HKSAR v. TONG YUK MING

DCCC 1014/2017

[2018] HKDC 418

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1014 OF 2017

--------------------

--------------------

---------------------------------

Reasons for Sentence

---------------------------------

1.   The defendant has pleaded guilty to two charges today:  keeping a divan, contrary to section 35 of the Dangerous Drugs Ordinance; and trafficking in a dangerous drug, contrary to section 4 of the same ordinance.

2.   The facts show that the offences were committed on 8 August 2017, when police raided a premises in Reclamation Street in Mong Kok that was being kept as a divan.  When the police raided, there were a total of 45 people inside the premises. 

3.   The defendant was searched, and various dangerous drugs were found from his clothing, and those are the drugs set out in the 2nd charge, and the narcotic content of those drugs is 6.69 grammes of heroin and 2.56 grammes of methamphetamine hydrochloride.  The estimated street value of those drugs would be, for the heroin, $6,288.09, and for the methamphetamine, $1,136.64.

4.   The defendant was arrested and immediately cautioned.  He said at that time that he had brought the white powder, by which he meant heroin, there to start work.

5.   Various items were found on the premises which indicated that drugs were consumed there, and the defendant admitted that in a video-recorded interview.  He said that he was himself a heroin addict and had been for 30 to 40 years.  He had been induced to work as the keeper of the divan by a person called “Brother Shing” in Reclamation Street.  The defendant’s job was to open the premises to customers, serve them, and sell heroin to them.  For this he earned $400 a day and also was allowed to live on the premises.  It appears he had been living there or working there from 6 August, some two days.

6.   On 8 August he had picked up the drugs from a bag placed near a rubbish bin in Reclamation Street at about 1 o’clock in the afternoon.  He had already sold a couple of pellets of heroin by the time police arrived just before 3 o’clock in the afternoon.

7.   As far as the defendant’s antecedents are concerned, he is now, according to his antecedents statement, aged 66.  He is a heroin addict and has been for over 40 years.  He is a CSSA recipient. 

8.   I am told in mitigation he had been married in the past and has a daughter, but he no longer is in contact with her.

9.   The defendant has a criminal record, with some 11 previous appearances in court.  As might be expected, he has a number of convictions for possession of a dangerous drug and has been to a drug addiction treatment centre.  He also has two relevant convictions which are the trafficking in dangerous drugs.  One is dated back to 1998, when he was sentenced to 4½ years.  More recently, in 2008, for trafficking in dangerous drugs he was sentence to 16 months’ imprisonment.  Nevertheless, that offence and sentence was some 10 years ago.

10.   Turning to the calculation of sentence, in respect of the 1st charge - that is, keeping a divan - there is no tariff for sentence, but it is common ground that sentences have generally ranged between 12 to 24 months’ imprisonment as a starting point, which is dependent on the size of the establishment, the length of time that the defendant has been involved in running the establishment and factors such as that.

11.   This seemed to be a fairly large establishment, with 45 people found inside, and the defendant had not been involved in it for very long. 

12.  In respect of Charge 1, I will take a starting point for sentence of 24 months’ imprisonment.  I will reduce that to 16 months’ imprisonment for the defendant’s plea of guilty.

13.   In respect of the 2nd charge, sentences for trafficking in dangerous drugs are determined largely by the sentencing guidelines.

14.  There are two possible other factors. Firstly, the defendant’s previous convictions as an aggravating factor, and secondly, the defendant’s contention he consumed some of the drugs as a mitigating factor.

15.   The defendant’s last conviction for trafficking in a dangerous drug was some 10 years ago.  I do not consider it necessary to consider those as an aggravating factor in relation to the defendant’s sentence today.  Secondly, the defendant’s consumption of the drug I am told is quite limited.  He would consume part of the drug, which would appear to be a perk of his employment, estimated at 10 per cent, not sufficient to become a significant factor which would reduce the starting point for sentence.

16.   I turn to the quantities of drug and their recognised guidelines.  The 6.69 grammes of heroin would put that in the sentencing range of up to 10 grammes, which is 2 to 5 years’ imprisonment, and I consider the starting point for sentence should be in the range of 3 years’ imprisonment for that particular drug.

17.   As far as the methamphetamine hydrochloride is concerned, the quantity is 2.56 grammes, which puts it in the sentencing range of up to 10 years, which is a sentence of between 3 to 7 years’ imprisonment.  An appropriate starting point for sentence in respect of the methamphetamine hydrochloride would be in the range of 3 to 3½ years. 

18.   Here I am concerned with a combination of the drug.  Adopting what is recognised as being the combined approach, I came up with a final starting point for sentence in respect of the 2nd charge of 4 years’ imprisonment, or 48 months, which, after deduction for the defendant’s plea of guilty, one‑third, leads to a final sentence on the 2nd charge of 32 months’ imprisonment.

19.   The offences were committed on the same day, but it has been recognised that these offences do not precisely overlap - the divan keeping involves more than just the trafficking in the drug - and it has been recognised that where that is charged with trafficking in a dangerous drug in the same premises, the sentences can still be served consecutively.

20.   I consider that the question of overall totality must also be brought into consideration here, and I will order part of the sentence on the 1st charge to run consecutively to the 2nd charge to reflect the overall seriousness of this combination of offences.

21.   I will therefore order that some 7 months of the 1st charge be run consecutively to the 2nd charge, giving an overall total sentence for these two charges of 39 months’ imprisonment.