HKSAR v. HU GUOQUAN also known as WU KWOK CHUEN

DCCC 83/2022

[2022] HKDC 824

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 83 OF 2022

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REASONS FOR SENTENCE

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

Facts

2.  At around 1443 hours on 30 September 2021, police officers raided Front Portion, 1^st Floor, No 21 Mong Kok Road, Mong Kok, Kowloon (“Premises”)  which contained a living room and 4 rooms with tables and chairs.  The defendant was at the cashier table in the living room whilst 19 individuals were found in the rooms.

3.  In particular, dangerous drugs, i.e. 3.61 grammes of a crystalline solid containing 3.51 grammes of methamphetamine hydrochloride, 1.42 grammes of a mixture containing 1.18 grammes of heroin hydrochloride, and 20 tablets containing 0.26 gramme of midazolam, were found in plastic bags in the drawer of the cashier table. There was also cash of $1,210.

4.  On the cashier table was an inhaling apparatus, a notebook, a ball pen, an electronic scale and a calculator.  In addition, some pieces of aluminum foil and betting slips were found in the Premises.  There were also 3 price lists for the drugs posted on the wall of the living room.

5.  The defendant was arrested at the scene.  Under caution, he admitted he was in charge of the Premises and the drugs seized there were for the purpose of sale.  He said he was employed by other people who paid him $800 per day to look after the Premises and he was aware of the drugs in the drawer of the cashier table and their nature.

6.  He also admitted the inhaling device was intended to be used by customers for consuming ICE.  The notebook and ball pen were for recording the transactions of dangerous drugs.  The electronic scale was for measuring the weight of the dangerous drugs and the calculator was for calculating the price of the drugs.

7.  Aluminum foil and betting slips found were for the customers to consume heroin and the price lists posted on the wall list out the price of heroin and methamphetamine for sale to customers in the Premises.

8.  The total estimated street value of the drugs was around $5,634.14.

Criminal Record

9.  The defendant has 4 criminal records involving convictions of 4 charges, of which 2 are drug related with 1 similar to the 2^nd charge for which he was sentenced to 3 years and 4 months’ imprisonment in 2013.  He was released on 6 October 2015.

Mitigation

10.  The defendant is aged 59.  He arrived in Hong Kong from mainland in 2005 and had received education up to Form 1 level. 

11.  He has separated from his wife.  He has 2 sons and 1 daughter, all in their 30s.  He used to be a technician earning $13,000 per month, but at the time of the offence he was unemployed.

12.  For 1^st charge, defence counsel submitted that the Premises are not of a large size and there were 19 people inside the premises at the time of police raid.  She said that the only cash of $1,210 were found.  She submitted that the divan was operating not on a huge scale, and that a starting point of about 18 months’ imprisonment would be appropriate.

13.  It is further said the defendant should be entitled to the full one-third sentencing discount by reason of his guilty plea.

14.  As for the 2^nd charge, defence counsel urged this court to adopt a combined approach in sentencing in view of the fact that various drugs are involved.  She submitted that a sentence starting point of about 4.5 years would be appropriate, and further submitted that, again, the defendant is entitled to the full one-third sentencing discount by reason of his guilty plea. 

15.  Lastly, she submitted that as the 2 offences took place at the same time, are of the same nature and out of the same act of the defendant, she asked this court to take into account the totality principle and to impose a mostly concurrent sentence.

Discussion

2^nd charge

16.  The maximum sentence for the 2^nd charge upon conviction on indictment is life imprisonment. 

17.  According to the case of R v Lau Tak Ming and Others [1990] 2 HKLR 370, the sentencing guideline for trafficking heroin up to 10 grammes is between 2 to 5 years’ imprisonment. 

18.  According to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the sentencing guideline for trafficking ICE up to 10 grammes is 3 to 7 years’ imprisonment. 

19.  The amount of midazolam involved in this case is 20 tablets totaling 0.26 gramme and is of less quantity compared to heroin and ICE.

20.  The total quantity of ICE and heroin is 4.69 grammes.  The ICE represents 74.8%, whereas heroin represents 25.2% of the two types of narcotics.

21.  Assuming all drugs trafficked were ICE (just counting the quantity of heroin and ICE), the sentence would be 58.5 months’ imprisonment.  Assuming all drugs trafficked were heroin, the sentence would be 40.8 months’ imprisonment. 

22.  Then applying the ratio test, the sentencing for trafficking the ICE in question would be 43.75 months’ imprisonment, and the sentence for trafficking the heroin in question would be 10.28 months’ imprisonment, making the total sentence for the drugs in question at 54 months’ imprisonment.

23.  Further, taking into account of the presence of the 20 tablets of midazolam, the court would adopt the sentencing starting point of 55 months’ imprisonment.

24.  The defendant has one previous similar conviction, but as he has been out of trouble since October 2015 upon his release from prison, the court is not going to enhance the sentencing starting point.

25.  The presence of 3 types of drugs, however, is an aggravating feature for which the court is enhancing the sentencing starting point by 5 months.  The appropriate sentencing starting point for the 2^nd charge is, therefore, 60 months’ imprisonment.

26.  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.

27.  The defendant has pleaded guilty and by reason of that, he is entitled to the full one-third sentencing discount.  The defendant is, therefore, sentenced to 40 months’ imprisonment.

28.  This court notes, however, the defendant himself is a heroin abuser.  For this reason, this court accepts that part of the drugs were for his own consumption.  The court is, therefore, willing to discount the sentence by 2 months’ imprisonment to 38 months’ imprisonment for the 2^nd charge.

1^st charge

29.  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 usually from 12 months in the magistracy to 3 years and 6 months in the District Court.

30.  In the case of HKSAR v Cheung Yiu Fai Alex, CACC 173/2005, the Court of Appeal upheld the sentencing starting point of 2 years for the applicant, a drug addict who had been the keeper of a flat for 2 days earning $450 per day.

31.  In our case here, at the time of the raid there were 19 persons in the divan.  The defendant himself admitted managing the divan and selling drugs for others in the divan to consume.  There were 3 types of drugs involved and the defendant was paid to work there as a keeper.  He is going to be 60 years old and has been out of trouble since October 2015 upon his release from prison.

32.  Inside the premises, prices for the different dangerous drugs were displayed on a wall.  The price of the drugs were calculated by the calculator and the weight were measured by the electronic scale inside the flat.  Inhaling device for ICE and aluminum foil for inhaling heroin were found.  There was also a notebook and ball pen for marking and recording the transactions for the dangerous drugs.

33.  Considering the scale of operation and the defendant’s role in managing 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’ imprisonment.

34.  The defendant has pleaded guilty and is, therefore, entitled to the full one-third sentencing discount.  He is, therefore, sentenced to 14 months’ imprisonment for the 1^st charge.

35.  In committing this offence, the defendant is providing a venue for the consumption of dangerous drugs as well as paraphernalia for such activity.  The commission of this 1^st charge, therefore, clearly added to his culpability in the commission of the 2^nd charge.  The elements of the offence for the 1^st charge is also different from that in the 2^nd charge.

36.  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 44 months’ imprisonment.

37.  Accordingly, the court is now ordering that 6 months of the sentence in the 1^st charge is to run consecutive to the sentence in the 2^nd charge, and the rest to run concurrently, making the total sentence for the defendant in respect of the 2 charges as 44 months’ imprisonment.