Court File and Parties
COURT FILE NO.: CR-23-08
DATE: 20231212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
BUOK KONG, HASHI YASSIN and JAMAL FAWSI YOUSUF
Defendants
Counsel:
Myfanwy Smith and Shane Wright, for the Crown
Aaron Prevost, for the Defendant Kong
Melina Macchia, for the Defendant Yassin
George Grant, for the Defendant Yousuf
HEARD: September 18, 19, 20, 21, 2023
Reasons for Judgment
TRANQUILLI J. (ORALLY):
Introduction
[1] Buok Kong is charged with two counts of possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The charges have been resolved as against her co-accused.
[2] At issue is whether the Crown has proven beyond a reasonable doubt that Ms. Kong had the requisite knowledge and control of the fentanyl found in a residence from where she was arrested with her co-accused and fentanyl found in a vehicle of which she is the registered owner.
[3] Several suspects both known and unknown were the subject of a London Police Service investigation of a suspected drug trafficking enterprise. Ms. Kong was unidentified until her arrest with her two co-accused after they emerged from a North London residence in the early morning of May 30, 2021, following police execution of a warrant. Fentanyl, cocaine, cash and a firearm were found in the residence. Fentanyl and a firearm were also found in a Jeep Cherokee of which Ms. Kong is the registered owner and which was parked near the residence.
[4] The three occupants of that residence were charged with various trafficking and firearm offences. As will be explained, Ms. Kong is now the last accused standing of the three defendants arrested from this incident.
[5] The Crown called evidence from several police officers involved in the investigation and execution of the search warrants. An agreed statement of facts was filed in respect of evidence that the quantities of the drugs seized and related items demonstrated the substances were being trafficked rather than being in possession for personal use. An agreed statement of fact was also filed in respect of the analyses of text messages and other images from four cellphones seized from two addresses associated with the defendants. None of the accused testified.
[6] The quantities of fentanyl and cocaine seized, bundles of currency, related drug paraphernalia and the analyzed text messages and images from the cellphones overwhelmingly demonstrates there was a sophisticated operation trafficking cocaine and fentanyl in the London area.
[7] I have a high suspicion that Ms. Kong was materially involved as a principal player in that joint criminal venture.
[8] Nevertheless, I find that the Crown has not proven these two trafficking charges on the standard of beyond a reasonable doubt as against the defendant Ms. Kong. I will now explain my reasons for that conclusion.
Overview
[9] In or about May 2021, a confidential informant told the London Police Service that an unidentified man going by the street name of “Cash” was trafficking cocaine from a black Jeep Cherokee and that other rental vehicles were involved in the enterprise. The informant provided a physical description and a cellphone number associated with “Cash” and police obtained a tracking warrant for that number.
[10] The tracking data led police to the parking lot of an apartment building on Arbour Glen Crescent in Northeast London, where they located a black Jeep Cherokee as described by the confidential informant. Beginning on May 28, 2021, a surveillance team observed the three co-accused and two other individuals associated with the Jeep and two rental vehicles over the next approximate two days.
[11] On May 28, 2021, police saw the Jeep driven by a known male individual with an unknown female passenger. A query of the plate showed the registered owner of the Jeep to be the accused, Buok Kong. Police followed the jeep out of the city to a rural address in Middlesex County. It made a brief stop at a residence. The occupant of the residence came out of the house and came to the jeep. Neither occupant got out of the jeep. The jeep then returned to London where it stopped at a pizza restaurant. Police observed the unknown female passenger leave the Jeep to purchase take out pizza. She made several trips back and forth from the restaurant with the pizza to the Jeep. The Jeep then returned to the Arbour Glen Crescent address.
[12] The team also identified two rental vehicles parked near the Jeep in the Arbour Glen Crescent apartment parking lot, a Hyundai Elantra and a Hyundai Sonata. They saw two unknown men, one of whom was believed to be “Cash”, as described by the confidential informant, drive these rental vehicles to various points in the city and return to the Arbour Glen Crescent apartment building. Police identified the likely apartment unit being used by the individuals. The tracking warrant showed that the phone was moving with these rental vehicles and the suspect believed to be “Cash”. Police described observing suspicious or evasive activity in the operation of the vehicles but did not observe suspected any drug transactions. The unknown men later met up in those vehicles at an address on Sarnia Road and then left the city in the Elantra, leaving the Sonata behind. The tracking data showed the vehicle had travelled to Mississauga. Another male individual previously known to police stopped in a RAV4 at the unattended Sonata, retrieved a gift bag from the trunk of the Sonata and then left.
[13] Police obtained a search warrant for the Arbour Glen Crescent address and waited for the return of the Elantra vehicle from the greater Toronto area on the evening of May 29, 2021, with the suspect “Cash” and the other unknown male.
[14] However, when the Elantra returned to London late on the evening of May 29, 2021, the tracking data showed it was not returning to Arbour Glen Crescent. It instead went to an unknown address in a townhouse complex on North Centre Road in North London. The investigation team found the Elantra parked in the driveway of an address in a townhouse complex. They obtained another search warrant for that address. Police also found the black Jeep Cherokee in a nearby parking spot in the North Centre Road townhouse complex. The investigation team set up a perimeter around the North Centre Road address with the assistance of the emergency response unit of the London Police Service to monitor the house for any persons either arriving or leaving the residence in anticipation of entering the residence and arresting the suspects.
[15] On May 30, 2021, shortly before 6:00 am the police announced their presence to the occupants of the North Centre Road residence. Three occupants left the unit. No one else was seen escaping from the unit or found in the unit during a search of the residence. The accused, Buok Kong, Hashi Yassin and Jamal Yousuf were arrested on firearm and trafficking charges following their exit from the North Centre Road address.
[16] Ms. Kong was identified at the time of her arrest and recognized by police as the registered owner of the Jeep and the previously unknown passenger of the Jeep seen on May 28, 2021. The keys to the Jeep were found on the dining room table.
[17] From the North Centre Road address police seized two bags of cocaine weighing a total of 47 grams, a black digital scale and currency from a satchel hanging from a chair of a dining room table; a gift bag on the dining room table containing 258 grams of green fentanyl and currency from various areas of the home in different designer purses or bags totalling $39,225. Police seized a firearm and 93 grams of fentanyl from the Jeep Cherokee registered to the accused. Also found in Ms. Kong’s jeep was an invoice for the rental of the Sonata vehicle to the defendant Yassin.
[18] Three cellphones were also seized from the residence and sent for forensic examination. Inquiries showed that the townhouse had been rented as an Airbnb to a “Luis Plotnick” at the time. That individual was never identified.
[19] Police also attended the Arbour Glen Crescent building and executed a search warrant on an apartment they had linked to the movements of the co-accused. Police found two vacuum sealers, scales, a food saver, three bags of suspected fentanyl and a cellphone. Also found were two envelopes addressed to Buok Kong and the driver’s licence of the man seen to be driving the Jeep with Ms. Kong on May 28, 2021.
[20] Forensic analysis of the four cellphones appeared to show various users of the phones and communications being sent and received for the purposes of trafficking controlled substances such as either cocaine or fentanyl. Also of note from these phones were photo images of a woman who appears to be the accused Ms. Kong posing with currency, images of her photo health card and credit card, an image of a banking transfer made by “Buok” and a photo of her posing with who appears to be the co-accused Jamal Yousuf. Also of note were text messages sent in May 2021 by an individual self-identified as Ms. Kong appearing to be arranging for fake paystub information so that she could rent an end unit house, similar to the unit they were found in on North Centre Road that morning.
[21] The three co-accused were charged with the following Controlled Drugs and Substances Act offences:
• All three with one count of possession of cocaine for the purpose of trafficking contrary to s. 5(2);
• All three with one count of possession of fentanyl for the purpose of trafficking contrary to s. 5(2); and
• Ms. Kong with a further count of possession of fentanyl for the purpose of trafficking contrary to s. 5(2).
[22] On the first day of trial, the Crown withdrew all of the firearm charges as against all three co-accused. Mid-trial, the trafficking charges were resolved as against Hashi Yassin and Jamal Yousuf. Mr. Yousuf entered a plea of guilty to possession of cocaine for the purposes of trafficking and was sentenced to a time served disposition. That charge was withdrawn as against Mr. Yassin and Ms. Kong. One count of possession of fentanyl for the purpose of trafficking was stayed as against Mr. Yousuf and Mr. Yassin. The trial proceeded on the two remaining fentanyl trafficking charges as against only Ms. Kong.
Analysis
[23] There is no dispute that the evidence establishes the fentanyl was being trafficked and was not in the possession of the accused or any other individual for personal use. The issue is whether the Crown has established that Ms. Kong possessed the drug for the purpose of trafficking.
[24] Section 4(3) of the Criminal Code defines possession. It includes the concept of constructive possession. Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another’s benefit. Constructive possession is complete where an accused: (i) has knowledge of the character of the thing; (ii) knowingly puts or keeps the thing in a particular place irrespective of whether the place belongs to or is occupied by the accused; and (iii) intends to have the thing in the place for the use or benefit of the accused or of another person: R v. Lights, 2020 ONCA 128 at paras 44-46. No presumption of knowledge and control arises from proof of occupancy: Lights at para 50.
[25] The Crown’s case consists wholly or substantially of circumstantial evidence. The standard of proof requires that I be satisfied beyond a reasonable doubt that Ms. Kong’s guilt is the only reasonable inference to be drawn from the evidence as a whole. I must consider other plausible theories and reasonable possibilities that are inconsistent with guilt so long as those theories and possibilities are grounded on logic and experience: R v Villaroman, 2016 SCC 33 at para. 20; R v Lights, 2020 ONCA 128 at paras. 36-38.
[26] The Crown submits that the cumulative effect of the inferences to be drawn from the evidence establishes beyond a reasonable doubt that Ms. Kong was in possession of fentanyl for the purpose of trafficking. Albeit brief surveillance places her in association with others involved with the activity, including the use of her Jeep. However, this, in combination with evidence of her use of the cellphones, with images of her handling currency and arranging to rent a house, the mail in her name found at the Arbour Glen address along with trafficking paraphernalia and the fact she was found at the North Centre Road address with the fentanyl on the dining room table at the time of her arrest clearly identifies her as a principal in the trafficking operation who had knowledge of and control over the fentanyl. The quantities of fentanyl found in the North Centre Road address as well as in Ms. Kong’s jeep, which was also parked near that residence, were of such value that they would not have been entrusted to just anyone. A person to whom the drugs belonged would keep them close to her.
[27] For the following reasons I must reject the Crown’s theory. I am satisfied that the woman seen on the surveillance and the images of the photo identification found on the cellphone establishes beyond a reasonable doubt that they are all of the accused Ms. Kong, who was found by police at the North Centre Road address. However, I agree with the defendant’s submission that there are too many unanswered questions and unaddressed possibilities that prevent me from concluding that Ms. Kong’s knowledge and control of the fentanyl in the North Centre Road residence and in her vehicle is the only reasonable inference to be drawn from the whole of the evidence. Rather, there remains the possibility that others had knowledge and control to the exclusion of Ms. Kong on the following grounds:
a. Ms. Kong was not previously identified as being involved in the trafficking operation through the lead developed from the confidential informant.
b. While Ms. Kong was seen travelling in the Jeep on the one day of surveillance, it was as a passenger and not the driver.
c. Moreover, the vehicle’s travel while she was a passenger was innocuous, with a brief stop at a residence and then at a pizza restaurant. No suspected transactions were observed.
d. While she was the registered owner of the Jeep, she was not seen in possession and control of the vehicle at any time during the investigation. In fact, police found the Sonata rental receipt issued to the former accused Mr. Yassin in the Jeep, further adding to the plausibility that other individuals apart from Ms. Kong had possession and control of the Jeep.
e. The 93 grams of fentanyl found in the Jeep was also apparently not there to be seen. A police officer did not come across that package when he found the gun concealed the in vehicle. Another police officer also did not appear to see the package when he drove the Jeep to police headquarters.
f. There is no evidence of how the Jeep came to be at the North Centre Road townhouse complex on the evening of May 29 or the early morning of May 30, 2021. Similarly, there is no evidence of how Ms. Kong got to that address either the night before or in the morning.
g. The keys to the Jeep were not found on Ms. Kong’s person or even in the purse found in North Centre Road that contained her ID. They were found on the dining room table, next to the gift bag containing fentanyl. In circumstances where the evidence shows others operating the Jeep and where the Sonata rental invoice issued to her co-accused was found in the Jeep, it remains plausible that others had knowledge of and control over the fentanyl found therein.
h. Ms. Kong’s mere presence in the North Centre Road residence is nothing more than quiescent. There is a lack of evidence that reliably establishes where she was inside the residence before her arrest. Again, the evidence fails to allow that the only reasonable inference to be drawn from the whole of the evidence is that she had knowledge, possession or control of the substance. Her two former co-accused were also found in the same residence, where it is known they arrived there in the Elantra.
i. There is no DNA or fingerprint evidence that connects Ms. Kong to the fentanyl either through the substance or any of the paraphernalia found at the Arbour Glen address. The similar green colour of the fentanyl found in the dining room gift bag and the residue or fentanyl found in the Arbour Glen apartment do not work to identify her as having knowledge and control. While mail addressed to her was found at Arbour Glen, the photo identification of the third party seen driving her Jeep was also found there.
j. The fentanyl was contained in a gift bag on the dining room table. Again, it was not out in the open, there to be seen by the occupants of the residence. While the gift bag was suspiciously like the gift bag police observed a third party to remove from the Sonata after Mr. Yassin and Mr. Yousuf left the area in the Elantra, Ms. Kong herself was not present and there is no evidence of what was, in fact, in the gift bag removed from the trunk.
k. The record is also short on the circumstances of the Airbnb rental. The text message evidence may demonstrate Ms. Kong was actively looking for such an end unit rental as on North Centre Road shortly before her arrest. But there is no evidence connecting her to this rental itself. All that is known in the evidence is that the owner had rented it to a “Luis Plotnick”. There is no information of whether this individual, in fact, exists or how that rental transaction was arranged and finalized. Similarly, there was no evidence of how the occupants would have gained access to the unit, such as through a key, a fob or an access code and which of the occupants arrested from the unit had the access or the access information.
l. The cellphone and text message evidence raises no more than suspicion, which is not enough. Accepting that Ms. Kong appeared to either own or use all or most of these phones at one time and another, the text messages also demonstrates that other individuals apart from Ms. Kong also used the cellphones and for the purpose of arranging drug transactions. The suspected drug transactions also do not necessarily correspond to trafficking in fentanyl. The terms could also be used for cocaine. Further, the prices quoted do not correspond to the street prices for fentanyl as cited by the Crown’s own expert. Finally, the texts all predate May 30 and fail to establish possession for the purpose of trafficking on May 30, 2021.
[28] I repeat my suspicion and think it probable that Ms. Kong was entirely aware of and involved in this trafficking venture. However, as just summarized, there are gaps and the absence of evidence concerning Ms. Kong’s alleged knowledge and control of the fentanyl in circumstances where the evidence also shows that others had the opportunity for possession of the substance. I am not satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the whole of the evidence is that Ms. Kong had knowledge and control of the fentanyl.
[29] For these reasons, I find Ms. Kong not guilty on counts 2 and 3 of the indictment.
Justice Tranquilli
Released: December 12, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
BUOK KONG, HASHI YASSIN and JAMAL FAWSI YOUSUF
REASONS FOR JUDGMENT
Justice K.C. Tranquilli
Released: December 12, 2023