HKSAR v. YIU HUNG KUK

DCCC 943/2017

[2018] HKDC 651

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 943 OF 2017

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Reasons for Verdict

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1.  The defendant faces a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and subsection (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The defendant did enter a plea of guilty to possession of the drug.  The issue, therefore, is whether the defendant’s admitted possession of the dangerous drugs in question can be proved to a criminal standard to be for the purposes of trafficking in those drugs.

3.  The prosecution’s case was essentially agreed and can be found in the facts admitted by the defendant, and those are that on 20 June 2017 at 0353 hours in the morning the defendant was intercepted by a police patrol at Shantung Street near Nathan Road, Mong Kok in Kowloon.

4.  She was searched, and found on her person was a tissue paper containing three plastic bags which contained a total of 7 grammes of a solid which contained 7 grammes of methamphetamine hydrochloride.  These were found from the defendant’s left front dress pocket.

5.  She was arrested at the time.  She was taken, together with the drugs, to the Mong Kok Police Station.  The drugs were then processed and analysed by the Government Chemist. 

6.  At the time of her body search at the Mong Kok Police Station, she was found to be in possession of $9,440 in Hong Kong dollars and Renminbi of $520 in cash.

7.  The defendant’s house was searched.  No drug‑related articles or drug paraphernalia was found inside her residence.

8.  It is also agreed that the average retail price of methamphetamine was $343 per gramme in June 2017, and the estimated street value of the total amount of drugs, which is 7 grammes of methamphetamine hydrochloride, is $2,401.

9.  The defendant did say certain matters when cautioned after her arrest.  She said, “I bought this dangerous drug, ‘Ice’, at $700 for my own consumption.”  That was reduced to a post‑recorded statement, which was Exhibit 5A.

10.  There was a later record of interview taken where the defendant expanded upon that admission, and in that, she said, firstly, “At half past 3 in the morning at Mong Kok MTR Station I bought a total of three packs of dangerous drug, ‘Ice’, at $700 from a male for my own consumption.  I wrapped the three packs of ‘Ice’ in a piece of white tissue paper and slipped it in the left chest pocket of the white dress I was wearing.” She said that she had been in the habit of smoking dangerous drugs for 10‑odd years - that is, “Ice” - for 10 years.  She smoked it with an “Ice” pipe.  The HK$9,400‑odd that was found upon her was, she said, “My CSSA double payment.” She said, “I’m trying to rent a house recently, so I kept the money on me.”

11.  She was asked about the dosage of dangerous drug that she usually smoked, and she said, “I usually smoke dangerous drug ‘Ice’ about four to five times a week, about 0.5 grammes each time.”

12.  The defendant also gave evidence in her own defence.  That established that she was 45 years old, with two children, and married.  She is, she says, a drug addict, and a consumer of “Ice” in June 2017.  She said that she purchased the drug for $700 for her own consumption, that she had numerous convictions for possession of a dangerous drug, but no convictions for trafficking in drugs.  She had been to drug addiction treatment centre on a number of times and had also been sentenced to imprisonment for possession of a dangerous drug.

13.  In cross-examination she said the drugs were in three packets because she had been given two packets, and then she said, “He also gave me another packet.”  She reiterated that despite the market price being $2,400-odd, she had only paid $700 for that quantity of drug.  She did confirm that she consumed about 2 grammes per week and she bought the 7 grammes because it was safer and cheaper.  She said that she could afford the drug because she spent $1,000 per month on the drug, and she repeated that when questioned about her expenditures.  She disagreed with the proposition that part of the drugs certainly would have been sold on to help her afford her addiction.  She would consume the drug at her friend’s place, and she had all the money on her because she was going to rent a place the next day.

14.  She also produced a urine test report that showed that she was positive at that time, which is upon her detention, to methamphetamine.

15.  The requirements of the prosecution are to prove the case against the defendant beyond all reasonable doubt.  They bring the allegation against her.  The burden remains on them at all times to prove the case to the criminal standard.

16.  The defendant is charged with trafficking in the drug, and that means procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking.  The prosecution say here the drug was possessed for the purpose of trafficking.

17.  Naturally, on the facts produced by the prosecution and agreed by the defence, there was no direct evidence of trafficking in the drug.  The prosecution rely upon an inference being drawn as to that fact.  An inference is like any other fact.  It must be proved beyond reasonable doubt, and the evidence the prosecution rely on must prove that inferential fact beyond reasonable doubt.  It has also been said that that inferential fact must be the only available inference on the facts.

18.  The prosecution proved that the resolution of the issue can be determined by the following evidential factors.  The defendant was in possession of 7 grammes of drugs, which they say is a lot more than is needed by a retail consumer of the drug.  The price of the drug as accepted in the Admitted Facts is beyond the defendant’s ability to finance, given that her only income is her support under CSSA, CSSA being a government payment which covers rental and subsistence living.  It does not cover a drug habit which, on her own evidence, would be up to $1,000 a month.  The drugs were found on the defendant in a public place in the early hours of the morning in three bags; in other words, in packaging that made it capable of distribution.  They were also found together with a large sum of money in Hong Kong dollars and Renminbi. 

19.  The defendant counters those factors.  They say the drugs were bought at $700, below the market price.  The drugs would be consumed at a rate of 0.5 grammes per dose four to five times a week, or a consumption of between 2 to 2½ grammes.  Therefore, the drugs could last over three weeks.  The quantity fitted her needs for a not lengthy period and was purchased in that way to avoid the risk of frequent purchases.  She says the source of her money was explicable, it being her double rent for CSSA.

20.  In resolving these issues, I had to take into account the general burden of standard of proof and questions of credibility. I do note what was said in the Court of Appeal in the case of Attorney-General v Ching Kwok Hung [1990] AR 15:

“Evidence presented to the court and accepted by that court showed that one-tenth of a gramme of ‘Ice’ without reuse would be sufficient for three to four what were described as ‘hits’. Evidence given by a Dr Leung was that 1 gramme, on the basis of use and reuse, could be used to obtain 10 to 15 ‘hits’.”

21.  On this basis, the drugs seized, the 7 grammes, could be used to obtain between 70 to 105 “hits”.  I also take into account the agreed evidence that the value of those drugs seized was actually $2,401.

22.  I concluded, on the basis of the agreed value of the drugs, that the defendant’s evidence of buying the drugs for $700 must be untrue.  She is proposing, on that evidence, a discount of some two-thirds from the price prevailing in Hong Kong at the material time.  This is simply not believable.  Her motive is obvious:  that on her income, she could not afford to purchase $2,401 worth of drugs.  She had no means at all to purchase anything but a very small quantity of drugs.  She therefore made up a smaller figure so it would appear more achievable given her limited resources.

23.  I also found her other evidence about the source of the money found on her and her rate of consumption to be again unbelievable; namely, that she said her consumption at an agreed rate of 0.5 grammes taken four to five times per week would lead, on prevailing prices, to a consumption of $686 per week or $2,744 per month.  Her evidence therefore of spending only $1,000 per month or less than 1 gramme per week on prevailing prices is not consistent with her stated rate of consumption.

24.  I generally found the defendant’s evidence to be unreliable, and I did reject it in its entirety, with the caveat that I believe it is established she is a drug addict and a regular consumer of the drug.

25.  I was left therefore with the prosecution evidence which did establish that the defendant was found in the early hours of the morning on the street with 7 grammes of “Ice” and HK$9,400 and 520 Renminbi; that that 7 grammes of “Ice” could provide a minimum of between 70 to 105 “hits” or doses, far more than is needed by a consumer of the drug; the drugs were worth $2,401; the defendant could not, on the basis of her known resources, afford to spend that sum of money on the drug; and that to purchase these drugs at the prevailing market prices to serve her addiction would need an extra source of income.

26.  The defendant was also in possession of a substantial sum of money, far more than a person of her means would be able to save. I have rejected her explanation as to how she obtained that money.

27.  Given all these factors, including the possession of drugs and its packaging and price, I find that the inference can be drawn that the drugs were possessed for the purpose of trafficking in them.

28.  I believe that that is established beyond reasonable doubt, and therefore the defendant will be convicted of the charge as drawn.