HKSAR v. Lo Kam Ming, Christopher

DCCC 266/2023

[2024] HKDC 77

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 266 OF 2023

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REASONS FOR SENTENCE

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Charges

1.The D pleaded guilty to 3 charges:-

Charge 1: Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134:

(i)  13.98 grammes of a mixture containing 11.08 grammes of heroin hydrochloride;

(ii)  11.3 grammes of a solid containing 9.63 grammes of cocaine; and

(iii)  5 tablets containing 0.06 gramme of midazolam.

Charge 2: Keeping a divan, contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134;

Charge 3: Knowingly allowing a prohibited group gathering to take place, contrary to sections 6(1)(c)  and 6(2)  of the Prevention and Control of Disease (Prohibition on Gathering)  Regulation, Cap 599G.

Summary of Facts

2.On 5 October 2022 at around 1742 hours, police officers executed a search warrant at Flat C, 3/F, Ng Po House, 103-109 Sai Yeung Choi Street South, Mong Kok, Kowloon (“Flat”).

3.When a person (later known as AP14)  rang the doorbell of the Flat, D opened the door. The police officers immediately entered the Flat and found D standing next to the entrance. D revealed that he was the keeper of the Flat.

4.There were 13 persons sitting around the tables in the living room. The Flat is around 400 square feet with a living room, two bedrooms and a toilet. There are a keeper’s table and 4 tables in the living room.

5.On the Keeper’s Table’s, dangerous drugs in Charge 1 were found. Other items including the following:-

(1)  A black electronic scale;

(2)  A black box containing:-

(a)  Many pieces of plastic papers;

(b)  Multiple pieces of aluminum foil;

(c)  Multiple re-sealable plastic bags; and

(d)  A black calculator (“Calculator”).

(3)  Five unused syringes (“Syringes”); and

(4)  A grey box containing cash of HK$200.

6.On Table 3, 4 and 5, there were burnt aluminum foils, fresh aluminum foil and cigarette lighters.

7.On the wall next to Table 3, there were 2 price list.

8.The average estimated street value of all the drugs seized is around HK$29,925.

Arrest and caution

9.D was arrested for the offences of “Keeping a Divan” and “Knowingly allowing the taking place of a prohibited group gathering”. Under caution, D stated he was responsible for opening the door for customers and selling drugs to them for consumption (我係依度負責人，有客人禁鐘，我就負責開門比啲客人入嚟，賣啲毒品比佢地).

10.There were HK$500 and a mobile phone found from D’s left trouser pocket.

11.In a video-recorded interview, the D admitted under caution, that:-

(1)  D was introduced by a man called “肥強” to work as a keeper of the Flat.

(2)  D earned daily wage of HK$1,600, his remuneration was based on his selling of the dangerous drugs. D worked there for 12 hours or sometimes 16 hours per day.

Criminal Record

12.Between 1987 to 2013, the D has a 9 previous court appearances with 21 convictions. Only one drug related offence in 2003. His last convictions in 2013 was an offence of possession of offensive weapon.

Mitigation

13.The D is now aged 63, widowed. His son is now 38 with 2 children. He was a drug addict before the arrest.

14.The D committed the present offence due to financial pressure as he was unemployed at the material time. He is now remorseful.

15.His last conviction was 10 years ago and he wishes to be released from prison earlier to spend time with his family.

Sentence

Charge 1 – trafficking in dangerous drugs

16.It is well settled that R v Lau Tak Ming [1990] 2 HKLR 370 is the sentencing guideline for trafficking in heroin, while AG v Rojas [1994] 1 HKC 342 stated that heroin tariffs are also applicable to trafficking in cocaine.

17.In the present case, the narcotic content of heroin is 11.08 grammes and cocaine is 9.63 grammes. The sentencing guideline in Lau Tak Ming is still applicable. I am not taking into account of the 5 tables of midazolam as it has no bearing in the sentence of Charge 1.

18.The total quantity of the 2 types of drugs is 20.71 grammes. It falls into the sentencing bracket of 5 to 8 years. The starting point is therefore 5 years 10 months, given 1/3 discount, it comes down to 3 years 10 months 20 days.

Charge 2 – keeping a divan

19.According to s 35(2)  of Cap 134, the maximum sentence is 15 years of imprisonment.

20.In the present case, the keeping period was one day. The premises had an area of about 400 square feet with 4 tables and 14 chairs for the customers.

21.When the police entered the flat, there were 13 customers sitting around the tables in the living room. The dangerous drugs in questions were found at the Keeper’s table. There were 2 price lists on the wall next to Table 3.

22.The D admitted that he was paid $1,600 per day to keep the divan, to sell dangerous drugs to the customers, to provide a place and paraphernalia for them to consume dangerous drugs.

23.The Defence referred to a case of HKSAR v Lam Lai Chu Patsy CACC 56/2003 that the customary sentence ranged from 12 to 24 months.

24.With all these information in mind, I take 18 months as the starting point, reduce to 12 months after 1/3 discount.

Charge 3 – group gathering

25.The D committed the offence during the pandemic period when the government imposed measures to combat the covid epidemic. This measure was for the general health and the society as a whole.

26.To inhale/smoke dangerous drugs in a confine area with 13 persons inside a living room without proper ventilation could increase the chances of spreading covid.

27.Both parties provided me with 2 separate cases:-

(1)  香港特別行政區 訴 梁進奎 HCMA 32/2021

(2)  香港特別行政區 訴 劉鑫 HCMA 412/2021

28.These two magistracy appeal cases only tell me that there is no sentencing guideline for this type of offence. It all depends very much on the facts of the case. The dates of offences of these two appeals were committed in August and September of 2020.

29.While in the present case, the dates of the offence was in October 2022. The restriction of the number of persons to be gathered was 4 persons at the material time. There were altogether 14 persons. (13 customers and one D.)  That means there were 10 persons more than the statutory allowance.

30.On the other hand, I can see from the photos that there were no windows in the living rooms. Windows were all on the bedroom side, but they were all closed.

31.The Defence said that there was an air purifier in the living room. I have a look of the machine from the photos. I cannot be sure if that was really an air purifier, it definitely looked like a worn and old machine to me.

32.The Prosecution cannot tell whether it was plugged in or not. Nonetheless, from its appearance, it was not a medical grade or a high quality machine to serve the purpose of ventilation.

33.It remains that the quality of ventilation in the living room was poor when there were 13 customers gathered together with the D.

34.I take 4½ months as the starting point, reduce to 3 months after 1/3 discount.

Sentences for each charge after 1/3 discount

35.Charge 1:  3 years 10 months 20 days

Charge 2: 12 months

Charge 3: 3 months

Totality

36.The Defence ask the sentence of Charge 3 to run concurrently with other charges. I disagree, as it cannot reflect the gravity of the offences.

37.I order 6 months for Charge 2 and 1 month 10 days for Charge 3 to run consecutively to Charge 1. It becomes 4 years and 5 months 30 days. I round up to 4 years 6 months.

Order

38.I order the D to serve a period of 4 years and 6 months’ imprisonment.