HKSAR v. LAU KA FAI, COFFEE

DCCC 757/2021

[2021] HKDC 1619

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 757 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges:-

(1)  Keeping a divan. Contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134;

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

ADMITTED FACTS

2.  The facts admitted by the defendant are as follows:-

(1)  At around 4:41 pm on 18 March 2021, PC19775 (PW1)  arrived outside the rear door of a flat situated at 2/F, No 473, Reclamation Street, Mongkok (the Flat). PW1 pressed the doorbell of the Flat and the defendant answered the door. PW1 and other police officers subsequently entered the Flat. There were a living room and 2 rooms in the Flat.

(2)  There were two tables in the living room. Aluminium foils, lighters and betting slips were found on those tables. There was also a desk (the Desk)  in the living room, and the following items were found on the Desk:-

(a)  An electronic scale;

(b)  A roll of aluminium foil;

(c)  A plastic box (the Box);

(d)  A notebook.

(3)  Cash of HK$900 was found in the drawer of the Desk.

(4)  There were also two tables in one of the rooms. Aluminium foils, lighters and betting slips were found on those tables as well. 18 people were found sitting around the tables in the Flat.

(5)  Upon inquiry, the defendant admitted that he was the person-in-charge of the Flat, and he was responsible for opening the door, serving “customers”, cleaning the Flat, keeping records and selling dangerous drugs. PC24575 (PW2)  then arrested the defendant for “Keeping a divan”. Under caution, the defendant said that he had no money so he took care of the Flat to make some money.

(6)  Subsequently, the Box was found to contain:-

(a)  3 transparent resealable plastic bags containing a total of 0.58 g of a crystalline solid containing 0.57 g of methamphetamine hydrochloride (E1); and

(b)  3 packets (consisting of red plastic wrappings)  containing a total of 0.83 g of a mixture containing 0.7 g of heroin hydrochloride (E2);

(7)  PW2 then arrested the defendant for “Trafficking in dangerous drugs” and under caution, the defendant said that those drugs were to be sold to “customers”.

(8)  PW1 also found a handwritten price list on a wall next to the Desk. Two mobile phones, cash of HK$1,750 and cash of MOP10 were found on the defendant.

(9)  In a cautioned VRI conducted on the same day, the defendant stated that:-

(a)  He would only open door for people he knew;

(b)  His daily wages were HK$1,000;

(c)  He did not have the key to the Flat;

(d)  His friend “Ah Keung” got him the job;

(e)  This was the first day he worked in the Flat;

(f)  E1-E2 were heroin and Ice;

(g)  “customers’ meant those people going to the Flat;

(h)  A packet of heroin in E2 was worth HK$280;

(i)  A packet of Ice in E1 was worth HK$140;

(j)  E1-E2 were to be sold to customers;

(k)  The electronic scale was used to weigh dangerous drugs;

(l)  The roll of aluminium foil was a smoking apparatus for the customers;

(m)  The notebook was used to record dangerous drug transactions;

(n)  Cash of HK$900 in the drawer was the proceeds of sale; and

(o)  The betting slips could be rolled into tubes for smoking.

(10)  The Government Chemist subsequently confirmed the narcotic contents of E1-E2. The total estimated street value of E1-E2 was HK$1,335.

(11)  At the material times:-

(a)  The defendant kept a divan where dangerous drugs were sold in the divan and were to be smoked, inhaled, ingested or injected therein (Charge 1); and

(b)  The defendant possessed E1-E2 for the purposes of unlawful trafficking (Charge 2).

THE DEFENDANT’S BACKGROUND

3.  The defendant is 57 years old, divorced.  He used to work as a casual worker but relied on CSSA for his living.  He has a total of 15 previous convictions (involving 26 charges).  Six of his previous convictions were related to drugs of which 4 were for trafficking.  He was last discharged from Hei Ling Chau Correctional Institution on 9 January 2021 for Burglary.

MITIGATION

4.  Counsel urged the court to adopt a combined approach when sentencing the defendant on Charge 2.  Initially, she stated that the defendant is a drug addict and alleged that about 0.25g of the heroin found in the Flat were for his own consumption.  This assertion was later withdrawn.  Counsel admitted that this is a serious case but asked the court to consider the defendant’s timely plea, his determination to turn over a new leaf and the small amount of drugs found in the Flat.  She also asked the court to consider the totality principle.

CHARGE 1

5.  Counsel referred the court to the following cases in respect of Charge 1:-

(a)  HKSAR v Lam Lai Chu Patsy CACC 56/2003. Two police officers posed as drug addicts and went to a flat in Mongkok. The applicant took them inside where her accomplice “Cheung” (D1)  offered them heroin in varying quantities. When D1 handed over the drugs, he was arrested. Upon search, the police found 11 men and 3 women with a large amount of drug taking paraphernalia. Under caution, the applicant admitted that she had rented the premises and that she had done so in order to earn a reward of $1,000. She then became an employee whose job was to open the door to customers who came to consume “white powder”. She had worked in this way on 8 to 10 occasions for which she was paid HK$400 per day. The applicant had 7 previous convictions, 4 of which were related to drugs. The applicant was charged with permitting premises to be used as a divan. The Judge took a starting point of 3 years’ imprisonment which was reduced to 2 years for the guilty plea (despite the fact that the applicant had absconded for several months before she was arrested again). Since D1 (who bore the greater responsibility)  was only sentenced to 14 months’ imprisonment for keeping a divan, the Court of Appeal found that the sentence imposed on the applicant was manifestly excessive. The sentence was reduced to 15 months’ imprisonment (ie a starting point of 20 months reduced by 25%).

(b)  HKSAR v Chan Man Lung DCCC 235/2021 [2021] 1 HKDC 909. The defendant pleaded guilty to 2 charges, namely Trafficking in dangerous drugs and Keeping a divan. Police officers followed the defendant to a flat in Mongkok. Upon search, they found various tables in the living room and each of the bedrooms with drug taking paraphernalia. The defendant had 21 previous convictions, 6 of which related to drugs. His last conviction was for trafficking in dangerous drugs. The learned Judge adopted a starting point of 15 months’ imprisonment in respect of Keeping a divan and ordered that 5 months of that charge be served consecutively to the trafficking charge.

(c)  HKSAR v Lai Kin Wing DCCC 812/2020, [2021] HKDC 734. The defendant pleaded guilty to keeping a divan and trafficking in dangerous drugs. The police conducted an anti-narcotics operation at a flat in Yaumatei. They found over 10 people inside, sitting around 5 tables with drug taking paraphernalia. The defendant admitted to be the person-in-charge. Upon search, drugs were found. The defendant admitted that he was responsible for opening the door for customers and supplying dangerous drugs to them. The defendant had 4 previous convictions, 3 of which related to dangerous drugs (including 2 for trafficking). The learned Judge adopted a starting point of 15 months for the charge of keeping a divan, and ordered that 6 months of that sentence be served consecutively to the trafficking charge.

(d)  HKSAR v Chan Hoi Kit DCCC 447/2019, [2019] HKDC 1649. The defendant pleaded guilty to keeping a divan and trafficking in dangerous drugs. Police entered premises in Shanghai Street and found some tables, a small amount of drugs, drug taking paraphernalia, as well as a price list for purchase of the drugs. The defendant admitted that he was the keeper of the divan and sold drugs to customers. There were 4 customers in the flat at the time of the raid. The defendant was a long term heroin addict. He had a litany of convictions for drug possession. He was convicted of trafficking in dangerous drugs in 2015 and was released in August 2016. The learned judge adopted a starting point of 2 years for keeping a divan, which was reduced to 16 months for the defendant’s timely plea. He ordered that 3 months of that sentence to run consecutively with the trafficking charge.

DISCUSSION

6.  There is a marked difference between the role played by the applicant and D1 in Lam Lai Chu Patsy (supra)  and that played by the defendant in the present case.  In Lam Lai Chu Patsy, the applicant was not involved in the supply of drugs and D1 in that case was not involved in serving customers.  In fact, the role played by the defendant in the present case was a combination of the roles of both the applicant and D1 in Lam Lai Chu Patsy. The other cases cited by counsel were District Court cases and are not binding on this court.

7.  In HKSAR v Cheung Yiu Fai Alex [2005] HKCU 1126, the applicant was intercepted by the police when he left a flat in Mongkok.  He was taken back to the flat where the usual items associated with a divan were found.  Four men and a woman were inside.  The applicant admitted that he was the keeper of the divan for 2 days and that the people inside were customers.  Upon search, drugs were found inside the flat.  The applicant admitted that he sold the drugs to customers.  He admitted that he was paid a daily salary of $450 and he was a drug addict and his habit cost him $100 to $200 per day.  The trial judge adopted a starting point of 2 years for the charge of keeping a divan.  That sentence was not disturbed by the Court of Appeal.

8.  The role played by the defendant in the present case is very similar to that in Cheung Yiu Fai Alex (supra).  For Charge 1, I adopt a starting point of 2 years’ imprisonment.  The defendant has pleaded guilty at the first opportunity and is entitled to the full one third discount.  The sentence is reduced to 16 months.

CHARGE 2

9.  Trafficking in dangerous drugs is a very serious offence.  The Court of Appeal has already laid down sentencing guidelines.  For Methamphetamine Hydrochloride (Ice), the appropriate starting point for trafficking up to 10 grammes is 3 to 7 years’ imprisonment (See AG v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chan [2014] 3 HKLRD 691).  For Heroin, the appropriate starting point for trafficking up to 10 grammes is 2 to 5 years’ imprisonment.

10.  The drugs involved in the present case are 0.57 grammes of ICE and 0.70 grammes of heroin.  On an arithmetic approach, the appropriate starting for trafficking in 0.57 grammes of ICE is 3 years and 3 months, whereas the appropriate starting point for trafficking in 0.70 grammes of heroin is 2 years and 3 months.  In other words, on an “individual approach”, the starting point would be 5 years and 6 months’ imprisonment, which is too oppressive.  I agree that a combined approach should be adopted in the present case.

11.  In HKSAR v Islam S M Majharul [2020] HKCA 300, the Court of Appeal set out guidelines on the methodology to be adopted in calculating the starting point for trafficking in multiple drugs.  Pursuant to those guidelines, the 7 step methodology for the calculation of the appropriate starting point under the “combined approach” is as follows:-

(1)  Determine the base drug to be used to calculate the starting point of the two drugs. This requires determining which of the two drugs is the “more or most serious drug” in terms of potency;

(2)  Calculate the starting point according to the quantity of the base drug in accordance with the relevant sentencing guidelines;

(3)  Determine how much this starting point should be increased by to allow for the quantity of the other drug. This is ultimately an exercise of sentencing discretion and should be done by:-

(i)  Considering the quantity of the other drug and the relevant sentence according to that drug’s sentencing guidelines and by reference to the starting point adopted for the base drug;

(ii)  Conducting an overall comparison of the sentencing guidelines of the two drugs and their related ranges of sentence;

(iii)  Examining the results of the absurdity test, the conversion test and the ratio test;

(iv)  Taking all these matters into account to calculate a reasonable and realistic increase to the starting point.

(4)  Determine the level of enhancement to the starting point to take into consideration that the trafficking involved two or more serious drugs as an aggravating factor;

(5)  Determine the level of enhancement to the starting point for any other aggravating factors;

(6)  Take into account any mitigating factors and make appropriate adjustments to the “notional starting point”;

(7)  Apply the totality principle to ensure that the overall sentence is not unfairly unjustly crushing or oppressive.

12.  Using that methodology, the base drug in this case (ie the most potent drug)  is ICE.  The appropriate starting point for trafficking in 0.57 grammes is 38.736 months’ imprisonment.

The absurdity test

13.  The absurdity test involves applying the entire quantity of drugs (1.27 grammes)  to the sentencing guidelines of the most serious drug, ICE.  The absurdity test would produce a starting point of 3 years and 6 months, ie 42 months.

The ratio test

14.  The combined weight of the two drugs in the present case is 1.27 grammes.  Under the sentencing guidelines, the appropriate starting point for 1.27 grammes of ICE is 3 years and 6 months.  The 0.57 grammes of ICE accounts for 44.88% of the two drugs (ie 0.57g/1.27g x 100% = 44.88%), whereas 0.70 grammes of heroin accounts for 55.12% (ie 0.7/1.27 x 100% = 55.12%).  Under the sentencing guidelines, the appropriate starting point for 1.27 grammes of ICE is 42 months.  Applying the ratio test, the appropriate starting point for 0.57 grammes of ICE is 18.85 months (ie 0.57/1.27 x 3 years and 6 months = 18.8504 months).  Under the sentencing guidelines, the appropriate starting point for trafficking in 1.27 grammes of heroin is 2 years and 5 months.  Applying the ratio test, the appropriate starting point for trafficking in 0.70 grammes of heroin is 15.9848 months (ie 0.7/1.27 x 29 months = 15.9843 months).  The overall starting point under the ratio test is hence 34.8347 months.

The conversion test

15.  It is not possible to convert 0.70 grammes of heroin into ICE.  If 0.57 grammes of ICE were converted into heroin, this would produce 4.3 grammes of heroin.  Adding that to the 0.70 grammes of heroin, the overall weight of the drugs would be 5 grammes of heroin, which would produce a starting point of 42 months.

16.  The result of the Ratio Test is unreasonable, as it would produce a starting point lower than the appropriate starting point for the ICE alone.

17.  Taking into account the above matters, I note that:-

(1)  Under the sentencing guidelines, the appropriate starting point for trafficking in 0.57 grammes of ICE is 38.736 months;

(2)  The small amount of heroin would have little impact on the starting point.

18.  For Charge 2, I will adopt an overall notional starting point of 39 months for the two drugs.  The defendant is a repeated offender in respect of drug offences.  This is his 5^th conviction for trafficking.  In addition, more than one type of drug is involved.  These are all aggravating factors.  The notional starting point is enhanced by 6 months, ie a starting point of 45 months’ imprisonment.

19.  The defendant has pleaded guilty at the first opportunity and is entitled to the full one third discount.  Apart from his guilty plea, there are no other mitigating factors.  The sentence for Charge 2 is reduced to 30 months’ imprisonment.

TOTALITY

20.  The court is required to consider totality.  In HKSAR v Cheung Yiu Fai Alex (supra), the applicant was originally arrested for keeping a divan (charge 2)  and trafficking in 2.18 grammes of heroin (Charge 1).  He then absconded and committed a further offence of trafficking in 26.09 grammes of ICE.  In dealing with the sentence of the first 2 charges, the Court of Appeal stated:-

“12. Mr. Lam made no complaint about the sentence on the 2^nd charge. However, we note that the judge, having adopted a 2-year starting point and having reduced this to 16 months on account of the applicant’s plea of guilty, said that as the trafficking in the 1^st charge was at “more or less” the same time as keeping a divan in the 2^nd charge, 4 months of the sentence for this offence should run consecutively adding that this was “because I adopted a very high starting point for the 1^st charge”. However, it was the keeping of a divan which, as we have said, enabled the judge by proper means to add to the sentence he imposed for heroin trafficking. Furthermore, by imposing a much higher sentence than normal on the 1^st charge and by making a partially consecutive sentence on the 2^nd charge, the applicant had effectively received a double penalty. In our judgment, the 16 months’ sentence on the 2^nd charge should have been made consecutive to the sentence on the 1^st charge to the extent of at least 12 months and it may be that he could not have complained if this had been made to run wholly consecutively. This would leave 32 months’ imprisonment in place of the 44 months imposed by the judge” (my emphasis).

21.  In the end, the Court of Appeal reduced the sentence for Charge 1 but ordered that 12 months of the sentence in Charge 2 to run consecutively to the sentence in Charge 1. 

22.  I see no reason why this court should adopt a different approach.  I note that the amount of drugs was not substantial, but there were over 10 customers inside the Flat.  Having considered the facts of the present case, I order that 12 months of the sentence for Charge 1 to run consecutively to the sentence for Charge 2, ie an overall sentence of 42 months’ imprisonment.