HKSAR v. TAI WAI WAH (also known as TAI TIN CHUN)

DCCC 717/2020

[2021] HKDC 608

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 717 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  Defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (1^st charge), and a charge of keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (2^nd charge) on his own plea and agreement to Summary of Facts.

Facts

2.  At around 2:42 pm on 19 May 2020, during an anti-dangerous drugs operation, a team of police officers raided the premises in the particulars of offence on the strength of a search warrant.  A metal gate and a wooden door were installed at the front entrance of the flat.  The flat measured 500 square feet in size and consisted of 1 living room, 2 bedrooms, 1 kitchen and 1 bathroom. 

3.  At the time of the raid, defendant and 10 other people were present inside the flat.  Defendant was seen standing near a table while the others were either sitting around other tables or was sitting inside the bedrooms of the flat. 

4.  Upon inquiries, the flat was found to have been kept as a divan whilst defendant was its keeper.  Upon house search, the following contraband were found inside the flat:-

(1)  35 small resealable plastic bags containing a total of 5.09 grammes of a crystalline solid containing 4.8 grammes of ‘Ice’;

(2)  6 small resealable plastic bag containing a total of 3.98 grammes of a crystalline solid containing 3.9 grammes of ‘Ice’;

(3)  23 packets containing 2.51 grammes of a mixture containing 2.06 grammes of heroin hydrochloride;

(4)  18 foilpacks containing a total of 0.21 gramme of midazolam;

(5)  1 resealable plastic bag containing a tablet fragment containing 6 milligrammes of midazolam; and

(6)  some dangerous drugs containing paraphernalia including inhaling devices, aluminium foil and lighters.

5.  The estimated street value of the dangerous drugs seized in this case is approximately HK$7,936.

6.  Defendant was arrested.  Under caution at the scene, he admitted to be the keeper of the divan at the flat and he had sold dangerous drugs to consumers thereat. 

7.  During a subsequent video-recorded interview conducted by the police, the defendant under caution admitted the following, including:-

(a)  He has been suffering from diabetes and mental illness for many years and he has been required to take care of his ill mother;

(b)  He sells ‘Ice’ and heroin hydrochloride;

(c)  The midazolam was for his own consumption and he has the supporting medical certificate for the possession of the same;

(d)  The glass bottle found inside the flat was for inhaling ‘Ice’ whilst the aluminium foil was for inhaling heroin hydrochloride;

(e)  The digital scale found inside the flat was for weighing the dangerous drugs whilst the calculator was for calculating the prices of the dangerous drugs;

(f)  The selling price of dangerous drugs was displayed on the wall inside the flat;

(g)  He has been working at the flat for 3 days on 24 hours’ shifts; and

(h)  He was a CSSA recipient.

8.  At the time of arrest, he had in his possession $372 cash and 2 mobile phones. 

Criminal record

9.  Defendant had 11 criminal records involving convictions of 14 charges, of which 3 are drug-related, with one similar to the 1^st charge for which he was sentenced to 3 years and 4 months’ imprisonment in the year 1998.

Mitigation

10.  Defendant is aged 61.  He is single.  He received education up to Form 3.  At the time of arrest, he was unemployed.  He has pleaded guilty at the earliest opportunity.

11.  It is also submitted by defence counsel that when the defendant was admitted to Lai Chi Kok Reception Centre, his urine test showed positive for amphetamine and opiate. 

12.  It is also said that although the defendant has criminal records relating to drug offences, he did not commit offence since his last conviction in the year 2004. 

13.  Defence counsel submitted that as defendant had abused heroin and amphetamine himself, he was reported to have auditory hallucination, and was diagnosed to suffer from dependent syndrome due to the use of multiple drugs and psychotic disorder induced by multiple drugs. 

14.  Defendant wrote to this court also a mitigation letter where he says that part of the drugs was for his own consumption, and that he was employed to run that divan business as he needed the money and the means to consume the drugs. 

15.  It is also admitted that the defendant’s urine test supports he is a drug abuser himself.  He quoted also the case of HKSAR v Wong Suet Hau[1] and he submitted that the value of the drugs is affordable to the defendant.  In open court, this court has already disputed the same on the basis that defendant said he was on CSSA himself and was unemployed. 

16.  Defence counsel asked this court for sentencing discount by reason of defendant’s guilty plea.  Defence counsel also urged this court to consider a wholly or partly concurrent sentence in respect of the 2^nd charge to the sentence in 1^st charge and asked this court to pass the defendant the lowest possible sentence. 

Discussion

1^st charge

17.  The maximum sentence for the 1st charge upon conviction upon indictment is life imprisonment. 

18.  According to the case of R v Lau Tak Ming and Others[2], the sentencing guideline for trafficking heroin up to 10 grammes is between 2 to 5 years’ imprisonment.  And there, according to the case of HKSAR v Tam Yi Chun[3], the sentencing guideline for trafficking in ‘Ice’ up to 10 grammes is 3 to 7 years’ imprisonment. 

19.  The sentence for trafficking in ‘Ice’ alone in this case is 77.76 months’ imprisonment and the sentencing for trafficking in heroin alone is 31.4 months’ imprisonment. 

20.  Conversion test cannot be applied in the present case as the starting point for trafficking in ‘Ice’ starts from 3 years’ imprisonment.

21.  The total quantity of narcotics involved is 10.76 grammes.  Applying the ratio test, the ‘Ice’ and the heroin represent roughly 81% and 19% of the total quantity of narcotics respectively.  Assuming all drugs trafficked are ‘Ice’, the sentence would be 84.5 months’ imprisonment.  Assuming all drugs trafficked were heroin, the sentence would be 60.7 months’ imprisonment.  The sentence for trafficking the ‘Ice’ in question is therefore 68.445 months’ imprisonment and the sentence for trafficking the heroin in question is 11.53 months’ imprisonment.  Total sentence for the drugs in question, applying the ratio test, would be 79.975 months’ imprisonment. 

22.  This court would take the same at 79 months’ imprisonment. 

23.  Defence counsel submitted to the court and as confirmed by urine test report, defendant is a drug abuser.  Nevertheless, there is no evidence before this court that the defendant did have the significant portion of the drugs in question for his own use. 

24.  It is submitted by the defendant that the premises where the drugs were found was a divan managed by him who was employed working there, and that he is a CSSA recipient. 

25.  When the police raided the place, there were 10-odd people apart from the defendant at the premises and the drugs in question were all individually packed.  There was also a paraphernalia for inhaling the drugs at the site including also the balance and the calculator.  In the circumstances, this court as said would not accept that a significant portion of the drugs seized (which form particulars of the charge) was for defendant’s own consumption.  

26.  The appropriate starting point for trafficking the drugs in question would remain at 79 months’ imprisonment. 

27.  Two types of drugs were trafficked in this case.  This is an aggravating feature and a sentencing starting point for which would be enhanced by 5 months to 84 months’ imprisonment. 

28.  Trafficking in dangerous drugs is a serious offence and in usual circumstances it is well established that personal background and circumstances is not considered a valid mitigating factor. 

29.  This court has carefully considered mitigation advanced by defence counsel, including the mitigation letter by the defendant, and found that the most valid mitigating ground is that of defendant’s timely plea, of which he is entitled to one-third sentencing discount. 

30.  Defendant is a drug abuser himself.  This court is willing to further discount his sentence by 3 months to 53 months’ imprisonment. 

31.  Defendant is therefore sentenced to 53 months’ imprisonment for this charge.

2^nd charge

32.  There are no guidelines for the offence of keeping or managing a divan. The maximum sentence of which is 15 years’ imprisonment and a fine of 5 million. An immediate sentence of imprisonment are imposed, ranging from 12 months in the magistracy to 3 years and 6 months’ imprisonment in the District Court.[4]

33.  In the case of HKSAR v Cheung Yiu Fai, Alex[5], the Court of Appeal upheld a starting point of 2 years for the applicant, a drug addict, had been the keeper of a flat for two days, earning $450 per day. 

34.  In our case here, at the time of the raid there were 10 other persons in the divan.  Defendant himself admitted intended selling drugs in the divan for others to consume thereat, although he had not managed to do so on the day in question at the time of raid. 

35.  The drugs involved were heroin and ‘Ice’.  Defendant is paid to work there as a keeper.  He is in his 60s and has been out of trouble since the year 2004. 

36.  Inside the premises, prices for the dangerous drugs were displayed on a wall.  Weight of the drugs were marked on the packaging of the dangerous drugs.  Glass bottle for inhaling ‘Ice’ and aluminium foil for inhaling heroin were found.  Digital scale for weighing the dangerous drugs and a calculator for calculating the price of dangerous drugs were also located within the premises. 

37.  Considering the scale of operation and the defendant’s role in keeping the divan, the mitigation done on his behalf, circumstances under which he committed the present offence, this court adopts a sentencing starting point of 21 months. 

38.  As he pleaded guilty at the earliest opportunity, he is afforded full one-third sentencing discount.  He is sentenced therefore to 14 months’ imprisonment for this charge. 

39.  In committing this offence, the defendant is providing a venue for consumption of dangerous drug as well as paraphernalia for such activity. There is clearly added culpability of the defendant in addition to the culpability in committing 1^st charge. 

40.  Coming to consider the totality principle and the overall culpability of the defendant in this case, this court considers that the just and proportionate total sentence should be 59 months’ imprisonment. 

41.  Accordingly, the court is now ordering that 6 months of the sentence in the 2^nd charge is to run consecutive to the sentence of the 1^st charge and the rest of the sentence in the 2^nd charge, ie, 8 months, is to run concurrent to the sentence in the 1^st charge, making the total sentence for the defendant in respect of two charges as 59 months’ imprisonment.