HKSAR v. LAI MEI LUN

DCCC 1062/2025

[2026] HKDC 1185

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1062 OF 2025

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to:

(1)  One count of keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1); and

(2)  One count of Trafficking in dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2).

Summary of Facts

2.  The Summary of Facts admitted by the Defendant is as follows:

Background

(1)  On 14 January 2025, police conducted an anti-narcotics operation at a flat at 1/F, No 323 Reclamation Street, Mongkok, Kowloon, Hong Kong (the Flat). The Flat was around 550 square feet.

(2)  At around 9:10 am on the same day, police rang the doorbell and entered the Flat with a search warrant executed after the Defendant opened the door. At the material time, the Defendant and 24 people were present in the living room of the Flat.

House Search

(3)  The Flat consists of a living room, an inner room and two bathrooms. House search was conducted at the Flat and the following items were found and seized:

On the door of the inner room

(1)  3 handwritten price lists for dangerous drugs with words such as “CRACK”, “ICE” and “stone” and numbers;

On the table in the inner room

(2)  A black tray with the following:

(1)  A transparent box containing:

(a)  5 plastic packets containing a total of 0.71 gramme of a mixture containing 0.56 gramme of heroin hydrochloride (E1);

(b)  3 plastic bags containing a total of 0.48 gramme of a solid containing 0.44 gramme of cocaine (E2);

(c)  2 plastic bags containing a total of 0.96 gramme of a crystalline solid containing 0.95 gramme of methamphetamine hydrochloride (a salt of methamphetamine)  (E3);

(d)  7 foil packs containing a total of 7 tablets containing 0.09 gramme of Midazolam (E4);

(2)  Cash HK$210;

(3)  An electric scale;

(4)  A calculator;

(5)  A pair of scissors;

(6)  A clip;

(7)  A container;

(3)  A can containing some straws;

(4)  A white box containing:

(1)  Some aluminum foil;

(2)  Some plastic sheets;

(3)  Packs of resealable plastic bags;

(5)  A transparent box containing 5 lighters; and

(6)  2 transparent glass bottles with straws attached;

On the 5 tables in the living room

(7)  1 transparent glass bottle with a straw attached;

(8)  14 pieces of burnt aluminum foil;

(9)  7 lighters

Arrest and Cautioned Admission

(4)  Upon enquiry, the Defendant admitted to be the person in charge of the Flat. The Defendant was thus arrested for “Keeping a Divan’. Under caution, the Defendant admitted that he was responsible for opening the door at the Flat and selling dangerous drugs to customers. The same was post-recorded in the police notebook and was signed and acknowledged by the Defendant.

(5)  The Defendant was further arrested for “Trafficking in Dangerous Drugs”. Under caution, the Defendant admitted that he was selling the dangerous drugs to the customers. The same was also post-recorded in the police notebook and was signed and acknowledged by the Defendant.

(6)  The estimated street values of E1 - E4 were:

(1)  E1’s value was HK$384.16;

(2)  E2’s value was $530.64;

(3)  E3’s value was HK$475,95; and

(4)  E4’s value was HK$322.

Body Search

(7)  Body search was conducted on the Defendant. A black wallet with HK$30 cash and a black mobile phone were found and seized from the Defendant.

Video-recorded cautioned interview

(8)  In the video-recorded cautioned statement, the Defendant stated, inter alia, that:

(a)  He was working at the Flat for around HK$1,200 per day;

(b)  He sold heroin and cocaine to the customers and he was responsible for opening the door of the Flat;

(c)  He had the habit of consuming heroin and cocaine;

(d)  He knew that E1 was heroin to be sold to the customers;

(e)  He knew that E2 was cocaine, E3 was ICE and E4 was Midazolam;

(f)  He did not know the 24 people in the Flat;

(g)  The price lists affixed on the door set out the price of “ICE”, cocaine and heroin;

(h)  The bottles and straws were used for inhaling drugs;

(i)  The burnt aluminum foils were used to heat heroin, and the lighters were for heating the foils;

(j)  The plastic sheets and the resealable plastic bags were for packing “ICE” and cocaine; and

(k)  The calculator was used for calculating the price of the dangerous drugs, and the pair of scissors was used for cutting heroin.

The Defendant’s Background

3.  The Defendant is 54 years old, divorced and was educated up to F2 level. Counsel submitted that the Defendant has been on heroin for over 20 years.

4.  The Defendant’s Background has 27 previous convictions, involving 40 charges, 2 of which were for possession of dangerous drugs and 2 for possession of equipment for inhaling dangerous drugs.

Discussion

Keeping a Divan

5.  There is no dispute that this is a very serious offence. Upon conviction on indictment, the maximum sentence is 15 years’ imprisonment and a fine of $5,000,000. There are no sentencing guidelines.

6.  Counsel admitted that there were 24 people inside the Flat but asked the Court to consider the amount of drugs found. She submitted that the amount of drugs and the equipment found do not show that the operation scale of the divan was large: HKSAR v Fung Wai Hing HCMA 665/2000.

7.  The customary range of sentence for this offence is 12 to 24 months’ imprisonment: HKSAR v Lam Lai Chu [2003] HKCU 947 CACC 56/2003, 6 August 2003, unreported. In HKSAR v Koon Po Tung [2019] 1 HKLRD B1, it was held that for a small scale divan selling ice and heroin for consumption on the premises, a starting point of 18 months’ imprisonment was appropriate. In HKSAR v Leung Chun Tat [2022] HKCU 548, the divan had 9 customers and was described as sizeable; morphine and methamphetamine we’re sold for smoking or injection on the premises. The court held that a starting point of 30 months’ imprisonment was appropriate.

8.  In the present case, there were 24 customers inside the premises. The operation was clearly sizeable. In my judgment, a starting point of 30 months’ imprisonment is appropriate.

Trafficking in Dangerous Drugs

9.  Trafficking in a Dangerous Drug is also a very serious offence. Upon conviction on indictment, the maximum sentence is life imprisonment and a fine of $5,000,000.

10.  The drugs involved in the present case are:

(1)  A total of 0.71 gramme of a mixture containing 0.56 gramme of heroin hydrochloride;

(2)  A total of 0.48 gramme of a solid containing 0.44 gramme of cocaine;

(3)  A total of 0.96 gramme of a crystalline solid containing 0.95 gramme of methamphetamine hydrochloride;

(4)  A total of 7 tablets containing 0.09 gramme of Midazolam.

11.  The Court of Appeal has laid down guidelines for this offence:

(1)  Up to 10 grammes of heroin would warrant a starting point of 2 - 5 years’ imprisonment;

(2)  Up to 10 grammes of cocaine would warrant a starting point of 2 - 5 years;

(3)  Up to 10 grammes of methamphetamine hydrochloride would warrant a starting point of 3 - 7 years’ imprisonment;

(4)  The starting point for under 500 grammes of Midazolam is discretionary.

12.  There is no dispute that under the arithmetic approach:

(1)  The starting point for trafficking in 0.56 grammes of heroin is 26.016 months;

(2)  The starting point for trafficking in 0.44 grammes of cocaine is 25.584 months;

(3)  The starting point for 0.95 grammes of methamphetamine hydrochloride is 40.56 months.

See HKSAR v Islam SM Majharul [2020] 3 HKLRD 146.

13.  The parties agreed that the Court should use the ratio test as cross reference: HKSAR v Yau Kai Fung CACC 208/2024 [2026] HKCA 885. I agree.

14.  There is no dispute that the total weight of the heroin, cocaine and methamphetamine in the present case is 1.95 grammes (ie 0.56 grammes + 0.44 grammes + 0.95 grammes). In applying the ratio test, heroin represents 0.287 of the total weight of 1.95 grammes; cocaine represents 0.2256 of the total weight of 1.95 grammes and 0.95 grammes of methamphetamine represents 0.487 of the total of 1.95 grammes.

15.  Counsel submitted that:

(1)  Assuming the whole of the 1.95 grammes were heroin, the appropriate starting point is 31.02 months (1.95 - 0 = 1.95/10 = 0.195 x 36 months = 7.02 + 24 months = 31.02 months. Applying the ratio of 0.287 to 31.02 months is 8.903 months;

(2)  Assuming the whole of the 1.95 grammes were cocaine, the appropriate starting point is 31.02 months (1.95 - 0 = 1.95/10 = 0.195 x 36 months =7.02 + 24 months = 31.02 months. Applying the ratio of 0.226 to 31.02 months is 7.011 months; and

(3)  Assuming the whole of the 1.95 grammes were methamphetamine, the appropriate starting point is 45.36 months (1.95 - 0 = 1.95/10 = 0.195 x 48 months = 9.36 + 36 months = 45.36 months. Applying the ratio of 0.487 to 45.36 months, the starting point is 22.090 months;

(4)  The overall starting point under the ratio test is hence 38.004 months (ie 8.903 + 7.011 + 22.090).

16.  I note that the appropriate starting point for trafficking in 0.95 grammes of methamphetamine alone is 40.56 months. In other words, the notional starting point under the ratio test is lower than the starting point appropriate for trafficking in the methamphetamine alone. Counsel invited this Court to adopt the result of the ratio test as the notional starting point.

17.  Counsel’s submission is not in line with the approach described by the Court of Appeal in Yau Kai Fung. In that case:

(1)  the Appellant pleaded guilty to trafficking in 130.44 grammes of a solid containing 112.66 grammes of ketamine and 6.57 grammes of a solid containing 1.95 grammes of cocaine (§ 1)

(2)  Defence counsel submitted to the court the calculation results of the absurdity test, the conversion test and the ratio test. The result of the ratio test yielded a starting point of 6 years and 9 months’ imprisonment, which was the lowest of the three results. Counsel invited the sentencing judge to adopt 6 years and 9 months as the starting point and to reduce it by one-third for the Appellant’s guilty plea, resulting in 4 years and 6 months’ imprisonment (§ 10);

(3)  Applying the combined approach, the sentencing judge used 112.66 grammes of ketamine as the base drug with a starting point of 6 years and 9 months. He then enhanced the sentence by 9 months for the 1.95 grammes of cocaine, arriving at a notional starting point of 7 years and 6 months. The judge considered that the Appellant’s role was “not just a courier, which is the lowest end of culpability”. Referring to the Appellant’s admission under caution that he would sell the drugs in bars, the judge considered that he was also a seller of the drugs, for which he enhanced the notional starting point by 6 months to 8 years’ imprisonment. After giving a full one third discount for his guilty plea, the judge sentenced the Appellant to 5 years and 4 months’ imprisonment (§ 11);

(4)  The defendant appealed against that sentence. He argued that the result of the ratio test should have been 6 years and 11 months and that a notional starting point of 7 years and 6 months was manifestly excessive (§ 23);

(5)  The Court of Appeal noted that, in terms of the individual quantity of the dangerous drugs concerned, the applicable guideline band for 1.95 grammes of cocaine (up to 10 grammes: 2 to 5 years’ imprisonment)  and that for 112.66 grammes of ketamine (50 grammes to 300 grammes: 6 to 9 years’ imprisonment)  (§ 20);

(6)  The Court of Appeal pointed out that:

(a)  The quantity of dangerous drugs was an important consideration, as were the number and type of drugs (§ 21);

(b)  Another important consideration when sentencing for drug trafficking is the role and culpability of tge offender. The judge found that the Appellant was a direct trafficker who sold drugs in public places (§ 23);

(c)  The sentencing was correct in adopting the combined approach (§ 21). The combined approach sets a starting point based on the most serious drug, and then adjusts it to reflect the total quantity of the other drug or drugs (§§ 26 - 27);

(d)  In Chan Yuk Leong CACC 318/2013, the three “check tests” for trafficking in a cocktail or combination of drugs were described by the court as “only methods whereby the court cross checks whether the total sentence is appropriate”, and not as primary mechanisms for fixing the notional sentence after trial. They were properly applied in that limited way in Islam SM Majharul, where all three were used as benchmarks when adjusting from a base drug starting point, rather than as the source of that starting point (§ 30);

(e)  Since Herry Jane Yusuph [2021] 1 HKLRD 290, sentencing has proceeded under a six-step structure anchored in guideline bands for each dangerous drug. In brief, the sentencing court should (i)  identify the relevant guideline bands by reference to the type and quantity of drug (Step 1); (ii)  assess the defendant’s role and overall culpability based on the evidence before the court (Step 2); (iii)  identify where in that guideline bands, or exceptionally outside it, the defendant should properly fall (Step 3); (iv)  identify and reflect any aggravating factors that justify an upward adjustment from that provisional position (Step 4); (v)  identify and assess any mitigating factors - including, but not limited to, plea and genuine assistance - that justify a downward adjustment from the notional sentence after trial (Step 5); and (vi)  finally, stand back and review the overall sentence to ensure that, applying the totality principle in the manner explained in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. The court guards against an overall sentence that, through the aggregation of counts or aggravating factors, is inflated or out of proportion to the defendant’s criminality (Step 6)  (§ 31 - 33);

(f)  For the ratio test, under Herry Jane Yusuph, at Steps 1 to 3 of the structured approach, the court must identify the applicable guideline bands, assess the offender’s role and culpability, and fix a notional sentence after trial. In cases involving a cocktail or combination of drugs, this exercise necessarily requires translating more than one band into a single notional starting point. The primary task of fixing that notional sentence remains a matter of principled evaluative judgment, informed by the guideline authorities. Each drug is first matched to its own guideline band, using the revised guidelines in HKSAR v Huang Ruifeng (No 3) [2025] 2 HKLRD 138 for heroin and cocaine as well as Ice. The sentencing court then assesses, in composite terms, the overall seriousness of the offending, considering both the potency and the quantity of each drug, and the relative contribution of hard and soft drugs. It then identifies a single notional sentence after trial that falls within a range consistent with the engaged bands (§ 40);

(g)  When properly applied, the ratio test uses, rather than displaces the drug specific guideline structure. It may assist the court in testing the provisional notional sentence for internal coherence and consistency with the underlying guideline bands. However, it should not be treated as a substitute for the guideline based evaluative exercise required at Steps 1 to 3? The ratio test has limitations and must remain only a cross check (§§ 41 - 42);

(7)  The Court of Appeal used 112.66 grammes of ketamine as the base drug and adoptee adopted a starting point of 6 years and 9 months’ imprisonment. The quantity of cocaine was relatively small (1.95 grammes)  and falls within the first band under the sentencing guidelines for trafficking in heroin or cocaine, which carries a sentencing range of 2 to 5 years. This band is structured both to provide a deterrent effect through the applicable range of imprisonment and to confer on the sentencing court a discretion, where appropriate, to adopt a starting point below 2 years in cases involving very small quantities of the drug. In such circumstances, a sentencing court should undertake an evaluative assessment in determining an appropriate starting point, rather than simply engage in a purely mathematical exercise that treats 2 years as the baseline for sentencing;

(8)  The Court of Appeal found that having regard to the quantity of cocaine involved (1.95 grammes), an appropriate starting point is 18 months’ imprisonment. The Court of Appeal enhanced the sentence by 6 months to reflect the cocaine and by a further 4 months to reflect the Appellant’s role and culpability. Applying the totality principle, the Court of Appeal reduced the total enhancement from 10 months to 7 months, resulting in a starting point of 7 years and 4 months.

(9)  The Court of Appeal then used the ratio test as a cross check. The ratio test yielded a figure of about 6 years and 10 months. The Court of Appeal held that the notional starting point of 7 years and 4 months was appropriate, as the ratio test does not take into account the Appellant’s role and culpability or the aggravating factor of the involvement of multiple drugs.

18.  I shall now adopt the procedure laid down in Yau Kai Fung in assessing the notional starting point. In the present case, the most potent drug and the drug of greatest quantity is methamphetamine. Applying the appropriate guideline for Methamphetamine, the appropriate notional starting point is 40.56 months.

19.  Since the Defendant has been charged with a separate offence for his role, I will not include his role in assessing the starting point for Charge 2. I will deal with his role when I come to consider the question of totality. I will only consider the quantity of drugs for this charge. The total weight of the heroin and cocaine is 1 gramme. In addition, there is 0.09 gramme of Midazolam. The notional starting point will be enhanced by 4 months to reflect the quantity of the 3 other types of drugs, ie a starting point of 45 months.

Mitigation

20.  The Defendant has pleaded guilty at the earliest opportunity. He is entitled to a one-third discount. The sentence is therefore reduced to:

(1)  Charge 1: 20 months;

(2)  Charge 2: 30 months.

Totality

21.  Counsel submitted that the 2 charges were part and parcel of the same criminal activity and were committed at the same time. She urged the Court to order that the sentences be served concurrently.

22.  In HKSAR v Ngai Yiu Ching（倪耀偵） [2011] 6 HKC 238, the Court of Appeal held:

“(1)  When a judge was faced with the task of sentencing for multiple offences, he was required as an initial step to identify the appropriate sentence for each offence and as the final step to achieve a total sentence appropriate to the culpability of the offender. In the case of several offences committed in the course of a single episode, the prosecuting authority might choose to proffer only one charge, where one charge embraced all the criminal conduct reflected by the evidence, or separate charges for each criminal act. If it chose the former course, the instances of proved conduct embraced by the single charge but which could have been the subject of separate charges were taken into account in deciding what penalty reflected the true overall criminality. If it elected the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the objective was still the same; that is to say, the ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that was appropriate to that offence and the circumstances of its commission and, second, not to punish the offender twice for the same conduct.

(2)  The ‘one transaction’ rule that concurrent sentences should be imposed for offences arising from one transaction or course of criminal conduct was not developed as an inflexible rule of law. It was never intended as anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive sentences so that the final sentence was not one that was unfair to an offender. Departure from such practical working rule did not inevitably mean that the sentence imposed on the accused was excessive. The real point was not whether two or more offences were committed at about the same time, but whether the second or other further offences added to the culpability or criminality of the first. Whatever sentence was arrived at after application of the rule was still subject to the totality principle …

(3)  The importance of the totality principle could not be overstated. It was there to ensure not only fairness to the offender, in the sense that he was not punished twice for the same offence and that the sentence was not an unduly crushing punishment but it was also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation … The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused had been convicted. It was likely to be a more effective approach in reflecting an offender’s overall culpability than one which became overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act. If the second offence which took place in the course of the suggested single episode added to the culpability of the first offence, it would normally follow that the sentence for the second offence would run wholly or partially consecutive to that for the first; to what extent, if at all, would depend upon an assessment of the totality appropriate for the conduct as a whole …”

23.  As explained above, I have only considered the quantity of drugs in assessing the starting point of Charge 2. In Charge 1, not only was the Defendant the direct trafficker, he was also the packer, the provider to the “customers” with a safe space and equipment to consume the drugs. Although the quantities were small, there were 4 types of drugs, 3 of which were hard drugs. This would widen the Defendant’s market. There were 24 “customers” inside the Flat at the time of the Defendant’s arrest. It is evident that Charge 1 made the Defendant’s overall culpability more serious.

24.  In my judgment, an overall starting point of 5 years would reflect the Defendant’s culpability (reduced to 40 months for his guilty plea). Accordingly, I sentence the Defendant to:

(1)  Charge 1: 20 months, 10 months of which are to be served consecutively to Charge 2;

(2)  Charge 2: 30 months

(i.e. a total sentence of 40 months)