HKSAR v. Chan Man Lung

DCCC 235/2021

[2021] HKDC 909

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 235 OF 2021

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REASONS FOR SENTENCE

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1.Mr Chan pleaded guilty before me to two charges on a Charge Sheet namely, 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.Particulars of Charge 1 are that he, on 3 December 2020, at Unit R, 1^st Floor, Nos 145-161 Fa Yuen Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 0.63 gramme of a crystalline solid containing 0.59 gramme of methamphetamine hydrochloride and 0.36 gramme of a mixture containing 0.2 gramme of heroin hydrochloride.

3.Particulars of Charge 2 are that he, between about 28 November 2020 and 3 December 2020, both dates inclusive, at Unit R, 1^st Floor, Nos 145-161 Fa Yuen Street, Mong Kok, Kowloon, in Hong Kong, kept a divan, where dangerous drugs, namely methamphetamine hydrochloride and heroin hydrochloride were sold in the divan and were to be smoked, inhaled, ingested or injected therein.

Summary of the facts admitted by Mr Chan

4.On 3 December 2020, at about 5:47 pm, police on ambush followed Mr Chan to enter the subject flat and raided it with a search warrant.  Five other people were inside.

5.On a mahjong table in the living room, there were two pieces of paper with some writings on each, a lighter, a glass bottle with a straw attached, a pen, a stack of tinfoils and one piece of tinfoil with burnt mark.

6.On a makeshift table in the living room, there were two pieces of burnt tinfoil, a lighter, and a container with a stack of tinfoils inside.

7.On a makeshift table in one of the rooms, there were two resealable plastic bags.  One of those resealable plastic bags contained 0.62 gramme of a crystalline solid containing 0.59 gramme of methamphetamine hydrochloride.  The other resealable plastic bag contained 0.36 gramme of a mixture containing 0.20 gramme of heroin hydrochloride.  Further, a calculator, a pen, two lighters, a stack of tinfoils, two burnt pieces of tinfoils, two notebooks, a gas cylinder, a number of straws and a plastic box (with a digital scale, a spoon, two empty resealable plastic bags, some betting slips and some pink plastic sheets inside)  were also found on the table.

8.On a mahjong table in another room, there were a roll of tinfoil and a glass bottle with a straw attached.

9.Two pieces of paper with prices of different kinds of drugs listed out (“Price List”)  were posted on the walls of the living room and one of the rooms respectively.

10.Police arrested Mr Chan for the offences of Trafficking in dangerous drugs and Keeping a divan.

11.During a subsequent cautioned VRI, Mr Chan admitted, inter alia, the following:-

(a)  He was hired by a friend to sell dangerous drugs ICE and heroin to customers for consumption in the flat for a daily salary of $1,200 and he has been working there 24 hours a day for 6 days;

(b)  The divan generated about $3,000 per day;

(c)  The paraphernalia seized including the notebooks and calculator were used for acts relating to the sales and use of dangerous drugs; and

(d)  The persons found in the flat were frequent customers of the divan.

Criminal record

12.Mr Chan has 21 previous convictions 6 of which were related to dangerous drugs offences the last being one of trafficking for which he was sentenced to 44 months’ imprisonment in 2016.

Antecedents

13.Mr Chan is aged 46 now and at the time of the offences.  He was educated to P5 level.  He is married but has not contacted his wife for many years.

Mitigation

14.Mr Stanley Siu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.

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

16.Mr Chan’s date of last discharge from prison was 21 November 2020.

17.Mr Chan used to work as a construction worker before.

18.Mr Chan admitted the offences to the police and pleaded guilty in a timely fashion.

19.Mr Siu acknowledged that out of the large number of previous convictions, Mr Chan had 3 previous relating to trafficking in and 3 previous relating to possession of dangerous drugs.

20.Mr Siu reminded the court that, in this case, there is 0.59 gramme of ICE and there is 0.2 gramme of heroin.

21.Mr Siu referred to the tariff sentence of 3 to 7 years’ imprisonment for trafficking in up to 10 grammes of ICE (AG v Ching Kwok Hung [1991] 2 HKLR 125).  He also referred to the tariff sentence of 2 to 5 years’ imprisonment for trafficking in up to 10 grammes of heroin (HKSAR v Lau Tak Ming [1990] HKLR 37).

22.Mr Siu referred to HKSAR v Tsang Chi Wah [2010] 5 HKLRD 373 where the Court of Appeal held that for small amount of ICE of a trafficking charge, the court need not take 3 years as the starting point if the offender was a first offender.  Mr Siu submitted that in that case, the defendant there had 3 similar records and the Court of Appeal held that 3 years’ imprisonment should be the appropriate starting point.

23.Mr Siu then worked out the results of the three tests for trafficking in a collection of different dangerous drugs.

24.The result of the absurdity test was said to be 3 years.  The result of the conversion test was said to be lower than that arrived at under the absurdity test.  The result of the ratio test was said to be 33 months.

25.For the divan charge, Mr Siu referred to HKSAR v Lam Lai Chu Patsy, CACC 56/2003, and submitted that the sentence for keeping a divan ranged from 12 to 24 months’ imprisonment.

26.On the matter of consecutiveness of the sentence on the divan charge, Mr Siu referred to HKSAR v Cheung Yiu Fai Alex, CACC 173/2005, in particular a part-passage in para 12 thereof, which seems to suggest the sentence for divan keeping can be made wholly or partially consecutive to the sentence on the trafficking charge as the circumstances call for.

27.Mr Siu prayed in aid that the fact that the divan was not a large scale operation, and the dangerous drugs seized were in small quantity.

28.Lastly, Mr Siu asks the court to consider the totality principle.

Sentence

29.I have considered all the mitigation submissions and the authorities cited in the written submissions.

30.Mr Chan is clearly a repeated offender in dangerous drugs offences. This is an aggravating factor to both charges.

31.In sentencing an offender for trafficking in a cocktail of drugs, I must bear in mind the two aggravating factors re-emphasized in HKSAR v Chan Yuk Leong, CACC 318/2013, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I bear in mind that the two types of drugs in this case are not placed in the same packet but were kept quite separate.

32.I take note of the results of the three tests worked out by Mr Siu.

33.Taking care not to double-count the aggravating factors against Mr Chan, I am of the view a starting point of 3 years’ imprisonment would be sufficient for Charge 1.

34.As for Charge 2, I take into account the duration of time during which Mr Chan was keeping the divan and the relatively small scale of the operation and the aggravating factor of repeated offender, I am of the view that a starting point of 15 months’ imprisonment would be sufficient.

35.Mr Chan pleaded guilty in good time for which he shall be entitled to a 1/3 discount.  There are no other mitigating factors that would justify any further discount.

36.I then consider totality.  In Mr Chan’s case, I consider 5 months of the sentence after plea on Charge 2 should be made consecutive to the sentence on Charge 1.

(Mr Chan, please stand)

37.In the premises, I sentence Mr Chan to 2 years’ imprisonment for Charge 1, and 10 months’ imprisonment for Charge 2.  I order that 5 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence of 2 years 5 months’ imprisonment.