HKSAR v. FUNG WAI HING

[English Translation – 英譯本]

HCMA665/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.665 OF 2000

(ON APPEAL FROM NKCC 191 OF 2000)

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BETWEEN

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JUDGMENT

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1. The defendant was charged with: (1) keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134; and (2) trafficking in a dangerous drug in a divan, contrary to section 4(1)(a) and (3) of the Ordinance.  After trial, the defendant was convicted on both charges.  The defendant now appeals against conviction and sentence.

2. According to the prosecution case, on 30 November 1999, police detectives laid an ambush outside a building in Portland Street and on a balcony of that building.  When the defendant opened the door to the balcony, the detectives took the opportunity and dashed into the premises.  At that time, the 2^nd Defendant (D2), 3^rd Defendant (D3) and a male surnamed Hui (“Hui”) were sitting at a table inside the premises.  On the table before each of D2 and D3, there were tinfoil, lighters, paper straws and a packet of dangerous drug, and before Hui, there was a cigarette which had once been lit.  Upon police inquiries, the defendant admitted that he was the owner of the premises.  Therefore, PW2 made further inquires of the defendant.  The defendant said that the dangerous drugs and the paraphernalia for smoking dangerous drugs on the table belonged to his clients, and he sold them the dangerous drugs which they then consumed inside the premises.  When PW2 asked him about the two keys and the $590 cash found on his person, he admitted that the keys were the door keys to the premises and the cash represented proceeds from selling dangerous drugs.  Subsequently, PW2 interviewed defendant again at the police station.  There, the defendant made detailed admissions, which were recorded in writing.  An alternative procedure was held, following which the magistrate ruled that the record of interview and the defendant’s verbal admissions were made by the defendant voluntarily.  The defendant elected not to give evidence at trial.

3. The defendant’s main ground of appeal against conviction is that the dangerous drugs did not belong to him and that it was Hui who brought the drugs to the premises.  As the defendant elected not to give evidence, the magistrate did not take the aforesaid statements into consideration.  The appeal bundle does not contain any transcript of the witnesses’ evidence.  However, counsel who acted for the defendant at trial did not make such statements in his submissions.  Therefore, I believe that counsel who acted for him neither cross-examined the witnesses on the points he now raises nor put those points to the witnesses.  What he now says is in fact fabricated for the purpose of this appeal and had never been raised at trial.  I cannot accept what he says as fresh evidence, and I will not take it into consideration.

4. The magistrate believed and accepted the evidence given by the prosecution witnesses. He accorded sufficient weight to the defendant’s verbal admissions and the subsequent written admissions, which were held to have been voluntarily made.  The magistrate did so on the basis of his findings of facts together with his assessment on the credibility of the witnesses. In the circumstances, it is inappropriate for the appellate court to intervene.

5. It is apparent from the Reasons for Verdict that the magistrate had carefully considered all the evidence and that, in assessing the defendant’s case, he had properly excluded the adverse evidence given by the co-defendants against the defendant.  I see nothing erroneous in the verdict of guilty against the defendant and his appeal against conviction must accordingly be dismissed.

6. Turning to his appeal against sentence, the defendant’s complaint, as I understand it, is mainly directed at the magistrate’s order that the sentences were to run consecutively.  Firstly, in respect of the second offence, i.e. trafficking in dangerous drugs, clear sentencing guidelines have been laid down by the Court of Appeal.  For the dangerous drugs involved in the present case, an appropriate term of imprisonment is between 2 and 5 years.  The magistrate did not err when he adopted 2 years as the starting point.  The defendant was convicted after trial, and he had an extensive conviction record involving drug-related offences.  There were no mitigating factors. The 2 years’ imprisonment imposed by the magistrate was, therefore, eminently proper.

7. As for the offence of keeping a divan, the magistrate considered the case of HKSAR v. Ho Sai-chak (HCMA 780/1999) and sentenced the defendant to 12 months’ imprisonment.  The magistrate took the view that the nature of the offence of keeping a divan was different from that of trafficking in dangerous drugs, and the prosecution had to rely on another category of evidence to prove the defendant’s guilt for that particular offence.  For this reason, the magistrate ordered that the sentence for that offence was to run consecutively to that imposed for the offence of trafficking in dangerous drugs.

8. No sentencing guideline for the offence of keeping a divan has yet been laid down by the Court of Appeal.  Section 35 of the Dangerous Drugs Ordinance provides that:

35.    Keeping of divan

(1) No person shall open, keep, manage or assist in the management of a divan where ―

(a) a dangerous drug is sold in the divan to be smoked, inhaled, ingested or injected therein;

(b) a price or its equivalent is charged for the smoking, inhalation, ingestion or injection of a dangerous drug therein; or

(c) any benefit or advantage whatever, direct or indirect, is derived by such person in consequence of the smoking, inhalation, ingestion or injection of a dangerous drug therein.

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable ―

(a) on conviction on indictment, to a fine of $5,000,000 and to imprisonment for 15 years; and

(b) on summary conviction, to a fine of $500,000 and to imprisonment for 3 years.

9. As is clear from the cited section, the integral elements of the offence of keeping a divan include the provision of dangerous drugs, instruments for consuming dangerous drugs, and a place in which to consume dangerous drugs.  In light of this, the court should, in my view, consider the following factors when determining the starting point:

1.       The scale of operation of the divan: this includes the size of the divan, the number of drug addicts the divan could accommodate, the nature and quantity of equipment or instruments provided for consuming dangerous drugs, and the mode of operation of the divan;

2.       The degree of concealment of the divan and the protection it offered to the drug addicts;

3.       Whether the divan keeper supplied or sold in the divan any dangerous drugs to persons to be consumed therein, and the nature of the dangerous drugs supplied; and

4.       The profit derived by the divan keeper.

10. Generally speaking, divan keepers usually use private domestic premises as divans, which are therefore not easily detectable by the police.  Apart from providing paraphernalia and a sheltered place for consuming dangerous drugs, usually the keepers also sell dangerous drugs to drug addicts for consumption in the divan.  In my view, if a divan keeper has also supplied dangerous drugs in the divan, he should receive a higher sentence than that imposed on a drug trafficker of a similar scale.

11. In the present case, although the divan kept by the defendant was of a small scale, the defendant supplied dangerous drugs in the divan.  Therefore, with the above considerations in mind, including the fact that the defendant trafficked in dangerous drugs in the divan and the nature of the dangerous drugs, I think that the appropriate starting point should be 3 years.  Had the magistrate adopted 3 years as the starting point and sentenced the defendant to 3 years’ imprisonment on that basis, I would have accepted it as being appropriate.

12. Although keeping a divan and trafficking in dangerous drugs are distinct offences, section 35(1)(a) envisages that keeping a divan can include selling dangerous drugs in the divan.  In the present case, the offence of trafficking in dangerous drugs was part of the offence of keeping a divan.  Therefore, as a matter of sentencing principle, the two sentences should run concurrently, and the total sentence should also be 3 years.

13. The magistrate only sentenced the defendant to one year’s imprisonment for the offence of keeping a divan, but ordered that the sentence was to run consecutively with the sentence imposed for the offence of trafficking in dangerous drugs.  The total sentence was also 3 years.  Although the magistrate had in my view erred in principle, the total sentence can still be described as appropriate.  For this reason, I am not prepared to increase the sentence and then make an order for concurrent sentences.  The defendant’s appeal against sentence is dismissed accordingly.