HKSAR v. CHEW KWOK KAY

DCCC 351/2021

[2021] HKDC 1320

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 351 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded to three charges. He has pleaded to one charge of keeping a divan, contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, one charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the same ordinance and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.

2.  The defendant has admitted the facts and they are as follows.  On 21 August 2020, the police gained entry into a divan kept and operated by the defendant in a flat on Reclamation Street, Mong Kok, Kowloon.  The defendant opened the door to the police who entered and found 10 other people sitting at 4 tables in the living room and 14 other people in 2 other rooms in the premises.  A total of 24 people and the defendant were found in the divan. 

3.  The defendant had a key on him that opened a drawer in a table which contained a plastic box.  In that plastic box, the police found a total of 26 packets containing a total of 3.3 grammes of a mixture containing 2.78 grammes of heroin hydrochloride.  The police also found in that same plastic box 3 foil packs containing a total of 18 tablets containing 0.23 gramme of midazolam.  These are the drugs pertaining to Charge 2. 

4.  The police also found $1,000 cash, a notebook and a piece of paper with suspected transaction records of dangerous drugs, as well as paraphernalia such as a digital scale, lighters, aluminium foil and unused syringe needles.  On the wall of the premises, the police seized three pieces of papers marked with the selling prices of dangerous drugs. 

5.  The defendant was arrested for keeping a divan and under caution, he admitted that he was.  He worked there and was selling dangerous drugs to customers who came to the premises.  He admitted that the dangerous drugs found in the plastic box in the drawer were the drugs he would sell to those customers. The total retail value of both types of drugs together was about $8,587. 

6.  Later at the police station, the defendant gave a further interview under caution and elaborated.  He made full admissions and said he would work a 24-hour shift in the premises for which he was paid $1,300 per shift.  He did not know who rented those premises and different people would give him his salary at different times.

7.  He first appeared in the magistracy on 22 August 2020 and was granted bail seven day later on 28 August 2020.  His case was adjourned to 12 January 2021 but on that return date, he failed to appear and an arrest warrant was issued.  That arrest warrant was executed on 9 March 2021, some two months later when he was stopped during an anti-crime patrol. 

8.  Under caution, he said that he had failed to turn up according to the terms of his bail because he remembered the court date wrongly. 

Mitigation

9.  The defendant is not a man with a clear record. He has 10 previous convictions of which 2 relate to possession of dangerous drugs.  The others all relate to offences of dishonesty.  He has been sentenced to a drug addiction treatment centre on 2 separate occasions.  He has no similar convictions for these offences. 

10.  He is now 59 years old and was unemployed at the time of his arrest.  He is divorced with 1 son.  He admits he has been a heroin addict for almost 3 decades.  He is a recipient of government financial assistance. 

11.  His best mitigation is his plea of guilty at the earliest opportunity.  Mr Leung has said all he can say on behalf of the defendant in mitigation. 

Reason for Sentence

12.  There are no sentencing guidelines for the offence of keeping a divan, Charge 1, although it has been said by the Court of Appeal that from previous cases, the starting points have ranged from between 12 months to 2 years for keeping a divan. 

13.  I have been referred to HKSAR v Lam Lai Chu Patsy, CACC 56/2003.  I have also been referred to HKSAR v Wong Chi Ying, CACC 320/2018 where the Court of Appeal confirmed a starting point of 2 years for this offence was appropriate for the facts in that case.  Those facts included 6 other people in the divan and the drugs were also heroin and midazolam.  That appellant was paid $2,000 a day.  Similar paraphernalia was found in those premises. 

14.  Here, I will take into account that the defendant was not the owner or the tenant of the premises and was paid $1,300 per shift.  He himself is a drug addict.  I will also take into account that there were many people found inside the divan with all of the paraphernalia made available for them to take drugs.  It has been submitted that the defendant was co-operative with the police upon arrest and I note he has no similar convictions. 

15.  I find it appropriate to consider an 18-month term of imprisonment as a starting point for Charge 1.

16.  There are sentencing guidelines for trafficking in heroin, Charge 2, and I do take into account R v Lau Tak Ming and Others [1990] 2 HKLR 370.  There, the Court of Appeal held that where up to 10 grammes of heroin was involved, the appropriate starting point should be between 2 and 5 years’ imprisonment.  Here, mathematically speaking a starting point of 2 years and 10 months’ imprisonment is appropriate for this amount of heroin. 

17.  There is midazolam here but a very small amount.  According to the authorities, the proper sentence where there is such a small amount is up to the discretion of the sentencing court.  Given the very small amount here, I find it a de minimis amount or such a negligible amount that I will not impose any additional sentence to reflect this quantity of this drug.

18.  I find it appropriate to consider a 2 year 10 month term of imprisonment as a starting point for Charge 2.

19.  Mr Leung has urged me to consider the totality principle and consider a partly concurrent approach for Charges 1 and 2, despite the fact they are two separate offences. 

20.  As for Charge 3, failing to surrender to custody without reasonable excuse is a serious offence but I will take into account that he was rearrested less than two months later.  I find it appropriate to consider a starting point of 3 months’ imprisonment for this charge.  The Court of Appeal said in HKSAR v Law Ying Kam, CACC 183/2015, that this offence was serious and essentially a breach of a court order.  Any sentence imposed and made wholly consecutive to the sentence in the main offence was neither manifestly excessive or wrong in principle.

Conclusion

21.  The defendant pleaded guilty at the earliest opportunity to all charges and will benefit from a full one-third discount to the starting points I have found appropriate.

22.  Accordingly, for Charge 1, after that discount is applied to the starting point of 1 year and 6 months, I impose a term of imprisonment of 1 year. 

23.  For Charge 2, after that discount is applied to the starting point of 2 years and 10 months and rounded it down, I impose a term of imprisonment of 1 year and 10 months. 

24.  For Charge 3, after that discount is applied to the starting point of 3 months, I impose a term of imprisonment of 2 months. 

25.  I will take into account the totality principle and order that 4 months of Charge 1 be served consecutively to Charge 2 and the balance concurrently.  I will order the sentence of Charge 3 be served consecutively to Charge 2.

26.  Therefore, the defendant is sentenced to a total of 2 years and 4 months’ imprisonment.