he bought the drugs for $1,300.  I accept it.  That shows the defendant has channels of obtaining cheap drugs.  If these drugs had been resold, a handsome profit would have been made, more than double the price he paid for the drugs.

29.  Now, on the evidence before the court, I accept that he had drug problems, he needed money to finance his drug habit, his part-time job did not sustain his needs and he had to look for other source of funds and he had the means of finding cheaper drugs, and coupled with the fact that he had the drugs in a sitting-out without any intention of going home, the only reasonable inference to be drawn in these circumstances is that he was there with the drugs to sell to others.

30.  For this reason, I find the prosecution proved the charge beyond all reasonable doubt. 

31.  He is convicted of trafficking the dangerous drugs in question.