HKSAR v. CHAN HOI KIT

DCCC 447/2019

[2019] HKDC 1649

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 447 OF 2019

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Reasons for Sentence

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1.  Dealing with Mr Chan today, he is aged 42, he has pleaded guilty to two offences. Firstly, keeping a divan and then, secondly, trafficking in a dangerous drug.

2.  The offences were committed on the same day in the same place, 5 March 2019, premises in Shanghai Street in Mong Kok.  They are obviously connected, the offences are connected, the drugs were found in the divan.

3.  The facts are very simply set out.  Police entered the premises which are on the 4th floor, the premises in Shanghai Street.  A small flat, 200 square feet, with a room and a toilet with some tables in there and a folded table.  There is a note on the wall which appears to deal with the purchase price of the drugs.  Various items in the living room which would be used for consumption of the drugs such as tin foil, lighter, and on the table in the room were found the drugs which form the substance of the 2nd charge.

4.  We are talking about a total of 1.43 grammes of heroin hydrochloride in narcotic content and 0.96 grammes of methamphetamine hydrochloride, ‘Ice’, also found there in various bags with some aids for consumption and an electrical balance for measuring it out.

5.  The total value of these drugs is $1,865.

6.  The defendant was found with a key to the flat. The defendant was quite frank when challenged about it, he says, “I received $500 to keep the premises”, he was just earning some money.  He goes into a bit more detail in a later video-recorded interview, working up to 12 hours every day in the premises.  He is responsible for the drug sales.  The drugs would already be there when he starts his shift.  He did not know the other people in the flat.  He has had no employment besides this.  He said that he sold drugs to the people in the flat and they consumed them.  He says in his cautioned statement that he is a heroin addict.  That is borne out by both his previous conviction record and also the urine test performed at Lai Chi Kok Reception Centre on entry showing consumption of amphetamines and opiates.

7.  The defendant does not say in his record of interview that he was consuming part of the drugs on the premises but it would appear to be an inference that can be drawn in his favour, that he would have consumed a portion of the drugs that were made available to the clients of the divan that he was running.  And the defence say I should take that into account when making the final calculation as to the starting point for sentence on the 2nd charge.

8.  I deal with the defendant’s background.  As I have already said, 42-year-old male, been involved in drug offences in 1997. He says in I think a written mitigation letter that he has taken drugs since he was 16 years old.  Now, 42 years old.  And he has been taking been taking ‘Ice’ together with the heroin for some two years prior to his arrest for these offences.

9.  Turning to his drug record.  Offences of possession of dangerous drug, through 1997-2006.  Finally in 2015, a sentence of trafficking in a dangerous drug for which he was sentenced to 16 months’ imprisonment.  That I assume is posited on a plea of guilty which would have been a starting point of 2 years.  Last released from prison in August of 2016.

10.  Mitigating factors also put forward: he has pleaded guilty.  The full one-third discount is appropriate for the defendant because of that.  Long-term heroin consumer.  He also says in mitigation that the provision of drugs in the divan was part of his salary, in effect, because he consumed drugs in the divan and then his salary would be deducted after the calculation of the amount of drugs he had taken during the day was borne in mind.  He told the police he earned $500 a day and that is the figure he says was after deduction for the provision of drugs and the actual figure should be something like $1,200 per day for working in the divan for 12 hours.  I note that in mitigation it does seem to be common sense and borne out by the information I have about the defendant’s drug history.

11.  I will deal with the approach to sentence. There are two charges here.  Firstly, keeping a divan.  Sentences in respect of keeping a divan, starting points for sentence can range, it would appear, between 1 to 3 years’ imprisonment.  In mitigation he says this is not a big operation, only four clients, not a large amount of drugs found in the premises.  What I would do in respect of this offence is take a starting point again at 2 years’ imprisonment, reduce that to 16 months’ imprisonment on the 1st charge for the defendant’s plea of guilty.

12.  Perhaps more significant is the sentence to be passed on the 2nd charge.  Here the court is dealing with a mix of drugs with different starting points.  As far as those starting points are concerned, heroin, the case of Lau Tak Ming is the significant case in respect of the starting point for sentence.  For up to 10 grammes of heroin, the recommended sentence is between 2 to 5 years’ imprisonment.  Clearly this is at the bottom end of that sentencing guideline.  We are dealing with 1.43 grammes of heroin.  As the other drug is the drug methamphetamine or ‘Ice’, it falls within the tariff band of between 3 to 7 years’ imprisonment which is trafficking in quantity of up to 10 grammes.  Again, there is less than a gramme so again it is at the bottom end of the sentencing guideline.

13.  If one takes a combined approach, the entire amount of narcotic is 2.39 grammes.  The most serious would mean the starting point would be in the region of 36 months’ imprisonment.  So the initial starting point that I will adopt in this case for the drug in the 2nd charge is 36 months’ imprisonment.  There is an aggravating factor and that is the defendant’s previous record for trafficking.  He has one previous conviction for what could not have been a large amount of drug but the fact that he has a previous conviction must result in some enhancement of that sentence.  I will enhance that sentence by 3 months to reflect that.  So the starting point for sentence before deduction for mitigating factors is now 39 months’ imprisonment on the 2nd charge.

14.  I must first calculate the deduction for the defendant’s consumption of drug within the divan.  Self-consumption is a mitigating factor, if the defendant consumes a significant portion of the drug.  As I observed to counsel, whether a portion is significant or not is an exercise, to a certain extent, in speculation.  There is supporting evidence for the fact the defendant consumes the drug and I accept his mitigation that he does.  He is a drug addict and obviously it is common knowledge that payments of people who keep divans is partly in the drug that they consume. Deductions for this factor can range between 10 to 25 per cent of the initial starting point.  There is no clear direction on how much of the drug must be consumed before it becomes a significant portion.  What I am going to do in this case is take something in the region of just about 10 per cent which means that I will remove the enhancement that I have already put into this case and I will deduct the 3 months away from the original starting point of 39 months.  The defendant is entitled to a one-third deduction from that. 36 months leads to a sentence of 24 months on the 2nd charge.

15.  Now I have to consider to what extent should the sentences run consecutively or concurrently.  Although the offences are committed at the same place and at the same time, there is authority to say that they are offences of a different nature and can be run consecutively.  To run the sentences consecutively would lead to far too high a sentence, so I must calculate to what extent there should be a consecutive sentence in this case.  The final figure has to reflect what would be a correct overall totality for this offence.

16.  Given the quantity of drug and the fact that most of the people in the divan will be consuming the drugs themselves, what I am going to do in this case is order that 3 months of the 1st charge run consecutively to the 2nd charge leading to an overall sentence of 27 months’ imprisonment for this defendant on these two charges.  That will be the sentence of the court.