HKSAR v. GURDEEP SINGH

DCCC 828/2021

[2023] HKDC 783

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 828 OF 2021

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REASONS FOR VERDICT

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A Charges

1.  The defendant faces four charges: Charge 1 is “Trafficking in a dangerous drug”; Charge 2 is “Using a false instrument”; Charge 3 is “Knowingly misleading a police officer by giving false information”; Charge 4 is “Conspiracy to traffic in a dangerous drug”.

2.  The defendant pleads guilty to Charge 2 and Charge 3.

3.  On Charge 1, the defendant pleads guilty to mere possession but not trafficking. That is not accepted by the prosecution.

4.  On Charge 4, the defendant pleads not guilty.

5.  This trial is related to only Charge 1 and Charge 4.

B Case summary

6.  The defendant is a Form 8 recognizance holder.

7.  On the night of 6 January 2021, police officers stopped the defendant at 237-239 To Kwa Wan Road as he was entering I-Feng Mansions there with another man.

8.  The defendant was not a resident I-Feng Mansions.

9.  When being asked of his identity document, the defendant threw a bag onto the ground. It was recovered by the police and found to be 6.38 grammes of a crystalline solid containing 6.18 grammes of methamphetamine hydrochloride (commonly called “ice”).

10.  The estimated street value of the “ice” found was HK$ 3,388.

11.  The defendant was tested positive for amphetamine and opiates four days later on 10 January 2021 while in custody but the prosecution accuse the defendant had the “ice” for trafficking due to the circumstances of his possession including his limited means that he could not have that much “ice” for his own use. [Charge 1]

12.  The defendant was an asylum seeker in Hong Kong. The police found on him a recognizance form (Form 8)  bearing a false name of SANDEEP Singh, HK$110 and two mobile phones (one black, one red).

13.  From the black phone, the police extracted two photos and forty-nine WhatsApp voice messages under a contact number (9419 xxxx). Those voice messages were made between that number and the black phone on 1-5 January 2021. The prosecution allege the defendant in some of the messages conspired with a person unknown to traffic in cannabis. [Charge 4]

14.  After his arrest, the defendant gave a voluntary video-record statement. He admitted the black phone and the red phone were his. However, he denied that bag of “ice” was his. He claimed he was not a drug addict. He also denied he was acquainted with the man in his company when being stopped by the police.

15.  In the trial, the defendant elects to give evidence. He says he did not live in I-Feng Mansions. Rather he and his girlfriend lived at a place of about five minutes’ walking distance away. A few Punjabi friends of his lived in the same flat of his but in different rooms. Those friends were called Sonu, Hardial and Chhindaa.

16.  The defendant says he and his friends would sometimes use others’ phones. On the day in question, his own phone was out of order so he borrowed the black phone from Sonu. He later went to Tsimshstsui and purchased the red phone there. He also bought a bag of “ice” from a dealer for HK$2,000. Then he walked back to To Kwa Wan. On the way, he met a friend. The two were subsequently stopped by the police. The defendant says he was going to I-Feng Mansions to return the black phone to Sonu.

17.  The defendant explains he was under the influence of drugs and got nervous during the police interview, so he wrongly said in the video-record statement that the black phone was his. He also claims he did not know how to use WhatsApp and he was not involved in the forty-nine voice messages at all.

18.  The defendant says he had been an “ice” addict for five years and he also consumed heroine occasionally. The “ice” in Charge 1 was for his own use for a month.

19.  The defendant says he would receive refugee assistance each month including HK$230 cash and he had other aids, including remittance from his father in India. Recently, he got HK$3,000 from his father so he had the money to buy that bag of “ice”.

C Prosecution case

C.1 Admitted facts

20.  There are agreed facts admitted under s. 65c of the Criminal Procedure Ordinance. They are Exhibits P16, P18 and P21.

21.  P16 deals with: -

•  the defendant’s status as a Form 8 recognizance holder;

•  the defendant was not a resident of I-Feng Mansions;

•  the defendant was arrested by the police; before that he had thrown a bag of “ice” (6.38 grammes of a crystalline solid containing 6.18 grammes of methamphetamine hydrochloride)  (P1) onto the ground;

•  the estimated street value of the “ice” was HK$3,388;

•  a recognizance form (Form 8)  bearing a name “SANDEEP Singh”, HK$110, a black phone (P4a) and a red phone were found in the defendant’s possession;

•  two photos (P19 / P20) and forty-nine voice messages were found in the black phone (copied to disc:P12a / certified translation:P12b);

•  the defendant was tested positive for amphetamine and opiates in the Lai Chi Kok Reception Centre on 10 January 2021；

•  the defendant gave a voluntary statement after arrest (video record:P13 / transcript:P13a / certified translation:P13b).

22.  P18 deals with: -

•  the differentaion of the forty-nine voice messages into “IN” messages and “OUT’ messages (P12c);

•  the black phone was found to be functioning properly at all material times.

23.  P21 deals with the defendant’s attending the methadone clinic during custody on 8 and 9 January 2021.

C.2 Prosecution witness

24.  Prosecutor calls only one witness to testify. He is SPC1791.

25.  SPC1791 examined the black phone. He extracted from that phone forty-nine WhatsApp voice messages under the same folder “Mj Tailo” and the phone number “9419 xxxx”. He also extracted two photos from the phone.

26.  Because the voice messages were in Punjabi, SPC1791 sent them to a contracted transcriber for translation (P12a). He then took the translation to the interpreters’ office for certified translation (P12b).

27.  Both the prosecution and the defence agree that for accuracy certain amendments should be made to P12b as they now appear in the document.

28.  SPC1791 was able to discern from the black phone which voice message was coming in or going out. He wrote down “IN” or “OUT” against each message on a working copy of the transcribt (P17). That differentiation is then transposed to a working copy of P12b which is marked P12c.

C.3 The two photos

29.  The two photos extracted from the black phone are P19 and P20. Each shows a lump of substance with some dried leaves.

C.4 The forty-nine WhatsApp voice messages

30.  There are forty-nine WhatsApp voice messages found as communications between the black phone and Mj Tailo’s phone number 9419 xxxx. [The transcriber has inadvertently skipped the use of number 33. The forty-nine messages are thus numbered as 1-32 and 34-50; there is no Message 33.]

31.  The “OUT” messages are Messages 1, 3, 4, 5, 6, 10, 13, 15, 16, 17, 20, 23, 24, 25, 26, 28, 30, 31, 32, 35, 36, 37, 38, 40, 41, 42, 43, 44, 46, 47, 49 and 50.

32.  The “IN” messages are Messages 2, 7, 8, 9, 11, 12, 14, 18, 19, 21, 22, 27, 29, 34, 39, 45 and 48.

33.  The prosecution allege Messages 7, 8, 9, 10, 17, 18, 23, 26, 36, 46 and 47 are relevant to the defendant’s conspiracy with the other speaker to traffic in cannabis[1]. Those messages are as follows[2]: -

(IN)  Media file No.:PTT-202101012128.1-WA0094

7. A：[Hindi] ….. (it)  would go well, with that sister fucker, i.e. the one, didn’t who came over (and)  told me (, ")  I have the powder ("), That’s him. (Indistinct)  this talk to me again now. He needs twenty grams of weed (or cannabis resin)  that I (have)  that with me (sic).

(IN)  Media file No.:PTT-202101012128.2-WA0095

8. A：[Hindi]I talked to him, I (foul language)  I would say - bring a kilo, we give you money, alright ? what money to pay, that son of a whore (didn’t/ wouldn’t)  even -

(IN)  Media file No.:PTT-202101012129.1-WA0096

9. A：[Hindi] I said, let the son of a whore also realize – realize, you guys have to pick the stuff from the sister fucker, (even if)  I need to pay money to show, my money must have gone as well, alright? Whoever pickup the powder from him (sic), what Dile (Transliteration)  – (?)  in a little peak (Transliteration)  - don't (smoke)  Barfi, [A type of sweet](Transliteration)  (,)  don't (smoke)  the powder (,)  in that mind (sic)  – so that you get the courage, I have now put some sweet to him. (He)  needs 20 grams of Cannabis resin. Then we Chinese public - (?)  I am coming, alright ?

(OUT)  Media file No.:PTT-202101012129.2-WA0099

10. A：[Punjabi]Don't (you)  worry(,)  it doesn't matter(,)  (we)  will talk, he- by himself- (Indistinct). (If)  brings over men along, hardly there will be one or two persons. If you are alone, if he is alone then it is best of all. If (he)  is alone, right, alone – (sic)  have to make (him)  pay the money (Indistinct). Hand over our stuff/goods, buddy, er- tension, upto where (sic)  (Indistinct). Ooo Dai Lo (Transliteration)  (Indistinct)  - this stuff is better than all, the one which (is)  - sister fucker, the brick, it even has a stamp(.)  It is the stuff ... how do (they)  get it happily (?).

(OUT)  Media file No.:PTT-202101021630-WA0075

17. A：[Punjabi] Dai Lo (Transliteration), (the)  large weighing scale, does he/she need the (plastic/paper)  bags or not ? (Unclear)

(IN)  Media file No.:PTT-202101021632-WA0076

18. A：[Hindi] need – (that's)  needed, the large weighing scale is needed Sonu I have just forgotten. Large weighing scale – bring one (plastic/paper)  bag too, aren’t you on a taxi yet , my…(sic)

(OUT)  Media file No.:PTT-202101032022-WA0193

23. A：[Punjabi] I am downstairs, downstairs of home this side, of his home. I can just come over now riding a taxi, yes, I am getting on it from upstairs, coming over. Battery is with (me), fatty girl/woman as well (sic), they, sister fuckers are fighting (and)  he saala too, (sic)  (wife's brother)  (used as foul language)  (unclear)  I am coming up.

(OUT)  Media file No.:PTT-202101032201.1-WA0205

26. A：[Punjabi] Dai Lo (Transliteration), have given, given nine thousand dollars. O.K., where would (you/they)  meet now downstairs ?

(OUT)  Media file No.:PTT-202101041051-WA0062

36. A：[Punjabi] What should I do with them (?)  should I send them away then ? (unclear)  what’s theirs time now? Yes, (I)  got the phone call. (unclear)  it's eleven o'clock, then I send them away after handing over (to them). Is it ok? And the rest, we will give them later.

(OUT)  Media file No.:PTT-202101042231-WA0202

46. A：[Punjabi] Dai Lo (Transliteration), take this. Gursewak says (brought)  the stuff (from)  him indeed and tell where to take to, what to do?

(OUT)  Media file No.:PTT-202101042311-WA0203

47. A：[Punjabi] Okay, tell him, (I)  will ask, where is (he)? And tell him, hand over the stuff to him – to me and I will deal about the money, is it alright ?

C.5 The Defendant’s voluntary statement

34.  The Defendants gave a voluntary statement after arrest (video record:P13 / transcript:P13a / certified translation:P13b) in the company of his lawyer, a Punjabi/English interpreter and an English/Chinese interpreter.

35.  The defendant told the investigators that he lived at some distance from I-Feng Mansions (237-239 To Kwa Wan Road). He gave the street number of where he lived as “54-56” (#176 of P13b). The defendant said he was going home (#164) when the police stopped him.

36.  The defendant denied the bag of “ice” found by the police was his (#246) and he did not know whose it was (#249). He said he was not a drug addict (#472). He also said he did not have knowledge of the packet of substance (sugar)  found on his person (#277) and he denied he had told police at the scene that it was sugar (#309). Nor was he acquainted with the South-Asian man he was walking with when entering I-Feng Mansions (#317).

37.  The defendant said he was entitled to a monthly welfare travel payment of 230 dollars (#339/342) and the 110 dollars on his person were welfare money (#331).

38.  As to the two phones found on him, the defendant admitted both “are mine indeed” (#404). The number of the black phone was 9268 xxxx (#422) and it was not code-protected (#416), while the red phone had “z” as its password (#453) but he could not remember its number (#434).

39.  At the end of the interview, the defendant confirmed he had nothing to clarify or to say further (#559/565).

D No case submission

D.1 Defence

40.  Defence Counsel submits the defendant has no case to answer on Charge 4 and also no case on Charge 1 (as far as trafficking is concerned, though admitting possession).

41.  On Charge 1, Counsel submits there is no direct evidence to show the defendant had any trafficking activities. He says the place where the defendant was arrested was not a trafficking hotspot and there was no trafficking paraphernalia found.

42.  Counsel says the “ice” was of an estimated street value of merely HK$3,388 and it was just one bag of 6.38 grammes of a solid containing 6.18 grammes of methamphetamine hydrochoride.

43.  Counsel says the defendant was no doubt a drug addict of amphetamine and opiates.  He points out a regular user of “ice” would take 0.1-0.5 gramme per day[3] so it was likely that the “ice” in Charge 1 was for the defendant’s own consumption.

44.  On Charge 4, Counsel submits all the forty-nine voice messages were hearsay and thus inadmissible. And even if the court would accept them as admissible eveidence, there is no proof the defendant was the speaker in any of them.

45.  Counsel says without the makers of the messages explaining on the contents, the court would not understand the connection of the messages and cannot be sure what the speakers were talking about.

46.  Counsel also says the communications at most amount to a negotiation but fall short of any agreement to traffic in cannabis.

47.  On both Charge 1 and Charge 4, Counsel submits there is no evidence to point to the defendant’s guilt as charged or the evidence is so tenuous that no jury properly directed would convict.

D.2 Prosecution

48.  Prosecutor says the value and the quantity of the “ice” in Charge 1 are not slight. The defendant had limited means and he was found to be carrying the “ice” with him at a place other than his residence.

49.  As to Charge 4, Prosecutor says the defendant had admitted to the police that the black phone was his. All the voice messages would be admissible. Of the forty-nine voice messages, Messages 7, 8, 9, 10, 17, 18, 23, 26, 36, 46 and 47 were relevant communications between the defendant and another person over the alleged conspiracy of trafficking in cannabis.

E Case to answer

E.1 Charge 4

50.  The forty-nine voice messages have been admitted into evidence by agreement[4]. Despite Defence Counsel’s submission that they are hearsay and thus inadmissible, there has been no application by him to withdraw the agreed facts as such. So the forty-nine voice messages will remain as admitted evidence.

51.  Whether the defendant spoke in any of the messages and what the speakers actually meant by their words are matters of weight for the jury.

52.  And whether the communications between the speakers had created an agreement to traffic in cannabis is also for the jury to decide.

53.  I rule the defendant has a case to answer on Charge 4.

E.2 Charge 1

54.  On Charge 1, the defendant disputes trafficking but admits possession. Whether he had the “ice” of that quantity and estimated street value in the circumstances of his arrest for his own use or trafficking is a matter for the jury again.

55.  I rule the defendant has a case to answer on Charge 1.

F The Defendant’s evidence

56.  The defendant elects to give evidence. He has no other witnesses.

57.  The defendant says he did not live in I-Feng Mansions. Rather he lived with his girlfriend at a place of about five minutes’ walking distance away. A few Punjabi friends of his also lived in the same flat of his but in different rooms. They were Sonu, Hardial and Chhindaa.

58.  The defendant says he and his friends would sometimes use others’ phones. On the day in question, his own phone was out of order so he borrowed the black phone from Sonu. He subsequently went to Tsimshstsui and bought the red phone. Later, he bought the “ice” from a dealer callled Ali for HK$2,000. Then he walked back to To Kwa Wan. On the way, he met his friend Kamraan. The two were later stopped by the police in I-Feng Mansions. The defendant says he was going to I-Feng Mansions to return the black phone to Sonu.

59.  The defendant claims he has been an “ice” addict for five years. He would spend HK$150-200 per day on “ice”. If he ran out of “ice”, he would consume heroine.

60.  The defendant says he was entitled to refugee assistance each month including HK$230 cash. He would also pick up scraps to sell but that work had stopped during the pandemic. Yet, he had aids from others including occasional remittance from his father in India. Recently, he received HK$3,000 from his father.

61.  The defendant says he rarely bought such a relatively large amount of “ice”. However, in pandemic time he did not go out often and because he had recently got HK$3,000 from his father, so he used HK$2,000 to buy that bag of “ice” in Charge 1. It would be sufficient for his own use for a month.

62.  The defendant says he did not know how to use WhatsApp and he was not involved in the forty-nine voice messages at all. He explains he was under the influence of drugs and got nervous during the police interview, so he wrongly told the police that the black phone was his.

G Final submission

G.1 Prosecution

63.  Prosecutor says the defendant is not a credible witness. The black phone certainly belonged to him and it contained the forty-nine voice messages and the two photos.

64.  Prosecutor refers to Messages 7, 8, 9, 10, 17, 18, 23, 26, 36, 46 and 47 and says they reveal the defendant’s conspiracy to traffic in cannabis with another person.

65.  On the “ice”, Prosecutor says 6.38 grammes of a solid containing 6.18 grammes of methamphetamine hydrochloride was quite a quantity. It was certainly beyond the means of the defendant’s who had very limited income. And the court should note the defendant was having such dangerous drug with him at a place other than his residence.

G.2 Defence

66.  Defence Counsel adopts his no case submission.

67.  Counsel says the defendant’s evidence is not inherently unbelievable.

68.  On Charge 1, Counsel reiterates the prosecution has no direct evidence to prove the defendant was trafficking in “ice”. He says the quantity of “ice” in Charge 1 was compatible with the defendant’s claim of addiction and own use for a month.

69.  As to Charge 4, Counsel says the prosecution cannot prove the defendant had made any of the voice messages. The defendant has testified the black phone belonged to Sonu.

70.  Counsel says the defendant merely told the police the two phones “are mine”. That is not the same as saying he owned them. Furthermore, the defendant was under the influence of drugs and got nervous during the police interview.

71.  Counsel maintains the voice messages are all hearsay and their contents are not clear enough. In any event, they do not reveal any agreement to traffic in cannabis.

H Discussion

H.1 Credibility

72.  SPC1791 gives evidence for the prosecution and the defendant elects to testify for his own defence.

H.1.1 SPC1791

73.  The evidence of SPC1791 is not in dispute. I accept him as a credible and reliable witness. He found the two photos and the forty-nine voice messages in the black phone.

H.1.2 The defendant

74.  The defendant’s evidence in court differs significantly from his voluntary statement made in the police station. He never told the police that the black phone belonged to Sonu. Nor did he tell the police he was going to I-Feng Mansions to return the phone to Sonu. In fact, the defendant told the investigators in no unclear terms that the black phone and the red phone “are mine indeed” (#404/P13b).

75.  The defendant explains in court he was under the influence of drugs and got nervous during the police interview. However, such claim was never raised before the investigators, even though the defendant was in the company of his lawyer then.

76.  On the other hand, the video shows the defendant, though not spirited, was alert and alive to the questions put to him through competent interpreters during the police interview. He was in control of his own answers and apparently knew well what he was telling the investigators.

77.  I accept the defendant was an addict of amphetamine and opiates. He was arrested on 6 January 2021. He attended the methadone clinic while in custody on 8 and 9 January. However, I do not accept his claim that he was under the influence of drugs and got nervous during the police interview on 7 January.

78.  I do not believe the defendant’s saying the black phone was not his and that he was going to I-Feng Mansions to return it to Sonu. Why should he take such trouble? He alleges Sonu lived in the same flat of his albeit in different rooms. If he had really borrowed the black phone from Sonu, he could simply return it to Sonu at their same place of residence instead of going to I-Feng Mansions to do that at such late hour (around 10.20 pm).

79.  I find the defendant is not a credible witness.

H.2 Charge 4

H.2.1 The black phone

80.  I do not accept the defendant’s claim that he borrowed the black phone from Sonu and he was going to return it to the latter when the police intercepted him in I-Feng Mansions. The defendant clearly admitted to the police that the black phone was “mine indeed” (#404/P13b).

H.2.2 The photos

81.  The two photos (P19 and P20) were stored in the the black phone. Each shows a lump of substance with some dried leaves. However, there is no expert witness to say what the two lumps were and there is no evidence to link the two photos to any of the forty-nine voice messages. Thus the two photos do not have much evidential value.

H.2.3 The voice messages

82.  Defence Counsel submits the forty-nine voice messages are hearsay and thus inadmissible.

83.  The voice messages would not be hearsay if they are not used as evidence of the truth of their contents. Prosecutor is not saying the messages are proof of an actual sale of cannabis. Rather he relies on some of the messages (Messages 7, 8, 9, 10, 17, 18, 23, 26, 36, 46 and 47)  to prove the defendant agreed with another over the sale of cannabis to a third person. The messages are thus admissible.[5]

84.  Alternatively, if the prosecution can prove prima facie the defendant was the maker of any of those messages incriminating himself, such statements against his own interest are surely admissible. And if another person was agreeing with the defendant then over the purported sale of cannabis, that other person’s words would also be admissible as something said in the course of the crime alleged in Charge 4 and therefore admissible as res gestae.

85.  In conclusion, the forty-nine voice messages are all admissible evidence.

86.  The forty-nine WhatsApp voice messages have media file information, which apparently referred to their respective creation date, time and sequence. For example, Message 1 (OUT)  was PTT-202101011127-WA0019; Message 2 (IN)  was PTT-202101012035-WA0062. The first four digits “2021” certainly refer to the year of 2021, followed by the month (“01” for January), then the day (“01” for 1^st); the last four digits “1127”/ “2035” no doubt were the hour and minute of sending (for “OUT” Message 1)  or receiving (for “IN” Message 2); and “WA0019”and“WA0062” must be their respective WhatsApp file sequence numbers.

87.  The prosecutor says Messages 7, 8, 9, 10, 17, 18, 23, 26, 36, 46 and 47 can reveal the defendant’s conspiracy to traffic in cannabis with another person.

88.  Defence Counsel submits the contexts and contents of all the voice messages are not too clear; that there are ambiguous expressions and how the messages were connected would be doubtful. He points out there was sometimes a significant time gap even between consecutive messages.

89.  I agree with Defence Counsel that any proof must be clear and beyond reasonable doubts; there should not be any guessing or speculation.

90.  There are suspicious talkings between the speakers in some of the messages relied on by the prosecution: Messages 17 and 18 on 2 January 2021 about “large weighing scale” and “bag”; Message 26 on 3 January 2021 about “nine thousand dollars”; Message 36 on 4 January 2021 about “handing over”; Message 46 on 4 January 2021 about “the stuff” and Message 47 on 4 January 2021 about “hand over the stuff to him” and “deal about the money”. However, their meanings and correlations are not entirely clear.[6]

91.  I listen to the forty-nine voice messages and read their transcripts carefully. I find Messages 7-10 are wholly comprehisible by themselves as to their connections and meanings. I can be sure of what the speakers were talking about in those four messages.

92.  Messages 7-10 were exchanged between the speaker in 9419 xxxx and the black phone user at 2128-2129 hr on 1 January 2021. The speaker in 9419 xxxx (“IN” Messages 7, 8 and 9)  told the black phone user that a man wanted to buy 20 grams of cannabis resin. The black phone user then replied by “OUT” Message 10. He instructed the speaker of Messages 7, 8 and 9 to make the man “pay the money” and “hand over our stuff/goods” to the man.

93.  I am sure the “stuff/goods” mentioned in Message 10 refer to the “twenty grams of weed (or cannabis resin)”in Message 7 and the same “20 grams of Cannabis resin” in Message 9.

94.  I do not agree with Defence Counsel that such communications were at most a negotiation on sale of cannabis. There was already an agreement between the speaker of the “IN” Messages 7, 8 and 9 and the black phone user in “OUT” Message 10 over the sale of 20 grams of cannabis resin to a third person. The black phone user in “OUT” Message 10 instructed the speaker of “IN” Messages 7, 8 and 9 to get the money from the buyer and to “hand over our stuff/goods” to the buyer. The stuff/goods was 20 grams of cannabis resin. That was an agreement between the two speakers. What remained of the cannabis deal was only for the speaker of Messages 7, 8 and 9 to execute the instruction of the speaker of Message 10.

H.2.4 The speaker of “OUT” Message 10

95.  The defendant denies the black phone was his. He says it was Sonu’s and he himself was not involved in any of the forty-nine voice messages.

96.  Defence Counsel submits there were three “IN” messages (Messages 18, 19 and 29)[7] where the speaker in 9419 xxxx addressed the user of the black phone as “Sonu”, so the phone was indeed Sonu’s.

97.  The defendant clearly admitted to the police the black phone was “mine indeed”. I am sure that was the truth. I am sure the defendant was also called “Sonu” as addressed by the speaker of Messages 18, 19 and 29. The black phone was the defendant’s.

98.  There is no credible evidence that another person had used the defendant’s black phone to send out Message 10. I am sure the defendant was the speaker of Message 10 in response to Messages 7, 8 and 9, which he had received from 9419 xxxx.

99.  I find as I am sure the defendant on 1 January 2021 in Messages 7-10 agreed with the speaker in 9419 xxxx over the sale of 20 grams of cannabis resin to a third person.

H.2.5 Verdict

100.  I convict the defendant of Charge 4 “Conspiracy to traffic in a dangerous drug”.

H.3 Charge 1

101.  The “ice” was 6.38 grammes of a solid containing 6.18 grammes of methamphetamine hydrochorlide in one bag; it was of an estimated street value of HK$3,388.

102.  I accept the defendant was a drug addict of amphetamine and opiates because he was tested positive of both while in custody four days after arrest.

103.  A regular user of “ice” would consume 0.1-0.5 gramme per day, so the seized quantity could be for such an addict’s own use for about 12-64 days.

H.3.1 The defendant’s means

104.  The defendant claims the “ice” in Charge 1 was for his own use for a month. He says he would spend around 2,000 dollars on drugs each month.

105.  The defendant is a Form 8 recognizance holder. He would receive monthly refugee aids of more than three thousand dollars. That however consisted largely of food cards and paid rent; the cash part was only a travel subsidy of HK$230.

106.  The defendant alleges he was sometimes given amounts of 50-100 dollars by others and he had occasional remittance from his father in India. The defendant says he had recently received a remittance of HK$3,000 from his father so he could spend HK$2,000 on “ice”.

107.  Yet, the defendant’s claims that he had extra aids are bare assertions. He does not have proof that he really had such aids, in particular the overseas remittance from his father as alleged.

H.3.2 Late hour and location

108.  When police officers stopped the defendant on 6 January 2021 at 237-239 To Kwa Wan Road as he was entering I-Feng Mansions with another man, it was around 10:20 p.m..

109.  The defendant was not going home even though it was already late at night and he had a bag of “ice” of more than 6 grammes (P1) on his person at a place other than his residence.

110.  I have earlier rejected the defendant’s claim that he went to I-Feng Mansions to return the black phone to Sonu. I am sure he was in fact taking that bag of “ice” to I-Feng Mansions for the purpose of trafficking. I do not believe the defendant’s claim that the “ice” in Charge 1 was for his own consumption. Due to his very limited means, he could hardly afford to buy that much in one go for his purported own use for a month.

H.3.3 Verdict

111.  I convict the defendant of “Trafficking in a dangerous drug” on Charge 1.