HKSAR v. WONG YUI TO

DCCC 28/2024

[2025] HKDC 496

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 28 OF 2024

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs" (Charge 1); a charge of "Keeping a divan" (Charge 2); and a charge of "Possession of apparatuses fit and intended for the smoking or inhalation of a dangerous drug" (Charge 3). The dangerous drugs involved are cocaine and ketamine.

Summary of Facts

2.  About 6:00 p.m. on 6 July 2023, police officers rang the doorbell of 2^nd Floor, Plant Commercial Centre, No.227 Temple Street, Yau Ma Tei ("the Unit"). About a minute later, the defendant and some other persons ran out of the Unit from its back door.  About 5 minutes later, police officers executed a search warrant at the Unit.

3.  Upon search, cash in the sum of $66,809 and a mobile phone were found on the defendant.

4.  The Unit had 3 rooms with beds and tables; a living room with 8 sofa chairs; and a toilet.  Upon search, the following items were found :-

In a bag found in the toilet sink:

(i)  31 plastic bags which contained a total of 5.77 grammes of a solid containing 4.46 grammes of ketamine;

(ii)  4 plastic bags which contained a total of 0.39 gramme of a solid containing 0.25 gramme of ketamine;

(iii)  47 plastic bags which contained a total of 5.77 grammes of a solid containing 4.32 grammes of cocaine;

(iv)  an electronic scale;

(v)  a resealable bag which contained a few resealable bags;

On a table in Room A:

(vi)  2 plastic bags which contained a total of 0.01 gramme of a solid containing ketamine;

(vii)  a lighter;

On the cashier desk:

(viii)  2 notebooks with some symbols and money amount figures;

In the living room:

(ix)  1 glass bottle with 2 openings (one of the openings was inserted with a glass tube containing metal gauze and the other was connected to a plastic straw), which could be used as an inhaling device, containing 23 millilitres of a liquid which contained traces of cocaine; and

(x)  1 glass bottle with 2 openings (one of the openings was inserted with a glass tube containing metal gauze and the other was connected to a plastic straw), which could be used as an inhaling device, containing 47 millilitres of a liquid which contained traces of cocaine.

Arrest and admissions

5.  The defendant was arrested at 6:37 p.m. on the same day.  In his written Record of Interview, the defendant admitted, inter alia, that he was responsible for collecting money only.

6.  In his video recorded interviews, the defendant admitted, inter alia, that he was responsible for collecting money from the drug consumers in return for a daily reward of $1,000 (by working from 7:00 a.m. to  7:00 p.m. each day).

Mitigation & Sentence

7.  The defendant is 24 and has a clear record.  Defence counsel Ms. Ko informed me that the defendant is educated up to Form 6.  He was unemployed at the time of the present offences. He had worked as a cook for about 3 years.  The defendant is single and resides with his mother and elder brother.  They are very close to each other.

8.  In mitigation, Ms. Ko submitted that the defendant is remorseful.  He has made good use of his time whilst being remanded in jail custody by completing several courses in Human Resources Management.

9.  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 (even fresh young offenders)  would most certainly be punished by long-term imprisonment, so that there is a deterrent effect. 

Charge 1

10.  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)  and ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1).  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.  For up to 10 grammes of ketamine, 2 to 4 years' imprisonment.  

11.  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 4.32 grammes of cocaine and 4.71 grammes of ketamine.  For 4.32 grammes

of cocaine, applying a strict arithmetical approach, the appropriate starting point is 3 years and 4 months. Similarly, for 4.71 grammes of ketamine, 2 years and 10 months. In my view, the "combined approach" would arrive at a realistic and fair sentence.

12.  In terms of potency, 4.32 grammes of cocaine should form the basis of the starting point.  Hence, I adopt a starting point of 40 months' imprisonment and adjust it upward by 8 months for the ketamine, arriving at 48 months.  With the timely guilty plea, the sentence is reduced to 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 32 months' imprisonment for this charge.

Charge 2

13.  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 and the types of drugs available, a starting point of 15 months' imprisonment is appropriate and just.  With the timely guilty plea, the sentence is reduced to 10 months.  I sentence the defendant to 10 months' imprisonment for this charge.

Charge 3

14.  The usual starting point for this offence is 3 months' imprisonment after plea[2].  The drug-taking apparatuses found in the Unit were intended for "commercial use" rather than "personal use" only.  Hence, I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 months' imprisonment for this charge.

Overall sentence

15.  Common sense tells us that apparatuses for consuming drugs would normally be found in a divan.  In other words, Charges 2 and 3 invariably exist in pairs.  Thus, their sentences should run concurrently.  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 57 months' imprisonment appropriate for Charges 1 to 3.  With the timely guilty pleas, the overall sentence is reduced to 38 months.  Hence, I order the sentences for Charges 2 and 3 to run concurrently; and 6 months consecutive to Charge 1.