HKSAR v. LAU WAI YEE

DCCC 891/2024

[2025] HKDC 36

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 891 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The Defendant pleaded guilty to one charge of keeping a divan (“Charge 1”), contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 and one charge of trafficking in dangerous drugs, namely 1.32 grammes of a mixture containing 1.04 grammes of heroin hydrochloride, 0.91 gramme of a solid containing 0.65 gramme of cocaine and 70 tablets containing 0.90 gramme of midazolam (“Charge 2”), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  I found the Defendant guilty as charged after she admitted the Summary of Facts.

FACTS ADMITTED

3.  During an anti-narcotics operation conducted by the police in Mongkok, Kowloon, on 28 February 2023, a team of officers laid ambush in the vicinity of a residential flat located at Room A, 5/F, Kwong Ah Building, Nos 15-17 Argyle Street, Mongkok, Kowloon (the “Flat”), which was being operated as a divan (the “Divan”).

4.  At approximately 9:55 am, PC16826 (“PW2”), posing as a customer, successfully caused the Defendant, who was the keeper of the Divan, to open the front door of the Flat.

5.  PW2 and his colleagues immediately entered the Divan and conducted a raid on the authority of a search warrant.

6.  At the time of the police’s entry, a total of five male individuals were found inside the Flat, in addition to the Defendant.

7.  The interior of the Flat measured approximately 329 square feet. There were one living room, one bathroom, one open kitchen, and two bedrooms. There were two doors for accessing the Flat: one at the front door, the other at the rear. Customers of the Divan could only enter the Flat through the rear entrance, which was secured by two heavy-duty doors.

8.  A body search was conducted on the Defendant, during which HK$7 and a mobile phone installed with a SIM card were found.

9.  In the presence of the Defendant, the police conducted a search of the Flat and found the following items placed on a table in the living room (“Table 1”)  a blue tin box labelled “Cash Box”, which contained the following items, namely:

(a)  7 capsules containing a total of 0.85 gramme of a mixture, which contains 0.67 gramme of heroin hydrochloride;

(b)  1 capsule containing a total of 0.47 gramme of a mixture, which contains 0.37 gramme of heroin hydrochloride;

(c)  2 plastic bags containing a total of 0.75 gramme of a solid substance, which contains 0.52 gramme of cocaine;

(d)  2 plastic bags containing a total of 0.16 gramme of a solid substance, which contains 0.13 gramme of cocaine; and

(e)  7 foil packs containing a total of 70 tablets, which contains 0.90 gramme of midazolam.

10.  The Government Chemist confirmed that the items mentioned above were dangerous drugs with a total composition of 1.32 grammes of a mixture containing 1.04 grammes of heroin hydrochloride, 0.91 gramme of a solid substance containing 0.65 gramme of cocaine, and 70 tablets containing 0.90 gramme of midazolam. The estimate street value of the dangerous drugs involved is approximately HK$5,003.50.

11.  Drug associated paraphernalia, including a digital scale, lighters, straws, aluminium foil, transparent glass bottles and cash in the sum of HK$2,210 were found on Table 1.

12.  Some smoking paraphernalia, including aluminum foil and lighters, were also found on other tables inside the living room of the Divan. A price list for the dangerous drugs was posted on the wall of the living room.

13.  Subsequently, the police arrested the Defendant on charges of “Keeping a Divan” and “Trafficking in dangerous drugs”. Under caution at the scene, the Defendant admitted inter alia the following:

(a)  She lost her identity card, was the person in charge of the Divan and was responsible for opening the door of the Divan to its customers and also selling dangerous drugs to them; and

(b)  The dangerous drugs found and seized were for selling to the customers of the Divan.

14.  During the video-recorded interview conducted by the police with the Defendant that afternoon, the Defendant admitted under caution inter alia the following:

(a)  She worked in the Flat, responsible for opening the door and selling dangerous drugs to customers;

(b)  A person named “Wong Jei”, whom she met four days ago in Tong Chau Street Park, introduced her to this job, with a salary of HK$1,400 per day;

(c)  Before her arrest, she had worked in the Flat for a total of two days, thus earning HK$2,800;

(d)  She does not have Wong Jei’s contact information and does not know the customers of the Divan;

(e)  The drugs sold in the Flat included cocaine, heroin, and Midazolam;

(f)  The drugs in the Flat existed before she arrived;

(g)  The cash found in the Flat came from the proceeds of selling dangerous drugs;

(h)  The paraphernalia used for consuming dangerous drugs was for customers to use in the Flat;

(i)  The price list posted on the wall was related to the prices of the dangerous drugs sold in the Flat; and

(j)  She herself is also a habitual user of dangerous drugs.

BACKGROUND AND CRIMINAL RECORD

15.  The Defendant is now 50 years old and was educated up to Form 4 level. She is divorced and has a son but she is no longer in contact with him. She has a mother aged 80 years old, one elder sister and one elder brother. The family relationship is harmonious.

16.  The Defendant had worked as a cleaner and was unemployed at the time of arrest.

17.  The Defendant has got two previous convictions: one of possession of dangerous drug in 2017 and one of theft in 2019. She was respectively sentenced to the Drug Addiction Treatment Centre and fined for the two offences.

MITIGATION

18.  I have taken into account everything that can be said on behalf of the Defendant. In mitigation, Ms Stephanie Ko, counsel for the Defendant said the Defendant has never been to prison before. I was told that the Defendant is very remorseful, and she fully cooperated with the police when she was arrested.

19.  In mitigation, Ms Ko urged the court to be as lenient to the Defendant as possible. She further submitted that the two charges were closely related to each other. Considering the proximity of the two charges and the principle of totality of sentence, she urged the court to order the sentences of both charges to run concurrently.

SENTENCING CONSIDERATIONS

Charge 1: Keeping a Divan

20.  I first deal with the charge of keeping a divan. There is no sentencing tariff for this type of offence but it carries a statutory maximum sentence of 15 years’ imprisonment. In the case of HKSAR v Fung Wai Hing, HCMA 665/2000 [1995-2000] HKCLRT 543, Deputy High Court Judge A To considered the following factors pertinent to sentencing a keeping of divan case:

“(1)  The scale of operation of the divan, this includes the size of the divan, the number of drug addicts that the divan could accommodate, the nature and quantity of the 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;

(4)  The profit derived by the divan keeper.”

21.  Ms Ko drew my attention to the case of HKSAR v Lam Lai Chu Patsy (CACC 56/2003)  in which the Court of Appeal, after being taken through a number of previous sentencing decisions, said the sentence for keeping a divan ranged from 12 to 24 months’ imprisonment.

22.  In the present case, there was a certain level of concealment of the Divan as there were two doors for accessing the Flat and customers of the Divan could only enter the Flat through the rear entrance, which was secured by two heavy-duty doors. Ms Ko submitted that although the Divan had two entries, only one was functional. It was submitted that the Divan was not obvious to the passer-by. It was submitted that the facts of the current case are not the most serious of its kind. The Flat was small, measuring about 329 square feet with one living room, one open kitchen and two bedrooms. Furthermore, only 6 people (including the Defendant)  were found in the Flat. The scale of the Divan was small and should attract the lower range of term of imprisonment.

23.  Given the total quantity of narcotics involved, the number of customers, the size of the Flat, the amount of paraphernalia found on site, I consider the appropriate starting point is 21 months’ imprisonment. 

24.  The only valid mitigation in this case is the Defendant’s plea of guilty. The Defendant is entitled to the full one-third discount for her timely plea in recognition of her remorse and in saving of the court’s time. After the reduction, the Defendant is sentenced to 14 months’ imprisonment.

Charge 2: Trafficking in dangerous drugs

25.  Trafficking in dangerous drugs is a serious and reprehensible offence. The law relating to the sentencing of drug trafficking offenders was refined and clarified by the Court of Appeal in a case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug.

26.  With these general principles in mind, I now turn to the six steps laid down in that judgment.

27.  The first step is to identify the relevant guideline band applicable to the quantity of dangerous drug concerned. There are three types of drugs involved in the trafficking charge, namely (1)  1.04 grammes of heroin hydrochloride, (2)  0.65 gramme of cocaine and (3)  0.9 gramme of midazolam.

28.  Ms Ko has correctly submitted that cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming and others [1990] 2 HKLR 370 apply to cocaine. This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342. Since the same tariff apply to heroin and cocaine, I will add up the weight of heroin and cocaine. Given the total quantity of heroin (1.04 g)  and cocaine (0.65 g)  involved, that is (1.04 g + 0.65 g = 1.69 g), the relevant guideline band is up to 10 grammes for which the sentence is between 2 and 5 years’ imprisonment.

29.  As for midazolam, it was held in HKSAR v Choi Tung Cheung (蔡同祥), HCMA 759/2005 (unreported, judgment dated 29 November 2005)  that the tariffs for trafficking in midazolam should be the same as for trafficking in methaqualone.

30.  In AG v Chan Chi Man [1987] HKLR 221 it was held that for trafficking in under 500 grammes of the drug, the sentence can be one as the court thinks fit; and for trafficking in between 500 and 1,000 grammes of the drug, the sentence after trial should be 6 to 12 months’ imprisonment.

31.  I agree with Ms Ko that the quantity of midazolam in the present case is very low (0.9 gramme)  and of very low significance in comparison to the other types of drugs involved. What I am going to do is to simply ignore the presence of midazolam for the purpose of sentencing as it would have had a negligible effect on the overall sentence on the Defendant.

32.  The second step is to assess the Defendant’s role and culpability based upon the evidence. It is clear from the facts that she admitted that she was no doubt more than a mere courier or storekeeper of the drugs. She acted as a direct seller of the drugs to customers who came to the Flat. In Herry Jane Yusuph, Macrae VP made it very clear at paragraph 61 that a person directly involved in the selling of drugs possessed a higher level of culpability than the mere courier or storekeeper. Normally, it would call for an enhancement of the starting point. But since the Defendant has already been charged with an additional offence of keeping a divan (Charge 1), to which she had also pleaded guilty. For this reason alone, I will not enhance the starting point on the trafficking charge in order to avoid double penalty on the Defendant for her role as a keeper of the Divan.

33.  The third step is to identify where in the relevant band the Defendant comes. Given that the total quantity of heroin and cocaine involved 1.69 grammes, a notional sentence after trial of 30 months (2 years and 6 months)  is appropriate.

34.  The fourth step requires me to consider whether there are, at present, any aggravating factors which might require me to enhance the starting point. There were 3 kinds of drugs being trafficked in the present case. The Court of Appeal in the case of HKSAR v Yim Hung Lui Ricky (嚴紅雷), CACC 266/2011 said at paragraph 11 of the judgment that “the presence of more than one type of drug in a drug trafficking offence is an aggravating factor because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”

35.  In HKSAR v Islam Azharul [2020] 1 HKLRD 644, there were four kinds of dangerous drugs. The Court of Appeal observed that because in such a situation the trafficker was able to cater to a far wider market than the trafficker in only one kind of drug, it warranted an enhancement of 6 months’ imprisonment (also see HKSAR v Wan Lau Mei (尹劉美), CACC 389/2013 and HKSAR v Law Num Chun (羅能珍)[2014] 5 HKLRD 500).

36.  Therefore, I enhance the notional starting point by 3 months for there being three kinds of dangerous drugs for a wider market. The overall starting point is 33 months.

37.  The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little.

38.  Having fully considered the mitigation put forward by Ms Ko, I consider that the only mitigating factor which may reduce the Defendant’s sentence is her timely plea. After deducting the customary one-third discount to plea, the sentence for Charge 2 is reduced to 22 months’ imprisonment.

39.  The last step is to observe the overall sentence to ensure that it is fair, just, and balanced in all the circumstances of the offence and of the offender.

40.  Ms Ko urged the court to consider the sentences on Charge 1 and Charge 2 to run concurrently. I do not agree. In the case of HKSAR v Ng Ka Wing Kevin, CACC 563/1999, the Court of Appeal held that when the Defendant is being sentenced to divan keeping and trafficking in the drugs that was being consumed in the same divan that he was keeping, the sentences can be ordered to run consecutively as the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters.

41.  The Court of Appeal also stated very clearly in the case of HKSAR v Chong Cho Kit (莊祖傑), CACC 363/2005, that trafficking in dangerous drugs and managing a divan are two distinct offences. In that case, although the two offences were committed at the same time and place, the Court of Appeal was of the view that on the facts and on the principle, it is appropriate for separate sentences to be imposed on them.

42.  When considering the totality principle in relation to Charge 1 and Charge 2, I also refer to the case of HKSAR v Lau Siu Fung (劉紹豐), also known as Lau Siu Tong, CACC 56/2017. The appellant was convicted on his own pleas of one count of trafficking in 11.68 grammes of heroin and one count of keeping a divan. The Court of Appeal held that the approach of the sentencing judge in imposing consecutive sentences for both charges cannot be faulted and that the consecutive element of 8 months’ imprisonment in respect of the charge of keeping a divan was neither manifestly excessive nor wrong in principle. Macrae JA (as he then was)  in that case said at paragraph 16 of the judgment that:

“16. The keeping of a divan, to which others could come, buy and consume dangerous drugs, is a matter that clearly aggravates the offence of trafficking, for the obvious reason that the keeper in such circumstances is not only providing the drugs in question, he is also providing the means, facilities and opportunity for their consumption. To repeat a well-worn phrase, the applicant in the present case was providing “a one-stop shop”.”

43.  After considering all the factors, I am of the view that an overall term of 28 months is just and proportionate to the Defendant’s overall culpability. To achieve this result, I order that 6 months from Charge 1 is to run consecutively to the sentence for Charge 2, the rest to run concurrently, resulting in an overall term of 28 months.

44.  The total sentence is 28 months’ imprisonment.