COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug, involving 1.16 grammes of a solid containing 1 gramme of cocaine, and one count of keeping a divan where a dangerous drug, cocaine, was sold to be smoked therein.
At about 2.50 pm on 27 November 2020, a team of police officers entered Flat B, 1st Floor, No. 112 Portland Street, Mong Kok, Kowloon, which I will refer to as Flat B. The defendant was then sitting on a sofa. The defendant was then searched and a key to Flat A of the same floor was found on his body.
The police then searched Flat B and seized seven small packets of cocaine and one inhaling device. The seven packets contained a total of 1.16 grammes of a solid containing 1 gramme of cocaine. The defendant was then arrested and under caution he said that he was just working for someone as he had no money.
In a subsequent cautioned interview, the defendant admitted amongst other matters the following:
(1) Firstly, he was short of money and he was employed to sell and supply cocaine;
(2) he would charge the customers $600 in cash for 0.35 grammes of cocaine;
(3) he would assign customers to consume the dangerous drug inside different subdivided rooms in Flat A or Flat B.
The defendant is now 60 years old and 57 years old at the time of the offence. He has been separated with his wife since 2020 and although they have a daughter who is 32 years old and living in Taiwan, the defendant has had no contact with his family members even before his arrest. He received education up to Primary 3. Before his arrest, the defendant had relied on his disability allowance based on his heart problem which has stopped since his arrest.
The defendant did not plead guilty to the present offences at the first opportunity. In respect of the trafficking count, the defendant formally indicated in writing to the prosecution of his intention to plead guilty after committal to the High Court but before the first case management hearing.
In respect of the count concerning the keeping of a divan, the defendant formally indicated in writing to the prosecution of his intention to plead guilty shortly prior to the commencement of trial.
I will first deal with the sentence in respect of the trafficking count. The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph.
Using the relevant bands for trafficking in cocaine as set out in HKSAR v Abdallah [2009] 2 HKLRD 437, a mathematically calculated starting point within the relevant sentencing band would be 27 months after rounding down. The defendant in this case was more than a mere courier or storekeeper of the drugs. He was employed to act as a direct seller of the drugs to customers who came to Flat B and he also provided the convenience of private rooms for drug addicts to consume drugs in both Flat A and Flat B.
I accept the defence submissions that the divan can be considered small in operation given that there were only three customers found at the premises, only three sets of drug paraphernalia were found, and there were no multiple drug types. I would therefore enhance the mathematically calculated starting point of 27 months by 6 months to 33 months to reflect the defendant’s role as a keeper of the divan.
The defendant has 36 previous convictions, one of which was for possession of dangerous drugs. None of the previous convictions concerned trafficking in dangerous drugs. Bearing in mind the Court of Appeal’s observations in HKSAR v Wan Wai Lun [2018] 1 HKLRD 1022 at paragraphs 18 to 19, the defendant’s previous convictions do not, in my view, justify an enhancement of his sentence for trafficking.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in both Abdallah at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities.
Accordingly, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step. The main mitigating factor in this case is the defendant’s guilty plea. He did not plead guilty in the first available opportunity but did indicate his intention to plead guilty before the first case management hearing and in doing so saved the court’s time. Bearing in mind the observations of the Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKC 231, paragraph 214, he is entitled to a 25 per cent discount from the starting point of 33 months, leading to a sentence of 24 months after rounding down.
I now deal with the sentence in relation to the keeping of a divan count. In respect of this count, I have considered the cases of HKSAR v Lam Lai Chu Patsy, CACC 56/2003, and HKSAR v Fung Wai Hing [1995-2000] HKCLRT 543(539?). In Fung Wai Hing, the court described the following factors as pertinent to sentencing a keeping of a divan case:
(1) the scale of operation of the divan, this includes the size of the divan, the number of drug addicts that the divan could accommodate, the nature and quantity of the equipment or instruments provided for consuming dangerous drugs, and the mode of operation of the divan;
(2) the degree of concealment of the divan and the protection it offered to the drug addicts;
(3) whether the divan keeper supplied or sold in the divan any dangerous drugs to persons to be consumed therein and the nature of the dangerous drugs supplied;
(4) the profit derived by the divan keeper.
In the present case, the charge only related to Flat B. In Flat B, only one customer was found, only one set of inhaling device was found, and only one type of drug was found in small quantities. I therefore agree with the defence submission that an appropriate starting point for this count should be 20 months’ imprisonment.
The defendant did not indicate that he would plead guilty to this offence until just before the start of trial. Bearing in mind the observations of the Court of Appeal in Ngo Van Nam at paragraph 214, he is entitled to a 20 per cent discount for his plea. This leads to a sentence of 16 months’ imprisonment.
Since I have already taken into account the fact that the defendant had directly trafficked in the drugs by way of selling them to customers coming to the premises and allowing them to consume the drugs on the premises in private when deciding the sentence on the trafficking count, the two sentences should be made wholly concurrent.
The defendant’s overall sentence is this. In respect of the trafficking count, that is Count 1 of the re-amended indictment dated 17 August 2023, I impose a sentence of 24 months.
In respect of the count for keeping a divan, that is Count 3 on the same re-amended indictment, I impose a sentence of 16 months’ imprisonment to be served concurrently with Count 1.
I sentence you to a total term of 24 months’ imprisonment.