HKSAR v. LEUNG CHUN YEUNG

DCCC 1176/2024

[2025] HKDC 1641

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1176 OF 2024

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REASONS FOR SENTENCE

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

Summary of Facts

2.  About 8:38 a.m. on 13 May 2024, PC 24602 (PW1)  knocked on the door of 1^st Floor, No.25A Tung Choi Street, Mongkok ("the Flat")  and stated his police identity.  Receiving no response, PW1 and his teammates broke open the door of the Flat to execute a search warrant.

3.  The Flat consisted of a living room, a bedroom, a kitchen and a bathroom.  Upon entry, the defendant was found sitting behind a desk in the bedroom ("the Desk").  He claimed to be the person-in-charge. 

4.  PC 21350 (PW2)  found 2 price lists affixed on the wall next to the Desk[1]. He also found the following items placed on a plastic tray inside the drawer of the Desk[2] :-

(a)  8 packets (consisting of plastic wrappings)  which contained a total of 1.33 grammes of a mixture containing 1.02 grammes of heroin hydrochloride (collectively E1);

(b)  10 transparent resealable plastic bags which contained a total of 1.88 grammes of a solid containing 1.56 grammes of cocaine (collectively E2);

(c)  1 transparent resealable plastic bag which contained 0.18 gramme of a solid containing 0.15 gramme of cocaine; and 1 resealable plastic bag which contained 0.07 gramme of a crystalline solid containing methamphetamine hydrochloride (collectively E3);

(d)  2 foilpacks which contained a total of 20 tablets containing 0.27 gramme of midazolam (collectively E4);

(e)  $540 cash;

(f)  1 transparent resealable plastic bag containing some transparent resealable plastic bags with blue lines;

(g)  1 transparent resealable plastic bag containing some transparent resealable plastic bags with red lines;

(h)  some pre-cut aluminium foil; and

(i)  some used pre-cut aluminium foil with burnt marks.

5.  PW2 also found the following items on the Desk[3]:

(a)  a paper cutter;

(b)  1 roll of plastic bags;

(c)  1 pack of straws;

(d)  a pair of scissors;

(e)  1 box of aluminium foil;

(f)  2 lighters;

(g)  a calculator;

(h)  a digital scale;

(i)  a marker;

(j)  a glass bottle with a glass tube and a yellow straw;

(k)  a glass bottle with a glass tube and a pink straw; and

(l)  a glass bottle with a glass tube and an orange straw.

6.  PW1 arrested the defendant for "Keeping a divan" and "drug trafficking".  Under caution, he admitted being the keeper of the Flat and that it was his first day working there.  The dangerous drugs seized were to be sold to customers.  Upon search, $2,500 cash was found on the defendant.

7.  In his video recorded interview, the defendant claimed that he was introduced to the job by a friend named "Bald Kid".  His daily wage was $2,200.  His duties at the Flat were to attend to the customers and sell drugs.  He identified E1 being heroin; whereas E2 and E3, cocaine. Midazolam was also available.  He then pointed out the 2 price lists and explained the purpose of the transparent resealable plastic bags, aluminium foil, straws, inhaling devices, lighters, calculator, paper cutter, scissors, and digital scale found in the Flat.  He also claimed that the $540 cash found in the drawer was revenue of heroin sale; and the $2,500 cash found on him, his pay.

Mitigation & Sentence

8.  The defendant is 65.  He has 38 conviction records, which included 9 "simple possession" offences, 8 "trafficking" offences, numerous vice-related offences and several theft-related offences.  Defence counsel Mr. Ng informed me that the defendant is divorced with no children.  He maintains no contact with his ex-wife or his 4 younger brothers.

9.  In mitigation, Mr. Ng submitted that the defendant's latest conviction was a "trafficking" offence, for which he was sentenced to 33 months' imprisonment in November 2018.  Upon his release from prison in January 2020, the defendant found a stable job as a cleaner earning about $12,000 per month.  Unfortunately, he suffered a sudden bursting of both lungs during work in December 2023.  He received an immediate operation and was hospitalized for 50 days until February 2024.  The defendant was unable to perform any physically demanding job afterwards. He was unemployed for about 3 months and had used up his savings.  In order to make ends meet, he accepted his friend's referral to work at the Flat. 

10.  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 would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty or being sick (however serious)  is no mitigating factor for committing a crime.

11.  I will deal with Charge 2 first.  For the purpose of sentencing, I am prepared to disregard the negligible quantity of ICE (0.07 gramme of a crystalline solid containing ICE)  and midazolam (20 tablets containing 0.27 gramme of midazolam).  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin/cocaine (see The Queen v Lau Tak Ming & others [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  For up to 10 grammes of heroin/cocaine, the sentence ranges from 2 to 5 years' imprisonment[4].

12.  In the present case, the defendant trafficked in a cocktail of drugs consisting of 1.02 grammes of heroin and 1.71 grammes of cocaine.  Since heroin and cocaine share the same tariffs, I will simply add their weights together.

13.  In other words, for 2.73 grammes of heroin/cocaine, applying a strict arithmetical approach, the appropriate starting point is 2 years and 10 months, which I would adopt.  I will adjust the starting point upward by 2 months to 36 months since the defendant is a repeated offender.  With the timely guilty plea, the sentence is reduced to 24 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 24 months' imprisonment for Charge 2.

14.  Regarding Charge 1, 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 1.

Overall sentence

15.  Being a "keeper" of a divan does not necessarily involve selling drugs.  In relation to Charge 1, 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 6 months in Charge 1 to run consecutive to Charge 2.