HKSAR v. Lam Fuk Nin (also known as Lam Chi Wing)

DCCC 747/2021

[2021] HKDC 1445

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 747 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (the first charge) and one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (the second charge).

Facts

2.At around 12:05 p.m. on 25 February 2021, PC 19775 and his colleagues laid ambush outside 2^nd Floor, 473 Reclamation Street, Mong Kok, Kowloon (“the Premises”).  PC 19775 heard the sound of door opening and saw someone coming out of the Premises.  He thus entered the Premises and saw the defendant at the door, whereas 12 males and 3 females were sitting at the two tables in the living room, one of which was placed near the kitchen (“Table A”)  and the other was in the middle of the living room (“Table B”).

3.Upon search of the Premises, the following items were found on a table that appeared to be a cashier desk (“the Cashier Desk”):

(a)  6 packets containing a total of 1.44 grammes of a mixture containing 1.20 grammes of heroin hydrochloride (E1);

(b)  2 plastic bags containing a total of 0.26 gramme of a crystalline solid containing 0.26 gramme of methamphetamine hydrochloride (E2);

(c)  1 electronic balance (“the Electronic Balance”)  containing 0.08 gramme of a powder containing heroin hydrochloride (E3);

(d)  1 container containing 0.12 gramme of a mixture containing 0.10 gramme of heroin hydrochloride (E4);

(e)  1 piece of paper containing 0.02 gramme of a mixture containing heroin (E5);

(f)  a stack of aluminium foil;

(g)  cash of HK$1,100; and

(h)  a notebook (“the Notebook”).

4.Upon further search of the Premises:

(a)  a cushion containing 0.57 gramme of a mixture containing 0.45 gramme of heroin hydrochloride (E6)  was found on a chair beside the cashier desk;

(b)  a stack of aluminium foil and a lighter was found on Table A; and

(c)  a stack of aluminium foil and two lighters was found on Table B.

5.During initial inquiry, the defendant said he was the person-in-charge of the Premises, responsible for opening the door for people to enter the place and consume dangerous drugs. Upon body search, cash of HK$1,110 and a mobile phone was found on him.

6.The defendant was arrested for keeping a divan. Under caution, he said that he lacked money so he was there looking after the place to earn money.

7.The defendant was also arrested for trafficking in dangerous drugs in relation to E1-6.  Under caution, he said the dangerous drugs were for sale to customers, for him to earn money.

8.In a subsequent interview, the defendant admitted the following under caution:

(a)  he owed people money so he took up the job of opening the door of the Premises to sell heroin. He was brought to the Premises by a female known as “Har Jeh”;

(b)  he had taken up the job for 3 days. He would receive HK$1,300 for each 24 hours as salary;

(c)  other than heroin, he would also sell ICE and midazolam. The selling prices of heroin, ICE and midazolam were HK$260, HK$110 and HK$30 respectively; customers would consume the dangerous drugs at the tables inside the Premises;

(d)  E1 was heroin. Each packet weighed about 0.2 gramme and would be sold at HK$260;

(e)  E2 was ICE. Each bag weighed about 0.12 gramme and would be sold at HK$110;

(f)  the Electronic Balance was used to weigh dangerous drugs;

(g)  the aluminum foil and lighters found on the tables would be used by drug addicts to consume dangerous drugs;

(h)  the Notebook was used by him to mark the sale of dangerous drugs; and

(i)  the cash of HK$1,110 found on him was his savings.

9.At all material times, the defendant (i)  kept a divan in the Premises where dangerous drugs, namely heroin hydrochloride, methamphetamine hydrochloride and midazolam, were sold in the divan and were to be smoked, inhaled, ingested or injected therein and (ii)  possessed E1-6 for the purpose of trafficking.

Mitigation

10.The defendant is aged 68, single and unemployed.  He has been homeless since 2010 and has been living on CSSA prior to his arrest.  He has 27 previous conviction records, 9 of which are for trafficking in dangerous drugs and 7 of which are drugs related. 

11.In mitigation, it was submitted that the defendant was always short of money to meet his daily needs and he therefore committed the present offences to earn extra income.  It was further submitted that the defendant had just started working there and had not received “salary” for the 3 days he was committed to work there.  It was also submitted that there was no evidence that any of the 15 persons there had started consuming drugs or it was the defendant who had sold drugs to any of them.

12.Given the second charge involves 2 types of drugs, it was submitted that the combined approach should be used to determine the appropriate sentence and that ice should be used as the base for determining the starting point.  Defence counsel also urged the court to consider partly consecutive sentence for the 2 offences.

Sentence

(i)  The first charge

13.There is no sentencing guidelines for the offence of keeping a divan.  In HKSAR v Cheung Yiu Fai, Alex, CACC 173/2005 referred by the defence, the starting point of 2 years’ imprisonment for the offence of keeping a divan was upheld.  The facts of the present case are very similar to the case of Cheung Yiu Fai, I therefore agree with defence counsel that the appropriate starting point for the first charge is 2 years’ imprisonment.  Apart from the defendant’s guilty plea, there is no other mitigating factor justifying further reduction of sentence.  The sentence is thus reduced to 16 months’ imprisonment for the defendant’s plea.

(ii)  The second charge

14.The second charge involves 2 drugs, namely 2.13 grammes of a mixture containing 1.75 grammes of heroin hydrochloride, 0.08 gramme of a powder containing heroin hydrochloride, 0.02 gramme of a mixture containing heroin and 0.26 gramme of a crystalline solid containing 0.26 gramme of methamphetamine hydrochloride (“ice”). 

15.The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370 as modified by HKSAR v Abdallah [2009] 2 HKLRD 437)  and ice (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  

16.In HKSAR v Islam Majharul, CACC 67/2019, the Court of Appeal revisited the “individual” and “combined” approaches used in sentencing when a defendant has been found guilty of trafficking in multiple drugs.  In that case, the Court of Appeal also set out the guidance on the methodology to be used by a sentencing court when adopting the “combined” approach.  According to the methodology set out in that case for calculating the arithmetic starting point, the starting point would be 30 months’ imprisonment for trafficking in 1.75 grammes of heroin and 36 months’ imprisonment for trafficking in 0.26 gramme of ice.

17.The total quantity of the 2 drugs is 2.01 grammes.  If the total quantity were heroin, the starting point would be 31 months’ imprisonment.  If the total quantity were ice, the starting point would be 45 months’ imprisonment. 

18.If the individual approach is adopted in this case, the overall starting point would be 66 months’ imprisonment, which is much higher than the starting point of 45 months’ imprisonment if the total quantity were ice.  Therefore, I agree with defence counsel that the combined approach should be adopted in determining the appropriate starting point in this case.

19.In this case, heroin and ice are involved.  Ice is the more serious drug in terms of potency.  Whilst the amount of ice represented only 13% of the total drugs, it is still significant in terms of its potency and the sentencing tariff for this quantity.  Therefore, I consider the correct base drug is ice.

20.According to the sentencing guidelines, the starting point for trafficking in 0.26 gramme of ice is 36 months’ imprisonment.  This would be used as the base. 

21.For trafficking in 1.75 grammes of heroin, the starting point is 30 months’ imprisonment.  The sentencing guidelines and their related ranges of sentence of heroin and ice are different.  In order to come to a reasonable and realistic increase to the starting point, I have to consider the results of the absurdity test, the conversion test and the ratio test.

22.Taking into consideration the result of the 3 tests, I consider it appropriate to increase the starting point of 36 months’ imprisonment by 2 months to 38 months’ imprisonment. 

23.The defendant trafficked in 2 types of drugs.  It is an aggravating feature.  The starting point should be enhanced by 1 month to 39 months’ imprisonment.

24.Further, the defendant has a total of 16 previous conviction records relating to drugs.  In the circumstances, the starting point should be enhanced by 2 months for this aggravating factor to 41 months’ imprisonment.

25.Apart from the defendant’s guilty plea, there is no other mitigating factor justifying further reduction in sentence.  Given the defendant’s guilty plea, the sentence is reduced to 27 months’ imprisonment.  

(iii)  Totality of sentences

26.I agree with defence counsel that keeping a divan is an aggravating feature of sentence for which a consecutive sentence would be appropriate subject to totality.  I consider a total sentence of 35 months’ imprisonment to be sufficient to reflect the criminality of the defendant’s act.  I therefore order 8 months of the sentence for the first charge to run consecutively to the sentence for the second charge.  I hereby sentence the defendant to a total sentence of 35 months’ imprisonment.