HKSAR v. Yuen Wah Keung

DCCC 1059/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1059 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges: first, trafficking in a dangerous drug; the second, possession of a dangerous drug; and, thirdly, managing a divan.

2.The defendant has admitted the facts.  They are straightforward and I have convicted him of those offences.

3.Essential facts are the defendant managed a divan in a flat in Canton Road in Kowloon in August of last year.

4.On 18 August 2015, the police mounted a raid on the premises.  They found the drugs which are particularised in Charge 1 in the form of red and white tablets, which were for sale.  They were found together with apparatus for the consumption of these drugs. 

5.There was also a quantity of methamphetamine hydrochloride which was found.  The defendant has said, and it is accepted, that this is for his own consumption, and that forms the second charge.

6.There were 11 persons present in the flat, including the defendant, and the defendant immediately admitted the items inside the flat belonged to him.

7.He later made more(?) fuller admissions in a record of interview and what he said was that he had received customers in the flat who wanted to find a place to take drugs and the persons in the flat when the police entered were smoking drugs.  “Ice” and heroin had been provided.  He would open the door and sell them the drugs and he had bought the heroin and “Ice” for a sum of 4 to 5 thousand dollars.

8.As far as the heroin was concerned, the white packets sold for $400 each and the red packets for $200 each, and he provided materials like lighters and aluminium foil, syringes to heroin customers for free, and they could take away dangerous drugs in unused resealable transparent plastic bags. 

9.He consumed “Ice” himself.  He had been doing that for more than half a year.

10.The defendant admits he was managing the flat as a divan where heroin was sold, smoked, inhaled and ingested and injected.

11.The street value of the dangerous drugs seized is about $9,656.

12.As far as the defendant is concerned, he had admitted his antecedents and criminal record, antecedents being unremarkable. He is aged now 38 years old. 

13.He has a conviction record.  There are a large number of previous convictions, including four previous for trafficking in a dangerous drug, for which the defendant has been sent to prison on those occasions.

14.He also has a conviction for managing or keeping a divan back in 2003, for which he was sentenced to 20 months’ imprisonment.

15.He also has a number of convictions for possession of a dangerous drug, for which he has been sent to prison.

16.His most recent convictions for trafficking in a dangerous drug were in 2011, when he received a sentence of 40 months’ imprisonment.

17.As far as sentencing is concerned, the defendant has been convicted previously of all the offences that he has committed on this occasion, so that does represent an aggravating factor because it would show a failure of previous sentencing to deter the defendant from his present activities.

18.As far as mitigation is put forward, the major mitigating factor put forward by the defendant is, of course, his plea of guilty and the fact he seems to have had admitted all these matters from an early stage, when he was initially arrested by the police.

19.As far as the sentencing is concerned, I turn now to Charge 1.  That is, trafficking in the dangerous drug, and these are the heroin hydrochloride, of which there were 6.5 grammes, and also 0.04 grammes of a mixture which contained heroin, a negligible amount.

20.There is, of course, a guideline sentence for trafficking in heroin.  The guideline is for quantities of up to 10 grammes the sentence will range between 2 to 5 years’ imprisonment and, of course, the major factor in sentencing or determining where on that guideline the figure should lie will be the quantity of narcotic involved, and the quantity of narcotic in this case puts it somewhere in the middle of that figure.

21.So I will adopt at this stage an initial point of sentencing at 3½ years’ imprisonment, which is 42 months.

22.The aggravating factor of the defendant’s previous convictions within certainly about 2011 being the latest for trafficking in dangerous drug means that there should be some element to reflect that, and I will add a further 6 months to the sentence to reflect that.

23.So, on the first charge, the starting point for sentence will be 48 months’ imprisonment.

24.The defendant is entitled to a full one-third discount, which takes it down to 32 months’ imprisonment.

25.On Charge 2, and that is the possession of the “Ice” or methamphetamine hydrochloride - defendant has numerous convictions for possession of dangerous drug - I will take a starting point of 18 months’ imprisonment for that offence and reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.

26.As far as the third charge is concerned, sentences can range up to 2 years’ imprisonment for that offence.

27.The defendant has committed this offence before, although back in 2003, some years ago.

28.I will adopt a starting point of 24 months’ imprisonment on the third charge (that is for managing a divan), reduced to 16 months’ imprisonment for the defendant’s plea of guilty.

29.I must consider how the sentences should be served, whether consecutive or concurrently.

30.I certainly consider that Charges 1 and 2 should be served concurrently.  They arise out of the same incident.

31.As far as Charge 3 is concerned, there is, of course, a considerable overlap between that charge and the first charge, as the divan was being kept for the consumption of the drug that was found within it and that is the drug that was involved in the trafficking charge.

32.However, there is an added element in respect of the keeping of the divan and the provision of space and means by which drugs can be consumed and taken away.

33.What I shall order therefore is that 6 months of the third charge be served consecutively to Charges 1 and 2. 

34.This would give an overall sentence of 38 months’ imprisonment on those three charges.

35.The total sentence will be 38 months’ imprisonment.