DCCC441/2024

DCCC441/2024

A A B B DCCC 441/2024 [2025] HKDC 846 C C IN THE DISTRICT COURT OF THE D D HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 441 OF 2024 E ------------------------------ F F HKSAR G G v H DOVALE RAJIV OMIHR H ------------------------------ I I J Before: HH Judge Kathie Cheung J Date: 20 May 2025 K K Present: Mr. Hanz YONG, Public Prosecutor, for HKSAR L Mr. Simon SO, leading Mr. Jack HUI, instructed by Messrs. L Ho & Associates, for the defendant M M Offence: Trafficking in dangerous drugs (販運危險藥物) N N O O P --------------------------------------- P REASONS FOR VERDICT Q Q --------------------------------------- R R S S T T U U V V A A B B 1. The defendant has been charged with one count of trafficking C in dangerous drugs1. The defendant pleaded not guilty to the charge but C guilty to possession of dangerous drugs. His plea was not accepted by the D D prosecution. E E Prosecution case F F G 2. Basically, the prosecution case was not challenged. Most of G the facts were admitted by way of Admitted Facts and some witness H H statements were admitted under section 65B of the Criminal Procedure I Ordinance, Cap 221. I J J 3. The defendant is a Dutch national. He arrived at Hong Kong K on 12 November 2023 as a visitor and was permitted to remain in Hong K Kong until 19 February 2024. L L M 4. At around 9:32pm on 18 December 2023, the defendant was M intercepted and searched by DPC 18563 near Lan Kwai Fong, Central. An N N “eclipse” candy box was found from the defendant’s front trousers’ pocket. O The candy box contained (a) 8 transparent re-sealable plastic bags O containing a total of 4.66 grammes of a solid containing 3.04 grammes of P P cocaine, and (b) 4 transparent re-sealable plastic bags containing a tablet Q containing 0.09 gramme of MDMA and a total of 1.54 grammes of a solid Q containing 1.13 grammes of MDMA. R R S S 1 contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 T T U U 2 V V A A B B 5. At the time of arrest, the defendant had cash in the sum of C HK$8,380. C D D 6. Defendant’s residence was searched and no illegal items were E found. E F F 7. In the subsequent video-recorded interview (VRI), the G defendant admitted purchasing the drugs for self-consumption. G H H 8. The daily consumption of cocaine is 0.4 gramme/day at street I purity while the typical dose of MDMA per occasion is 1-2 tablets or 0.15 I gramme per occasion. 1.54 grammes of solid containing 1.13 grammes of J J MDMA could potentially be formulated into 2-5 MDMA tablets. K K 9. In December 2023, the street value of 4.66 grammes of L L cocaine (powder) and cocaine (crack) are respectively HK$4,259 and M HK$6,035 while the street value of 1 tablet of MDMA is HK$57. M N N Defence case O O 10. After I ruled a case to answer, the defendant elected not to P P give evidence nor call defence witnesses. Q Q 11. The defendant relied on what he said in his VRI as his case, R R i.e. he bought the drugs for self-consumption. S S T T U U 3 V V A A B B Directions C C 12. Prosecution has the burden to prove the requisite elements of D D the offence beyond reasonable doubt. The defendant has no burden of E proof. E F F 13. The defendant elected not to give evidence nor call defence G witnesses. This is his right and I will not draw any adverse inference G against him for exercising his right. On the other hand, it means that there H H is no evidence from the defendant to undermine, contradict or explain the I evidence put by the prosecution. I J J 14. The defendant’s admissions in his VRI were admitted as part K of the evidence. The defendant did not give evidence and his version in K the VRI could not be tested by cross-examination. Nevertheless, I still L L have to decide if what he said in the VRI is true or may be true. If what he M said is true or may be true, then he should be acquitted. M N N 15. I bear in mind the defendant has no criminal conviction record O when considering his credibility and propensity. O P P 16. I also remind myself that if I am to draw inference, the Q inference must be drawn from facts proved and that the inference is the Q only irresistible inference to be drawn from the proved facts. R R S S T T U U 4 V V A A B B Analysis C C 17. The defendant does not dispute he was in possession of the D D drugs. The only issue in this case is whether he possessed the drugs for the E purpose of trafficking. E F F 18. The prosecution suggested the following facts supported the G only irresistible inference that the defendant possessed the drugs for G trafficking: H H I (1) the defendant’s failure to recognise the MDMA seized I from him which was incompatible with his claim of self- J J consumption; K K (2) the packaging of the dangerous drugs allows for ready L L distribution; M M (3) large sum of cash found on the defendant was N N incompatible for a visitor travelling in Hong Kong; O O (4) the large sum of cash was consistent with item usually P P found from drug traffickers; and Q Q (5) no paraphernalia for smoking/inhaling/ingesting R R dangerous drugs were found on the defendant or at his home. S S T T U U 5 V V A A B B 19. The defence replied as follows: C C For (1), the defendant admitted in his VRI that he knew there D D was another type of drug in the candy box although he did not E know what that was. This contention was supported by expert E witness’ evidence that sometimes drug trafficker might gift a F F small amount of drug to his customer; G G For (2), while the packaging might allow for ready H H distribution, it might also be consistent with someone who I bought drugs in that packaging2; I J J For (3) and (4), while possession of large amount of cash K might be consistent with someone being a drug trafficker, K given the defendant was a visitor in Hong Kong and there was L L no evidence of his having with him credit card or other M payment method, the fact that he had cash of a few thousand M dollars with him was not incompatible with him being a N N visitor; and O O For (5), in light of the expert witness’ evidence about the P P method of consumption of cocaine and MDMA, it was not Q unusual not to find any drug taking equipment on the Q defendant or at his home. Further, no drug trafficking R R paraphernalia such as re-sealable plastic bags or electronic S S 2 Chan Chuen Ho v HKSAR (1999) 2 HKCFAR 198 T T U U 6 V V A A B B scale was found at defendant’s home was consistent with the C contention that he was not a trafficker, bearing in mind the C tenancy of the premises commenced a year before the offence D D date. E E 20. Defence also submitted the admissions in the VRI were in line F F with possession of dangerous drugs and the defendant’s plea to possession G of dangerous drugs. Despite the defendant had not given evidence and had G not been cross-examined, it was said that the interview was dynamic and H H interactive and the defendant had given coherent answer to the questions. I It was submitted that more weight could be given on the defendant’s I reaction to the officer’s questions. J J K 21. Finally, defence submitted the circumstantial evidence K supported the defendant’s contention that the drugs were for self- L L consumption: M M (1) the defendant was not intercepted in the small hours of a N N day or at the rear alley; O O (2) the quantity of drugs was not large. With reference to the P P daily dosage of the drugs, all the drugs could be consumed Q within a week; Q R R (3) the candy box was not transparent such that the defendant S might not know the packaging of the drugs; S T T U U 7 V V A A B B C (4) expert evidence confirmed both types of drugs could be C taken by oral intake; D D E (5) it was reasonable to expect the defendant to have some E cash with him given he was a visitor in Hong Kong; F F G (6) the packaging of the drugs by itself would not support G trafficking3; H H I (7) expert witness confirmed sometimes trafficker would gift I small amount of drug to his customer. When compared the J J price and quantity of MDMA to cocaine in this case, the price K and quantity of MDMA is much lower/smaller. This K supported the defendant’s contention in the VRI that he knew L L there was another drug in the box but he was not sure what M that was; and M N N (8) the fact that the defendant was able to afford to pay O HK$12,000 per month for the rented apartment in Hong Kong O supported the contention that he could afford to buy drugs and P P that the money found on him was not proceeds from Q trafficking. Q R R S 3 See for example, Chan Chuen Ho v HKSAR (1999) 2 HKCFAR 198, 香港特別行政區 訴 吳子勁 (Ng S Tsz King) CACC 380/2012, 香港特別行政區 對 李嘉倫 (Li Ka Lun) CACC 467/2011 and HKSAR v Wang Qin (汪睛) HCMA 646/2013 T T U U 8 V V A A B B 22. Having considered the evidence and the relevant authorities C referred by the defence, I accept the defence submissions as stated above. C I find the evidence in this case cannot support the only irresistible inference D D that the defendant possessed the drugs for trafficking. I am of the view that E the evidence is more consistent with the defendant possessing the drugs for E self-consumption. In the circumstances, I find the prosecution has failed F F to prove beyond reasonable doubt the defendant possessed the drugs for G trafficking. I find the defendant not guilty of trafficking in dangerous drugs G but guilty of possession in dangerous drugs. H H I I J J K K L L M M N N ( Kathie Cheung ) District Judge O O P P Q Q R R S S T T U U 9 V V