The defendant pleaded guilty to one charge of trafficking in dangerous drugs and one charge of keeping a divan in the magistracy and admitted the relevant Summary of Facts.
Admitted Facts
She has admitted the Summary of Facts prepared by the prosecution, which in gist, is as follows.
At 2.15 pm on 9 February 2023, the defendant opened the door for police officers to enter the flat particularised in the two charges. There were 36 other individuals sitting around some tables in the flat. The flat was about 700 square feet with a living room and a toilet. The defendant admitted she was the person-in-charge of the flat.
The police found 29.5 grammes of heroin hydrochloride, 14.9 grammes of methamphetamine hydrochloride and 0.24 grammes of midazolam at various places inside the flat. They were variously packed into packets, plastic bags and foilpacks.
The following items were also found: Cash of HK$17,300, four glass bottles, each attached with a plastic straw, a glass bottle attached with a plastic straw, new and burnt aluminium foils, three packs of garbage bags, numerous resealable plastic bags of different colours, five lighters, a calculator, two digital scales, two notebooks and a box of pens of different colours, a cylinder containing plastic straws and four price lists of dangerous drugs which were hung on the walls.
The total estimated street value of the dangerous drugs was HK$37,229.
Upon arrest for keeping a divan and under caution, the defendant admitted she worked in the flat and was responsible for selling illicit drugs to others. Upon further arrest for trafficking in dangerous drugs and under caution, she claimed that it was her first time of selling drugs and she asked for a chance.
She claimed in her video-recorded interview that one week before her arrest in the present case, someone referred her to be the keeper of the flat at a daily wage of $2,000.
She was responsible for selling illicit drugs. She knew that they were heroin, methamphetamine and midazolam in the flat, and that they were packed in different colours to reflect different quantities. The cash found were drug proceeds. The other items found were for drug-related purposes.
Background and Mitigation
Based on the defendant’s antecedent statement, her criminal record and the submissions of Ms So, who represents the defendant, the defendant’s background is as follows.
The defendant is single and 55 years old. She was 53 years old at the time of offence. She is educated up to Form 3 level. She has eight previous convictions, one of which is trafficking in dangerous drugs, sentenced in 2009 to 6 months’ imprisonment.
She used to live with her boyfriend, but he suddenly passed away in around mid-2022 from complications of COVID and pneumonia. She used to have gainful employment. She stayed away from drugs after meeting her boyfriend in 2015.
However, his sudden death has hit her badly and she eventually went back to her previous undesirable friends and took up drugs again. In order to support her drug habit, she agreed to be the keeper of the flat in question.
Ms So submitted that the defendant is very remorseful. She has been cooperative with the police and has pleaded guilty at the earliest opportunity.
Sentence
I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] HKCA 150.
Step one is to identify the relevant guideline band applicable to the quantity of narcotics concerned. There are three types of dangerous drugs in this case. The quantity of midazolam is negligible and can be disregarded.
For heroin, the Court of Appeal has laid down new sentencing guidelines on 5 March 2025 in the case of HKSAR v Huang Ruifang [2025] HKCA 234. Following the new guidelines, trafficking in 10 to 50 grammes of heroin would attract a starting point of 2 to 8 years’ imprisonment. There is 29.5 grammes of heroin in the present case. The starting point for sentence on a purely arithmetical basis is 6 years and 5 months of imprisonment.
For methamphetamine hydrochloride, Huang Ruifang stipulates a starting point of 7 to 11 years for trafficking in 10 to 70 grammes of the dangerous drug. There is 14.9 grammes in the present case. The starting point for sentence on a purely mathematical basis is 7 years and 3 months of imprisonment.
I agree with Ms So that this is a case suitable for adopting the combined approach. The absurdity, conversion and ratio tests indicate the lowest starting point to be 7 years and 10 months.
Step two is to assess the role of the defendant. On her own admission, she was selling dangerous drugs as the keeper of a divan, which was of a moderate scale.
Step three is to decide where within the guidelines the defendant should lie. Given my assessment of her role, I enhance the starting point by 1 year to 8 years and 10 months.
Step four deals with aggravating factors. The defendant has eight previous convictions, one of which trafficking in dangerous drugs. Her criminal record shows her disregard for the law and the lack of deterrence of the previous sentences on her. For this, I enhance the starting point by 5 months to 9 years and 3 months.
Trafficking in a cocktail of dangerous drugs is an aggravating factor, but keeping a divan necessarily involved different types of dangerous drugs. As I have enhanced the sentence for her role, I will not enhance the sentence further for this reason.
Step five considers the mitigating factors. I do not regard the defendant’s personal or family circumstances as any mitigating factor. As the Court of Appeal emphasised in HKSAR v Abdallah [2009] 2 HKLRD 437, at paragraph 32:
“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”
The only mitigating factor open to the defendant is her guilty plea entered at the earliest opportunity. For that, she is entitled to a full one-third discount. The sentence for Charge 1 is therefore 6 years and 2 months’ imprisonment.
Charge 2
I have considered the cases cited by Ms So and the prosecution, having considered the scale of the divan, I adopt a starting point of 15 months of imprisonment. Reducing it by one-third to 10 months for the defendant’s plea.
In order to ensure that the overall sentence in this case is one that is fair, just and balanced in all the circumstances of the offences and the defendant, I order that the sentence in Charge 2 is to run concurrently with that in Charge 1.
The defendant is therefore sentenced to 6 years and 2 months’ imprisonment.