HKSAR v. LAI KIN WING

DCCC 812/2020

[2021] HKDC 734

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 812 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of keeping a divan contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1), and one charge of Trafficking in Dangerous Drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2).

2.  The Summary of Facts admitted by the defendant is as follows.  On 3 July 2020, police conducted an anti-narcotics operation at 1^st Floor, 979 Canton Road, Yau Ma Tei, Kowloon (“the Premises”) and laid ambush at the back staircase.  At about 3:55 pm, a man pressed the doorbell of the Premises and someone opened the gate.  Two police officers PC23613 (PW1) and PC18010 followed the man into the Premises.  Inside the Premises, there were 10 odd people sitting around 5 tables with aluminum foils, lighters and betting slips on the tables.

3.  PW1 revealed his police identity to the people inside the Premises and produced a search warrant.  The defendant identified himself as the person-in-charge.  Upon enquiry, it was revealed that the defendant was responsible for opening the door, selling dangerous drugs, keeping relevant records and cleaning the Premises.  PW1 arrested the defendant for keeping a divan.  Under caution, the defendant he had no money and so he tried to make money by keeping the Premises.

4.  PW1 searched the Premises and found a transparent box containing 5 pieces of suspected dangerous drugs wrapped in green tapes and 5 pieces of suspected dangerous drugs wrapped in purple tapes (Exhibit E1); 2 plastic resealable bags containing crystalline suspected dangerous drugs (Exhibit E2); and 12 silvery packs of pills (Exhibit E3).

5.  PW1 then declared arrest on the defendant for trafficking in dangerous drugs.  Under caution, the defendant replied the dangerous drugs were to be sold to customers to make money.

6.  In a subsequent VRI, the defendant admitted, inter alia, that:-

(a)  He was responsible for opening the door for customers and supplying dangerous drugs to them;

(b)  Dangerous drugs sold by him include heroin, “blue gremlin” and Ice;

(c)  He got the job through a male he met in a game centre and his remuneration was HK$1,500 for every 12 hours of working at the Premises;

(d)  It was the first time he worked at the Premises;

(e)  The dangerous drugs to be sold were placed in a transparent box;

(f)  He confirmed that E1 were heroin, and different colours indicated their different sizes;

(g)  He confirmed that E3 were “blue gremlin”;

(h)  He confirmed that E2 were Ice, and

(i)  The money in the box was sale proceeds of dangerous drugs.

7.  Government Chemist confirmed:-

(a)  E1 5 packets containing a total of 0.73 g of mixture containing 0.64 g of heroin hydrochloride and 5 packets containing a total of 0.49 g of mixture containing 0.43 g of heroin hydrochloride;

(b)  E2 2 plastic bags containing a total of 0.42 g of a crystalline solid containing 0.30 g of methamphetamine hydrochloride; and

(c)  E3 12 foilpacks containing a total of 12 tablets containing 0.16 g of midazolam.

8.  At the material time, the defendant kept a divan, where dangerous drugs were sold and were to be smoked, inhaled, ingested or injected therein.

9.  At the material time, the defendant possessed E1-3 for the purpose of unlawful trafficking.

10.  The defendant is duly convicted on both charges.

RECORD

11.  The defendant has 4 previous conviction records, 3 are related to dangerous drugs:-

(a)  Gambling in any place not being a gambling establishment, he was fined $200 in 1995;

(b)  Trafficking in dangerous drugs, he was sentenced to 16 months imprisonment on 22.10.2009;

(c)  Trafficking in dangerous drugs, he was sentenced to 6 years 4 months on 27.5.2010;

(d)  Possession of dangerous drugs, he was sentenced to DATC (conviction recorded) on 30.12 2016.

MITIGATION

12.  The defendant is 45 years old, locally born, and received up to Form 2 secondary level in Hong Kong.  He is married but his wife lives in Mainland China and he has no children.  Prior to the present offences, he lives with his elder sister in Kwun Tong.  He used to work as a construction worker earning an average of HK$12,000 per month.  From around 2019 up until the time of his arrest for the present offences, he was unemployed and relied on CSSA.

13.  His reason for committing the present offences was due to financial difficulties and he is a drug user.  His last offence was in 2016, for possession of dangerous drugs he was sentenced to DATC.  He was discharged from DATC on 27 June 2018, 2 years before he committed the present offences.

14.  He was arrested on 3 July 2020 for the present offences and has been remanded in custody since.

15.  Defence counsel Ms Herbert submitted that there is no sentencing guideline for the offence of keeping a divan.  She refers to 2 authorities.  She submits in HKSAR v Lam Lai Chu Patsy, CACC 56/2003 the Court of Appeal has recognized that a starting point in the region of 12 months to 24 months have previously been held appropriate by the courts in various cases.  In HKSAR v Cheung Kung Hang CACC 459/2000 the Court of Appeal upheld the sentence of 1 year for the charge of keeping a divan where the defendant was found to use his residence to operate a divan.

16.  Defence counsel points out the defendant in this case was not the owner of the divan, he was recruited to work there and it was his first day of work and so this case can be distinguished from Cheung Kung Hang’s case.  She submits a more lenient starting point towards the lower end of the scale would reflect the criminality involved in this case.

17.  For the offence of trafficking in dangerous drugs there are sentencing guidelines for different nature of dangerous drugs.

18.  In the present case, there are 3 different kinds of dangerous drug involved, ie (a) heroin hydrochloride, (b) methamphetamine hydrochloride (Ice), and (c) midazolam.

19.  In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 the Court of Appeal summarized the correct approach to be taken in sentencing a case involving trafficking in dangerous drugs:-

(a)  The first step when approaching sentence for an offence of trafficking in dangerous drugs was for the judge to identify the relevant guideline band applicable to the quantity concerned.

(b)  The second step was an assessment of the defendant’s role and culpability based upon the evidence.

(c)  The third step was to identify where in the relevant band the defendant came, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and role of the defendant.

(d)  The fourth step required a consideration of aggravating factors bearing upon the “notional sentence after trial” which might justify enhancement of the starting point. While this assessment was within the judge’s discretion, any significant departure from the arithmetically determined starting point ought to be explained.

(e)  The fifth step was to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that, in this particular branch of sentencing, personal circumstances would generally count for little.

(f)  The sixth step was to observe the overall sentence passed to ensure that it was fair, just and balanced in all the circumstances of the offence and the offender. Where more than one count, or aggravating factor, was involved, care had to be taken that the ultimate sentence was not out of proportion to the defendant’s overall criminality.

(a) First Step – sentencing band

20.  The sentencing tariff in relation to trafficking of drugs involved in the present case as follows:-

(a)  Heroin – starting point for up to 10g is 2-5 years’ imprisonment (R v Lau Tak-ming and Others [1990] 2 HKLR 370). The present case involved 1.22g of a mixture containing 1.07g heroin hydrochloride (in purity) which means the starting point should be above 2 years;

(b)  Ice – starting point for up to 10 grammes is 3-7 years’ imprisonment (HKSAR v Tam Yi Chun [2014] 3 HKIRD 691). The present case involved 0.42g of a crystalline solid containing 0.30g of methamphetamine hydrochloride (in purity) which means the starting point should not be less than 3 years;

(c)  Midazolam – This case involved 12 tablets containing 0.16 g of midazolam. It was stated in HKSAR v Choi Tung Cheung, HCMA 759/2005 the tariffs for trafficking in midazolam should be the same as for trafficking in methaqualone. According to Attorney General v Chan Chi Man [1987] 2 HKLR 221, for under 500g the sentencer has discretion. For reference, the next band up 500 grammes to 1,000g is 6 to 12 months, which means presumably any sentence ought certainly to be lower than 6 months. Defence counsel submits the very small quantity of Midazolam (0.16g) in the present case will not have material bearing on the overall sentence and can potentially be disregarded for sentencing purposes.

21.  In the present case, the most potent drug is Ice.  The combined weight of the Ice and heroin is 1.37g (0.3 of Ice + 1.07 of heroin in purity).

(b) Second Step – the defendant’s role and culpability

22.  Ms Herbert submitted that the defendant was in charge of opening the door and selling drugs to customers.  He was not the owner/tenant of the premises.  He was recruited by another person who was likely further up in the chain.  He himself is a drug user.  He would not amount to a manager or organizer.  

(c) Third Step – where in the relevant band

23.  In order to decide where in the band the defendant should be placed, it is submitted that it is necessary to consider the arithmetically determined starting point as, any departure from this in the fourth step must be with reasons.  Further, because a cocktail of drugs is involved it is submitted that one must consider the various approaches taken in respect of cocktail drugs to determine the arithmetical starting point.

24.  In sentencing for cocktail of drugs there are two approaches:-

(a)  Individual approach is to look at each component of the cocktail or the batch and sentence by adding up the different sentences relevant to each drug;

(b)  Combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency) and then take into account significant quantities of the other (less serious drugs).

25.  Which approach is appropriate would depend on the circumstances of the case, although the combined approach would often be the correct one.

26.  Ms Herbert submitted that “the individual approach” would result in a sentence that is unduly harsh.  If the individual approach is adopted in the present case, the arithmetical starting point for all the drugs will be a total of approximately 5.441 years (5 years 6 months) which is plainly too high.  She submitted that “the combined approach” should be adopted which would more accurately reflect the overall criminality of the case, taking into consideration the cross-checking approaches below.

27.  The sentence may be checked against the absurdity test, the conversion test and the ratio test. (HKSAR v Chan Yuk Leong, CACC  318/2013).

(d) Fourth Step – Aggravating factors

28.  Defence accepts that a potential aggravating factor is that the defendant has previous convictions related to drug offences.  In fact the defendant has 2 previous similar to Charge 2.  Defence counsel submits that the defendant’s last previous similar is 10 years ago.  She further submits a further enhancement and/or departure from the arithmetical approach, especially bearing in mind the relatively small amount of drugs involved, may therefore not be necessary.

(e) Fifth Step – Mitigating factors

29.  The predominant feature in this case is the defendant’s timely guilty plea.

(f) Sixth Step – Overall sentence

30.  Defence counsel submits that consideration must then be given to whether the overall sentence is fair, just and balanced.  She also submits that although the court can order entirely consecutive sentences in relation to Charge 1 and 2 the charges both involved the same drugs.  By virtue of totality principle it would arguably be more appropriate for the court to consider partially consecutive sentences for Charges 1 and 2.

31.  At the outset, prosecuting counsel Mr Stephen Wong indicates to the court that 0.16g of midazolam is negligible for sentencing purpose, same view as taken by defence counsel.  He submits his arithmetic calculation based on the quantity of heroin and Ice only to demonstrate the conversion test is the correct test of all 3:-

(a)  Absurdity Test: assuming all are the most potent drug ie 1.37g of Ice (1.07g of heroin + 0.3g of Ice), starting point would be 3 years 7 months (3 years + 1.37/10 x 48 months);

(b)  Conversion Test: having 1.07g of heroin converted into 0.76g of Ice + 0.3g of Ice = 1.06g, the starting point would be 3 years 5 months (3 years + 1.06/10 x 48 months);

(c)  Ratio Test: heroin 23 months (29 months x ratio 0.78 = 23 months) + Ice 9.5 months (43 months x ratio 0.22 = 9.5 months) come to the total of 32.5 months which is less than the bottom of the guideline for Ice and therefore is wrong in principle.

32.  Defence counsel agrees with prosecuting counsel’s calculation and accepts the outcome of the conversion test ie 3 years 5 months should be adopted as the initial starting point.   

SENTENCE

Charge 1: Keeping a divan

33.  On conviction on indictment, this offence is punishable by a fine of $5,000,000 and to imprisonment for 15 years.

34.  The usual sentence is one to two years’ imprisonment.  In Lam Lai Chu Patsy’s case the Court of Appeal adopted 20 months’ imprisonment as starting point.  The applicant in that case has 7 previous, 4 of which related to dangerous drugs.  I take into consideration all the circumstances of the present case, including the fact that the defendant was the keeper of the divan which has 5 tables big enough to accommodate 10 odd people/customers at the same time and therefore cannot be described as a small scale operation.  After the police declared arrest on the defendant for the offence of keeping a divan, under caution, the defendant replied that he had no money and so he tried to make money by keeping the Premises.  Ms Herbert submitted that the defendant was not the owner of the divan, the defendant had just been recruited by someone to work there and it was his first day of work.  Prosecution has no evidence to rebut such self-serving assertion.  This is the defendant’s first offence of this nature but I also take into consideration keeping a divan where dangerous drugs were sold and offering a safe place for the customers to consume the drugs is an evil business.  For the aforesaid consideration, I adopt 18 months’ imprisonment as starting point.  For the defendant’s timely plea, I allow him the full one-third discount, and sentenced him to 12 months’ imprisonment.

Charge 2 : Trafficking in dangerous drugs

35.  Both the prosecution and defence counsel are in agreement the Conversion Test is the correct test to be adopted, the starting point should be 3 years 5 months’ imprisonment and I share their view.

36.  I adopt 3 years 5 months as starting point after one-third discount for the timely plea, the sentence is 27.3 months’ imprisonment.  Next I turn to consider whether the starting point should be enhanced for the defendant has previous similar record which is an aggravating factor.  Defence counsel urges upon the court to take into consideration that the last previous similar record is 10 years ago and relatively small amount of drugs involved, the starting point needs not be enhanced. After consideration, I accept what defence counsel urges upon me for the total quantity of dangerous drugs including midazolam is 1.53g, which indeed is a small amount.  Hence, I decided not to enhance the starting point.  For the defendant’s timely plea, I allow a full one-third discount and reduce the sentence to 27 months’ imprisonment from 41 months.

TOTALITY

37.  Defence counsel submits that the court can order entirely consecutive sentences in relation to Charge 1 and 2, but reminds the court that both charges involved the same dangerous drugs.  By virtue of the totality principle, it would be more appropriate for the court to consider partially consecutive sentences for the charges 1 and 2.  Defence counsel refers to the authority HKSAR v Cheung Kung Hang CACC 459/2000, in which the Court of Appeal upheld a sentence which ordered 4 months of the charge of keeping a divan to run consecutively to the charge of trafficking in dangerous drugs.

38.  I take into consideration the circumstances of the case, the two offences were part and parcel of the same incident, and the drugs involved in both offences were the same, for this reason, I decide that the sentences on Charges 1 and 2 should be partially consecutive.  Of the 12 months’ imprisonment imposed on Charge 1, I order 6 months to be served consecutively with the 27 months imposed on Charge 2, which leads to the total sentence of 33 months’ imprisonment.