HKSAR v. CHOW KIT KEUNG AND ANOTHER

HCMA 710/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 710 OF 2003

(ON APPEAL FROM KCCC 7542/2003)

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J U D G M E N T

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1. Both Appellants had pleaded guilty in the Magistrate's Court to one charge of keeping a divan which is charge 2. The 2nd Appellant had also pleaded guilty to charge 1 which is trafficking in dangerous drugs, namely heroin.

2. The admitted fact was that an undercover police officer went to the address in the charge, posing as a customer. He was disguised, actually, as a drug addict and when he arrived at the premises, the 1st Appellant opened the wooden door and looked at him through an iron grille, then the 1st Appellant opened the iron grille and allowed PW1 (that is the undercover officer) to go in. Having gone through the iron grille and wooden door, PW1 then entered into an enclosed area formed by metalplate which will be referred to hereinafter as the "buffer zone". The 1st Appellant then closed the iron grille and wooden door and then knocked on the buffer zone's metal door and it was at that time that the 2nd Appellant opened the buffer zone door and allowed both the undercover officer and the 1st Appellant to enter. Once inside the premises, the 2nd Appellant then sold a packet of heroin to PW1 and it was after this transaction and after PW1 had paid $100 of police marked money to the 2nd Appellant that PW1 then covertly phoned the ambush party and the situation was reported. When the officers raided the premises under a search warrant, PW1 opened the door for them. Upon checking the premises, there were 4 customers inside those premises.

3. The learned Magistrate having considered the facts in this case and having been made aware of both Appellant's long record of previous convictions, then sentenced both the Appellants on the 2nd charge of keeping of divan to 3 years' imprisonment as a starting point reducing that by one-third to two years' imprisonment because of their pleas. In the 1st charge of trafficking in dangerous drugs, the learned Magistrate adopted a starting point of 3 years and reduced it to 2 years. The drugs involved in this case is 0.15 grammes of heroin hydrochloride.

4. Both Appellants have appealed against those sentences. Mr Percy on their behalf has submitted that the sentences were manifestly excessive because in relation to the 2nd charge of keeping a divan, the cases in the past had shown the sentences well below a starting point of 3 years. Mr Percy submits that the circumstances of this case as far as the drugs involved it was minimal, the equipment, he submits was not unusually large, the number of customers on the premises were not many and so he says that although the buffer zone is sophisticated still it did not prevent the entry of the police officer and therefore it cannot be regarded as an entirely effective anti-police device.

5. It is apparent from the facts that this was a highly sophisticated operation. Much thought had been given to making the divan as safe as possible and I have no doubt that much expense was used to build that buffer zone. It is clear that that buffer zone was really to defeat any police raid to give the people inside the divan sufficient time to get rid of any incriminating drugs and paraphernalia and thus make the job more difficult for the police.

6. The learned Magistrate had also taken into account the prevalence of this type of offence, and, he rightly did so, because as far as this court's experience is concerned, this court has been hearing appeals in many cases of keeping a divan. The learned Magistrate had considered that in the period between 1 January 2003 and 7 July 2003, 61 cases of keeping a divan have been brought before the Kowloon City Magistracy alone.

7. Therefore, it is clear that a very strong statement has to be made to people who allow themselves to be involved in keeping a divan whether they be gate-keeper or persons in charge that if they are convicted of such an offence, they should expect a very severe sentence. Because there is no mitigation at all for people involved in this kind of trade as they are preying on the weak, as they are offering them a secure place in which they could indulge in their vice.

8. In the circumstances, the learned Magistrate was correct to adopt a high starting point and I agree with Ms Chan, counsel for the Respondent, that this is one of the more serious type of cases in the magistrate's courts and the fact that only 4 customers were inside does not detract from the sophistication of this operation.

9. I do not therefore find that a starting point of 3 years in the 2nd charge was manifestly excessive or wrong in principle. In relation to the trafficking charge, the learned Magistrate had adopted a 3 years' starting point on that charge and he said that he made the subsequent two years after deductions of one-third to be concurrent because he regarded that keeping a divan involved supply of drugs and therefore that charge 1 is simply an example of that.

10. The drugs involved in this case, 0.15 grammes, is very low. Even taking into account what Ms Chan says that it is a more serious type of trafficking than merely selling a packet on the street. Nevertheless, I have to agree that 3 years' starting point for such an offence is manifestly excessive. I therefore consider that in the circumstances, a two-year starting point is more appropriate and that would take into account the fact that the drugs were sold in this type of premises rather than on the street. I also take into account that the drugs in this case is minimal and less than in the case referred to by Mr Percy.

11. Therefore, in the circumstances, the appeal is allowed in relation to the appeal against sentence in relation to the 1st charge of trafficking in dangerous drugs, the sentence is quashed and the sentence I will impose is one of 16 months because of his plea and equally, I will agree with the learned Magistrate that this should be served concurrently to the 2nd charge of keeping a divan because of the totality principle. So, the appeal against sentences in relation to the 2nd charge is dismissed, the appeal against sentence in relation to the 1st charge is allowed and the sentence is as I have said.

12. As the 2nd Appellant is not appealing against the activated sentence of 1 month's imprisonment, the total sentence for him, therefore, remains the same, i.e. 2 years and 1 month.