HKSAR v. LUO ZHIHENG

CACC 181 /2024, [2025] HKCA 281

On Appeal From [2024] HKDC 1359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2024

(ON APPEAL FROM DCCC NO 556 OF 2024 AND DCCC 66/2024 & 1105/2023 (CONSOLIDATED))

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J U D G M E N T

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1.  The applicant faced two charges under DCCC No 556/2024: namely, keeping a divan, contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (Charge 1); and one charge of trafficking in dangerous drugs, namely (i)  0.63 grammes of a solid containing 0.52 grammes of cocaine, (ii)  12 grammes of a mixture containing 9.7 grammes of heroin hydrochloride, (iii)  2.67 grammes of a crystalline solid containing 2.67 grammes of methamphetamine hydrochloride (commonly known as “Ice”), and (iv)  20 tablets containing 0.26 grammes of midazolam, contrary to section 4(1)(a)  and (3)  of the same Ordinance (Charge 2). He pleaded guilty to both charges and was sentenced on 16 August 2024 by Deputy District Judge M Chow (“the judge”)  to a total of 56 months’ imprisonment on both charges.

2.  On 2 September 2024, the applicant filed a Form XI Notice of Application for Leave to appeal against his sentence in DCCC 556/2024 only.  However, it will be noted that he had also been sentenced at the same time, on the same day, by the same judge in respect of two other charges of fraud in DCCC 66/2024 and 1105/2023 (consolidated)  to 22 months’ imprisonment, for which the judge ordered 10 months of that sentence to run consecutively to the sentence on Charge 2 in DCCC 556/2024.  The overall sentence passed on the applicant by the judge was, therefore, 66 months’ (or 5½ years’)  imprisonment. 

The Summary of Facts in relation to DCCC 556/2024

3.  On 15 November 2023 at about 8:05 am, the police searched a flat in a building in Reclamation Street, Mongkok, Kowloon (“the Premises”)  and found the applicant and 16 other people inside.  The Premises measured around 450 square feet in size.  Inside the living room, there were 4 tables, 23 chairs and a price list for various dangerous drugs on offer on the wall. The police seized the following items from one of the tables[1]:

(a)  the dangerous drugs particularised in Charge 2;

(b)  two drug apparatus, straws, aluminium foils, an electric scale, a calculator, pliers, scissors, a clip, a spoon, packs of re-sealable plastic bags, plastic sheets, and lighters; and

(c)  cash of $5,300 inside the drawer.

4.  The applicant, who had opened the door to the Premises when the police arrived, was arrested and cautioned.  Under caution, he said that he had worked at the Premises for 2 days for a daily wage of $1,200.  He was responsible for opening the door for customers and selling dangerous drugs to them.  The Premises were also used for packaging dangerous drugs and available for customers to consume dangerous drugs.  On that morning, the applicant had started working at about 7 am but claimed he had not sold any drugs.  He knew that the 16 other people in the Premises were there to purchase and consume dangerous drugs[2].

5.  The applicant committed the present offences whilst on bail.  On 10 May 2023, he had been arrested for fraud and released on police bail the following day[3].

6.  The total street value of the dangerous drugs in question was $12,582.18[4].

7.  The applicant had four previous convictions, three of which were drug related.  In 2009, he had been sentenced to probation for 12 months in respect of one count of possession of dangerous drugs.  On 29 October 2021, the applicant was convicted of one count of keeping a divan and one count of trafficking in dangerous drugs, for which he was sentenced to a total of 12 months’ imprisonment.  He was released from prison in respect of that matter on 25 May 2022[5].

8.  At the time of sentence, the applicant was a 46-year-old married man.  His wife resided in mainland China with her young children from a former marriage.  The applicant was born in Guangzhou and received education up to Form 3 level.  After moving to Hong Kong in 2008, he held a stable job as a driver until 2019, when the riots and, subsequently, the Covid pandemic began to affect the economy.  Thereafter, he worked as a casual worker.  He contributed his income substantially to his wife and his elderly parents, he being the only child of the family.  It was submitted that the applicant committed these offences because of his difficult financial circumstances[6]. The court was urged to consider the applicant’s timely plea of guilty, his cooperation with the police and his demonstration of remorse[7].

Reasons for Sentence

9.  The judge noted that, while there were no sentencing guidelines for keeping a divan, the Court of Appeal in HKSAR v Lam Lai Chu Patsy[8] had held that the general starting point for the offences was between 1 and 2 years’ imprisonment.  Considering the size and capacity of the Premises, the items found inside and the applicant’s knowledge, the judge adopted a starting point of 21 months’ imprisonment in respect of Charge 1.  Giving the applicant a full one-third discount, the sentence thus became 14 months’ imprisonment[9].

10.  There were four different kinds of dangerous drugs particularised in Charge 2, although the judge considered that the 0.26 grammes of midazolam was too insignificant to have any bearing on the overall sentence.  The aggregate weight of heroin and cocaine, which shared the same sentencing guideline, was 10.22 grammes, accounting for 79.29% of the total weight of the dangerous drugs found.  Under the relevant guidelines, the quantity fell within the 5 to 8 years’ imprisonment bracket and would attract an arithmetic starting point of 5 years’ imprisonment.  On the other hand, 2.67 grammes of “Ice” accounted for 20.71% of the total weight of the drugs and fell into the bracket of 3 to 7 years’ imprisonment under the relevant guidelines. The arithmetic starting point for the quantity of “Ice” was an imprisonment term of 4 years and 1 month[10].

11.  Using the combined approach and heroin/cocaine as the base drug for calculation purposes, the judge arrived at the following results, which were agreed between the defence and the prosecution[11]:

(a)  The absurdity test (using heroin/cocaine as the base drug): 62 months’ imprisonment;

(b)  The ratio rest: 66.96 months’ imprisonment; and

(c)  The conversion test: 66.39 months’ imprisonment.

Having considered the above calculations, the judge adopted 60 months’ imprisonment as the starting point for the heroin and cocaine and then enhanced it by 6 months to 66 months’ imprisonment so as to take into account the quantity of “Ice”[12].

12.  There were three aggravating factors identified by the judge: (1)  the commission of the drug-related offences whilst on bail; (2)  the applicant’s recent convictions for keeping a divan and trafficking in dangerous drugs; and (3)  the cocktail or variety of dangerous drugs involved, which catered for a wider market of drug consumers.  For these factors, the judge enhanced the sentence by 9 months’ imprisonment, resulting in 75 months’ imprisonment on Charge 2 before the discount of one-third for plea was applied. Following the discount, the sentence on Charge 2 became 50 months’ imprisonment[13].

13.  Finally, the judge ordered 6 months of the sentence on Charge 1 to run consecutively to the term of Charge 2, arriving at the total sentence of 56 months’ imprisonment for the drug-related offences under DCCC 556/2024[14].

The grounds of appeal

14.  In his Form XI Notice and a subsequent hand-written letter, dated 10 December 2024[15], the applicant submitted that the sentence in DCCC 556/2024 was manifestly excessive. 

15.  In particular, he argued that the starting points for both Charge 1 (21 months’ imprisonment)  and Charge 2 (75 months’ imprisonment)  were too high, making an overall starting point of 96 months’ imprisonment.  The applicant pointed out that in HKSAR v Yeung Chit Hung[16], the defendant had only received 92 months’ imprisonment as a starting point for trafficking in 26 grammes of “Ice”.  (In fact, the circumstances of that case were very different and the starting point was 8 years’ (or 96 months’)  imprisonment: see p 3F-G of the judgment.)

16.  The applicant also wished to refer to a case at first instance in the District Court, but was unable to provide the case number.  In any event, such sentences at first instance cannot bind appellate courts.

The respondent’s submission

17.  Mr Jason Lau, for the respondent, contended that the judge had adopted appropriate starting points in respect of both charges[17]. For Charge 2, the respondent agreed with the judge’s approach and argued that all the enhancements were justified[18]. Since Charge 1 and Charge 2 were of a different nature, it would have been wrong to order their sentences to be served wholly concurrently[19].  Accordingly, the respondent submitted that the sentence in DCCC 556/2024 was neither wrong in principle nor manifestly excessive.

Consideration

18.  This was actually a very serious matter indeed. In many ways, it was the drug trafficker in full flight, selling a variety of dangerous drugs, thus catering to a wider section of the illicit drug market, and providing the equipment and premises to consume them.  Moreover, this was not the applicant’s first time in running a divan: he had been sentenced for the same offences of keeping a divan and trafficking in dangerous drugs in October 2021, barely two years before the present offences were committed.  On that occasion, he had received 12 months’ imprisonment overall.  His activities have evidently escalated since his release.

19.  On top of those aggravating features, the offence was committed six months after he had been placed on police bail for another offence.  That is, again, a serious matter.

20.  Consistent with section 83I(2)  of the Criminal Procedure Ordinance, Cap 221, I have also considered the sentences for the other offences passed at the same time in determining whether there may be a reasonably arguable ground of appeal that the overall sentence for both sets of offences was either manifestly excessive and/or wrong in principle.  The judge was plainly alive to the issue of totality and ordered only 10 months’ imprisonment of the sentence in DCCC 66/2024 and 1105/2023 to run concurrently with the present offences, the remainder of the sentence to run concurrently. That was an entirely proper exercise of the judge’s sentencing discretion and no complaint can be made.

21.  The application is accordingly refused.  The applicant is reminded that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that that Court has the power to order the loss of any time which he has served in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.