HKSAR v. TAM YIN KEUNG

DCCC 198/2019

[2019] HKDC 923

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 198 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of keeping a divan[1] and one charge of trafficking in dangerous drugs[2].

Facts

2.  Police officers intercepted a man at around 4:05 pm on 28 November 2018 outside Flat E, 3^rd floor of a building located at Hong Ning Road in Kwun Tong when he was leaving the premises.

3.  The officers entered the premises in execution of a search warrant issued against Flat E.

4.  The defendant, together with 8 men and 1 woman were found on the premises.

5.  Upon search, 2 metal boxes containing, respectively, 7 packets and 31 plastic bags of suspected dangerous drugs were found.

6.  Additionally, 4 inhaling devices commonly used for the consumption of methamphetamine (colloquially known as ‘ice’) with some suspected dangerous drugs inside were seized.

7.  The following paraphernalia relating to the trafficking of dangerous drugs and the keeping of a divan were also found.  They are 27 straws, aluminium foils, 60 syringes, betting tickets, 3 lighters, an electronic scale, 2 mobile phones and a book.

8.  The defendant was arrested.  Under caution, he claimed that he sold ice and heroin to others in order to earn a living, that he was the only person in charge of the premises, and that the other people on the premises were there to consume dangerous drugs only.  Cash of $1,140 was found on the defendant.

9.  In the subsequent video recorded interview, the defendant claimed that he came to know a “Kwong Chai” about 2 weeks ago who offered him $500 a day to sell drugs in the premises.  Kwong Chai would bring dangerous drugs to the premises from time to time, but on an irregular basis.  The ‘ice’ and heroin found in the two metal boxes were given to him by Kwong Chai.

10.  The defendant claimed that he had been selling drugs there for about a week.

11.  He further claimed that the straws found on the premises were for inhaling ‘ice’, while the aluminium foils, syringes and betting tickets were for inhaling or injecting heroin.  He confirmed that the 4 inhaling devices were for smoking ‘ice’.

12.  The defendant claimed that he would sell about $12,000’s worth of dangerous drugs each day, at $100 per packet of ‘ice’ and $200 per packet of heroin.  Some of the drugs he sold would be consumed on the premises while some would be taken away.

13.  The syringes and the straws were supplied for the consumption of the dangerous drugs on the premises.  The defendant used the book to record the sales.

14.  Upon examination of the suspected dangerous drugs found on the premises by Government Chemists, the following narcotic contents were confirmed.

15.  The packets and plastic bags found in the two metal boxes contained a total of 0.97 g of powder containing 0.82 g of heroin hydrochloride, and 4.21 g of a crystalline solid containing 4.10 g of methamphetamine hydrochloride.

16.  The estimated street value of the seized heroin and ‘ice’ is around $575.64 and $2,312.4 respectively.

Previous convictions

17.  The defendant has 9 previous convictions.

18.  Of those, 4 were for the possession of dangerous drugs.  The first and second one were in 1998 and 1999 when the defendant was fined $2,000 and sentenced to probation for 2 years respectively.  His third possession of dangerous drugs conviction was in 2001 when he was sentenced to detention in the Drug Addiction Treatment Centre.

19.  The defendant was next sentenced 7 years later in 2008 when he was fined $1,500 for his fourth possession conviction.  That was also his latest conviction.

20.  The defendant has managed to stay on the right side of the law for the past 11 years.  Given the lapse of time, and given the fact that this is the defendant’s first conviction for either keeping a divan or trafficking in dangerous drugs, I will not enhance the sentences on the basis of his previous convictions.

Mitigation

21.  The defendant is 62 years old and was born in Hong Kong.  He was educated up to Primary Six level and was unemployed at the time of arrest.

22.  According to Mr Cheung’s submissions in mitigation, the defendant is divorced and lives alone in a public rental housing estate.  The defendant has an adult son who lives with the defendant’s ex-wife.

23.  Mr Cheung told the court that the defendant committed the offences due to financial difficulties.  He was trying to make some money to supplement his income from working as a decoration worker.

24.  Very fairly, Mr Cheung pointed out that the only mitigating factor in the case is the defendant’s timely pleas of guilty.

Sentencing considerations

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

26.  The maximum sentence for trafficking in dangerous drugs on conviction upon indictment is a fine of $5,000,000 and imprisonment for life.

Sentencing tariff

Charge 1: Divan keeping

27.  There are no sentencing tariff for this charge.  In the case of HKSAR v Lam Lai Chu Patsy, CACC 56/2003, the Court of Appeal, having considered previous cases, observed that the sentencers in those cases considered that starting points in the region of two years were appropriate for keeping a divan.

28.  Given the not insignificant scale of the divan in the present case, I find that a proper starting point is that of 2 years’ imprisonment.

29.  The defendant is granted the full one-third discount for his timely plea of guilty and sentenced to 16 months’ imprisonment on charge 1.

Charge 2: Trafficking in dangerous drugs

30.  The sentencing tariffs for trafficking in heroin are found in the case of R v Lau Tak Ming, CACC 230/1989.  The range of sentence for narcotic contents of up to 10 g is 2 to 5 years’ imprisonment.

31.  The sentencing tariffs for trafficking in ‘ice’ are settled in the case of HKSAR v Tam Yi Chun（譚伊真）, CACC 524/2011.  The range of sentence for narcotic contents of up to 10 g is 3 to 7 years’ imprisonment.

32.  Arithmetical application of the said guidelines to 0.82 g of heroin and 4.10 g of ‘ice’ would lead to starting points of 27 months and 55 months’ imprisonment, respectively.

33.  Had the 0.82 g of heroin also been ‘ice’, the starting point for 4.92 g of ‘ice’ would be slightly less than 60 months.

34.  Taking a combined approach, I find that a proper starting point for the narcotics in charge 2 should be 57 months’ imprisonment, bearing in mind that trafficking in more than one type of drugs is an aggravating factor.

35.  The defendant is granted the full one-third discount for his timely plea of guilty and sentenced to 38 months’ imprisonment on charge 2.

Totality

36.  In the case of HKSAR v Ng Ka Wing, Kevin, CACC 563/1999, the Court of Appeal approved the following cited passage in the decision of Pang J in the case of HKSAR v Ho Sai Chak, HCMA 780/1999 where it was held that when the defendant is being sentenced for divan keeping and trafficking in the drugs that was being consumed in the same divan that he was keeping, the sentences can be ordered to run consecutively, subject to the principle of totality:

“... Although it can be said that the defendant was arrested in one police operation, however, the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters. One activity does not necessarily include the other. The appellant was prepared, in addition to providing drugs, to offer the convenience of a divan to drug addicts. As such, the two charges cannot be said to be arising out of the same set of facts.

The order for the sentences to run consecutively cannot be criticised as being wrong in principle. However, one must not lose sight of the totality principle ....”.

37.  The Court of Appeal opined that perhaps 6 months of the divan keeping sentence could have been ordered to run consecutively to the sentence for the trafficking in dangerous drugs charge.

38.  Bearing in mind the words of Pang J in the above-mentioned case of Ho Sai Chak, and the observation of the Court of Appeal in Ng Ka Wing, Kevin, applying the totality principle while also bearing in mind the scale of the divan and the fact that the defendant had been keeping it for at least one week, I order that 7 months of the sentence in charge 1 to be served consecutively to the sentence in charge 2, the balance concurrently.

39.  The total final sentence for the two charges is, therefore, 45 months’ imprisonment after plea.