HKSAR v. Mak Siu Hong

DCCC 140/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 140 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges: (1) managing a divan and (2) trafficking dangerous drugs.

Facts of the case

2.The police executed a search warrant and broke into a premises at 1^st Floor, 1040 Canton Road, Mongkok.  There were 23 others inside the premises.  The defendant stood at the entrance and admitted to be the person in charge. 

3.During the house search, there were a number of exhibits found on the table in the premises: -

Table 1:-

(a) one plastic bag containing 0.87 gramme of heroin;

(b) 16 plastic bags containing 6.76 grammes of heroin;

(c) one plastic bag containing 1.36 gramme of “Ice”;

(d) 13 tablets containing 0.19 gramme of midazolam;

(e) 24 syringes, two rolls of tinfoil;

(f) one calculator;

(g) one electronic scale;

(h) one piece of paper with transactions record;

(i) one pair of scissors;

(j) one box of empty transparent plastic bags;

(k) one pen.

The street value was HK$6,341.2.

4.Table 2 to 8 each contained one piece of burnt tinfoil, one piece of rolled tinfoil, one lighter.  In table 3, there was also an additional ice bottle.

5.The defendant was in possession of $1,781 and four keys (one of them was for the raided premises) and one mobile phone.

6.Under caution, the defendant admitted that he was responsible for selling the dangerous drugs to others to earn a living.

7.In the subsequent interview, the defendant admitted that he was introduced by a friend to work there for daily wages of $1,200.  Since 29 November 2016, he was responsible for selling dangerous drugs in the premises.  The dangerous drugs on table 1 was provided to him by his friend for sale.  He sold 0.5 grammes of heroin for HK$400.  0.2 gramme of “Ice” was $100, and $60 for one tablet of midazolam, $6 for each syringe.  The ice bottle, syringes, lighters and tinfoil were for customers to inhale or inject dangerous drugs.  The money seized from him was his own saving.  He had received wages for 29 and 30 November 2016 but not on 1 December 2016.

8.The prosecution conclusion: -

(a) Between 29 November to 1 December 2016, the defendant managed the offence premises to be a divan where dangerous drugs, namely, heroin, “Ice”, midazolam were sold in the said divan and were smoked, inhaled, ingested or injected therein.

(b) On 1 December 2016, the defendant possessed the dangerous drugs which were placed on table 1 for the purpose of unlawful trafficking, i.e. selling them to customers.

Previous convictions

9.The defendant has six previous convictions, four of which were possession of dangerous drugs, one was smoking/injecting dangerous drugs. These drugs conviction records were spread between 1987 to 2015.  He received sentences from a fine, probation order and a DATC order in 2015.  Other two convictions were burglary in 1983 and loitering in 1993.

Mitigation and Antecedents

10.The defendant is now 51 years of age.  He is married.  His daughter is now 14 years old.  The defendant was previously a scaffolding worker earning a daily wage of $1,500.  He contributed $15,000 per month to his family for maintenance.

11.At the time of offence, he was out of work.  He was offered $1,200 per day to manage the divan and to make some profit by selling the drugs in the divan.  He is now remorseful.

Sentence

12.The 1^st charge was managing a divan.  According to section 35(2) of Cap 134, the maximum sentence is 15 years of imprisonment.

13.In the present case, the managing period was three days, from 29 November to 1 December 2016.  The premises had an area of 600 square feet with eight tables in the living room.  The Summary of Facts stated that table 2 to table 8, all together seven tables, had rolled tinfoil, burnt tinfoil and lighters.  These are the equipment for taking dangerous drugs. 

14.The picture also showed there were a lot of plastic stools around these tables.  When the police executed the search warrant, there were 23 other persons inside the premises.

15.The size of this divan was in fact a big one.  The defendant admitted that he received $1,200 per day to manage the divan and to sell the drugs therein.  It was indeed a very profitable business.

16.The defence said that the customary sentence for this type of offence was one of 12 months to 2 years.  I have made reference to three cases:

(a) HKSAR v Kevin Ng CACC 563/1999,

(b) HKSAR v Lam Lai Chu Patsy CACC 56/2003,

(c) HKSAR v Cheung Yiu Fai Alex CACC 173/2005.

17.All the applicants in these authorities committed the offence, keeping a divan, on one particular day. In the present case, the defendant committed the offence over a period of three days. I therefore adopt a starting point of 2 years 3 months, reduced to 18 months because of his guilty plea.

Charge 2

18.Case laws in respect of trafficking of dangerous drugs are well-settled.

19.Unlawful trafficking in the amount of between 10 to 50 grammes of heroin fell in the range of 5 to 8 years’ imprisonment (Lau Tak Ming [1990] 2 HKLR 370).

20.For trafficking in “Ice” where the amount is up to 10 grammes, the sentence is in the range between 3 to 7 years’ imprisonment (Ching Kwok Hung [1991] 2 HKLR 125).

21.Trafficking dangerous drugs is by itself a very serious offence.  With the presence of more than one type of dangerous drugs for the purpose of trafficking is an aggravating factor as the defendant could sell the drugs to a wider market and to different drug abusers.

22.In the present case, the drugs found in the divan was:-

(a) 0.87 grammes + 6.76 grammes of heroin = 7.63 grammes of heroin. The value was HK$5,300.6.

(b) 1.36 gramme of “Ice”. The value was about HK$455.6.

(c) 0.19 gramme of midazolam. The value was HK$585.

23.The defence urged this court to take the combined approach of the drugs in question when passing sentence on the defendant.  Having regard to the current decision in HKSAR v Lam Cheuk Hei CACC 7/2017 and HKSAR v Law Num Chun CACC 360/2013, I agree to take the combined approach instead of the individual approach.

24.As to the quantity of the heroin was 7.63 grammes, it attracts a sentence of 4 years 3 months while the 1.3 gramme of “Ice”, an appropriate sentence will be 3 years 7 months.

25.The traces of heroin and 0.19 gramme of midazolam have very little impact in the overall sentence.  I agree with the defence that I would not take this into account.

26.By putting the quantum of the heroin and “Ice” together, it arrives at a total of 8.99 grammes of drugs.

27.The overall percentage of heroin is about 85 per cent while “Ice” is about 15 per cent.

28.I adopt a starting point of 4 years and 3 months and adjust upward by 9 months to take into account of 15% of “Ice”.  It arrives at a total of 5 years, reduced to 40 months because of the defendant’s guilty plea.

29.As said previously, Charge 1 covers a period of three days while Charge 2’s date of offence was on the last day of the three days.  I therefore order 12 months of Charge 1 to run consecutively to Charge 2.

30.Lastly, I must say financial hardship is not a mitigating factor to justify any reduction of sentence.

31.The total sentence is 52 months.