COURT: The defendant pleaded guilty to one count of keeping a divan where four dangerous drugs were sold to be smoked, inhaled, ingested or injected therein, and one count of trafficking in dangerous drugs, involving four different types of drugs, namely, 16 grammes of a mixture containing 12.96 grammes of heroin hydrochloride; 1.8 grammes of a solid containing 1.53 grammes of cocaine; 7.11 grammes of a crystalline solid containing 7.07 grammes of methamphetamine hydrochloride; and 60 tablets containing 0.77 grammes of midazolam.
On 10 August 2023, having pleaded guilty in the Eastern Magistrate’s Court, the defendant was committed to this court for sentence. He confirms his plea and his admission to the Summary of Facts before me today.
The Facts
At around 1643, on 22 July 2022, a team of police officers raided the flat pursuant to a search warrant. The defendant was found sitting at one of the tables in the living room (“the Keeper’s table”), and seven other persons were found sitting at an electronic mahjong table in one of the three rooms of the flat. The flat is around 350 square feet.
The following items were found at the Keeper’s table: (1) one calculator; (2) a black electronic scale; (3) one lighter; (4) multiple transparent resealable plastic bags; (5) multiple blue and white plastic tapes; and (6) multiple papers with transaction records.
Inside the drawer of the Keeper’s table, cash in the sum of $13,690; 11 foil packs containing 60 tablets containing 0.77 grammes of midazolam; and two plastic boxes were found.
The first box contained:
(i) 20 packets containing 8.53 grammes of a mixture containing 6.92 grammes of heroin hydrochloride (“heroin”);
(ii) three packets containing a total of 3.01 grammes of a mixture containing 2.46 grammes of heroin;
(iii) 23 packets containing 4.46 grammes of a mixture containing 3.58 grammes of heroin.
The second box contained:
(i) a transparent resealable plastic bag containing 0.09 grammes of a solid containing cocaine;
(ii) a plastic bag containing 0.38 grammes of a solid containing 0.33 grammes of cocaine;
(iii) three plastic bags containing 0.57 grammes of a solid to contain 0.51 grammes of cocaine;
(iv) six transparent resealable plastic bags containing 0.57 grammes of a solid, which contained 0.51 grammes of cocaine;
(v) one resealable plastic bag containing 0.19 grammes of a solid containing 0.18 grammes of cocaine;
(vi) two resealable plastic bags containing 0.96 grammes of a crystalline solid containing 0.96 grammes of methamphetamine hydrochloride (“‘Ice’”);
(vii) one transparent resealable plastic bag containing a total of 0.50 grammes of a crystalline solid, to contain 0.50 grammes of ‘Ice’;
(viii) two transparent resealable plastic bags containing a total of 0.28 grammes of a crystalline solid containing 0.28 grammes of ‘Ice’;
(ix) four transparent resealable bags containing 0.98 grammes of a crystalline solid to contain 0.97 grammes of ‘Ice’;
(x) four transparent resealable bags containing 1.39 grammes of a crystalline solid to contain 1.38 grammes of ‘Ice’;
(xi) five transparent resealable bags containing 3 grammes of a crystalline solid to contain 2.98 grammes of ‘Ice’.
The Government Chemist confirmed the total narcotics content in this case is:
(1) 12.96 grammes of heroin;
(2) 1.53 grammes of cocaine;
(3) 7.07 grammes of ‘Ice’; and
(4) 0.77 grammes of midazolam.
The average street value of the above drugs seized was HK$25,177 in total.
Other relevant items found at the other tables include two glass bottles, each with a glass tube, one stick with orange straw and one stick with yellow straw, one burnt aluminium foil, multiple pieces of aluminium foil, and one roll of aluminium foil.
Three price lists were posted on the wall next to the Keeper’s table dealing with the prices of gold, pork, and drink, which are common terms used in illicit drugs substitute in Hong Kong, referring to heroin, ‘Ice’ and cocaine respectively.
At 1605 hours on the same day, the defendant was arrested for keeping a divan. Under caution, he admitted being the person- in-charge of the flat: “我係呢度負責人，今日第一日做替”.
He was also arrested at 1722 hours for trafficking in dangerous drugs. He admitted under caution the drugs were for sale to the customers: “啲毒品係賣俾啲客嘅”.
A mobile phone was seized from the defendant upon a body search.
The defendant now accepts and admits that at all material times, he had possessed all dangerous drugs seized at the flat for the purpose of trafficking, and he had kept a divan at the flat where the drugs mentioned above was sold to be smoked, inhaled, ingested or injected.
The Defendant’s Background and Mitigation
The defendant is 69 years old. He completed primary education in China and came to Hong Kong in 1979. He used to work as a construction site worker. He was unemployed at the time of the offence. He divorced his wife in 2003. He has two grown up children, but he has lost contact with them for a long time. He claimed to be a drug addict and spent about HK$200 a day for heroin.
He has four previous convictions for possession of dangerous drugs. He was last discharged from Tai Lam Correctional Institution on 16 July 2016 for possession of dangerous drugs.
In mitigation, the defendant claims that he has been a drug addict for about 20 years.
Counsel also urged the court to adopt a combined approach when sentencing the defendant on Count 2. Counsel submitted that the defendant did admit under caution that the dangerous drugs in the flat were for sale to customers. He was the person-in- charge of the flat and was his first day to work there as substitute. His role was more akin to a storekeeper, but at the same time he is also a trafficker involved in the selling of drugs in case a customer came up. Counsel, Ms Li, fairly and rightly recognised that there are four types of drugs involved in the case, and in light of the principle in HKSAR v Chan Yuk Leong (CACC 318/2013), the court is entitled to enhance the sentence because it caters a wider market. Counsel urged the court to consider the defendant’s guilty plea and to consider the totality principle in considering the sentence for Counts 1 and 2.
Count 1: Keeping a Divan
I first 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. In Fung Wai Hing, the court described the following factors as pertinent to sentencing a keeping of a divan case:
(i) 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;
(ii) The degree of concealment of the divan and the protection it offered to the drug addicts;
(iii) 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;
(iv) The profit derived by the divan keeper.
Ms Li also referred to Lam Lai Chu Patsy and submitted that the sentence for keeping a divan ranged from 12 to 24 months’ imprisonment.
The divan in this case was maintained in a private property. There is a certain level of concealment of this divan. There is a screen in the flat showing real-time footage of the inside flat, the ground floor of the building and the staircases. This feature would allow whoever inside the divan to be alerted to any investigation or search from the police.
There are multiple drug types and there were seven other persons found inside the flat. There was a variety of differing amounts of dangerous drugs found in the divan, and those drugs were packaged in easily sellable forms (packed into several resealable bags and other items relating to packaging of drugs). Counsel for the defendant rightly acknowledged that this flat is more of a medium-scale one and not a small-scale divan.
I have considered the case of HKSAR v Cheung Yiu Fai Alex [2005] HKCU 1126. In that case, the applicant was intercepted by the police when he left a flat in Mong Kok. He was taken back to the flat where the usual items associated with a divan were found. Four men and a woman were found inside. The applicant admitted he was the keeper of the divan for two days and that the people inside were customers. Upon search, drugs were found inside the flat. The applicant admitted he sold the drugs to customers. He admitted that he was paid a daily salary of $450 and he was a drug addict and his habit cost him $100 to $200 a day. The trial judge adopted a starting point of 2 years for the charge of keeping a divan. That sentence was not disturbed by the Court of Appeal.
The role played by the defendant in the present case is similar to that in Cheung Yiu Fai Alex. For Charge 1, I adopt a starting point of 21 months’ imprisonment. The defendant has pleaded guilty at the first opportunity and is entitled to the full one-third discount. The sentence is reduced to 14 months.
Count 2: Sentencing Principles and Tariffs
Trafficking in a dangerous drug is a very serious offence. In sentencing, I shall follow the six-step approach enunciated by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and the methodology adopted in calculating the starting point for trafficking in multiple drugs (see HKSAR v Islam SM Majharul [2020] HKCA 300).
The defence and the prosecution have helpfully calculated the respective arithmetical starting points of the charge for my reference, using the ‘absurdity test’, ‘conversion test’ and ‘ratio test’ as explained in Chan Yuk Leong.
The drugs involved in this charge are as follows: 12.96 grammes of heroin, 1.53 grammes of cocaine, 7.07 grammes of ‘Ice’ and 0.77 grammes of midazolam.
‘Ice’
The sentencing guideline for trafficking in ‘Ice’ are found in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
According to the sentencing guidelines, for the quantity of 7.07 grammes of ‘Ice’, the defendant is in the band of up to 10 grammes, where the starting point for traffickers after trial, subject to any enhancement, is 3 to 7 years’ imprisonment.
Heroin and Cocaine
Heroin and cocaine are equated for sentencing purposes and the tariffs fixed for heroin in R v Lau Tak Ming [1990] 2 HKLRD 370 as modified by HKSAR v Abdallah [2009] 2 HKLRD 437 apply.
According to the sentencing guidelines, for the quantity of 12.96 grammes of heroin, the defendant is in the band of 10 to 50 grammes of narcotic, where the starting point for traffickers after trial, subject to any enhancement, is 5 to 8 years’ imprisonment.
According to the sentencing guidelines, for the quantity of 1.53 grammes of cocaine, the defendant is in the band of up to 10 grammes of narcotic, where the starting point for traffickers after trial, subject to any enhancement, is 2 to 5 years’ imprisonment.
Midazolam
Midazolam could be equated with methaqualone for sentencing purposes, that is 香港特别行政區 訴蔡同祥 (29 November 2005, HCMA 759/2005), at paragraphs 4 to 5. The judge has a discretion in sentencing when the amount of midazolam is under 500 grammes.
Overall Starting Point
In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in cocktail drugs. There are three means of cross-checking the appropriateness of the overall starting point in cases involving trafficking in different types of drugs (see HKSAR v Yip Wai Yin [2020] 3 HKLRD 146, Chan Yuk Leong and Islam SM Majharul).
In the cross-checking exercise, I will not take into account the very small quantity of midazolam in the calculation as it would have had a negligible effect on the overall sentence on the defendant because of the nature and quantity of the other three much more potent drugs, namely, ‘Ice’, cocaine and heroin (see HKSAR v Cheung Wai Man [2019] 1 HKLRD 817). Since the same tariff apply to heroin and cocaine, I will add up the weight of heroin and cocaine (see Islam SM Majharul at paragraph 25).
I set out different starting points in a table form, which both counsel have accepted as correctly calculated.
|
Calculation |
Starting point (after rounding it down) |
|
Sentencing guidelines |
Heroin – 12.96 grammes
Cocaine - 1.53 grammes
Adding up Heroin and Cocaine (14.49 grammes)
Ice - 7.07 grammes
Midazolam - 0.77 grammes |
5 years 2 months
2 years 5 months
5 years 4 months
5 years 9 months
1 month |
|
Absurdity test |
Notionally adding up all 3 drugs (Disregarding the amount of midazolam) to arrive at a total of 21.56 grammes of “Ice” |
7 years 9 months |
|
Notionally adding up all 3 drugs (Disregarding the amount of midazolam) to arrive at a total of 21.56 grammes of “Heroin/ Cocaine” |
5 years 10 months |
|
Conversion test |
Converting all drugs into “Ice” to arrive at the figure of 12.90 grammes of “Ice” |
7 years 2 months |
|
Converting all drugs into Heroin/ Cocaine to arrive at the figure of 34.49 grammes of Heroin/ Cocaine |
6 years 10 months |
|
Ratio test |
The starting point of each drug on the basis of 21.56 grammes of narcotic x ratio:
Ice: 7 years 9 months * 32.79%
Heroin and cocaine: 5 years 10 months * 67.21% |
6 years 5 months |
To achieve a reasonable and realistic sentence, I adopted the combined approach and checked whether the starting point to be adopted is fair and appropriate by cross-checking it against the absurdity test, the conversion test and the ratio test as stated in the above table.
In the course of the exercise, I note that ‘Ice’ was the more potent drug in terms of harm. Although heroin and cocaine takes up 67.21 per cent of the total narcotics content, ‘Ice’ still takes up a rather substantial portion of 32.79 per cent. Given that heroin and cocaine takes up the largest portion of the drugs involved in this case, that is, 67.21 per cent, and its potency is not significantly less than that of ‘Ice’ (see HKSAR v Wan Lau Mei [2014] HKEC 528) at paragraphs 36 to 37. Thus, I will use heroin as the base drug to calculate the starting point.
Using heroin and cocaine as the base drug, the starting point for 14.49 grammes of heroin and cocaine is 5 years and 4 months’ imprisonment. I now have to decide what upward adjustment I should make for the remaining 7.07 grammes of ‘Ice’. Having applied the three tests, looking at the matter in the round, I consider that the notional starting point of 6 years and 10 months would be appropriate in the present case.
As to the role of the defendant in Count 2, as rightly recognised by Ms Li in her mitigation submission, by the defendant’s own admission, the dangerous drugs were for sale to customers.
The defendant in this case was more than a mere courier or storekeeper of the drugs. He acted as a direct seller of the drugs to customers who came to the flat. The circumstances revealed that the defendant was keeping and running a divan and involved in the dissemination of the drugs to customers who came to the flat.
In Herry Jane Yusuph, Macrae VP made it very clear at paragraph 61 that a person directly involved in the selling of drugs possessed a higher level of culpability than the mere courier or storekeeper. And further at paragraph 64:
“actual or direct trafficking of dangerous drugs to others on the streets is more serious than where a defendant’s purpose cannot be proved or explained.”
Normally, it would call for an enhancement of the starting point in a sole trafficking charge, but since the defendant has already been charged with an additional offence of keeping a divan, that is Count 1, to which he had also pleaded guilty. For this reason alone, I will not enhance the starting point on Count 2 in order to avoid double penalty on the defendant’s role as a keeper of the divan.
I also have had regard to other aggravating features of this case.
First, four different kinds of drugs were involved in the present case, which is a factor recognised by the court as deserving of an enhanced sentence, even though separately packed and not in a prepared mixture, “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug”: see Chan Yuk Leong at paragraphs 23 to 25.
I remind myself that in determining an enhancement to a sentence by any aggravating factor, I should ensure the original starting point should be proportionate to the actual sentence, the degree of enhancement should be in reasonable proportion to the basic sentence and the total ultimate sentence should not be excessive. The notional starting point is enhanced by 3 months, that is a starting point of 7 years 1 month’s imprisonment.
Second, there is also the issue of the defendant’s criminal record, which includes four previous charges of possession of dangerous drugs. None of the previous convictions concern 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 21, the defendant’s previous convictions do not, in my view, justify an enhancement of his sentence for trafficking.
Next, I am required to have regard mitigating factors, 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 Yusuph at paragraph 44, where the Court of Appeal stressed the seriousness of drug trafficking and the problems it brings to families and communities.
Accordingly, the defendant’s personal circumstances do not constitute mitigating factors. The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to the full one-third discount. The sentence for Charge 2 is reduced to 56 months’ imprisonment (after rounding it down), that is 4 years and 8 months.
Totality
On the matter of consecutiveness of the sentence on the divan charge, Ms Li referred to HKSAR v Ng Ka Wing Kevin (CACC 563/1999) that although the court regarded the sentence of keeping a divan, and trafficking in dangerous drugs (that was being consumed in the same divan) can be ordered to run consecutively, applying the totality principle, part of the sentence can be served concurrently.
The court is required to consider the totality principle and the need to avoid reaching an excessive overall sentence. In Cheung Yiu Fai Alex at paragraph 12, the Court of Appeal suggested the sentence for divan keeping can be made wholly or partly consecutive to the sentence on the trafficking charge as the circumstances call for.
I note that the amount of drugs was not substantial, but there were about seven customers inside the flat. Having considered the facts of the present case, and in light of the totality principle, I order that 6 months of the sentence for Count 1 to run consecutively to the sentence for Count 2, making an overall sentence of 62 months’ imprisonment for the two charges.
The final step is to stand back and look at the overall sentence to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender.
I am of the view that the ultimate sentence of 62 months’ imprisonment for both charges is not out of proportion to the defendant’s overall criminality.
I sentence the defendant to a total term of 62 months’ imprisonment, that is, 5 years 2 months’ imprisonment.