HKSAR v. LO CHIU HUNG

DCCC 36/2025

[2025] HKDC 2026

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 36 OF 2025

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REASONS FOR SENTENCE

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1.  Mr Lo pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 12 August 2024, at Room P, 6^th Floor, Hing Tat Mansion, Nos 335-351 Ngau Tau Kok Road, Ngau Tau Kok, Kowloon, in Hong Kong, kept a divan, where dangerous drugs, namely cocaine, methamphetamine hydrochloride and heroin hydrochloride were sold in the divan to be smoked, inhaled, ingested or injected therein.

3.  Charge 2 is Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on same date, at same place, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 2.61 grammes of a solid containing 2.14 grammes of cocaine, 0.21 gramme of a crystalline solid containing 0.21 gramme of methamphetamine hydrochloride, and 1.43 grammes of a mixture containing 1.20 grammes of heroin hydrochloride.

Facts admitted by Mr Lo

4.  On 12 August 2024, at about 9 pm, while Mr Lo and four other males were leaving the subject premises (“Room P”), they were stopped and searched by uniformed police officers.  Upon search of Mr Lo, a mobile phone was found.

5.  The officers entered Room P, a flat of about 300 square feet consisting of a living room, two rooms, a toilet and a kitchen.  In the living room, there was a set of CCTV system which was able to capture live images outside Room P. A price list of the dangerous drugs on sale inside Room P was posted on the wall of the living room.

6.  Upon search of Room P, the following items were found inside a playing card box placed on the kitchen table:-

(a) One plastic bag containing 9 plastic bags containing a total of 2.61 grammes of a solid containing 2.14 grammes of cocaine;

(b) Two plastic bags containing a total of 0.21 gramme of a crystalline solid containing 0.21 gramme of methamphetamine hydrochloride (“ICE”); and

(c) One plastic bag containing 7 packets containing a total of 1.43 grammes of a mixture containing 1.20 grammes of heroin hydrochloride.

7.  The following dangerous drug paraphernalia were found on the same kitchen table:-

(a) Three plastic bottles;

(b) One electronic scale;

(c) Two pairs of scissors;

(d) Two pairs of cutters;

(e) Two lighters;

(f) 28 new syringes;

(g) One pack of aluminium foil;

(h) One pack of straws;

(i) Two glass bottles with glass tubes; and

(j) Two ledger books.

8.  A container containing cash of $64 was also found on the same kitchen table.

9.  Mr Lo was arrested.  Under caution, he admitted he sold cocaine, heroin and ICE to customers at Room P.

10.  In the subsequent VRI, Mr Lo admitted under caution that:

(a) Room P operated 24 hours a day and was used for consumption of dangerous drugs by customers;

(b) He has been the keeper of Room P for about a month for a daily wage of $1,000;

(c) His job was to provide dangerous drugs and suitable apparatus to the customers; and

(d) All the dangerous drugs found belonged to him and they were for the purpose of trafficking.

11.  The street value of the dangerous drugs found was about $2,391.

Criminal record

12.  Mr Lo has 30 previous convictions 16 of which were related to dangerous drugs.  Among them, five were related to trafficking in dangerous drugs (the last one being recorded in 2005).

Antecedents

13.  Mr Lo is aged 72 (71 at the time of the offences), educated to Primary 6 level, unemployed.  He was a recipient of CSSA.  Mr Lo has two younger sisters.  He was living alone at the crime scene.

Mitigation

14.  Mr Terry Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lo.  The following is a summary of the mitigation submissions.

15.  Mr Lo is 72 with no family contact.  After release from prison in 2008, he had stayed out of trouble for 12 years.  He previously worked as a casual cleaner earning $500 a day.  After his retirement at 65 years old (2018), he started to receive CSSA at $4,700 but he had to pay rent out of this sum.  Now he is old enough to apply for a bed in a Home for the Aged.  He has determined to live in such a home after serving his sentence.

16.  For the offence of keeping a divan, the maximum penalty is 15 years’ imprisonment.  There are no sentencing guidelines.  According to HKSAR v Lam Lai Chu Patsy CACC 56/2003, para 8, the usual sentence is between 12 and 24 months’ imprisonment as a starting point.  Much depends on the criminality of the offence and the culpability of the defendant, taking into account the following factors:-

(a) The operation scale of the divan including the size, the people it can accommodate, the apparatus and equipment it provides and the quantities, and the operation method;

(b) The secrecy of the location and the protection offered to the customers;

(c) Whether the keeper provides or sells dangerous drugs for the consumption of customers, and the nature of the drugs provided therein; and

(d) The total amount of profits of the keeper derived from the operation.

17.  Here, Mr Lo was hired to operate the relatively small sized divan to sell 3 types of drug ie cocaine, ICE and heroin; he provided apparatus to customers for a reward of $1,000 a day.  The total amount of drugs was relatively small.  The scale of operation of the divan was not large.  The protection provided to customers was limited to a set of CCTV system.

18.  A starting point for Charge 1 of 18 months was suggested.

19.  With effect from 5 March 2025, HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, at paras 62 and 66, set out the sentencing guidelines for the 3 types of drug found here.

20.  Given that the sentencing guidelines of cocaine and heroin are the same, the narcotic weights of these two types of drug can be combined together when calculating the arithmetic starting point for these two drugs.  For trafficking in up to 10 grammes of cocaine and heroin narcotic, the appropriate starting point after trial is 2 to 5 years’ imprisonment.

21.  In respect of trafficking in ICE, the sentencing guideline after trial of up to 10 grammes of narcotic is 3 to 7 years’ imprisonment.

22.  In HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, at paras 24 to 27, the Court of Appeal set out the principles and methodology to be adopted in calculating the starting point for trafficking in more than one type of drug and the factors to be considered before arriving at the starting point.  In the present case, the combined weight of cocaine and heroin is 3.34 grammes.  The weight of ICE is 0.21 gramme.  All of them add up to 3.55 grammes.  The most potent drug is ICE and its associated imprisonment sentence (37 months) is one month more than that of the other two drugs combined (36 months).

23.  The individual approach is not recommended because the total imprisonment sentence (73 months) is too heavy.

24.  The combined approach is recommended and the three cross-checking tests are used to compare the results:

(a) Absurdity test for 3.55 grammes: if all ICE – 53 months; if all cocaine and heroin – 36.78 months;

(b) Conversion test: 0.215 gramme of ICE – 37 months; 6.953 grammes of cocaine and heroin – 49 months; and

(c) Ratio test: (5.9% x 53) months for ICE + (94.1% x 36.78) months for cocaine and heroin = 3.13 + 34.6 months = c 37.7 months.

25.  Comparing all the figures, Mr Wong suggested an overall starting point of 39 months’ imprisonment^[1] under the combined approach before considering the other features of the case.

26.  These other features include:-

(a) Mr Lo is an actual drug trafficker;

(b) There were 3 types of drug; and

(c) Mr Lo has similar criminal records.

27.  Mr Wong suggested the starting point be increased by 6 months to take account of these features.

28.  Mr Wong reminded the court to grant Mr Lo 1/3 sentencing discount for the latter’s early pleas.

29.  Mr Wong submitted the two offences added gravity to one another; but they were also interwoven with one another.  Mr Wong suggested 4 months of the sentence on Charge 1 to run consecutively to the sentence on Charge 2, making a final total sentence of 34 months’ imprisonment.

Sentence

30.  Serious offence is trafficking in a dangerous drug.  Trafficking in more than one type of drug makes it even more serious.

31.  In sentencing Mr Lo for trafficking, I will follow the 6-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 (read with HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186) and I also bear in mind the authorities urged upon me by Mr Wong.

32.  The combined approach of sentencing for multiple-drug trafficking is obviously more sensible in the present case.

33.  I should say that Mr Wong’s calculations using the 3 cross-checking tests bore similar results to those obtained by myself independently.  I am happy to adopt his figures.

34.  I agree that 39 months’ imprisonment be adopted as the starting point for Charge 2 as suggested by Mr Wong before consideration of the other features.  In so thinking, I am influenced in so small part by the ratio test result and the fact that the ICE alone will attract 37 months’ imprisonment.

35.  Regarding the additional features, I also determine that 6 months’ increase as suggested for reflecting all those features is sufficient and will not overwhelm Mr Lo in terms of the final sentence.

36.  The starting point for Charge 2 then becomes 45 months’ imprisonment.

37.  As for Charge 1, I adopt the starting point of 18 months’ imprisonment as suggested by Mr Wong.

38.  Mr Lo pleaded guilty to the charges in good time drawing to himself the benefit of a 1/3 sentencing discount.  There are no other mitigating factors of weight (not even his age) which would justify another sentence reduction.

39.  The offence subject of Charge 1, though committed at the same place and time as the offence subject of Charge 2, added to the criminality of the trafficking conduct (presence of a whole range of various paraphernalia noted).  A degree of consecutiveness in the sentences must be applied in order to reflect the gravity of the criminal activities.

40.  However, in determining the final sentence, I will not lose sight of the totality principle.  I will make sure that the final sentence to be handed down will be fair, just and balanced having regard to the offences and the offender.

(Mr Lo, please stand)

41.  For Charge 1, the sentence is 12 months’ imprisonment.

42.  For Charge 2, the sentence is 30 months’ imprisonment.

43.  I order that 3 months of the sentence on Charge 1 do run consecutively to the sentence on Charge 2, making an aggregate sentence of 33 months’ imprisonment.