HKSAR v. Leung Tat Chor

DCCC 1032/2022

[2023] HKDC 1179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1032 OF 2022

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REASONS FOR SENTENCE

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1.The defendant (“D”)  pleaded guilty to two charges:

(1)  Keeping a divan; and

(2)  Trafficking in dangerous drugs: -

(a)  A mixture containing 4.19 g of heroin;

(b)  0.12 g of crystalline solid containing 0.12 g of ‘ice’; and

(c)  54 g of cannabis in herbal form.

Summary of facts

2.At around 2:08 pm on 15 July 2022, PW1 raided Room A, 2^nd Floor, Lee Man Building, Nos 104-116 Tung Choi Street, Mong Kok, Kowloon (“the Flat”)  on the strength of a search warrant.

3.The police knocked on the door and revealed their police identities, but without respond. PW1 and police officers broke open the door of the Flat after giving a verbal warning.

4.The Flat consisted of one living room, three rooms and one kitchen with a toilet inside.

5.At the material time, D was sitting at a table in the living room (“the Keeper’s Table”)  and 7 other persons were sitting at a table in one of the three rooms in the Flat (“the Room”).

6.Inside a drawer at the Keeper’s Table, Police found and seized a brown plastic box containing the following items: -

(a)  26 packets containing a mixture containing 2.34 grammes of heroin (“E1”);

(b)  14 packets containing a mixture of 1.85 grammes of heroin (“E2”); and

(c)  1 resealable plastic bag containing 0.12 grammes of a crystalline solid containing 0.12 grammes of ‘ice’ (“E3”).

7.At the Keeper’s Table, police officers also found 2 digital scales, some plastic sheets, some aluminum foils, cash of HK$400, some plastic straws, a calculator, a ball pen and 2 pieces of paper. On a wall at the living room, 2 price lists for “熱” and “生果” were posted.

8.Inside a storage box in the living room, a police dog also found a black plastic bag containing the following items: -

(a)  1 plastic packet containing 26.7 grammes of cannabis in herbal form (“E4”); and

(b)  1 plastic packet containing 27.3 grammes of cannabis in herbal form (“E5”).

9.On a table inside the Room, Police found some burnt and unused aluminum foils, 4 lighters and 2 glass bottles with straws attached.

Arrest and cautioned statements

10.Upon initial enquiry, D told PW1 that he was the person-in-charge of the Flat. PW1 arrested D for “Keeping a divan”. The D stated under caution that he worked there as a keeper and it was his first day at work. The D was further arrested for “Trafficking in dangerous drugs”, the D stated under caution that the dangerous drugs were for sale to customers.

11.In a video-recorded interview the D said that: -

(a)  He was employed as a keeper to attend to customers and sell dangerous drugs to them at the Flat and it was his first day to work there. He would be paid HK$1,300 after working his shift for 12 hours;

(b)  For the price lists, “熱” meant heroin and “生果” meant ‘ice’;

(c)  At the time of arrest, he was selling heroin to customers for them to consume;

(d)  Heroin was sold for HK$150 per white packet, which weighed 0.15 grammes, and HK$250 per red packet, which weighed 0.25 grammes. He was not sure of the price of ‘ice’;

(e)  The plastic wraps and resealable plastic bags seized were for packing heroin;

(f)  The cash of HK$400 was proceeds of sale of heroin;

(g)  The aluminum foils, straws, lighters and bottles seized were for customers to smoke heroin and methamphetamine at the Flat;

(h)  The digital scales seized were for weighing the dangerous drugs; and

(i)  The calculator, pen and papers seized were for recording drug transactions.

Criminal records

12.Since 1982 to 2021, the D has 4 court appearances, resulting with 5 previous convictions, two counts related to possession of dangerous drugs in 1989 and 2020 respectively.

13.In 1985, the D was sent to DATC for 3 drugs related offences with an order that convictions not to be recorded.

Mitigation and Antecedent

14.The D is now 56 years old. He used to work as casual worker in a tea house earning $8,000 to $20,000 per month.

15.However, he lost his job during the pandemic period. He was introduced to this job as a divan keeper for a daily wage of $1,500. That was his first day to work in the divan and he has not yet received any pay yet.

16.His wife divorced him and they have a son aged 23. He is a student in the Poly University in Hong Kong.

17.The D’s mother and son regularly visit him in prison during this period of remand and that give him a great deal of moral support and inspiration to reinvent himself. In his own letter to this court, he said that they are his back rock to turn over a new leaf.

Sentence

18.The 1^st charge was keeping a divan. According to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, the maximum sentence is 15 years of imprisonment.

19.In the present case, the keeping period was one day. The Flat consisted of one living room, three rooms and one kitchen and a toilet.

20.The Prosecution informed me this morning that only 2 rooms were opened to serve the customers and the divan operated 24 hours a day.

21.The maximum capacity of the divan can accommodate 22 to 23 customers.

22.When the police executed the search warrant, the D was in the living room while 7 other persons were sitting at a table in one of the three rooms.

23.All the drugs were found at the Keeper’s Table together with the present of paraphernalia associated with the drugs, such as items used for packaging and weighing of the drugs and items used for consumption.

24.I consider the size of the divan is between small to medium although it was a 400 square feet Flat.

25.The defence cited a number of cases that the customary sentence for this type of offence was between 12 months to 2 years. (HKSAR v Lam Lai Chu Patsy, CACC 56/2003 refers)

26.Having considered all the relevant factors in charge 1, I adopt a starting point of 21 months, reduced to 14 months.

Charge 2

27.Case laws in respect of trafficking in dangerous drugs are well-settled.

28.Unlawful trafficking in the amount up to 10 grammes of heroin fell in the range of 2 to 5 years’ imprisonment (Lau Tak Ming [1990] 2 HKLR 370).

29.For trafficking in “Ice” where the amount is up to 10 grammes, the sentence is in the range between 3 to 7 years’ imprisonment (Ching Kwok Hung [1991] 2 HKLR 125).

30.As to trafficking of herbal cannabis, in the case of HKSAR v Chor Lui [2001] 3 HKLRD 95, the court held that under 2,000 grammes of herbal cannabis, the benchmark tariff sentence should be 4 months’ imprisonment.

31.In the present case, the drugs found in the divan was: -

(a)  A mixture containing 4.19 g of heroin, the street value was $4956

(b)  0.12 g of crystalline solid containing 0.12 g of ‘ice’, the street value was $69

(c)  54 g of cannabis in herbal form, the street value was $9774.

32.As for 4.19 g of heroin, it attracts a sentence of 3 years and 3 months’ imprisonment. The defence suggested that an upward adjustment of sentence for 1 to 2 months to take into consideration of the small amount of the other 2 types of drugs.

33.I agreed that should be the proper approach in sentencing. I therefore adjust the sentence upward by one month, it arrives at 3 years and 4 months.

34.With the presence of more than one type of dangerous drugs for the purpose of trafficking is an aggravating factor as the D could sell the drugs to a wider market and to different drug abusers. I further adjusted the sentence by 2 months to arrive at 3 years 6 months. Given the 1/3 discount, it comes down to 2 years 4 months.

Totality

35.As said in the judgement of HKSAR v Ho Sai Chak HCMA 780/1999 that “the act of providing drugs to other for consumption and that of keeping a divan are different and separate matters. One activity does not necessarily include the other.”

36.To reflect the culpability of the 2 offences, I order 8 months from charge 1 to run consecutively to charge 2, the total sentence is 3 years.