HKSAR v. FUNG SHING CHI

DCCC 865/2024

[2025] HKDC 1367

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 865 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 8:06 a.m. on 15 December 2023, ASgt 7674 (PW3)  pressed the doorbell of Room 1, 2^nd Floor, Nos.2Q to 2Z Tung Choi Street, Mongkok ("the Flat").  The defendant opened the door.  Upon entry, PW3 revealed his police identity and summonsed his teammates.  The defendant claimed to be the person-in-charge of the Flat.

3.  The Flat was about 300 ft² is size, consisting of a living room, 2 rooms, a bathroom and a kitchen.  Upon search (pursuant to a search warrant), the following items were found inside the Flat :-

(1)  In the room adjacent to the bathroom ("the Keeper's Room"):

(a)  On a table, a plastic basket containing

(i)  a resealable plastic bag containing 2 packets (consisting of plastic wrappings)  which contained a total of 0.47 gramme of a mixture containing 0.35 gramme of heroin hydrochloride (collectively E1);

(ii)  a resealable plastic bag containing 7 packets (consisting of plastic wrappings)  which contained a total of 0.99 gramme of a mixture containing 0.74 gramme of heroin hydrochloride (collectively E2);

(iii)  a resealable plastic bag containing 26 plastic bags which contained a total of 2.26 grammes of a solid containing 1.59 grammes of cocaine (collectively E3);

(iv)  a resealable plastic bag containing 27 plastic bags which contained a total of 4.85 grammes of a solid containing 3.24 grammes of cocaine (collectively E4);

(v)  a resealable plastic bag containing 2 plastic bags which contained a total of 1.46 grammes of a crystalline solid containing 1.44 grammes of methamphetamine hydrochloride (collectively E5);

(b)  a calculator (E12);

(c)  a black and blue lighter (E16);

(d)  a black and red lighter (E17);

(e)  a digital scale (E18);

(f)  a paper box containing: (i)  some trimmed aluminium foil (E19); (ii)  some blue plastic sheets (E20); (iii)  some green plastic sheets (E21); and (iv)  some straws (E22);

(g)  a resealable plastic bag containing some resealable plastic bags (E23);

(h)  a plastic box containing $40 cash (E25); and

(i)  a pair of scissors (E27).

(2)  In the living room:

(a)  On a table adjacent to the bathroom (Table 1)

(i)  3 pieces of trimmed aluminium foil (E28);

(ii)  a black and blue lighter (E29); and

(iii)  a whiteboard with a price list written on it (E30).

(b)  On a table adjacent to the Flat's main door (Table 2)

(i)  2 pieces of trimmed aluminium foil (E31);

(ii)  a black and yellow lighter (E32);

(iii)  an inhaling device which contained traces of a solid containing methamphetamine (E33); and

(iii)  an inhaling device which contained traces of a solid containing cocaine (E34).

(c)  On a table opposite to Table 1 (Table 3)

(i)  2 pieces of trimmed aluminium foil (E35); and

(ii)  a black and blue lighter (E36).

4.  Upon search, a mobile phone (with SIM card)  and $55 cash were found on the defendant.

5.  PC 24673 arrested the defendant for "Keeping a divan".  Under caution, he admitted being the person-in-charge of the Flat.  He was responsible for answering the door and selling drugs to the customers.

6.  A few minutes later, PC 24673 arrested the defendant for "drug trafficking".  Under caution, he admitted that the dangerous drugs found in the Flat were for sale to the customers.

7.  In his video recorded interview, the defendant claimed, inter alia, that he was introduced to the job by someone named "Ah Shing".  It was his first day working at the Flat and his pay was $1,000.  His work hours were from midnight to noon.  The defendant identified E1 and E2 being heroin; E3 and E4, cocaine; and E5, ICE. He also explained the contents of the price list written on E30 as well as the purpose of the digital scale, lighters, aluminium foil, plastic sheets, resealable plastic bags and inhaling devices found in the Flat.

Mitigation & Sentence

8.  The defendant is 47.  He has 16 conviction records, which included 1 "simple possession" offence and 11 theft-related offences.  Defence counsel Ms. Cheng informed me that the defendant is divorced with no children.  His mother is 72 with heart problems.  For several years, the defendant has worked as a GoGo van driver earning about $30,000 per month.  At the time of his arrest, he was unemployed and receiving social welfare.  In mitigation, Ms. Cheng submitted that the defendant committed the present offences due to financial hardship.  He has managed to quit drugs during his remand in jail custody.  He is determined to lead a law-abiding life and plans to look after his mother upon release.

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

10.  I will deal with Charge 2 first.  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)  and methamphetamine hydrochloride[1] (commonly known as ICE; see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  For up to 10 grammes of heroin/cocaine, the sentence ranges from 2 to 5 years' imprisonment.  For up to 10 grammes of ICE, 3 to 7 years' imprisonment.  

11.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs[2]. In the present case, the defendant trafficked in a cocktail of drugs consisting of 1.09 grammes of heroin, 4.83 grammes of cocaine and 1.44 grammes of ICE.  Since heroin and cocaine share the same tariffs, I will simply add their weights together.  In other words, for 5.92 grammes of heroin/cocaine, applying a strict arithmetical approach, the appropriate starting point is 3 years and 9 months.  Similarly, for 1.44 grammes of ICE, 3 years and 7 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence.

12.  Although less potent than ICE, the heroin/cocaine found in this case is of a significantly larger quantity.  I decided that the quantity of heroin/cocaine should form the basis of the starting point[3]. Hence, I adopt a starting point of 45 months' imprisonment and adjust it upward by 6 months for the ICE, arriving at 51 months.  With the timely guilty plea, the sentence is reduced to 34 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 34 months' imprisonment for Charge 2.

13.  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

14.  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 57 months appropriate for both charges.  With the timely guilty pleas, the overall sentence becomes 38 months.  Hence, I order 4 months in Charge 1 to run consecutive to Charge 2.