HKSAR v. Lau Siu Fung also known as Lau Siu Tong

DCCC 1065/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1065 OF 2016

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REASONS FOR SENTENCE

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Charges

1.The defendant pleads guilty to Charge 1: trafficking in a dangerous drug. He also pleads guilty to Charge 2: keeping a divan.

The facts

2.On the night of 25 August 2016, police gained entry to a room of a guesthouse in Shanghai Street, Kowloon when the defendant was coming out of it.  Inside the room, there were three other males and three females. 

3.Police found one larger bag of dangerous drugs on the defendant’s person (14.7 grammes of mixture containing 11.5 grammes of heroin hydrochloride) and one small bag of dangerous drugs (0.24 gramme of mixture containing 0.18 gramme of heroin hydrochloride).  Together, there were 14.94 grammes of mixture containing 11.68 grammes of heroin hydrochloride.

4.Inside the room, police found the following items:-

(a) one electronic scale;

(b) a large number of transparent resealable plastic bags;

(c) one pile of plastic sheets;

(d) one roll of aluminium foil;

(e) one piece of paper rolled into a tube;

(f) two pieces of burnt aluminium foil;

(g) two lighters; and

(h) one pair of scissors.

5.Under caution, the defendant admitted he lived in that rented room.  He sold heroin to others and let those people consume drugs in the room.  Later, he further told police that he had rented the room for just two days.  He would sell dangerous drugs at $200 per pellet.  On the day in question, he had sold two pellets to his friends.  He also told police that the various items found in the room (as mentioned in paragraph 4) were smoking or packaging paraphernalia.   

6.The estimated street value of the drugs seized was about HK$11,000.

Record

7.The defendant is aged 55.  Between 1979 and 2004, he had 12 previous convictions.  Convictions No 5, 6, 7 and 12 were related to drugs.  They were in the year of 1994, 1995 (twice) and 2004 respectively.  The 2004 conviction was his last conviction.  The defendant has no trafficking conviction or keeping-a-divan record.

Mitigation

8.Counsel says the defendant was a miserable man living on his own.  He had been a drug addict for years.  He was a decorator by occupation. 

9.Counsel says the defendant was not pushing drugs in the street.  He just gave reception to acquaintances and sold them drugs in the room.  The operation was not a sophisticated one and the defendant did not make a huge profit.  Counsel asks the court to note that defendant’s last conviction of whatever kind was back in 2004 and he had no trafficking record or keeping-a-divan record.

10.Counsel mentions the case of Lam Lai Chu, Patsy CACC 56/2003.  He says courts normally would impose concurrent sentences for the two offences, ie trafficking and keeping a divan. 

Sentence

11.The defendant kept a divan in a rented room of a guesthouse.  When police raided that place, there were six other people inside but it is not clear what those people were doing there.  Some smoking and packaging paraphernalia were found inside the room.

12.The defendant at that time had a total of 14.94 grammes of mixture containing 11.68 grammes of heroin hydrochloride.  They were to be sold to customers.

13.Counsel says the defendant himself was an addict and he certainly had to consume heroin and probably would take some from the stock of Charge 1.  Counsel asks me to give the defendant due discount for such possible own consumption in accordance with the principles laid down in the case of Chow Chun Sang CACC 135/2011.

14.Recently, there is the case of Liu Ming Sze CACC 103/2016.  The Court of Appeal says that discount for own use should only be granted when the defendant can prove on balance of probabilities that he would consume a significant proportion of the drugs which he had for the prime purpose of trafficking. 

15.On the issue of own consumption, the defendant elects not to give evidence.  

16.I accept the defendant was a heroin addict at the material time.  However, his mere claim that he would use some of the drugs in Charge 1 is not proven.  Therefore, this court cannot give him extra discount for his mere claim of own use of part of the drugs in Charge 1.

17.Charge 1 is trafficking in a dangerous drug.  The drugs in question was 11.68 grammes of heroin hydrochloride in terms of purity.  According to the Lau Tak Ming guideline, trafficking in more than 10 grammes but less than 50 grammes of heroin hydrochloride would attract a prison term between 5 to 8 years.  For that quantity of drugs in Charge 1, I adopt a starting point of 5 years’ imprisonment. Since defendant indicated in the plea court that he would plead guilty, he is entitled to the normal one-third discount.  The sentence after plea for Charge 1 is therefore 40 months’ imprisonment.

18.For Charge 2, keeping a divan, there is no sentencing guideline or tariff.  The main consideration for severity should be the scale of the divan. 

19.At the material time, there were six other people inside the room in that guesthouse but it is not clear about their roles.  There were some smoking or packaging paraphernalia found inside the room.  Considering the circumstances, the divan in question should be considered as one operating on a small scale.  Nevertheless, keeping a divan is always a serious offence even if it is just of a small scale.  I adopt 2 years’ imprisonment as the starting point for this charge.  The defendant is entitled to one-third discount for his plea.  The sentence after plea for Charge 2 is thus 16 months’ imprisonment.

20.According to what the Court of Appeal said in a similar case, Cheung Yiu Fai, Alex CACC 173/2005, the sentences for the present two charges should in principle be made to run wholly consecutively. 

21.Yet, I have to consider the totality of the two offences.  I am of the view that it ought to be 6 years’ imprisonment before plea.  After one-third discount for defendant’s plea, it will be 4 years’ imprisonment.  I therefore order 8 months of the sentence for Charge 2 to run consecutively to the 40 months’ imprisonment for Charge 1.  The total term for the two offences is therefore one of 48 months’ imprisonment.