HKSAR v. SETO CHI KWONG ak SZETO CHI KWONG

DCCC 831/2023

[2024] HKDC 664

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 831 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant today has entered pleas of guilty to two charges. The first is keeping a divan which is contrary to Sections 35(1)(a)  and (2)  of the Dangerous Drug Ordinance, and the 2^nd charge is trafficking in dangerous drugs contrary to Section 4(1a)  and (3)  of the same ordinance.

2.  In respect to the 1^st charge of the divan involving a number of different drugs, heroin hydrochloride, methamphetamine hydrochloride, midazolam and cocaine and in charge 2 the quantities of those drugs are set out.

3.  The facts of the case are simple, being the case occurred on 16 March 2023 at midday, and an ambush was laid at a flat in Reclamation Street in Mong Kok which was being operated clearly as a divan at that time. It was a 500 square foot premises with a living room and two bedrooms and the premises had what is described as a keeper’s table which is where the drugs would be kept and distributed to the people coming into the divan. It would appear the defendant’s role was to maintain the divan.

4.  Drugs were found within the keeper’s table as well as cash of $2,520 and also on top of the table, various items for the consumption of the drugs which were found within the divan. Even a price list was on the wall.

5.  The investigation revealed that the defendant was the keeper of the divan and he was arrested of course for that offence. He admitted he was the person in charge, said it was the first day he had been paid to work. He admitted that the dangerous drugs seized within the premises were for sale to customers.

6.  He went into some more detail during the video recorded interview, saying he was responsible for opening the door to let customers in and selling the dangerous drugs to them. He worked 12 hours a day and would be paid $500 a day. He would get his salary by taking cash for the proceeds of selling drugs. He indicated he would sell these drugs, midazolam, heroin, ice (that is the methamphetamine)  and cocaine to customers within the flat.

7.  The average retail price of the drugs found within the premises, which are described as E1 to E4, were $6,934.50 and E5 was $2,792.20; E6 was $2,076.48 and E7 was $414 making a total estimated street value of all the drugs found in the premises at $12,217.08.

8.  The details of those drugs can be found within the charge and that is a total of 309 grammes of methamphetamine hydrochloride, 6.26 grammes of heroin hydrochloride, 2.45 grammes of cocaine and 0.23 grammes of midazolam.

9.  The defendant himself is presently aged 59 years old, educated up to primary level and unemployed at the time of his arrest. He has a long list of convictions dating back to 1980 and up to March of 2023. The defendant has offences in respect of dishonesty, theft, attempted theft and assault. He has one previous conviction in respect of drugs, that was on 25 July 2011 for a case of possession of dangerous drugs where he was sentenced to the Drug Addiction Treatment Centre. There are a total of 37 previous criminal convictions between September 2005 and March 2023.

10.  I am told in mitigation that he has been sentenced to Drug Addiction Treatment Centre three times in respect of offences that were other than drug offences.

11.  He was born in the Mainland in November 1964, came to Hong Kong when he was about 12 years old in 1977. He has family but he is not in contact with them. He has been married in the Mainland in 1986 and has a daughter there. He was divorced in 2008. Unfortunately he has not been in contact with his ex-wife or daughter since the divorce.

12.  He has no fixed employment, works as a construction site worker on a casual basis with an income of around about $10,000 a month. Since 2000, he has been on CSSA and a monthly allowance from them.

13.  I am told in mitigation that he does have medical problems. He has heart disease, diabetes and high blood pressure and already had a stroke some 5 years ago and his speech and mobility has been affected since the stroke. He requires daily insulin and is on medication for blood pressure. Clearly he is now under the care of the prison hospital doctors and also the defendant has been a street sleeper for some time and these are the kind of people who are attracted to become divan keepers and do this kind of work.

14.  Defendant has indicated the intention to plead guilty from an earlier stage.

15.  As far as the charges that the defendant faces there are tariff sentencing for some of them. In respect of divan keeping, there is no sentencing guideline for that offence. It has a maximum of 15 years’ imprisonment on conviction on indictment but the customary sentence is between 12 to 24 months’ imprisonment and I know the defence in this case will be asking me to make that sentence concurrent with the other offence which is the trafficking in dangerous drugs case.

16.  As far as the trafficking in dangerous drugs is concerned, we are dealing with a drug cocktail and it is necessary to look at the tariffs in respect of each individual component of that cocktail.

17.  Firstly, we will deal with the heroin hydrochloride. There are 6.26 grammes of heroin hydrochloride in this case. The sentencing guideline for trafficking in up to 10 grammes of heroin hydrochloride is between 2 to 5 years’ imprisonment and from 10 to 50 grammes, between 5 to 8 years’ imprisonment. That can be seen from the case of Lau Tak Ming and Others in 1990. Clearly, the defence has done some calculations and believe it is common ground for the 6.26 grammes of heroin, the starting point for sentence on a purely arithmetical base which would be 3 years, 10 months and 15 days’ imprisonment.

18.  The second drug that we are dealing with today is methamphetamine hydrochloride which I will refer to as “ice” from now on. Trafficking in ice up to 10 grammes, the sentencing guideline is between 3 to 7 years’ imprisonment, from 10 to 70 grammes of ice is between 7 to 11 years’ imprisonment and that can be seen from the case of Attorney General v Ching Kwok Heung and HKSAR v Capitania in 2004. For the 3.07 grammes of ice, the starting point for sentence will be 50.7 months or 4 years, 2 months and 21 days’ imprisonment.

19.  The third drug we are dealing with today is cocaine. The sentencing guideline for trafficking cocaine is in line with the guideline in heroin, which I have already set out. In this case there were 2.45 grammes of cocaine with a starting point of 32.8 months or 2 years, 8 months’ imprisonment.

20.  There is a smallish quantity of midazolam. For trafficking in that drug the guideline would be the sentence adopted in for sentencing for the drug methaqualone. For trafficking in up to 2,000 tablets of midazolam the sentence is at large to be decided by the court. Defence tells me that imprisonment between 6 to 12 months has been imposed by the court for trafficking between 2 to 4,000 tablets of midazolam and that can be seen from the cases from the book of Sentencing in Hong Kong. So for the 18 tablets of midazolam that I am dealing with here, the sentence to be passed by the court is solely at the court’s discretion.

21.  The court here is dealing with a cocktail of drugs. The court may adopt two different approaches, the individual approach or the combined approach. The individual approach simply looks at each component drug and sentences by adding up those drugs. In this case it would lead to a sentence of over 10 years’ imprisonment, clearly not the appropriate approach for the court to take in this case.

22.  As far as the other approach is concerned, that is the combined approach which involves the calculation of the appropriate sentence for the most or most serious drug in terms of potency and then take into account significant quantities of other less serious drugs and enhance the sentence accordingly. It is said that the combined approach usually leads to better outcomes.

23.  In the case of HKSAR v Chang Yuet Yu, there are three tests for checking if a sentence is manifestly excessive. They are described as the absurdity test, the conversion test and the ratio test. I also bear in mind a more recent case of HKSAR v Herry Yusuph in 2021 where the court is enjoined that there is no longer a rigid arithmetical approach based purely on the narcotic quantity. There is now a more discretionary approach involving the assessment of individual and personal role and culpability. In the Yusuph case, a 6-stage approach is appropriate. It does however say that the quantity of drug remains the primary determinant in sentencing in a trafficking in dangerous drugs case.

24.  Calculations have been done as to the outcomes under the various tests and I take into account the figures that are presented for me in the mitigation submissions. I do not believe it is necessary at this stage for me to iterate those tests for the purpose of sentencing. I do also bear in mind that the fact that there is a cocktail of drugs here is a factor that is an aggravating factor in sentencing.

25.  The result of a number of those tests when applied leads to a sentence that could be imposed by the court of between 5 to 6 years’ imprisonment or 60 to 72 months’ imprisonment. I have determined, having taken into account all these factors, the presence of a number of drugs and the aggravating features of that, the total overall sentence irrespective of the drugs alone should be one of 69 months’ imprisonment. That takes into account all the factors that I have set out. With a one-third discount, that would lead to a 46 months’ imprisonment figure and I shall apply that in sentencing in this case as follows.

26.  On the 1^st charge, I will take a starting point of 18 months’ imprisonment and reduce that to 12 months’ imprisonment with the defendant’s plea of guilty.

27.  On the 2^nd charge I will take the starting point at 69 months’ imprisonment, reduce that to 46 months’ imprisonment for the defendant’s plea of guilty.

28.  I will order that the sentences on both charges run concurrently having regard to the overall totality of sentence. That is the sentence I will impose.