HKSAR v. Ho Chi Sum

DCCC 964/2020

[2021] HKDC 454

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 964 OF 2020

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REASONS FOR SENTENCE

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1.Ms Ho pleaded guilty before me to Charge 1 of Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and Charge 2 of Keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars of Charge 1 are that she, on 3 July 2020, at 2^nd Floor, No 240 Sai Yeung Choi Street South, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 1.19 grammes of a mixture containing 1.01 grammes of heroin hydrochloride and 48 tablets containing 0.6 gramme of midazolam.

3.The particulars of Charge 2 are that she, on 3 July 2020, at the same place, kept a divan, where dangerous drugs, namely heroin hydrochloride, midazolam, monoacetylmorphine and morphine were sold in the divan and were to be smoked, inhaled, ingested or injected therein.

Facts admitted by Ms Ho

4.On 3 July 2020, at about 1802 hours, police demanded entry of the subject premises with a search warrant.  Shortly thereafter, Ms Ho was seen throwing something out from the premises onto the rear lane.  Police found in the rear lane 3 white packets of dangerous drugs (Exhibit 3), 8 blue tablets (Exhibit 4), and one used syringe (Exhibit 5).  Police also retrieved 4 white packets of dangerous drugs (Exhibit 6).

5.At 1815 hours, police successfully entered the premises.  A total of 15 persons including Ms Ho were there.  At that time, Ms Ho was seated at a table (“Table 1”) in the centre of the premises.  There were 9 other tables with other persons seated randomly.

6.Police found at Table 1 $17,190 inside a box, 4 keys and a notebook (with purported drug sales records).  One packet of dangerous drugs (Exhibit 1) and 40 blue tablets (Exhibit 2) were found near a chair at Table 1.  On Ms Ho was found cash of $300.

7.A purported price list was posted on the wall of the premises.  Items such as 13 unused syringes, a box of cards, some tinfoil papers, a lighter and some bottles were found on the table next to the gate.

8.On arrest and under caution for keeping a divan, Ms Ho said that she was the keeper and the “Hot stuff” and “Blue stuff” were sold for a profit.

9.Under caution for trafficking in dangerous drugs (Exhibits 1 & 2), Ms Ho said that the “Hot stuff” and “Blue stuff” were for sale at the premises.

10.When Exhibits 3 to 6 were brought back to the premises and shown to Ms Ho, she said that she threw them out from the toilet.  She was further arrested for trafficking in dangerous drugs.  Under caution, she said she threw the “Hot stuff” and “Blue stuff” onto the street.

11.Government Lab confirmed Exhibits 1, 3 and 6 together constitute 1.19 grammes of a mixture containing 1.01 grammes of heroin hydrochloride; and Exhibits 2 and 4 together constitute 48 tablets containing 0.6 gramme of midazolam; and Exhibit 5 contains monoacetylmorphine and morphine.

12.The estimated street value of the heroin and midazolam seized were $1,472.58 and $30 respectively.

13.In a subsequent cautioned VRI, Ms Ho admitted:-

(a)  “Hot stuff” and “Blue stuff” meant heroin and midazolam respectively;

(b)  She was the keeper and was responsible for selling drugs to customers at the premises and she would open door to customers;

(c)  Exhibits 3, 4 and 6 were thrown onto the street by her;

(d)  The poster indicated the price and weight of different kinds of dangerous drugs for sale including heroin and midazolam;

(e)  The notebook marked the transaction records and her salary;

(f)  She took her salary ($1,700 daily) and then placed the proceeds of sales inside the box at Table 1; and

(g)  The tinfoil papers, lighter and syringes were for customers to inhale dangerous drugs.

Criminal record

14.Ms Ho has 7 previous convictions 5 of which were for possession of a dangerous drug and one of which (in 2013) was for trafficking in a dangerous drug for which she was sentenced to 10 months’ imprisonment.

Antecedents

15.Ms Ho is 41 years old (40 at the time of the offences), educated to F1 level.  Ms Ho is married with a daughter.  She lives alone in Shanghai Street.

Mitigation

16.Mr David Boyton of counsel mitigated on behalf of Ms Ho and adopted the written submissions written by Ms Ho’s previous counsel assigned by the Director of Legal Aid.

17.The following is a summary of the mitigation submissions.

18.Ms Ho has worked as a saleslady and a waitress and when she reached 18 she began to work in a karaoke.  In 2002, she became a full-time housewife supported by her boyfriend.  They had a daughter who has special needs in learning.  Since 2014, the daughter has been under the care of Ms Ho’s mother (68). In 2016, Ms Ho’s boyfriend left her and she had to rely on public assistance of $4,900 per month.  From that time onwards, Ms Ho also worked as a cleaner on casual basis.

19.In 2000, Ms Ho started to consume ICE and heroin.  ICE was detected from Ms Ho’s urine sample taken on her remand.

20.Ms Ho was a deep-rooted addict and she worked in the divan only briefly but was otherwise unemployed.

21.For Charge 1 of trafficking, Mr Boyton suggested a starting point of about 2 years and 3 months, according to a strict arithmetic calculation under the tariff for trafficking in heroin.

22.As for the 48 tablets containing 0.6 gramme of midazolam, after referring to p 636 of Archbold HK 2021, and the cases of HKSAR v Choi Tung Cheung (transliteration) [2018] HKCA 731 at paras 4 & 5, HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 at paras 5, 18 and 38, HKSAR v Leung Shuk Han, DCCC 281/2010, at paras 6 and 11, and HKSAR v Ng Yuet Hung, CACC 20/2013, at paras 5 and 19, Mr Boyton submitted that because of the small amount in this case, the court could ignore this drug for the purpose of sentencing.

23.For Charge 2 of Keeping a divan, Mr Boyton submitted that the usual starting point is between 1 and 2 years: Archbold HK 2021 at para 29-66 on p 1953; and HKSAR v Lam Lai Chu, Patsy, CACC 56/2003 at para 8.

24.Mr Boyton asked the court to bear in mind the following features of the present case:-

(a)  The amounts of drugs found are of small amounts;

(b)  The premises were not occupied or owned by Ms Ho;

(c)  The scale of the divan was not large;

(d)  Ms Ho was a drug addict with previous drug-related records; and

(e)  Ms Ho was salaried as a keeper.

25.Mr Boyton submitted that although keeping a divan and trafficking in dangerous drugs are distinct offences, section 35(1)(a) envisages that keeping a divan can include selling dangerous drugs in the divan; that in the present case, the offence of trafficking in dangerous drugs was part of the offence of keeping a divan.  Mr Boyton therefore argued that as a matter of sentencing principle, the two sentences should run concurrently or substantially concurrently considering the principle of totality.

26.Mr Boyton submitted on Ms Ho’s behalf a mitigation letter (with English translation) written by Ms Ho’s daughter (14).  The contents are generally that Ms Ho is a kind person despite her transgressions of the law; that Ms Ho wanted to earn money to give to Ms Ho’s mother and daughter; and the court is urged to pass a lenient sentence.  Ms Ho’s mother and daughter are both in court to provide their support.

27.Mr Boyton submitted a copy of Ms Ho’s urine test showing that she was tested positive for amphetamine and opiate 4 days after arrest.

28.Mr Boyton asked the court not to enhance Ms Ho’s sentence because of her previous drug-related records.

Sentence

29.Trafficking is a serious offence in itself and it is made worse by keeping a divan in its manifestation.

30.For Charge 1, I will adopt a starting point of 2 years 3 months for the heroin.  I shall ignore the small amount of midazolam for the purpose of sentencing.  For her bad previous drug-related records, and in order to apply extra deterrence on her and for protection of community, I shall add 3 months to that starting point to arrive at a final starting point of 2 years 6 months.

31.For Charge 2, I should perhaps mention that whether monoacetylmorphine or morphine was sold in the premises will make no difference to the sentence. I will adopt a starting point of 14 months.  For her bad previous drug-related records, I shall add one month to that starting point to arrive at a final starting point of 15 months.

32.For her pleas of guilty in good time, I shall give Ms Ho the full 1/3 discount in respect of each of the charges.  There are no other mitigating factors of sufficient weight to justify any further discount.

33.The aggravating factor of keeping a divan can be reflected by making part of the sentence for Charge 2 run consecutively to that for Charge 1, bearing in mind totality.

(Ms Ho, please stand)

34.For Charge 1, Ms Ho is to serve a term of 20 months’ imprisonment.  For Charge 2, she is to serve a term of 10 months’ imprisonment.  I order that 3 months of the sentence for Charge 2 is to run consecutively to that for Charge 1.  The aggregate sentence is therefore 23 months’ imprisonment.  In arriving at this aggregate sentence, I have reminded myself not to double-count Ms Ho’s previous bad records on the two charges.