COURT: The defendant was committed to this court for sentence. He confirms his plea of the 1st and 2nd counts before me and his admission of the relevant facts.
Count 1: Keeping a divan
The particulars of the charge are that between 18 May 2022 and 24 May 2022, both dates inclusive, in Hong Kong, kept a divan, namely, at 1st floor, No. 336 Portland Street, Mong Kok, Kowloon, where dangerous drugs, namely, methamphetamine hydrochloride, heroin hydrochloride and midazolam were sold in the divan to be smoked, inhaled or injected therein.
Charge 2: Trafficking in dangerous drugs
On 24 May 2022 at 1st floor, No. 336 Portland Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 41.09 grammes of crystalline solid containing 40.67 grammes of methamphetamine hydrochloride, 41.34 grammes of a mixture containing 33.22 grammes of heroin hydrochloride and 124 tablets containing 1.56 grammes of midazolam.
The facts, as admitted by the defendant, are these. In the afternoon of 24 May 2022, police officers conducted an anti-narcotics operation at 1st floor, No. 336 Portland Street, Mong Kok (“the premises”). At about 12.48 pm, the police arrived outside the premises. Despite knocking the door and declaring police identity, no one answered the door. A forcible entry was made into the premises, which consisted of one living room with three tables and five other rooms. A total of 25 males, including the defendant, were found therein and the premises was full of smoke.
The defendant was found sitting in one of the rooms, and he claimed that he was the person in charge of the premises. Upon conducting a search on the defendant, cash of $620, two keys with a keyring and a black Samsung phone were found on him. Upon conducting a search at the premises, amongst other things, the following items were found and seized:
On a table in Room 1:
(1) a blue plastic bottle and one glass container;
(2) two burnt aluminium foils;
On a table in Room 2:
(3) one black box with 18 grids containing:
(a) 106 plastic bags containing a total of 41.09 grammes of crystalline solid containing 40.67 grammes of ‘Ice’ (“E1”);
(b) 180 packets containing plastic wrappings containing a total of 39.49 grammes of a mixture containing 31.65 grammes of heroin hydrochloride (“E2”); and
(c) four foilpacks containing a total of 4 tablets containing 0.05 gramme of midazolam (“E3”);
(4) a transparent resealable plastic bag containing 12 foilpacks containing a total of 120 tablets containing 1.51 grammes of midazolam (“E4”);
(5) a notebook with handwritings;
(6) a ball pen;
(7) five unopened syringes with needles;
(8) two lighters;
(9) cash of $1,270;
(10) plastic bottle, straw, glass container;
(11) calculator with batteries;
(12) electronic scale with batteries;
(13) a paper box containing:
(a) 82 empty transparent resealable plastic bags;
(b) multiple adhesive tapes of different colours;
(c) five unopened syringes with needles;
(d) four glass tubes;
(e) multiple straws of different colours; and
(f) multiple aluminium foils
On the wall in Room 2:
(14) one paper with an English word “Stone”, Chinese words “hardware” and some figures written thereon;
(15) a paper with an English word “Ice”, Chinese words “pork” and some figures written thereon;
(16) a paper with an English word “Powder”, Chinese words “milk powder” and some figures written thereon;
(17) one paper with Chinese words indicating that the “milk powder” was on sale that day.
At about 1.51 pm, PC26127 arrested the defendant for an offence of keeping a divan. The defendant said in Punti under caution that he was responsible for opening the door for the customers and selling drugs to them for consumption in the premises.
At about 1.52 pm, PC26127 arrested the defendant for an offence of trafficking in a dangerous drug. The defendant said in Punti under caution that the drugs in the premises were sold by him to the customers for consumption.
At about 3.48 pm, upon conducting a further search by a police dog, under a table in Room 2 one black box containing two condoms and three plastic packets containing a total of 15 packets consisting of plastic wrappings containing 1.85 grammes of a mixture containing 1.57 grammes of heroin hydrochloride (“E5”) were found and seized.
At about 4.04 pm, PC26127 arrested the defendant for another offence of trafficking in a dangerous drug. The defendant said in Punti under caution that the three pellets of heroin found in the black box (E5) were sold by him to the customers.
In a video-recorded interview, the defendant, under caution, admitted that E1 were ‘Ice’ sold by him to customers for their consumption. The electronic scale was for weighing the dangerous drugs. Five unopened syringes were for providing to the customers. Two lighters were for providing to the customers. The plastic bottle was a drug-inhaling apparatus for consuming ‘Ice’. The cash of $1,270 was proceeds of selling drugs.
Three papers had been placed on the wall all along were about the prices of the drugs. The word “pork” meant ‘Ice’. “0.15”, “0.16”, “0.10” meant gramme. “90”, “150” meant Hong Kong dollars. “Hardware” and “milk powder” meant heroin. The seven plastic bottles were all drug-inhaling apparatus for consuming ‘Ice’. 11 aluminium foils were for consuming heroin.
He was responsible for serving the customers who went to the premises to consume drugs. He had worked at the premises for about a week, 12 hours a day at a daily wage of $800. He did not have keys to the premises, as someone would open the door for him. The $620 found on him was his salary.
The estimated street value of 41.09 grammes of ‘Ice’ involved was HK$18,819, and that of 41.34 grammes of heroin hydrochloride involved was $38,860, and that of the 124 tablets of midazolam involved was $6,200.
The defendant admitted that he kept a divan at the premises on the days of the offence, and he possessed E1 to E5 at the premises for the purposes of unlawful trafficking.
Personal Background and Mitigation
The defendant was born in Hong Kong. He is now 51 years old. He received education up to Form 3. He is divorced with no children. Prior to his arrest, he lived with his mother who is now 81 years old. He has a long list of criminal conviction records, starting from 1994. There are 19 previous entries of possession of dangerous drugs, one entry of smoking dangerous drugs, one entry of possession of equipment fit for inhaling drugs, one entry of possession of Part I poison and one entry of trafficking in dangerous drugs.
For the purpose of considering his sentence, I will not take into account the very last entry of possession of dangerous drugs, for which he was convicted after he was arrested for the present offences.
Counsel submits that the defendant had difficulty to secure a proper job during the pandemic. He needed money to finance his drug-taking habits. Hence, he agreed with a “Lam Jai” to sell drugs kept in a divan, so he could also consume the drugs there.
Counsel also submits that the defendant deeply regrets for having committed the offence. It is anticipated that he would turn 60 when he is released from prison. He has gotten rid of his drug addiction since his remand, and is adamant that he would not resort to drugs again. He wishes to take care of his mother.
Discussion
There is no sentencing tariff for keeping a divan. Nevertheless, it is recognised that the court would adopt a starting point within the range of 1 to 2 years’ imprisonment. See the case of HKSAR v Lam Lai Chu Patsy. In view of the circumstances of this case, I see no reason to depart from considering the sentence within this range. In respect of Charge 1, I adopt a starting point of 18 months’ imprisonment.
For drug trafficking, the community of Hong Kong has taken a severe view. No doubt the drugs have terrible consequences on the individual. There are also serious consequences for the community. The sentencing policy underlying is to impose deterrent sentences. The courts have provided sentencing guidelines for trafficking in ‘Ice’ and heroin. In approaching the sentence for the present offence, I adopt the six-step approach as propounded in the head case of Herry Jane Yusuph, and also the judgement of the Court of Appeal in Lee Ming Ho.
The sentencing guidelines for methamphetamine hydrochloride. The sentencing guidelines are contained in the case of Ching Kwok Hung, as amended in Capitania Edwin F, and as revised in Tam Yi Chun. The quantity involved in the present case (40.67 grammes) falls within the band of 7 to 11 years’ imprisonment.
The guidelines for trafficking in heroin originated in the case of Lau Tak Ming, which were confirmed in Abdallah Anwar Abbas by the Court of Appeal. The quantity involved in the present case (33.22 grammes) falls within the band of 5 to 8 years’ imprisonment.
The guidelines for trafficking in midazolam are laid out in the case of The Queen v Sin Ching Cheung. The quantity involved in the present case (1.56 grammes) fall within the lowest band of the tariff, by which a sentence is determined at the court’s discretion.
By adopting the individual approach which was said to be preferred when drugs are disparate in quantity and potency in the case of Ko Ka Hing, 9 years would be warranted for the quantity of ‘Ice’ involved, and 6 years and 8 months for the quantity of heroin involved in this case, altogether 15 years and 8 months’ imprisonment. The relatively minor quantity of midazolam should be treated in my discretion, and it should not have much effect on the overall sentence.
However, I see the results might be excessive. I consider the Chan Yuk Leong approach, in adopting the absurdity test, 75.45 grammes of ‘Ice’ narcotics would result in 11 years and 1 month imprisonment. By adopting the conversion test, 33.22 grammes of heroin is equivalent to 9.35 grammes of ‘Ice’. And the sentence for 1.56 grammes of midazolam is below the minimum of that of ‘Ice’. So I take 50.02 grammes of ‘Ice’ for the purpose of adopting this conversion test, and it would result in 9 years and 8 months’ imprisonment.
In adopting the ratio test, the result would be 9 years and 8 months’ imprisonment. As a result of this test, the starting point as to the quantity and nature of the drugs in question would be 9 years and 8 months. Therefore, I am minded to adopt an overall starting point of 9 years and 8 months’ imprisonment.
In this case, the defendant participated by selling dangerous drugs. However, for reasons that the defendant is also facing a charge of keeping a divan, it would not be meaningful to consider theoretically the actual role played by the defendant. Therefore, I would consider the sentence of Charge 2 on the basis that the defendant is a courier.
The defendant raised a number of mitigating factors. I do not think any of them could amount to an effective mitigating factor. On the contrary, the criminal records of the defendant show that he first came into trouble with the law in relation to dangerous drugs in 1994, when he was about 21 years old. He was sentenced to 42 months’ imprisonment in 2005, when he was about 32 years old. He did not stop there, and continued to be convicted of possession charges until 2019. In August 2022, the defendant was convicted for another possession charge, which I am told took place in April 2022, a month prior to the present offences. Therefore, the defendant committed the present offences whilst on bail of the said possession charge.
I find that the defendant just could not rehabilitate himself and walk away from dangerous drugs, despite numerous occasions of incarceration. It was also said on his behalf that he needed a job to finance his drug-taking habit. The defendant even agree to be a keeper of a divan, so he could consume drugs there. The defendant says he will turn 60 when he is released. The question is, what next? I am therefore unable to accept the defendant’s claim that he would not rely on drugs again.
In these circumstances, in view of his previous records and commission of the present offences whilst on bail of an offence also related to dangerous drugs, I find it appropriate to enhance the sentence by 6 months.
Sentence
In coming to the final sentence, I consider the totality principle, the effects of the overall sentence on the defendant and the degree of seriousness of the present case.
For Charge 1, the sentence after a one-third discount should be 1 year’s imprisonment. For Charge 2, the sentence after one-third discount shall be 6 years and 9 months’ imprisonment.
I order 6 months of Charge 1 to run consecutively to the sentence of Charge 2. As a result, the defendant is sentenced to 7 years and 3 months’ imprisonment.