HKSAR v. WONG SING CHI JACKY AND ANOTHER

DCCC 894/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 894 OF 2015

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Reasons for Verdict

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Introduction

1.  In a hotel room where the two defendants (D1- a man and D2- a woman) were present, police discovered 2 types of drugs (cocaine and methamphetamine hydrochloride – commonly known as Ice) and drug paraphernalia (a bottle for inhaling Ice). The hotel in question is situated in Yau Ma Tei, Kowloon. 

2.  Both defendants were jointly charged with 2 counts of offence, which they denied, namely:

Charge 1- trafficking in dangerous drugs

The drugs are 8.88 grams (gs) of a solid containing 8.10 grams of cocaine and 1.01 grams of a crystalline solid containing 0.91 gram (g) of Ice;

Charge 2- possession of apparatus fit and intended for the inhalation of a dangerous drug

One inhaling device, a bottle, fit and intended for the inhalation of methamphetamine.

Evidence

3.  There is neither fingerprints evidence nor confessions from either of the defendants in this case. Furthermore, the defence adduced no evidence at trial. 

4.  Basically the prosecution case is not much in dispute; I now summarize some of the undisputed facts as follows:

(1)- On the bedside table, there are 3 re-sealable plastic bags and a tinfoil packet, all of which contain drugs. One of the bags contains 0.2 g of cocaine and the rest (two bags and the tinfoil) contain Ice (total weight 1.01gs); a glass bottle that had been modified (fitted with a glass tube and a straw and half filled with transparent liquid) was placed just next to the drugs;

(2)- On the false ceiling above the bed, inside a black plastic bag, there are 43 small re-sealable bags containing cocaine, total weight of the drugs is 8.68 gs;

(3)- When police entered the room, D1 was seen bare-chested (Not wearing any clothes on his upper body). A body search was conducted on him by an officer (PW2) but nothing was found;

(4)- Cash of $48,526.90 was seized from the person of D2. The money comprises the following:

Banknotes
(a) $1,000	- 7
(b) $500	- 74
(c) $100	- 43
(d) $20	- 6
(e) $10	- 7	total: $48,490
Coins
(f) $10	- 1
(g) $5	- 2
(h) $2	- 5
(i ) $1	- 5
(j) $0.5	- 2
(k) $0.2	- 4
(l) $0.1	- 1	total: $36.90

(5)- D1 had been remanded in custody from the time of arrest on 16 June 2015; 4 days later he supplied a sample of his urine for testing on 20 June 2015. The urine tested positive to amphetamine;

(6)- The value of the drugs seized was calculated at $9,691.

Issues at trial

5.  As can be seen from above, what the prosecution basically rely on is circumstantial evidence; it’s submitted by the defence that they are insufficient for the court to draw the only reasonable inference that the defendants are guilty as charged.

Analysis

6.  The onus is always on the prosecution to prove the charges against the defendants beyond all reasonable doubt; as a defendant, he is under no duty to prove anything.

7.  The court is aware of the fact that D2 is a person of clean record, which helps her in two ways:

(1)- She is less likely to have committed the offences as alleged by the prosecution;

(2)- What she says is more likely to be the truth.

I’ll bear this in mind when I consider the evidence of the case.

Could the drugs and the bottle have been there before the defendants?

8.  It’s submitted by the defence that there are just too many question marks about the prosecution case, such as no evidence as to when the defendants entered the room, how long they had stayed inside and what their status was, and therefore there is no proof of their knowledge of the drugs and the inhaling device found in the room. All that we have, counsel said, is that police officers arrived at the hotel at 7 p.m. and entered the defendants’ room about 3 minutes later.

9.  True to say, the cleaning lady (PW1) called by the prosecution was not very forthcoming in her testimony- she kept saying she had forgotten this and that, but insofar as her evidence relating to renting and cleaning of the rooms was concerned, I’m satisfied that she was telling me the truth.

10.  She testified that when the guest left (I take it to mean check out), she would go in the room to do the cleaning. It must be right because this is a hotel, when a guest leaves, the room will be cleaned up so that it can be made available for the next guest.

11.  First of all, I do not believe that these valuable things, in particular the drugs valued at more than $9,000, would have been left behind by someone who had occupied the room before the defendants.

12.  Assuming it was the case- someone left them behind, I do not believe that they would not have been removed by the cleaner who did the cleaning afterwards because those drugs and the drug paraphernalia (the bottle) were clearly visible to anyone in the room.

13.  I am satisfied that all the drugs as well as the bottle had not been there before the defendants came into the room.

The period of time the defendants had stayed in the room

14.  True, there is no evidence to prove how long they had been inside the room, but judging from the photographs showing the dustbin in the room, it was full of rubbish; in fact it was full to its capacity that further rubbish had to be placed in two plastic bags (as can be seen next to the bin). Among the rubbish, one can easily spot at least 3 meal boxes. I have no difficulty in concluding that they must have stayed inside the room for some time. Certainly this is not a case where they’ve just got in before the police.

15.  Counsel for the defendants suggests that there might be a possibility that they were just visitors there; the real occupier of the room could well be somebody else. My short answer is that this is a pure speculation- a possibility without any evidence in support. 

16.  Here I’d like to quote a passage of the appellate court in Chong Kin Cheong CACC 196/1995:

“As was his right, the applicant chose not to give evidence. This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge’s task when considering the facts put before him to imagine possible defences of which there is no evidence. By the same token it is not his task-nor that of the jury- to speculate upon the absence of possible evidence. His duty was to try the case just on the evidence before him.”

D1 - a drug abuser

17.  Based on the urine test results, I’ve come to the conclusion that D1 was a drug abuser on the day of his arrest, and that the drug that he used was Ice. (In the judgment of Ching Kwok Hung CAAR 15/1990, it was said that methamphetamine is an analogue of amphetamine).

18.  There is indeed a 4-day gap between his arrest and the giving of his urine sample. Moreover, no expert evidence was adduced at trial on how long the drug, in particular Ice, could have stayed in human system, or whether it would make any difference in the case of a habitual user.

19.  Notwithstanding this, given the fact that he had been remanded in custody ever since his arrest, and it’s highly unlikely he would have access to drugs while in custody, I conclude that he must have taken Ice before his arrest.

20.  In Ching Kwok Hung, the appellate court described the abuse of ICE as follows:

“…………………..One smokes ICE by heating the crystal and inhaling its fumes. This is done usually through a glass tube or through a form of ‘hookah’ inhaling the drug through the liquid to cool down the smoke. If the ‘hookah’ method is used the liquid in the ‘hookah’ can be flavoured so that the drug itself becomes flavoured. ” (See paragraph 14 of the judgment)

21.  As can be seen from the photograph, the glass bottle in question is half filled with transparent liquid with a cap on it, there are two holes in the cap- one fitted with a S-shaped glass tube and the other a plastic straw. At the free end of the glass tube, it turns into some kind of a receptacle underneath of which there appears burnt marks (the darken part). Clearly this glass bottle is an apparatus for taking Ice.

22.  The drugs (Ice contained in 2 bags and a tinfoil) together with the drug paraphernalia for inhaling Ice (a bottle half filled with liquid) on the bedside table clearly convey the impression that someone had them at the ready.

23.  Given all that I have said about D1, for example, he is an Ice abuser, he’d taken Ice before police came into the room, the readiness for use of the bottle for inhaling Ice, and the availability of Ice on the bedside table, I am satisfied that D1 was in possession of the bottle for the purpose of inhaling Ice.

D2’s situation in relation to the bottle and the Ice

24.  D2 is a person of clean record; she has no history of drug abuse or anything like that. No fingerprints of hers linked her to the things on the bedside table. Given the drugs and the bottle were within the line of sight of D2, I am sure she knew about the existence of these things, but I am not sure if she would use the bottle to inhale ice.

The one and only one packet of cocaine on the bedside table

25.  Only one bag of cocaine was found on the bedside table, the other bags or tinfoil all contain Ice. This bag of cocaine weighs 0.2 gram.

26.  It’s worth mentioning that the 3 bags containing drugs found on the bedside table are each of different size, with the one containing cocaine being the smallest among the three.

27.  In court, I have compared the real exhibits of this particular bag with those bags containing cocaine, i.e. the 43 bags found on the false ceiling, the result is that all the bags are of the same size and type.

28.  I have no doubt in my mind this one on the bedside table must have come from the bigger lot on the false ceiling.

The 43 packets of cocaine on the false ceiling

29.  These 43 packets were kept in a big black plastic bag which was put in the space between the false ceiling and the ceiling- it is a bit like the overhead compartment of a coach bus, only much shallower. As shown in the photographs, one could easily see the black bag when looking up.

30.  Taking into account of the findings that the one on the bedside table came from the bigger lot on the false ceiling, I have no doubt whatsoever the two defendants knew about the existence of these 43 bags of cocaine.

What are these 43 bags of cocaine for?

31.  First of all, there is no evidence to suggest that either defendant is a cocaine drug abuser.

32.  As I have said before, the 43 bags are of the same size and type, they all contain cocaine. Of these 43 bags, I don’t have the weight of cocaine for each individual bag, but when one takes the total weight (8.68 gs) as stipulated in the chemist’s certificate and divides it by 43 (the number of bags), one gets 0.2 g of cocaine as the average, which equals to the weight of cocaine contained in the bag on the bedside table.  

33.  I am mindful of the fact that this is only an average figure, but judging from the picture of those 43 packets in question taken by the police, they look more or less the same – that is not a case where one bag obviously contains cocaine a lot more than the other.

34.  43 bags of cocaine cannot be described as few packets of drugs. Such number is not consistent with personal use especially in a hotel room even if one takes into account of joint possession by two people, i.e. the two defendants.

35.  The place where the drugs were found is a hotel which is not meant for long stay. In fact, it is clear from the testimony of the cleaning lady (PW1) that the rooms there could be rented out on an hourly or daily basis. It is true we do not know how long the defendants would want to stay in the hotel room, but I would reject without the slightest hesitation any suggestion that someone would rent a hotel room for a long period of time just for consuming a large quantity of drugs.

36.  The cocaine had been divided into small portions and these portions had been put into 43 small bags. Judging from the way the cocaine was packed, clearly sale was the object.

What about the one on the bedside table?

37.  There is no evidence to suggest that either defendant is a cocaine abuser. Although it was placed near the Ice and the bottle, I am sure that it was not for their consumption (the defendants). On the evidence before the court, I am sure it was for the retail as well.   

Who are (is) the drug dealer(s)

38.  Up to now, I have come to the conclusion that these 44 packets of cocaine are for the retail.

39.  Buying drugs retail requiring cash is proverbial. In all these cash transactions, drug dealers would receive cash from customers; at the risk of stating the obvious, the more they transact, the more cash they would have. Another certainty is in any transaction involving cash, there is always the need to give change.  

40.  The officer (PW2) who searched D1 tells the court that he found nothing on him. On the contrary, D2 has large amounts of cash in her possession- $48,526.90.

41.  Excluding the coins ($36.90), the cash in banknotes comes to $48,490 which comprises 7 $1000 notes, 74 $500 notes, 43 $100 notes, 6 $20 notes and 7 $10 notes. One can see that the majority of them are $500 and $100 banknotes.

42.  When somebody buys cocaine, say, with a $1,000 note or $500 note, D2 would have no trouble finding cash to give change should the need arise.

43.  Although nothing was found on D1, was he there only for the consumption of Ice? I don’t think so.

44.  First of all, two types of drugs (cocaine and Ice) were found in the room. The court finds D1 to be an abuser of the drug, Ice, not cocaine. And the cocaine was well within D1’s line of sight.

45.  Remember the evidence of the 3 meal boxes among the rubbish, it tells the court that both defendants had been in the room for some time. For someone who just wants to come in here to smoke Ice, I would not expect him to stay long, or to take off his shirt to become bare-chested.

46.  Although the court found D1 to be an Ice abuser, I don’t think he was a customer in the hotel room. On the evidence before the court, the only reasonable conclusion I come to is that D1 was a drug dealer in cocaine and he was acting in concert with D2.

Conclusion

47.  I understand the case turns on circumstantial evidence. I’d like to make it clear that I have come to the above conclusions not by acting on one single piece of evidence but on the cumulative effects of all the evidence combined together – this should become apparent from the way I set out my analysis of the evidence above.

48.  I bear in mind the words of his lordship in Teper v R (1952) AC 480 at p489, PC:

“It must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another……………..It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

49.  And the oft-quoted passage likening circumstantial evidence to a rope comprised of several cords:

“One strand of the cord might be insufficient to sustain the weight, but three stranded together might be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a strong suspicion, but the whole taken together, may create a strong conclusion of guilt, that is with as much certainty as human affairs can require or admit of. ”

50.  For the reasons given above, in respect of the trafficking offence, insofar as cocaine was concerned, I am satisfied that the prosecution have proved to the required standard both charges against D1 but only charge 1 against D2. In other words, they were convicted of trafficking in 8.88 gs of a solid containing 8.10 gs of cocaine. Therefore, D1 is duly convicted of charges 1 & 2, while D2 is only convicted of charge 1 but acquitted of charge 2.