HKSAR v. LEUNG WAI TIK

HCCC 102/2025

[2025] HKCFI 2683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 102 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of keeping a divan[1] (count 1)  and one count of trafficking in dangerous drugs[2] (count 2)  before Magistrate Ms. Frances Leung, admitted to the summary of facts and was committed, on 20^th March 2025, to the Court of First Instance for sentence. He confirmed his pleas and admissions before me and the convictions were duly recorded.

2.  Particulars of count 1 are that the defendant, between 16^th and 17^th June, 2023, both dates inclusive, in Hong Kong, together with other person or persons unknown, kept a divan at Flat B, 2^nd Floor, No. 425 Shanghai Street, Yau Ma Tei, Kowloon (hereinafter referred to as “the flat”), where dangerous drugs, namely methamphetamine hydrochloride, heroin hydrochloride and cocaine were sold in the divan to be consumed therein.

3.  Particulars of count 2 are that he, in the same time period, in Hong Kong, together with other person or persons unknown, unlawfully trafficked in dangerous drugs, namely 9.96 grammes of a crystalline solid containing 9.96 grammes of methamphetamine hydrochloride, 61.22 grammes of a mixture containing 47.06 grammes of heroin hydrochloride and 16.80 grammes of a solid containing 15.47 grammes of cocaine.

FACTS

4.  In execution of a search warrant, Police officers broke into the flat at around 11:16pm on 17^th June 2023 after the occupants failed to respond to repeated requests and warnings for access into the flat.  Upon entry, they found the defendant sitting near a counter top, while 8 others were sitting at some folding tables placed in the living room.  

5.  A search was conducted and the following items were found at various places:

INSIDE THE DRAWERS OF A CABINET NEAR THE COUNTER TABLE IN THE LIVING ROOM:

(a)  A black pouch containing:

(i)  2 resealable plastic bags containing a total of 57 plastic bags containing a total of 9.96g of a crystalline solid containing 9.96g of methamphetamine hydrochloride and 2 pieces of paper with “18 Big” and “108 Small” marked thereon and;

(ii)  A resealable plastic bag containing 21 packets (each consisting of plastic wrappings)  containing a total of 5.83g of a mixture containing 4.44g of heroin hydrochloride;

(iii)  A resealable plastic bag containing 3 foil packs containing a total of 30 tablets of 0.36g of midazolam;

(b)  A blue pouch containing 4 resealable plastic bags containing a total of 201 packets (each consisting of plastic wrappings)  containing a total of 55.39g of 42.62g of heroin hydrochloride and one piece of paper with “1 Stroke (劃)  28” marked thereon;

(c)  1 electronic scale;

(d)  HK$1,030 cash;

ON THE COUNTER TABLE IN THE LIVING ROOM:

(e)  2 pieces of paper with numbers, abbreviations of drugs, customer names and inhaling/injecting apparatus marked thereon;

(f)  2 lighters;

UNDERNEATH THE COUNTER TABLE IN THE LIVING ROOM:

(g)  A box containing 20 new syringes;

ON TOP OF A CUPBOARD AT THE COUNTER AREA IN THE LIVING ROOM:

(h)  A black plastic bag containing 4 resealable plastic bags containing a total of 1,150 small resealable plastic bags;

ON A CHAIR NEAR THE COUNTER AREA IN THE LIVING ROOM:

(i)  A notebook recording the transaction records of dangerous drugs and the names of the relevant customers;

ON THE WALLS BEHIND THE COUNTER AND THE FOLDING TABLES IN THE LIVING ROOM:

(j)  2 whiteboards with abbreviations of the sizes and types of the packets of dangerous drugs and the prices of different types of drugs (e.g. Small Gold (細金)  0.13 $130, Big Gold (大金)  0.28 $250, Half Stroke (半劃)  0.5 $400, One Stroke (一劃)  1.0 $800, Small Chu (細朱)  0.15 $100, Big Chu (大朱)  0.6 $380, Coke (可樂)  0.1 $150, Small Freeze (細凍)  0.15 $100, Big Freeze (大凍)  0.60$380), the prices of the inhaling or injecting apparatus (e.g. cigarette $30, syringe $4, medicine $45)  and the phone number of the “company” (i.e. 51782443);

ON THE FOLDING TABLES IN THE LIVING ROOM:

(k)  8 glass bottles with pipes or straws; and

AT THE WINDOWSILL NEAR THE DOOR BETWEEN THE LIVING ROOM AND THE BALCONY:

(l)  A metal box containing 13.5g of a solid containing 12.5g of cocaine.

6.  While the police were breaking into the flat, the defendant had thrown dangerous drugs out of the window into Shanghai Street.  A total of 33 plastic bags containing cocaine were found on the pavement, which the defendant would later confirm to having thrown out.

7.  The defendant was arrested for the two offences he has now been convicted of.  

8.  The estimated street value of all the dangerous drugs seized was around $79,361 to $85,460 (the former when the cocaine is in powder form, the latter crack form).

9.  In his subsequent video recorded interview, the defendant admitted that he was in charge of the operation of the divan, providing drugs and apparatus for the users.  He claimed to have been working there for 2 days, taking over from a woman whose contact he did not have.  

10.  The divan was open 24 hours, and he had the 12 hour shift from 10pm to 10am.  He was paid by the person in charge a daily wage of $1,300 in cash, and he would hand over the day’s income to the person handling the next shift after him.

11.  The defendant would open the door to the users.  They would come in, pick a seat, and the defendant would ask what type of drugs they want and provide accordingly.  

12.  The price list of drugs are on the whiteboards in the flat.  They offered heroin, ice and cocaine. There were around 100 packets of drugs inside the flat when he started working there.  He was not sure when they were placed there.  He explained that “Small Gold (細金)  / 0.13/130” stood for 0.13g of heroin for HK$130.  Some of the sales were recorded on the two pieces of paper found on the counter top in the living room.  

13.  By his pleas and admission to the Summary of Facts, the defendant had accepted that he had kept the flat as a divan, and that he had trafficked in all the drugs found there on the charge dates.

PREVIOUS CONVICTIONS

14.  The defendant has 18 convictions from 16 court appearances.  5 of those were for simple possession of dangerous drugs, with the last one being dated 19^th June 2006.  He was convicted of trafficking in dangerous drugs on 16^th June 2011, and then on 24^th January 2014, and sentenced to 28 and 46 months’ imprisonment, respectively.  This is his third trafficking conviction.  The remaining convictions were mostly for theft.  His latest conviction was for burglary when he was sentenced to 1 year 10 months’ imprisonment on 20^th May 2019.

BACKGROUND AND MITIGATION

15.  The defendant was born in Hong Kong in August 1979 and is 45.  He left school after finishing Form 3 and had been working as a decoration worker, but he was unemployed at the time of the offences.

16.  It is Mr. Newman Wong’s submission that the defendant had only been working there for 2 days and he had not been paid yet.

SENTENCING

COUNT 1: KEEPING A DIVAN

17.  The maximum sentence on conviction upon indictment is a fine of $5,000,000 and imprisonment for 15 years.

18.  The flat was about 200 square feet.  There were 8 people sitting at folding tables when the police managed to gain entry.  Hundreds of plastic bags with drugs inside were found, with markings on them to indicate the type and weight.  Customers’ names were recorded in a notebook, inhaling and injecting apparatus and 2 lighters were found, together with 20 new syringes, and another 1,150 re-sealable plastic bags.  Price lists were written on 2 whiteboards, with information of the drugs available, as well as contact phone number of the ‘company’.  There were 8 glass bottles with pipes and straws.

19.  According to the Summary of Facts, the divan was open 24 hours a day, and the defendant was paid $1,300 per 12-hour shift.  

20.  Having considered the sentences in HKSAR v Ng Ka Wing Kevin CACC 563/1999, HKSAR v Lam Lai Chu Patsy CACC 56/2003 and HKSAR v Chong Cho Kit CACC 363/2005, and bearing in mind the scale of the divan, which was not small, I find that an appropriate starting point is 2 years’ imprisonment.

21.  The sentence after plea is, therefore, 16 months’ imprisonment.  

COUNT 2: TRAFFICKING IN DANGEROUS DRUGS

22.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

23.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Lee Ming Ho [2024] HKCA 150, and HKSAR v Huang Ruifang [2025] HKCA 234 are applied as follows.

Step 1: The applicable guideline tariff bands

24.  Heroin and cocaine share the same tariff bands.  For the 62.53g of heroin and cocaine, and the 9.96g of Ice, the applicable guideline tariff bands are, respectively, “8 to 12 years” and “3 to 7 years”.

Step 2: The defendant’s role and culpability

25.  Although the defendant had engaged in the direct trafficking of the dangerous drugs found in the flat, he is being charged for keeping the flat as a divan for drug abusers to purchase and consume the dangerous drugs on the premises at the same time.  I find that if the starting point is enhanced here for his role as a direct trafficker, there is a risk of double punishment unless the sentences in both the charges are ordered to run concurrently.  I find the easier approach would be to not enhance the starting point here, and sentence on the basis of his role as a storekeeper, and then proceed to later consider how much of the sentence for the keeping a divan offence should be made consecutive to the trafficking in dangerous drugs sentence that would result in a sentence that can properly reflect his overall culpability.

26.  As such, at this juncture, the tariffs will be applied arithmetically as if he was a mere storekeeper.  

Step 3: The relevant band within the guidelines

27.  For 62.53g of heroin and cocaine, the notional starting point would be 8 years 4 months.  For 9.96g of Ice, 6 years 11 months.

28.  Since three different types of dangerous drugs were trafficked, I adopt the combined approach as propounded in HKSAR v Yip Wai Yin [2004] 3 HKC 367.  I will also apply the tests as used in HKSAR v Chan Yuk Leong CACC 318/2013 to assist me in arriving at the correct starting point.

ABSURDITY TEST

29.  On the basis of all 72.49g of narcotics were the more potent drug of Ice, any combined starting point above 11 years would be regarded as absurdly high.

CONVERSION TEST

30.  If the heroin and cocaine are converted into ice that would yield the equivalent sentences, the total converted quantity of ice would be 39.97g, which would have a notional starting point of 9 years.

RATIO TEST

31.  Based on the proportion of the different drugs involved, the sentence should be about 8 years 11 months.

THE COMBINED NOTIONAL STARTING POINT

32.  Having regard to the above test results, and on the basis of an arithmetical approach to finding the relevant starting point as if he was a mere storekeeper, I will adopt a combined starting point of 9 years’ imprisonment.

Step 4: Aggravating factors

33.  The defendant trafficked in 3 different types of drugs and it is trite law that trafficking in more than one variety of dangerous drugs is an aggravating factor, because the trafficker will be able to cater to a wider market[3]. Given the quantity involved, I will enhance the sentence by 6 months, taking the combined starting point to 9 years 6 months.

34.  This is the defendant’s third conviction for trafficking in dangerous drugs, for this aggravating factor, I will enhance his sentence by another 6 months, taking it to 10 years.  

Step 5: Mitigating factors

35.  The only mitigating factor is the defendant’s timely guilty plea, for which he will be given the usual one-third discount.  The sentence for the trafficking in dangerous drugs charge is, therefore, 80 months, 6 years 8 months’ imprisonment after plea.  

Step 6: Totality

36.  On its own, I find the sentence for the trafficking charge fair, just and balanced.  

37.  Next is to consider the application of the totality principle to the two counts.  In deciding how much the two sentences should overlap, I have reminded myself of the legal position as adopted by the Court of Appeal in the case of HKSAR v Ngai Yiu Ching CACC 107/2011:

“The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences.”

38.  In the defendant’s keeping of the flat as a divan, he was acting as more than a simple storekeeper of the drugs.  The premises allowed drug abusers a relatively safe and secluded place to consume the drugs; the defendant was in charge of the provision of apparatus; there were chairs and tables, no doubt allowing the ‘customers’ some degree of comfort.

39.  As the Court of Appeal recognized in a line of cases including Ng Ka Wing Kevin, the acts of supplying drugs to others and running a divan are different and separate matters.

40.  Therefore, to properly reflect the criminality of the two offences, I find that 12 months of the sentence for the keeping a divan count should be served consecutively to the sentence for the trafficking, the balance concurrently.  

41.  The final sentence for the two counts after plea is, therefore, 7 years 8 months’ imprisonment.