HKSAR v. CHAN CHI WAH

DCCC 235/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 235 OF 2016

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

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

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

Reasons for Verdict

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

1.  The defendant faces two charges of trafficking in a dangerous drug, namely heroin hydrochloride.

2.  In both charges the defendant admits possession of the drug, but he denies trafficking in the drug.  The issue to be determined in both charges is the same.  It is whether the defendant possessed the drugs for the purposes of trafficking in them, or possessed them, as he says, for his own consumption.

3.  The factual background of the case was agreed, and this is that on 15 December 2015, police officers patrolled the ground floor of the vicinity of Tsui To House in Kwun Tong in Kowloon.  They saw the defendant squatting on the ground.  He was known to be a street sleeper who lived in that location.

4.  The defendant was searched.  Inside his jacket right pocket a transparent resealable plastic bag was found.  That contained 25 packets of drug, each within a plastic wrapping.

5.  The defendant was cautioned.  In reply, he said, “Sir, the white powder is for my own consumption.  It is $120 per pellet. Please give me a chance.”

6.  A subsequent search of a plastic bowl containing food which the defendant was eating discovered a further transparent resealable plastic bag which contained a further 25 pellets in identical wrapping to those discovered earlier.

7.  The defendant was again cautioned.  He said, “Sir, the white powder is for my own consumption.  Please give me a chance.”

8.  The first plastic bag discovered contained 3.63 grammes of a mixture containing 2.58 grammes of heroin hydrochloride.  The second bag contained 3.49 grammes of a mixture containing 2.50 grammes of heroin hydrochloride.

9.  The defendant was also found to have $3,946 in his possession.  PW1, the arresting officer who gave evidence, established that those notes were denominated as follows.  There was one $500 note, 28 $100 notes, two $50 notes, 23 $20 notes, and six $10 notes.

10.  The defendant’s case was that the defendant gave evidence and called a witness.

11.  The defendant is aged 55 and has been unemployed for nine years.  He received some $3,700 from CSSA, but lives as a street sleeper.  He told us that he had taken drugs for 38 years.  He takes heroin.  The drugs in question were bought on 14 December 2015 from a person called “Tse Jai”.  The price was $6,000.  They were in the same form, ie 25 pellets in two packets.

12.  He said he would normally consume three pellets per day.  If he did not have any money, he would consume less.  The $6,000 was given to him by his friend, Miss Lam, who was his girlfriend many years ago. Their relationship started in 1993 and lasted 10 years.  She was only 16 when their relationship started.  She would give him money once or twice a year, and that was a sum up to $5,000.  In fact, the defendant lived downstairs on the outside of the apartment where she dwelt.

13.  The defendant said the money actually in his possession was the CSSA payment for December which in fact had been paid to him on 6 December.

14.  The defendant confirmed each pellet would cost $120.

15.  Miss Lam gave evidence.  She told the court she was a licensed security guard.  She had known the defendant when she was only 16 and had been in a relationship with him for 10 years.  She earned $12,000 per month and received some $5,000 maintenance.  She gave $6,000 to the defendant on 14 December.  She said and she told the court the defendant was very skinny and did not have a decent life.  She wanted to help him, so she gave him money.  It was winter, she said, and he was wearing shorts and a T-shirt.  She told him to buy clothes and to remember to eat.

16.  The issues in the case are clear.  The prosecution must prove the case beyond reasonable doubt.  The burden of proof remains on them at all times.  The prosecution must prove the defendant’s admitted possession of the drug was for the purposes of unlawfully trafficking in them.

17.  There is no direct evidence of this.  The prosecution must therefore rely on an inference from the other facts proved to establish this fact.  Like any fact, it must be proved beyond reasonable doubt, which has sometimes been expressed as being the only available inference or the only reasonable inference that can be drawn, and that inference itself must establish trafficking in the sense of dealing with the dangerous drug.  In this case, that would involve onward retail selling to other consumers.

18.  The prosecution submit that the defendant’s evidence of his means of support, especially his receiving of CSSA money in December, is evasive and contradictory.  They also say as far as the second witness is concerned that she is not wholly reliable.  They say that the defendant’s purchase of 50 packets of drug at a price of $6,000 is clearly far beyond his means; that the drug, as constituted, is readily distributable; that the money the defendant did have was found to be denominated in such a way that by holding a large number of 100 and 20 dollar notes, it would appear to be most likely the receipts from earlier drug trafficking.

19.  The defence say the defendant was truthful in both his description of the CSSA payment and receiving the money from the witness, Miss Lam; that his evidence taken on the maximum consumption of the drug would mean he would consume this drug in about 17 to 18 days, and the defendant therefore would have no need to sell the drug.

20.  I now look at the issues themselves.  First I look at the money.  The defendant has two sources of money:  his CSSA payment of around $3,700 per calendar month, and evidence of the $5,000 to $6,000 given intermittently to him by Miss Lam.

21.  There seems to be no actual dispute that the defendant does receive CSSA.  He is clearly entitled to it.  However, this in itself would be unlikely to be sufficient to meet the defendant’s drug habit. Even if he restricted himself to one packet a day, his expenditure would still be in the region of $3,600 per calendar month.

22.  However, I am solely concerned with these two plastic bags.  Whether the defendant is a general drug‑trafficker outside of that is not my concern.  I must be satisfied beyond reasonable doubt that in respect of these two bags, he possessed them for the purpose of unlawful trafficking in them.

23.  I noted that the evidence of Miss Lam, PW1, is challenged by the prosecution.  However, having heard her and the challenges to her evidence, I find there is little basis on which to reject her evidence. She is a person of reputable character, she is a security guard, she has had a long‑term association with the defendant, and it sounded to be genuine, she feels responsible for him and sorry for him and she acts generously.  I have no reason to reject or disbelieve her evidence.

24.  I take it from this that the defendant did receive $6,000 from this witness on or around 14 December 2015.

25.  It is also clear from the agreed evidence the defendant must have gone out and spent all that money on 50 packets of drugs at $120 per packet.  That constitutes the $6,000 that he was given.

26.  The evidence given by the defendant on the price of the drug is the only evidence I have in this case that each pellet is worth $120.  Again, that is not challenged.  Even on a consumption of between 0.5 to 0.7 per day, the defendant would consume that drug in seven to 20 days, which is within the 17 to 18 days posited by the defendant.  That is relying upon consumption of three packets per day.

27.  As I said, the defendant’s evidence on price was not challenged.  This means that when the defendant paid $6,000 for those 50 pellets, he was paying what was the market price.  If he does so, if he does pay the market price, it leaves little room for him to profitably traffic in the drug.  He has simply converted the $6,000 into drugs.  Were he to sell any of the pellets, he would have to sell them at $120, which is what he paid for them - the market price.  It is possible the defendant might need to sell drugs to convert the drugs back into money to support his livelihood, but he would not profit by doing so if he could only get the market price in return for the drug he sells.

28.  I find that the prosecution case reveals a strong likelihood that the defendant has trafficked in dangerous drugs in the past to support his habit.  The simple economics of his addiction support this conclusion, combined with his receipt of CSSA and his general unemployed status.

29.  However, for these two packets of drugs containing the 50 pellets, the evidence shows the defendant purchased these as a result of a windfall.  He abused the generosity of Miss Lam, and the money intended to be spent on clothes and food, he had spent it on drugs.  The problem for the prosecution, of course, is that on the evidence I have as to the value of the drugs, the defendant does not need to traffic in them, and in fact the sale or resale of any part of this drug does not help him, as each packet will only sell for the amount that was paid for it, giving little incentive for the defendant to sell the drug as opposed to just consuming it.

30.  I consider that in respect of the drugs charged, these 50 pellets, it is possible the drugs may be sold, but it is also possible the drugs could be consumed.  The defendant does not need to sell the drug and could not sell the drug to increase his consumption.

31.  It is clearly from this conclusion I cannot find that the defendant must have or certainly had these 50 pellets for the purposes of trafficking in them.  I say it is a possibility, but that is not enough on which to secure a conviction for these charges.

32.  Therefore, in respect of both charges, the charge of trafficking in a dangerous drug fails.  But the defendant will, of course, be convicted on this evidence and his own plea of the offence of possession of those drugs in respect of both charges.