HKSAR v. CHU KWOK BOR

DCCC 593/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 593 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has entered pleas of guilty to two charges, firstly, managing a divan, and secondly, trafficking in a dangerous drug.

2.  A summary of the facts accepted by him shows that this involves an operation by the police at a premises in Shanghai Street in Yau Ma Tei on 17 February 2015.  Police executed a search warrant at the scene and found what can be described as a divan within those premises.  It was a 250 square foot flat with two rooms inside it.  There were 10 tables and some cabinets.

3.  The defendant was inside the premises along with seven other men and four women.  Nine of the tables and the sofa had dangerous drugs or paraphernalia for drug consumption, and the drugs found were methamphetamine hydrochloride and heroin, which belonged to other persons at the scene, following their admissions under caution.  Police found the drugs particularised in the charges, a notebook, and two needles.

4.  The defendant said that he was responsible for selling heroin at the premises and was the person in charge.  The heroin was to be sold to customers for consumption inside the premises or as a takeaway. Later, the defendant added under caution that he in fact had consumed drugs at the premises previously, and he began to work there, selling heroin to customers, at about 12 o’clock on that day; about midday.  He would receive HK$600 for his daily wage.  He gave some details as to how the drugs would be sold and how a record of that would be kept in the notebook that had been found.  He had sold some heroin that day.

5.  The heroin and methamphetamine hydrochloride were valued at over $7,000 and $320 respectively.

6.  As far as the defendant is concerned, he is 61 years of age.  He was born in the mainland and came to Hong Kong when he was aged 20; married, but divorced, with a son who he is no longer in contact with.  He has been on CSSA since 2007.  He has a fairly long record of minor crime:  offences involving dishonesty, also offences involving drugs, for which he has been fined, sentenced to imprisonment, and also sentenced to a drug addiction treatment centre.  He clearly shows, from his criminal record, clear evidence of him being an addict to the drug, and I am told in mitigation he has been a drug addict for nearly 25 years, prefers to consume heroin, has been a frequent customer of the divan, as he told police on arrest.

7.  In mitigation he said he receives $600 a day plus a tablet of heroin to consume.  In mitigation reference is made to his plea of guilty and also the remorse shown by that plea.

8.  Turning to the appropriate sentence, I will deal with the 2nd charge first, the offence of trafficking, which will carry the longer sentence.

9.  Sentences for trafficking in this drug are governed largely by the existing guideline.  The quantity of drug concerned here is 8.93 grammes, which falls in the figure of zero to 10 grammes, or 2 to 5 years’ imprisonment.  Clearly, the figure is towards the higher end of the tariff sentence.

10.  What I shall do is take a starting point of 4½ years’ imprisonment, which is 54 months after deduction for plea of guilty.

11.  That leads to a sentence of 36 months on the 2nd charge.

12.  On the charge of managing a divan - that is, the 1st charge - there is no sentencing tariff, but starting points for sentence can range up to 24 months’ imprisonment.

13.  For the defendant I will take a starting point in this case of 18 months’ imprisonment, reducing the sentence to one of 12 months’ imprisonment for the defendant’s plea of guilty.

14.  The 1st charge represents a separate and independent offence from the 2nd charge and should, to a certain extent, be served consecutively, and that must fall within what would be the appropriate overall total sentence.

15.  What I shall order is then that 6 months of that sentence for the 1st charge run consecutively to the 2nd charge, and the balance concurrently.

16.  That gives an overall sentence of 42 months’ imprisonment, which is actually 3½ years.