HKSAR v. TONG HEI LAM

DCCC 382/2024

[2025] HKDC 1392

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 382 OF 2024

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REASONS FOR VERDICT

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A Charge

1.  There are two defendants (D1 and D2).

2.  D1 pleads guilty to Charge 1 “Possession of a dangerous drug”.  He also pleads guilty to Charge 2 “Trafficking in dangerous drugs”.

3.  D2 pleads not guilty to Charge 2.

B Introduction

4.  On 12 May 2023 at about 9:20 pm, the police stopped a car at a roadblock in Happy Valley.  D2 was the driver; D1 sitting next to him.

5.  When the front passenger window was lowered, a police officer (PW1)  smelt of cannabis from the inside of the car.  The officer then instructed D2 to drive the car to a search area.

6.  D1 acted furtively.  PW1 searched him and found three bags of ketamine trapped between the calf of D1’s leg and his trousers.  They were 1.53g of solid containing 1.31g of ketamine.  The three bags were wrapped in a piece of tissue paper.

7.  The dashboard hood of the car appeared to be somewhat loose.  PW1 took off the hood and then removed the screen component.  He reached his hand into the cavity and found 8 bags.  They contained a total of 133 smaller bags.  

8.  Five of the 133 smaller bags contained Part 1 poison; the other 128 smaller bags contained the dangerous drugs stated in Charge 2.  The narcotics, in terms of purity, were as follows:-

•  1.49g of tetrahydrocannabinol;

•  23.17g of herbal cannabis;

•  0.08g of psilocin;

•  15.81g of cocaine;

•  6.4g of ketamine and 6.34g of 2-fluorodeschloro-N-ethyl-ketamine;

•  a total of 17.77g of ecstasy; and

•  5 pieces of paper containing traces of lysergide.

9.  D1’s DNA was found on some of the plastic bags containing the drugs.

10.  $42,320 were found on D1 while D2 had $921.5.

11.  Under caution, D2 remained silent.

12.  In court, D1 admitted Charge 1 and Charge 2.

13.  Prosecution allege the two defendants in Charge 2 were in joint possession of all the drugs found in the dashboard cavity for the purpose of unlawful trafficking.

C Prosecution case

C.1 Exhibits

14.  There are Exhibits P1-P8 (see the Exhibit List), including some s.65C Agreed Facts (Exh. P4, P5 and P8).

15.  According to the agreed facts, among other things:-

•  D2 has no previous conviction;

•  under caution, D2 remained silent;

•  D1’s DNA was found on some of the plastic bags containing the drugs, while none of the bags contained D2’s fingerprints or DNA;

•  the registered owner of the car is Fung Ka-wai, who remained silent during police interview.

C.2 Prosecution witness

16.  There is no dispute of facts.  Prosecutor only calls one witness (PW1).

C.2.1 PW1 PC19620

17.  On 12 May 2023 at about 9:20 pm, PW1 and other officers operated a roadblock in Happy Valley.  They stopped a car, which halted accordingly.

18.  D2 was the driver; D1 sitting next to him. When the front passenger window was lowered, PW1 smelt of cannabis from the inside of the car. The officer then instructed for the car to go to a search area.

19.  D1 acted furtively.  PW1 searched him and found three bags of ketamine trapped between the calf of D1’s leg and his trousers.  They were 1.53g of solid containing 1.31g of ketamine.  The three bags were wrapped in a piece of tissue paper.

20.  The dashboard hood of the car appeared to be a bit loose (Exh. P7(4)  is a reconstructed photo of its original state).  PW1 described the hood was like a cup-lid not fitting the cup entirely then, being slightly off balance.  

21.  The officer took away the hood and removed the screen component (see photos Exh. P7(2)   and P7(3)).  He reached his hand into the cavity and took out 8 bags, which contained a total of 133 smaller bags.  

22.  Five of the 133 smaller bags contained Part 1 poison; the other 128 smaller bags contained the dangerous drugs stated in Charge 2, namely:-

•  172.8g of solid containing 1.49g of tetrahydrocannabinol;

•  23.17g of herbal cannabis;

•  28.6g of solid containing 0.08g of psilocin;

•  18.83g of solid containing 15.81g of cocaine;

•  7.48g of solid containing 6.4g of ketamine and 7.47g of solid containing 6.34g of 2-fluorodeschloro-N-ethyl-ketamine (deemed as 12.74g of ketamine in total);

•  45 tablets, 30 capsules and 8.85g of solid containing a total of 16.87g of 3,4-methylenedioxymethamphetamine; 25 tablets containing 0.12g of methamphetamine; 5 capsules containing 0.78g of N, N-dimethylpentylone (deemed as 17.77g of ecstasy in total); and

•  5 pieces of paper containing traces of lysergide.

23.  PW1 cannot tell whether there was any malfunction or irregularity of the dashboard screen because the car was switched off during the check.

24.  PW1 says D2 was fully cooperative and he passed the drug-driving test conducted at the scene.

25.  Both defendants were taken back to the police station. $42,320 were found on D1; D2 had $921.5. Nothing suspicious was found on D2.  

D Mid-stage

26.  Counsel for D2 makes no submission at the mid-stage.  I find there is a case for D2 to answer on Charge 2.

E Defence case

27.  D2 elects not to give evidence and he has no witnesses to call.

F Final submission

F.1 Prosecution

28.  Prosecutor asks the court to draw an inference against D2 that he must have known those drugs had been placed inside the dashboard cavity, so D2 and D1 were in joint possession of them for the purpose of unlawful trafficking.

F.2 Defence

29.  Defence Counsel submits that D2 was not suspicious:  he fully cooperated with the police; stopped the car immediately; passed the drug-driving test; no drugs were found on him; his fingerprint and DNA were not found on the bags, the dashboard hood or the screen; D2 only had $921.5 as against $42,320 found on D1.

30.  Counsel says the car was not registered in D2’s name.  There is no evidence as to how he came by the used vehicle; how long he had been driving it and why he was driving it.

31.  Counsel submits there is no proof that D2 had knowledge of the drugs hidden in the dashboard cavity.  He further says even if D2 had knowledge of their presence, it is still not sufficient to convict D2 on Charge 2.

G Discussion

32.  Defence Counsel submits even if D2 had knowledge of the drugs in the dashboard cavity, he still could not be convicted on Charge 2.  I disagree. If there is sufficient evidence to show D2 knew there were drugs hidden in the dashboard cavity, I would conclude he had joint possession of them with D1 and such quantities must be for the purpose of unlawful trafficking. 

33.  The case against D2 is suspicious: he was driving the car and there were drugs hidden in the dashboard cavity; the dashboard hood was a bit loose. Yet, the drugs inside the cavity were not easily or readily noticeable. 

34.  D2 has no previous conviction. The car was not registered in his name.  There is no evidence as to how D2 came by this used car and how long he had been driving it or why he was driving it on the night in question. There is also no evidence of the relationship between the two defendants.

35.  D1 has admitted Charge 2. The issues on trial are whether D2 had joint possession of those drugs with D1 for the purpose of unlawful trafficking, or whether D2 knowingly assisted D1 to do so.

36.  There is no presumption of possession or knowledge operative here. One might wonder why D2 was driving the car and had D1 as his passenger, who now admits possession of the drugs in Charge 2 for the purpose of unlawful trafficking. However, there is not enough evidence to draw an irresistible inference that D2 must have knowledge of the drugs hidden in the dashboard cavity so much so that he and D1 were in joint possession of them or he knowingly assisted D1 in the unlawful trafficking. I have to acquit D2 on Charge 2.