HKSAR v. LEE YUN LUNG

DCCC 928/2023

[2025] HKDC 171

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 928 OF 2023

________________________

________________________

REASONS FOR SENTENCE

The defendant faces a charge of "Trafficking in dangerous drugs" (Charge 1); a charge of "Keeping a divan" (Charge 2); a charge of "Possession of dangerous drugs" (Charge 3); and a charge of "Doing an act or a series of acts tending and intended to pervert the course of public justice" (Charge 4). He pleaded guilty to Charges 1, 2 and 4. I granted the prosecution's application to leave Charge 3 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

2.  About 11:50 a.m. on 17 March 2023, police officers were about to execute a search warrant at Room 1110, Sing Win Factory Building, Nos.15-17 Shing Yip Street, Kwun Tong ("the Unit").  Receiving no reply to their "open up" request, the officers entered into the Unit by force.  Upon entry, 6 persons were found inside; whereas the defendant (being the 7^th person)  was walking out from the toilet.  He admitted to be the person in charge of the Unit.

3.  The Unit had an area of about 600 ft² including a toilet.  It contained some desks and chairs.  Upon search, the following items were found (regarding Charges 1 and 2)  :-

(i)  1 plastic bag containing (a)  2 plastic bags which contained a total of 0.50 gramme of a solid containing 0.44 gramme of cocaine; and (b)  4 plastic bags which contained a total of 1.25 grammes of a solid containing 1.09 grammes of cocaine;

(ii)  1 plastic bag which contained 0.54 gramme of a solid containing traces of methamphetamine;

(iii)  2 foilpacks which contained a total of 14 tablets containing 0.18 gramme of midazolam;

(iv)  1 glass bottle inserted with 1 plastic tube/straw and 1 glass tube with metal gauze (which could be used as an inhaling device)  containing 33 millilitres of a liquid, which, upon drying, contained 0.09 gramme of a solid containing cocaine;

(v)  1 glass bottle inserted with 1 plastic tube/straw and 1 glass tube with metal gauze (which could be used as an inhaling device)  containing 23 millilitres of a liquid, which, upon drying, contained 0.01 gramme of a solid containing cocaine;

(vi)  1 glass bottle inserted with 1 plastic straw/glass tube with one end shaped as a bulb (which could not be used as an inhaling device)  containing 7 millilitres of a liquid, which, upon drying, contained 0.05 gramme of a solid containing methamphetamine;

(vii)  1 glass bottle inserted with 1 plastic tube and 1 plastic straw/tube or glass tube with one end shaped as a bulb (which could be used as an inhaling device)  containing 14 millilitres of a liquid, which, upon drying, contained traces of a solid containing cocaine and methamphetamine;

(viii)  a number of accounting books;

(xi)  3 electronic scales and a number of resealable plastic bags; and

(x)  96 syringes, 16 glass tubes, 6 lighters and 2 rolls of aluminium foil.

Arrest and admissions

4.  From 12:30 p.m. to 12:36 p.m. on the same day, the defendant was searched.  Cash in the sum of $15,989.50 was found in his black sling bag.  He remained silent under caution.

5.  In his video recorded interviews, the defendant admitted, inter alia, that the dangerous drugs found in his sling bag were "Coke" (cocaine)  and "Smurfs" (midazolam)  for his own consumption; whereas the $15,000 odd cash came from drug trafficking.  He also admitted that he was the person in charge of the Unit and that he was responsible for selling dangerous drugs and taking care of the Unit, which had been running for 2 to 3 days.  He sold heroin, cocaine and ICE at the Unit.  The inhaling devices, syringes, aluminium foil and lighters were for the customers.  The accounting books were for keeping record of the dangerous drugs sold.  Regarding Charge 4, the defendant admitted having flushed some dangerous drugs down the toilet when the police officers entered the Unit.  He thought he would get a lighter sentence by doing so.  He claimed to have flushed away no more than 2 oz (56.7 grammes)  of heroin, cocaine and ICE.

Mitigation & Sentence

6.  The defendant is 45 and has 8 conviction records, which included 4 drug-related offences (but not "trafficking").  His latest conviction is dated January 2019, which was a "Theft (shoplifting)" offence.  Defence counsel Mr. Ng informed me that the defendant is educated up to Form 3.  He is single and resides alone.

7.  In mitigation, Mr. Ng submitted that the defendant had been unemployed for 2 to 3 years prior to the present offences.  He tried hard looking for a job but was unsuccessful owing to his limited skills and the pandemic.  Even with social welfare, after deducting rent, he only had $2,800 per month to spend.  With a daily wage of $3,000, the "divan keeper" job was very attractive to him.  He foolishly did it for 3 days and got caught.

8.  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 would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.  Furthermore, the court has, time after time, expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. 

Charge 1

9.  For the purpose of sentencing, I am prepared to disregard the negligible quantity of cocaine and methamphetamine found in the liquid.  I will sentence the defendant based on the quantities of cocaine and midazolam.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.  For 14 tablets (0.18 gramme)  of midazolam, there is no sentencing tariff.  

10.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs[1]. In the present case, the defendant trafficked in a cocktail of drugs consisting of 1.53 grammes of cocaine and 14 tablets (0.18 gramme)  of midazolam.  For

1.53 grammes of cocaine, applying a strict arithmetical approach, the appropriate starting point is 2.5 years. For 14 tablets of midazolam, the sentence is at the court's discretion. In my view, the "combined approach" would arrive at a realistic and fair sentence.

11.  In terms of potency, 1.53 grammes of cocaine should form the basis of the starting point.  Hence, I adopt a starting point of 30 months' imprisonment and adjust it upward by 1.5 months for the midazolam, arriving at 31.5 months.  With the timely guilty plea, the sentence is reduced to 21 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 21 months' imprisonment for this charge.

Charge 2

12.  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 Unit, the quantity of drug-taking apparatuses found in and the types of drugs available at the Unit, a starting

point of 18 months' imprisonment is appropriate and just. With the timely guilty plea, the sentence is reduced to 12 months. I sentence the defendant to 12 months' imprisonment for this charge.

Charge 4

13.  By flushing the dangerous drugs, which were the stock in trade of a divan, down the toilet, the defendant's intention was clear – to reduce the number of types and quantity of dangerous drugs found in the Unit.  This act would no doubt seriously temper with the magnitude of this case and the defendant's culpability in relation to Charges 1 and 2.  I adopt a starting point of 18 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 12 months' imprisonment for this charge.

Overall sentence

14.  Common sense tells us that apparatuses for consuming drugs would normally be found in a divan.  On the other hand, being a "divan keeper" does not necessarily involve selling drugs.  In relation to Charge 2, selling drugs clearly constitutes an aggravating factor. Bearing in mind the totality principle, I consider a global starting point of 40.5 months' imprisonment appropriate for Charges 1 and 2.  With the timely guilty pleas, the overall sentence is reduced to 27 months.  Hence, I order 6 months in Charge 2 to run consecutive to Charge 1.

15.  Charge 4 is separate and distinct from the other 2 charges.  It could have been completely avoided had the defendant been honest and had the courage to face up to his own crimes.  I order 9 months in Charge 4 to run consecutive to Charges 1 and 2.  In other words, the total prison term for all 3 charges is 36 months[2].