R. v. Ngo, 2011 ONCJ 257

Citation: R. v. Ngo , 2011 ONCJ 257 ONTARIO COURT OF JUSTICE OLD CITY HALL, TORONTO REGION BETWEEN: HER MAJESTY THE QUEEN — AND — TUAN NGO Before Justice S.R. Shamai Ruling released May 12, 2011 Mr. Enrico Visca ….……..…………………………… for the Director of Public Prosecutions Mr. David Heath ........................................................................ for the accused Tuan Ngo SHAMAI J: INTRODUCTION [ 1 ] Mr.

Ngo was charged along with Mr Pham with unlawfully possessing marijuana for the purpose of trafficking on March 18, 2009, and on that same date possessing cash in an amount exceeding five thousand dollars, both in the City of Toronto. [ 2 ] Crown proceeded by indictment and the accused elected trial before this Court. At the conclusion of the Crown’s case, an application for directed verdict was brought on behalf of Mr. Pham. It was successful. Most of the Crown’s case against both accused was tendered by way of Agreed Statement of Fact, now an Exhibit in these proceedings. Upon Mr.

Pham’s successful application, further evidence became available. A fingerprint report was placed in evidence by the defence. Crown called Mr. Pham in reply. These are my reasons on the trial issues argued on behalf of Mr.Ngo. [ 3 ] On March 18, 2009 a search warrant was executed at unit 109, 250 Culford Road in Toronto. No issue arises with respect to the propriety of the warrant: an undercover officer had been furnished with $1.09 million dollars, to make a play of involvement in the investigation of the apparent money laundering activity of one Mr. Dinh.

A search warrant executed at another Toronto address suggested his involvement as well with the laundering of a further $660,000. With surveillance of Dinh, the investigation led to the Culford apartment, a two bedroom. When the search was executed, there were five individuals within: Mr. Pham, Mr. Ngo, Mr. Dinh, Phuc Duc Nguyen, and Ms. Pham. Ms. Pham was in a late stage of pregnancy. Her brother was the accused Pham. The search of the apartment yielded four kilograms of marijuana in what appeared to be Ms. Pham’s bedroom. The marijuana was packaged in 19 separate baggies in a cardboard box in that room. Mr.

Pham’s fingerprint was found on one of the baggies. That evidence was not led on his trial but has been agreed as a fact in the continuing trial of Ngo, supported by a fingerprint report. In that same room a bag containing $32,000 cash was found in a paper bag in the closet where the marijuana was found. The bedroom, where Ms. Pham was upon police entering, also contained a pair of blue jeans with a wallet containing a current driver’s licence for Mr. Ngo. The licence showed the Culford address, and stated Mr. Ngo’s birthdate to be January 29, 1980. The jeans were on the floor.

A British Columbia health card for Mr. Ngo was on the dresser/tv stand in that room, and an B.C. identification card in his name, with a Richmond B.C. address was located in that room, within Ms. Pham’s passport. Various other documents were found in the room, including a Driver’s Licence in the name of Han Tung Ngo – DOB July 1, 1977, and mortgage documents relating Ms. Pham to a property in Quebec, and a tax statement in her

name in relation to a property in Richmond B.C. [ 4 ] A variety of documents were seized in the living room of the apartment, including a Provincial Offences Ticket to Ngo at the Culford address, dated November 4 2008. There was a Rogers Bill dated November 18, 12008, and a Bell Express Vu bill dated July 22, 2008 to him at an address in Mascouche P.Q. An undated Laurentian Bank Visa statement with Ms. Pham’s name showed the Mascouche address as well.

A relatively small quantity of marijuana, 11.3 grams, was in a baggie in the freezer in the kitchen. [ 5 ] The second bedroom contained a mattress and frame, suitcases and piles of loose clothing strewn about. It is fair to excerpt the agreed statement of fact and note that while there were several pairs of name brand jeans and jackets in the room, containing substantial quantities of cash ($500, $600, $800, $910, $2000, $4000); nothing particularly connected Mr. Ngo to any of those items. In fact, one of the suitcases had a “Westjet” tag on it, in Mr. Nguyen’s name. [ 6 ] In his testimony, Mr.

Pham said that he had come to help his sister in this late stage of her pregnancy. Despite this, he was plainly unaware of many of the significant circumstances of his sister’s life. About the others at the apartment, Mr. Pham said that he had met Mr. Nguyen just that evening. He knew Mr. Dinh had stayed overnight though he was not sure which bedroom he stayed in. He knew that Dinh and his sister had known each other a long time. He knew also that his sister had been in an “on again off again” relationship with Mr. Ngo and that they lived together for some time in Quebec.

He said he learned after the baby was born that Mr. Ngo was the father of Ms. Pham’s baby. He believed that the two had recently broken up, a few weeks previous. [ 7 ] That night, he said that he had picked up Mr. Nguyen at the airport, they had dinner and returned to his sister’s apartment. They, along with Mr. Dinh, Mr. Ngo and Ms. Pham stayed there that night. Pham says that he and Ngo slept on the couch in the living room, and that Nguyen, Dinh and his sister had the bedrooms.

He is not sure whether any of the men slept in his sister’s room, he was only sure that his sister was in her room. [ 8 ] Asked how it came to pass that his fingerprint was found on a baggie of marijuana, which was contained in a box in the closet, Mr. Pham said he didn’t know, that possibly he had fumbled into the box while reaching for something in the closet. [ 9 ] In its totality, the evidence showed that Mr. Pham had been in the apartment for two nights prior to the day of the search, and that Mr. Dinh had been there five days prior. Various clothing items and personal papers were found around the apartment.

Mr. Pham said that he was at his sister’s not only to help her but also to find a lawyer in relation to outstanding drug charges he was facing in Brampton at the time. [ 10 ] Crown asks the Court to make certain inference of common sense in assessing Pham’s testimony concerning where the four men slept. He asks me to find that Mr. Ngo having been involved with Ms. Pham would at least sleep on the floor in her room, as she was about to give birth to his child. Crown contends as well that although the entire investigation was significant concerning Mr.

Dinh’s money laundering activity, it was implausible that he would be related to the drugs in the closet of bedroom. He argues as well that it would be unlikely that Ms. Pham was solely responsible for the marijuana, especially given her advanced state of pregnancy. The evidence of the casual scattering of Mr. Ngo’s ID throughout the apartment makes it more sensible along with his relationship with Ms. Pham to conclude that Mr. Ngo had control over the premises and hence the marijuana and cash in Ms.

Pham’s closet. [ 11 ] Crown suggests that some of Pham’s testimony might be accepted, but other parts of it, like his offhanded disclaimer of any meaningful reason that his fingerprint was on the baggy, ought not be accepted. This is not a controversial proposition; the problem is that it does not help this court reach a conclusion about Mr. Ngo’s guilt. That Ngo stayed in Ms. Pham’s bedroom, having had an “on again off again” relationship with Ms. Pham, is bolstered by the presence of his jeans on the floor of the room. At the very least, it seems to me highly unlikely that if Mr.

Ngo was undressing in that room, that another man would then sleep with Ms. Pham, especially in her condition. [ 12 ] The evidence on this trial comes from three sources: the Agreed Statement of Fact, the evidence of the fingerprint and the testimony of Mr. Pham. Clearly the first two sources of evidence do not require any findings of credibility, though the inferences to be drawn are not clearcut at first blush. With regard to Mr.

Pham’s testimony, I note that there are two aspects of concern to this court: the evidence of who slept where, the night before, and his explanation of his own fingerprint found on one of the baggies of marijuana. The suggestion that his fingerprint was on the baggie through some happenstance unrelated to the content of the totality of the box is very difficult to accept: it was agreed, that once opened, the box containing the baggies emitted a strong smell of marijuana. It is hard to accept that Mr. Pham’s fingerprint could be on a baggie, and yet he remained unaware of the odour from the box.

Further, there appears to be no reason that Mr. Pham would be fumbling around in his sister’s bedroom closet, where the box was found. I do not accept this explanation regarding his fingerprint. With this, I find that his assertion that Mr. Ngo shared the couch with him the previous night to be suspect as well. Mr. Ngo’s jeans were on the floor of Ms. Pham’s bedroom. Ms. Pham was in a late stage of pregnancy, carrying Mr. Ngo’s baby. The couple may have broken up in Quebec a short time before, they may have shared the Culford address some months

previous, and they may be in and “on again off again” relationship, but the evidence strongly suggests that the night in question was onagain, at least to the exclusion of any of the other men in the apartment occupying her bedroom. [13] However, in considering whether this excludes any reasonable inference other than Mr. Ngo’s knowledge and control over thecontents of Ms. Pham’s bedroom closet, I have difficulty accepting the Crown’s direction in this regard. While I do not entirely acceptMr. Pham’s testimony, on the question of whether Mr.

Ngo was in control of the apartment and hence deemed to be in possession of allits contents, I note that much of the search supports Mr. Pham’s position that Ngo was a visitor not in control of the place. There were nomen’s clothing in the place, apart from the items in the second bedroom noted earlier, and the one pair of jeans on the floor of Ms.Pham’s bedroom. The driver’s licence with the Culford address is insufficient in itself; the provincial offences ticket addressed to Mr.Ngo at Culford seems to go along with it.

The documentary evidence of Ngo’s connection to the apartment is dated, and is consistentwith Pham’s assertion that Ngo and Pham were not longer steadily involved. [14] The jurisprudence provides many examples of situations where one party, not the usual resident of a premise, is exonerated on acharge of possession of contraband, despite significant ties to the place. The element of control, in defining possession, has beenconsidered in different contexts. Those cases include: R. v. Chambers (1985), (ON CA), 20 CCC (3d) 440 (ON CA) R. v.

Terrence (1980) (ON CA), 55 CCC(2d) 183 (ON CA) Affd @ SCC – (1983) (SCC), 4 CCC(3d) 193 R. v. Savory (1996), Can LII 2001 And most recently: R. v. Morelli 2010 SCC 8 @ para 17. Crown alleges constructive possession.

In Morelli, the Court defines the concept this way: “Constructive possession is thus complete where the accused (1) has knowledge of the character of the object, (2) knowingly puts orkeeps the object in a particular place, where or not that place belongs to him and (3) intends to have the object in the particular place forhis “use or benefit” or that of another person.” [15] This conclusion is to be drawn by me in the present case on the basis of circumstantial evidence of Mr.

Ngo’s connection to theapartment, and on the conclusion that he had knowledge and control of the contents of baggies in a box in a closet in the bedroom of hisex-girlfriend, albeit a girlfriend about to give birth to is child. The evidence shows that in all likelihood, Mr. Ngo stayed in the bedroomwith the guilty closet in it the night before the police came. The evidence shows too however that he no longer resided in that apartmenton a regular basis. Moreover, the group of individuals present in the apartment gives rise to numerous possible scenario’s not the least ofwhich was that Ms.

Pham was herself solely in control of the marijuana. Crown suggest it unlikely that she would keep the closetcontents secret, or conversely, that she would allow access to her apartment to people she didn’t trust, given the quantity of contraband.Even accepting this, the element of control is not made out. No single reasonable inference exists, to drive home the Crown’s case.Rather, there are a number of possibilities, reasonable in the circumstances. [16] I cannot in the result, conclude beyond reasonable doubt that Mr. Ngo had knowledge and control of the marijuana and cash inthe closet.

I am dismissing the charges. Released: May 12, 2011 Signed: “Justice S.R. Shamai”