HKSAR v. CHAN HO LAM

HCCC 40/2023

[2023] HKCFI 1928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 40 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of keeping a divan[1] and one count of trafficking in dangerous drugs[2] before Magistrate Mr Lam Tsz-kan, admitted to the summary of facts, and was on 13 February 2023 committed to the Court of First Instance for sentence. Before me, the defendant confirmed the above and was duly convicted.

2.  Particulars of count 1 are that the defendant between around 9 September and 9 December, 2021, at Flat B-C, 1^st floor, Portland Street Court, nos. 124-128 Portland Street, Mongkok, Kowloon (“the flat”), kept a divan, where dangerous drugs, namely heroin hydrochloride, midazolam and methamphetamine hydrochloride were sold and were to be smoked, inhaled, ingested and injected therein.

3.  Particulars of count 2 are that he on 9 December 2021, at the same address, unlawfully trafficked in dangerous drugs, namely 19.49g of a mixture containing 13.5g of heroin hydrochloride (“white powder”); 17.03g of a crystalline solid containing 17.03g of methamphetamine hydrochloride (“ice”); and 240 tablets containing 3.17g of midazolam (“blue elf”).

SUMMARY OF FACTS

4.  On the afternoon of 9 December 2021, at around 1:43pm, Police officers entered the charge address by force after repeated warnings. The defendant and 10 people were found inside, together with some dangerous drugs and related paraphernalia.

5.  The defendant said he was the person in charge and was arrested. Under caution, he admitted to being the keeper of the flat and that he was selling dangerous drugs to customers there.

6.  The flat was about 900 square feet with 2 metal gates at the entrance. 8 tables and a lot of chairs were placed in the living room.  The flat also had an enclosed balcony, a bathroom and one small room.

7.  Upon search, multiple transparent re-sealable plastic bags with multiple plastic bags containing different dangerous drugs, as well as the 240 tablets were found inside the premises.

8.  There was also a price list, 4 plastic bottles each with a plastic straw and glass tube, lighters, calculators, electronic scales, plastic tapes; anther price list taped on the wall behind the table; 39 3-ml syringes, cut out pieces of aluminum foil and plastic straws were scattered on the floor around the flat, including inside the bathroom and the living room. There were 24 unused syringes hanging on the back of the metal gate inside a plastic bag.

9.  The defendant was further arrested for trafficking in dangerous drugs. Under caution, he repeated that he was the person in charge of the flat, responsible for letter customers in and selling dangerous drugs to them. He confessed to ‘accidentally’ throwing out some ‘white powder’, ‘ice’, and ‘blue elf’ on to the canopy outside the bathroom when the officers broke into the flat.

10.  In the subsequent cautioned video recorded interview, the defendant said that he was employed by an anonymous person to work at the flat 24 hours a day at a daily wage of $1,600. He had been working and living there for about 2 to 3 months by the time of his arrest.

11.  He had sold dangerous drugs to the 10 people found in the flat that day, but he did not know if they had consumed any drugs there that day. The paraphernalia found were for the consumption of ‘ice’, while the transparent re-sealable plastic bag and electronic scales were for packing the drugs. The calculator was to calculate sales while the $700 cash found in a plastic case are proceeds from the sale of drugs. The price lists set out the price for the white powder, ice and blue elf.

12.  The total street value of the seized drugs was $44,446 as at 9 December 2021.

PREVIOUS CONVICTIONS

13.  The defendant has 3 previous convictions. He was sentenced to 20 months’ imprisonment on 19 July 2019 for the offence of preventing the lawful burial of a corpse, and to detention in the Drug Addiction Treatment Centre for one charge of possession of dangerous drugs and one charge of going equipped for stealing on 11 December 2002.

14.  Given the lapse of time between the drug related offence and the present case, and the totally different nature of the 2019 conviction, I will not enhance the defendant’s sentence on the basis of him being a repeated or persistent offender.

BACKGROUND AND MITIGATION

15.  The defendant is 45, born in Hong Kong and was educated up to Form 3 level.  The defendant has a 20 year old daughter who is a university student here. She and her mother live in a public housing unit in Butterfly Estate in Tuen Mun, and are reliant on CSSA.  Mr Chan told the court that the defendant actually live there as well, but would stay over at the flat in count 1 whenever there was a 24 hour shift.

16.  The defendant had worked as a cook for over 10 years, but had to quit because of a back injury which caused him not to be able to stand for a long time.  Thereafter, he was only able to work as a cook on a casual basis, earning a few thousand dollars each month.

17.  Furthermore, the defendant is an addict and had been consuming ‘ice’, ‘heroin’ and ‘cocaine’ for more than 10 years. His positive urine test conducted while he was in custody in Lai Chi Kok detention centre confirmed this situation.

18.  The income as a casual cook was not enough to support his family and his drug addiction, and the defendant resorted to earning quick money by taking up the work of divan keeping. The defendant was spending $1,000 a day on drugs himself, leaving him with just $600.

19.  It was put forward in mitigation that the defendant did not intentionally throw the drugs found on the canopy out of the bathroom window, but that he was just closing the window to prevent people from jumping out, and had dropped the drugs accidentally in the process. It was submitted that had the defendant wanted to get rid of the drugs, he could have used the 3 buckets of water inside the bathroom to flush them down the toilet in the 3 to 4 minutes it took the Police to gain entry into the flat.

20.  It is Mr Chan’s submission that the only mitigating factor is the defendant’s guilty plea and full cooperation with the police, making full and frank admissions at scene, showing his true remorse, saving court’s time and public resources, deserving of a full one-third discount.

SENTENCE

Count 1

21.  The maximum sentence on conviction upon indictment for the offence of keeping a divan is that of a fine of $5,000,000 and imprisonment for 15 years.

22.  In the case of HKSAR v Fung Wai Hing HCMA 665/2000 relied upon by the defendant, Deputy High Court Judge A. To considered the following factors pertinent to sentencing a keeping of divan case:

“1. The scale of operation of the divan: this includes the size of the divan, the number of drug addicts the divan could accommodate, the nature and quantity of equipment or instruments provided for consuming dangerous drugs, and the mode of operation of the divan;

2. The degree of concealment of the divan and the protection it offered to the drug addicts;

3. Whether the divan keeper supplied or sold in the divan any dangerous drugs to persons to be consumed therein, and the nature of the dangerous drugs supplied; and

4. The profit derived by the divan keeper.”

23.  There, DHCJ A. To considered the divan of a small scale, but since the appellant had supplied dangerous drugs in the divan, the appropriate starting point should be 3 years’ imprisonment.

24.  In the present case, given the number of customers, the size of the premises, the amount of paraphernalia found on site, I find that the divan was of a medium scale operation.  Given the serious nature of the drugs being supplied and the obvious profits made by the operator behind as well as the defendant since the former can afford to pay the defendant $1,600 per day, I find that an appropriate starting point is that of 4 years and 6 months’ imprisonment.

25.  The defendant is granted the full one-third discount for his timely plea and is sentenced to 3 years’ imprisonment.

Count 2

Combined Approach

26.  I adopt the combined approach in sentencing for count 2 given that more than one kind of drug were being trafficked[3].

27.  The guideline tariff in relation to methaqualone and diazepam are applicable to the trafficking of midazolam. Sentencing for quantity under 500g is at the discretion of the court.  For the sake of perspective, trafficking in over 500g but under 1000g would attract a starting point of 6 to 12 months’ imprisonment.

28.  Given the relatively small quantity of midazolam and the low sentence it carries, I find that I can fairly ignore the midazolam when arriving at the notional starting point under the combined approach.

29.  Based on the guidelines, ice is the more potent drugs when compared to heroin and I will adopt ice as the base drug.

30.  The guideline starting points when applied arithmetically for 17.03g of ice and 13.5g of heroin are 7 years 6 months and 5 years 3 months, respectively.

Absurdity test

31.  Under the absurdity test, if all 30.53g of drugs were Ice, the starting point would be 8 years 4 months.

Conversion test

32.  5.6g of ice would attract a sentence of 5 years 3 months.  Adding this 5.6g to 17.03g would lead to a notional guideline starting point of 7 years 10 months after converting all the drugs into 22.63g of Ice.

33.  43g of heroin would attract a sentence of 7 years 6 months. Adding this 43g to the 13.5g would lead to a notional guideline starting point of 8 years 2 months after all the drugs were converted into 56.5g of heroin.

Ratio test

34.  Under the ratio test, based on the proportion of the two drugs, the sentence would be 7 years 7 months.

35.  Taking all the above into account, I will increase the starting point for the 17.03g of ice by 4 months to 7 years and 10 months’ imprisonment after taking into consideration the 13.5g of heroin.

36.  For trafficking in two serious dangerous drugs, I will enhance this sentence by 3 months, bringing it up to 8 years and 1 month.

37.  Given the role of the defendant as a direct seller of the drugs, his allowing the consumption of the drugs on the premises, and taking into consideration the scale of the operation being of a medium size, I will enhance this starting point by a further 9 months to that of 8 years 10 months’ imprisonment.

The defendant is granted the full one-third discount for his timely plea of guilty and is sentenced to 70 months’ imprisonment. This discount subsumes all the mitigating factors raised by the defendant.

Totality

38.  Since I have already taken into account the fact that the defendant had directly trafficked in the drugs by way of selling them to customers coming to the flat, and to allow them to consume the drugs on the premises when deciding on the sentence on count 2, I find that, applying the principle of totality, the 2 sentences should be made wholly concurrent.

39.  The defendant is, therefore, sentenced to a total of 70 months’ imprisonment (5 years 10 months)  after pleading guilty to the 2 counts.