HKSAR v. WONG PUI WO KENNY

DCCC 925/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 925 OF 2016

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REASONS FOR VERDICT

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Introduction

1.  This is a case of stop and search by the police in the street leading to the finding of drugs (31.3 grammes of a crystalline solid containing 3.54 grammes of methamphetamine - commonly known as ice).

2.  The defendant, legally represented, pleaded not guilty to trafficking but guilty to possession of the drugs in question.

At Issue

3.  As is clear from the preceding paragraph what is at issue is whether the defendant had the drugs, as he claims, for his own consumption or as the prosecution allege, for trafficking?

Evidence

4.  The best part of the prosecution case is not challenged and is admitted into evidence by way of admitted facts (which has been read out in court by the prosecutor). The prosecution, in fact, called no live witnesses at the trial.

5.  At the time of the arrest for possession of the drugs, the defendant had told the police that the drugs were for his own consumption, and he repeated the same claim in the subsequent interview with the police. The voluntariness of the interview is not an issue and the content of which is admitted into evidence.

6.  The defendant took to the witness stand but called no witnesses on his behalf. His testimony, though still denying trafficking, is not on all fours with what he had earlier told the police in the interview. For those parts which he now recants, his explanation is that he did not want to implicate or cause any trouble to his friends by telling the truth, but now facing with such serious allegation as trafficking, he must come clean.

Analysis

7.  When it comes to analysis, what it boils down to in the instant case is a question of credibility on the part of the defendant. He now tells the court that he lied to the police in the interview about certain matters, and what he said in court is the truth. The question I ask myself is what part of the defence case is worthy of belief? I’ll start my analysis with the undisputed or unchallenged evidence.

Undisputed Facts

8.  By way of admitted facts, the parties agreed the following:

(a) On the day of offence (17 August 2016) at around 18:10 hours, the defendant was stopped by the police in the street near Wo Yue House, Fung Wo Estate, Shatin;

(b) In the defendant’s shorts pocket, the police found the drugs of this case, which were put in a re-sealable plastic bag and wrapped in tissue;

(c) The drugs were found after examination to be 31.30 grammes of a crystalline solid containing 3.54 grammes of methamphetamine;

(d) The retail value of the drugs is estimated to be $10,830;

(e) The defendant is a recipient of CSSA (Comprehensive Social Security Assistance), and was paid $2,000 odd dollars for the months of June and July 2016, but payment was stopped thereafter owing to the defendant’s failure to submit the necessary supplementary documents as requested;

(f) At the time of his arrest, the defendant had on him cash of $174.5 and a mobile phone.

Unchallenged Evidence

9.  This part of the defence case is not really challenged by the prosecution which I find as facts, I’ll summarize the relevant parts as follows:

(a) The defendant, aged 49, is a married man (married in 2010) with

a 6-year-old son;

(b) The defendant had changed from a full-time night-shift taxi driver to a part-time one about two months before the offence, and as a result, his average monthly income had reduced by almost two-thirds from $15,000 to about $5,000 a month, which prompted him to apply for CSSA;

(c) The defendant is an “Ice” abuser for 15-16 years, so was his wife; as soon as she got pregnant, she quit the vice habit but the defendant continued.

Was the defendant badly off at the material times

10.  From the evidence as stated above, clearly the defence isn’t trying to paint a picture of the defendant being a man of means. He has a wife and a son to provide for, with the sudden drop in income – a 66% drop, quite a massive one indeed - his family very likely fell on hard times. It would only be natural on the part of the defendant to look for other sources of income in the straitened circumstances he suddenly found himself in. That explains why he sought help from the Social Welfare Department by applying to become a recipient of CSSA.

11.  Let’s not forget the defendant must finance his drug habit too. An odd thousand or two a month from the Social Welfare authorities is not much of a help; the pressure on him to seek additional incomes could hardly be lessen.

How did he get hold of the drugs and for how much

12.  The defendant has given two different versions in this regard. He first told the police that he got the drugs from a tout in the street whom he had not met before. He even went on to give a rather detailed description of this man and how he got a good deal on the drugs by buying in bulk (paying $3,000 for the drugs which have a street value of slightly more than $10,000) and all that as if he was telling a true story. Now in the box, the defendant recanted it by saying that that was a lie - he made it up about this drug dealer.

13.  I need not concern about the first version because to begin with, the defendant said it was a false story, and secondly, the story itself does not appear to be plausible at all. It beggars belief that some stranger would just come up to you in the street to sell you such large quantity of drugs. I would reject it without the slightest hesitation.

14.  Is his new version worthy of belief then? He said he had a row with his wife the night before and left home around mid-night (he lives in Ngau Tau Kok) carrying with him some $5,000 cash. He wanted to see a lady friend by the name of Ah B who lived in Mei Tin Estate, Shatin. The defendant, however, couldn’t get hold of her by phone thinking that Ah B might be asleep at the time, the defendant nevertheless made his way to Mei Tin Estate. Not being able to see Ah B, he decided to spend the night in the park nearby. He got up next morning and went to see a Mr Tsang from the Social Welfare department regarding his CSSA affairs.

15.  The meeting concluded at 11 am. This time the defendant was able to contact Ah B, so he went to her place where he stayed for about 4-5 hours; while there he called Van, a woman who had been supplying drugs to him over the past few years, to buy drugs. Van returned his call sometime after 5pm and asked him to come to her place (Wo Yue House, Fung Wo Estate) to get the drugs. He paid $3,000 for the drugs, put them into his shorts pocket without checking, and then took the lift down to the street intending to go back to Ah B’s place to consume the drugs but was stopped by the police.

16.  This is again different from what he told the police. He said after the meeting with Mr Tsang in the morning, he was wandering around in Shatin area for hours; having chanced upon a drug dealer and got the drugs, he was looking for a quiet place to take the drugs - a place out of public view.

17.  The defendant in his testimony did not elaborate any further his actual relationship with Ah B except that she is not a drug abuser, nor did he tell us what they did during that afternoon apart from making the drug purchase phone call to Van who told him to wait for her return call. According to his evidence, clearly the only thing he had in mind for that afternoon was to buy drugs from Van, I find it rather strange that the defendant did not call Van first to find out if she had the drugs before paying a visit to Ah B’s flat, especially when he said he wanted to consume drugs at her place. I would expect him to have the drugs with him when he went to Ah B’s place. His account was quite the opposite - called Ah B first, stayed at her place, then called Van. I have no doubt in my mind the defendant was making this up about these two women.

18.  Undisputed is the fact that the drugs were found on him, the corollary of that is that he must have got them from someone somewhere, but certainly not from the person and in the circumstances as he had described either to court or the police.  

19.  On the other hand, there is nothing to contradict his assertion that he got the drugs for $3,000, considering in particular the extremely low purity of the drugs in question (3.54 ÷ 31.3 × 100% = 11%). Given the evidence as it is, the court accepts that the defendant obtained the drugs for $3,000. From this, the court draws the only reasonable inference that the defendant had channels of getting cheap supply of “Ice”.

What did he intend to do with the drugs

20.  First of all, the court accepts that the defendant is an “Ice” abuser and perhaps a long time one, but I like to make it clear that a person is a regular drug user does not mean he can never be a drug dealer on a particular occasion, and vice versa, a man of clean record can be a drug user for the first time. My point is whether a person is a drug dealer or not depends on the case, and only by examining all the relevant circumstances can one conclude that a person is or is not a drug dealeron that particular occasion.

21.  The street value of the drugs in question is about $10,830, the defendant could get them for $3,000, that would mean a handsome profit of more than $7,000. Given his economic difficulties at the time, the need to support his family and to finance his vice habit, and his knowledge of places to get cheap supply of drugs, the only reasonable conclusion I can come to is that the defendant had the drugs for trafficking.

22.  When I come to the above conclusion, I have not lost sight of the fact that the court finds the defendant to be an “Ice” abuser. The drugs in the instant case were put in a single re-sealable plastic bag, counsel for the defendant in her submission reminds me that there are no packing materials, scale or equipment found, what I make of this is that it tells me that the defendant on this particular occasion wouldn’t want to leave some of the drugs for his own use.

23.  As a matter of fact, trafficking in dangerous drugs can be done in a myriad of ways: at the retail end, of course, one may need lots of small plastic bags, but as a courier, all the drugs can conveniently be put in a single bag. Or it could be sold in bulk to another as an intermediary.

Away from home

24.  The defendant lives in Ngau Tau Kok but he appeared in Shatin area with the drugs. There was no evidence that he was on his way home at the time of interception by the police. I have already rejected his account of visiting the two women, Ah B and Van; insofar as his assertion of having met Mr Tsang earlier that morning was concerned, though the prosecution challenged this part of his evidence through cross-examination, there was no evidence to the contrary adduced to contradict him. The court therefore accepts that he had a meeting that morning with Mr Tsang and left the office at 11am. That would mean the defendant had been roaming in the street for at least 7 hours before he was stopped by the police.

25.  The defendant testified that his wife would not allow him to take drugs at home. According to him, his wife used to be an “Ice” abuser like him up to the moment before her pregnancy. And before that, both had been using “Ice” together for a period of time; when she got pregnant the wife stopped using drugs but the husband continued. They have a 6-year-old son, that means the defendant has continued with the vice habit for at least 6 years. If what he said is truth, it will appear to me that the wife doesn’t mind the drug-taking of her husband, it’s the place where he takes it she doesn’t like – I find this hard to believe.

26.  If it’s for the benefit of their boy, this is not the reason given for it, and in fact, no reason was ever given by the defendant why the wife disallowed him to use drugs at home. I believe he made it up trying to explain away why he had the drugs outside.

27.  It is not for the court to speculate how long he had the drugs with him in the street before his encounter with the police, but certainly the court does not accept that not long after he got them from Van, as he said, he was stopped by the police. Whatever the situation might be, as the evidence now stands, the court feels safe to conclude that when he came into possession of the drugs to the moment he was stopped by the police, he had no intention to go home.

28.  To me, a genuine drug user normally would not, after getting the drugs, stay out too long so as to reduce his chances of running into a law enforcement officer; on the contrary, a drug dealer would have to be prepared to take the risk of arrest to stay out as long as it takes to complete his drug dealing activities.

The low purity of the drugs

29.  Lastly, I might as well mention about the low purity of the drugs in the instant case which is rather unusual in that most cases involving “Ice” that I came across in the past, the drugs are usually of very high purity (mostly 90% or above).

30.  The defendant was trying to capitalize on this by saying that he would not have bought the drugs had he had the opportunity to look at them during the drug deal. As can be seen from the photographs, the drugs appear to be yellowish as opposed to the usual whitish appearance of “Ice”. The defendant testified that those yellowish drugs would be apparent to anyone that they were poor stuff, meaning they were unsaleable. He would have demanded a refund if he had seen it. Basically, what the defendant was trying to say is that given the poor quality of the drugs, there was no reason for him to sell them to others.

31.  First, I do not believe that the defendant did not look at the drugs when he came into possession of it. In any drug deal, a buyer may not be expected to go so far as to weigh the drugs to confirm, but it is almost a certainty that he would at least look at the stuff he is buying to make sure he is getting the correct thing, that’s not too difficult to do so.

32.  Secondly, the drugs were in fact shown to him during the interview for his comment, he uttered not a word about its yellowish appearance or poor quality or anything like that; in other words, it was the first time he mentioned about it in court.

33.  Though the drugs in question are obviously of very low purity, I do not think that they are unsaleable. The drugs at least got through to the defendant; if he ever thought that they were unsaleable, I would not expect him to pay $3,000 for them. This tells me one thing- there is market for the drugs in question.

Conclusion

34.  For the reasons given above, I am satisfied that the prosecution has proved the charge against the defendant to the required standard, i.e. beyond all reasonable doubt, and the defendant is duly convicted.