Vancouver's stupidest pooner?

[ghostie]

Here's a little story from the Provincial Court website which might be of interest to those who crusie the tracks... or to those who wonder what sometimes happens to those guys you see getting busted on Kingsway:

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA

v.

THANH BUU DUONG


EXCERPT FROM PROCEEDINGS

REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.E. BASTIN

Counsel for the Crown:
M. Le. Dressay

Counsel for the Defendant:
L. Myers

Place of Hearing:
Vancouver, B.C.

Date of Hearing:
February 2, 2006

Date of Judgment:
February 2, 2006


[1] THE COURT: R. v. Duong judgment.

[2] This judgment is to be read in conjunction with this court's ruling on a voir dire in this trial which was delivered on December 15th, 2005. The charge and the facts of the case were set out in that ruling. This judgment will supplement the facts related to in that ruling.

[3] On March 22nd, 2005, at approximately 11:55 p.m., the accused, Mr. Duong, while driving a van-type motor vehicle attempted to solicit the sexual services of a woman he thought to be a prostitute. The woman turned out to be Constable Avelar of the City of Vancouver Police Department. Constable Avelar signalled other officers to arrest the accused. The vehicle driven by the accused was stopped by the police near the intersection of Kingsway and Spencer Street in Vancouver. The accused was removed from the vehicle and remained in the custody of Constable Cho while Constable Kelly searched the vehicle.

[4] On December 9th, 2005, in the course of this trial, Constable Kelly gave evidence concerning that search. He gave further evidence today about the search. While standing outside the vehicle, Constable Kelly observed a white plastic shopping bag on the floor of the vehicle on the driver's side. The bag was approximately one-half open to view and approximately one-half blocked from view by the driver's seat. Constable Kelly took possession of the bag and examined its contents. The bag contained a quantity of powder cocaine valued at approximately $5,700, and a quantity of cash totalling $15,000 wrapped in 15 bundles of $1,000 each.

[5] Constable Kelly then further examined the area of the driver's seat and beside and to the rear of the seat at the 5 o'clock position from the driver the officer observed a gift bag with the top open. Constable Kelly observed what he thought to be a brick, or a kilogram of cocaine in the bag.

[6] The bag containing what turned out to be one kilogram of cocaine is shown in photograph number 2 of Exhibit 3, and the bag with the cocaine removed is shown in photograph number 3 of Exhibit 3.

[7] Constable Kelly searched the remainder of the van and testified today that there were no other objects or items inside the van save and except in the glove compartment. Constable Kelly could not recall what if anything was in the glove compartment.

[8] The kilogram of cocaine has a value of at least $25,000.

[9] Constable Kelly concluded his evidence today by acknowledging that none of the seized items in this case were subject to any forensic analysis such as testing for DNA or fingerprints. Those items include the money, the drugs, the packaging for the drugs and the two larger bags containing the drugs.

[10] At the conclusion of the Crown's case today, the defence elected not to call evidence. The court then heard full and able submissions from both counsel.

 

[ghostie]

[11] There is no evidence in this trial as to the ownership of the van driven by the accused; therefore, I will decide this case on the basis that the accused had no proprietary interest in the van on the day in question.

[12] Both counsel have referred this court to the case of R. v. Caldwell, [2001] B.C.J. No. 1915. The Caldwell case is a typically thorough judgment of Mr. Justice Romilly of the British Columbia Supreme Court dealing with proof of possession when drugs are found by police in a vehicle driven by an accused person. Mr. Justice Romilly referred to a number of factors to be considered by the court in such cases to determine if possession, that is knowledge and control of the drugs, is proved beyond a reasonable doubt. Mr. Justice Romilly concluded in the Caldwell case that possession had not been proved beyond a reasonable doubt.

[13] At paragraphs 40 and 41 of the Caldwell case, Mr. Justice Romilly refers to the case of R. v. To, [1992] 16 B.C.A.C. No. 223, wherein then Chief Justice McEachern reached the opposite conclusion on the facts of that case.

[14] In the case at bar, counsel for the defence has also placed reliance upon the British Columbia Court of Appeal case of R. v. Iturriaga, [1993] B.C.J. No. 2901. In that case the court found that a significant amount of cocaine with a significant value found by police in a vehicle driven by the accused had not been proven beyond a reasonable doubt to be at law possessed by the accused.

[15] Counsel for the defence has also referred this court to the following cases: R. v. Sheehy, [2002] B.C.J. No. 2198; R. v. Allen, [2000] O.J. No. 5160; R. v. Douglas, [1974] 18 C.C.C. (2d) 189; R. v. Amado, [1996] B.C.J. No. 1943; R. v. Anderson, [1995] B.C.J. No. 2655; and R. v. Chualna, [2003] B.C.J. No. 2693.

[16] The submission of the defence in this case is that the fact pattern here is closer to that of the Caldwell and Iturriaga cases than to the To case, and the court here ought to have a reasonable doubt that the accused possessed the drugs and money found by police.

[17] In final submission, the defence emphasizes that there is no evidence as to how long the accused had been in the vehicle before being stopped by police. The defence also stresses that the entire conduct of the accused is inconsistent with him having knowledge of the drugs and the money. In this regard, it is submitted that if the accused knew of the drugs and money he would have concealed or attempted to conceal them in some fashion.

[18] The defence also submits that if the accused knew he was transporting valuable illegal items, he would not have had dealings with a prostitute, which might involve that person seeing the drugs or might attract the attention of the police.

[19] Further, the defence submits that the accused would have been evasive in some manner when stopped by the police if he had knowledge of the drugs and the money and that he did not show that conduct.

[20] Finally, the defence submits that the nature and position of the bags containing the drugs and money was such that the accused would not be aware of their contents especially at night in the dark.

[21] The defence submits that the Crown has not proved beyond a reasonable doubt that the accused possessed the cocaine involved in this case.

[22] Counsel for the Crown submits that the striking facts of this case are that the van driven by the accused contained two packages of items of great value and virtually nothing else.

[23] Counsel for the Crown submits that no one who actually owned the drugs or cash would leave them in a van used by someone else unless that someone else knew of the drugs and money. To conclude otherwise, the Crown submits, would strain common sense. The Crown submits that the only rational inference in this case is that the accused had knowledge of the drugs and money found by police in the van he was driving. The Crown submits that the accused should be found guilty on Count 2.

[24] From the evidence of Constable Kelly, I find that the two packages containing the drugs and money were open to the view of anyone driving the van in question and also within the easy reach of the driver. I find that the top of the gift bag was open when the van was stopped by the police.

[25] What sets this case apart from many of those cited by the defence is that the accused was the only occupant of a motor vehicle in which there were no items except the two bags seized by Constable Kelly.

[26] The total value of the drugs and money seized by police was in excess of $45,000. I regard the bundled money totalling $15,000 to be very significant in my conclusion in this case.

[27] When all of the trial evidence is weighed, I am compelled to the same conclusion as was reached in the To case. In the To case, then Chief Justice McEachern stated, "These facts make it so unlikely that such a large quantity of drugs would be entrusted to anyone who did not know what was in the bags that such a possibility may safely be rejected." I apply that reasoning to the facts of the case at bar.

[28] I conclude beyond a reasonable doubt that it is not a rational conclusion on the evidence in this trial that the accused could not know of the drugs and money that were in the vehicle he was driving. In my opinion, it is so unlikely that the drugs and money involved in this case would be entrusted to anyone who did not know of them that such a possibility can safely be rejected.

[29] The behaviour or conduct of the accused does not, in my opinion, raise a reasonable doubt on the issue of possession. In my view, that behaviour was that of someone who was simply unsophisticated and unwise in the circumstances.

[30] I am satisfied on the trial evidence beyond a reasonable doubt that the accused had knowledge and control of the drugs and money in the vehicle he was driving. It follows that at law he possessed those items and clearly possessed the cocaine for the purpose of trafficking. I find the accused guilty as charged on Count 2.

(EXCERPT CONCLUDED)

 

[Randy Whorewald]

What a dumb fuck that Mr Duong, his "connections" are going to cut his nuts off.

 

[PoorGuy]

Another Vietnamese drug courier getting caught. What else is new in Vancouver gangland?

 

[westwoody]

I'm surprised he didn't roll over on his buddies, before they take revenge on his family.
I voted "no" because there are even dumber ones out there.