HKSAR v. KWOK KA YEE, KAREN

DCCC 371/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 371 OF 2016

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

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

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

Reasons for Verdict

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

1.  The defendant has pleaded not guilty to trafficking in dangerous drugs.

2.  The particulars of that offence are that on 13 January 2016, at her home in Mei Tak House, Mei Tung Estate, the defendant unlawfully trafficked 9.7 grammes of a crystalline solid containing 9.56 grammes of “Ice”, and 34.53 grammes of a solid containing 19.42 grammes of ketamine, as well as 0.08 grammes of a powder containing ketamine.

3.  The defendant did plead guilty to possessing the same quantity of drugs for her own consumption.  The defendant also pleaded guilty to possession of apparatus fit and intended for the inhalation of drugs.

4.  The prosecution case is that the police went to the defendant’s premises in Mei Tung Estate armed with a search warrant. Obviously they had information about drug activity related to that premises. There is no dispute the defendant is the named tenant of the premises.

5.  The evidence is that the police waited until about 8 pm that evening until a female knocked on the defendant’s door. When the door opened, the police rushed in.  They found a male in the living room.  They found the defendant in her bedroom, feeding her bedbound husband in bed.

6.  The prosecution evidence is that the flat was then searched.  In the bedroom where the defendant was found, they located, on a tabletop or a desktop, some drugs in a small milk powder box.  The “Ice” and ketamine were in 18 resealable plastic bags.  The police also found a box containing 200 empty transparent resealable bags of four different sizes, three spoons, and a small electronic scale.  In addition, there was a separate bag with two “Ice” pipes or bongs in it.

7.  Photographs of all these items were taken and are in P32, an album.  P25 is a sketch of the premises and where the dangerous drugs and other paraphernalia were found.

8.  The police arrested the defendant for trafficking dangerous drugs.  The prosecution case is that she admitted the offence under caution and subsequently signed a post‑recorded statement to confirm the admission was made under caution.

9.  After dealing with the admissibility of the post‑recorded statement in a special procedure, I ruled it inadmissible.

10.  Later at the police station in a subsequent video‑recorded interview, the defendant exercised her right to silence, and denied admitting trafficking in dangerous drugs under caution.

11.  There is no evidence that the defendant’s two friends in the premises were involved in any drug activity.

12.  The defendant’s husband, according to two medical reports, P35 and P36, has a diagnosis of organic brain syndrome.  He is bed bound, doubly incontinent, non‑communicable, and unable to care for himself.  He cannot be a drug addict or a drug trafficker.

13.  The prosecution say the defendant admits the dangerous drugs were hers, but because of the quantity, method of packing and other paraphernalia associated with packing drugs for sale, the defendant must have possessed the drugs and unlawfully trafficked in them.

14.  The defence case is that the defendant did possess the dangerous drugs, but for her own consumption only.  The two “Ice” pipes did belong to her.  One was broken, and the other she used for taking “Ice”.  The spoon, bags and scale belonged to her, but she used them to bag up the dangerous drugs for her own daily consumption to ensure she did not take too much each day.  She had hidden the dangerous drugs and two pipes in the bathroom.  The dangerous drugs were in fact hidden in a compartment of her shelving unit, away from prying eyes.  The pipes were in a bag, but in a drawer.

15.  Habitually, she would take the drugs in her bathroom.  She did not want her sister to know that she was taking dangerous drugs; that she had relapsed.  At the time, her sister was living with her and sleeping in the living room.

16.  The defendant’s case was that she did not keep the dangerous drugs or any other of the seized items in her bedroom.  In any event, she was worried that her husband, who lived in the bedroom, may be able to reach them and ingest them by accident unknowingly.

17.  I heard evidence from the police officers for the prosecution, and the defendant herself.  I heard from the defendant’s boyfriend, who supplemented her CSSA each month by about $5,000 to $6,000.  He did not know that she was buying dangerous drugs with the money that he gave her, nor that she had relapsed and was taking drugs.

18.  The defendant had not worked since her husband had become incapacitated, because he needed around the clock care.  They were both on CSSA, and the public housing unit was in the defendant’s name.

19.  She readily admits she previously had drug convictions.  Her first conviction for possession of dangerous drugs was when she was 21 years old, in 1997.  Her last conviction for possession of dangerous drugs was in 2008, when she was ordered to serve a drug addiction treatment centre order.  Her evidence was that when she was released from this treatment centre, she did not relapse. However, in or about Chinese New Year 2015, she relapsed due to the pressure of caring for her husband and other family problems.  Her evidence was that she hid her relapse from her boyfriend and her sister; hence her need to hide the dangerous drugs and pipes.

20.  It is not in dispute that after she was arrested and remanded in custody, a urine test was conducted and came back positive for “Ice”.  For whatever reason, she was not tested for ketamine.

21.  After the special procedure, I found the prosecution unable to prove beyond reasonable doubt that the post‑recorded statement in the officer’s notebook was recorded voluntarily.  That admission was not admissible.  That does not necessarily mean the police officer’s evidence was not credible.

22.  I have taken into account the evidence of the exhibits and where the police say they were found.  I have taken into account what is required to prove the elements of trafficking in dangerous drugs, as well as the prosecution’s burden to prove beyond reasonable doubt the defendant committed this trafficking offence.

23.  The defendant’s evidence itself was not entirely convincing, nor was she a particularly good witness, but the prosecution’s burden of proof is high.

24.  Factors I consider relevant are that the quantity of dangerous drugs is not a huge amount, and if the defendant did consume it herself, which I do not doubt, looking at the defendant’s appearance, her criminal record and the result of the urine test at Lai Chi Kok, then it would not be an amount that would last a very long time. Therefore, her explanation as to the quantity bought is possible.  Her explanation of why she packaged the dangerous drugs into small bags from one big bag that she had bought is not very convincing, but possible.  Hence her possession of spoon, scale and bags is also possible.  Her ability to afford to buy drugs in bulk has been addressed.

25.  Having taken into account submissions by both prosecution and defence, MFI-1 and 2, the evidence of the prosecution witnesses and the defendant and her witness, there is a possibility the drugs were for self-consumption.

26.  The prosecution has been unable to prove beyond a reasonable doubt, despite my suspicions, that it was in part for trafficking.

27.  Therefore the defendant is acquitted of trafficking in dangerous drugs, but convicted on her own admission of possession of the same amount of dangerous drugs.

28.  To be absolutely clear, the defendant is also convicted of Charge 2 on her own plea.