HKSAR v. Chan Kai Chung

HCCC 221/2022

[2023] HKCFI 1888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 221 OF 2022

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one count of keeping a divan contrary to s35(1)(a) & (2) of the Dangerous Drugs Ordinance, Cap 134, before the Eastern Magistrates’ Courts on 19 December 2022.

2.On 5 August 2021, the police raided Flat 2B, 2/F, No 425 Shanghai Street, Yau Ma Tei with a search warrant. The defendant opened the door to a room which was approximately 150 sq ft, with a common area and toilet, which can be seen in photographs 7 & 8.  It contained 7 tables in all, one of which was the keeper’s desk operated by Chan. From that desk alone, which can be seen in photograph 9, the police recovered 1 re-sealable packet of ICE, 124 little plastic packets of heroin hydrochloride and 90 midazolam tablets along with a number of empty re-sealable plastic bags, an electronic scale, a record keeping notebook, a calculator, scissors and unused straws. 5 of the user tables were set against the opposite wall and price lists were attached to the wall, which customers were facing. There was one table set up in a separate room. All of the tables were occupied. Each table had a homemade bong, lighter and foil. The defendant had 14 customers at the various tables who were in the process of consuming drugs.

3.Upon arrest and caution, the defendant claimed he was just filling in for someone else and was about to leave. This was maintained in interview when he re-iterated that he was to be paid HK$500 for “filling in” but later in the same interview the defendant explained that he had the 1000hrs – 1800 hrs shift. The person who was taking over from him was late which was why he was still there at the time of the raid but why he said he was just about to leave. He also admitted to managing the flat and selling the drugs according to the price list on the wall. Someone had come up to the flat that evening at about 2000 hrs to collect the money he had taken from customers during his shift, which is why there was little money in the flat at the time of the raid. The divan operated on a 24 hour basis.   

4.The defendant is a mature man of now 69 years of age. He is single and was educated up to primary 3. He was unemployed and in receipt of CSSA. His criminal record spans from 1975 to 2016, at which time he received 28 months for trafficking in dangerous drugs. Prior to that his criminal activity was varied.

5.Miss Cheng suggests that the defendant did receive just HK$500 for his troubles and had only been working at the divan for 3 days. I provided the defendant with an opportunity to make that submission good given that it had come from the bar table and he had not made such an admission in interview. The defendant declined.   

6.This is a cocktail of drugs. 25.39g of Heroin Hydrochloride, 3.72g of ICE and 1.14g of midazolam in 90 tablets.  25.39g of Heroin Hyrdrochloride would normally attract a starting point for sentence after trial of 6 years 1 month under R v Lau Tak-ming & Others [1990] 2 HKLR 370. 3.72g of methamphetamine hydrochloride or ICE, would attract a starting point of approximately 4 years under HKSAR v Tam Yi-chun [2014] 3 HKLRD 691. As for the 90 tablets of midazolam, according to HKSAR v Yiu Chi-wai HCMA 624/1997 it should be equated with methaqualone for sentencing purposes. The guideline tariffs for methaqualone are set out in Attorney General v Chan Chi-man [1987] HKLR 221. For small amounts such as we have here it is within the discretion of the court and I venture to suggest a starting point for sentence of 3 months after trial. If the court simply added all of those together that would make a total of 10 years 4 months’ imprisonment.

7.I have considered the absurdity, conversion and ratio tests as described by HKSAR v Chan Yuk Leong CACC 318/2013 and HKSAR v Yip Wai-yin & anor [2004] 3 HKC 367 as well as other relevant authorities. There is a total narcotic content of 30.25g if you include the midazolam. If it were all the most potent drug i.e. ICE it would attract a sentence of 8 years 4 months. If it were all the most prevalent of the drugs seized, it would attract a sentence of 6 years 6 months.  However the narcotic content of the midazolam is negligible and I have considered the various tests with the total narcotic content excluding the midazolam i.e. 29.11g. Having done so, I consider that a starting point after trial of 6 years 9 months is appropriate for Count One, to which I will add 3 months for the aggravating factor of the latent risk that drugs will be consumed in combination as was the case here.  Affording the defendant a full one third discount for his plea at the earliest opportunity, he will go to prison for a period of 4 years 8 months. 

Keeping a Divan

8.The keeping of a divan was separately charged under Count Two. Whilst it is all the same enterprise, it is clearly an offence which exacerbates the underlying trafficking significantly. The Court has been referred to HKSAR v Lam Lai-chu, Patsy CACC 56/2003; HKSAR v IP Ming, HCMA 835/2005; HKSAR v Cheung Yiu-fai, Alex, CACC 173/2005 and HKSAR v Ng Ka-wing, CACC 563/1999. These authorities indicate that the usual starting point for sentence after trial for the keeping of a moderate divan is that of 2 years’ imprisonment reduced to 16 months’ imprisonment upon an early plea. In this instance a total of 14 people were sitting at 6 separate tables each of which had paraphernalia for the consumption of drugs which indicated ongoing and recent consumption of both methamphetamine and heroin. Upon the defendant’s own admission the divan operated upon a 24 hour basis. He maintained he was the manager during the daylight hours. Whether he was the operator or the manager, this was an established commercial enterprise providing an opportunity for customers to consume a mixture of drugs which history has taught us is far more toxic than the consumption of a single drug and can indeed be lethal. I therefore consider that such an establishment in current circumstances is setting an extremely dangerous precedent if it were to be revived for common usage, encouraging members of the public to socialise in the same manner as if they were going out for a drink. I consider a starting point of 30 months’ imprisonment is more appropriate in the circumstances of this case with a reduction of one third for a timely plea making a sentence of imprisonment of 20 months on Count Two, 12 months of which will be served consecutively to Count One making a total term of imprisonment of 5 years 8 months.

Mr Glen Kong, SPP(Ag.), on behalf of the Department of Justice, for the HKSAR

Ms Flora Cheng, instructed by Messrs Lo Chan & Leung, assigned by the Director of Legal Aid, for the defendant