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DCCC 929/2023
[2024] HKDC 1408
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 929 OF 2023
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| Before: |
Deputy District Judge M Chow in Court |
| Present: |
Ms Yasmine Zahir, Counsel on Fiat, for HKSAR/Director of Public Prosecutions |
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Mr Fu Chong Sang, instructed by Joseph MK Chan Solicitors, assigned by the Director of Legal Aid, for the Defendant |
| Offences: |
[1] Trafficking in dangerous drugs (販運危險藥物) |
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[2] Keeping a divan (經營煙窟) |
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REASONS FOR SENTENCE
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1. The Defendant pleaded guilty to 2 charges:-
(a) Trafficking in dangerous drugs
(b) Keeping a divan
Summary of facts
2. The police execute a search warrant on 8 June 2023 and entered into the premises where drugs of Charge 1 and cash $2,120 were found inside the drawer of the Keeper’s table.
3. The total value of the drugs was $6,521.
4. There were price list attached on the wall.
5. Other items were also seized which included:-
(a) Electronic scales
(b) Calculator
(c) 2 plastic bottles each inserted with 1 glass tube and 1 straw
(d) 2 lighters
(e) Bundle of transparent re-sealable bags
(f) Aluminium foils
(g) 3 bags of straw and one pair of scissors
6. Under caution, the defendant said that:-
(a) He was the keeper of the premises. That was the first day of his work.
(b) The dangerous drugs were to be sold to customers.
(c) The items seized were tools for customers to consume dangerous drugs.
(d) $2,120 were the proceeds of the sale of the dangerous drugs.
Criminal record
7. Since 1979 to 2021, the D had 54 criminal convictions, out of which 17 convictions related to drug offenses.
8. The prosecution informed me that as to KDC/325/85, the sentence for a charge of burglary and assault with intend to rob was substituted by a DATC order on appeal.
Background
9. The Defendant is 59 years old, he used to be a casual worker earning $450 a day. He lives apart from his family.
10. On the day of his arrest, he just returned back to Hong Kong from China. His friend asked him to keep the divan in question for a daily wage of $500.
Sentence
11. There are 4 types of drugs in the present case:-
(a) 4.11 grams of heroin
(b) 0.16 grams of cocaine
(c) 0.3 grams of ketamine
(d) 0.26 grams of midazolam
12. As to cocaine and heroin, the sentencing guidelines are the same. AG v Rojas [1994] 1 HKC 342 refers.
13. The aggregated amount of both drugs is 4.27 grams:-
(a) Heroin:- 4.11 grams
(b) Cocaine:- 0.16 grams
Total: 4.27 grams
14. According to HKSAR v Lau Tak Ming [1990] 2 HKLR 370 that trafficking in 4.27 grams of heroin / cocaine falls into the sentencing bracket of 2 to 5 years. It attracts a sentence of 3 years and 3 months.
15. As to a small quantity of 0.3 grams of ketamine, according to the sentencing guidelines of Hii Siew Cheng [2009] 1 HKLRD 1, the sentence is within the sentencer’s discretion.
16. Since the quantity of ketamine and midazolam are insignificant, it carries little or no impact on the overall sentencing. I therefore do not need to take it into account for the purpose of sentencing.
17. To this end, I take 3 years 3 months as the starting point.
18. The Defence accepted that there are aggravating factors in the present case:-
(a) There were 4 types of drugs to cater for a wider market.
(b) The Defendant has a long list of previous convictions.
19. I enhance the sentence by 6 months. It arrives at 3 years 9 months, given 1/3 discount for his guilty plea, it reduces to 30 months, that is 2 years 6 months.
Charge 2 (Keeping a divan)
20. In the case of HKSAR v Lam Lai Chu Patsy CACC 56/2003 that a usual sentence is within a range of 1 to 2 years.
21. In the present case, the premises is about 1,000 square feet with 10 chairs, 2 big sofa in the living room. There were altogether 13 persons presented at the time of the arrest.
22. In view of the size of the operation, I take 18 months as the starting point, reduce to 12 months after 1/3 discount.
Totality
23. The Defence asked for both sentences to run concurrently. I disagree as it cannot reflect the culpability of the offences. In one of the cases submitted by the Defence that is HKSAR v Cheung Kung Hang CACC 459/2000 that there was nothing wrong to order part of the sentence to run consecutively to a charge of trafficking in dangerous drug.
24. To this end, I order 6 months to run consecutively to charge one. That arrives at 3 years.
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(M Chow) |
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Deputy District Judge |
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