HKSAR v. ABBAS IFTIKHAR

DCCC 1110/2023

[2025] HKDC 141

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1110 OF 2023

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.  The Defendant (“D”)  pleaded not guilty to one count of “Trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of the charge allege that D, on 19 March 2023, at the junction of Castle Peak Road – Yuen Long and Hi Lee Path, Yuen Long, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 6.62 grammes of a crystalline solid containing 6.57 grammes of methamphetamine hydrochloride.

Admitted Facts (Exhibits P5 and P6)

3.  D is a Form 8 holder.  At the material time, D’s rent and domestic utility services were paid for by International Social Services (“ISS”)  directly, and D would be entitled to HK$1,200 in electronic food coupons and (if D attended the ISS once a month)  cash of HK$290 to HK$350 as his transportation expenses.

4.  On the afternoon of 18 March 2023, D had an argument with a female at D’s residence in Kin Shing Building, Yuen Long.  A neighbour heard the disturbance (“the domestic disturbance matter”)  and reported the matter to the police.

5.  Around 00:14 hours on 19 March 2023, PC 21242 (“PW1”)  saw D, who was carrying a sling bag, use a bunch of keys (Exhibit P7)  to unlock a U-shape lock (Exhibit P4)  to free a red colour bicycle (Exhibit P3)  secured to railings at Yuen Fat Path and then D proceeded to walk with the bicycle towards Hi Lee Path.

6.  Around 00:14 hours on 19 March 2023, at the junction of Hi Lee Path and Castle Peak Road, as D was about to mount the red bicycle, he was intercepted by PW1.  At 00:18 hours on 19 March 2023, PW1 used Punti to arrest D in connection with an alleged assault, and D made no reply.

7.  A search of the bicycle (Exhibit P3)  was conducted by PW1, and he found from inside a basket attached to the front of the red bicycle:

(1)  a packet of white Marlborough cigarettes (Exhibit P2);

(2)  which in turn contained the subject drugs which was wrapped in a transparent resealable plastic bag (Exhibit P1); and

(3)  the U-shape lock (Exhibit P4).

8.  PW1 also found a bunch of keys (Exhibit P7)  in a sling bag which was in D’s possession.

9.  At 00:20 hours on the same day, PW1 arrested and cautioned D for “Possession of Dangerous Drugs”, and D made no reply.

10.  Subsequently, PC 18618 used one of the keys to open the U-shape lock.

11.  At the police station, D was found to be in possession of HK$400 and two mobile telephones.

12.  Relevant photographs of the exhibits seized and of the railing were taken by DPC 16463 at Yuen Fat Path and produced as Exhibit P11(1-11).

13.  Between 17:49 and 18:20 hours on 20 March 2024 and with the assistance if an Urdu speaking interpreter, PC 16177 took a video recorded cautioned interview from D.  There is no dispute as to the voluntariness, admissibility and accuracy of the relevant cautioned statements/records.  The discs and transcripts are collectively produced as Exhibits P8 to 13.

14.  Dr Tong Ka-chun, the Government Chemist, examined Exhibit P1 and found it to be “one plastic bag containing 6.62 grammes of a crystalline solid containing 6.57 grammes of methamphetamine hydrochloride (a salt of methamphetamine).” The relevant Government Chemist Certificate is produced as Exhibit P12.

15.  D was subsequently remanded at Lai Chi Kok Reception Centre and his urine collected on 22 March 2023 was found to test positive to “amphetamine”.

16.  Senior Inspector Fong Wai-ho, Perry is an expert in dangerous drug trends in Hong Kong and is of the opinion that the 6.62 grammes of ICE would have been sold at a street value of HK$4,449.

17.  D is of clear record.

18.  No dangerous drugs or drug paraphernalia were found in D’s residence in a subsequent search.

The Prosecution case

19.  The Prosecution asserts that D was in possession of the subject dangerous drugs for the purposes of unlawful trafficking.  The Prosecution alleges that the amount of drugs found is inconsistent with the alternative finding of possession of a dangerous drug, and relies on expert witness evidence on the street value of the drugs and the daily consumption.

20.  According to the expert evidence of Dr Chong Yeow-kuan (“PW2”), the average daily consumption of ICE was around 0.3 grammes; therefore, the 6.57 grammes of drugs would be enough for around 21 days if consumed by a single abuser.

21.  The prosecution asserts that by reason of the complete denial to the possession of the drugs, the financial inability of D to pay for them, the period of time to consume such an amount found, and the time of night D was found, the only irresistible conclusion from these facts is that D had possessed the drugs for the purposes of unlawful trafficking.

The Defence case

22.  After the prosecution closed its case, the defence made midway submissions.  I ruled that there was a case to answer. D elected not to give evidence and did not call any other witness.

Issue

23.  The defence stance is that the prosecution is unable to prove that D possessed the drugs; even if the prosecution is able to prove possession, it cannot be proved that the drugs were possessed by D for the purpose of trafficking.

Analysis of the evidence

24.  The prosecution has the burden to prove the requisite elements of the offence beyond reasonable doubt.  D has no burden of proof.

25.  I bear in mind D has no criminal conviction record when considering his credibility and propensity.

26.  D elected not to give evidence nor call witnesses.  This is his right.  I must not hold this against him.

27.  D’s reply under caution was admitted as evidence; his reply is a mixed statement.  As such, the whole statement, both the incriminating parts and the excuses or explanations, must be considered in deciding where the truth lies[1]. If D’s explanation under caution is or may be true, then I must find him not guilty.  Even if I reject what he said under caution, I still have to consider the prosecution’s evidence and decide if the offence has been proved beyond reasonable doubt.

28.  In this case, the prosecution case is that the Court can draw the only irresistible inference that D committed the offence.  I remind myself that if I am to draw an inference, the inference must be drawn from facts proved and that the inference must be the only reasonable inference to be drawn from the proved facts.

29.  Most of the prosecution case was not disputed by the defence.  PW1’s evidence was not seriously challenged by the defence.  I find his evidence clear and simple, and he did not waver under cross examination.  I find him to be an honest and reliable witness.  I attach full weight to his evidence.  As to PW2, the defence did not dispute his expertise in narcotics valuation; I am satisfied that he possesses the relevant qualifications to give expert evidence on the matter, and find him credible and reliable.  I attach full weight to his expert evidence.

30.  D stated under caution, inter alia, that:

(1)  He does not have any job in Hong Kong and relies on ISS provisions;

(2)  He has no habit of taking dangerous drugs;

(3)  At 12:18am on 19 March 2023 before he was arrested, he was heading towards the police station because he had sent a WhatsApp message to his wife informing her that he was going to the police station to surrender himself (regarding the aforesaid domestic disturbance matter);

(4)  When he got to where his bicycle was parked, there was some rubbish (including 2 water bottles, 1 can, 1 water can, 1 pack of tissues, and the subject cigarette box)  lying in the basket of the bicycle. It was the first time D had seen these things – when he parked his bicycle, these things were not there. He was about to throw them away but there was no rubbish bin nearby so he just unlocked the bicycle and put the lock into the basket; he was still holding the key and started pushing the bicycle and walking;

(5)  He was arrested by the police near the minibus stop where he had parked his bicycle;

(6)  He had parked the bicycle there at around 3pm the day before;

(7)  He knows nothing about the items in the basket including the cigarette box. The cigarette box was lying among the rubbish in the basket, but he has no idea where it came from;

(8)  He has no habit of smoking.

31.  After carefully considering the evidence in the case, I am of the view that what D said under caution (that he did not know about the dangerous drugs found in the basket of his bicycle)  may be true.

(1)  It is agreed that there had been a domestic dispute between D and his wife / the subject female on 18 March 2023 at D’s residence and a neighbour had made a police report. According to PW1’s evidence, he came to the vicinity for the purpose of intercepting D for this domestic dispute matter and indeed arrested him for an alleged assaulted. It was only subsequent to finding the drugs in the cigarette box inside the basket of D’s bicycle that PW1 then arrested D for possession of dangerous drugs. In other words, D was not intercepted by PW1 due to acting suspiciously near his bicycle where the dangerous drugs were found. Moreover, PW1’s evidence is that he did not see D touch the cigarette box;

(2)  The basket is a standard bicycle wire / metal see-through basket with no cover or lock. (The U-shaped lock P4 is obviously just a lock for the bicycle itself, and not the basket.)  Any person walking near the bicycle would have access to the basket, either putting things inside it or taking things out. I accept the defence submission that the basket was an easy receptacle for someone who was seeking to discard of a suspicious item;

(3)  The bag of drugs was found concealed inside a cigarette box. D said under caution that there were bottles and cans as well inside the basket which he took along with the cigarette box to be rubbish that someone had thrown there while he was away from 3pm on 18 March 2023 to midnight of 19 March 2023. (PW1’s evidence is that he does not recall if there were any bottles and cans in the basket – he only remembers there was the lock P4 and the cigarette box P2 inside the basket.)  Upon examining P2, I find the cigarette box does look like a piece of rubbish;

(4)  D said under caution that he was heading towards Yuen Long Police Station when PW1 intercepted him to surrender himself to the police due to the domestic disturbance matter. D also knew that the police were looking for him. PW1 agrees that D was heading towards the direction of the police station when he was stopped. It would be illogical for D to be surrendering to the police for the alleged assault all the while knowing that he had an incriminating packet of drugs with him.

(5)  Although D’s urine tested positive for amphetamine on 22 March 2023, there were no dangerous drugs or drug paraphernalia at his residence. There is also nothing remarkable about the cash of $400 (given ISS gives transportation expenses)  and 2 mobile phones found in D possession.

32.  After considering all the evidence, I find that there is a possibility that D did not know the drugs were in the bicycle basket and that it did not belong to him.  The prosecution is unable to prove knowledge and possession.

33.  In light of the aforesaid, D is acquitted of the charge.