HKSAR v. Chan Kin Kwok

DCCC 341/2020

[2020] HKDC 938

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 341 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs[1], one charge of keeping a divan[2] and one charge of failing to surrender to custody without reasonable cause[3].

Admitted Facts

Charges 1-2

2.At 1:15pm on 2 May 2019, police officers laid ambush at the staircases between the 10^th Floor and the 11^th Floor of Rex House, Nos. 648-652 Nathan Road, Mong Kok. At 2:13pm on the same day, two police officers saw a woman who walked towards Flat B of the 10^th Floor (“Flat B”) and knocked on its door. As the gate and the door to Flat B were opened, two police officers followed the woman and entered therein. Then the police officers reviewed their identities.

3.Inside Flat B, the defendant and another individual were sitting next to the table in the living room (“Table 1”) and another 3 individuals were sitting on the sofa therein. 5 individuals were inside a room of Flat B with a table in their midst (“Table 2”). 2 individuals were inside another room of Flat B with a table in their midst (“Table 3”).

4.On Table 1, there were a plastic box, a bag of plastic straws, 2 lighters, an electronic balance, a pen and 2 pieces of papers with scripts (i.e. names, quantities and prices) thereon which were apparently written for record purpose. The plastic box contained 2 re-sealable plastic bags (respectively containing 0.37 grammes of a solid containing 0.33 grammes of cocaine and 0.2 grammes of a solid containing 0.15 grammes of ketamine) and 116 empty re-sealable plastic bags.

5.On Table 2, there were 3 re-sealable plastic bags containing traces of cocaine, two HK$20 banknotes containing traces of cocaine, two lighters and a plastic straw. There were various burnt marks on Table 2.

6.On Table 3, there were 3 re-sealable plastic bags containing traces of cocaine, a HK$20 banknote containing traces of cocaine, two lighters and a plastic straw.

7.When the police officers asked who the responsible person was, the defendant replied that he was. Under caution at scene, the defendant said that “Ah Sir, I received HK$800 from someone daily to be the keeper at the Flat, give (me) a chance.” Upon search of the defendant, HK$469 cash and a mobile phone were found.

8.In the subsequent video-recorded interviews, under caution, the defendant said, inter alia, that:

i)  He would sell cocaine to others at Flat B at HK$400 cash for 0.4 grammes of cocaine and he was the keeper of Flat B.

ii)  A friend introduced him to this job 2 days ago and brought him to Flat B.

iii)  The divan operated 24 hours a day by two 12-hour shifts and the person of the last shift opened the door for him.

iv)  He believed that all the drugs seized in Flat B were cocaine.

v)  The plastic straws, lighters and banknotes were for inhaling drugs.

vi)  Since he has started taking up this job, he had sold about 2-3 grammes of drugs to others.

vii)  On the day of the arrest, he had sold a small amount of cocaine.

viii)  The sale proceeds of the drug had been collected by someone around 12 noon.

9.The Government Chemist certified that there were 0.37 grammes of a solid containing 0.33 grammes of cocaine and 0.2 grammes of a solid containing 0.15 grammes of ketamine and traces of cocaine in those plastic bags and banknotes seized.

10.Based on the defendant’s own admission, cocaine was sold at HK$400 cash for 0.4 grammes while based on the statistics from the Intelligence Division of the Narcotics Bureau showing the Average Retail Price of Illicit Drugs in Hong Kong (2019) in May 2019, the estimated street value of the drugs is HK$590.44.

Charge 3

11.The defendant was charged with trafficking in dangerous drugs and divan keeping and was granted bail in his first appearance in the West Kowloon Magistracy on 3 May 2019. However, he failed to appear in Court in his next mention hearing on 14 June 2019.

12.On 3 April 2020 (more than 9½ months later), the defendant was located and arrested.

13.In a subsequent record of interview, under caution, the defendant said, inter alia, that:

i)  He knew that he needed to report to the West Kowloon Magistracy,

ii)  He knew that he would likely be convicted and did not want to be imprisoned so soon. Therefore, he delayed it by not reporting in Court,

iii)  He knew that he would be wanted after failing to report in Court. Therefore, he did not report to any Court or police station after 14 June 2019.

Criminal Record

14.The defendant has 13 records, with one “Trafficking in Dangerous Drugs” conviction in 1997.  His last conviction was in May 2020 for the offence of “Theft from vehicle” and for which he had just completed his 8-month sentence on the 13^th September 2020.

Mitigation

15.The defendant is 51 years old, born in Hong Kong, educated up to Form 1. He has been married since 2017. His wife is currently in prison and scheduled to be released in 2025. They have no children. His last job was that of a casual driver, earning around $7,000 per month. For the past 2 years, he has been unemployed. He is a registered tenant at Room 501, Fung Hing Building, Hing Wah Estate, Chai Wan. That is a public housing unit which was passed to him when his mother passed away.

16.After he was granted bail on the 3^rd of May 2019, he stayed in a partition room in Mong Kok and would spend the night there if he was able to pay the $150 daily rate; otherwise he would spend most nights sleeping rough in different places nearby, such as parks, sportsgrounds and on sidewalks. He would mostly try scraping a living by picking up recyclable waste.

17.The defendant had applied for the Comprehensive Social Security Assistance (CSSA) but did not follow up on his application. At the time of his offence, he was not receiving any government assistance or help from anyone.

18.He was arrested on the 2^nd of May 2019 at the material location. He had only started working there for 2 days prior to his arrest. He was promised a daily wage of $800 for which he had yet to receive any payment.

19.The lack of financial resources and unwillingness to follow up on his application for CSSA were the main reasons he opted to participate in the keeping of the divan, with the promise of $800 daily payment. He committed the above offences as a way of getting money for rent and food and also as a means to support his own drug habit. He admits that he has been taking cocaine for the past year.

20.For the first charge, due to the small amount of drugs involved and the defendant’s previous drug offences were over 22 years ago, the defendant submitted a 2-year starting point is appropriate in this instance.

21.The 2^nd charge of being a divan keeper, the sentence of 12 months of imprisonment in HKSAR v. Ng Ka-Wing, Kevin[4], in HKSAR v. Cheung Kung-Hang[5]; HKSAR v. Ho Sai Chak[6] are appropriate as quoted in the case of HKSAR v. Lam Lai Chu, Patsy[7], 6 August 2003 in which the defendant received a 15-month prison sentence for acting as a divan keeper. The defendant in that case had rented the premises for 2 years, worked there as a keeper on eight to ten occasions; 8.52 grams of heroin was involved for which her accomplice was sentenced to 14 months of imprisonment and the defendant 15 months of imprisonment for the divan-keeping offence and to be served concurrently with the trafficking offence. Defence urge the same concurrent sentence be adopted for the trafficking and divan keeping offences.

22.The 3^rd charge of failing to surrender to custody without reasonable excuse can be dealt with by way of a short custodial sentence.

23.His main mitigation is one of guilty and timely plea for which the full one-third discount ought to be given to him. Also he had fully co-operated with the police and made full and frank admissions to his guilt at the earliest opportunity. Defence ask consideration be also given that although he had just completed an 8-month prison sentence on the 13^th September, had it not been for the pandemic, his case would have been dealt with sooner and consideration would have been given to the fact that he would still be serving a custodial sentence.

Sentence

Charge 1

24.Charge 1 is related to 2 types of drugs, namely cocaine and ketamine.  There are individual or combined approaches in sentencing for a cocktail of drugs.  The Court of Appeal said in the case of Yip Wai Yin[8] that “Whichever approach is appropriate will depend on the circumstances of the case, but we are of the view that the combined approach will often be the correct one to enable the judge to sentence fairly, realistically and in a common-sense manner.”

25.I adopt the combined approach.  I also take into account two possible aggravating features:

i)  the ability of the trafficker to cater to a wider market;

ii)  the effect on users of combinations of dangerous drugs.

See HKSAR v. Chan Yuk Leung[9]

26.There are two types of drugs in the instant case - cocaine and ketamine with the cocaine being the more potent or harmful one.

27.The sentencing guideline for cocaine is found in the authority of R v. Lau Tak Ming[10]. In Attorney General v. Pedro Nel Rojas[11], the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which are directed at trafficking heroin are equally to be applied in cases of cocaine trafficking. The starting point for trafficking up to 10 grammes of cocaine is 2 years to 5 years’ imprisonment.

28.For trafficking of cocaine in small quantities, there are instances the court could consider adopting a starting point lower than 2 years:  See HKSAR v. Ousmane Issa Boubacar[12] and HKSAR v. Ko Kin Min[13].

29.The sentencing guideline for ketamine is found in the authority of Secretary for Justice v. Hii Siew Cheng[14].The starting point for trafficking up to 1 gramme of ketamine is within the sentencer’s discretion.

30.The court noted that the amount of cocaine involved is 0.33 gramme and the total amount of drugs come to 0.48 gramme. Simply on cocaine, the court would consider a starting point of 18 months.  However, there are also 0.15 gramme of ketamine.  Having considered the combination of cocktail of drugs and the possible aggravating features, I adopt a starting point of 2 years.

31.The defendant pleaded guilty to all charges at the earliest opportunity, thus he is entitled to one-third discount.  The starting point of 2 years is reduced to 16 months.

32.Defence urged the court to consider that he had just completed an 8 months’ prison sentence on the 13 September 2020.  Had it not been for the pandemic, his case would have been dealt with sooner.  However, the 8 months’ sentence was related to a charge of Theft from Vehicle.  It is totally separate and distinct from the current charges.  Even had the present case been dealt with sooner, the two sentences should be wholly consecutive.  Therefore, it is not a ground for me to reduce his sentence. 

33.I find no other mitigating factor for me to reduce the sentence.  For charge 1, the sentence is 16 months’ imprisonment.

Charge 2

34.There is no tariff for this charge. In the case of HKSAR v. Lam Lai Chu, Patsy[15], the Court of Appeal, having considered previous cases, observed that the sentencers in those cases considered starting point in the region of 2 years down to 12 month’s imprisonment were appropriate for keeping a divan.  In that case, the Court of Appeal adopted a 20 months starting point.

35.In HKSAR v. Cheung Yiu Fai, Alex[16] the Court of Appeal upheld a 16 months after plea where the applicant, a drug addict, had been the keeper of a flat for two days earning $450 per day.  The Court of Appeal considered 12 months of the sentence for keeping a divan should be consecutive to the trafficking in dangerous drugs charge. 

36.In HKSAR v. Wong Chi-ying[17], the applicant pleaded guilty to one charge of trafficking and one charge of keeping a divan.  As a hairdresser, the applicant admitted she kept a divan at her flat.  The Court of Appeal considered 2 years starting point for the keeping a divan charge was at the appropriate level.

37.Consider the above authorities, and the followings:-

i)  The defendant was a drug addict and kept the divan for only 2 days;

ii)  Besides the defendant, there were altogether 11 others inside the divan, with a sofa and 3 tables;

iii)  Straws, lighters, and banknotes were available for drug inhaling; and

iv)  the amount of drugs found in the divan.

I am of the view the proper starting point should be 18 months. Given his early plea and one-third discount, the appropriate sentence is 12 months’ imprisonment.

38.Defence urged the court to consider the sentences in charges 1 and 2 to run concurrently.  However, having considered the authority of Cheung Yiu Fai, Alex, I do not consider it is appropriate for the 2 charges be run concurrently.

39.I am of the view 6 months of charge 2 should run consecutively to the sentence in charge 1.

Charge 3

40.In the case of HKSAR v. Lo Kam Fai[18], the Appellate Court stated in paragraph 80 of the judgment:

“As for the sentence for absconding, it seems that sentences in Hong Kong may vary according to the circumstances from 2 months to 4 months after plea of guilty. Of course, there will be factors which may bear on the length of sentence, such as why the defendant absconded; how long he absconded for; whether he left the jurisdiction and, perhaps, how; the effects of his disappearance on the parties to the trial, including the witnesses; whether he surrendered voluntarily; as well as other relevant factors in aggravation or mitigation of the offence.”

41.In HKSAR v. Law Ying Kam[19] where the appellant having pleaded guilty was given a wholly consecutive sentence for the offences of absconding and drug trafficking. He has absconded for almost a year.  His application for leave to appeal against his sentence was refused. The appellate court in confirming the decision of the sentencing judge has this to say:    

“Failing to turn up at court when entrusted with bail by that court is a serious breach of a court order. In this case, the applicant absconded when facing a serious charge for almost a year. In my view, it is not reasonably arguable that a sentence of six months’ imprisonment, made wholly consecutive to the sentence for the main offence, was manifestly excessive or wrong in principle.”

42.Having considered the defendant absconded for over 9 ½ months and he did not surrender voluntarily, I am of the view a 6 months starting point is appropriate.  Given his early plea and one-third discount, the appropriate sentence is 4 months’ imprisonment. 

43.Considering the authority of Law Ying Kam, the 4 months’ sentence in charge 3 is to run wholly consecutive to charge 1 and 2.

44.Therefore, the sentences are:

i)  Charge 1 – 16 months;

ii)  Charge 2 – 12 months;

iii)  Charge 3 – 4 months;

iv)  the total sentence is 26 months’ immediate imprisonment.