HKSAR v. HUYNH DAI VINH

DCCC 108/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 108 OF 2013

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REASONS FOR VERDICT
(Newton Hearing)

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1.  Introduction

The police conducted an anti-narcotics operation at the defendant’s residence in Tuen Mun on 9 November 2012. Upon searching his house, 6 re-sealable transparent plastic bags containing the drug methamphetamine hydrochloride (commonly referred to as ice) were found. The total amount of drugs in the packets was 4.74 grammes of a crystalline solid containing 4.59 grammes of ice.

2.  As a result of the drugs found, the defendant was charged with the offence of trafficking in a dangerous drug contrary to section 4 (1) (a) and (3) of the Dangerous Drugs Ordinance cap 134.  At the trial the defendant pleaded guilty to the charge of trafficking but said that about half of the quantity was for his self consumption.

3.  A Newton hearing was conducted to determine how much, if any of the drugs were for the defendant’s personal self consumption.  

4.  At this hearing the court (or I) come to a conclusion on whether to accept or reject the defendant’s mitigation that part of the drugs were for his own self consumption. 

5.  The admitted facts

At about 9.15 pm on 9 November 2012, the police conducted an anti-narcotics operation at the defendant’s residence in Tuen Mun. Upon house search the drugs below were found inside the defendant’s residence:-

(i) 1 re-sealable plastic bag containing 3.12 grammes of crystalline solid containing 3.06 grammes of ice: exhibit 2

(ii) 3 plastic bags containing 1.47 grammes of crystalline solid containing 1.44 grammes of ice: exhibit 3

(iii) 1 plastic bag containing crystalline solid containing 0.05 grammes of ice : exhibit 5

(iv) 1 plastic bag containing 0.10 grammes of crystalline solid containing 0.09 grammes of ice : exhibit 6

6.  Also found in the house search was an electronic scale and 108 un-used re-sealable small plastic bags. 

7.  Upon the defendant’s arrest for trafficking in a dangerous drug, at his house the defendant said under caution “ Sir, I just wanted to make some money for a living by buying dangerous drug, ice for someone and selling (it) to the others”

8.  The defendant was further interviewed in a video recorded interview (VRI) exhibit P12 and the transcripts P12a & b whereby he gave a more detailed account about the purchase of the drugs found.  He said some of the drugs was for his own consumption whilst some was for sale. 

9.  In summary in the VRI, the defendant stated that he bought the ice from a person called Ah Wai.  He then packed the 3 bags, (exhibit 3) for selling, the two bags with a small amount of drugs (exhibit 5 & 6) was left over from the drugs he had consumed and the remaining bag exhibit 2 was partly for sale and partly for his self consumption. 

10.  The street value of the drugs was about HK$3,393.

11.  The defendant gave evidence in the Newton hearing and adopted his account he gave to the police in the VRI as well as expanded on some of the statements he made therein.

12.  Issue

After the defendant gave evidence in the Newton hearing, the issue of what amount of drugs were for the defendant’s self consumption was clearer.

13.  There was no dispute on the defendant’s evidence that exhibit 3 was packaged for sale.  The defendant said he intended to sell those 3 packets which he had individually packed and wrapped. 

14.  The defendant’s evidence was that one-third or about 1.04 grammes of exhibit 2 was for his own consumption whilst exhibit 5 & 6 were remnants of drugs he had consumed. 

15.  The prosecution accepted that the two smaller packets (referred to as the left-over drugs or remnants) exhibits 5 & 6 were not for sale. 

16.  The principal issue was therefore if any and if so how much of exhibit 2 the largest bag of ice found was intended for the defendant’s own consumption. 

17.  The defendant’s evidence

The defendant is aged 46 years. He is Vietnamese. He came to Hong Kong in 1979. He speaks but cannot read Cantonese. He had been residing at his house which is a public housing unit for around 10 years. He has one previous conviction for possession of a dangerous drug in 2009.

18.  The defendant stated that in November 2012 he was a drug addict.  He had been a consumer of the dangerous drug ice for many years prior to that date. 

19.  In November 2012 he took ice by smoking.  He consumed about 2 grammes per day at least 10 times per day.  Each smoke would last him about 2-3 hours. 

20.  It was his oral evidence that he bought the drugs found on two different days, a few days prior to his arrest on Friday 9 November.  The defendant said he bought exhibits 3, 5 and 6 on Tuesday 6 November.  On that day he bought a quantity of 3.5 grammes of ice for $1,500. 

21.  On Thursday 8 November, the day before his arrest, he bought another 3.5 grammes of ice for $1,500 and exhibit 2 was part of those drugs.   He had consumed part of exhibit 2 to test the quality.

22.  The defendant explained that the reason why he purchased more drugs on Thursday (exhibit P2) although he still had some drugs in his possession, more significantly the 3 packets (exhibit P3) was because he heard the market was running out of drugs.

23.  In support of the defendant’s evidence that he was a consumer of ice he stated that there three glass bottles he had used as paraphernalia to take ice in his house on the day the police arrested him but strangely he said the police did not seize them.  

24.  In November 2012 he was a construction site worker earning a monthly income of about $20,000 - $25,000.  He spent about $10,000 per month on personal expenditure, $400 on rent and sometimes he gave his 19 years old daughter $3,000 per month. 

25.  As to the drugs found in the defendant’s house, his evidence was that the 3 packets of drugs (exhibit 3) weighed 0.5 grrammes and each packet was for sale at $500 each.  Exhibit 5 & 6 were drugs left over from his consuming of the drugs.  As to exhibit 2 approximately two-thirds was for selling while one-third was intended for his own consumption.

26.  Analysis

Defendants alleged income does not support his alleged drug consumption

The defendant’s evidence was that his drug intake is 2 grammes per day. Therefore his monthly intake is about 60 grammes. The defendant said he purchased drugs the drugs at $1,500 for 3.5 grammes therefore his monthly expenditure on drugs alone would be approximately $25,000 per month.

27.  It can be seen that the defendant’s income even if it is genuine, cannot not support his monthly drug consumption.  Moreover added to the $25,000 expenditure for his drug consumption there would be the $10,000 personal expenditure and sometimes money paid to his daughter and rent.  That defendant’s gross monthly expenditure is therefore over $35,000. 

28.  On the above calculation, I disbelieved the defendant could support his alleged drug consumption per month.  Plainly he was unable to sustain his consumption with his alleged monthly income.  The drugs would have cost the defendant almost the whole of his monthly income leaving nothing left for personal expenditure.

29.  As to the defendant’s alleged income of $25,000 per month, there was no supporting evidence of this income.  The defendant did not produce any evidence in support of his income, no bank documents showing deposits of his income nor any letter from an employer were provided.  I did not accept that the defendant earned $25,000 per month.

30.  Defendant’s drug consumption

The defendant alleged that he consumed 2 grammes of ice a day about 10 times a day. There was no expert evidence in this trial as to the consumption rate of ice. I note, though now a very long time ago some 13 years, that in the case of HKSAR v Wong Suet Hau, Ice CACC366/2000 at paragraph 4 it said “Expert evidence was before the court that the consumption rate of ice is about 0.8 grammes for a smoking session and that its effect may last from two to twenty-four hours.” It is therefore possible that the defendant may have taken 2 grammes per day.

31.  However if the defendant’s account is to be believed that he consumed ice 10 times per day and the defendant worked daily that would denote that he was taking drugs whilst he was at work.  For much of the time at work he would therefore be taking drugs and under the effect of the drugs.  I found it inconceivable and implausible that the defendant was taking the drugs 10 times per day and working.

32.  The defendant’s evidence was that he used the glass bottle to take the ice however these bottles he used was not seized by the police.  In his oral evidence he was asked where the bottles were placed before the police arrived.  He said they were on the table in front of the sofa.  However when the police arrived they had moved the bottles to a shelf in front of the television.

33.  Photographs taken by the police of his premises was shown to the defendant to point out the glass bottles.  No glass bottles could be seen on the table in front of the sofa (exhibit D2).  The defendant circled in red on the photograph exhibit D1 the glass bottles placed on the shelf in front of the television.  However, the circled objects on the photograph do not show any glass bottles. 

34.  There was therefore no independent evidence of any glass bottles in the defendant’s house.

35.  As to the defendant’s taking of drugs by using a glass bottle this was inconsistent with the statement he made to the police in the VRI as to how he consumed the drug ice.  In the VRI at counter 194 to 198, he said he took ice by smoking using a tin foil and burning it with a lighter.  Thereafter he would discard the foil.  No mention of consuming with a glass bottle was ever made. 

36.  When asked about the inconsistency of consuming the ice by bottle and tin foil the defendant explained that he said tin foil in the VRI as the police had taught him to say that.  PW1 denied he had taught the defendant to say any such thing.  I accept PW1’s evidence.  I have viewed the VRI the defendant’s answers were spontaneous and natural.  I do not believe that the defendant was coached to say he took the drugs by tin foil prior to the answers being given. 

37.  As there was a material inconsistency as to how the defendant consumed the ice, I am doubtful of the defendant’s account that he used glass bottles to consume ice. 

38.  I was of the view that the defendant said there were three bottles used for consuming ice as he was attempting to support his account that he took a large amount of drugs regularly.

39.  As the defendant’s income could not support his alleged drug consumption rate and his manner of taking of the drugs was so materially inconsistent I did not accept that the defendant consumed the quantity of 2 grammes of ice per day.

40.  Although the defendant may have been a consumer of ice it was not in the quantity that the defendant alleged.

41.  There was a further inconsistency in the defendant’s evidence in regard to the day/s he bought the drugs found in his home.  In his VRI initially, he said he bought all the drugs on Tuesday, secondly he said they were bought on Wednesday, then thirdly he said he bought some on Tuesday and some on Thursday. 

42.  In the VRI at counter 181 the defendant was shown all the drugs seized in his house (exhibits 2, 3, 5 & 6) he was asked if these drugs were sold to him by a person called Ah Wai earlier?  At counter 83 he was asked when did he sell the drugs to you?  Then at counter 84 to 88 the defendant answered Tuesday this week at about 7 – 8 pm.  Later at counter 104 the defendant said he got the drugs the following evening (that would be Wednesday) at 7-8 pm.  Later at counter 120 the defendant changed his evidence to say that he purchased exhibit 2 on Thursday.

43.  The defendant explained that he went to purchase some more drugs on the Thursday as he was told that ice was going to run out soon so he bought some more (counter 124).

44.  The defendant’s evidence as to the days he purchased the drugs was not worthy of belief.  There were three materially different versions as to the date he purchased the drugs.  Further his reason of purchasing more drugs because the suppliers were going to run out soon is far-fetched.

45.  I was satisfied that the defendant’s initial answer in his VRI at counter 181 that he bought all the drugs at the same time was more inherently probable because at the time as can be seen in the transcript and in the video PW1 had shown him all the drugs seized from his home.  He answered spontaneously that he bought them on Tuesday.  There was no ambiguity in his answer. 

46.  By purchasing them all together demonstrates that his account of buying 3.5 grammes of drugs for $1,500 was not the truth. The amount of drugs found in total was 4.74 grammes which was over and above 3.5 grammes.

47.  I found that the defendant’s evidence was untruthful in many respects.  I accepted however that the two smaller packets of drugs (exhibit 5 & 6) were not for sale and were left over after consumption whether by the defendant or someone else. 

48.  It follows that I did not accept the defendant purchased exhibit 2 on another day nor do I accept that he purchased 3.5 grammes of it.  I therefore reject the defendant’s evidence that he had consumed part of the drugs in exhibit 2 to test the quality.   

49.  I turn now to consider the drugs contained in the one packet in exhibit 2.  The drugs were of quite a large quantity.  The defendant had in his house an electronic scale and 108 un-used plastic bags which were similar (though not the same) to the drugs that were already packed in exhibit 3. 

50.  As stated by the defendant and to which I accept in his VRI at counters 227-256, the electronic scale was used for weighing the drugs and the un-used plastic bags were to be used for the putting the drugs into and after which they would then be sold by the defendant. 

51.  I was satisfied that the defendant was trumping up his account on his purchase and consumption in a vain attempt to explain why the quantity of drugs was not in his possession for sale.

52.  The defendant’s account that part of the drugs were for his own consumption wholly conflicts with his immediate and initial response under caution at his home.  At his home the defendant under caution never mentioned that any part of the drugs were for his own consumption contrarily he stated clearly that the drugs were for sale. 

53.  Although the defendant has one previous conviction for possession of a dangerous drug in 2009 and may have been a drug dependent in November 2012, for the above reasons, I was not satisfied that the defendant had the financial ability to consume 2 grammes per day.  I did not believe that one third of the drugs or any part of exhibit 2 were for the defendant’s own consumption. 

54.  I found that the drugs including exhibit 2 (but excluding exhibit 5 & 6) were in the defendant’s possession for the purposes of sale and not for the defendant’s own consumption. 

55.  In the circumstances I was satisfied beyond all reasonable doubt that the drugs (excluding the drugs of exhibits 5 & 6) were in the defendant’s possession for the purposes of unlawful trafficking.  The total amount of drugs (exhibit 2 & 3) was 4.59 grammes of crystalline solid containing 4.5 g of ice.