HKSAR v. Lau Ka Fai Coffee

CACC 3/2022

[2022] HKCA 1748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 3 OF 2022

(ON APPEAL FROM DCCC NO 757 OF 2021)

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Before:  Hon Zervos JA in Court

Date of Hearing: 22 November 2022

Date of Judgment: 22 November 2022

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J U D G M E N T

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1.On 2 November 2021, the applicant pleaded guilty to one charge of keeping a divan (Charge 1) and one charge of trafficking in dangerous drugs, namely 0.58 gramme of a crystalline solid containing 0.57 gramme of methamphetamine hydrochloride (commonly known as Ice) and 0.83 gramme of a mixture containing 0.70 gramme of heroin hydrochloride (Charge 2) before District Court Judge Tse Ching (the judge). On 23 December 2021, the judge sentenced the applicant to 16 months’ imprisonment on Charge 1 and 30 months’ imprisonment on Charge 2, with 12 months of the sentence on Charge 1 to run consecutively to the sentence on Charge 2, resulting in a total sentence of 42 months’ imprisonment.

2.On 6 January 2022, the applicant applied for leave to appeal his sentence.

3.Ms Anna Ho, for the applicant, advances three grounds of appeal against sentence.  Ground 1 complains that the starting point adopted by the judge for Charge 2 was manifestly excessive.  Ground 2 avers that the judge erred in considering the role of the applicant in the two charges and adopting a consecutive element of 12 months, which resulted in a double penalty.  Ground 3 alleges the judge failed to apply the totality principle.

4.In the afternoon on 18 March 2021, police entered the flat occupied by the applicant, where they found items and paraphernalia for the consumption of drugs and 18 people sitting around two tables in one of the rooms of the flat.  The police also found 3 plastic bags, consisting of the drugs particularised in Charge 1 and 3 packets, consisting of the drugs particularised in Charge 2.  The police also found in the applicant’s possession 2 mobile telephones and $1,750 cash.  The applicant admitted under caution that the flat operated as a divan for the consumption of drugs by people and he was the keeper of it.  A packet of heroin would cost $280 and a packet of Ice would cost $140.  A handwritten price list was affixed next to the door of the divan.  Police also found a notebook in which the applicant would record drug transactions and $900 cash in a desk drawer, which the applicant acknowledged was the proceeds of drug transactions. 

5.At the time of the offence, the applicant was 57 and living off social welfare benefits.  He had numerous previous convictions for an array of offences, including six for drug offences, of which four were for trafficking.  He had been discharged from prison custody on 9 January 2021, having served a three-year sentence for burglary.

6.As for Ground 1, the judge adopted an overall notional starting point of 39 months for Charge 2.  She enhanced the sentence by 6 months to 45 months for the aggravating factors that more than one drug was involved and that this was the applicant’s fifth conviction for trafficking.  She arrived at a sentence of 30 months’ imprisonment after giving the applicant a reduction of one third for his guilty plea.[1] 

7.Ms Ho complains that the judge did not take into account that the quantity of drugs involved was relatively small, 1.27 grammes, and that the previous drug offence took place in 2007 and the last trafficking offence in 2000.  The applicant had convictions for one possession offence and three trafficking offences between 1982 and 1988, one trafficking offence in 2000 and one possession offence in 2007.  Whilst it is accepted that the previous trafficking convictions took place some time ago, the fact is that the applicant had four previous convictions for trafficking, which the judge was entitled to take into account, bearing in mind when they occurred.  I think the judge did bear this in mind because the enhancement for this factor and that there was more than one drug involved was 6 months.

8.According to the sentencing guidelines and the sentencing approach in respect of more than one drug, the starting point of 39 months’ imprisonment was within the appropriate range of penalty.  See HKSAR v Tam Yi-chun (No 2) [2014] 3 HKLRD 691; R v Lau Tak-ming and Ors [1990] 2 HKLR 370; HKSAR v Islam SM Majharul [2020] 3 HKLRD 146..  It was also appropriate for the judge to enhance the sentence by 6 months because of the aggravating factors identified. 

9.This ground is not reasonably arguable.

10.As for Ground 2, Ms Ho complains that the judge reflected the applicant’s role in the sentences of both charges, and by ordering a consecutive element of 12 months thereby imposed a double penalty. She submits that the judge took into account under Charge 1 that the applicant’s role was supplying drugs to others, and under Charge 2 she enhanced the applicant’s sentence by 6 months for his role and repeat offending.  Her submission regarding Charge 2 is not correct.  The judge enhanced the applicant’s sentence by 6 months because there was more than one type of drug involved and his repeat offending.

11.It has been held that sentences for keeping a divan and trafficking in dangerous drugs which were being consumed in the divan could be ordered to run consecutively, subject to the totality principle, since the acts of supplying drugs to others and running a divan were different criminal matters to run: HKSAR v Ng Ka Wing Kevin, unrep., CACC 563/1999, 23 February 2000.

12.Charge 1 of keeping a divan and Charge 2 for trafficking in dangerous drugs were separate and distinct offences for which it was appropriate to provide a consecutive element, which the judge ordered after taking into account the totality principle.[2] The applicant played a principal role in keeping the divan, which was quite established and elaborate in its operation.  There were 18 people in the flat and clearly there for the purpose of consuming drugs. 

13.I do not consider this ground to be reasonably arguable.

14.In Ground 3 it is complained that the judge failed to apply the totality principle in the case, and as a result, the overall sentence was unfair and unjust.  Ms Ho essentially reargues the previous grounds by submitting that there was an unavoidable overlap between the two offences because of his role in keeping a divan and as a trafficker of drugs.  She acknowledges, however, that in such circumstances, a partial consecutive sentence would be warranted but not one that was crushing on the applicant.  The judge specifically addressed the totality principle in her reasons for sentence which she applied when ordering the 12 months of the sentence in Charge 2 to run consecutively to the sentence in Charge 1. 

15.This ground is not reasonably arguable.

16.I do not think the judge can be faulted in her reasoning or her approach to sentence.  The applicant was keeping a divan in which he was actually trafficking by supplying two kinds of dangerous drugs to a large number of customers that were present.  He also recorded in a notebook drug transactions that had taken place. 

17.In drug cases, the prime concern is whether any significant departure has taken place in the sentencing approach that would have a material bearing on the end result.  Given that two different dangerous drugs were involved, the applicant’s role as a trafficker and his function as the keeper of the divan where a large number of people could take different drugs, I consider that the judge’s total sentence of 42 months’ imprisonment properly reflected the overall criminality.  Accordingly, the application for leave is refused.

18.The applicant is informed that he has the right to renew his application for leave to the Court of Appeal, however, he is also informed that the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

Mr Prakash L Daryanani, SPP of Department of Justice, for the respondent

Ms Anna Ho, instructed by C O Yu & Co, assigned by the Director of Legal Aid, for the applicant

[1]  Appeal Bundle (AB), 23, at [18] and [19]. 

[2]  AB, 24-25, at [20]-[22].