HKSAR v. Lee Ho Yin

DCCC 1114/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1114 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.The first defendant is named in the first and second charges in a Charge Sheet containing a total of five charges.  Upon his arraignment on 31 May 2016, he entered a plea of guilty to, and was accordingly convicted of, the two charges he faced, namely, keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (the first charge) and trafficking in a dangerous drug, preferred against him by the prosecution pursuant to section 4(1)(a) and (3) of the same Ordinance (the second charge). 

FACTS

2.On the evening of 26 August 2015, a team of police officers conducted an anti-narcotic operation and, in execution of a search warrant, broke into Flat A, 1^st Floor, No.459 Reclamation Street, Mong Kok, Kowloon.  They found the first defendant there in the living room together with several other persons.  The following items were noted on the four tables: 56 packs of syringes, one electronic scale, seven lighters, some transparent resealable plastic bags, a quantity of aluminum foil (some of which exhibited burnt marks), one calculator, and one notebook.  The police arrested the first defendant.  He admitted under caution that he was the person in charge of the flat and had sold dangerous drugs for his customers to inhale there.  He was found to be in possession of three keys capable of opening the main gate at the entrance of the building and the wooden door and the iron gate of the flat.  In a subsequent video recorded interview, the first defendant said he had rented the flat for two days, ie., between 24 and 26 August 2015, at a daily rent of $500, in order to sell heroin, commonly called “pak fan”; he worked from noon to mid-night and another person was responsible for the mid-night to noon shift; he had purchased – for $8,000 – a total of 50 pellets of “pak fan”, each containing about 0.12 grammes, making a total weight of about six grammes; he had sold all the “pak fan” before the police raided the flat; he sold them at $200 a pellet, and his income was $10,000; and his customers had used the paraphernalia found in the flat to inhale “pak fan”. The police estimated that in August 2015, six grammes of heroin was worth about $4,494.    

MITIGATION

3.The defendant was born in Macau in November 1955 and is now 60 years old.  He has received education up to Form Three level.  Divorced and without any children, he lives alone in Mong Kok.  He has a total of 34 previous convictions, involving, inter alia, 20 charges of possession of dangerous drugs or of possessing equipment fit and intended for smoking dangerous drugs, six charges of trafficking in dangerous drugs, and one charge of keeping a divan.   He was last discharged from Tai Lam Correctional Institution on 27 May 2015.  Unemployed at the time of the offences, he admits to be a drug abuser.

4.In his plea in mitigation, Mr Lam Shun-chiu appearing for the defendant submits that responsible for one shift only, the defendant has had no overall control of the premises.  Mr Lam refers the court to the case of HKSAR v Lam Lai Chu Patsy[1] and submits that the usual range of sentence for a charge of keeping a divan should be between one and two years.  Relying on HKSAR v Ho Sai-chak[2] and HKSAR v Cheung Kung-hang[3], Mr Lam argues that the better part of the sentence in respect of the first charge should run concurrently with the sentence for the second charge.     

CONSIDERATION

5.There is no sentencing tariff for the offence of keeping a divan.  The court takes into account the size of the operation of the defendant’s divan, the duration in which the operation has been carried out, and the defendant’s role in the operation.  This is the defendant’s second conviction of this offence.  In all the circumstances, the proper starting point for the first charge is one of 15 months’ imprisonment, which is reduced, on account of his guilty plea, to ten months.

6.The offence of trafficking in a dangerous drug carries a statutory maximum sentence of life imprisonment.[4]  The Court of Appeal has held that the tariff sentence, after trial, for trafficking in up to ten grammes of heroin is a term of imprisonment of between two and five years (see R v Lau Tak Ming[5]). The defendant has multiple previous convictions of offences relating to dangerous drugs, six of which were for trafficking in dangerous drugs.  In all the circumstances, the proper starting point for the second charge should be three and a half years’ imprisonment.  The defendant is entitled to one-third discount for his guilty plea.  The sentence for the second charge is therefore one of two years and four months’ imprisonment.

7.There are merits in Mr Lam’s argument for a substantial concurrent sentence for the two charges concerning the first defendant: the two offences did, to a significant extent, form part and parcel of a train of transactions.  Applying the totality principle, it is ordered that four months of the sentence in respect of the first charge do run consecutively to the sentence for the second charge, making a final sentence of two years and eight months’ imprisonment for the two charges.

CONCLUSION

8.For the offences in the first and second charges of which he stands convicted, the first defendant is sentenced to a term of imprisonment of two years and eight months.