區域法院（刑事）Deputy District Judge Colin Wong13/7/2023[2023] HKDC 987
DCCC411/2022
A A
B B
DCCC 411/2022
C [2023] HKDC 987 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 411 OF 2022
F F
G ----------------------------------- G
HKSAR
H H
v
I REHMAN SAFE-UR (D2) I
-----------------------------------
J J
K Before: Deputy District Judge Colin Wong K
Date: 14 July 2023
L L
Present: Mr Kamlesh Sadhwani, counsel on fiat, for HKSAR
M Mr William Allan, instructed by Mohnani & Associates, for M
the 2nd defendant
N N
Offence: [1] Trafficking in a dangerous drug (販運危險藥物)
O O
P
--------------------------------------- P
REASONS FOR VERDICT
Q Q
---------------------------------------
R R
1. D2 pleaded not guilty to one charge of trafficking in a
S S
dangerous drug1, namely 8.80 grammes of a solid containing 7.45 grammes
T T
1
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
U U
V V
-2-
A A
B B
of ketamine (jointly charged against D1 and D2). D1 also faced two other
C charges2. D1 pleaded guilty to Charge 1 and 2, and not guilty to charge 3. C
Charge 3 is left in court file. This trial only deals with D2.
D D
E 2. D2 is willing to plead guilty to a charge of simple possession, E
but prosecution refused. D2 said it is for his own consumption. Therefore,
F F
the only issue is whether D2 possessed the drugs for purpose of trafficking.
G G
Undisputed Facts
H H
I 3. The entire prosecution case is admitted by the defence. The I
prosecution called no witness.
J J
K 4. At about 1850 hours on 30 December 2021, PC16177 (PW1) K
and PC16748 (PW2), whilst on duty, observed a black vehicle bearing
L L
number plate XC7742 (“Vehicle”) parked in the lay-by area outside Chung
M Bo House, Tin Chung Court, Tin Shui Wai near lamppost AJ0079B. The M
engine of the Vehicle was switched on and D2 was sitting in the driver’s
N N
seat. D1 was sitting in the front passenger seat.
O O
5. PW1 and PW2 approached the Vehicle. PC10496 (PW3)
P P
arrived thereafter. D1 appeared to be nervous and locked the Vehicle.
Q Subsequently, when PW1 managed to open the nearside front door of the Q
Vehicle, D1 immediately ran out of the Vehicle. PW1 shouted, “Police,
R R
S S
2
Charge 2: Resisting police officers in the execution of their duties, contrary to section 63 of the Police
Force Ordinance, Cap 232. and Charge 3: Doing an act or a series of acts tending and intended to
T T
pervert the course of public justice, contrary to Common Law and punishable under section 101I(5)
of the Criminal Procedure Ordinance, Cap 221.
U U
V V
-3-
A A
B B
don’t move”. D1 put up a fierce struggle whilst PW1 and PW2 controlled
C D1's arms. C
D D
6. During the course of the struggle, PW1 spotted that a red and
E white Marlboro cigarette box (“Cigarette Box”) in D1’s left hand and a E
black mobile phone (“Black Mobile Phone”) in D1's right hand fell onto
F F
the ground. D1 then threw the Cigarette Box and the Mobile Phone into a
G drain hole whilst he was struggling on the ground. G
H H
7. At about 1905 hours, PW1 opened the drain cover and seized
I the Cigarette Box and the Black Mobile Phone from the drain. There were I
no other cigarette boxes in the drain.
J J
K 8. PW1 opened the Cigarette Box in front of D1 and found 27 K
transparent re-sealable plastic bags therein, each plastic bag containing
L L
some white powder suspected to be ketamine.
M M
9. PW1 also searched D1 and seized from his bag HK$6,273 in
N N
cash.
O O
10. At the time the 27 bags were seized, D2’s right foot stepped
P P
out of the Vehicle. PW2 then subdued D2 and seized from him HK$2,055
Q in cash and a mobile phone. During inquiry, D2 stated in English that he Q
had known D1 for around two years and they were friends.
R R
S 11. A video recorded cautioned interview was taken by S
DPC18958 of D2. Under cautioned, D2 stated:-
T T
U U
V V
-4-
A A
B B
(i) D2 was the registered owner of the Vehicle. He was
C the driver at the material time. C
D D
(ii) The dangerous drugs in the Cigarette Box was “K” (“K
E 仔”). D2 and D1 intended to purchase 26 packets of it E
for $9,300. The 26 packets were to be split equally
F F
between D1 and D2. The seller gave them one packet
G for free. G
H H
(iii) The seller threw the Cigarette Box containing the
I dangerous drug and a white mobile phone into the I
Vehicle and walked away slowly without receiving
J J
payment.
K K
(iv) D2 did not remember correctly if he touched the
L L
dangerous drugs.
M M
(v) D2 was a new user of the dangerous drug. D2 and D1
N N
consumed around one packet every 2 to 3 days. The
O
dangerous drug would satisfy D2’s consumption for a O
P
month. P
Q Q
(vi) They were not trafficking dangerous drugs.
R R
12. The Government Chemist’s Certificate certified that the 27
S S
Bags were 27 plastic bags containing a total of 8.80 grammes of a solid
T containing 7.45 grammes of Ketamine. The street value of 8.80 grammes T
of Ketamine was HK$4,190 in December 2021.
U U
V V
-5-
A A
B B
C 13. D2 was the registered owner of the vehicle. He has a clear C
record.
D D
E Defence case E
F F
14. D2 did not give evidence or call any witness. D2 relied on his
G explanation in the video recorded interview, that the drugs were for his and G
D1’s self-consumption.
H H
I Issues I
J J
15. Defence did not dispute that D2 was in possession of the drugs
K and he knew they were dangerous drugs. The only issue is whether D2 K
possessed the same for trafficking or self-consumption.
L L
M Legal Principles M
N N
16. The defendant is charged with unlawful trafficking in a
O dangerous drug, namely ketamine. Trafficking in a drug means supplying O
it to others, or selling it, or exporting it or possessing it for such a purpose.
P P
The defence now says it is for D1 and D2’s self-consumption.
Q Q
17. The burden of proof is on the prosecution. It is for the
R R
prosecution to prove each element of the offence against D2 beyond
S reasonable doubt. D2 bears no burden of proof. The fact that D1 has S
pleaded guilty will have no bearing on my decision in the case against D2.
T T
U U
V V
-6-
A A
B B
The prosecution has to prove its case against D2. D1’s admission of guilt
C and conviction does not take the case against D2 any further. C
D D
18. In SJ v Hii Siew Cheng3, the expert Professor K Lee opined
E that for ketamine, recreational doses ranges from 10 to 250 mg when taken E
nasally. The Court of Appeal agreed this court can rely on the said expert
F F
opinion evidence in assessing the normal dosage for usage of ketamine4.
G G
Assessment of evidence
H H
I 19. Defence relied on the explanation in his VRI. The VRI of the I
defendant comprised both admissions and self-serving assertions. I must
J J
consider the whole statement, both the incriminating parts and the excuses
K or explanations given by the defendant in deciding where the truth lies. In K
other words, I give myself directions in accordance with the principles laid
L L
down in R v Sharp (1988) 1 WLR 7.
M M
20. I accept D2’s admission that he had knowledge of the drugs,
N N
and jointly possessed them with D1. This admission is consistent with the
O circumstantial evidence. O
P P
21. Regarding his explanation in VRI, I have the following
Q observations:- Q
R R
(a) D2 stated they intend to purchase the drugs for $9,300.
S The seller did not take any money from them, rather he S
T 3 T
[2009] 1 HKLRD 1
4
See HKSAR v Chau Leong Wa (unrep CACC 51/2012) and HKSAR v Lai Kwai Po (unrep CACC
313/2014)
U U
V V
-7-
A A
B B
threw the drugs at D1 and left the scene. However,
C from the admitted facts, there were a total of $8,328.00 C
on them. The amount of money on both defendants
D D
would not be sufficient to purchase the drugs.
E E
(b) D2 stated that the seller, shortly before or at the same
F F
time of the police arriving, threw the drugs and phone
G to D1 and walked away. It might be understandable G
why he would throw the drugs away. However, I fail
H H
to see why he would also throw away the mobile phone.
I I
(c) I do note that none of the police officer gave evidence.
J J
There is no evidence on whether anyone was near the
K black Vehicle at the time or shortly before the police K
approached the defendants.
L L
M 22. However, even if D2’s explanation in VRI is suspicious, the M
burden is on the prosecution to prove beyond reasonable doubt that D2
N N
possessed the drugs for the purpose of trafficking. In determining whether
O D2 possessed the drugs for self-consumption or for purpose of trafficking, O
I have the following considerations:-
P P
Q (i) D2 has a clear record. Q
R R
(ii) There are a total of 8.80 grammes of a solid containing
S 7.45 grammes of Ketamine. Relying on the daily S
dosage of 10-250 milligrammes, the drugs seized
T T
contained 29-750 doses. In VRI, D2 said the
U U
V V
-8-
A A
B B
defendants would consume each packet in 2-3 days,
C and that all the drugs could last for a month or two. C
This is within the average dosage shared by two people.
D D
E (iii) The street value of 8.80 grammes of Ketamine was E
HK$4,190.00. D2’s VRI stated they were prepared to
F F
pay $9,300.00. If it is split between the defendants, it
G would be HK$2,095.00 or $4,650 for one to two G
months. There is no evidence to show D2 is unable to
H H
finance the drugs.
I I
(iv) Regarding the discrepancies between the street value
J J
and price D2 claimed it costs, it is reasonable and
K foreseeable for seller to overcharge the price for new K
user. Also, I noted the defence submission that the final
L L
price is agreed between the seller and D1, it might not
M be known to D2. M
N N
(v) The drugs were in a cigarette box, containing 27
O transparent re-sealable plastic bags, each plastic bag O
containing some white powder later confirmed to be
P P
ketamine. The packaging is consistent with trafficking
Q as well as buying in bulk. Q
R R
(vi) Defendants were stopped on the street, in D2’s own
S vehicle, at around 6:50 pm. There is no evidence S
defendants travelled around with the drugs after
T T
obtaining them.
U U
V V
-9-
A A
B B
C (vii) D2 stepped out of the Vehicle at the time of interception. C
However, it is insufficient to say that D2 was in fact
D D
attempted to flee beyond reasonable doubt.
E E
(viii) No other items, like scale, packaging tools, etc were
F F
found on the defendants and afterwards.
G G
(ix) D2 has a clear record. In the VRI, he said he is a new
H H
user. There is no evidence that D2 is a drug addict.
I I
23. Considering all the above, I am unable to disregard a
J J
possibility that what D2 said in the VRI may be true, that the drugs were
K possessed for self-consumption. As such, I am unable find that the only K
irresistible inference is that D2 possessed the drugs for the purpose of
L L
trafficking.
M M
24. Therefore, I find D2 not guilty of trafficking in a dangerous
N N
drug. Given his admission of possession and D2’s guilty plea, pursuant to
O section 42(1) and Schedule 3 of the Dangerous Drugs Ordinance, I convict O
D2 of the lesser offence of possession of a dangerous drug under section
P P
8(1)(a) and (2) of the same Ordinance.
Q Q
R R
S ( Colin Wong ) S
Deputy District Judge
T T
U U
V V
A A
B B
DCCC 411/2022
C [2023] HKDC 987 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 411 OF 2022
F F
G ----------------------------------- G
HKSAR
H H
v
I REHMAN SAFE-UR (D2) I
-----------------------------------
J J
K Before: Deputy District Judge Colin Wong K
Date: 14 July 2023
L L
Present: Mr Kamlesh Sadhwani, counsel on fiat, for HKSAR
M Mr William Allan, instructed by Mohnani & Associates, for M
the 2nd defendant
N N
Offence: [1] Trafficking in a dangerous drug (販運危險藥物)
O O
P
--------------------------------------- P
REASONS FOR VERDICT
Q Q
---------------------------------------
R R
1. D2 pleaded not guilty to one charge of trafficking in a
S S
dangerous drug1, namely 8.80 grammes of a solid containing 7.45 grammes
T T
1
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
U U
V V
-2-
A A
B B
of ketamine (jointly charged against D1 and D2). D1 also faced two other
C charges2. D1 pleaded guilty to Charge 1 and 2, and not guilty to charge 3. C
Charge 3 is left in court file. This trial only deals with D2.
D D
E 2. D2 is willing to plead guilty to a charge of simple possession, E
but prosecution refused. D2 said it is for his own consumption. Therefore,
F F
the only issue is whether D2 possessed the drugs for purpose of trafficking.
G G
Undisputed Facts
H H
I 3. The entire prosecution case is admitted by the defence. The I
prosecution called no witness.
J J
K 4. At about 1850 hours on 30 December 2021, PC16177 (PW1) K
and PC16748 (PW2), whilst on duty, observed a black vehicle bearing
L L
number plate XC7742 (“Vehicle”) parked in the lay-by area outside Chung
M Bo House, Tin Chung Court, Tin Shui Wai near lamppost AJ0079B. The M
engine of the Vehicle was switched on and D2 was sitting in the driver’s
N N
seat. D1 was sitting in the front passenger seat.
O O
5. PW1 and PW2 approached the Vehicle. PC10496 (PW3)
P P
arrived thereafter. D1 appeared to be nervous and locked the Vehicle.
Q Subsequently, when PW1 managed to open the nearside front door of the Q
Vehicle, D1 immediately ran out of the Vehicle. PW1 shouted, “Police,
R R
S S
2
Charge 2: Resisting police officers in the execution of their duties, contrary to section 63 of the Police
Force Ordinance, Cap 232. and Charge 3: Doing an act or a series of acts tending and intended to
T T
pervert the course of public justice, contrary to Common Law and punishable under section 101I(5)
of the Criminal Procedure Ordinance, Cap 221.
U U
V V
-3-
A A
B B
don’t move”. D1 put up a fierce struggle whilst PW1 and PW2 controlled
C D1's arms. C
D D
6. During the course of the struggle, PW1 spotted that a red and
E white Marlboro cigarette box (“Cigarette Box”) in D1’s left hand and a E
black mobile phone (“Black Mobile Phone”) in D1's right hand fell onto
F F
the ground. D1 then threw the Cigarette Box and the Mobile Phone into a
G drain hole whilst he was struggling on the ground. G
H H
7. At about 1905 hours, PW1 opened the drain cover and seized
I the Cigarette Box and the Black Mobile Phone from the drain. There were I
no other cigarette boxes in the drain.
J J
K 8. PW1 opened the Cigarette Box in front of D1 and found 27 K
transparent re-sealable plastic bags therein, each plastic bag containing
L L
some white powder suspected to be ketamine.
M M
9. PW1 also searched D1 and seized from his bag HK$6,273 in
N N
cash.
O O
10. At the time the 27 bags were seized, D2’s right foot stepped
P P
out of the Vehicle. PW2 then subdued D2 and seized from him HK$2,055
Q in cash and a mobile phone. During inquiry, D2 stated in English that he Q
had known D1 for around two years and they were friends.
R R
S 11. A video recorded cautioned interview was taken by S
DPC18958 of D2. Under cautioned, D2 stated:-
T T
U U
V V
-4-
A A
B B
(i) D2 was the registered owner of the Vehicle. He was
C the driver at the material time. C
D D
(ii) The dangerous drugs in the Cigarette Box was “K” (“K
E 仔”). D2 and D1 intended to purchase 26 packets of it E
for $9,300. The 26 packets were to be split equally
F F
between D1 and D2. The seller gave them one packet
G for free. G
H H
(iii) The seller threw the Cigarette Box containing the
I dangerous drug and a white mobile phone into the I
Vehicle and walked away slowly without receiving
J J
payment.
K K
(iv) D2 did not remember correctly if he touched the
L L
dangerous drugs.
M M
(v) D2 was a new user of the dangerous drug. D2 and D1
N N
consumed around one packet every 2 to 3 days. The
O
dangerous drug would satisfy D2’s consumption for a O
P
month. P
Q Q
(vi) They were not trafficking dangerous drugs.
R R
12. The Government Chemist’s Certificate certified that the 27
S S
Bags were 27 plastic bags containing a total of 8.80 grammes of a solid
T containing 7.45 grammes of Ketamine. The street value of 8.80 grammes T
of Ketamine was HK$4,190 in December 2021.
U U
V V
-5-
A A
B B
C 13. D2 was the registered owner of the vehicle. He has a clear C
record.
D D
E Defence case E
F F
14. D2 did not give evidence or call any witness. D2 relied on his
G explanation in the video recorded interview, that the drugs were for his and G
D1’s self-consumption.
H H
I Issues I
J J
15. Defence did not dispute that D2 was in possession of the drugs
K and he knew they were dangerous drugs. The only issue is whether D2 K
possessed the same for trafficking or self-consumption.
L L
M Legal Principles M
N N
16. The defendant is charged with unlawful trafficking in a
O dangerous drug, namely ketamine. Trafficking in a drug means supplying O
it to others, or selling it, or exporting it or possessing it for such a purpose.
P P
The defence now says it is for D1 and D2’s self-consumption.
Q Q
17. The burden of proof is on the prosecution. It is for the
R R
prosecution to prove each element of the offence against D2 beyond
S reasonable doubt. D2 bears no burden of proof. The fact that D1 has S
pleaded guilty will have no bearing on my decision in the case against D2.
T T
U U
V V
-6-
A A
B B
The prosecution has to prove its case against D2. D1’s admission of guilt
C and conviction does not take the case against D2 any further. C
D D
18. In SJ v Hii Siew Cheng3, the expert Professor K Lee opined
E that for ketamine, recreational doses ranges from 10 to 250 mg when taken E
nasally. The Court of Appeal agreed this court can rely on the said expert
F F
opinion evidence in assessing the normal dosage for usage of ketamine4.
G G
Assessment of evidence
H H
I 19. Defence relied on the explanation in his VRI. The VRI of the I
defendant comprised both admissions and self-serving assertions. I must
J J
consider the whole statement, both the incriminating parts and the excuses
K or explanations given by the defendant in deciding where the truth lies. In K
other words, I give myself directions in accordance with the principles laid
L L
down in R v Sharp (1988) 1 WLR 7.
M M
20. I accept D2’s admission that he had knowledge of the drugs,
N N
and jointly possessed them with D1. This admission is consistent with the
O circumstantial evidence. O
P P
21. Regarding his explanation in VRI, I have the following
Q observations:- Q
R R
(a) D2 stated they intend to purchase the drugs for $9,300.
S The seller did not take any money from them, rather he S
T 3 T
[2009] 1 HKLRD 1
4
See HKSAR v Chau Leong Wa (unrep CACC 51/2012) and HKSAR v Lai Kwai Po (unrep CACC
313/2014)
U U
V V
-7-
A A
B B
threw the drugs at D1 and left the scene. However,
C from the admitted facts, there were a total of $8,328.00 C
on them. The amount of money on both defendants
D D
would not be sufficient to purchase the drugs.
E E
(b) D2 stated that the seller, shortly before or at the same
F F
time of the police arriving, threw the drugs and phone
G to D1 and walked away. It might be understandable G
why he would throw the drugs away. However, I fail
H H
to see why he would also throw away the mobile phone.
I I
(c) I do note that none of the police officer gave evidence.
J J
There is no evidence on whether anyone was near the
K black Vehicle at the time or shortly before the police K
approached the defendants.
L L
M 22. However, even if D2’s explanation in VRI is suspicious, the M
burden is on the prosecution to prove beyond reasonable doubt that D2
N N
possessed the drugs for the purpose of trafficking. In determining whether
O D2 possessed the drugs for self-consumption or for purpose of trafficking, O
I have the following considerations:-
P P
Q (i) D2 has a clear record. Q
R R
(ii) There are a total of 8.80 grammes of a solid containing
S 7.45 grammes of Ketamine. Relying on the daily S
dosage of 10-250 milligrammes, the drugs seized
T T
contained 29-750 doses. In VRI, D2 said the
U U
V V
-8-
A A
B B
defendants would consume each packet in 2-3 days,
C and that all the drugs could last for a month or two. C
This is within the average dosage shared by two people.
D D
E (iii) The street value of 8.80 grammes of Ketamine was E
HK$4,190.00. D2’s VRI stated they were prepared to
F F
pay $9,300.00. If it is split between the defendants, it
G would be HK$2,095.00 or $4,650 for one to two G
months. There is no evidence to show D2 is unable to
H H
finance the drugs.
I I
(iv) Regarding the discrepancies between the street value
J J
and price D2 claimed it costs, it is reasonable and
K foreseeable for seller to overcharge the price for new K
user. Also, I noted the defence submission that the final
L L
price is agreed between the seller and D1, it might not
M be known to D2. M
N N
(v) The drugs were in a cigarette box, containing 27
O transparent re-sealable plastic bags, each plastic bag O
containing some white powder later confirmed to be
P P
ketamine. The packaging is consistent with trafficking
Q as well as buying in bulk. Q
R R
(vi) Defendants were stopped on the street, in D2’s own
S vehicle, at around 6:50 pm. There is no evidence S
defendants travelled around with the drugs after
T T
obtaining them.
U U
V V
-9-
A A
B B
C (vii) D2 stepped out of the Vehicle at the time of interception. C
However, it is insufficient to say that D2 was in fact
D D
attempted to flee beyond reasonable doubt.
E E
(viii) No other items, like scale, packaging tools, etc were
F F
found on the defendants and afterwards.
G G
(ix) D2 has a clear record. In the VRI, he said he is a new
H H
user. There is no evidence that D2 is a drug addict.
I I
23. Considering all the above, I am unable to disregard a
J J
possibility that what D2 said in the VRI may be true, that the drugs were
K possessed for self-consumption. As such, I am unable find that the only K
irresistible inference is that D2 possessed the drugs for the purpose of
L L
trafficking.
M M
24. Therefore, I find D2 not guilty of trafficking in a dangerous
N N
drug. Given his admission of possession and D2’s guilty plea, pursuant to
O section 42(1) and Schedule 3 of the Dangerous Drugs Ordinance, I convict O
D2 of the lesser offence of possession of a dangerous drug under section
P P
8(1)(a) and (2) of the same Ordinance.
Q Q
R R
S ( Colin Wong ) S
Deputy District Judge
T T
U U
V V