HKSAR v. LAI CHING

DCCC 648/2019

[2019] HKDC 1528

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 648 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1] and one charge of keeping a divan, contrary to section 35 of the Dangerous Drugs Ordinance.

2.  Full particulars of the offences are set out in the facts admitted by the defendant today.  In summary at around 2:04 p.m. on 14 May this year the police intercepted the defendant as she was entering Flat A, 4th Floor, No. 288 Portland Street in Mong Kok. 

3.  The police then executed a search warrant and entered the flat.  Six males were found inside the flat.

4.  On a body search of the defendant the police found six packets containing a total of 1.56 grammes of a mixture containing 1.18 grammes of heroin hydrochloride and three plastic bags containing a total of 0.25 gramme of a crystalline solid containing 0.24 gramme of methamphetamine hydrochloride (“ice”).

5.  The police also found $2,620 cash and two mobile phones    in the defendant’s bag.

6.  On a search of the flat the police found on a table in the living room $300 and paraphernalia suitable for packaging drugs and consuming drugs including aluminium foil, syringes, pieces of plastic wrapping, betting tickets, a lighter, an electronic scale, a calculator and some re-sealable plastic bags.  On a table in another room paraphernalia suitable for consuming drugs was also found including aluminium foil, some with burn marks, rolled betting tickets and six lighters.

7.  Photographs of the flat, the drugs and the paraphernalia have been submitted to court.

8.  The estimated street value of the heroin was about $1,113 and the ice was $143. 

9.  Under caution and in a video recorded interview the defendant, inter alia, admitted that in order to support her family she sold dangerous drugs to others; she had worked as a keeper for two days earning $900 per day selling dangerous drugs to others; the syringes; the aluminium foil, the betting tickets and the lighters were used by customers to consume dangerous drugs and that the $300 was the proceeds from selling dangerous drugs. 

Mitigation

10.  In passing sentence, I have carefully considered the oral and written submissions of Mr Tam, including that since 2014 the defendant has suffered from depression[2].  

11.  I take into account that the defendant has no previous convictions for trafficking in drugs or keeping a divan, having only one conviction for possession of dangerous drugs in 1999[3].   

12.  I have read the mitigation letter of the defendant in which she talks about the loss of her daughter and how she took drugs in the hope of escaping reality.  The defendant promises to turn over a new leaf. 

Guidelines

13.  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment[4].

14.  In HKSAR v Tam Yi Chun[5] the Court of Appeal recast the sentencing guidelines for trafficking in ice.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

Starting point

15.  Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 1.18 grammes of heroin would be just over 2 years and 4 months’ imprisonment and for 0.24 gramme of ice would be just over 3 years and 1 months’ imprisonment. 

16.  Applying what has been referred to as the “absurdity test” a starting point of 5 years and 5 months’ imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be no more than 3 years and 7 months’ imprisonment. 

17.  I am satisfied that the “combined” approach to sentence is appropriate. 

18.  Mr Tam refers the court to the reasons for sentence in HKSAR v Kwan Kin Wai where for similar quantities of heroin and ice the sentencing judge adopted a combined starting point of 3 years[6]. 

19.  With respect to the sentencing judge whilst stating the guideline sentence for ice is between 3 and 7 years he took a starting point lower than the guideline for ice of only 2 years.  Further, the sentencing judge did not explain how he reached a combined starting point of 3 years. 

20.  It would appear that the sentencing judge instead of using ice, which was the more potent dangerous drug albeit of a smaller quantity than the heroin, used heroin as his base starting point which he enhanced by 9 months for also trafficking in ice.

21.  Notwithstanding that the quantity of ice is less than that of the heroin, the ice being the most potent drug attracts a starting point higher than that for the heroin.  I am therefore satisfied that ice is to be used as the base starting point and not heroin. 

22.  Adopting the starting point of 3 years and 1 months’ imprisonment for trafficking in 0.24 gramme of ice, I enhance the starting point by 2 months to 3 years and 3 months’ imprisonment to reflect the fact that the defendant was also trafficking in heroin[7].

Own use

23.  The defendant says that about 10% of the heroin and ice was for her self-consumption. In support Mr Tam relies on the positive result of a urine test taken two days after the defendant’s arrest on her admission to Lai Chi Kok Reception Centre[8]. 

24.  The claim is no more than a bare assertion.  After taking further instructions Mr Tam informs the court that one packet of heroin would be kept for own consumption and that the defendant withdraws her claim that 10% of the ice was also for her own consumption. 

25.  The defendant’s claim is contrary to what she told the police on arrest and in the video recorded interview that the heroin and the ice were for sale to others. 

26.  As indicated in court I do not accept the mere assertion that part of the heroin was for the defendant’s own consumption.  Mr Tam having taken instructions from the defendant informs the court that the defendant does not wish to give evidence in support of her claim that part of the heroin was for her own consumption. 

27.  The prosecution opposes the claim that part of the drugs was for the defendant’s own consumption. 

28.  Notwithstanding the defendant is a consumer of heroin as shown by the urine test result I reject the assertion that part of the heroin was for her own consumption.  I proceed on the basis that all the heroin was for trafficking.  

29.  Giving the defendant full credit for her plea of guilty reduces the sentence to 2 years and 2 months’ imprisonment.

Charge 2 – Keeping a divan

30.  There are no guidelines for keeping a divan, the maximum sentence for which is 15 years’ imprisonment and a fine of $5,000,000.   Immediate sentences of imprisonment are imposed ranging from 12 months in the Magistracy to 3 years and 6 months’ imprisonment in the District Court[9].

31.  In HKSAR v Cheung Yiu Fai, Alex the Court of Appeal upheld a starting point of two years where the applicant, a drug addict, had been the keeper of a flat for two days earning $450 per day[10].

32.  The defendant told the police that she had worked in the flat for two days and earned $900 per day.  The defendant also has the habit of taking heroin.   

33.  Taking into account there were six other people found in the flat; the defendant had both heroin and ice for sale and paraphernalia for consuming drugs was found some of which had already been used, I am satisfied a starting point of 2 years’ imprisonment is also appropriate.  Giving the defendant full credit for her plea of guilty reduces the sentence to 1 year and 4 months’ imprisonment.

Totality

34.  I am satisfied that keeping a divan is an aggravating feature of sentence for which a consecutive sentence is appropriate subject to totality of sentence to be imposed[11].

35.  In HKSAR v Cheung Yiu Fai, Alex the Court of Appeal said at least 12 months of a 16 months’ sentence should have been made consecutive to the trafficking charge involving 2.18 grammes of heroin and further said that it may be the applicant could not have complained if the sentence had been made to run wholly consecutively to the sentence for trafficking.  

36.  I am satisfied 8 months of the sentence on charge 2 is to be served consecutively making a total sentence of 2 years and 10 months’ imprisonment.  I am satisfied a total sentence of 2 years and 10 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[12]. 

37.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years and 2 months’ imprisonment; and

Charge 2 – 1 year and 4 months’ imprisonment, 8 months consecutive and 8 months concurrent to charge 1.

The total sentence to be served by the defendant is 2 years and 10 months’ imprisonment.