HKSAR v. KOON PO TUNG (also known as KONG PO TUNG)

DCCC 552/2018

[2018] HKDC 1386

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 552 OF 2018

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

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

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

REASONS FOR SENTENCE

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

1.  The defendant pleaded guilty to one count of “keeping a divan”, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1) and one count of “trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the same ordinance (Charge 2).

Facts

2.  During an anti-narcotics operation conducted on 26 October 2017, a team of police officers laid ambush in the vicinity of Flat A, 3/F, No 196 Fa Yuen Street, Mongkok, Kowloon (“the Flat”).

3.  At around 4:40 pm on that day, when someone was opening the iron gate of the Flat, the police officers rushed forward and gained access into the Flat on the strength of a search warrant.

4.  The Flat measured approximately 300 square feet in size.  At that time, a total of 12 persons including the defendant were present inside the Flat.  The defendant was sitting at a table near the bathroom whilst the others were sitting at 3 other tables therein.

5.  Upon house search, 1 plastic packet containing 0.15 gramme of “Ice”, 2 packets containing a total of 0.16 gramme of heroin hydrochloride together with paraphernalia fit for consuming dangerous drugs were found on the 4 tables inside the Flat. 

6.  Under caution at the scene, the defendant admitted to be the keeper of the divan.  He further admitted selling the dangerous drugs including “Ice” and heroin to others for consumption thereat.

7.  In subsequent video-recorded interview, the defendant admitted selling “Ice” and heroin inside the Flat at the material times, he had been working there for about 1 month, he had sold a packet of heroin for HK$200 to a customer inside the Flat but that customer had already left, that he last received his salary a few days ago, and the tinfoil and lighter, etc were intended for use in consumption of dangerous drugs.  

8.  The estimated street value of the dangerous drugs involved is approximately HK$186.20.

Mitigation

9.  The defendant is aged 41, single and lived with his parents.  He was unemployed at the time of the offence.  He has 17 previous conviction records, 8 of them relate to dangerous drugs. 

10.  In mitigation, counsel for the defence referred to the reasons for sentence in HKSAR v Chan Wing Yee, DCCC 260/2017 and HKSAR v Wong Wing Kwong, DCCC 413/2018 and submitted that given the tiny amount of drugs involved in this case, it was within the court’s discretion to adopt a lower starting point.  It was further submitted that the starting point to be adopted would be in the range of 2 to 3 years.  Counsel also referred to HKSAR v Lam Lai Chu Pasty, CACC 56/2003 and submitted the appropriate starting point would be around 2 years for the offence of keeping a divan.  The court was urged to consider the totality principle and impose a total sentence of no more than 3 years.

Sentence

11.  Although the defendant has 8 criminal conviction records relating to dangerous drugs, the last one was in 2011.  In the circumstances, I will not enhance the starting point of the sentences because of his record.

12.  For charge 1, the offence of keeping a divan, there is no sentencing guideline or tariff.  Nevertheless, the Court of Appeal in HKSAR v Lam Lai Chu Patsy, CACC 56/2003 did remark that the usual range of sentence is between 12 to 24 months’ imprisonment.  The main consideration would be the scale of the divan.   

13.  In the present case, the premises are small.  At the material time, there were 11 other people inside the premises.  There were some dangerous drugs with paraphernalia fit for consuming drugs.  In the circumstances, I consider the divan to be one operating on a small scale.  Nevertheless, keeping a divan is a serious offence.  I consider 18 months to be the appropriate starting point.  This is reduced to 12 months for the defendant’s plea.

14.  For charge 2, it involves two types of drugs, namely 0.15 gramme of Ice and 0.16 gramme of heroin.

15.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370) and Ice (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  For trafficking up to 10 grammes of heroin, the sentence ranges from 2 to 5 years’ imprisonment.  For trafficking up to 10 grammes of Ice, the sentence ranges from 3 to 7 years’ imprisonment.  For 0.16 gramme of heroin, the appropriate starting point is 1 year.  For 0.15 gramme of Ice, the appropriate starting point is 2 years. 

16.  In cases involving trafficking in more than one type of drugs, the Court of Appeal has set out two different approaches, namely the combined approach and the individual approach (see HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367).  If the individual approach is adopted in this case, the overall starting point would be 3 years, which is much higher than the starting point for the whole quantity of the two drugs if the batch merely contained Ice.  Therefore, I will adopt the combined approach in determining the appropriate starting point.

17.  In this case, heroin and Ice are involved.  Given Ice is the more serious drug in terms of potency, I will refer to the sentencing tariff for Ice. As I mentioned earlier, for trafficking in 0.15 gramme of Ice, the appropriate starting point is 2 years.  As the defendant trafficked in more than one type of drug, this is considered as an aggravating factor.  To reflect this aggravating factor, I enhance the starting point by a further 3 months’ imprisonment.  Therefore, the starting point for charge 2 is 2 years and 3 months.  Given the defendant’s guilty plea, the sentence is reduced to 18 months.    

18.  Apart from the guilty plea, I see no other mitigating factors which warrant further reduction of the sentences. 

19.  Although the two offences were committed on the same day, they are of different nature and do not precisely overlap.  The divan keeping involves more than just the trafficking in the drugs.  Therefore, I do not consider it appropriate for the whole of the two sentences to run concurrently.  Taking into consideration the totality principle, I consider a total sentence of 26 months is sufficient to reflect the criminality of the defendant’s act.  I therefore order 8 months of the sentence for charge 1 to run consecutive to the sentence for charge 2.  I hereby sentence the defendant to 26 months’ imprisonment.