COURT: Defendant, on 27 July 2023, you pleaded guilty to three charges before a magistrate sitting at the Eastern Magistracy. As a result of your pleas of guilty, you have been committed here to the Court of First Instance for sentence.
The three charges to which you admitted were all committed on 16 October 2020 at Front Block, 1st Floor, No. 428 Shanghai Street, Kowloon.
In respect of the 1st charge, you admitted doing an act for the purpose of trafficking in a substance you believed to be a dangerous drug, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance. So you did an act for the purpose of trafficking in a substance you believed to be a dangerous drug.
In respect of the 2nd charge, it is a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. On the same date and location, you admitted to unlawfully trafficking in 10.8 grammes of a mixture containing 9.46 grammes of heroin hydrochloride.
In relation to Charge 3, you admitted keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance and you admitted on the same date and same location, you kept a divan where dangerous drugs namely heroin, methamphetamine and midazolam, were sold in the divan to be smoked therein.
The facts in support of these three charges can be stated as follows.
On 16 October 2023, at about 1930 hours, police officers arrived with a search warrant and raided the premises as stated in the charge. Upon forceful entry, you were found inside together with 23 other people. After a search of the premises, found inside a work desk which was later referred to as the keeper’s work desk in one of the drawers was the drugs as stated in Charge 2. Those drugs were contained in 40 separate packets. Also found was one plastic bag containing 223 grammes of a powder which was listed as Exhibit E1, another bag of 329 grammes of a powder inside another plastic bag listed as E2, and two plastic bags containing 26.7 grammes of a solid listed as E4. There were a further 200 resealable plastic bags and two electronic scales.
Found on the work desk were documents for the management of the divan. Scattered on different tables around the divan were Exhibit P5, which was nine bottles for smoking dangerous drugs; Exhibit E6, 32 pieces of tin foil of which 15 pieces with burn marks on them. A price list setting out the drugs price was found hanging on the wall in the divan.
When the police entered the divan, all the persons went to the cockloft. This divan consists of two levels, namely the 1st floor and the cockloft. The cockloft was accessible by the staircase.
Upon inquiries made by the police, you the defendant confirmed that you were the keeper of the divan. The other persons found in the divan whom the facts state as arrested persons 2 to 23 were arrested for smoking a dangerous drug in a divan.
Under caution at the scene, that is in the premises, you admitted that you assisted in serving the customers at the divan, that is you provided them with the dangerous drugs for consumption in the premises. You also admitted you sold the dangerous drugs to the customers and you allowed them to smoke in those premises.
On 17 October 2020, a further recorded interview was taken from you. You stated under caution that two days before your arrest, you were asked to manage the divan and in return you were promised a reward of $3,000 per day. Your shift hours was between 1800 hours to 0600 hours. You admitted that you were at the divan at the time of arrest because it was your shift to manage the divan. You admitted that Exhibits 1 to 3 were heroin and Exhibit 4 was methamphetamine. You said your seat was behind the work desk and that the drugs were kept there including the scales, cash and smoking devices.
You admitted supplying the drugs to the customers at the price in accordance to the quotation list that was placed on the wall. The customers consumed the dangerous drugs there at the site after purchasing the drugs. The bottles and the tin foils were provided either to smoke the methamphetamine or heroin. The plastic bags were used to pack the dangerous drugs and the scales were used to measure the dangerous drugs. Found in the divan was also a duty list of keepers and a book was also found which was used to record the transactions of dangerous drugs in the divan.
The government chemist examined the bags of powder found. It was found that E1, 2, and 4 did not contain any substances controlled under the Dangerous Drugs Ordinance. Exhibit E1 which was the plastic bag containing 223 grammes of a powder contained caffeine. The smoking apparatus were also examined by the government chemist and in the plastic bottles, various amounts of liquids were found in each of the nine bottles which contained traces of methamphetamine. In relation to the tin or metal foil found, the burnt tin foil either contained traces of heroin or heroin and midazolam together.
Defendant, you are 58 years of age now and have completed Secondary school education. At the time of arrest, you say you were unemployed but you were employed here at the divan for those days you admitted. You are divorced and have a daughter.
You have three previous convictions to which two are related to dangerous drugs. They date back to 2003 where the conviction was for smoking or injecting dangerous drugs and in 2008 for possession of dangerous drugs where you were sentenced to DATC. Your last conviction was in 2009. It was not related to drugs but you were also sentenced to the drug addiction treatment centre.
Ms Annie Lai, your counsel, has submitted full written mitigation on your behalf. In essence, she submitted that you have been a deep-rooted drug addict since 1997 and were addicted to both heroin and ‘Ice’. When you had insufficient funds however, you took methaqualone.
You committed this offence because of your drug addiction. You did this so as to be able to support and feed your addiction to drugs. As a relief worker, you were able to earn $3,000 a day and this would greatly assist you.
I am informed by Ms Lai that at the time of this offence, you were also receiving disability allowance due to your serious depression. I accept that you have not committed an offence for a number of years and you had committed this offence as a result of your deep-rooted addiction.
You have written a letter to this court telling me how remorseful you are for being a drug addict for so many years. Since you have been remanded now for some 3 years, you tell me now that you are all clean and had successfully completely quit drugs. You are relieved to know that your daughter, who is now married with a child, is supportive of you and that you will do your best when you are released from serving your term, to live a better life and not a miserable life that you have had for the past 20, 30 years.
In respect of these three offences you have committed, they are all related to drugs or doing an act believing that they were drugs.
I turn first to sentence you on Charge 1. The charge relates to doing an act for the purpose of trafficking in a substance you believed to be a dangerous drug. You believed that the three packets were either heroin or ‘Ice’ when in fact they were not dangerous drugs and did not contain any dangerous drugs at all.
For sentencing for this offence, the guideline case is that of HKSAR v Cheng Ling Ling [2019] 3 HKLRD 797. The Court of Appeal laid down the steps for sentencing defendants in this charge. For the first step, the court should look at the sentence which would have been imposed for trafficking in the drugs the defendant believed she possessed. So step one, it is clear from the facts that you believed that E1 containing 223 grammes of a powder containing caffeine and E2 containing 329 grammes of a powder, you believed that these two packets were heroin. Those two packets in total weighed 552 grammes. In respect of the other packet, that is E4, you believed that packet of 26.7 grammes was ‘Ice’.
For these substances, for the heroin, the prosecution has submitted a statement from a detective inspector of the police, stating that in October 2020 the average purity of methamphetamine was 96 per cent and the average purity for heroin was 68 per cent.
The heroin, however, found in the premises in Count 2 has a purity of 87.6 per cent. Ms Annie Lai suggests the court take the lower of the purities to calculate the actual amount of narcotic, that is she suggests the court take 68 per cent as that was the average purity in October 2020. I have given consideration to Ms Lai’s submissions. However, what is clear on the facts before this court is that there was heroin found in the divan and that heroin had a purity of 87.6 per cent. I am therefore of the view that the appropriate percentage to use on the evidence before the court is that of 87.6, as that was the purity of the heroin found in the divan.
In those circumstances, looking at the sentence of which the court would have imposed for trafficking in the drugs the defendant believe she possessed, I take the purity of 87.6 per cent from 552 grammes of heroin, which makes a quantity of drugs with the purity at 483 grammes.
The leading case for trafficking in heroin is Lau Tak Ming and the band to which the amount of 483 grammes falls within is that of between 400 and 600 grammes which is a starting point of between 15 to 20 years’ imprisonment. Taking the 483 grammes of heroin, after trial that would attract a term of about 17 years’ imprisonment.
Turning to the powder which defendant presumed was ‘Ice’. The leading case for trafficking in the drug ‘Ice’ is that of Tam Yi Chun. I do accept as there was no ‘Ice’ found in the premises save for traces in the liquid, the expert statement of the detective inspector to which Ms Lai has not challenged, states the average purity of ‘Ice’ that is methamphetamine hydrochloride in October 2020 was 96 per cent. I therefore take 96 per cent of 26.7 grammes of powder which was found which would equal 25.6 grammes of narcotic ‘Ice’or methamphetamine. Taking that amount that would attract a term of 8 years’ imprisonment as a starting point after trial, as the amount falls within the band between 10 and 70 grammes which would attract 7 to 11 years’ imprisonment.
Now, for this charge, Charge 1, I must sentence on the basis that there would have been two types of drugs. On this basis, I take the combined approach and convert all the drugs to heroin as there were considerably larger amount of heroin than ‘Ice’.
In the circumstances, for the ‘Ice’, if that amount was converted to heroin, that would be approximately 54 grammes of heroin. Adding that to the 483 grammes of heroin, that would equal 537 grammes of heroin. That still falls within the band of 400 to 600 grammes in Lau Tak Ming to which would attract a term of 15 to 20 years’ imprisonment after trial.
For 537 grammes of heroin, had you been convicted after trial, I would have taken a starting point of 18 years and 3 months’ imprisonment.
You pleaded guilty at the first opportunity and therefore you should be awarded the full one-third discount and that would reduce the term to one of 12 years and 2 months’ imprisonment.
The third step is for the court to consider the no-harm factor, bearing in mind the actual nature of the substances involved. The substances involved was that of caffeine in E1 and powder in E3. They are of little or no harm and I give a further reduction in recognition that the offence brought with it little or no harm as stated in Cheng Ling Ling at paragraphs 26 to 28. I therefore further reduce the term to which in Charge 1 you shall serve 9 years and 1 month’ imprisonment.
Let me now turn to Charge 2 for the trafficking charge. You were trafficking in 9.46 grammes of cocaine. The leading case for trafficking in cocaine as I mentioned is Lau Tak Ming, up to 10 grammes is a sentence of between 2 to 5 years’ imprisonment after trial. For 9.46 grammes, had you been convicted after trial, I would have taken a sentence of 4 to 6 years’ imprisonment.
Defendant, regarding your role in trafficking in this case, you were the keeper of a divan. You sold drugs to people. You provided drugs to people. You permitted them, after selling and providing drugs to people, to smoke these drugs or take these drugs in the divan. I find that to be an aggravating feature and I increase the starting point by 3 months and take a starting point of 4 years and 9 months’ imprisonment.
The strongest mitigating factor you have in this case is your early plea of guilty at the first opportunity and I reduce that term by one-third to which you shall be sentenced in Charge 2 to 3 years and 2 months’ imprisonment.
In relation to Charge 3, it is relating to a charge of keeping a divan. The case to which I have been referred to is Fung Chun Yi, HCMA 133/2006 and in that case, the court refers to the Court of Appeal accepting a term of 2 years’ imprisonment as appropriate starting point for this charge as stated in HKSAR v Cheung Yiu Fai Alex, CACC 173/2005. For this charge, I take a starting point of 2 years’ imprisonment. There were no aggravating factors. Your strongest mitigating factor is your plea of guilty at the first opportunity. For that you should be rewarded the one-third discount and you are sentenced to 1 year 4 months on Charge 3.
In respect of the principle of totality, you pleaded guilty to three charges and I have sentenced you in regard to these three offences. As a global approach and construing the principle of totality, I consider a term of 10 years’ imprisonment to be appropriate.
The 11 months of Charge 3 is to run consecutive to Charge 1 which makes a total term of 10 years’ imprisonment to which you shall serve. The remaining term in Charge 3 and all the term in Charge 2 shall run concurrent to Charge 1. Therefore the sentence you shall serve is 10 years’ imprisonment.