HKSAR v. LEUNG SIU HUNG

DCCC 13/2024

[2024] HKDC 2019

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 13 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to two charges before me on this indictment, the 1^st charge of keeping a divan which is contrary to Section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, and 2^nd charge of trafficking in a dangerous drug, contrary to Section 4 (1)(a)  and (3)  of the same ordinance. The drug in question is cocaine and the narcotic quantity of that drug trafficked is 4.91 grammes of that drug cocaine. The trafficking of the drug took place in a divan and the defendant was a divan keeper.

2.  The Summary of Facts shows that the offence occurred on 28 August 2023 in the afternoon at 1450 hours.  The police raided a premise at 746-748 Nathan Road on the strength of a search warrant.  They had to break open the door of the flat.  On breaking open the door of the flat, they found a flat of about 700 square feet in size with a living room, a kitchen and two further rooms including a bathroom.  There were 10 people sitting inside the living room and the defendant was sitting in the room.  He immediately there was a wooden desk described as a “keeper’s desk” inside the room.  In that desk, Exhibits 1 and 2 were found which were quantities of the drug cocaine and there was a further plastic tray with three lighters, a metallic spoon and some scissors, some cash and a transparent resealable plastic bag with some further yellow resealable plastic bags inside it.  There was also a calculator and a scale, a packet of straws and two glass bottles.  A further quantity of cocaine was found inside the mirror cabinet in the toilet in the room, that was Exhibit 3.  A price tag demonstrating the price of the drug was found on the wall, the price tag said the drug was $700. 

3.  The defendant was arrested at about 1500 hours on the same day, he made various admissions as to his role in the divan keeping.  He was initially arrested for the offence of keeping a divan.  He admitted he was the keeper of the flat and it was his first working day.  Later on, he admitted that Exhibits 1 and 2 were to be sold by him to customers.  He later also admitted that Exhibit 3 which had been found in the bathroom had been put by him into the mirror cabinet and was to be sold.  He made a further video-recorded interview, which he made further admissions that he was employed at a rate of $1,000 a day; he was responsible for letting the customers in and selling the drugs to them; the selling price of each bag of drugs was $700.  He said that the cash in the golden tray was revenue for the sale of the drugs, the resealable bags were for packing the drugs, the scales for weighing and the price tag shown on the wall was the price for one bag of cocaine.

4.  The total estimated retail price of the three exhibits which contained the drug cocaine is $6,034 in August of 2023.

5.  The two offences amply and clearly proved by the facts that the defendant has admitted and I convicted him accordingly. I do note the defendant’s cooperation with the police in the investigation of this matter.

6.  As far as the defendant’s background is concerned, he is a 46 year old man, single.  He was born in Macau.  He has 11 previous convictions dating back to 1992, his first conviction for being for trafficking in a dangerous drug for which he was sentenced to Training Centre. I am told he was 17 years old at the time.  He has some further convictions for possession of a dangerous drug to which he went to a Drug Addiction Treatment Centre between 1993 and 2004.  He has some further convictions, including convictions for theft.  However, I do note the previous convictions in relation to dangerous drugs are somewhat historic now and are not, I consider, an aggravating factor in the sentence of the defendant on this occasion.

7.  In mitigation, I am directed to certain matters, firstly, what is described as a relatively small-scale operation of the divan with 10 people in it with some 4.91 grammes of cocaine present on the scene.  It was said to be the first working day of the defendant.  The drugs were not concealed and perhaps the most important factor in mitigation is the defendant’s cooperation with the police upon his arrest, although one can say the evidence against him is fairly clear at the time of his arrest, he did make full admissions and provided some assistance in the investigation of this matter.

8.  The sentencing will be as follows.  Firstly, in respect of the offence of keeping a divan, there is no actual guideline for that.  Of course I would bear in mind the nature of the drug, the kind of drugs supplied and the scale of the operation when determining a starting point for sentence.

9.  In respect of the 2^nd charge, there is of course a guideline provided for that.  The drug cocaine has the same guideline as the drug heroin as can be seen in the case of R v Lau Tak Ming [1992] HKLRD 370.  We are dealing with a quantity of up to 10 grammes which leads to a head sentence of between 2 to 5 years’ imprisonment.  On a mathematical calculation, the starting point for sentence should be somewhat just under 3½ years imprisonment for the 2^nd charge.  I bear in mind the recent case of Herry Jane Yusuph which enjoins the court to not see this as purely a mathematical exercise in the determination of starting points for sentence but to bear in mind personal factors of the defendant and also the role in the offences.  As I have pointed out to counsel, the defendant’s role in this matter is clearly set out in the evidence which he has admitted.

10.  I will determine the starting point for sentence as follows:

On the 1^st charge, I bear in mind the nature of this operation and I will take a starting point of 36 months’ imprisonment and reduce that to 24 months’ imprisonment for the defendant’s plea of guilty.

11.  On the 2^nd charge, I bear in mind not only the guideline sentence but also the role of the defendant and also his clear cooperation with the police which has made the investigation of this matter a lot easier and I will take a starting point then at 39 months’ imprisonment, reduce that to 26 months’ imprisonment for the defendant’s plea of guilty.

12.  As far as the overall totality is concerned, the divan keeping provides clear evidence of the nature of the trafficking in this case.  I have also been referred to the case of HKSAR v Fung Wai Hing which is a Magistracy Appeal where it is determined in particular in that case is a matter of sentencing principle that sentencing on divan keeping and trafficking in dangerous drugs should run concurrently.  That is a Magistracy Appeal, not necessarily binding on me, but I find myself in agreement with Deputy Judge Toh’s opinion in that case.  I will accordingly order the sentences on these two charges to run concurrently leading to a sentence of 26 months’ imprisonment.