HKSAR v. SUNIL KUMAR

DCCC 693/2022

[2023] HKDC 1230

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 693 OF 2022

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REASONS FOR VERDICT

1.  The defendant faces a charge of "Trafficking in a dangerous drug". He pleaded guilty to "simple possession" but the prosecution decided to proceed with "trafficking".

The Prosecution Case

2.  About 7:30 p.m. on 15 April 2022, near the junction between Argyle Street and Reclamation Street in Mongkok, PC 20843 (PW1)  stopped the defendant for enquiry.  The following items were found in his left front trouser pocket :-

Two pieces of tissue paper (collectively Exhibit P2)  wrapping a red edge transparent resealable plastic bag which contained 14.9 grammes of a solid containing 10.4 grammes of cocaine (Exhibit P1).

3.  PW1 arrested the defendant for "simple possession" and cautioned him in Hindi.  Under caution, the defendant replied in Hindi "I bought this packet of white powder for $500 at Thistle Street Garden from an unknown male for my own consumption."  In his evidence, PW1 explained that he is a Pakistani born in Hong Kong and educated at local schools.  He is able to speak Punti, English, Urdu, Punjabi and Hindi.  He can read and write Chinese and English as well.  He readily admitted that he is unable to read or write Hindi.

4.  The arrest, caution and the defendant's 1-sentence reply were later in the same evening post-recorded in writing at the police station through the assistance of a Chinese-English interpreter and an English-Hindi interpreter (Exhibits P6A and P6B).

5.  The defence admitted basically all the facts stated above.  The prosecution called only PW1 to give evidence.  Defence counsel Mr. Allan took issue with only one matter ‒ the accuracy of the defendant's reply under caution.  Under section 65C of the Criminal Procedure Ordinance (Cap.221), the prosecution and defence agreed on the street value of crack cocaine[1] in April 2022[2]; and produced the expert report written by Dr. Chong Yeow Kuan on the daily consumption of cocaine (Exhibit P7).

The Defence Case

6. The defendant elected not to give evidence or call any defence witness. He has the right to remain silent; I drew no adverse inference against him in this regard.

Assessment and Analysis of Evidence

7. The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.

8. The defendant is a Form 8 holder. I am aware of his financial ability in general[3].

9. According to Dr. Chong's report, the typical daily consumption rate for cocaine users in Hong Kong is 0.4 gramme at street purity[4]; whereas the lethal dosage is reported to be between 1.2 and 5 grammes per day[5]. Mr. Allan did not take issue with these figures. On this basis, the substance found in the defendant's left front trouser pocket could last him somewhere between 3 days[6] and 37 days[7].

10. According to DSIP Tam, in April 2022, the estimated retail value of the cocaine found in this case was $24,674[8]. According to PW1, the defendant said under caution that he purchased Exhibit P1 at $500. On the other hand, Mr. Allan put to PW1 that the defendant had in fact said he bought the packet at $15,500, but PW1 disagreed. Mr. Allan questioned PW1's fluency in Hindi on the basis that it is not his mother tongue. PW1 has clearly accounted for his language ability (both verbal and written)  in the witness box.

11. As a juror, I have not a single doubt in PW1's credibility and reliability as a witness. I accept his evidence in its entirety. I am sure that the defendant had said he bought the packet at $500; and this is what PW1 heard at the time.

12. Dangerous drugs are illegal commodities. It is common sense that they have their own market and that their prices (be it retail or wholesale)  are determined by many factors unknown to the public. Unlike stocks, bonds or precious metals, the so-called "market prices" of dangerous drugs are certainly more arbitrary. As a juror, I am unable to discern whether the alleged purchase price of Exhibit P1 (be it at $500 or $15,500)  was unreasonably low or fair and whether the defendant could afford it.

13. In the present case, the defendant was stopped and searched on the street. There is no evidence of him handing over any items to others or receiving money from others. No packaging paraphernalia (such as electronic scales, multiple empty plastic bags or spoon-like objects)  were found. The sums of cash and 2 mobile phones found on the defendant were unremarkable. Looking at the quantity and packaging of Exhibit P1 alone[9], I simply cannot rule out the possibility of self-consumption.

14. Mr. Allan submitted that even if the defendant's 1-sentence out-of-court exculpatory statement is rejected by the court, the prosecution still lacks sufficient evidence to support an irresistible inference of trafficking. I agree with him.

15. Based on the reasons stated above, I am not satisfied that the prosecution has proved beyond reasonable doubt all elements of the offence. Hence, I find the defendant not guilty of "trafficking". On the other hand, based on his admission of possessing Exhibit P1 and all the evidence before me, I find the defendant guilty of "possession".