HKSAR v. Leung Chuen Tat

HCMA 175/2022

[2022] HKCFI 3323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 175 OF 2022

(ON APPEAL FROM KTCC 227/2022)

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BETWEEN

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing:  12 October 2022

Date of Judgment:  7 November 2022

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J U D G M E N T

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1.On 14 April 2022, the appellant appeared before principal magistrate Bina Chainrai at the Kwun Tong magistracy and pleaded guilty to one count of keeping a divan wherein dangerous drug is sold, contrary to section 35 (1)  (a)  and (2)  of the dangerous drugs Ordinance, Cap 134.

2.The particulars of the offence are that the defendant on 8 February 2021 at Room 4B, 41 to 47 Shui Wo Street, Kwun Tong, Kowloon, kept a divan where a dangerous drug, namely morphine and methamphetamine, was sold in the divan to be smoked and injected therein.

3.On the same day, 14 April 2022, the defendant was sentenced to 20 months’ imprisonment.  By reason of his notice of appeal dated 22 April 2022, the appellant appeals against his sentence on the general grounds that his sentence was too severe.

Background

4.On 8 February 2021, the police received an anonymous phone call that there were 10 people smoking dangerous drugs in room 4B, the address in the particulars of the offence.  No one would open the door when police arrived; they need to forcibly break into the premises.  They found 10 people sitting inside the premises, including the appellant.

5.The appellant admitted that a divan had been set up and a drugs pricelist was found stating the availability of a variety of dangerous drugs.  A tablet of midazolam was found.  A plastic bag containing traces of methamphetamine was found.  8 syringes containing traces of liquid containing morphine was found.  2 plastic bottle and 3 plastic straws containing traces of amphetamine were also found.  144 resealable transparent plastic bags of 2 sizes were also seized.  The defendant admitted he was the keeper of the divan and looking after this business.  He admitted he flushed methamphetamine down the toilet when the police knocked on the door.

Mitigation advanced

6.The appellant is 34 years old and was unemployed when arrested.  He used to be a plumber or air-conditioner worker.  He is not a man with a clear record; he has 3 previous convictions all resulting in terms of imprisonment but none related to drugs or this charge.  His last conviction was on 6 August 2021.

7.The court was told that he was remorseful and committed the offence under the influence of peers.  He was unaware of the serious and severe consequences.  He promises to disassociate from them and will not reoffend.

Reasons for sentence

8.The learned magistrate took into account mitigation put forward and the facts of the case.  She was well aware that there are no sentencing guidelines for the offence of keeping a divan except to declare that the norm is an immediate custodial sentence.

9.In deciding the appropriate starting point was 30 months’ imprisonment, several pertinent factors were taken into account.  Firstly, she considers the fact that was a variety of dangerous drugs available to those who visited the divan.  Secondly, the divan itself was sizeable; there were 9 other people inside.  Thirdly, when the police arrived, their entry was delayed because no one would open the door.  The police had to forcibly break into the premises.

10.Fourthly, the police found 2 types of drugs in either a number of syringes or in plastic bottles and straws.  Lastly, the defendant flushed methamphetamine down the toilet when the police knocked on the door which would explain why no one would open it.

11.The learning magistrate took the view that there must have been quite a quantity of drugs available.  After his arrest and caution, the appellant admitted he was looking after the divan, calling it a business and did flush drugs down the toilet.

12.The magistrate took the view that the offence was serious and that the facts called for a starting point of 30 months’ imprisonment.  The appellant was afforded a full discount for his plea and sentenced to 20 months’ imprisonment.

Grounds of appeal

13.The appellant was not legally represented at his appeal.  He did not advance any grounds of appeal nor had any submissions during the hearing.  He relied on the general ground that his sentence was too severe.

Discussion

14.The appeal is an appeal by way of rehearing and I referred myself to the facts the appellant admitted as well as the reasons for sentence filed to see whether there is any error made by the magistrate in her approach to sentencing the appellant.  I find no flaws in the magistrate’s reasons.

15.I have taken into account the respondent’s submissions who emphasise that all the factors considered relevant by the magistrate supports the sentence.

Conclusion

16.The sentence is not manifestly excessive.  I see no reason to interfere with the magistrate’s decision.  In the circumstances, the appeal against sentence is dismissed.

Miss Go Hong Hong, Lisa, Senior Public Prosecutor of Department of Justice, for the respondent

The appellant appeared in person