HKSAR v. Lai Kin Wing
Read the full judgment text of DCCC 812/2020 on BabelCite. This District Court judgment was delivered on 17 June 2021.
1. The defendant pleaded guilty to one charge of keeping a divan contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1), and one charge of Trafficking in Dangerous Drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2).
Cited by 3 cases · Cites 7 cases
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DCCC 812/2020 [2021] HKDC 734 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 812 OF 2020 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.The defendant pleaded guilty to one charge of keeping a divan contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1), and one charge of Trafficking in Dangerous Drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2). 2.The Summary of Facts admitted by the defendant is as follows. On 3 July 2020, police conducted an anti-narcotics operation at 1st Floor, 979 Canton Road, Yau Ma Tei, Kowloon (“the Premises”) and laid ambush at the back staircase. At about 3:55 pm, a man pressed the doorbell of the Premises and someone opened the gate. Two police officers PC23613 (PW1) and PC18010 followed the man into the Premises. Inside the Premises, there were 10 odd people sitting around 5 tables with aluminum foils, lighters and betting slips on the tables. 3.PW1 revealed his police identity to the people inside the Premises and produced a search warrant. The defendant identified himself as the person-in-charge. Upon enquiry, it was revealed that the defendant was responsible for opening the door, selling dangerous drugs, keeping relevant records and cleaning the Premises. PW1 arrested the defendant for keeping a divan. Under caution, the defendant he had no money and so he tried to make money by keeping the Premises. 4.PW1 searched the Premises and found a transparent box containing 5 pieces of suspected dangerous drugs wrapped in green tapes and 5 pieces of suspected dangerous drugs wrapped in purple tapes (Exhibit E1); 2 plastic resealable bags containing crystalline suspected dangerous drugs (Exhibit E2); and 12 silvery packs of pills (Exhibit E3). 5.PW1 then declared arrest on the defendant for trafficking in dangerous drugs. Under caution, the defendant replied the dangerous drugs were to be sold to customers to make money. 6.In a subsequent VRI, the defendant admitted, inter alia, that:-
7.Government Chemist confirmed:-
8.At the material time, the defendant kept a divan, where dangerous drugs were sold and were to be smoked, inhaled, ingested or injected therein. 9.At the material time, the defendant possessed E1-3 for the purpose of unlawful trafficking. 10.The defendant is duly convicted on both charges. RECORD 11.The defendant has 4 previous conviction records, 3 are related to dangerous drugs:-
MITIGATION 12.The defendant is 45 years old, locally born, and received up to Form 2 secondary level in Hong Kong. He is married but his wife lives in Mainland China and he has no children. Prior to the present offences, he lives with his elder sister in Kwun Tong. He used to work as a construction worker earning an average of HK$12,000 per month. From around 2019 up until the time of his arrest for the present offences, he was unemployed and relied on CSSA. 13.His reason for committing the present offences was due to financial difficulties and he is a drug user. His last offence was in 2016, for possession of dangerous drugs he was sentenced to DATC. He was discharged from DATC on 27 June 2018, 2 years before he committed the present offences. 14.He was arrested on 3 July 2020 for the present offences and has been remanded in custody since. 15.Defence counsel Ms Herbert submitted that there is no sentencing guideline for the offence of keeping a divan. She refers to 2 authorities. She submits in HKSAR v Lam Lai Chu Patsy, CACC 56/2003 the Court of Appeal has recognized that a starting point in the region of 12 months to 24 months have previously been held appropriate by the courts in various cases. In HKSAR v Cheung Kung Hang CACC 459/2000 the Court of Appeal upheld the sentence of 1 year for the charge of keeping a divan where the defendant was found to use his residence to operate a divan. 16.Defence counsel points out the defendant in this case was not the owner of the divan, he was recruited to work there and it was his first day of work and so this case can be distinguished from Cheung Kung Hang’s case. She submits a more lenient starting point towards the lower end of the scale would reflect the criminality involved in this case. 17.For the offence of trafficking in dangerous drugs there are sentencing guidelines for different nature of dangerous drugs. 18.In the present case, there are 3 different kinds of dangerous drug involved, ie (a) heroin hydrochloride, (b) methamphetamine hydrochloride (Ice), and (c) midazolam. 19.In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 the Court of Appeal summarized the correct approach to be taken in sentencing a case involving trafficking in dangerous drugs:-
(a) First Step – sentencing band 20.The sentencing tariff in relation to trafficking of drugs involved in the present case as follows:-
21.In the present case, the most potent drug is Ice. The combined weight of the Ice and heroin is 1.37g (0.3 of Ice + 1.07 of heroin in purity). (b) Second Step – the defendant’s role and culpability 22.Ms Herbert submitted that the defendant was in charge of opening the door and selling drugs to customers. He was not the owner/tenant of the premises. He was recruited by another person who was likely further up in the chain. He himself is a drug user. He would not amount to a manager or organizer. (c) Third Step – where in the relevant band 23.In order to decide where in the band the defendant should be placed, it is submitted that it is necessary to consider the arithmetically determined starting point as, any departure from this in the fourth step must be with reasons. Further, because a cocktail of drugs is involved it is submitted that one must consider the various approaches taken in respect of cocktail drugs to determine the arithmetical starting point. 24.In sentencing for cocktail of drugs there are two approaches:-
25.Which approach is appropriate would depend on the circumstances of the case, although the combined approach would often be the correct one. 26.Ms Herbert submitted that “the individual approach” would result in a sentence that is unduly harsh. If the individual approach is adopted in the present case, the arithmetical starting point for all the drugs will be a total of approximately 5.441 years (5 years 6 months) which is plainly too high. She submitted that “the combined approach” should be adopted which would more accurately reflect the overall criminality of the case, taking into consideration the cross-checking approaches below. 27.The sentence may be checked against the absurdity test, the conversion test and the ratio test. (HKSAR v Chan Yuk Leong, CACC 318/2013). (d) Fourth Step – Aggravating factors 28.Defence accepts that a potential aggravating factor is that the defendant has previous convictions related to drug offences. In fact the defendant has 2 previous similar to Charge 2. Defence counsel submits that the defendant’s last previous similar is 10 years ago. She further submits a further enhancement and/or departure from the arithmetical approach, especially bearing in mind the relatively small amount of drugs involved, may therefore not be necessary. (e) Fifth Step – Mitigating factors 29.The predominant feature in this case is the defendant’s timely guilty plea. (f) Sixth Step – Overall sentence 30.Defence counsel submits that consideration must then be given to whether the overall sentence is fair, just and balanced. She also submits that although the court can order entirely consecutive sentences in relation to Charge 1 and 2 the charges both involved the same drugs. By virtue of totality principle it would arguably be more appropriate for the court to consider partially consecutive sentences for Charges 1 and 2. 31.At the outset, prosecuting counsel Mr Stephen Wong indicates to the court that 0.16g of midazolam is negligible for sentencing purpose, same view as taken by defence counsel. He submits his arithmetic calculation based on the quantity of heroin and Ice only to demonstrate the conversion test is the correct test of all 3:-
32.Defence counsel agrees with prosecuting counsel’s calculation and accepts the outcome of the conversion test ie 3 years 5 months should be adopted as the initial starting point. SENTENCE Charge 1: Keeping a divan 33.On conviction on indictment, this offence is punishable by a fine of $5,000,000 and to imprisonment for 15 years. 34.The usual sentence is one to two years’ imprisonment. In Lam Lai Chu Patsy’s case the Court of Appeal adopted 20 months’ imprisonment as starting point. The applicant in that case has 7 previous, 4 of which related to dangerous drugs. I take into consideration all the circumstances of the present case, including the fact that the defendant was the keeper of the divan which has 5 tables big enough to accommodate 10 odd people/customers at the same time and therefore cannot be described as a small scale operation. After the police declared arrest on the defendant for the offence of keeping a divan, under caution, the defendant replied that he had no money and so he tried to make money by keeping the Premises. Ms Herbert submitted that the defendant was not the owner of the divan, the defendant had just been recruited by someone to work there and it was his first day of work. Prosecution has no evidence to rebut such self-serving assertion. This is the defendant’s first offence of this nature but I also take into consideration keeping a divan where dangerous drugs were sold and offering a safe place for the customers to consume the drugs is an evil business. For the aforesaid consideration, I adopt 18 months’ imprisonment as starting point. For the defendant’s timely plea, I allow him the full one-third discount, and sentenced him to 12 months’ imprisonment. Charge 2 : Trafficking in dangerous drugs 35.Both the prosecution and defence counsel are in agreement the Conversion Test is the correct test to be adopted, the starting point should be 3 years 5 months’ imprisonment and I share their view. 36.I adopt 3 years 5 months as starting point after one-third discount for the timely plea, the sentence is 27.3 months’ imprisonment. Next I turn to consider whether the starting point should be enhanced for the defendant has previous similar record which is an aggravating factor. Defence counsel urges upon the court to take into consideration that the last previous similar record is 10 years ago and relatively small amount of drugs involved, the starting point needs not be enhanced. After consideration, I accept what defence counsel urges upon me for the total quantity of dangerous drugs including midazolam is 1.53g, which indeed is a small amount. Hence, I decided not to enhance the starting point. For the defendant’s timely plea, I allow a full one-third discount and reduce the sentence to 27 months’ imprisonment from 41 months. TOTALITY 37.Defence counsel submits that the court can order entirely consecutive sentences in relation to Charge 1 and 2, but reminds the court that both charges involved the same dangerous drugs. By virtue of the totality principle, it would be more appropriate for the court to consider partially consecutive sentences for the charges 1 and 2. Defence counsel refers to the authority HKSAR v Cheung Kung Hang CACC 459/2000, in which the Court of Appeal upheld a sentence which ordered 4 months of the charge of keeping a divan to run consecutively to the charge of trafficking in dangerous drugs. 38.I take into consideration the circumstances of the case, the two offences were part and parcel of the same incident, and the drugs involved in both offences were the same, for this reason, I decide that the sentences on Charges 1 and 2 should be partially consecutive. Of the 12 months’ imprisonment imposed on Charge 1, I order 6 months to be served consecutively with the 27 months imposed on Charge 2, which leads to the total sentence of 33 months’ imprisonment.
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