HKSAR v. LAM WAI NANG

DCCC 387/2023

[2024] HKDC 211

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 387 OF 2023

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs" (Charge 1)  and a charge of "Keeping a divan" (Charge 2). The dangerous drugs involved are heroin and midazolam.

Summary of Facts

2.  About 8:20 a.m. on 17 December 2022, a male was seen entering 1^st Floor, No.336 Portland Street, Mongkok ("the Flat")  and police officers followed him.  As the Police entered the Flat, the defendant was standing near the door.  The Flat was about 600 ft² in size with a living room and 5 rooms.  Apart from the defendant, there were other people sitting at different tables in the Flat.

3.  The Flat was searched.  Amongst other things, the following items were found at various locations inside the Flat :-

(a)  In Room No.2:

On Table 1, a black and orange plastic box containing

(i)  5 packets (consisting of plastic wrappings)  which contained a total of 2.41 grammes of a mixture containing 2.01 grammes of heroin hydrochloride (E1);

(ii)  7 packets (consisting of plastic wrappings)  which contained a total of 0.99 gramme of a mixture containing 0.79 gramme of heroin hydrochloride (E2);

(iii)  7 packets (consisting of plastic wrappings)  which contained a total of 1.69 grammes of a mixture containing 1.40 grammes of heroin hydrochloride (E3);

(iv)  4 foilpacks which contained a total of 16 tablets containing 0.21 gramme of midazolam (E4);

(v)  a digital scale;

(vi)  a red plastic box which contained numerous tapes and cut foil paper; and

(vi)  a green tin box which contained $1,890 cash;

(b)  Each on Tables 1 to 3 in the living room:

(i)  a lighter; and

(ii)  2 pieces of burnt metal foil.

4.  Two price lists were posted on the wall in Room No.2.

5.  Upon search, a mobile phone (with phone case and SIM card)  and $33,700 cash were found on the defendant.

6.  The defendant was arrested for "Keeping a divan" and "Trafficking in dangerous drugs". Under caution, he admitted being responsible for letting customers in and selling dangerous drugs to them for consumption in the Flat.  He also admitted that the dangerous drugs found were for sale to customers.

7.  In his video recorded interview, the defendant admitted, inter alia, that he was employed as a keeper to open the door and to sell dangerous drugs in the Flat.  It was his first day working there.  The job was introduced to him by "Fei Lung". His work hours were from 7:00 a.m. to 7:00 p.m. earning $1,000 per day.  The defendant identified E1 to E3 being heroin; and E4, midazolam.  He also explained the contents of the price lists as well as the purpose of the digital scale, lighters and the aluminium foil.  The defendant claimed that the $1,890 cash found in the green tin box was proceeds of heroin sale.  The $33,700 cash found on him was his income from previous employment.

Mitigation & Sentence

8.  The defendant is 48 and has a clear record.  Defence counsel Mr. Yip informed me that the defendant is divorced; his 2 children (aged 18 and 17)  reside with his ex-wife.  The defendant was a decoration worker earning about $20,000 per month.  In mitigation, Mr. Yip submitted that owing to the pandemic, the defendant's work was unstable, which made his income inadequate.  He just wanted to earn some quick money.  Mr. Yip confirmed that he is not making any claim of self-consumption as mitigation.  Mr. Yip stressed that the defendant has been cooperative with the Police.

9.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment. Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

10.  For the purpose of sentencing of Charge 1, I am prepared to disregard the negligible quantity of midazolam.  I will sentence the defendant based on the quantity of heroin.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin[1].  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  The defendant trafficked in 4.20 grammes of heroin.  The appropriate starting point is 39 months, which I would adopt.  With the timely guilty plea, the sentence is reduced to 26 months. Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 26 months' imprisonment for Charge 1.

11.  Regarding Charge 2, I have borne in mind the Court of Appeal's remarks in HKSAR v Lam Lai Chu Patsy CACC 56/2003 that for the offence of "Keeping a divan", the usual sentence ranges from 12 to 24 months' imprisonment.  Taking into consideration of the size of the Flat, the quantity of drug-taking apparatuses found in and the types of drugs available at the Flat, a starting point of 15 months' imprisonment is appropriate and just.  With the timely guilty plea, I sentence the defendant to 10 months' imprisonment for Charge 2.

Overall sentence

12.  Being a "keeper" of a divan does not necessarily involve selling drugs.  In relation to Charge 2, selling drugs clearly constitutes an aggravating factor.  Bearing in mind the totality principle, I consider a global starting point of 45 months appropriate for both charges.  With the timely guilty pleas, the overall sentence becomes 30 months.  Hence, I order 4 months in Charge 2 to run consecutive to Charge 1.