COURT: The defendant, Kwok Pok-man, pleaded guilty to the following two charges before a Magistrate and was committed to the Court of First Instance of the High Court for a sentence: (1) managing a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134; (2) trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of Cap 134.
The Summary of Facts Admitted by the Defendant
On 26 August 2022, plainclothes police officers from Yau Tsim Police District, mounted an anti-narcotics operation outside 2nd Floor, No. 425 Shanghai Street in Yau Ma Tei. The police officers had been observing the flat and noticed that a number of persons had entered and left the flat over a period of several hours.
Suspecting that the flat was used as a divan, three police officers posed as customers of the divan. The defendant answered the door and let the officers in. The flat was about 200 square feet in size with a toilet and a kitchen. There were 13 tables and wooden cabinet inside. Some price lists were also hung or posted on the wall.
There was a male at a cashier table near the door and counting cash. There was seven other persons, each occupying a separate table. There was a plastic bottle on each of the table occupied by five of them, and a cigarette lighter on each of the table occupied by the remaining two of them.
Upon subsequent examination by the government chemist, each bottle was found containing a straw and one tube with a bulb shape at one end and the set up could be used as an inhaling device. Four of those five bottles were found to contain some liquid containing some solid upon drying, containing methamphetamine hydrochloride. One was found to contain some liquid containing some solid upon drying with cocaine.
Upon a search of the flat conducted by the police officers on the strength of a search warrant, plastic bags containing various drugs were found inside boxes in the toilet and inside the drawer of the cabinet, and electronic scales were also found inside the drawer.
In summary, a total of 8.47 grammes of a solid containing 6.95 grammes of cocaine; 11.35 grammes of a crystalline solid containing 11.02 grammes of methamphetamine hydrochloride; 142 tablets containing 1.88 grammes of midazolam, and 64.34 grammes of a mixture containing 43.68 grammes of heroin hydrochloride were found inside and seized in the flat. The government chemist later examined and certified the contents of these drugs.
Various amounts of cash totalling $1,923; playing cards; straws; tin foils; plastic bags; a pen; a calculator; a pair of scissors; Mark Six tickets; resealable plastic bags; four notebooks; and a piece of paper with prices written on were found on the cashier table.
The defendant was arrested for keeping a divan and trafficking in dangerous drugs. Upon verbal caution for keeping a divan, the defendant said, “Ah sir, I only work here to help open the door and serve the customers as I am unemployed. Give me a chance.” Upon verbal caution for trafficking in dangerous drugs, the defendant said, “The drugs are used for selling to the customers for their consumption.”
There were three subsequent video-recorded interviews with the defendant and under caution, the defendant said basically the following. He was unemployed at the material time and he was introduced by an old man at the garden opposite the flat to work at the flat. He was responsible for opening the door for the customers and also greeting the customers.
He lived in the flat, worked there round the clock every day. Only he had the key to the flat. He had been working at the flat for slightly over a year for the daily salary of $1,200. He usually take seat near the door of the flat.
He would provide the drugs to the customers in the flat according to the orders placed by them. He would collect payment for the drugs from the customers and then passed the money to another person called “Ah Sun” who occupied the cashier table in the flat. Ah Sun would also make written records of the drug transactions in the flat.
The customers would then consume the drugs in the flat and he would provide the equipment to the customers for consuming the drugs such as the bottles for consuming ‘Ice’ and tin foils for consuming heroin.
A young man aged about 20 to 30 would deliver drugs to the flat every day, and the young man would also collect the sales proceeds of the drugs sold at the flat and pay the daily salary of $1,200 to him. He would store the drugs in the toilet and in the wooden cabinet in the flat.
All the drugs seized in the flat were for selling to the customers. The tin foils and Mark Six tickets seized from the cashier table would be provided to the customers for inhaling heroin. The plastic bags seized from the cashier table would be provided to the customers for containing the heroin.
The pair of scissors seized from the cashier table would be provided to customers for cutting open the packaging of the heroin. The calculator seized from the cashier table was used by him for calculating the sales proceeds of the drugs sold in the flat. The electronic scale seized from the wooden cabinet was used for weighing the drugs. He would use the resealable plastic bags seized from the cashier table for packaging the drugs, ‘Ice’ and cocaine, into smaller bags for selling to the customers.
All the cash seized from the cashier table were the sale proceeds of the drugs sold in the flat. The whiteboard and other papers hung or posted on the wall of the flat were the price lists of the various drugs sold in the flat written by him. The drugs, ‘Ice’, heroin, cocaine and midazolam would be sold in the flat.
In August 2022, the estimated street value of all the drugs seized in the case are as follows: cocaine in powder form, $7,353; cocaine in crack form, $13,760; ‘Ice’, $6,821; midazolam, $7,100; and heroin hydrochloride, $56,169.
Background and Mitigation
According to the antecedents statement, the defendant was born in 1968, and he is now 56 years of age. He is single. He is not a man with a clear record, he had 40 court appearances with 44 convictions. Most of the offences involved obscene articles and some other concerning vice establishments, selling cigarettes without health warnings, possession of articles infringing copyright, and gambling.
He had a number of drug-related convictions as well. 10 for possession of dangerous drugs, one for possession of equipment for taking dangerous drugs, one for smoking dangerous drugs, and two for trafficking in dangerous drugs.
The defendant claimed to have Form 1 level education and was unemployed at the time of the arrest. The defendant, according to the antecedents statement, claimed to be a cocaine addict, consuming 2 grammes of cocaine per week. But Mr Paul Leung, counsel, submitted that there was a mistake, the defendant claimed to be a heroin addict, consuming 2 grammes of heroin per week.
Mr Leung submitted that the defendant lived with his younger brother in a public housing estate in Choi Hung Estate prior to his arrest. His aged mother lives in the Mainland. The defendant started taking heroin in 1991 and later he consumed ‘Ice’ as well. The defendant worked as a casual cleaning worker earning several thousand dollars per month. He did not have savings as he used part of his income to buy drugs.
The defendant was unemployed due to the pandemic and he came across an old acquaintance who suggested the role of looking after the divan to him. The defendant was promised $1,200 per day as a reward. The defendant’s job was to collect money from customers and provide drugs to them for consumption on the spot. The defendant received instructions from someone called ‘Ah Sun’, who also made arrangements for the drugs.
For the offence of keeping a divan, counsel referred to the case of Fung Wai Hing and Lam Lai Chu Patsy, and submitted that present case is not the worst of its kind. The scale of the divan was relatively small and should attract a sentence in the lower end of the range between 12 to 24 months.
For the trafficking in dangerous drugs offence, counsel submitted that the quantity of midazolam is de minimus and invited this Court to disregard it in the calculation. The quantity of narcotics are 50.63 grammes of cocaine/heroin and 11.02 of ‘Ice’.
Mr Leung referred to the case of Lau Tak Ming, Abdallah, Tam Yi Chun and submitted the result of the three tests. Absurdity test, assuming 61.65 grammes were all ‘Ice’, 10 years and 5 months. Assuming they were all cocaine/heroin, 8 years and 3 months. For the conversion test, the result is 8 years and 8 months. For the ratio test, 8 years and 7.6 months. Mr Leung submitted that this Court should adopt the ratio test.
Finally, referring to the case of Herry Jane Yusuph, Mr Leung submitted the defendant was at the lowest level as he was only recruited to keep the divan and simply package the drugs as instructed. He did not have any power to decide to whom the drugs were to be sold or at what price. Mr Leung submitted the defendant should be regarded as a courier and storekeeper.
While Mr Leung accepted that there were aggravating factors present because the defendant committed the present offences while on bail and it was more than one offence, and also more than one kind of dangerous drugs was involved. But as the defendant had pleaded guilty to keeping a divan, Mr Leung urged this Court not to enhance the starting point to avoid double penalty.
Mr Leung referred to the case of Chong Cho Kit, Cheung Yiu Fai Alex, Ng Ka Wing Kevin, Ho Sai Chak and Lau Siu Fung, and submitted that whilst the two offences are two distinct offences, he urged this Court to consider ordering a small part of the sentence of Count 1 to run consecutively to run to that of Count 2 when considering the totality of sentence.
Consideration for sentence
A person convicted of managing a divan on indictment is liable to a fine of $5 million and to imprisonment for 15 years. A person convicted of trafficking in a dangerous drug or in dangerous drugs on indictment is liable to life imprisonment and a fine of $5 million.
I will deal with the sentence for Count 2, that is trafficking in dangerous drugs first. I will use the combined approach and follow the steps in the case of Herry Jane Yusuph and Majharul.
The first step
Having considered the different quantities of dangerous drugs, I am of the view that 43.68 grammes of heroin and the 6.95 grammes of cocaine totalling 50.63 grammes should be used as the base drug.
The second step
According to the sentencing guidelines in Lau Tak Ming and Abdallah, trafficking 50.63 grammes of heroin/cocaine, the notional starting point is 8 years.
The third step
While there were quite a number of the tablets, 142, but the amount of midazolam itself is relatively small, 1.88 grammes. So I will not take this drug into account for my calculation. Now I need to take the 11.02 grammes of ‘Ice’ into account to decide how much the starting point should be increased.
The result of the conversion test and ratio test are similar, 8 years and 8 months, and 8 years and 7.6 months respectively. Whereas the absurdity test, if all the drugs were ‘Ice’ will result in a higher sentence of 10 years and 5 months. While all the drugs were cocaine/heroin, will be 8 years and 3 months. So I am of the view that a starting point of 8 years should be increased by 8 months.
The fourth step
The defendant trafficked four kinds of drugs, though I did not take midazolam into my calculation. So I will enhance the starting point by 4 months to bring it to 9 years.
The fifth step
The defendant has a very bad criminal record, with 14 drug-related offences. I will enhance the starting point by 3 months to take into account this aggravating factor. So the further enhanced starting point is now 9 years and 3 months.
The sixth step
The defendant pleaded guilty at the earliest opportunity and is entitled to a full one-third discount. With the discount the sentence is 6 years and 2 months, that is the same as 74 months.
I will consider the sentence for managing a divan now. There are no sentencing guidelines for this offence. According to the Admitted Facts, there appear to be seven customers patronising the divan at the time. Each customer occupied a separate table.
On five of the tables there was what can be described as ‘Ice’ bottle for the consumption of ‘Ice’. Four kinds of drugs were on offer to customers, that is cocaine, heroin, ‘Ice’ and midazolam.
Cash of $1,923 was found on the cashier table. The presence of such a divan clearly offers both convenience and protection to drug addicts who could get their fix undercover.
In the case of Lam Lai Chu Patsy, the defendant was the tenant where permitted premises to be used as a divan. The Court of Appeal found that such an offence was more or less on equal footing with keeping a divan. Cases cited to the Court of Appeal indicated that the starting point was in the region of 12 months to 2 years.
The defendant in this case worked together with another male. The defendant was responsible for providing dangerous drugs to customers. He admitted that he had been managing the divan for over months.
Having considered all the circumstances of this offence and the role played by the defendant, and bearing in mind the maximum custodial sentence for this offence is one of 15 years, I am of the view that the starting point of 2 years is appropriate here.
The defendant had entered a timely plea and he is entitled to a full one-third discount. With the discount, the sentence is one of 16 months.
Now, I have to decide the totality. As considered by Mr Leung, it had been held that trafficking in dangerous drugs and managing a divan are two distinct offences, so even though the two offences were committed at the same time and in the same place, it is still appropriate to have separate sentences imposed on them, and that is the case of Chong Cho Kit.
Nevertheless, I need to ensure that the overall sentence is fair, just and balanced and in all the circumstances of the offences and the offender, that is the defendant.
For the trafficking in a dangerous drug, the defendant is sentenced to 6 years and 2 months and I am of the view that 4 months of the 16 months imposed on the managing a divan case to run consecutively to the 6 years and 2 months, making a total of 6 years and 6 months would achieve such an aim.
So the actual sentence for Count 1, managing a divan, 16 months’ imprisonment. Count 2, trafficking in dangerous drugs, 6 years and 2 months. 4 months of the 16 months imposed on Count 1 to run consecutively to the sentence imposed on Count 2, making a total of 6 years and 6 months.