R. v. Hoang Date:, 2016 BCPC 422

Citation: R. v. Hoang Date: 20161103 2016 BCPC 422 File No: 211537-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. DONALD HOANG ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Federal Crown: S. Price Counsel for the Defendant: M. Mines Place of Hearing: Surrey , B.C. Date of Hearing: October 3, 2016 Date of Judgment: November 3, 2016

[ 1 ] THE COURT : These are oral reasons with respect to a decision after completing a trial on Information 211537-3-C in this matter of R. v. Hoang . He has been charged with six counts on Information 211537-3-C and the Crown has proceeded by indictment and the matter of the trial has been completed. [ 2 ] Five of the six counts are possession of a substance for the purpose of trafficking. The sixth count alleges that he did carry or have, in his possession, a weapon, to wit, a knife, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code . The Crown Case [ 3 ] A short

summary of the Crown's case may be useful. In essence, the Crown alleges that the police received information from a mother whose daughter had received a text message. It was the police officer's view that the text message was basically an advertisement from a drug dealer. The police set up a buy and two people, one being the accused, were arrested at the scene. They were arrested outside of the vehicle that it is alleged that they arrived in. When they searched the vehicle, Fentanyl, cocaine, Ecstasy, Oxycodone, and marihuana were all found in the vehicle. [ 4 ] One of the witnesses for the Crown was Cst.

Garcia. Cst. Garcia indicated that he or she had four-and-a-half years' experience with the Delta Police and was on general duty at the time on October 2nd, 2015. The constable responded to a suspicious circumstance where a mother had called and said that her daughter had received a text message from 604-649-8270 on Thursday at 2:04. The message was, "Hey guys, just picked up some new soft ... better stuff at 50 a half ..." And it was signed "Tony". The officer took a photograph or a screenshot and gathered the information, and briefed Acting Sgt.

Boyce later on at approximately 21:45 hours. [ 5 ] Ultimately there was a location chosen to do a fake buy and the location was the Royal Heights Church, located on 96th Avenue in North Delta. The officer described this area as largely a residential area. [ 6 ] All the police officers were in uniform with a mix of marked and unmarked cars at the scene where the buy was to take place. When the officer was asked, "What did you do and what did you see while you were there?" The officer responded, "The drug deal was going to happen.

We observed the dark-coloured Honda CRV drive in and observed two Asian males exit the vehicle. They were crossing in front of us when the call for a take-down took place. Both subjects were arrested at a code 5, that is, pistols drawn.” Emergency equipment was activated, Mr. Hoang was on foot, and this officer identified Mr. Hoang. [ 7 ] There was a search incidental to arrest. There was a knife located a couple of feet away from the accused, and he was arrested for possession for the purpose of trafficking. There were three $20 bills found in his pocket.

With respect to other exhibits or other items that were found, it was determined by the officer that there would be more searches done while in cells. [ 8 ] In cross-examination, she was asked questions about the knife and the question was put to her, "You say the blade was open?" And the officer indicated that she had prepared some notes but did not see the knife in his hand "when my pistol was drawn." From her memory it was open, but there was no photograph to confirm this.

The officer indicated that she was not sure when it came open and ultimately indicated it was one or one-and-a-half feet away from the accused when he was arrested. [ 9 ] She confirmed that she saw two Asian males, Mr. Hoang and Mr. Pham, the co-accused on the indictment. She pointed out to the court in her testimony that there was a noticeable gap, by her estimation approximately ten feet, between the two as they walked down the street. [ 10 ] Sgt. Jason Boyce was the next witness for the Crown. He indicated to the court he had 13 years' experience, started with the RCMP and then joined the Delta Police in 2013.

He provided confirmation that Cst. Garcia came to him and mentioned a file that she had been dispatched to, and he had received some of the information with respect to the text messages. His testimony was that after reading the text, it appeared to him that it was a standard dial-a-dope business, sending out an invitation that they were open for business.

So the sergeant then determined that he was going to make contact, and told the court that he used a covert phone number and sent a text asking for what they offered. [ 11 ] There were some questions around his notes and ultimate times of the text messages that went to and from. At first the sergeant requested to buy an eight-ball and it appears that he told the potential seller that he was in Delta. Further communication took place and the undercover officer was told that it is too far to go just for that amount and it was posed that they would come if he purchased two eight-balls.

Ultimately that was the agreement, for a negotiated price from 600 to 500 to ultimately $575 for this transaction. [ 12 ] The officer then talked about a series of those exchanges and while at the scene testified that he watched one male exit the passenger's side of the vehicle and, "Watched him take out a black folding knife that was unfolded and in his right hand." He described the area as being fully illuminated. [ 13 ] On cross-examination he confirmed that the individual he was communicating with had identified himself in the text message as Tony. [ 14 ] There was a fair amount of cross-examination and Mr.

Mines pointed out in his closing submissions that the conversation that took place, or the text message communications that took place, used certain pronouns such as "I" versus "we" or "us." "I will be there," versus, "We will be there," for example. [ 15 ] Once more on cross-examination, the sergeant confirmed that he saw the knife in his hand and ultimately described a situation at the scene when the two males were walking, that he could clearly see the individuals approaching him.

He said he saw the knife in his hand, and he said, “I thought I was going to be robbed." [ 16 ] He pointed out that he was holding the knife in his right hand and when asked to describe how the individual was holding the

knife, he said, "In his right hand, down by his side, not waving in a threatening manner. The blade was visible, it was open." At the time the officer indicated he did not know that it was a folding knife. [ 17 ] Cst. Michael Clark also testified, has significant experience with the police, 13 years in total, 11 years with the VPD and the last couple of years with the Delta Police. When asked questions by Mr.

Price, Crown counsel, he confirmed with respect to the individual he was dealing with that he was approximately 20 feet from the car to the male and he saw one person holding in their right hand a black object, who ultimately at the takedown exclaimed, "I have a knife," and at that point the officer indicated he recognized the object as a knife. [ 18 ] By all accounts it appears the individual holding the knife was cooperative with the police. [ 19 ] Cst.

Mandeep Nijjer has four years' experience, and set up some containment at the scene, and ultimately assisted with the taking of photographs and dealt with some of the drug exhibits. [ 20 ] I do not think it is very helpful for me to go through the details of the drug exhibits, other than to say that it appears that in the centre console were some narcotics, and there was some marihuana also found in the vehicle but not in plain sight, and that it appears on the evidence that the quantity of narcotics, as well as the way that they are packaged is consistent with a dial-a-dope operation.

Where Were the Drugs Found ? [ 21 ] In cross-examination, that officer said that they cannot recall -- actually, really what they said is they "cannot confirm whether they moved some of the items." There was also an item described as a score sheet found in the back passenger's rear footwell, and it was unclear whether or not these items were located there or whether, for example, the items that were located in the dash console were extracted from there and placed in different places for the purpose of taking the pictures. [ 22 ] In any event, that officer had no interaction with the accused Mr.

Hoang. [ 23 ] Ultimately, the officer just could not recall whether or not certain items were on the seat or on the floor or in the console. [ 24 ] Cst. Alan West also provided testimony. That individual is retired but was working approximately 16 years and described the scene of the takedown where Mr. Pham was ordered to show his hands, at which point he did. He indicated he had no dealing with the other person. I take it from "the other person" he is referring to the accused Mr. Hoang.

He pointed out that in the trunk, in the wheel well, there was a glass container with marihuana and seven packages, four separate baggies containing 23.25 grams, as well as some other items. Were the Drugs Possessed for the Purpose of Trafficking ? [ 25 ] An expert was tendered by the Crown, Cst. Kenneth Kirk. That individual was considered and I think accepted by defence counsel to be an expert in regards to possession, trafficking, packaging, pricing, and methods of trafficking involving Fentanyl, heroin, cocaine and MDMA. Mr. Price for the Crown asked Cst. Kirk about Fentanyl.

It appears by the expert's testimony that within the last 12 months a synthetic option analgesic, some 80 to 100 times more potent than morphine, has been a problem in the Lower Mainland. The strength of it allows for easier importation and a larger profit margin. The expert told us, in 2016, there was a public health crisis to the point that approximately 600 overdose deaths had taken place as a result of this substance. [ 26 ] There was also evidence provided with respect to eight-balls, the weights, and how much they might be sold for. [ 27 ] I asked the expert one question in the proceedings.

It appears by the evidence that the vehicle stopped, two people got out and were walking towards a point which was anticipated by the officers to be of sale, a point of sale. But when they were arrested, they did not have any drugs on them and I asked the expert whether this was usual or unusual, to walk out. I was wondering whether or not it was the case that somebody might walk away from a vehicle and then walk back to the vehicle to get the product, only to walk back to another area to finish the sale of the product. I was told by the expert that it was unusual.

There was some explanation as to why that might take place. Possibly, if they felt nervous about where they were, they might feel that they were in danger of being robbed and did not want to have the drugs on them. That is somewhat consistent with the idea that the driver may not have known this individual that was communicating with him. The Law Presumption of Innocence [ 28 ] The most fundamental rule is that the burden of proving the guilt of the accused is upon the prosecution.

Ultimately, the law demands that before an accused can be convicted of an offence the trier of fact must be satisfied beyond a reasonable doubt of the existence of all the essential elements of the offence. [ 29 ] Here, the essential elements are fairly straightforward and I will pose them in terms of questions. Has the accused been identified as the one that was in possession of the drugs that were found in the car? As well, if he was in possession, then was that possession for the purpose of trafficking? With respect to the knife, was he in possession of the knife?

If so, was that knife a weapon and if the possession existed, was the purpose of that possession for a purpose dangerous to the public peace? Onus [ 30 ] The Crown has the primary or legal burden of proof throughout the trial and must prove all the elements of the actus rea and mens rea . The accused is presumed innocent until the Crown proves guilt to the standard beyond a reasonable doubt, and this standard of proof applies to the evidence as a whole but not generally to individual facts.

[31] In this case, Mr. Hoang testified. I am mindful that in considering credibility issues, W.(D.) is an appropriate and necessarycase that I must not only give lip service to, but I must also ensure that I apply correctly. [32] I rely on the passage of W.(D.) at paragraph 25 as found in SCC, that sets out the principles the way that bothcounsel have. For example, first if you believe the evidence of the accused obviously you must acquit. [33] R. v. J.H.S., a 2008 Supreme Court of Canada case, while it was really an

interpretation of W.(D.) reminds me of some basicprinciples regarding the evidence in all trials and in this trial in particular. I may accept some of a witness' testimony while disbelievingother parts and I must consider all of the evidence in deciding whether there is any doubt. Any reasonable doubt must be resolved infavour of the accused. If I believe certain aspects of a person's testimony, I should ask myself why I believe them on these points. Equally, if I for some reason do not believe them, I should ask myself why, as well. [34] R. v.

Walker is a 2008 Supreme Court of Canada case that stands for the proposition specifically that there can be a reasonabledoubt based on the absence of evidence or a simple failure of the evidence to persuade the judge beyond a reasonable doubt. [35] With respect to the charges, s. 5(2) of the Controlled Drugs and Substances Act (CDSA) forbids possession of a substance forthe purpose of trafficking. The law on possession is set out at s. 4(3) of the Criminal Code which defines possession, and the CDSArelies on the definition of possession as prescribed by the Criminal Code of Canada found at s. 4(3).

I will not repeat for these oralreasons 4(3)(a)(i)(2) and (

b) but I do rely on that statutory definition of what possession is. Purpose of Trafficking [36] Evidence has been led by the Crown that assists me in finding that if possession existed, that the Crown has established beyonda reasonable doubt that the purpose of the possession was actually to traffic. Really, with respect to the narcotics I believe the main issueis whether Mr. Hoang was in possession constructively or otherwise of these substances. Circumstantial Evidence [37] In this case the narcotics were not found on the person of Mr. Hoang. They were located in the vehicle that the Crown allegesMr.

Hoang was a passenger. The B.C. Court of Appeal in R. v. Ngo, a 2009 decision, at paragraphs 53 to 55 of the decision provide mewith guidance as to how I should consider circumstantial evidence. At paragraph 53: The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both. Wherethe case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is theonly reasonable inference to be drawn from the facts: R. v. Vu (T.T.), 2004 BCCA 381 , at para. 31.

Continuing at paragraph 55: As to competing inferences from circumstantial evidence that might be open to a trial judge, the observation of McEachern C.J.B.C. inR. v. To ... [seem appropriate]: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. ... [38] R. v. Tsang 2014 BCSC 1055 is a helpful authority.

In that case, the accused was stopped at a roadblock where a police officernoted that he was not displaying his New Driver sign and directed him to pull over. The officer checked the accused and found that hehad breached his bail conditions by driving a car. The officer searched the accused, a black canvas bag on the driver's seat, and theglove compartment incident to arrest. He found $1,665 in the accused's right short pocket and a further $1,325 in a black bag.

In theglove compartment he found a mini M&M's candy tube, inside of which were 44 small substances which appeared to be drugs. [39] In Tsang, as in our case, there is no evidence of the accused accessing the glove compartment. There is no evidence in our casethat Mr. Hoang accessed the backseat where the score sheets were found, the console or trunk area where other narcotics were found. There is, however, clear evidence that Mr. Hoang was riding in the vehicle. By his own evidence he was a passenger. This point iscorroborated by the police officer's testimony, some of which who identify Mr.

Hoang as exiting the vehicle on the passenger side. [40] In Tsang, at paragraph 43 the court cited R. v. McIntosh stating: Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of those objects... where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally requiredmore than simply evidence of the proximity of the accused and the item ... [41] Counsel for the defence submits that R. v. Christopher Lee Hardy, a February 21, 2013 decision of the Honourable Judge Hicksfrom the B.C.

Provincial Court, is appropriate to consider. In that case, the accused was present in a vehicle. His actions went beyondmere presence when he handled some of the funds and a piece of paper associated with the drug deal that was taking place. Ultimately,even though there was evidence to suggest that the accused had heard the words "40 for hard" and some money exchanged hands, JudgeHicks still acquitted the accused. [42] It is argued by Mr. Mines that our circumstances fall short of this type of knowledge. Specifically, he argues that there is noindication that Mr. Hoang had anything to do with the narcotics.

I believe he takes it even a little further and submits that if I were tobelieve Mr. Hoang, he had no idea his friend had anything to do with drugs. [43] Mr. Price for the Crown argues that Mr. Hardy was present in the vehicle for a matter of seconds and extracted himself fromthe situation. In contrast to that case, Mr. Price argues that Mr. Hoang was present in the vehicle, overhearing conversations, potentially

even being involved with some of the texting. Either way, it is argued that Mr. Hoang certainly must have known that they were travelling to a place to do a drug deal. Applying the Law to the Circumstances of This Case Possession and being a Passenger [ 44 ] In this case there is evidence that Mr. Hoang was a passenger in the vehicle. He is described by a number of witnesses as being one of two males that exited the vehicle. He has been identified as the one who was carrying an open folding knife. I accept the testimony of the officers that he was walking a number of feet behind Mr.

Pham, his co-accused. [ 45 ] There is nothing in the evidence that suggests that he was driving the vehicle. The vehicle it appears was not registered in his name. No drugs were located on his person at the time of the arrest. It also appears to be the case that his co-accused was not found in immediate possession of any drugs on his person at the time of the arrest. [ 46 ] So was he in possession of the drugs? He was in the vehicle.

However, there was some evidence elicited from an officer that the drugs that were found in the vehicle may have in fact been in some enclosed area, not necessarily visible to a passenger. In other words, it was unclear where the drugs were found. Whether they were hidden and then taken out and then photographed, or whether they were visible to a passenger or driver of the vehicle is unknown. [ 47 ] It also seems to make a certain amount of sense that if Mr. Hoang was present in the vehicle when Mr.

Pham was talking on the phone, he may have overheard things that led him to believe that a drug deal was being organized. However, I have no evidence before me that allows me to find this conclusion to be accurate. I only have a suspicion. [ 48 ] To put it another way, for me to somehow find that Mr. Hoang, as a passenger, must have known that a drug deal was taking place would be pure speculation. [ 49 ] So with respect to the possession of drugs, the element of which included in the five ‘possession for the purpose’ charges, I have some doubt.

There is nothing to prove that he was in control of the drugs; there is nothing in the evidence that I can find with any degree of certainty that he knew the drugs were in the car. Evidence of Another Purpose [ 50 ] If he was not there to deal drugs, was he there for another purpose? Let me be clear. Prior to hearing from Mr. Hoang, my common sense led me to believe that he was there to support his friend on a drug deal. More than likely, it was open for me to find that he was Mr. Pham's protection. Certainly if Mr.

Hoang was operating in unison with the same purpose of trafficking, he would be a party to the offence. His acts of being "protection" would be acts in "aid" of Mr. Pham. [ 51 ] But common sense is not always right, and that is why we require the Crown to prove each element of the offence to the point of proving a case beyond a reasonable doubt. In any event, there is also the evidence of Mr. Hoang that I must consider. [ 52 ] Before I consider Mr. Hoang's evidence, what are the other possibilities here? Sgt. Boyce has a fair amount of experience in doing drug buys.

I believe his testimony was that he had done over 300 drug buys. He told the court that he communicated that he wanted one eight-ball. However, the receiver of this request said that it was too far to come for just one, and ultimately a larger amount was ordered. In fact, two eight-balls were ordered instead of one. The price agreed to was $575. [ 53 ] The evidence of one officer was that when he saw the knife in the hands of one of the people who exited the vehicle, a takedown was ordered. In the end, no drug deal took place. Sgt.

Boyce told the court once more, "I saw the knife in his hand, I thought I was going to be robbed." [ 54 ] The Crown asked their expert in re-direct the question, "If no drugs were found, then what other scenario might be a possibility?" The answer by the expert was they might have been planning something else, such as a robbery, to take the $500. [ 55 ] In an interesting twist of allegations, I note that Mr. Hoang was not charged with robbery. I believe it would not be open for me to find him guilty of a robbery. However, when I consider the possibility, I find that it is equally likely that Mr.

Hoang was there for a robbery. One could argue that since they did not have any drugs on their person at the time of the arrest, the more likely scenario to take place was that it would be a robbery versus a drug transaction. [ 56 ] I find it is important to caution myself on the evidence of the expert. Specifically, he was found to be an expert with respect to possession, trafficking, packaging, pricing, and methods of trafficking involving Fentanyl, heroin, cocaine and MDMA. That does not mean that he has all the answers to what may have been taking place on this particular day.

For example, just because he suggested an alternative possibility of the encounter was robbery, that does not make it so. [ 57 ] While it is open for the expert to speculate on this topic, I believe it would be dangerous for me to find that in fact Mr. Hoang was there to rob someone. Once more, I believe common sense suggests this is a possibility. Possession of the Knife for Protection [ 58 ] I now wish to consider a few points of evidence of Mr. Hoang. He told the court that he is 20 years old and was going out to a casino with his childhood friend.

He testified that he had $60 in his pocket but had forgotten his wallet. Upon getting into his friend's car, that is Mr. Pham's car, he was told that he could have a loan for the casino but that they would have to stop and pick up some money. [ 59 ] Mr. Hoang thought his friend was going to pick up some money from a loan shark. They travelled to the area which was

described as being near a church. Unknown to Mr. Hoang, the police were in the area. They were hiding out of sight. Mr. Hoang described the place as a "shady area." When they stopped in the vehicle he testified that his friend got out of the car and "signalled for me to get out of the vehicle." [ 60 ] He testified that the place was dark, it was a "shady place" to meet and that this information, coupled with the fact that his friend asked him to get out of the car, made him feel threatened. He described it as a gut instinct.

He then testified that he got out of the vehicle and took the knife out and opened the blade. [ 61 ] Ultimately, he testified that he was not involved in the drug business; more specifically, he denied being a drug user. He also said he was not there to rob anyone and that the knife was not on his person for a purpose dangerous to the public peace. He said he thinks the knife was just in his pants from working with his dad cutting drywall and stuff. [ 62 ] I was left with the impression that the knife was taken out of his pocket in case he needed protection for himself or for his friend.

This protection, according to Mr. Hoang, was not related to a drug deal as by his testimony. By his testimony, he did not think he was even there for that purpose. [ 63 ] I wish to deal with the knife charge. With respect, I find the 1999 B.C. Supreme Court case, R. v. D.M.M ., of Justice Smith very helpful. Justice Smith talks about the transformation of a knife to a weapon. After reviewing the appropriate sections of the Criminal Code and authorities, she writes fairly clearly on this point.

Simply put, found at paragraph 21 of that decision, "It was common ground that the knife in question was not designed to be a weapon." Referring to R. v.

Blondell , a 1972 case from the Court of Appeal, Justice Smith relies on the words of Justice McFarlane where guidance was provided as to the use of a knife, wherein Justice McFarlane states: Having regard to the time and place and to the manner in which the knife was being carried, the tribunal of fact must ask itself the question "With what intention or for what purpose would the appellant be carrying the knife?" It seems to me the reasonable and natural conclusion must be that he was carrying it with the intention of using it as a weapon if he thought the occasion should arise for doing so and that he anticipated such an occasion. [ 64 ] In Blondell the knife in question was a butcher knife.

I recognize that there's a difference between charges dealing with concealment of a weapon versus possession of a weapon for a purpose dangerous to the public peace. I mention that because R. v. D.M.M. is actually largely dealing with unrelated issues, including an issue of concealment. [ 65 ] Mr. Mines refers to the older case of R. v. Sulland . It is from 1982. In that case the accused had a knife that had been used to cut a hose and was considered to be in the accused's possession for other "useful purposes." At the time of the arrest he told the police that he had it for self-protection or to use if attacked.

I think the claim here is similar. The testimony of Mr. Hoang is that he felt threatened by the shady neighbourhood and the other reasons that I have mentioned. [ 66 ] I recognize that there are competing authorities on this issue. However, I agree with the trial judge in R. v. Sulland who found that: It is not proper in our present society for persons to arm themselves when they walk the streets, excusing themselves with the statement that it is for self-protection. [ 67 ] I am also aware that his conviction was overturned.

However, at paragraph 13 of that decision on appeal, the court in considering whether the conviction should stand wrote: The appellant was walking alone and at night in an area in which trouble could be anticipated. There had been a fight involving a large number of persons only half an hour earlier. He carried the knife closed, in a case, and unconcealed. [ 68 ] Mr. Hoang was not walking alone. There was no reason to anticipate trouble. For example, there was nobody else visible on the streets. The area had not had any recent safety issues that Mr. Hoang knew about. He simply felt it was a bit shady.

He was not carrying a closed knife or one just in his pocket. To the contrary, he was carrying a knife, brought it out, opened it up and carried it in his hand. It was not in a case. Conclusion [ 69 ] In order to convict Mr. Hoang of being in possession of a weapon, to wit a knife, for the purpose dangerous to the public peace, I do not believe it is necessary for me to find as a matter of fact that Mr. Hoang was in possession of the knife for the purpose of robbing the potential drug buyer. Nor do I find it necessary for me to find as a matter of fact that he was the protection of Mr. Pham.

Nor do I believe it is necessary for me to determine that the knife was in his possession for protection of himself. [ 70 ] No matter what the reason, Mr. Hoang in the early morning hours of October 3rd, 2016 was walking down the street holding a folding knife in the open position. It was not in his pocket in case of an attack.

If that were the case, then I believe there would be very little danger to the public as a result of its possession. [ 71 ] I conclude that its possession is only consistent with a purpose dangerous to the public peace or for the purpose of committing an offence. [ 72 ] As a result, I find there is some doubt as to whether you were in possession of the narcotics found in the car and I acquit you of Counts 1 through 5 of the indictable offences on Information 211537. [ 73 ] With respect to Count 6 on that Information, I find that the Crown has proven each element of the charge against you beyond a reasonable doubt and I find you guilty of the offence of having in your possession a weapon, to wit a knife, for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code .

(REASONS FOR JUDGMENT CONCLUDED)