HKSAR v. Huang Bingtong

DCCC 335/2021

[2022] HKDC 516

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 335 OF 2021

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Keeping a divan" (Charge 1); 1 charge of "Trafficking in dangerous drugs" (Charge 2); 1 charge of "Possession of apparatuses fit and intended for the smoking, inhalation or injection of dangerous drugs" (Charge 3)  and 1 charge of "Breach of condition of stay" (Charge 4).

Summary of Facts

2.About 11:35 p.m. on 27 October 2020, paramedics responded to an anonymous call reporting a collapsed male at Flat 909, 9^th Floor, Sing Win Factory Building, Nos.15 to 17 Shing Yip Street, Kwun Tong ("the Flat"), but found no collapsed person there.  Police officers arrived after the paramedics and the defendant answered the door.  He and some other persons were found inside.  The Flat is about 300 ft² in size with one washroom.  Four CCTV cameras were installed at its entrance.

3.The Flat was searched.  Amongst other things, the following items were found at various locations inside the Flat :-

(a)  Regarding Charge 2:

(i)  1 plastic bag which contained 0.16 gramme of a crystalline solid containing 0.15 gramme of methamphetamine hydrochloride (on Table 2);

(ii)  3 plastic bags which contained a total of 0.97 gramme of a crystalline solid containing 0.78 gramme of methamphetamine hydrochloride (in the toilet bowl);

(iii)  1 plastic bag which contained 0.68 gramme of a crystalline solid containing 0.63 gramme of methamphetamine hydrochloride;

(iv)  1 plastic bag containing 28 packets which contained a total of 4.99 grammes of a mixture containing 4.47 grammes of heroin hydrochloride (in the toilet bowl);

(v)  1 packet which contained 0.13 gramme of a mixture containing 0.12 gramme of heroin hydrochloride (on Table 5); and

(vi)  1 foilpack which contained 2 tablet fragments containing a total of 0.01 gramme of midazolam.

(b)  Regarding Charge 3:

(i)  1 black/purple rucksack which contained 4 unused syringes and 2 glass bottles (on Table 1);

(ii)  1 paper box which contained 44 unused syringes (on Table 6);

(iii)  1 plastic bottle inserted with 1 plastic straw and 1 glass tube at one end fitted with 1 plastic straw containing a net weight of 0.13 gramme of ICE (in washroom);

(iv)  1 plastic bottle with 2 openings at the lid and 2 plastic straws which contained 0.02 gramme of a solid containing ICE (in washroom);

(v)  1 plastic bottle with 2 openings at the lid, 1 plastic straw and 1 glass tube at one end which contained 0.07 gramme of a solid containing ICE (in washroom);

(vi)  1 plastic bottle with 2 openings at the lid, 1 plastic straw and 1 glass tube at one end which contained 0.04 gramme of a solid containing ICE (in washroom); and

(c)  Regarding Charge 1, 4 account books, 22 used syringes, plastic bottles which contained liquid containing ICE, an electronic scale, 2 packs of plastic straws, 5 price lists and 1 "Notice to Customers". These items are indicative of the Flat being kept as a divan.

4.Upon search, 3 keys were found on the defendant.  One of them could open the lock of the refrigerator, which contained 28 cans of Coke.  Under caution, the defendant admitted that he was helping "Ki Ki" to look after the business at the Flat; and he has not received any money yet.

5.In his video recorded interview, the defendant described how Ki Ki had brought him to work at the Flat on 27 October 2020 for a reward of $500.  He has only started working at the Flat for a few hours before the Police came.  The defendant admitted having sold heroin to customers in the Flat.  He claimed that the glass bottles, aluminium foil sheets and syringes were prepared by Ki Ki.  The defendant knew that the customers would use those items to consume drugs.  He also knew that the drugs found were ICE and heroin.  He threw the drugs into the toilet bowl before the Police arrived.

6.Regarding Charge 4, the defendant entered Hong Kong on 7 February 2020 as a visitor on the strength of a Two-way Permit.  He was allowed to remain in Hong Kong until 11 February 2021.  He knew that he was not allowed to take up any employment, paid or unpaid, during his stay in Hong Kong.

Mitigation & Sentence

7.The defendant is 49 and has 1 conviction record, which involved a "Breach of condition of stay" offence (dated 2010).  Defence counsel Mr. Ching informed me that the defendant is married with a son (aged 14).  The defendant and his wife are mainlanders, but their son is a Hong Kong resident.  The defendant worked as an electrician on a casual basis earning about RMB4,000 per month.

8.In mitigation, Mr. Ching submitted that as confirmed by the defendant's urine test results, he was a drug addict consuming ICE and heroin.  Mr. Ching, however, confirmed that he is not making any claim of self-consumption as mitigation.  Mr. Ching stressed that the defendant has pleaded guilty to all 4 charges and asked for the court's leniency.

9.Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller or courier)  and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.  If his drug habit was the cause of committing the present offences, the defendant has no one but himself to blame.

Charge 1

10.I have borne in mind the Court of Appeal's remarks in HKSAR v Lam Lai Chu Patsy CACC 56/2003 that for the offence of "Keeping a divan", the usual sentence ranges from 12 to 24 months' imprisonment.  Taking into consideration of the size of the Flat, the quantity of drug-taking apparatuses found in and the types of drugs available at the Flat, a starting point of 18 months' imprisonment is appropriate and just. With the timely guilty plea, the sentence is reduced to 12 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 12 months' imprisonment for this charge.

Charge 2

11.For the purpose of sentencing, I am prepared to disregard the negligible quantity of midazolam.  I will sentence the defendant based on the quantities of heroin and ICE.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ICE (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691)  and heroin (see The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.  For up to 10 grammes of heroin, the sentence ranges from 2 to 5 years' imprisonment. 

12.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs[1]. In the present case, the defendant trafficked in a cocktail of drugs consisting of 1.56 grammes of ICE and 4.59 grammes of heroin.  For 1.56 grammes of ICE, applying a strict arithmetical approach, the appropriate starting point is 3 years and 7 months.  Similarly, for 4.59 grammes of heroin, 3 years and 5 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence.

13.In terms of potency, 1.56 grammes of ICE should form the basis of the starting point. Hence, I adopt a starting point of 43 months' imprisonment and adjust it upward by 8 months for the heroin, arriving at 51 months.  With the timely guilty plea, the sentence is reduced to 34 months.  I sentence the defendant to 34 months' imprisonment for this charge.

Charge 3

14.The usual starting point for this offence is 3 months' imprisonment after plea[2]. The drug-taking apparatuses found in the Flat were intended for "commercial use" and the quantity is larger than those found in cases which involved "personal use" only.  Hence, I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 4 months.  I sentence the defendant to 4 months' imprisonment for this charge.

Charge 4

15.This is the defendant's 2^nd conviction (though after more than 10 years).  I adopt 3 months' imprisonment as the starting point.  With the timely guilty plea, the sentence is reduced to 2 months.  I sentence the defendant to 2 months' imprisonment for this charge.

Overall sentence

16.Common sense tells us that apparatuses for consuming drugs would normally be found in a divan.  In other words, Charges 1 and 3 invariably exist in pairs.  Thus, their sentences should run concurrently.  On the other hand, being a "keeper" of a divan does not necessarily involve selling drugs.  In relation to Charge 1, selling drugs clearly constitutes an aggravating factor.  Bearing in mind the totality principle, I consider a total prison term of 40 months appropriate and just for Charges 1 to 3.  Hence, I order the sentences for Charges 1 and 3 to run concurrently; and 6 months consecutive to Charge 2.

17.Charge 4 is separate and distinct from the other 3 charges.  It is also the defendant's 2^nd conviction of a similar offence.  I order the sentence for Charge 4 to run consecutive to Charges 1 to 3.  In other words, the total prison term for all 4 charges is 42 months.