HKSAR v. Lau Kwan Ying

DCCC 956/2018

[2019] HKDC 532

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 956 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me this morning to one count of keeping a divan contrary to section 35(1) of the Dangerous Drugs Ordinance and one count of trafficking in dangerous drugs, contrary to section 4(1) of the same ordinance.

2.The facts which the defence has admitted in court are as follows: that around 6:18 pm on 17 July 2018, armed with a search warrant, police officers entered the 1st floor of No 377 Reclamation Street.  Inside the premises, there were 17 people seated around 4 tables, where drug-taking paraphernalia was found on the tables.  This included 7 lighters, 9 pieces of tinfoil, 5 pieces of burnt tinfoil, a number of betting tickets, and there were also various burnt spots on the tables.  The defendant was found in the kitchen of the premises.  She was wearing a waist bag.

3.Inside that waist bag, the police found, among other things, 40 small packets containing 6.06 grammes of a mixture containing 4.98 grammes of heroin hydrochloride, HKD $6,820 cash, a mobile phone and a key.  That key was subsequently found to be for the main door of the premises.

4.The estimated street value of the heroin found in the waist bag of the defendant was in the region of HKD $4,300-odd. 

5.Inside the kitchen there was also a desk, and on that desk a blue notebook, a calculator, and an electronic balance were found.  A roll of tinfoil, a stack of Jockey Club betting tickets and numerous plastic resealable bags were also located inside a drawer of the desk.

6.Upon caution at the scene of the offences, the defendant said the following, “The stuff is mine.  I just want to make some money for a living.”  She also said she just earned HKD $1,200 basic salary and that she could not find work to do.  A video-recorded interview was conducted after the defendant was taken back to the police station and during that interview she said, among other things, the following:-

(a) Of the 40 packets seized from her, each packet contained 0.1 gramme of dangerous drugs and was to be sold at HKD $300.

(b) Her basic salary was HKD $1,200 and she received HKD $2,000 of bonus for every HKD $20,000 she made by selling drugs. Her monthly income was HKD $20,000 to HKD $30,000 and the HKD $6,820 found on her came from selling drugs for about 2 hours.

(c) She told the officers at the interview also that her customers at the premises included both locals and foreigners and there were 40 to 50 customers each day.

(d) Lastly, the 17 people found inside the premises, she said, were consuming heroin by putting the heroin on the tinfoil and inhaling it after it has been heated.

The Defendant’s Background

7.The defendant is a woman who was locally born and bred.  She is 55 years old now.  She dropped out from school after finishing Primary 5 and according to Mr Tong who appeared for her today, the defendant used to be a casual cleaner and she has been a drug addict for 30 years.  To use Mr Tong’s words, and I quote, “She tried to kick off a bad habit but was unsuccessful.”  A look at the criminal record summary would have shown that beyond doubt. 

8.The defendant has a total of 27 previous convictions, the majority of which were for drugs offences.  5 out of these were for trafficking in dangerous drugs and 2 for keeping a divan.  The last conviction was entered on 16 December 2016 with possession of dangerous drugs, for which she was sentenced to a term of 10 months’ imprisonment.  She served her sentence and was discharged from prison on 24 June 2017.

9.In mitigation, Mr Tong laid emphasis on the following two points:-

(a) She committed the present offence solely because she was, at the material time, unemployed and was short of money.

(b) That she is remorseful, that she had been very cooperative with the police, and she pleaded guilty to the charges at the first opportunity.

Sentencing Considerations

10.Dealing with the 1st offence, keeping a divan, first.  Apparently there is no sentencing guideline for this.  In the case of HKSAR v Lam Lai Chu Patsy CACC 56/2003, after being taken through a number of previous sentencing decisions, Stuart-Moore J, Acting Chief Judge of the High Court as he then was, said this:-

“It is apparent that the sentencers in those cases considered that starting points in the region of two years down to twelve months’ imprisonment were appropriate for keeping a divan.”

11.In another case before the Court of Appeal, HKSAR v Lau Siu Fung CACC 56/2017, the appellant was convicted on his own pleas of one count of trafficking in 11.68 grammes of heroin and one count of keeping a divan.  For the charge of trafficking, the sentencing judge took a starting point of 5 years’ imprisonment.  For the charge of keeping a divan, the starting point of 2 years’ imprisonment was adopted.  As the appellant pleaded guilty to those charges, he was given the usual one-third discount.  Having considered the principle of totality, the sentencing judge ordered that 8 months of the term on the keeping a divan charge to run consecutively to the sentence on the trafficking charge.

12.In refusing leave to the appellant’s application for leave to appeal against sentence, Macrae JA made the following observations, and I quote:-

“The keeping of a divan, to which others could come, buy and consume dangerous drugs, is a matter that clearly aggravates the offence of trafficking, for the obvious reason that the keeper in such circumstances is not only providing the drugs in question, he is also providing the means, facilities and opportunity for their consumption. To repeat a well-worn phrase, the applicant in the present case was providing a ‘one-stop shop.’”

13.Having considered the facts of the present case and those in the case of Lau Siu Fung, I can see no reason for taking a different view as to the starting point to be imposed for the charge of keeping a divan.  Accordingly, I shall adopt a starting point of 2 years for the 1st charge.  The defendant pleaded guilty to the charge at the first opportunity; she is therefore entitled to the full one-third discount.  That will take the sentence down from 2 years to a term of 16 months. 

14.For the 2nd charge, I find the tariff set down in Lau Tak Ming and I am of the view that the starting point of 3½ years is appropriate.  With a one-third discount for the defendant’s plea, the sentence will become a term of 28 months’ imprisonment.

15.Considering the totality of the two sentences, I shall order that 6 months of the 16 months’ term for the 1st charge to run consecutively to the 28 months’ term for the 2nd charge.  The total sentence which the defendant will serve is therefore one of 34 months’ imprisonment.