HKSAR v. Feng Biaoming

DCCC 965/2021

[2022] HKDC 309

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 965 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to two charges.  The 1^st Charge is for the offence of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.  The 2^nd Charge is for the offence of keeping a divan, contrary to section 35(1)(a)  and (2)  of the same Ordinance.

Facts

2.At about 2:40 p.m. on 29 June 2021, police officers entered a flat at the location particularized in the charges (“the Flat”), and found the defendant together with 17 other persons inside.

3.The police officers found a total of 14 pieces of burnt aluminium foil, 34 pieces of betting slips and 9 lighters were on 3 of the 4 tables inside the living room of the Flat.

4.Inside the drawer of the 4^th table (“the Keeper’s Table”), the police officers found a plastic box containing (a)  10 packets containing a total of 2.98 grammes of a mixture containing 2.48 grammes of heroin hydrochloride (Exhibit 1), (b)  10 packets containing a total of 1.42 grammes of a mixture containing 1.19 grammes of heroin hydrochloride (Exhibit 2), and (c)  4 foil packs containing a total of 4 tablets containing 0.04 grammes of midazolam (Exhibit 3).

5.The police officers also found on the Keeper’s Table a number of items including one box containing cash of HK$1,640, one dehumidifier, one box of aluminium foil, one calculator, one pen, one pair of scissors, one sheet of paper, one burnt sheet of paper, one digital scale, one piece of burnt aluminium foil, one lighter, and one sheet of paper attached to a clipboard containing a table with the words “A”, “B”, “C”, “900” and “1400”.

6.A price list was stuck onto the wall of the living room.  The price list contained the following:

(a)  “Hot” “Half g” = $460 [熱 半g = $460];

(b)  “Big”: 0.3 = $290 [大: 0.3 = $290];

(c)  “Small”: 0.14 = $150 [小: 0.14 = $150];

(d)  “Cigarettes”: $20 [煙: $20];

(e)  “Drugs”: $50 [藥: $50].

7.The defendant was arrested inside the Flat.  At that time, he had a mobile phone and cash HK$14,840 in his possession.

8.Under caution at the scene, the defendant admitted that he worked as a keeper in the Flat to earn money.  He further admitted that Exhibits 1 to 3 were dangerous drugs for sale to customers.

9.In a subsequent video-recorded interview, the defendant admitted that he had worked in the Flat as a keeper for 3 days upon the introduction by a man called “Ar Hung” to his boss “Big Little Sister”, and earned HK$800 a day.  His duties included opening the door of the Flat for customers and selling drugs to them.  His shift started at around 12 noon and ended 24 hours later.  Exhibits 1 and 2 were heroin and Exhibit 3 was dangerous drugs which were provided to him by his boss for sale to customers.  They were to be sold at the price as shown in the price list stuck on the wall of the living room, namely, HK$460, HK$290 and HK$150 for 0.5 grammes, 0.3 grammes and 0.14 grammes of heroin (which was described in the price list as “Hot”)  respectively, and HK$50 for two tablets of midazolam (which was described by the defendant as “Blue Jai” and in the price list as “Drugs”).  The sheet of paper attached to the clipboard had recorded a drug transaction at 2 p.m. that day when drugs were sold at HK$900.  Some of the persons found inside the Flat were there to consume dangerous drugs.  The burnt aluminium foils, betting slips, lighters and the pair of scissors found inside the Flat were used by customers to consume heroin, and the digital scale was used by the customers to confirm the weight of the heroin sold to them.  The calculator was used by him to calculate the proceeds from drug transactions.

10.The defendant admits that he possessed Exhibits 1 to 3, i.e. a total of 4.4 grammes of a mixture containing 3.67 grammes of heroin hydrochloride and 4 tablets containing 0.04 grammes of midazolam with an estimated market value of HK$5,994.80 for the purpose of unlawful trafficking. 

11.The defendant further admits that he kept a divan where dangerous drugs were sold to customers in the Flat, and were to be smoked, inhaled, ingested or injected by customers therein.

Criminal record

12.The defendant was sentenced on 4 prior occasions for a total of 7 offences.  In June 2017, he was given a suspended sentence for possession of dangerous drugs.  His other convictions were for the offence of theft.  He was last sentenced on 20 July 2021 to a total of 7 weeks’ imprisonment for 4 charges of shoplifting.  He completed his sentence on 19 August 2021.  The defendant has no previous conviction similar to the two charges in this case, but he committed these offences while he was on bail for the shoplifting offences for which he was last sentenced.

Personal and family background

13.The defendant was born on 13 February 1967 in Mainland China.  He came to Hong Kong in 2002.  He received education up to Primary Six.  He used to work as a construction worker earning around HK$1,400 a day, but had been out of work since May 2021 due to the economic downturn.  He was a drug addict at the time of his arrest.

14.The defendant is married.  His wife and his daughter aged 13 are now living in the Mainland.  His daughter is a student.  His mother aged over 80 is living in Hong Kong.  He used to take care of his mother and contribute HK$3,000 each month to her for her living. 

Mitigation

15.Mr Cheung, learned counsel for the defendant, informs this court that the defendant committed these offences because he needed money to support his family and to defray his drugs expenses. 

16.Mr Cheung refers this court to the sentencing tariff for trafficking in heroin hydrochloride and to some sentencing cases for keeping a divan so as to assist this court in determining the proper starting point of the sentences. 

17.Mr Cheung also submits that the defendant should be entitled to full one-third discount for his guilty plea at the earliest opportunity.  He also pleads for leniency on behalf of the defendant who is now very remorseful and has vowed to stay away from drugs and to take care of his elderly mother.

Reasons for sentence

18.In light of the nature of the two offences, the sentencing tariff for trafficking in dangerous drugs, and the customary sentence for keeping a divan, it is clear that the defendant must be sentenced to prison.  The only issue is the quantum of the sentences.

19.In R v Lau Tak Ming[1], the Court of Appeal held that for trafficking up to 10 grammes of heroin hydrochloride, the appropriate starting point should be between 2 to 5 years’ imprisonment. 

20.The defendant trafficked in 3.67 grammes of heroin hydrochloride.  As submitted by Mr Cheung, as a matter of pure mathematic calculation according to the applicable sentencing tariff, the appropriate starting point is 37 months’ imprisonment.  The defendant also admitted that he had trafficked in 0.04 grammes of midazolam. In light of the nature of this drug and its minute quantity, I shall ignore this drug for sentencing purposes.  In other words, the appropriate starting point for the 1^st Charge is imprisonment for 37 months.

21.There is no sentencing tariff for keeping a divan.  Mr Cheung refers to HKSAR v Lam Lai Chu Patsy[2] where the Court of Appeal noted that the starting point for this offence ranged from 12 to 24 months’ imprisonment. 

22.Mr Cheung also refers to HKSAR v Lai Kin Wing[3] in which Deputy District Judge Peter Hui adopted a starting point of 18 months’ imprisonment for a similar offence.  Mr Cheung submits that the facts of this case and those of Lai Kin Wing were similar.  In the present case, the divan had 4 tables with 17 people inside, whereas in Lai Kin Wing, the divan had 5 tables with 10 odd persons inside.  Mr Cheung therefore submits that the appropriate starting point for the 2^nd Charge should also be 18 months’ imprisonment. 

23.I note that there were factual differences between this case and the case of Lai Kin Wing. In the present case, the defendant admits that he had kept the divan for 3 days, whereas the offender in Lai Kin Wing admitted that he was arrested by the police on the first day of his work in the divan.  On the other hand, in the present case, only two kinds of drugs (i.e. 3.67 grammes of heroin hydrochloride and 0.04 grammes of midazolam)  were available for sale, but 3 types of drugs were available for sale in Lai Kin Wing (i.e. 1.07 grammes of heroin hydrochloride, 0.30 grammes of methamphetamine hydrochloride, and 0.16 grammes of midazolam).  But it is also clear that in terms of quantity, more drugs were available for sale in the present case.

24.Having considered the facts of this case and the sentencing example that I have been referred to, I find that the appropriate starting point of the 2^nd Charge is imprisonment for 18 months.

25.The defendant committed this offence while he was on bail for the shoplifting offences.  While the offences were different in nature, the fact that the defendant abused the liberty given to him by court to commit further and more serious offence was an aggravating feature that increased the culpability of his offences.  For this reason, I adjust the starting point for the 1^st Charge upward to 39 months’ imprisonment.  I make no adjustment to the starting point of the 2^nd Charge on this ground, but I shall make the appropriate adjustment when the totality of the sentences is considered.

26.This is the first time the defendant committed offences of the types now before this court.  For this reason, I do not intend to increase his sentence on the basis of his criminal record.

27.As far as mitigating factors are concerned, it is clear that the fact that the defendant needed money to support his family and to satisfy his drug addiction cannot be regarded as mitigation.  It only explains why he committed these offences. 

28.I note that the defendant has an elderly mother aged over 80, and that he wishes to take care of her.  However, hardship to a family member can hardly be a mitigating factor because he knew full well before he committed these offences that if he were caught, he would end up in jail and would not be able to take care of his aged mother.  Yet, he proceeded to commit the offences.

29.The defendant pleads guilty at the earliest available opportunity.  He is clearly entitled to the full one-third discount.  There are however no other factors that may reduce his sentences further.

30.For these reasons, the defendant is sentenced to serve 26 months’ imprisonment for the 1^st Charge, and 12 months’ imprisonment for the 2^nd Charge.

31.The next issue to consider is whether these two sentences should run wholly or partially concurrently or consecutively.  I take into account the totality principle.

32.It is clear that there is certain degree of overlapping in culpability of these two offences. In short, the defendant kept a divan in which he trafficked in dangerous drugs. 

33.However, the two offences did not overlap with each other completely.  As pointed out by Macrae JA (as he then was)  in HKSAR v Lau Siu Fung[4], keeping a divan clearly aggravates the offence of trafficking for the obvious reason that the keeper in such circumstances is not only providing the drugs in question, he is also providing the means, facilities and opportunity for their consumption, in other words, he is providing “a one-stop shop”.

34.Having considered the overall culpability of the defendant in the two offences in the present case which he committed while he was on bail, I find that the appropriate overall sentence before plea is imprisonment for 48 months. 

35.Since the defendant is entitled to one-third discount of the sentence, the overall sentence is therefore imprisonment for 32 months.

36.To arrive at this overall sentence, I order that 6 months of the sentence for the 2^nd Charge are to run consecutively to the sentence for the 1^st Charge.