COURT: The defendant pleaded guilty to one charge of managing a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, and also to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The 1st charge alleges that between the 29th day of March 2023 and the 19th day of April 2023, he kept a divan at Room F on the 6th Floor of Tsun Win Factory Building on Tsun Yip Street, Kwun Tong where dangerous drugs including ‘Ice’, heroin and cocaine were sold and were to be smoked, inhaled, ingested or injected therein.
In respect of the 2nd charge, it relates to the fact that on the 19th day of April 2023 he unlawfully trafficked in 10.06 grammes of cocaine narcotic, 21.22 grammes of ‘Ice’ narcotic and 11.36 grammes of heroin narcotic at that said address.
According to the Summary of Facts to which he admitted at the time of his plea of guilty, on the morning of 19 April 2023, police officers mounted an anti‑narcotics operation at the Tsun Win Factory Building on Tsun Yip Street, Kwun Tong.
At about 11.51 am on that day, the police saw a male and a female pressing the doorbell of Room F on the 6th Floor of that building. When the door was opened, the police appeared and then they entered the room for investigation.
The room was about 500 square feet in size with a toilet and a living room with five tables. At the time, the defendant was occupying one table while six other persons, not including the male and the female earlier, they were also occupying different tables. There were some syringes and bottles on those tables. Upon examination by the Government Chemist, five bottles found could be used as inhaling devices and eight bottles were found to contain some liquid containing some solid of cocaine or ‘Ice’.
Inside the sling bag being carried by the defendant, the police found a total of 45 plastic bags of ‘Ice’, 49 plastic bags of cocaine, 43 plastic bags of heroin, one notebook with three pieces of papers, one mobile phone and cash in the sum of $17,940.
Upon search of the room, the police also found one paper packet containing 0.06 gramme of a mixture containing heroin hydrochloride (Exhibits 18 and 19), one paper packet with a plastic spatula containing 0.19 gramme of a mixture containing 0.08 gramme of heroin hydrochloride and traces of midazolam (Exhibits 20 to 22), and also a quantity of items fit for weighing and smoking of dangerous drugs including bottles, tin foil, plastic bags, lighters, plastic straws, syringes, glass tubes and four electronic scales.
So, in summary, a total of 10.06 grammes of cocaine narcotic, 21.22 grammes of ‘Ice’ narcotic and 11.36 grammes of heroin narcotic were found in the room with an estimated street value of $39,380 if the cocaine was in powder form, or $44,872 if the cocaine was in crack form.
The defendant was arrested for the offence of keeping a divan and he stated under caution that “As I have no job and have financial difficulty, I have opened the divan to be its head to earn more money”. Upon his arrest for the offence of trafficking in dangerous drugs, he said, “I just wanted to earn more money and so I sold drugs”.
In two subsequent video-recorded interviews he said that all the drugs seized belonged to him. He said he kept a divan at the room to earn money because he had financial difficulty. His friend Ah Shing introduced him the job to supply drugs to others at the room. He had been working at the room for about three weeks before his arrest, during which he had worked about three to four days a week. He operated the divan in the room 24 hours a day, and Ah Shing would work in the room while the defendant was not working there.
He said he was responsible for selling the drugs including heroin, cocaine and ‘Ice’ to the customers in the room. He would use the electronic scales found in the room to weigh the quantity of dangerous drugs requested by the customers, and then he would put them into the resealable plastic bags for supplying to the customers.
He said all the drug transactions were done by cash payments and he would write down the drug transactions onto some papers. He said the inhaling devices including the tin foils, cigarette lighters, syringes and plastic straws seized by the police were supplied by him to the customers for consuming drugs in the room. Someone would attend the room every day to collect the sales proceeds, and he would be paid his salary in cash on a daily basis according to the sales proceeds of that particular day. He would get 5 per cent of the sales proceeds as his salary.
He said at the time of police entry, the six persons in the room were consuming dangerous drugs therein; and the cash of $17,940 found on his person was the sales proceeds of the drug transactions done in the room on 19 April 2023. The mobile phone found on his person was for making drug deals and communication with his friends. He also said he had the habit of consuming heroin.
The defendant now admits and accepts that between the 29th day of March 2023 and the 19th day of April 2023, at the room he kept a divan where ‘Ice’, heroin and cocaine were sold and were to be consumed therein. He also admits and accepts that on 19 April 2023 he was knowingly in possession of all the drugs seized in this case for the purpose of unlawful trafficking.
The defendant is 64 years of age. He was 62 years at the time of the offences. He is single and he was unemployed at the time. He was a recipient of CSSA and he received about $4,500 of CSSA per month. He has a total of 34 criminal convictions including convictions for eight counts of trafficking in dangerous drug, 14 counts of possession of dangerous drug and six counts of possession of equipment fit for consuming or smoking dangerous drug. He was last discharged from prison in July 2018 for possession of dangerous drug. He has received primary 5 school education.
In mitigation, counsel Mr Francis Yip, urged this court to take into account the fact that he pleaded guilty at the earliest opportunity. Counsel urged this court to consider concurrent or highly concurrent sentences for both counts. In particular, counsel said the defendant contended that he would take one-third of the seized heroin for his own self-consumption and urged this court to give him an appropriate discount, exercising a discretion in favour of that matter. But he said that the defendant is not going to give or call evidence in support of this matter. He relied only on the fact that the defendant was a habitual heroin abuser and that his urine test report upon his admission into Lai Chi Kok Reception Centre showed that he was tested positive for various kinds of drugs including heroin.
Counsel admitted that even if this court accepts the contention that one-third of the heroin was for his own consumption, it does not amount to a significant proportion of the drugs seized in this case.
I shall now deal with the sentence for the 2nd count first. I bear in mind the approach as set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
In respect of the 2nd charge, the total narcotic content involved was 10.06 grammes of cocaine, 11.36 grammes of heroin and 21.22 grammes of ‘Ice’. The total quantity of narcotic was 42.64 grammes.
For trafficking in 21.22 grammes of ‘Ice’ narcotic, the mathematical starting point would be one of 7 years and 9 months’ imprisonment. For sentencing purpose, the trafficking of heroin and the trafficking of cocaine is equivalent, so for trafficking in the relevant quantity of cocaine and heroin in the 2nd charge the mathematical starting point should be one of 5 years and 10 months’ imprisonment for 21.42 grammes of cocaine or heroin.
If I adopt the individual approach, the overall sentence would be one of 13 years and 7 months’ imprisonment which would be too harsh and unjust as a result. So I will adopt the combined approach in sentencing the defendant.
In this case, ‘Ice’ is the more potent type of drug and I will take it as the base drug in my calculation, and then I will make the appropriate upward adjustment for the remaining amount of heroin and cocaine. I will test the starting point with the ratio test, absurdity test and the conversion test accordingly.
For the trafficking in 21.22 grammes of ‘Ice’ narcotic, the mathematical starting point is one of 7 years and 9 months’ imprisonment. If I adopt the absurdity test, treating all the drugs seized as ‘Ice’, then the starting point would be one of 9 years and 2 months’ imprisonment. If I treat all the seized drugs as cocaine or heroin, the starting point would be 7 years and 5 months’ imprisonment. Under the conversion test, the overall starting point would be 8 years and 3 months’ imprisonment. Under the ratio test, the overall starting point would be 7½ years’ imprisonment.
Bearing in mind all the circumstances of this case and the test result of the absurdity test, conversion test and ratio test, I consider that the appropriate initial starting point should be 8 years and 3 months’ imprisonment.
Then I would consider the role and culpability of the defendant. First of all, three types of dangerous drugs, namely cocaine, heroin and ‘Ice’ were found in this premises also there was in fact the fourth type, that is traces of midazolam was also found. That means the defendant had the ability to cater for a wider market and, of course, there is also the aggravating feature of the effect of this combination of dangerous drugs on the users. For that matter, that is the multiple kinds of drugs being found, I would consider that is an aggravating feature that would increase the starting point by 1 year, that is increase the starting point to 9 years and 3 months’ imprisonment.
I do not increase the sentence for his role of keeping a divan or managing a divan because that is the subject matter of the 1st charge already, and to avoid double-counting. In considering the role and culpability of the defendant, I will not raise the starting point for this matter.
So, after considering the overall starting point of 9 years and 3 months, I shall now come to the personal circumstances of the defendant. I consider that, according to his criminal record, he is a persistent offender especially when drug-related offences are concerned. As such it would be appropriate to treat this aggravating feature as one that would increase the starting point by another 12 months. So the starting point would be added up to a total of 10 years and 3 months’ imprisonment afterwards.
In respect of his mitigating factor, I do not accept counsel’s contention that one-third of the heroin was for his own consumption, and I also decline to exercise my discretion to give him any discount for that matter.
I do bear in mind the principles stated in the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 that when all or part of the drugs were intended for the trafficker’s own consumption, the discount of sentence should, depending on circumstances, fall somehow between 10 per cent and 25 per cent of the basic starting point. In determining the issue of self-consumption, the court must first find that a significant proportion of the drugs were to be consumed by the defendant before he is entitled to this 10 to 25 per cent discount.
According to the case of HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, up to 10 per cent of the quantity is not to be seen as a significant proportion.
In any event, a sentencing court has a discretion to discount a sentence to reflect an element of self-consumption.
In this particular case, counsel accepted that even if this court accepts that one-third of the quantity of heroin was for his own consumption, it does not amount to a significant proportion of the total drugs seized. That means he is not entitled to this 10 to 25 per cent discount.
Counsel only urged this court to exercise its discretion to give a small discount to reflect the element of self-consumption. I do bear in mind that on one hand, upon his arrest, he stated in the video-recorded interview that he was in the habit of abusing heroin and that upon his admission to Lai Chi Kok Reception Centre, the urine sample taken on 21 April 2023, the test resulted in positive for the drugs of amphetamine, opiate, benzodiazepine and cocaine. So, heroin or opiate was only one of the four types of drug that was tested positive from the urine test report.
On the other hand, it appears to me from the facts of this case, especially his admission under caution as stated in the Summary of Facts, that he was actively engaged in the trafficking of dangerous drugs and the management of the divan at the material time.
According to the Summary of Facts to which he admitted, there were over 137 plastic bags of cocaine, ‘Ice’ and heroin in the sling bag that he was carrying at the time of police entry, and according to his own admission to the police in the two subsequent video-recorded interviews, he would use the electronic scales in the room to weigh the quantity of the dangerous drugs requested by the customers and then put them into the resealable plastic bags for supply to the customers.
I do bear in mind that in this case the substantial quantity of the drugs of heroin, cocaine and ‘Ice’, they were all found in the plastic bags being carried in his sling bag, and that only a very minor quantity of heroin, namely Exhibits 18 and 19, one paper packet containing 0.06 gramme of a mixture containing heroin, and Exhibits 20 to 22, namely one paper packet with a plastic spatula containing 0.19 gramme of a mixture containing 0.08 gramme of heroin and traces of midazolam, they were not found in plastic bags.
So, on his own admission all the drugs found in the plastic bags, they were aimed for customers. I also bear in mind that he was already given 5 per cent of the sales proceeds as his own income for managing the divan and selling the drugs to the customers, and there was no mention of a free supply of heroin to him as a reward.
Indeed, upon my inquiry, counsel conceded that it was not a fact that one-third of the heroin was for his own consumption or possessed by him for his own consumption, but it was his own intention that in future, if he was not arrested by the police in this case, he would pay for one-third of the quantity of the heroin for his own consumption. So that is the main reason I reject the contention that indeed one-third of the heroin was already possessed for his own consumption.
On the other hand, I also bear in mind that he was unemployed at the time of his arrest and he only relied on the CSSA, and that the value of all the heroin seized in this case amount to over $11,000 and one-third of that amount would be around over $3,700, that is over 80 per cent of his monthly CSSA allowance. It is ridiculous to say that one-third was for his own consumption bearing in mind that he was unemployed.
So, taking into account the proximity of the heroin together with all the other drugs in the sling bag, the proximity of the heroin together with the drug money, that is the amount of cash found in the sling bag, and also the proximity of the heroin with the transaction record in the notebook and three pieces of paper, the quantity and the value of the heroin concerned, his admission in the subsequent video-recorded interviews and the fact that only a very minor quantity of heroin was found in paper packets, I reject counsel’s contention that one-third of the heroin was for his own consumption. And I also decline to exercise my discretion to give him any further discount for that contention.
The only mitigating factor that would give him a discount in this case is his early plea of guilty, and for such he is entitled to the full one-third discount. So, in respect of the 2nd count, I will sentence him to 6 years and 10 months’ imprisonment.
I shall now come to the sentence of the 1st offence of managing a divan. Given the scale of the operation, that means he had been operating the divan for about three weeks, a total of three to four types of drugs were involved - indeed, three main types of drugs were involved - the scale of the operation - as one can see that up to about noontime on 19 April, the sales proceeds was already $17,940 cash - the size of the divan of about 500 square feet, that it consisted of a total of five tables and that at the time of the police entry there was a total of eight customers - that includes the six customers already inside the divan and the male and the female being intercepted at the door - so bearing all those in mind I consider the appropriate starting point should be one of 2 years’ imprisonment. There being no other mitigating circumstances except for his early plea of guilty, I will reduce that to 1 year and 4 months’ imprisonment.
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 for 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. I do bear that particular principle in mind.
On the other hand, I also bear in mind the totality principle and the overall culpability of the defendant. I consider that it would be fair and just to order 6 months of the sentence in Charge 2 to run consecutively to the sentence in Charge 1, making a total sentence of 7 years and 4 months’ imprisonment.
So, to recap, for the 1st charge he is sentenced to 1 year and 4 months’ imprisonment. For the 2nd charge he is sentenced to 6 years and 10 months’ imprisonment. 6 months of the sentence in Charge 1 is to be served consecutively to the sentence in Charge 2, so the total sentence is 7 years and 4 months’ imprisonment.