HKSAR v. Chang Tsan Ho

DCCC 77/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 77 OF 2016

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REASONS FOR SENTENCE

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1.The 1^st defendant pleaded guilty to the following changes: 1^st charge of “Managing a divan”, 2^nd charge of “Trafficking in dangerous drugs” involving 2.04 g of heroin hydrochloride and 5.21 g of methamphetamine hydrochloride, commonly known as “ice”, 47 tablets containing 0.65 g of midazolam and some traces of heroin and midazolam, 3^rd charge of “Possession of apparatuses fit and intended for the inhalation of a dangerous drug” and 4^th charge of “Possession of a dangerous drug” involving 1.4 g of heroin hydrochloride.

Summary of facts

2.In the evening on 12 October 2015, a team of police officers were laying ambush at the front staircase between G/F and 1/F of No 63A Shatung Street, Mongkok.  When four South Asian males were entering a flat located at the rear portion of the 1/F of the said building, the 1^st defendant was found standing near the main door with smoke coming out from the premises.

3.Upon search of the premises, there were found 6 out of 7 tables, on which tools for inhaling dangerous drugs were placed.  4 Chinese males and 2 Chinese females were sitting separately on the 6 said tables.

4.Under caution at scene, the 1^st defendant admitted that he was the responsible person of the premises and he was selling drugs to customers to inhale inside the premises to earn money.

5.At about 1940 hours on the same day.  Further search on the premises found the followings:-

(a) On Table 1 found:

(i) 1 piece of paper containing traces of powder suspected to be heroin (“DD1”);

(ii) 1 piece of paper containing traces of powder suspected to be heroin (“DD2”);

(iii) 2 silver-coloured electronic scales;

(iv) 1 pair of scissors in green and grey colour;

(v) 1 transparent plastic spoon;

(vi) 1 burnt tinfoil sheet;

(vii) 1 roll of yellow paper within tinfoil;

(viii) some tinfoil sheets inside a tinfoil box;

(ix) 1 tinfoil box.

(b) Inside the drawer of Table 1 found:

(i) 1 transparent resealable plastic bag containing 4 packets in white suspected to be heroin and 5 packets in green suspected to be heroin (“DD3”);

(ii) 1 transparent resealable plastic bag with a red line on it containing 18 packets in pink suspected to be “ice” (“DD4”);

(iii) 1 transparent plastic bag containing crystalline solid suspected to be “ice” (“DD5”);

(iv) 1 transparent resealable plastic bag containing 47 tablets suspected to be Part 1 poison (“DD6”);

(v) 1 plastic box containing HK$580;

(vi) 1 iron box printed with “Kee Wah Mooncake” containing 13 new syringes and 1 red iron box with some transparent resealable plastic bags inside;

(vii) 1 transparent resealable plastic bag containing some red plastic sheets.

(c) On Table 2 found:

(i) 1 calculator in white colour;

(ii) 1 ball pen;

(iii) 1 notebook.

(d) On Table 3 found:

(i) 1 piece of tinfoil sheet;

(ii) 1 lighter in green colour;

(iii) 1 paper roll.

(e) On Table 4 found:

(i) 1 plastic bottle connected with a straw and a glass tube containing suspected dangerous drugs liquid (“DD7”);

(ii) 2 burnt tinfoil sheets;

(iii) 1 paper roll with rubber band on it;

(iv) 1 roll of tinfoil with paper.

(f) On Table 5 found:

(i) 1 burnt tinfoil sheet;

(ii) 1 lighter in yellow colour;

(iii) 1 paper roll with rubber bank on it;

(iv) 1 piece of transparent plastic sheet.

(g) On Table 6 found:

(i) 1 plastic bottle connected with a pink straw, a red straw and two purple straws containing suspected dangerous drugs liquid (“DD8”);

(ii) 2 burnt tinfoil sheets;

(iii) 1 lighter in red colour;

(iv) 1 lighter in blue colour;

(v) 1 paper roll with rubber band on it.

6.At about 2011 hours on the same day, a body search was conducted on the 1^st defendant and 3 white packets and 1 green packet of suspected dangerous drugs (“DD9”) were found from his left trousers pocket.  Under caution, the 1^st defendant admitted that those dangerous drugs seized from him were “white powder” for his own consumption.

7.Between 1701 and 1804 hours on 13 October 2015, a video recorded interview was conducted with the 1^st defendant, during which he admitted, among other things, that:-

(a) The premises was used for selling dangerous drugs and he was the person in charge;

(b) He himself was a drug addict and he worked at the premises to earn some money for his own consumption of dangerous drugs;

(c) The premises was open for 24 hours, he shifted duty with another person called Ah Roy in 12 hours’ slot;

(d) He did not have key to the main door of the premises;

(e) A female called Ah Cat introduced her to work at the scene and he earned $1,200 per day;

(f) He started working at the scene on 28 September 2015 and on that day, it was Ah Roy who opened the door and he gave the 1^st defendant some heroin and ice;

(g) The 47 tablets of blue pills seized from the scene were sleeping pills prescribed by his doctor;

(h) The bigger packets in white and smaller packets in green are white powder which were sold at HK$400 and HK$200 per packet respectively; while the pink packets were “ice” which is sold at $100 for each;

(i) The boss of the premises is called “Chicken” who will come to the premises to categorise the dangerous drugs and calculate the quantity. The 1^st defendant received the drugs from him and put them into plastic bags; when the money from selling drugs accumulated up to HK$6,000, Chicken would come to the collect the money;

(j) Money found from the drawer of the table was from selling drugs and the needles were bought by Ah Roy which were sold to customers HK$3 for each. The money from selling the needles belonged to Ah Roy;

(k) Money found on him was earned from his work at a garage;

(l) The resealable bags were used for packing ice and heroin and the adhesive tapes were used for packing the dangerous drugs for customers to take away; tinfoil sheets and plastic spoons are for customers to inhale drugs;

(m) There were entries concerning names, quantity of drugs sold and date of visit of customers inside the notebook;

(n) He used HK$1,000 to buy the 6 packets of white powder for his own consumption.

GCC and Street Value

8.On 14 October 2015, the dangerous drugs seized in the premises were delivered to the Government Laboratory for examination with the following result:-

(1) DD1 was traces of a powder containing heroin and midazolam (Charge 2);

(2) DD2 was traces of a powder containing heroin and midazolam (Charge 2);

(3) DD3 was a total of 3.22 grammes of a mixture containing 2.04 grammes of heroin hydrochloride (Charge 2);

(4) DD4 was a total of 5.15 grammes of a crystalline solid containing 5.04 grammes of methamphetamine hydrochloride (Charge 2);

(5) DD5 was 0.18 grammes of a crystalline solid containing 0.17 grammes of methamphetamine hydrochloride (Charge 2);

(6) DD6 was a total of 47 tablets containing 0.65 grammes of midazolam (Charge 2);

(7) DD7 was 96 millilitres of a liquid containing traces of methamphetamine;

(8) DD8 was 110 milliilitres of a liquid containing traces of methamphetamine; and

(9) DD9 was a total of 2.16 grammes of a mixture containing 1.40 grammes of heroin hydrochloride (Charge 4).

9.The total street value of all dangerous drugs seized in the case was estimated to be HK$8,053.

Mitigation

10.The 1^st defendant is 35 years old and single.  He was residing with his girlfriend in Mongkok and taking odd jobs in a garage earning $500 per day.  He has three previous criminal records in 1997, 2011 and 2012 respectively.  He was lastly sentenced to 4 years’ imprisonment for trafficking in dangerous drugs in June 2012.

11.It was mitigated that he worked in the present offence location because he needed money for his own drug addiction.

Sentencing consideration

1^st charge - Managing a divan

12.There is no sentencing tariff for the offence of keeping a divan.  When considering the sentence, the court takes into account the following factors:-

(a) the size of the operation of the 1^st defendant’s divan;

(b) the duration in which the operation has been carried out; and

(c) the 1^st defendant’s role in the operation.

13.In all the circumstances, the proper starting point for the first charge in my view is one of 15 months’ imprisonment, which is reduced, on account of his guilty plea, to 10 months.

2^nd charge – Trafficking in dangerous drugs

14.The Court of Appeal has laid down clear sentencing guidelines for trafficking in various dangerous drugs. Trafficking in up to 10 grammes of heroin carries a sentence of 2 to 5 years’ imprisonment: see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370.  Trafficking in up to 10 grammes of “ice” carries a sentence of 3 to 7 years: see HKSAR Tam Yi Chun [2014] 3 HKLRD 691.  There is no sentencing guideline for trafficking in midazolam which is comparatively less potent than the two other dangerous drugs found in the present case.  It mainly depends on the quantity and background of the 1^st defendant.  The sentences are normally within 6 months for quantity less than 500g.

15.In determining the proper overall starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003, HKSAR v Cheng Yat Ming CACC 455/2006 and HKSAR v Chan Yuk Leong CACC  318/2013.

16.The Court of Appeal in the case HKSAR v Chan Yuk Leong CACC 318 of 2013 observed that the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.  One aggravating feature is the ability of the trafficker to cater to a wider market.  More important is the effect on users of combinations of dangerous drugs.

17.In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, the Court of Appeal held that where the “combined approach” is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point.  For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point.

18.Regarding the 2^nd charge, I am of the view that the “combined approach” would arrive at a realistic and fair sentence.  In terms of either potency or quantity, 5.21 grammes of ice should form the basis of the starting point.  Hence, I adopt a basic starting point of 5 years, ie 60 months’ imprisonment and adjust it upward by 6 months for the quantity of other dangerous drugs, ie 2.04 g of heroin, and 0.65g of midazolam arriving at 66 months’ imprisonment.  The 1^st defendant is entitled to a full 1/3 discount because of guilty plea which makes the sentence reduced to 44 months

19.The offences of managing a divan (1^st charge), trafficking of dangerous drugs (2^nd charge) and possession of apparatuses fit of inhaling dangerous drugs (3^rd charge) did, in my view to a significant extent, form part and parcel of a train of transactions.  Applying the totality principle, I order that 4 months of the sentence in respect of the first charge to run consecutively to the sentence of 44 months for the second charge, making a final sentence of 48 months imprisonment for the two charges. 

3^rd charge – Possession of apparatus fit for inhaling dangerous drugs

20.Regarding the 3^rd charge, I take a starting of 12 months’ imprisonment as a starting point and reduced to 8 months given the guilty plea.  In light of the totality principle, I order the sentence of the 3^rd charge to run wholly concurrently with the sentence for the 1^st and 2^nd charges.

4^th charge – Possession of a dangerous drug

21.Regarding the 4^th charge, I take a starting of 12 months’ imprisonment as a starting point and reduced to 8 months given the guilty plea. Given the relatively minor nature of the offence of possession of dangerous drugs comparing to the other offences, it is ordered that the sentence of the 4^th charge to run wholly concurrently to the sentence of other three charges.

22.The 1^st defendant is therefore sentenced a total of 4 years’ imprisonment.