HKSAR v. WONG CHI YING

DCCC 482/2018

[2018] HKDC 1415

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 482 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (1st charge) on her own guilty plea and agreement to the amended summary of facts. Drugs involved in the first charge is 16.74 grammes of a mixture containing 12.9 grammes of heroin hydrochloride, and 62 tablets containing 0.86 grammes of midazolam. She also is convicted of a charge of keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (2nd charge).

Facts

2.  During an anti-narcotics operation conducted on 25 March 2018, police officers raided 8th Floor, Seng Fai Building, No 449 to 451 Shanghai Street, Mong Kok, Kowloon, kept as a divan (“the divan”) on the strength of a search warrant.

3.  At the time of police’s entry, defendant and six others were present, enquiries revealed that defendant is the person in charge of the divan.

4.  Upon search, the following items were found from the defendant’s sling bag:-

(1) one blue transparent resealable bag containing white powder of suspected dangerous drugs (“blue plastic bag DD”);

(2) one transparent resealable bag containing:

(a) 22 yellow packets of suspected dangerous drugs inside a resealable bag with a label of “6 big 22 small” (“22 packets of DD”);

(b) 15 yellow packets of suspected dangerous drugs inside a resealable bag with a label of “28 packets 7,000” (“15 packets of DD”);

(c) seven red packets of suspected dangerous drugs inside a resealable bag (“seven packets of DD”);

(3) one transparent resealable bag containing 62 tablets of suspected dangerous drugs (“62 tablets”); and

(4) cash of HK$5,580.

5.  At 1630 hours on the offence day, police arrested the defendant for the offence of trafficking in dangerous drugs and keeping a divan.

6.  Under caution at the scene, defendant admitted that she was living at and managing the divan.  She further admitted selling dangerous drugs to others thereat.  She admitted knowledge that the seized dangerous drugs were heroin hydrochloride and midazolam.

7.  Under caution, the defendant also said she had no other place to live, thus she lived at the offence location and worked thereat, earning $2,000 per day as salary.

8.  Government chemist confirmed that:-

(1) blue plastic bag of dangerous drugs was 8.67 grammes of a mixture containing 6.74 grammes of heroin hydrochloride;

(2) 22 packets of dangerous drugs containing a total of 3.67 grammes of a mixture containing 2.8 grammes of heroin hydrochloride;

(3) 15 packets of dangerous drugs containing a total of 2.48 grammes of a mixture containing 1.89 grammes of heroin hydrochloride;

(4) 7 packets of dangerous drugs containing a total of 1.92 grammes of a mixture containing 1.47 grammes of heroin hydrochloride; and

(5) 62 tablets containing 0.86 grammes of midazolam.

9.  The street value of the 16.7 grammes of a mixture of heroin hydrochloride was HK$12,220 and the street value of the 62 tablets of midazolam was HK$2,542 in March 2018.

10.  In addition, inter alia, the following items were found and seized from the divan:-

(1) some pieces of paper outlining the price of dangerous drugs;

(2) a calculator;

(3) tin foil;

(4) a quantity of syringes;

(5) certain rolling slips;

(6) some lighters; and

(7) a quantity of plastic sheets.

11.  At all material times, defendant trafficked in dangerous drugs forming the subject matter of the 1st charge. 

12.  In addition, she kept the divan at the premises raided by the police as aforesaid, where dangerous drugs, namely heroin hydrochloride and midazolam, were sold and to be smoked, inhaled, ingested or injected therein.

Criminal records

13.  Defendant had two previous convictions of possession of dangerous drugs, none similar.  Her last conviction was in year 2009, when she was sent to rehabilitation centre.

Mitigation

14.  Mr Chan, solicitor for the defendant, told this court that the defendant was aged 29.  She was born in Hong Kong and was educated up to Form 4. 

15.  At time of arrest, she had separated from her husband already and was working as a part-time hair dresser, earning $3,000 per month.

16.  It is said that the defendant started taking drugs at the age of 13 and since the year 2014 she started taking heroin.  As she owed finance company monies and was unable to repay, debt collectors went to her home and created trouble for other members of family.  As a result, coupled with her own drug addiction, she vacated from her home.  She had nowhere to live and was offered the job keeping the divan, earning $2,000 per day since two weeks before the day of arrest.

17.  Her parents are both retired persons and they are supportive of the defendant. 

18.  It is submitted by Mr Chan for the defendant that, in relation to the first charge, that the court should only sentence the defendant for the heroin, as the quantity of midazolam is minimal. 

19.  He referred this court to the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370 for the guideline in relation to the first charge.

20.  Further, he asked this court to afford the defendant one-third sentencing discount due to her timely guilty plea.

21.  As for the sentence in relation to the second charge, he asked this court to adopt a sentencing starting point of 1 to 2 years.  It is said that the defendant is just an employee and not a tenant of the premises.  She was not the boss of the operation.  It was said that the defendant had only been operating the divan for two weeks and the offence was committed in circumstances when the defendant was destitute and had nowhere to live.

22.  Mr Chan further submitted that, as the offences are closely related, both occurring at the same time, that this court should make the sentence in the second charge partly or wholly concurrent to that of the first charge.

Discussion

First charge

23.  The maximum sentence for the first charge upon conviction upon indictment is life imprisonment.

24.  According to the case of R v Lau Tak Ming & Ors, the sentencing guideline for trafficking between 10 grammes to 50 grammes of heroin is 5 to 8 years’ imprisonment. 

25.  Although the defendant trafficked in two different drugs, 93.75 per cent of the quantity of the narcotics was heroin hydrochloride.  According to the Court of Appeal case of HKSAR v Wong Kam Wo, CACC 469/2000, trafficking in midazolam is far less serious than trafficking in heroin.  In that case, the defendant pleaded guilty to a charge of trafficking in dangerous drugs. 

26.  The drugs involved were a mixture containing 12.05 grammes of heroin hydrochloride and 103 tablets containing 1.928 grammes of midazolam maleate.

27.  The Court of Appeal said that even if the quantity of midazolam had, for argument’s sake, been a further quantity of heroin weighing about 2 grammes, it is most unlikely that the sentence would have been affected and they said that it would be inappropriate for the defendant to have received any additional sentence merely because midazolam was a drug of a different nature to heroin.

28.  Likewise, in our case here, when the midazolam represents only 6.25 per cent of the total weight of narcotics, this court sees no reason why the view taken by the Court of Appeal in the case of Wong Kam Wo should not be followed.

29.  Trafficking in dangerous drugs is a serious offence and in usual circumstances it is well established that personal background and circumstances is not considered valid mitigating factor.

30.  This court has considered mitigation advanced by defence counsel and it is found that the most valid mitigating ground is that of her timely plea, of which she is entitled to one-third sentencing discount.

31.  In the circumstances, adopting the guideline in Lau Tak Ming, I will adopt the sentencing starting point at 5 years, 2 months and 20 days and, after affording the defendant the full one-third sentencing discount, the defendant is sentenced for the first charge to 3 years, 5 months and 21 days.

2nd charge

32.  There are no guidelines for the offence of keeping or managing a divan, the maximum sentence for which is 15 years’ imprisonment and a fine of 5 million.  Immediate sentences of imprisonment are imposed, ranging from 12 months in the magistracy to 3 years and 6 months’ imprisonment in the District Court.  The cases are HKSAR v Ho Sai Chak, HCMA 780/1999; HKSAR v Chow Kit Keung, HCMA 710/2003; HKSAR v Mosquiana Antony, HCMA 716/2003; and HKSAR v Li Kam Chan, CACC 425/2004.  These are in addition to the authorities furnished by the defence counsel.

33.  In the case of HKSAR v Cheung Yiu Fai Alex, CACC173/2005, the Court of Appeal upheld a starting point of 2 years, where the applicant, a drug addict, had been the keeper of a flat for two days, earning $450 per day. 

34.  At the time of the raid, there are six other persons in the divan. Defendant herself admitted selling drugs in the divan for the others to consume thereat.  Drugs involved were heroin and midazolam.  She is paid $2,000 a day and, as a keeper therefore, roughly $60,000 a month, although she has only worked there for two weeks.  Price tag for drugs, tin foils, rolling slips, syringes, lighters and plastic sheets were found inside the divan.

35.  Considering the scale of operation and the defendant’s role in keeping the divan, and the mitigation done on her behalf, circumstances under which she committed the present offence, this court adopted a sentencing starting point of 2 years.

36.  As she has pleaded guilty at the earliest available opportunity, she is afforded full one-third sentencing discount.  Accordingly, she is sentenced to 16 months for this charge.

37.  The second charge is a separate and distinct offence from the first charge.  The sentence in this charge should therefore be consecutive to the sentence in the first charge.

38.  In the case of HKSAR v Cheung Yiu Fai Alex, the Court of Appeal said at least 12 months should have been made consecutive to the trafficking charge and that it might be that the applicant could not have complained if the sentence had been made to run wholly consecutively to the sentence for trafficking.

39.  Coming to our case here, considering the totality principle, this court is now prepared to order that 8 months of the sentence in the second charge is to run consecutive to the sentence in the first charge, and the rest of the sentence (ie the other 8 months’ sentence) in the second charge is to run concurrent to the sentence in the first charge, making the total sentence for the defendant in respect of the two charges at 4 years, 1 month and 21 days.