HKSAR v. REHMAN SAFE UR

DCCC 411/2022

[2023] HKDC 987

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 411 OF 2022

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REASONS FOR VERDICT

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1.  D2 pleaded not guilty to one charge of trafficking in a dangerous drug[1], namely 8.80 grammes of a solid containing 7.45 grammes of ketamine (jointly charged against D1 and D2). D1 also faced two other charges[2]. D1 pleaded guilty to Charge 1 and 2, and not guilty to charge 3. Charge 3 is left in court file. This trial only deals with D2.

2.  D2 is willing to plead guilty to a charge of simple possession, but prosecution refused.   D2 said it is for his own consumption.  Therefore, the only issue is whether D2 possessed the drugs for purpose of trafficking. 

Undisputed Facts

3.  The entire prosecution case is admitted by the defence.  The prosecution called no witness. 

4.  At about 1850 hours on 30 December 2021, PC16177 (PW1) and PC16748 (PW2), whilst on duty, observed a black vehicle bearing number plate XC7742 (“Vehicle”) parked in the lay-by area outside Chung Bo House, Tin Chung Court, Tin Shui Wai near lamppost AJ0079B.  The engine of the Vehicle was switched on and D2 was sitting in the driver’s seat.  D1 was sitting in the front passenger seat.

5.  PW1 and PW2 approached the Vehicle.  PC10496 (PW3) arrived thereafter.  D1 appeared to be nervous and locked the Vehicle.  Subsequently, when PW1 managed to open the nearside front door of the Vehicle, D1 immediately ran out of the Vehicle.  PW1 shouted, “Police, don’t move”.  D1 put up a fierce struggle whilst PW1 and PW2 controlled D1's arms. 

6.  During the course of the struggle, PW1 spotted that a red and white Marlboro cigarette box (“Cigarette Box”) in D1’s left hand and a black mobile phone (“Black Mobile Phone”) in D1's right hand fell onto the ground.  D1 then threw the Cigarette Box and the Mobile Phone into a drain hole whilst he was struggling on the ground.

7.  At about 1905 hours, PW1 opened the drain cover and seized the Cigarette Box and the Black Mobile Phone from the drain.  There were no other cigarette boxes in the drain.

8.  PW1 opened the Cigarette Box in front of D1 and found 27 transparent re-sealable plastic bags therein, each plastic bag containing some white powder suspected to be ketamine.

9.  PW1 also searched D1 and seized from his bag HK$6,273 in cash.

10.  At the time the 27 bags were seized, D2’s right foot stepped out of the Vehicle.  PW2 then subdued D2 and seized from him HK$2,055 in cash and a mobile phone.  During inquiry, D2 stated in English that he had known D1 for around two years and they were friends.

11.  A video recorded cautioned interview was taken by DPC18958 of D2.  Under cautioned, D2 stated:-

(i)      D2 was the registered owner of the Vehicle.  He was the driver at the material time.

(ii)     The dangerous drugs in the Cigarette Box was “K” (“K仔”).  D2 and D1 intended to purchase 26 packets of it for $9,300.  The 26 packets were to be split equally between D1 and D2. The seller gave them one packet for free.

(iii)    The seller threw the Cigarette Box containing the dangerous drug and a white mobile phone into the Vehicle and walked away slowly without receiving payment.

(iv)    D2 did not remember correctly if he touched the dangerous drugs.

(v)     D2 was a new user of the dangerous drug.  D2 and D1 consumed around one packet every 2 to 3 days. The dangerous drug would satisfy D2’s consumption for a month.

(vi)    They were not trafficking dangerous drugs.

12.  The Government Chemist’s Certificate certified that the 27 Bags were 27 plastic bags containing a total of 8.80 grammes of a solid containing 7.45 grammes of Ketamine.  The street value of 8.80 grammes of Ketamine was HK$4,190 in December 2021.

13.  D2 was the registered owner of the vehicle.  He has a clear record.

Defence case

14.  D2 did not give evidence or call any witness.  D2 relied on his explanation in the video recorded interview, that the drugs were for his and D1’s self-consumption.

Issues

15.  Defence did not dispute that D2 was in possession of the drugs and he knew they were dangerous drugs.  The only issue is whether D2 possessed the same for trafficking or self-consumption.

Legal Principles

16.  The defendant is charged with unlawful trafficking in a dangerous drug, namely ketamine.  Trafficking in a drug means supplying it to others, or selling it, or exporting it or possessing it for such a purpose.  The defence now says it is for D1 and D2’s self-consumption.

17.  The burden of proof is on the prosecution.  It is for the prosecution to prove each element of the offence against D2 beyond reasonable doubt.  D2 bears no burden of proof.  The fact that D1 has pleaded guilty will have no bearing on my decision in the case against D2.  The prosecution has to prove its case against D2.  D1’s admission of guilt and conviction does not take the case against D2 any further.

18.  In SJ v Hii Siew Cheng[3], the expert Professor K Lee opined that for ketamine, recreational doses ranges from 10 to 250 mg when taken nasally.  The Court of Appeal agreed this court can rely on the said expert opinion evidence in assessing the normal dosage for usage of ketamine[4].

Assessment of evidence

19.  Defence relied on the explanation in his VRI.  The VRI of the defendant comprised both admissions and self-serving assertions.  I must consider the whole statement, both the incriminating parts and the excuses or explanations given by the defendant in deciding where the truth lies.  In other words, I give myself directions in accordance with the principles laid down in R v Sharp(1988) 1 WLR 7.

20.  I accept D2’s admission that he had knowledge of the drugs, and jointly possessed them with D1.  This admission is consistent with the circumstantial evidence.

21.  Regarding his explanation in VRI, I have the following observations:-

(a)  D2 stated they intend to purchase the drugs for $9,300. The seller did not take any money from them, rather he threw the drugs at D1 and left the scene.  However, from the admitted facts, there were a total of $8,328.00 on them.  The amount of money on both defendants would not be sufficient to purchase the drugs.

(b)  D2 stated that the seller, shortly before or at the same time of the police arriving, threw the drugs and phone to D1 and walked away.  It might be understandable why he would throw the drugs away.  However, I fail to see why he would also throw away the mobile phone.

(c)  I do note that none of the police officer gave evidence. There is no evidence on whether anyone was near the black Vehicle at the time or shortly before the police approached the defendants.

22.  However, even if D2’s explanation in VRI is suspicious, the burden is on the prosecution to prove beyond reasonable doubt that D2 possessed the drugs for the purpose of trafficking.  In determining whether D2 possessed the drugs for self-consumption or for purpose of trafficking, I have the following considerations:-

(i)      D2 has a clear record.

(ii)     There are a total of 8.80 grammes of a solid containing 7.45 grammes of Ketamine.  Relying on the daily dosage of 10-250 milligrammes, the drugs seized contained 29-750 doses.  In VRI, D2 said the defendants would consume each packet in 2-3 days, and that all the drugs could last for a month or two.  This is within the average dosage shared by two people.

(iii)    The street value of 8.80 grammes of Ketamine was HK$4,190.00.  D2’s VRI stated they were prepared to pay $9,300.00.  If it is split between the defendants, it would be HK$2,095.00 or $4,650 for one to two months.  There is no evidence to show D2 is unable to finance the drugs. 

(iv)    Regarding the discrepancies between the street value and price D2 claimed it costs, it is reasonable and foreseeable for seller to overcharge the price for new user.  Also, I noted the defence submission that the final price is agreed between the seller and D1, it might not be known to D2.

(v)     The drugs were in a cigarette box, containing 27 transparent re-sealable plastic bags, each plastic bag containing some white powder later confirmed to be ketamine.  The packaging is consistent with trafficking as well as buying in bulk.

(vi)    Defendants were stopped on the street, in D2’s own vehicle, at around 6:50 pm.  There is no evidence defendants travelled around with the drugs after obtaining them.

(vii)   D2 stepped out of the Vehicle at the time of interception.  However, it is insufficient to say that D2 was in fact attempted to flee beyond reasonable doubt.

(viii)  No other items, like scale, packaging tools, etc were found on the defendants and afterwards.

(ix)    D2 has a clear record.  In the VRI, he said he is a new user.  There is no evidence that D2 is a drug addict.

23.  Considering all the above, I am unable to disregard a possibility that what D2 said in the VRI may be true, that the drugs were possessed for self-consumption. As such, I am unable find that the only irresistible inference is that D2 possessed the drugs for the purpose of trafficking.   

24.  Therefore, I find D2 not guilty of trafficking in a dangerous drug.  Given his admission of possession and D2’s guilty plea, pursuant to section 42(1) and Schedule 3 of the Dangerous Drugs Ordinance, I convict D2 of the lesser offence of possession of a dangerous drug under section 8(1)(a) and (2) of the same Ordinance.