HKSAR v. CHECK KA CHUN

DCCC732/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 732 OF 2012

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HKSAR
v.
Check Ka-chun
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Before: District Judge Tallentire

Date: 5 November 2012 at 9.30 am

Present: Mr Gary Fung, Counsel on fiat, for HKSAR
Mr Choi Kai-hung, Danny, instructed by Y L Yeung & Co., assigned by the Director of Legal Aid, for the Defendant

Offence: Trafficking in a dangerous drug (販運危險藥物)

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Reasons for Verdict

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1. Defendant, you have pleaded not guilty to a single offence trafficking in dangerous drugs, contrary to sections 4(1)(a)&(3) of the Dangerous Drugs Ordinance, Cap. 134, making it clear you accepted possession of those drugs. What in fact you were saying was that, “These drugs were possessedby me for my own consumption. They were not to be trafficked.”

2. The prosecution case is as follows. On 24 May last, at around 3.25 am, in the car park outside Fok On Gardens, Fuk Hing Tsuen,Yuen Long, PC 2995, PW1, another office saw a car driven by you enter the car park. You, with your brother in the front seat, droveslowly as if looking for someone. Finding this suspicious, PW1 and other officers intercepted you and PW1 searched you. In yourunderwear he found three transparent resealable plastic bags of suspected ketamine, Exhibit 1.

3. At about 3.30 am PW1 arrested you for trafficking in dangerous drugs and cautioned you. You admitted the ketamine belonged to youand had nothing to do with your brother. Later analysis showed that the exhibit was three plastic bags containing a 101.62 grammesof powder containing 66.77 grammes of ketamine. The estimated street value was $13,189.

4. The prosecution case comprised the Admitted Facts, which is P1, one totally live witness, that is PC 2995, PW1, and one witnesswhose evidence was admitted under section 65B of the Criminal Procedure Ordinance, Cap. 221, a statement being P3, and then being briefly cross-examined.

5. The brief facts established the following: (1) your identity was not disputed; (2) the chain of evidence was not disputed; (3) yourarrest at 3.30 am on 24 May of this year by PC 2995 was admitted. Also admitted was that the drugs belonged to you and that theyhad nothing to do with your brother. The accuracy of the Government Chemist Certificate is admitted to the effect that P4 was a111.62 grammes of crystalline powder containing 66.7 grammes of ketamine.

6. On arrest you were in possession of a mobile phone.

7. PC 2995 gave evidence as PW1. In-chief that evidence mirrored and supported the prosecution case and I do not intend to repeat it. He wasnot shaken in cross-examination, denying that your car had been approached by a Chinese male and denying that P4, the dangerous drugs,was found in the driver’s door compartment.

8. PW2 gave evidence and accepted his valuation was based on 5 grammes of ketamine or less and that there would be a discount for largerquantities. However, he could not say what the discount would be.

9. The prosecution then closed its case, and in the absence of any contrary submission I ruled that you did have a case to answer onthe charge of trafficking in dangerous drugs. You, having had your rights explained to you by your defence counsel, elected to giveevidence but to call no defence witnesses.

10. The gist of what you said in-chief in evidence is as follows. You had been working as a transportation worker, earning some $700to $750 a day. You were a drug addict who had been to DATC on five occasions and was in fact in DATC at the moment. You took ketamineon daily basis, consuming some $600 to $700 worth. Your habit was funded by your earnings plus money given to you by your paternalgrandmother.

11. On the day in question you had phoned one Ah Shing, whom you described as the seller, and arranged to meet in the car park to purchase$6,500 worth of ketamine. In order to afford the ketamine you used the $6,000 provided by the government. The balance was fromyour salary. You said you bought the drugs because you were sad as you had a charge pending, and also it was cheaper to buy in bulk. Your younger brother was in the car. He had consumed alcohol and you were driving him home. In accordance with your arrangementsyou entered the car park, found Ah Shing in the most inner-most part, you wound down your window, gave him the money and receivedthe stuff, that is the ketamine, in return.

12. You were about to set off when a group of people run up to you, told you to turn off the engine and identify themselves as policeofficers. They told both of you to alight and you were both cuffed and searched. However, nothing was found on you. You were toldto sit in the rear of the car. The car was searched and P4, the drugs, were found in the door compartment of the driver’s door. You claim that the drugs were not found in your underwear, as the police officer had claimed.

13. You were then cross-examined by the prosecution. However, you remain steadfast in your claim that the drugs were for your own consumptionand that your version was correct as put forward in-chief.

14. Defence then closed its case. Both Mr Fung for the prosecution and Mr Choi for the defence made final submissions, which I tookinto account fully when reaching my verdict.

The Verdict

15. Mr Choi, on your behalf, made it clear from the outset, and this is reinforced by the evidence, that you fully accepted that youwere in possession of the dangerous drugs. However, you deny that you had any intention to traffic in the same. Your claim wasthat they were for your own consumption. If you are to be convicted of trafficking, then the onus is firmly on the prosecution toprove this beyond all reasonable doubt.

16. PW1 came over as an honest and accurate witness, and I have no reason to disbelieve his version of events. PW2 very fairly concededthat bulk purchase of dangerous drugs did indeed attract discounts from price, but was unable to commit himself as to how much. And I have to say that you yourself presented as a good honest witness whose evidence was not shaken by cross-examination.

17. There were two main points of difference between the versions given by you and PW1. Firstly, you claim that you had gone to thecar park, met your supplier there and bought the dangerous drugs. PW1 denied this. Secondly, PW1 claimed to have found the dangerousdrugs in your underwear, but you deny this saying it was found in the door compartment. You do not deny that the ketamine was yours. In fact you admit it was yours, therefore establishing possession.

18. Neither PW1 nor yourself was shaken in cross-examination and I find it difficult and in fact cannot say which, if either, lied,though clearly one of you must have told lies or been mistaken.

19. The prosecution case, it seems to me, rests solely, therefore, on the quantity of dangerous drugs, 111.62 grammes of powder containing66.7 grammes of ketamine, also perhaps to some extent that you were in a car park acting suspiciously in the early hours of the morning. The dangerous drugs were in three bags and secreted in your underwear. You explain the quantity in terms of cost, it being cheaperto purchase in bulk, and also safer than going to a supplier on many different occasions.

20. You point to a high level of consumption and that you are, in fact, an addict who has been to DATC on five separate occasions. It is, in my opinion, of some significance that the car was registered to your grandmother and I cannot be sure the drugs were notfound in the door compartment. If that was the case you could have maintained a lack of the knowledge of the dangerous drugs claimingthem not to be yours. However, you did not do that. You freely admitted that they were in your possession.

21. Also the packaging of the dangerous drugs is consistent with your version. Had you been trafficking in the car park in the senseof selling the dangerous drugs, not transporting them, one might have expected the dangerous drugs to have been broken down intosmaller packets, not three large ones. Your version is also supported by the fact that there was no drugs paraphernalia found onyou or in the car, and there is no suggestion that there were large amounts of money in your possession. Also your behaviour withinthe car park and the time are just as supportive of your version as the prosecution’s. Added to this the prosecution are not assistedby any admissions of trafficking either at the scene or in later interview under caution.

22. Therefore the position is this, that whilst I remain highly suspicious given the large amount of ketamine found, I cannot be surebeyond all reasonable doubt that you had that ketamine in your possession for the purpose of trafficking. The prosecution case simplydoes not go far enough for me to be sure. Taken in the round there is every possibility that they were possessed for self consumption.

23. Therefore you will be convicted of the lesser offence of possession of dangerous drugs.

Tallentire
District Judge