HKSAR v. CHENG CHUN WAI

DCCC772/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 772 OF 2014

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Reasons for Verdict

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1.  The defendant faces one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong. The dangerous drug in question was 30.02 grammes of a mixture containing 16.97 grammes of heroin hydrochloride (“the Drug”). He pleads not guilty to the charge, but admits possession of the drug unlawfully. The prosecution does not accept the defendant’s plea to the lesser offence and proceeds with the trafficking charge.

Issue

2.  According to section 2 of the Dangerous Drugs Ordinance, “trafficking”, in relation to a dangerous drug, includes “… supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking”.

3.  Learned counsel for the prosecution Mr. Percy concedes that the prosecution does not have direct evidence to prove that the defendant was trafficking in the Drug at the material times and place.  However, it is the prosecution case that the only reasonable and irresistible inference to be drawn from all the circumstances of this case is that the defendant possessed the Drug for the purpose of trafficking.  On the other hand, the defence case is that the defendant possessed the Drug for his own consumption only.

The evidence

4.  The prosecution and the defendant had admitted certain facts pursuant to section 65C of the Criminal Procedure Ordinance (Exhibit P10).  The various exhibits referred to in the Admitted Facts were also produced by consent.  The prosecution then called 3 witnesses to testify.  They were Senior Police Constable 33185 (PW1), Detective Police Constable 13726 (PW2) and Detective Senior Inspector Chan Lap Koon (PW3). 

5.  At the end of the prosecution case, learned solicitor for the defendant Mr. Booth did not make any submissions.  I found that the defendant had a case to answer on the trafficking charge.  The defendant then elected to testify.  He did not call any witness.

The directions

6.  I direct myself that the burden is on the prosecution to prove the charge against the defendant beyond reasonable doubt.  Although the defendant had given evidence, it does not mean that he has the burden to prove what he had testified is true or may be true.  It is trite law that he needs to prove nothing. However, since the defendant had testified, I must take into account everything that he had said when I am considering the issues of fact that I have to determine.

7.  In his oral testimony in Court as well as in his out-of-court statements made at the time of his arrest and during his video-recorded interview (which I shall summarize later), the defendant maintained that he possessed the Drug purely for his own consumption.  These out-of-court statements were mixed statements because each of them contained an incriminating part (i.e. the defendant confessed to possession of the Drug), as well as an exculpatory part (i.e. he explained that he had the Drug only for his own consumption).  For this reason, I must consider the whole of each out-of-court statement when I decide where the truth lies.  In other words, I must regard each of these out-of-court statements made by the defendant not only as evidence of consistency but also as evidence of truth.  In addition, these out-of-court statements support or tend to support not only the truthfulness of one another but also the truthfulness of the defendant’s oral testimony in Court.  If what the defendant had said on any of these occasions (be it inside or outside Court) is true or may be true, it will mean that the prosecution will not be able to prove the trafficking charge beyond reasonable doubt and the defendant can only be convicted of simple possession of the Drug.

8.  On the other hand, even if the defendant’s oral testimony and all his out-of-court statements were completely rejected on the ground that all of them were untrue and might not possibly be true, it does not mean that the prosecution has discharged its burden of proof.  I must still consider the whole of the evidence and determine whether or not the evidence is sufficient and cogent enough for me to be sure of the guilt of the defendant before I can convict him of the trafficking charge.

9.  When all the prosecution witnesses and the defendant were giving evidence, I had closely observed the demeanour of each one of them.  I bear in mind that the credibility of a witness and the reliability of his evidence cannot be decided solely on the basis of his demeanour.  In determining whether a witness is honest and whether his evidence is truthful and reliable, the more useful guiding tool is to consider the inherent probability and credibility of his evidence, and to find out whether it is consistent or in conflict with the proven or incontrovertible facts.

10.  As the prosecution has no direct evidence to prove that the defendant possessed the Drug for the purpose of trafficking, it is asking this Court to draw such an inference from all the circumstances of this case.  In discharging my function as a jury, I note that I am entitled to infer the existence of other facts from facts, but I must bear in mind the two essential prerequisites.  First, the primary facts upon which I may draw any inference of facts must be either facts admitted by the defendant or facts found to have been proved beyond reasonable doubt.  Second, no inference of facts can be drawn against the defendant unless that inference is the only reasonable and irresistible inference arising from the facts admitted or proved.  On the other hand, even if pieces of facts each on its own will not be sufficient to support any inference of facts to be drawn, they may be taken together to form a body of facts upon which a proper inference of facts may be drawn.  It is because circumstantial evidence works cumulatively, in geometrical progression, eliminating other possibilities[1].

11.  In the course of his evidence, the defendant disclosed upon his own initiative that he was released from prison on 29 November 2013.  He had therefore revealed that he had been convicted and served a prison sentence before.  I remind myself that no adverse inference of any kind can be drawn against the defendant from his past history.  The defendant made this disclosure because he wanted to make the point that he could recall accurately that he started his employment in December 2013.  I remind myself that this is the only use that can be put to this piece of evidence.  It tends to enhance his credibility and the reliability of that part of his evidence.  I direct myself that the fact that the defendant had served a sentence of imprisonment before cannot be used in any way prejudicial against him.  It does not help me in the slightest way to decide whether or not he had committed the offence charged.  Nor does it have any adverse effect on the weight of his evidence or his credibility as a witness.

Facts admitted or not in dispute

12.  From the Admitted Facts (Exhibit P10) and the evidence that is not in dispute between the prosecution witnesses and the defendant, I find that the following facts have been established beyond reasonable doubt: -

(A) The arrest of the defendant

(1) In the early hours of 27 June 2014, a team of 3 police officers including PW1 was patrolling in Un Chau Street, Sham Shui Po. PW1 and one other officer were in police uniform while the third officer was in plainclothes.

(2) At 1:20 a.m. on 27 June 2014 when PW1 was walking on the pavement outside the entrance of a building at No. 89 Un Chau Street together with the other two officers, he saw the defendant boarding a taxi in a hurry once the defendant spotted him. At that time, the taxi was stopping on the slow lane outside the New Capital Computer Plaza at No. 85 - 95 Un Chau Street, and was about 10 metres away from PW1.

(3) PW1 found the defendant’s act suspicious. He immediately went up to the taxi, and asked the defendant to alight from the taxi. The defendant complied with his request.

(4) PW1 then brought the defendant to the pavement outside the entrance of the New Capital Computer Plaza for enquiries. He asked the defendant why he had boarded the taxi in a hurry. The defendant just uttered the word “nothing” in his reply. However, PW1 saw that the defendant was shivering and appeared to be very nervous. He therefore told the defendant that he suspected him of hiding some drugs and demanded to conduct a search on him. The defendant did not make any reply. He just dropped his head.

(5) PW1 searched the defendant’s bag and his trouser’s pockets. He found nothing illegal. He then noticed something hard bulging around the waist of the pair of trousers worn by the defendant. He searched that area and found two re-sealable plastic bags containing white powder suspected to be a dangerous drug (Exhibits P1 and P2) wrapped up by one piece of white tissue paper from inside the waist band of the defendant’s underpants.

(6) PW1 immediately arrested the defendant for the offence of possession of a dangerous drug and cautioned him. Under caution, the defendant said, “Ah Sir, the white powder was bought by me for my own consumption only. Please give me a chance.”

(7) PW1 then took the defendant away from the scene and they arrived at Sham Shui Po Police Station at 1:30 a.m. In the presence of the defendant, PW1 made a report of the defendant’s arrest to the Station Sergeant on duty in the Report Room and weighed the suspected drug seized from the defendant.

(B) The defendant’s instruction to taxi driver before police interception

After the defendant had boarded the taxi in Un Chau Street and before he was stopped by PW1 for enquiries, he requested the taxi driver to take him to an address at Lai Chi Kok Road near Kweilin Street.

(C) Other articles possessed by the defendant

During a search conducted by PW1 on the defendant between 1:46 a.m. and 1:50 a.m. on 27 June 2014 inside the Search Room of Sham Shui Po Police Station, the defendant was found to be in possession of: -

(1) cash HK$2,630.30;

(2) one Octopus Card No. 36201697 (0) (Exhibit P3);

(3) 3 mobile phones, i.e. one white SONY mobile phone with memory card and SIM Card, one black SONY mobile phone with memory card and SIM Card, and one black SAMSUNG mobile phone with SIM card.

(D) The video-recorded interview of the defendant

(1) Between 10:48 p.m. and 11:02 p.m. on 27 June 2014, PW2 together with WDPC 55337 conducted a video-recorded interview with the defendant. During the interview, the defendant was under caution and provided his answers freely and voluntarily. The master DVD, its working copy and the Chinese transcripts of this interview with certified English translations were produced respectively as Exhibits P9, P9A, P9B and P9C.

(2) During this interview, the defendant stated under caution inter alia that: -

(a) the two bags of drug found inside his underpants were No. 4 heroin and he purchased them for his own consumption (counters 16 to 22);

(b) he purchased the drug from a friend named Ah Shing in Nam Cheong Street Park (counters 28 to 34 & counter 44);

(c) he arrived there on 26 June 2014 “at night time, at 10 … something after 11 o’clock” (counter 40) to buy the drug;

(d) he could not provide any information about Ah Shing to the police, but Ah Shing was “always … down there, down there occasionally” (counter 46), and if he bumped into Ah Shing when he walked past the location, he would be able to buy drug from Ah Shing (counters 47 & 48);

(e) he purchased the drug at $10,000 (counter 50);

(f) after he had purchased the drug, he had not consumed any of them, and at the time when the drug was searched from him, the amount was not less than the amount he had purchased, and the pack was in its original packaging (counters 51 to 60);

(g) he would usually consume drug at places like public toilet, street and rear staircase (counter 62);

(h) he usually just placed the drug anywhere (counter 64), and also kept it on his person (counters 65 & 66);

(i) he would consume the drug by “chase”, which meant he would put some heroin on a piece of tinfoil, heat it with fire and smell it for consumption (counters 69 to 76);

(j) after he had purchased the drug, he planned “nowhere to go” but just walking around immediately to look for a suitable place to consume drug (counters 85 to 92); he had not yet consumed any drug before he was intercepted by the police (counters 93 to 96);

(k) he took the MTR to travel from Mongkok to Sham Shui Po (counters 99 to 104), but he did not use his Octopus card to travel (counters 105 & 106);

(l) he had no way to contact Ah Shing; he could take the police there to find Ah Shing but might not be able to see him (counters 111 to 114);

(m) he usually did odd jobs and the $10,000 he used to buy the drug was the money he had saved up (counters 115 & 116);

(n) he usually had the habit of consuming “pak fan” (white powder) and he usually consumed white powder 5 to 6 times a day at places like public toilets or staircases, and the quantity for each day was “about one stroke” (counters 117 to 132);

(n) the $2,000 odd found on him were his money (counters 133 to 136).

(E) House search of the defendant’s residence

On 27 June 2014, a police party including PW2 gained entry into the defendant’s residential address at Room A, 3/F of a tenement building at 5 Cheung Wong Road, Mongkok (“Room A”). The police found nothing suspicious relating to dangerous drugs.

(F) Analysis of the suspected drug seized from the defendant

Upon subsequent analysis by the Government chemist as evidenced by the Government Chemist certificate (Exhibit P4), Exhibit P1 was confirmed to be one plastic bag containing 28.13 grammes of a mixture containing 15.92 grammes of heroin hydrochloride, whereas Exhibit P2 was confirmed to be another plastic bag containing 1.89 grammes of a mixture containing 1.05 grammes of heroin hydrochloride. The aggregated amounts of the mixture and the heroin hydrochloride in Exhibits P1 and P2 were the same as those particularized in the charge.

(G) Subsequent police investigation

(1) A video record (Exhibit P8) of the CCTV camera outside the main entrance of New Capital Computer Plaza at 85 – 95 Un Chau Street was retrieved on 1 July 2014. This video record showed the pedestrians’ movement on the street between 1 a.m. and 2 a.m. on 27 June 2014. It also recorded the readings of a timer showing the date and the time at which the video images were taken according to the clock of the CCTV camera.

(2) The Octopus card found in the defendant’s possession (Exhibit P3) was used to purchase products sold at a “7-Eleven” Shop situated at Shop C, G/F., No. 65 – 69 Un Chau Street at 00:38 hours on 27 June 2014.

Evidence of PW1 to PW3

PW1

13.  PW1 was asked to look at two sections of the video record (Exhibit P8) which was played in Court. 

14.  When the first section of the video record was played, PW1’s attention was drawn to a man wearing a short-sleeved T-shirt and a pair of long pants with camouflage pattern and carrying a bag with its strap on his right shoulder and extending diagonally across his chest to the left side of his body, with the bag hanging by the side of his left waist.  When this man was first captured by the CCTV camera, the time shown in the video record was “01:24:42”. At that time, he was walking along the pavement outside the New Capital Computer Plaza with his back towards the camera, and he was walking in the direction away from the camera.  When he reached near the end of the pavement, he turned left and disappeared from the camera coverage when the time shown was “01:24:52”. When PW1 was asked if he could recognize this man, PW1 said he could not.

15.  When the second section of the video record was played, PW1’s attention was drawn to a man wearing the same clothing and carrying a bag on his shoulder in the same manner as the man shown in the first section of the video record.  This man walked into the area covered by the CCTV camera when he emerged from a location near the end of the pavement which appeared to be the same location in which the man in the first section of the video record disappeared.  At that moment, the time shown in the video record was “01:34:54”. From that location, this man turned right into the pavement and then walked obliquely onto the road by the side of the pavement.  When he was doing so, he was facing and moving closer to the CCTV camera.  When this man was walking in this manner, he also raised up his left hand as if he was making a signal to something on the road.  This man then disappeared from the camera coverage when the time shown on the video was “01:35:03”. When the video reached the time shown as “01:35:16”, the CCTV camera captured two uniformed police officers and one man in plain-clothes appearing in the foreground of the screen and they walked onto the pavement outside the New Capital Computer Plaza.  When the time shown was “01:35:22”, one uniformed officer and the man in plain-clothes walked onto the road by the side of the pavement and disappeared from the camera coverage.  When the time shown was “01:35:40”, the man in long pants with camouflage pattern, the uniformed police officer and the man in plain clothes were recaptured by the CCTV camera.  All of them walked back onto the pavement outside New Capital Computer Plaza where the uniformed police officer subsequently conducted a search on the man in long pants with camouflage pattern.

16.  Having seen the second section of the video record, PW1 identified himself to be the uniformed police officer who searched the man in long pants with camouflage pattern, and the defendant to be that man.  Based on the same clothing and the video footage, he believed the defendant was also the man shown in the first section of the video record.

17.  In his cross-examination of PW1, Mr. Booth asked PW1 whether there were mobile phones inside the defendant’s bag when he searched him.  PW1 replied in the positive.  Mr. Booth then put no further question to PW1.  He did not challenge PW1’s identification of the defendant as the man wearing a pair of long pants with camouflage pattern in the first and the second sections of the video record.

PW2

18.  PW2 testified that shortly after 4:55 a.m. on 27 June 2014, he escorted the defendant to 3/F, 5 Cheung Wong Road, Mongkok which was divided into 3 to 4 sub-units including Room A which was the defendant’s residence with the intention of conducting a house search.  They arrived at 5:25 a.m. but they could not gain entry because the defendant did not have the key to the metal gate at the main door. 

19.  According to PW2, about 11:10 p.m. of the same day, he and the defendant went to the same address again.  They managed to gain entry when someone inside opened the door for them.  PW2 then used the key provided by the defendant to open Room A which had an area of about 3 metres by 3 metres with one bed and sundry items inside.  PW2 searched the room and could not find any item relating to dangerous drugs.

20.  PW2 further testified that as part of the investigation into this case, he obtained from the Food and Environmental Hygiene Department a street plan which identified the locations of the 10 public toilets in the Sham Shui Po area, and the names of these toilets appeared on the legend of the street plan (Exhibit P11).  On a photocopy of Exhibit P11, PW2 marked a red cross to indicate the location where the defendant was arrested, i.e. the New Capital Computer Plaza at No. 85 – 95 Un Chau Street (Exhibit P12). 

21.  It was apparent from the marking made by PW2 that the public toilets closest to the arrest location were Yen Chow Street Public Toilet (marked with number 10 on the street plan), Nam Cheong Street Public Toilet (marked with number 5 on the street plan), and Apliu Street Public Toilet (marked with number 1 on the street plan).

22.  PW2 had also drawn on a map (Exhibit P13) a triangle to indicate the location where the defendant was arrested (i.e. No. 85 – 95 Un Chau Street), and a rectangle to indicate the location of the 7-Eleven Shop at which the defendant’s Octopus card (Exhibit P3) had been used (i.e. No. 65 – 69 Un Chau Street).  He also identified the locations of Yen Chow Street Public Toilet, Nam Cheong Street Public Toilet and Apliu Street Public Toilet on the map with the numbers 1, 2 and 3 in circles respectively.  He pointed out that the Nam Cheong Street Public Toilet was situated at the junction of Un Chau Street and Nam Cheong Street.  He also drew a circle on the map, using the arrest location as the centre of the circle, with a radius equivalent to 400 metres from the arrest location. 

23.  PW2 had also drawn on a copy of Exhibit P13 a long rectangle in red to indicate the location of the Nam Cheong Street Park (Exhibit P14).  It was apparent that the Nam Cheong Street Park occupied a lengthy section of Nam Cheong Road starting from its junction with Yu Chau Street until its junction with Un Chau Street.

24.  Under cross-examination, it was put to PW2 that there were two bunk beds inside the defendant’s room so that 4 persons could use that room.  PW2 testified that he could recall only one bunk bed, but agreed that it was possible to have two bunk beds there.

PW3

25.  PW3 gave evidence on the street value of the Drug seized from the defendant.   His qualification to give expert evidence in this regard was not challenged by the defence.

26.  PW3 testified that according to the information he had collected from the Police and the Customs & Excise Department, for heroin sold in packets of less than 5 grammes, he average retail price was HK$722 per gramme in June 2014.  Hence, the Drug seized from the defendant had a retail street value of slightly over $21,000[2].

27.  PW3 was asked to explain the term “one stroke” used by the defendant during his video-recorded interview when he spoke about the quantity of heroin he consumed each day.  PW3 stated that according to his experience, “one stroke” was a slang referring to “one gramme” of the heroin mixture.

28.  Under cross-examination, PW3 agreed that people might buy heroin above or below his estimated price.  He also agreed that it was more likely for a heroin buyer to get a discount if he purchased more or in bulk.

29.  In Re-examination, PW3 stated that if the defendant purchased the Drug at $10,000, the price would be too low and the discount too substantial in the retail level.

Evidence of the defendant

30.  The defendant is 36 years old.  He was born in Hong Kong.  He was educated up to the secondary level.  He is a divorced man. 

31.  The defendant testified that, at the time of his arrest on 27 June 2014, he was living in Room A.  There were two bunk beds inside the room which allowed 4 persons to live in.  At that time, there were 3 persons (including him) living there.  He did not know these two other persons before they shared Room A with him.  He would pay rent at no more than $2,000 a month.  He explained that his landlord had told him that if he was the only occupant of the room, he would need to pay $2,000, but he would pay less if there were 3 persons sharing the room.

32.  The defendant also testified that he had a job in Yau Tong and Kwai Chung Container Port at the time of his arrest.  His work was to load and unload containers. His basic daily salary was $630 for working between 9 a.m. to 5 p.m., but since he usually worked overtime until 10 p.m., he earned approximately $1,000 a day.  He normally worked around 10 odd days in a month.  When he was asked if the amount of his work fluctuated, the defendant replied that “usually it was busy”.

33.  As to how he managed when he was not busy and did not earn as much as what he had said, the defendant accepted that he had been on social welfare assistance. The last time prior to his arrest when he had social welfare assistance was in early June 2014.  As to whether he would still receive social welfare assistance if he had work, the defendant said it depended on the amount of income he would report to the social welfare officer.  He said he had to see a social welfare officer twice a month.  He maintained that he had been working before his arrest at the end of June.

34.  On his drug abuse, the defendant testified that he had the habit of taking heroin at the time of his arrest.  He said that he began taking heroin around 1992 when he was 14 years old.  He took heroin approximately 5 to 6 times a day.  He consumed “one stroke”, i.e. around one gramme of heroin mixture a day, or around 30 odd grammes of heroin mixture a month.  He would consume heroin by “chasing the dragon”, which meant that he would place the white powder on a piece of tinfoil, heat it with fire, and inhale it.

35.  The defendant further testified that he used to buy the drug in small quantities, and that the cost was usually around $150 per “lay luk” (transliteration). He explained that one gramme contained 10 “lay”.  Sometimes, he bought bigger packets, and the price was cheaper.

36.  As to the events that had occurred prior to his arrest, the defendant testified that he went out that evening to purchase drug because he had run out of it. In that evening, he had purchased one “On” (transliteration) of the drug because it would be cheaper if he purchased more drug in one go, and he also had enough money to make the purchase on this occasion.  He had the money because he had casual work for 10 odd days.  The defendant confirmed that the police had seized cash $2,630 from him.  Hence, he said that when he went out that night, he had more than $12,000 with him.

37.  The defendant testified that he purchased the drug in question in Nam Cheong Street Park from a person called “Ah Shing”.  He had bought drugs from Ah Shing before, but not always at the same place.  The defendant explained that Ah Shing was usually in the park, but when he was not there, he would go around and look for him.

38.  The defendant confirmed that he went to the Nam Cheong Street Park to look for Ah Shing at about 11 p.m.  He did not see Ah Shing straight away.  He was not sure of the actual time when he saw Ah Shing, but he had waited for almost an hour. After meeting Ah Shing, he asked Ah Shing whether the drug was available.  Ah Shing said there were a lot, and that if the defendant was willing to take the drug in one go, he would give the defendant 2 grammes more for free. The defendant agreed to buy.  Ah Shing then asked him to wait for a while.  When Ah Shing returned and gave him the drug, he paid Ah Shing $10,000.  However, at that point of time, he did not know the actual quantity of the drug because he had not opened the packet given to him by Ah Shing.

39.  The defendant continued to testify that after he had purchased the drug in Nam Cheong Street Park, he intended to look for a place to have some food and “to begin the business” by which he meant “to inhale and consume dangerous drug”. He said he went to Kweilin Street at the beginning.  He then looked for a public toilet intending to “begin the business”.  He walked back to Nam Cheong Street Park.  There was a public toilet and he normally “began his business” there.  However, he found that he did not have tinfoil with him.  So, he walked along the street of the road to the direction where he got arrested to see if there was any tinfoil for sale. 

40.  As to what happened thereafter, the defendant testified that it seemed to him that he had gone to a 7-Eleven Shop, but he could not recall clearly what had actually happened because at that time, he had withdrawal symptom or withdrawal discomfort.

41.  The defendant maintained that drug in question was entirely for his own consumption, and he did not intend to give it or sell it to any others.

42.  The defendant was subject to extensive cross-examination by Mr. Percy.

Evaluation of the evidence and findings

43.  With the defendant admitting possession of the Drug and the prosecution conceding that there is no direct evidence of actual trafficking, the only issue to be determined is whether or not all the circumstances of this case give rise to the only reasonable and irresistible inference that the defendant was in possession of the Drug for the purpose of trafficking.  Of course, such an inference can never be drawn if the defendant’s oral testimony in court or any of his out-of-court statements that he merely possessed the Drug for his own consumption is true or may be true.  I must therefore deal with issues of credibility of witnesses and veracity of their evidence first.

44.  Having heard and considered the evidence of PW1, PW2 and PW3, I have no doubt whatsoever that each one of them is an honest and truthful witness.

45.  The evidence of PW1 has not really been challenged by the defence.  It is fully corroborated by the video record (Exhibit P8).  I accept his evidence in its entirety.  In particular, even though PW1 had never watched the video record prior to giving evidence in Court, his identification of the defendant to be the man in long pants with camouflage pattern in the two sections of the video record played in Court must be accurate because the defendant had also admitted that he was the man.

46.  I also accept the evidence of PW1 that he noticed the defendant at about 1:20 a.m. on 27 June 2014.  The Admitted Facts (Exhibit P10) also provided conclusive evidence on this point.  Hence, although the second section of the video record showing the movement of the defendant prior to his interception by PW1 recorded the relevant time to be between “01:34:54” and “01:35:40”, these events in fact took place at about 1:20 a.m.  It follows that the clock of the CCTV camera had not been set correctly and that there was a difference of about 15 minutes between the recorded time and the real time.  From this finding, it follows that even though the recorded time was between “01:24:42” and “01:24:52” when the defendant’s movement was captured in the first section of the video record, these events in fact occurred at about 1:10 a.m. on 27 June 2014.

47.  On the basis of these findings and the images captured by the video record, I find that it has been proved beyond reasonable doubt that at about 1:10 a.m. on 27 June 2014, the defendant was walking past the pavement outside the New Plaza Computer Centre at No. 85 – 95 Un Chau Street in the direction of the junction with Yen Chow Street, and that when he reached near the end of the pavement, he turned left into Yen Chow Street and disappeared from the area covered by the CCTV installed outside the New Capital Computer Plaza.  I also find that it has been proved beyond reasonable doubt that the defendant re-appeared about 10 minutes later at about 1:20 a.m. when he turned right from the junction with Yen Chow Street into the same pavement and then walked onto the road by its side and boarded a taxi prior to his interception by PW1.  I note that the defendant did not dispute these facts in his evidence.  He admitted in cross-examination that he turned into Yen Chow Street after walking past the New Capital Computer Plaza.

48.  As far as PW2’s evidence is concerned, his evidence was likewise not disputed by the defence except it was put to him that there were in fact two bunk beds instead of one inside Room A.  PW2 agreed to this possibility though he could recall only one bed.  His evidence is clearly insufficient to contradict that of the defendant who stated that there were two bunk beds inside Room A.  I therefore accept the defendant’s evidence on this particular point.  Subject to this point, I accept the entirety of PW2’s evidence.

49.  In particular, from the evidence of PW2, the street plan (Exhibit P11) and the map (Exhibit P13) that he had produced, as well as the various markings that he had made on the street plan (Exhibits P12) and the map (Exhibit P14), I find that PW2 had correctly identified the location of Nam Cheong Street Park, the locations of various public toilets in the Sham Shui Po area, the location of the 7-Eleven Shop in which the defendant’s Octopus card (Exhibit P3) had been used to make a purchase, and the location where the defendant was stopped searched and arrested.  It follows that the street plan and the map had also correctly shown how these various locations related to each other.

50.  PW3 was called by the prosecution to give expert evidence on the retail price of heroin mixture.  His evidence that the average retail price of heroin mixture sold in packets of less than 5 grammes was HK$722 per gramme in June 2014 was not challenged.  He also agreed with the defence proposition that heroin mixture sold in large quantities or in bulk could be sold at a discount of the average retail price.  The only challenge was against his evidence that the discount would be too substantial if the Drug seized from the defendant were purchased at HK$10,000.  I note what PW3 had actually said was that the discount would be too substantial in “the retail level”, and he was not referring specifically to heroin mixture sold in large quantities or in bulk. In any event, I agree with Mr. Booth that PW3 was not in a position to give evidence on the market price of heroin sold in large quantities or in bulk.  It is because the information supplied to him by the Police or the Customs & Excise Department did not contain statistical data of the discount that would attract if the drug was sold in large quantities or in bulk, and he had not personally interviewed any drug trafficker or drug abuser. 

51.  I shall now discuss the evidence of the defendant who needs to prove nothing.

Drug addiction of the defendant

52.  The defendant had consistently maintained in his video-recorded interview and in his oral testimony in Court that he was a drug addict.  His evidence and his out-of-court statements are fully corroborated by the undisputed fact that he was escorted by the police after his arrest to take methadone on two occasions, i.e. in the morning of the 27^th as well as in the morning of the 28^th of June 2014.  He said that he had been addicted to heroin since 1992 when he was 14 years old.  I accept his evidence on his drug addiction.  I find that he was a heroin abuser at the time of his arrest.   

Consumption method, frequency and quantity of heroin consumed

53.  The defendant had also been consistent in describing the consumption method and the frequency of his heroin taking, as well as the amount of heroin he used to consume.  In both his video recorded interview and his oral testimony in Court, he maintained that he consumed heroin 5 to 6 times a day by “chasing the dragon” and that the total quantity consumed was about one “stroke” a day.  His evidence that one “stroke” of heroin mixture was equivalent to “around one gramme” was consistent with the evidence given by PW3.  I have no reason to doubt, and I therefore accept, his evidence on these matters.

The defendant’s residence

54.  I accept the evidence of the defendant that he was residing in Room A at the time of his arrest.  He said under cross-examination that he had rented Room A for 3 to 4 months prior to his arrest, and that he had a receipt for rental deposit in the sum of $500.  He also testified that this was the address he had reported to the Social Welfare Department for his application for comprehensive social security allowance, and that he had kept the rental receipts and was ready to produce them to the Social Welfare Department to prove his expenses. I do not think the defendant would dare to say that he had these receipts in his possession if he did not actually have them.  It is because he would not have run the risk that he could not produce any of them if he were asked to do so, especially he had said that the rental deposit receipt was just in his prisoner’s property, and this fact can be verified easily.

55.  I also accept the defendant’s evidence that he shared Room A with another two persons at the time of his arrest.  As I have said before, in light of the evidence of PW2, I accept that there were two bunk beds inside Room A.  Since this meant that the setting of Room A was sufficient for 4 persons to live in, I have no basis to query the defendant’s evidence.  From that, it follows that I also accept the evidence of the defendant that the rent he needed to pay each month was no more than $2,000 for the 3 to 4 months he lived in Room A. 

The defendant’s activities and movements prior to his arrest

56.  Very briefly, the defendant’s evidence was that he took MTR from Mongkok to Sham Shui Po with a view to purchasing heroin because he had run out of the drug. He arrived at Sham Shui Po at about 11 p.m., and eventually met Ah Shing about one hour later in Nam Cheong Street Park where he purchased the Drug from him at $10,000.  He then walked away to look for a place to consume heroin, and later look for tinfoil for sale as he had no tinfoil for consuming the drug. 

57.  None of the prosecution witnesses was in a position to say whether any of these matters testified to by the defendant had or had not occurred.  The subsequent police investigation had also only resulted in the discovery of some activities and movements of the defendant in Un Chau Street but these events took place at a time when the defendant had testified that he had already purchased the Drug from Ah Shing.  The prosecution is therefore not in a position to produce any direct evidence to confirm or rebut the defendant’s evidence on his activities or movements prior to the time when the first section of the video record captured him.  In addition, I note that the defendant’s oral testimony was on the whole consistent with what he had said during his video-recorded interview, and they tended to support the truthfulness of one another. 

58.  However, notwithstanding all these matters in favour of the defence, it does not mean that I have no alternative but to accept everything said by the defendant inside and/or outside Court to be true, or it may be true.  It is because I am still duty bound to evaluate his evidence.  I have to consider whether or not his evidence was inherently probable or credible, and whether his evidence was consistent with facts that had been admitted by the defendant or found to have been proved beyond reasonable doubt.  It is only after going through this process that I can decide whether the defendant is credible and whether his evidence is true or may be true.  I bear in mind that he has no burden to prove anything.

59.  I find the following part of the defendant’s evidence contradictory within itself, and had been refuted by evidence that was incontrovertible.

60.  According to the defendant’s evidence-in-chief as expanded in cross-examination, on the day prior to the time when he went to Sham Shui Po to purchase heroin, he had taken heroin probably 2 to 3 times.  Though he could not remember at what hours he last took heroin on that day, he remembered he last took heroin at home and he slept.  He then had withdrawal symptoms which woke him up.  He found that he had run out of heroin.  So, he went to Sham Shui Po to look for Ah Shing to purchase heroin.  He confirmed that by 11 p.m. when he arrived at Sham Shui Po, he was already suffering from withdrawal symptoms.  Referring to the subsequent events, he further said that it seemed to him that he had gone to a 7-Eleven Shop, but he could not recall what had happened clearly because he was suffering from withdrawal symptoms and discomfort. 

61.  I note that the defendant’s evidence appeared to be consistent with his evidence on his drug addiction, which I accept to be true, that he consumed heroin 5 to 6 times a day.  If he had only taken heroin for 2 to 3 times on that day, his evidence that he was suffering from withdrawal symptoms and discomfort when he went out from Mongkok to Sham Shui Po to purchase heroin was likely to be true.

62.  It was therefore the evidence of the defendant that he had been suffering from withdrawal symptoms and discomfort starting from not later than 11 p.m. on 26 June 2014, which continued at least until 00:38 hours on 27 June 2014 when he patronized the 7-Eleven Shop at No. 65 – 69 in Un Chau Street, and which must have continued thereafter until the time of his arrest because according to his evidence, he had not taken any heroin before his arrest since he did not have tinfoil as the tool for consumption with him.  In addition, he was also saying that the intensity of the withdrawal discomfort was severe enough to wake him up from sleep before 11 p.m., and the intensity of the discomfort must have become more and more severe because according to his evidence-in-chief, the withdrawal discomfort made him unable to recall clearly what had actually happened after he had gone to the 7-Eleven Shop in Un Chau Street.

63.  Despite what he had said in his evidence-in-chief, the defendant could give an account of his movement from the time he left his residence in Mongkok up till the time when he was arrested during his cross-examination by Mr. Percy.  He was able to say that he purchased the Drug from Ah Shing in Nam Cheong Street Park at the end near Lai Chi Kok Road.  He then walked the length of the Park to near the junction with Un Chau Street where he went into an empty cubicle inside the Nam Cheong Street Public Toilet to “begin his business”.  He was able to say that he then found no tinfoil in his bag and had to abandon the idea of consuming heroin in that toilet.  He then walked along Un Chau Street in the direction of Kweilin Street to see if there was any tinfoil for sale.  He agreed that he had hunted for tinfoil without success in the 7-Eleven Shop where he had made some purchase though he could not recall what he had bought.  He recalled he had walked to the vicinity of the Garden Bakery at the junction of Castle Peak Road and Tai Po Road.  He had also walked to the public toilet near Garden Bakery (and the defendant must be referring to the Yen Chow Street Public Toilet according to the plan and map PW2 had produced) to look for tinfoil paper, but he could not find any.  He then walked back to Kweilin Street and then returned to Un Chau Street.  He recalled that after walking past the New Capital Computer Plaza as shown in the first section of the video record, he walked into Yen Chow Street where he waited for a taxi, but after waiting for a short while, he went into a cyber café where he had stayed for a short time before returning to Un Chau Street and got on board a taxi.  He recalled he told the taxi driver to take him to Pei Ho Street where people setting up stalls to sell things at night because he intended to buy a DVD before going home.  The undisputed evidence of course showed that the defendant was then asked by PW1 to alight from the taxi and was searched and arrested subsequently.

64.  From the account given by the defendant in his oral testimony, it is clear to me that one of these two scenarios must have occurred: (1) he recalled clearly his movements and his acts at every stage on the night in question until the time of his arrest, and his evidence that he could not recall clearly what had actually happened because he was subject to withdrawal symptoms and discomfort as testified to by him during evidence-in-chief was completely contradicted by his own evidence under cross-examination; or (2) he was fabricating his evidence as he went along during cross-examination.  In either scenario, he had demonstrated that he was not a witness of truth.

65.  Furthermore, the video record (Exhibit P8) proved clearly that the defendant was not suffering from any withdrawal symptom or discomfort as he had alleged in his testimony.  In the first section of the video record played in Court, although the defendant only appeared in the video footage for about 10 seconds in this section, it can be seen that the defendant was walking steadily and briskly along the pavement with his back towards the camera, with his right upper limb hanging by his right side body and swinging to and fro, and his left upper limb being lifted up to about 90 degrees so that only his left elbow but not his left forearm could be seen, with no movement of his left upper limb at all, thereby indicating that he was holding an article in his left hand (although what that article was could not be seen in the video), and that he had the intellectual concentration and physical ability to hold that article in his left hand without allowing his left upper limb to move like what his right upper limb had done.  If one looked at the video record carefully, there was in fact also a moment (at the time shown “01:24:46”) when it seemed that his head was looking down although that action was not very conspicuous, indicating that the defendant was paying attention on the article in his left hand.  When he turned left into Yen Chow Street, it can also be seen that he could execute his turn without any difficulty and he maintained the same steady and briskly paces as before.  In the second section of the video record, he was again walking in the same steady and briskly paces when he turned out from Yen Chow Street into the pavement outside the New Capital Computer Centre, with his right hand swinging by his right side body, and his left hand firstly tidying or adjusting the bag hanging on his left side body and then lifting up to hail a taxi (which must be the case because it was common ground that the defendant did board a taxi thereafter though a taxi was not seen in the video).  Moments later, when the defendant was taken back to the pavement outside the New Capital Computer Centre by PW1, it was clear from his response and body gestures (although no spoken words could be heard) that when he was answering enquiries from PW1 and when he was being searched, he was just behaving normally and there was no sign of any physical discomfort at all.  These incontrovertible video footages proved beyond any shadow of doubt that the defendant was not suffering from any withdrawal symptoms or withdrawal discomfort at the time when he was intercepted by PW1.  If the defendant’s evidence is true or may be true, he must have suffered the withdrawal discomfort for at least 2 hours and 20 minutes up till the time when he was intercepted by PW1 (i.e. from 11 p.m. 26 June 2014 when he arrived at Sham Shui Po, up till 1:20 a.m. on 27 June 2014 when he was intercepted).  His withdrawal symptoms or discomfort could not have vanished just on the two occasions when he was captured by the video record.  The only reasonable and irresistible inference to be drawn is that he had not suffered from the withdrawal symptoms or discomfort as he alleged or at all.  His evidence in this regard is totally untrue.

66.  In addition, if the defendant’s evidence that he intended to consume heroin immediately after he had purchased the Drug from Ah Shing is true or may be true, it was simply inherently incredible that he had not consumed any part of the Drug before his arrest, or that he would have walked around the Sham Shui Po area in the manner as he had testified and did not return to his home at Room A in Mongkok.

67.  According to the defendant’s oral testimony, after he had purchased and received the Drug from Ah Shing, he intended to look for a place to have some food and to “begin the business”.   According to his evidence, if it were true, he would have obtained possession of the Drug at about 12 midnight.  It was because, according to him, he arrived at Sham Shui Po at about 11 p.m.  He then looked for Ah Shing for about 1 hour.  After he agreed with Ah Shing to buy one “On” of heroin, Ah Shing had left for a few minutes and gave him the Drug when Ah Shing returned. 

68.  I note that the defendant’s oral testimony was not identical to what he had said during the video-recorded interview.  First, in the interview, he had never said he intended to look for a place to have food.  But this was only a minor discrepancy.  Second, the defendant had not mentioned he got the Drug at about 12 midnight.  It was submitted by Mr. Percy that the defendant had said during his interview that he bought the Drug at about 11 p.m. on 26 June 2014.  Having heard the submission of Mr. Booth and read the transcripts carefully, I find that when the defendant mentioned 11 p.m. in the interview, he did not necessarily mean that he bought the Drug at 11 p.m.  His meaning could well be that he arrived at Sham Shui Po, or the Nam Cheong Street Park, at about 11 p.m.  His ambiguous answer was however understood by PW2 to mean that he purchased the Drug at 11 p.m., and hence he repeated his understanding as background information in the question he put (Counter 86), and the defendant just answered that question without touching upon this piece of background information. For this reason, these so-called discrepancies if any will play no part in my assessment of the defendant’s evidence.

69.  The more important point is that during the interview, the defendant said that after the purchase, he was walking around immediately to look for a suitable place to consume heroin.  In the same interview, he also said that he usually took heroin in public toilets, but he had not yet taken any drug when he was intercepted by the police.  The statements he made in this interview clearly conveyed the message that he had not been able to find a suitable public toilet for him to consume heroin, and that explained why he had not taken any of the Drug.  If that were what he meant, his statements would be completely discredited by the evidence of PW2 who with the aid of street plan and map identified in particular the 3 public toilets closest to the Nam Cheong Street Park where the defendant said he had purchased the Drug.  The 3 public toilets identified by PW2 were the Yen Chow Street Public Toilet, the Nam Cheong Street Public Toilet, and the Apliu Street Public Toilet.  The Nam Cheong Street Park where the defendant said he purchased the Drug was within 400 metres of the Nam Cheong Street Public Toilet, and Apliu Street Public Toilet, and even for the Yen Chow Street Public Toilet, it was less than 800 metres from the farthest end of Nam Cheong Street Park at the junction with Yu Chow Street if one took the L shape route by walking firstly along Nam Cheong Street and then turning left into Un Chau Street and walking in the direction of this toilet.  There was simply no credible reason why the defendant could not have reached any of these public toilets and found a suitable place for consuming heroin during the one hour and 20 minutes after he had obtained the Drug but before his arrest. After all, it was the defendant’s own evidence that he usually consumed heroin in public toilets, and it should be easy for him to find an empty toilet or at least an empty cubicle inside a toilet in the middle of the night.  There was just no way that the defendant could have failed to find a suitable place to consume heroin if that were really his intention, and the admission made by him that he had not consumed any of the Drug would lead to the compelling and cogent inference that he had no intention to consume any part of the Drug himself.

70.  According to the defendant’s oral testimony, he did find a suitable place to consume heroin.  He said he went into an empty cubicle in Nam Cheong Street Public Toilet and was ready to “begin his business”, only to find that he had no tinfoil and hence he had to abandon that idea but to look for tinfoil.  His oral testimony was that he failed to find any tinfoil and hence he had not consumed any part of the Drug.  Mr. Percy attacked the defendant’s evidence on the ground that he had never mentioned in his video-recorded interview that he had no tinfoil to consume the drug.  It must be true that the defendant had never mentioned he had no tinfoil during this interview.  Mr. Booth submitted that this matter should not discredit the evidence of the defendant because the defendant was just answering questions put to him by the interviewing officers and was not giving a narration of all the events, it was therefore possible for him not to mention he did not have tinfoil.  I cannot rule out the possibility raised by Mr. Booth.  Hence, I will not hold against the defendant from the mere fact that he had not said anything about tinfoil, or lack of tinfoil, in his video-recorded interview.

71.  However, the question remains whether the defendant’s evidence that he had not yet consumed any part of the Drug before his arrest because he was looking for tinfoil is true or may be true.  I am of the view that the defendant’s evidence was devoid of any truth because it was inherently incredible that the defendant would have looked for tinfoil in the manner as he had testified.  It was simply against common sense that the defendant would have thought that shops that sold items of small value like tinfoil would still open for business in the middle of the night.  Even if this kind of shop was still open for business at that time, the fact of the matter was, as admitted by the defendant under cross-examination, he had no idea of the location of such a shop. On the basis of his evidence that he had obtained possession of the Drug at about 12 midnight, and giving him some time allowance for him to walk to the Nam Cheong Street Public Toilet and to discover that he had no tinfoil with him, the defendant must have spent more than 15 minutes in looking for shops selling tinfoil, or searching public places for tinfoil that might have been left behind, but he could find none by the time he patronized the 7-Eleven Shop at 00:38 hours.  Under these circumstances, it was simply inherently incredible that the defendant would have continued spending time with his search for tinfoil in the Sham Shui Po area for at least the next 30 minutes (when he continued with his search in the vicinity of the Garden Bakery, the Yen Chow Street Public Toilet and then back to Un Chau Street) which did not guarantee a fruitful result, when according to his evidence, he was certain that tinfoil was available at home in Mongkok.  Under cross-examination, he answered Mr. Percy specifically that he knew that he had tinfoil at Room A, and according to his evidence, he could return home by taxi in just about 15 minutes.  It was simply inherently incredible that he would have preferred to spend more time to do something which would most likely yield fruitless result, when he could have a guaranteed success within a much lesser period of time.  The inherent incredibility was even more apparent when one considered that (1) upon his own evidence if it were true, he was suffering from severe withdrawal symptoms at that point of time, and hence there was simply no reason why he did not go home immediately to consume heroin to relieve his withdrawal symptoms and discomfort; and (2) it was dangerous for him to remain in the street when he was in possession of a large quantity of heroin mixture.  There was no doubt whatsoever that the defendant had been lingering around in the Sham Shui Po area, at least for some time before he entered the 7-Eleven Shop in Un Chau Street that he had patronized, as well as from 00:38 a.m. onwards until his interception by PW1 at 01:20 a.m., but his evidence that he was looking for tinfoil to enable him to consume heroin in the nearby public toilet as an explanation for his lingering in the area during this period of time was utterly untrue.

72.  When the defendant was asked whether he would agree that it would be much safer and quicker if he just got on a taxi and returned to his home in Room A to consume heroin in safety, the defendant sought to explain by saying that, firstly, he was suffering from withdrawal discomfort at that time, and secondly, he had to try out whether the stuff (i.e. the Drug) given to him was real.  He said that if the stuff was not real, he could go back to Ah Shing immediately, and there was no reason why he would go home first and back to the area again to look for Ah Shing if there was problem with the stuff.

73.  I do not find the defendant’s evidence credible.  I have already explained why I find that the defendant was not suffering from any withdrawal symptoms or discomfort at the material times, and hence this reason given by him must be untrue.  In addition, if he was really suffering from withdrawal discomfort, it was all the more a reason for him to return home immediately rather than lingering around in the area.  The second reason that he needed to try out the stuff was likewise incredible.  According to his evidence, Ah Shing had been his regular supplier of heroin.  Hence, there was just no reason for him to believe or suspect that he would not be given the appropriate stuff.  According to the defendant, he had not even opened the packaging to check the Drug when it was given to him by Ah Shing.  If he were really so concerned with the quality of the Drug, there was simply no reason why he did not even have inspected the Drug visually at the time when he received it, and there was also no reason why he had not tried out its quality much earlier.  I note that when the defendant was asked why he did not bring along tinfoil with him, it was his evidence that he could take heroin with a cigarette even when he did not have tinfoil. If so, when he was inside an empty cubicle in Nam Cheong Street Public Toilet and realized that he had no tinfoil as he had testified, there was no reason why he did not try out the quality of the Drug with a cigarette there and then because that would give him the earliest opportunity to test out the quality of the Drug, and relieved his withdrawal discomfort at the same time, and get back to Ah Shing should there be any problem relating to the quality of the Drug. He said that using a cigarette to consume heroin would produce strong ordour, but if his evidence were true, not only was he suffering from withdrawal discomfort at that point of time, he had just paid $10,000 for the Drug which had to be a very substantial sum of money according to his standard, because he had to work for 10 days at 13 hours per day before he could earn that sum of money if his evidence on his employment were true, not to mention that it would be even harder for him to save up that sum of money.  There was simply no reason why he did not find out as soon as he had the chance the quality of the Drug if that were really his concern, given the substantial amount of money he had spent.  In addition, I note that the defendant put forward this explanation only at the time when he was confronted by Mr. Percy why he did not go home. In my view, the defendant clearly recognized that his evidence about finding tinfoil unconvincing and he was just putting forward this false reason that he had to remain in Sham Shui Po to try out the quality of the Drug in a desperate attempt to boost up his evidence. 

74.  I have no doubt whatsoever that the defendant was not searching for tinfoil or looking for a shop selling tinfoil in the Sham Shui Po area prior to his interception by PW1.  I have also no doubt whatsoever that he had no intention of trying out the quality of the Drug in the Sham Shui Po area before he would return to his home in Mongkok.  I have no doubt whatsoever that the defendant had no intention to consume any part of the Drug in Sham Shui Po.

75.  From the foregoing analysis of the evidence, I am sure that the defendant had not suffered from any withdrawal symptom or withdrawal discomfort.  Hence, the very basic reason put forward by him to explain why he purchased the Drug was in fact untrue.  I am also sure that the defendant did not intend to use any part of the Drug.  If he had such an intention, he would not have lingered in the Sham Shui Po area for more than an hour without taking any part of the Drug. He should have already returned home in Mongkok, which required him to take a taxi journey of about 15 minutes only, where he could have consumed heroin in a place of his own and have relieved him as soon as possible of the withdrawal discomfort that had been bothering him for more than 2 hours if his evidence were true.  He had never said that he could not have returned to his home at Room A to consume heroin even though he was sharing that room with other persons, and he had given evidence that his landlord had witnessed him taking drug inside that room.  It is therefore clear to me that the defendant did not intend to use any part of the Drug for the purpose as he claimed.  When the reason underlying the alleged purchase of the Drug was found to be untrue, and when the defendant did not use or intended to use the Drug according to the alleged purpose of the purchase, the only reasonable and irresistible conclusion that I can come to is that there was in fact no sale and purchase of the Drug as alleged by the defendant, or that if there were such a sale and purchase, the defendant did not purchase the Drug for the purpose of his own consumption.

76.  I have considered the defendant’s oral testimony and out-of-court statements carefully.  I do not find him a witness of truth.  Save for those parts of his evidence that I have specifically accepted, I reject the rest of the defendant’s evidence given in Court and outside Court concerning his activities and movements prior to his interception by PW1.  In particular, I find his evidence that he possessed the Drug for his own consumption to be untrue and it may not possibly be true.

77.  Although I have rejected the defendant’s evidence that he possessed the Drug for his own consumption, it does not mean that the prosecution has proved its case.  There still remains the question whether, from all the circumstances of the case, I can draw the only reasonable and irresistible inference that the defendant was in possession of the Drug for the purpose of trafficking.  Mr. Booth has emphasized time and again, and rightly so, that I must not elevate suspicion to the level of evidence, and must not elevate doubts on the defendant’s credibility to proof of trafficking.

78.  I have heard the submissions of Mr. Percy and/or Mr. Booth on the following points:

(1) The quantity of the Drug

I accept the submissions made by Mr. Percy and Mr. Booth that the quantity of the Drug per se did not necessarily give rise to the inference that the defendant possessed it for the purpose of trafficking. But I would also say that its quantity per se would also not prevent an inference of possession for the purpose of trafficking from arising. This is a neutral factor on its own, but it may help tilt the balance when other factors are taken into account.

(2) The packaging of the Drug

I also accept the submissions of Mr. Percy and Mr. Booth that the fact that the Drug were packed in two re-sealable plastic bags, one large and one small, wrapped by a piece of white tissue paper, did not necessarily give rise to the inference of trafficking. In my view, it must be true that when drugs can be bought in whatever packaging, it would also mean that the drugs could have been trafficked in the same form of packaging. The vice versa must also be true. Hence, again, I regard this is a neutral factor on its own, but it may help tilt the balance when other factors are taken into account.

(3) The place of arrest

The defendant was arrested in a public place, i.e. outside the New Capital Computer Centre in Un Chau Street which was of course a public place and far away from his home. Mr. Booth submitted that there was no suggestion that the place of arrest was an area used or frequented by drug traffickers or purchasers. I agree with Mr. Booth’s submission. But on the other hand, the place of the defendant’s arrest was close to the Nam Cheong Street Park which according to his evidence was a place for drug trafficking. Furthermore, and it is even more important, a drug trafficker needed not remain stationary in any particular place. Even the defendant had said that he did not see his drug supplier Ah Shing in Nam Cheong Street Park straight away, and he had to look for Ah Shing for an hour before he finally met him. This factor again in my view is a neutral one on its own, but it remains a fact that the defendant was found in possession with a substantial quantity of heroin in a public place in the early hours of the morning, and this fact may help tilt the balance when other factors are taken into account.

(4) Nothing relating to dangerous drugs found in the defendant’s home

The fact that nothing relating to dangerous drugs were found at the defendant’s home may not prevent the inference of trafficking from arising. If a person did not use his home to store or pack drugs for the purpose of trafficking, it would not be surprising to find that there was no drug or no drug packaging paraphernalia like scale or re-sealable plastic bags inside his home, but it did not mean that he could not engage in other form of trafficking like acting as a courier outside his home. Hence, I find that this factor does not assist the prosecution but it does not prevent an inference of trafficking to be drawn in a suitable case.

(5) The defendant was a drug addict living in very modest conditions

Mr. Booth submitted that the defendant was a drug addict who needed heroin for his own use. He also pointed out that the defendant was living only in a room of 3 metres times 3 metres with two other persons, and that there was no hallmark of the defendant living the life of a drug trafficker. While everything said by Mr. Booth is correct, it is however equally known that drug addicts who had very limited means but needing money to satisfy his drug addiction would resort to drug trafficking activities for the money. Hence, again, I find this factor does not prevent an inference of trafficking to be drawn in a suitable case.

(6) The defendant’s income and his ability to support his addiction

(a) The defendant’s evidence was that he had a job for loading and unloading containers which enabled him to earn $1,000 a day. It was common ground that the defendant was in possession of $2,630 at the time of his arrest. Under cross-examination, the defendant had made it clear that he had this job in December 2013 but the job suddenly stopped in the Chinese New Year which was in February 2014. He then applied for and was granted comprehensive social security allowance for the 3 to 4 months before June 2014. Other than the first payment of CSSA, he received $3,700 odd a month, and the first payment was for the sum of between $1,000 to $2,000 only because it covered just the period between the time of the application and the first payment day of the following month. He said he resumed the job for loading and unloading containers in June. He said that he used to work for 10 odd days per month.

(b) In my view, the defendant’s evidence about his income from this job of loading and unloading containers is doubtful. He said that he had no documentary proof of this income. He had also never verbally reported this job and his income to the Social Welfare Department although he had to meet social welfare officer twice a month to report his income, or using his term, “to submit homework”, on the ground that he happened to have this job again after his last reporting date but before the next one. When the defendant had no proof other than his verbal testimony, and when the prosecution had no source to verify the defendant’s version, whether or not I find this piece of evidence from the defendant to be true or it may be true must therefore depend on my assessment of his general credibility as a witness. However, I have found him to be a person not worthy of belief concerning his alleged purchase and use of the Drug. It must follow that I find his evidence in this regard at least doubtful.

(c) In any event, even on the basis of the defendant’s evidence, it is difficult to see how he could have maintained his drug addiction at least in March April and May 2014. According to his evidence, he usually purchased heroin in small quantities which cost him $150 per “lay luk”, and each gram had 10 “lay”. He said these were terms used by him since he had been using heroin, but he could not explain in fact what they meant. Even so, according to the defendant’s evidence which I accept to be true, he needed about one gramme of heroin mixture a day because he needed to consume the drug 5 to 6 times a day. Hence, the Drug which weighed about 30 grammes in heroin mixture would be sufficient to last him for a month, but it cost him $10,000, and that was the price for buying in bulk at a discount. In other words, for the months when he did not buy in bulk but in small quantities as he usually did, he would need to spend more than $10,000 a month. However, in March April and May 2014, he only received CSSA for only $3,700 odd a month. The amount of CSSA was nowhere close to the amount of money that he required to satisfy his drug addiction, not to mention he still needed money for his rent (which was at least $500 a month, and his liability might be up to $2,000), his meals (which he assessed to be $2,000 a month), transportation (which he assessed to be about $300 a month), and for loading his mobile telephones (which he did not mention a specific figure). The defendant did say that if he did not have heroin, he would take methadone, but when he was asked how often he took methadone for the last 6 months or one year, his answer was that he did take methadone in April or May 2014 but he did not recall. When the defendant was asked further whether he meant he went to methadone clinic once in April and once in May, his answer was simply that “the last occasion that I drank probably May or April”. It is therefore clear from his evidence that he was using methadone as a substitute of heroin sparingly, and it must follow that his CSSA would surely be insufficient to support his drug addiction. It is true that the defendant had also testified that he had savings of $6,000, and he had some money in bank account. However, it is also clear from his evidence that he did not use his money in bank account because he had to obtain a new bank card first. As to his alleged savings of $6,000, I infer that he had not reported to the Social Welfare Department of this sum of money since he said he only needed to report the amount in his bank account. Hence, what the defendant had said was again a mere verbal statement unsupported by any other evidence. In any event, $6,000 savings could not be sufficient to support his addiction as he had testified and I found it to be. When all these matters were taken into account, the only reasonable and irresistible inference must be that the defendant had some other means for raising money to satisfy his addiction. It is not necessary for me to consider whether or not these other means were legal or illegal. Suffices to say that if he had already had the means to earn what he needed to satisfy his drug addiction, which would have cost him at least $10,000 a month, I just failed to see he would have taken up this loading and unloading container job when he had to work continuously 13 hours a day (from 9 a.m. to 10 p.m.) but he needed to take heroin 5 to 6 times a day. In my judgment, the defendant had not disclosed how he could have supported his drug addiction at least for the months between March and May 2014, and it is doubtful that he had this alleged employment. While this factor alone may not be sufficient to support an irresistible inference that he would engage in drug trafficking activities, this is one of the factors that can be legitimately taken into account when all the circumstances of this case is to be considered.

(7) The defendant’s activities prior to his arrest

(a) From the admission made by the defendant either in his oral testimony in Court or in the vide-recorded interview, I found that it had been proved beyond reasonable doubt that at around 12 midnight of 27 June 2014, the defendant had already been in possession of the Drug.

(b) From the Octopus card record, the video record and the evidence of PW1, I find that it had been proved beyond all reasonable doubt that the defendant was inside the 7-Eleven Shop at No. 65 – 69 Un Chau Street at 00:38 hours on 27 June 2014. He was walking past the New Capital Computer Centre at No. 85 – 95 Un Chau Street and turned into Yen Chow Street at 1:10 a.m., and he returned to Un Chau Street and board a taxi at 1:20 a.m. when he noticed the presence of PW1 and the other police officers. At all stages, the defendant was carrying the Drug on his person, concealing it in his underpants near the waist area.

(c) It is clear from the markings made by PW2 about the locations of the 7-Eleven Shop which the defendant had patronized and the New Capital Computer Plaza where the defendant was intercepted that these two places were close to one another. After all, they were separated by street numbers of no more than 30. It would not take the defendant 32 minutes (i.e. from 00:38 hours to 01:10 hours) but just a few minutes to walk from the 7-Eleven Shop to the outside of the New Capital Computer Plaza. The only reasonable and irresistible inference was that the defendant had either lingered inside or in the vicinity of the 7-Eleven Shop or he had gone to other places including the Nam Cheong Street Park or the vicinity of the Garden Bakery. It has also been proved beyond reasonable doubt that the Defendant had lingered in the Yen Chow Street for 10 minutes before he boarded a taxi. Even after he had boarded the taxi, he was not directing the taxi driver to go home in Mongkok, but to go to an address in Lai Chi Kok Road near Kweilin Street. This indicated that the defendant still wished to remain in the Sham Shui Po area even though he noticed the presence of police officers. Even if the defendant’s evidence under cross-examination were to be accepted that the direction he gave to the taxi driver was consistent with the route he would take for going back to Mongkok, he had also said that he would go to Pei Ho Street to buy a DVD from the night stalls set up there, thereby indicating his intention to remain in the Sham Shui Po area at least for some further period of time instead of going home directly.

79.  The crucial question to ask must therefore be: why did the defendant linger around in the Sham Shui Po area for 42 minutes (i.e. from 00:38 hours to 01:20 hours) and very probably for a longer period of time when he was carrying about 30 grammes of heroin mixture on his person?

80.  I have already explained why I reject the defendant’s evidence that he was looking for tinfoil for consumption of drugs during this period of time, be it for relieving his withdrawal symptoms or discomfort or for testing the quality of the drug.  There is no credible explanation put forward by the defendant.

81.  From the evidence given by the defendant, I am sure that he was alive to the risk of being arrested by the police when he was carrying with him illegal articles. When the defendant was asked during cross-examination why he did not carry with him tinfoil when he went to purchase heroin, he said, “There was no reason for me to carry the tinfoil or the tools for taking drugs around so that I would be arrested by the police.”  It is therefore clear that when he was not willing to run the risk of being arrested for carrying a piece of tinfoil which when in comparison with about 30 grammes of heroin mixture must be a much less serious illegal item, it will be just inherently incredible that he would have run the risk of carrying the about 30 grammes of heroin mixture on his person lingering around for no less than 42 minutes in public places when he could have returned to his home within 15 minutes or so, unless he had a purpose to serve for running that risk.

82.  Mr. Booth submitted that since Room A was only 3 metres times 3 metres with 2 bunk beds and two other occupants, it would not be surprising that the defendant would not be in a hurry to rush back for taking drug there and he might prefer to spend more time in Sham Shui Po to “begin the business”.  However, this submission was not backed up by evidence from the defendant.  He had never said that the accommodation conditions of Room A, no matter in terms of its area and the number of occupants, were the factors preventing him from taking the Drug back home.  The defendant’s evidence was silent on how often these two room-mates or any of them would stay inside the room when he was also there. Furthermore, at one stage the defendant was questioned by Mr. Percy how he could have taken heroin in Room A when the police failed to find any tinfoil or lighter for taking heroin.  The question attracted strong answers from the defendant, and he asked back whether the police had searched for tinfoil and lighter at his home. His evidence was clearly an admission that Room A was a suitable place for him to consume heroin even if he had to share it with two other persons.  He had also stated in his evidence that his landlord had witnessed him taking drug, and by necessary implication, he was saying at least that his landlord would not take any action against his drug taking inside Room A.

83.  In any event, the question was not just whether or not the defendant would go back to Room A to consume heroin.  The question is really why he did not go back to Room A immediately so that he could have concealed the Drug inside his home as soon as possible, but he chose to linger around in public places, when his home could provide a safer place to prevent his crime being detected and he was fully alert to the danger of carrying illegal items relating to drugs in public places.  There is no or no credible explanation put forward by the defendant or that can be gleaned from all the evidence in this case.

84.  I have no doubt whatsoever that the defendant was lingering in the Sham Shui Po area for at least 42 minutes carrying the Drug with him.  I have no doubt whatsoever that the defendant was fully aware that it was dangerous for him to do so, and that he would have avoided taking the risk unless he had a purpose to serve, and that purpose required him to carry the Drug with him in this manner.  The fact that the defendant had chosen to run the risk, and run the risk to such an extent, lead me to draw the only reasonable and irresistible inference that the Drug was not intended for his own use, but that he intended to hand over possession of the Drug to other person or persons whom he would or might meet by arrangement or come across by chance in the Sham Shui Po area, and hence he intended to deal in or deal with the Drug.  As to whether he would hand over possession of the Drug to other person or persons in the capacity of a seller, a supplier, a courier, or as a conduit pipe for such a person, it is not relevant to the question of his guilt or innocence.  I find that the only reasonable and irresistible inference to be drawn from the defendant’s lingering around with the Drug in the manner found to have been proven is that he possessed the Drug for the purpose of trafficking.

85.  Further or in the alternative, if the defendant’s lingering in public places with the Drug in the manner found to have been proven were not sufficient by itself to lead to the only reasonable and irresistible inference as aforesaid, I am of the view that the defendant’s lingering around in the manner aforesaid, his doubtful income and hence his doubtful ability to afford his drug addiction, the quantity of the Drug, the packaging of the Drug and the place and time of his arrest can be taken together to form a body of facts upon which the same only reasonable and irresistible inference of possession for the purpose of trafficking can be drawn.

86.  For these reasons, I am satisfied beyond reasonable doubt that the prosecution has proved each and every element of the charge against the defendant.  The defendant is therefore convicted of trafficking in a dangerous drug.

[1] DPP v Kilbourne [1973] AC 279; The Queen v To Luen-shun [1995] 1 HKCLR 318.

[2] i.e. $21,674 according to the Admitted Facts (Exhibit P10).