HKSAR v. Lau Lap Fan

DCCC 466/2019

[2019] HKDC 1324

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 466 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance[1] and one charge of keeping a divan, contrary to section 35 of the Dangerous Drugs Ordinance.

2.Full particulars of the offences are set out in the amended facts admitted by the defendant.  In summary at around 11:26 a.m. on 13 March this year the police entered premises on the 3rd floor of No. 1048 Canton Road in Mong Kok. 

3.The defendant and two other persons were inside the premises.   

4.The police found two transparent re-sealable plastic bags containing heroin inside the left pocket of the defendant’s jacket. One transparent re-sealable plastic bag contained 8.10 grammes of heroin and the other transparent re-sealable plastic bag contained 0.42 grammes of heroin. 

5.The estimated street value of the heroin was about $8,000.

6.The defendant was also found in possession of $510 and a mobile phone. 

7.The police also found on a table in the living room $260 cash, a roll of tin foil, a packet of empty transparent re-sealable plastic bags, an electronic scale, a calculator; a pair of scissors, some betting slips, two pens and a ledger.  Two rolled up betting slips, two lighters and some burnt pieces of tin foil were found on another table in the living room. 

8.Under caution and in a video recorded interview the defendant admitted, inter alia, that he had worked in the premises for two days earning $700 per day selling dangerous drugs to customers for consumption in the premises; the drugs were delivered to him; he used the mobile phone to communicate with his friend regarding delivery of the drugs; all the heroin was for sale; the $260 seized from the table was the proceeds from selling heroin; the transparent re-sealable plastic bags were used for packing the heroin and the paraphernalia seized was used by the customers to consume drugs. 

Mitigation

9.In passing sentence, I have carefully considered the oral and written submissions of Ms Wong, including that the defendant has been a drug addict since 1979 and that he has no previous convictions for trafficking in drugs or keeping a divan.

Charge 1 - Trafficking

10.In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment[2].

11.I am satisfied that the appropriate starting point after trial for 8.52 grammes of heroin is 4 years and 6 months’ imprisonment. 

Own use

12.Ms Wong submits that a proportion of the heroin was for self-consumption and relies on the defendant’s long drug history and the positive result of a urine test taken two days after the defendant’s arrest on his admission to Lai Chi Kok Reception Centre[3]. 

13.The claim is contrary to what the defendant told the police that all the heroin was for sale.  Ms Wong says that the defendant did not clearly express himself in the interview and that what the defendant meant to say was that part of the drugs were for his own consumption and would be paid for from the money he earnt working in the divan.

14.As indicated in court I do not accept the mere assertion that part of the heroin was for the defendant’s own consumption.  Ms Wong having taken instructions from the defendant informs the court that the defendant does not wish to give evidence in support of his claim that part of the heroin was for his own consumption. 

15.The prosecution opposes the claim that part of the drugs was for the defendant’s own consumption. 

16.Notwithstanding the defendant is a consumer of heroin I reject the assertion that part of the heroin was for his own consumption.  I proceed on the basis that all the heroin was for trafficking.  

17.Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years’ imprisonment.

Charge 2 – Keeping a divan

18.There are no guidelines for offences of keeping a divan, the maximum sentence for which is 15 years’ imprisonment and a fine of $5,000,000.   Immediate sentences of imprisonment are imposed ranging from 12 months in the Magistracy to 3 years and 6 months’ imprisonment in the District Court[4].

19.In HKSAR v Cheung Yiu Fai, Alex the Court of Appeal upheld a starting point of two years where the applicant, a drug addict, had been the keeper of a flat for two days earning $450 per day[5].

20.The defendant told the police that he had worked in the flat for two days and earned $1,400.  The defendant is also a drug addict.   

21.Taking into account there were two other people found in the flat; the defendant had over 8 grammes of heroin for sale and paraphernalia for consuming drugs was found some of which had already been used, I am satisfied a starting point of 2 years’ imprisonment is also appropriate. 

22.Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 4 months’ imprisonment.

Totality

23.I am satisfied that keeping a divan is an aggravating feature of sentence for which a consecutive sentence is appropriate subject to totality of sentence to be imposed[6].

24.In HKSAR v Cheung Yiu Fai, Alex the Court of Appeal said at least 12 months of a 16 months’ sentence should have been made consecutive to the trafficking charge involving 2.18 grammes of heroin and further said that it may be the applicant could not have complained if the sentence had been made to run wholly consecutively to the sentence for trafficking.  

25.I am satisfied 8 months of the sentence on charge 2 is to be served consecutively making a total sentence of 3 years and 8 months’ imprisonment.  I am satisfied a total sentence of 3 years and 8 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[7]. 

26.The defendant is convicted and sentenced as follows:

Charge 1 – 3 years’ imprisonment; and

Charge 2 – 1 year and 4 months’ imprisonment, 8 months consecutive and 8 months concurrent to charge 1.

Total sentence to be served by the defendant is 3 years and 8 months’ imprisonment.