HKSAR v. YUEN MAN HO

DCCC 503/2018

[2019] HKDC 354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 503 OF 2018

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REASONS FOR VERDICT

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1.  The defendant pleads not guilty to trafficking in a dangerous drugs but willing to plead guilty to a lesser charge of possession of dangerous drug which was not accepted by the prosecution, the 2nd charge being possession of apparatuses fit and intended for the inhalation of a dangerous drug in which he was convicted on his own plead of guilty and facts admitted as contained in the Admitted Facts.

The prosecution case

2.  The entire prosecution case was not challenged by the defence, in gist, in the afternoon of 21 December 2017, police mounted an anti narcotic operation at the Grande Rhine Hotel, when police arrived at the door of Room 16, a woman came of the room and was intercepted, police then entered the room and saw the defendant was sitting in front of dressing table.

3.  On the dressing table, the police found:-

(a) a resealable plastic bag containing 5.37g of a solid containing 5.19 g of cocaine;

(b) a resealable plastic bag containing 11.1 g of solid containing 10.7 g of cocaine;

(c) a glass bottle with an orange straw with traces of cocaine found;

(d) a glass bottle with a red straw with traces of cocaine found;

(e) a white round plate;

(f) and a lighter.

4.  The defendant was arrested and cautioned, he replied under caution “Ah Sir, those 2 bags of cocaine and the two glass pots are mine, I use them for consuming dangerous drug.”

5.  Investigation revealed, at around noon on the same day, the defendant had rented Room 16, the defendant told the hotel housekeeper he had yet to decide whether he wanted daily or hourly rental, rental could be calculated when he checked out.

6.  The retail price of the drugs was HK$19,187.55.

7.  Urine sample collected form the defendant on 24 December 2017 showed positive result of cocaine.

8.  A video record of interview was taken of the defendant, the voluntariness of the VRI is not in issue.

9.  In gist, he said he met an old friend of his on the material day, he asked whether he could buy some cocaine and was told to come back in half an hour time to collect those drugs which would be placed inside a flower bed at Nullah Road Park. The defendant paid five thousands dollars for the drugs.

10.  He went and bought 2 glass bottles for consuming drugs, he later returned to the flower bed where he picked up the drugs in question and went to a hotel to rent a room for taking drugs.

11.  When he was there in the hotel, he got a call from a lady called Hsu, she asked for repayment of the $3,000 debt, but the defendant told her he got no money but she still wanted to collect the debt, the defendant then told her to come to his hotel room to collect the debt he owed since someone was coming to give him money.

12.  They met inside the hotel room where the defendant told her to wait, during such time, this lady Hsu fell asleep inside the room, meanwhile the defendant started taking drugs. Moments passed, this lady woke up and saw the defendant taking drugs and decided to go, once she got out of the room, she was intercepted by the police.

13.  Hsu was intercepted by the police but was not charged.

Analysis of the evidence

14.  The defendant elected not to testified and called no defence witness, that is his right, no adverse influence would be drawn against him.

15.  The defendant admitted he was in possession of the drug, the only issue is whether he had the drug for the purpose of trafficking.  

16.  The amount of drugs found were of substantial amount, but amount alone I agreed is not so astronomical that it provides a clear indication that these were for trafficking, that has to be weighted against other factors present in the present case.

17.  Besides, what he claimed to be taking 2 to 3 grams each time, without evidence to the contrary, I am unable to say whether the amount he claimed to consume exceeds the average dosage taken by drug users or addicts.

18.  The drugs found were contained in 2 bags, no other resealable bags were found, nor scale was found inside the hotel room.

19.  Urine sample taken from defendant showed positive result of cocaine, besides, 2 glass bottles contained traces of cocaine were found, which supports the admission made by the defendant that he was taking drug inside the hotel room.

20.  He was caught with the drugs inside a hotel room, not on the street.

21.  I have also considered renting a hotel room to take drug rather than at his residence, it is a matter of choice, it does not necessarily lend support to trafficking.

22.  Concerning this lady, the presence of this lady is kind of peculiar, why would the defendant invite this lady to his hotel room to collect debt owed to her, the defendant could have simply turned off his mobile phone or refused to tell her his whereabouts, however, what the evidence does not support is that this lady was there to buy drug.

23.  As to his ability to repay his debt to her, who would come to aid in paying off his debt, and why? That again seems odd to me, however, does it follow, someone must have been coming over to buy drugs from the defendant so he could earn some money to repay his debt to her?

24.  He claimed to be earning thirty to forty thousand a month in the minimum, if true, why would he be in debt for a few thousands dollars and worse still, could not pay off his debt by himself. Although his financial situations might be in doubt, without further evidence to the contrary, I am unable to say that he was not earning as much as he claimed.

25.  The street value and the actual amount paid by him (about a quarter of the street value) might seem to be too good to be true.

26.  Again, as I said, his means of buying the drugs might be in doubt, without further evidence to the contrary, I am unable to say he could not afford the drugs in question even taking it at the street value.

27.  Weighing all these matters for and against the defendant, in particular, he was taking drugs inside a hotel room when intercepted, the drugs were packed in 2 bags and no scale or other resealable bags for easy distribution of the drugs were found. Although he claimed someone was coming over to give him money and the price that he paid for the drugs might seem unreasonable, could it be the only inference to be drawn that he was trafficking in a dangerous drug?

28.  I am unable to say the only inference is that for trafficking, I simply cannot rule out the defendant had those drugs for self consumption as claimed given those factors that are in his favor.

29.  Having considered all the evidence, and placing full weight on the admission made by the defendant, the prosecution is only able to prove beyond all reasonable doubt that he was in possession of dangerous drug, the defendant is therefore acquitted of trafficking of a dangerous drug but convicted of a lesser charge of possession of dangerous drug.