HKSAR v. Li Po Loi

DCCC 664/2024

[2025] HKDC 939

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 664 OF 2024

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REASONS FOR SENTENCE

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1.D pleaded guilty to one charge of “keeping a divan”, contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 and one charge of “trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the same Ordinance.

Facts

2.Around 8:07 am on 9 January 2024, a police officer posing as a visitor was admitted by D into the flat on 1/F, Po Lun Building, 177A Portland Street, Mong Kok (the Flat). After revealing his police identity, this officer and his colleagues on the strength of a search warrant raided the Flat, which was about 400 square feet with one living room, one bedroom and one bathroom.

3.There was a table for use by the keeper (Keeper’s Table)  and 3 other tables in the living room, where 4 persons were sitting.

4.On the Keeper’s Table the police found and seized:

(a)  A transparent plastic box containing the following dangerous drugs:

(i)  16 plastic bags containing a total of 2.94 g of solid containing 2.65 g of cocaine;

(ii)  1 plastic bag containing 0.20 g of a crystalline solid containing 0.20 g of methamphetamine hydrochloride (ice);

(iii)  7 packets containing a total of 0.85 g of a mixture containing 0.66 g of heroin hydrochloride (heroin);

(iv)  3 packets containing a total of 0.73 g of a mixture containing 0.56 g of heroin;

(v)  6 packets containing a total of 2.94 g of a mixture containing 1.95 g of heroin;

(vi)  2 packets containing a total of 1.90 g of a mixture containing 1.57 g of heroin; and

(vii)  2 foilpacks containing a total of 3 tablets containing 0.03 g of midazolam;

(b)  A price list, a bag containing cash of HK$270, a glass bottle inserted with a glass tube and a straw, a glass bottle inserted with a straw, an electronic scale, a calculator, a plastic spoon, a clamp, a clip, a pair of scissors, 2 plastic containers, 3 lighters, 6 plastic straws, pieces of aluminium foil and some plastic sheets and resealable plastic bags.

5.On two of the other 3 tables, the police found and seized 2 lighters and 4 pieces of aluminium foil.

6.D told the officers that he was the person-in-charge of the Flat.

7.At 8:45 am, D was arrested for “keeping a divan” and said under caution that he was responsible for letting customers into the Flat and selling dangerous drugs to them. When further arrested for “trafficking in dangerous drugs”, D said under caution that the dangerous drugs were for sale to customers.

8.In a video-recorded interview conducted on the same day, D admitted under caution that:

- A male called “Ah Kit” introduced him to work in the Flat selling cocaine, ice, heroin and midazolam for a reward of HK$1,000 per shift of 24 hours;

- The dangerous drugs seized by the police were cocaine, ice, heroin and midazolam;

- The 2 glass bottles were for consumption of cocaine and ice respectively;

- The pair of scissors, plastic spoon, clamp and clip were for separation of dangerous drugs;

- The lighters, aluminium foils, plastic straws, plastic sheets and resealable plastic bags were for consumption of dangerous drugs;

- The calculator was for calculation of prices of dangerous drugs;

- The electronic scale was for checking the weight of dangerous drugs by customers;

- The price list sets out the prices of cocaine, ice and heroin according to their respective sizes.

9.At the material time, the street value of the dangerous drugs was HK$9,094.

Defendant’s Background

10.The defendant is 46 years old. According to the defence, he is married with no children, and he lives with his wife and mother. At the time of the offences he was unemployed. He had worked as a cleaning worker before earning $10,000 a month.

11.He has 5 previous convictions, only one of which was drug-related, which is a conviction for possession of dangerous drugs in 1996. He has no convictions for either of the present offences.

Mitigation

12.For the 1^st charge of divan-keeping, defence counsel Mr Andrew Leung submitted that the Court of Appeal in HKSAR v Lam Lai Chu Patsy CACC 56/2003 observed that starting points ranging from 12 months to 24 months had been considered appropriate for this offence. From the scale of the divan in our case, the starting point for this offence should come near the lower end of the range of 12 months to 24 months.

13.For the 2^nd charge of trafficking in dangerous drugs, Mr Leung started off by referring to the six-stage approach promulgated by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 when sentencing a defendant for trafficking in dangerous drugs. He then applied those 6 steps in assessing the quantum of sentence for this charge.

14.In the first step of identifying the relevant guidelines, Mr Leung submitted that since heroin and cocaine share the same tariff, it would be fair to treat both drugs as one kind of drug. Their aggregate quantity is 7.39 g. According to the new guidelines for trafficking in heroin and cocaine in HKSAR v Huang Ruifang [2025] HKCA 234, the relevant tariff band is 2 to 5 years’ imprisonment for up to 10 g. As for ice, Mr Leung submitted that 0.2 g of this narcotic would correlate to a starting point of less than 3 years’ imprisonment as the relevant tariff band for up to 10 g of ice is 3 to 7 years’ imprisonment.

15.Then Mr Leung submitted that from a purely mathematical approach, 7.39 g of heroin and cocaine would attract a starting point of 50.6 months’ imprisonment whereas 0.2 g of ice would attract a starting point of 7.2 months. He further submitted that the small quantity of midazolam would have no practical effect on the overall sentence and he asked the court to ignore it. In support of this submission relating to midazolam, the case of HKSAR v Ko Wai Fong Janet HCCC 381/2024 was referred to.

16.It was submitted that the combined approach would be a fair and suitable way of assessing the quantum of sentence for trafficking in the mixture of drugs in our case. The aggregate amount of heroin, cocaine and ice is 7.59 g.

17.Applying the absurdity test, trafficking in 7.59 g of ice would attract a starting point of 72.4 months. Had the entire lot been heroin and cocaine, the sentence would be 51.3 months.

18.Applying the conversion test and using cocaine and heroin as the base drug, it was submitted that trafficking in 0.2 g of ice would attract a sentence of about 7.2 months, which would correspond to the sentence for trafficking in 0.3 g of cocaine. Adding this 0.3 g to the aggregate amount of cocaine and heroin of 7.39 g would result in 7.69 g of heroin and cocaine. Trafficking in this amount of heroin and cocaine would result in a sentence of 51.68 months.

19.Applying the ratio test, the result would be 51.6 months, which is obtained from adding the results of 0.2/ 7.59 x 72.4 months and 7.39/ 7.59 x 51.3 months.

20.In the second step of assessing D’s role and culpability, Mr Leung submitted that D was the keeper of a 400 square feet divan with 4 people in it. This divan is smaller in scale than the one in the case of Ko Wai Fong Janet, which was 700 square feet with 36 males inside and was described by the judge as being “of a moderate scale”.

21.For the third step, Mr Leung submitted that a starting point of 51 months ought to suffice given D’s role in the management of the divan.

22.For the fourth step of consideration of aggravating factors, it was submitted that the court could increase the starting point by virtue of the fact that there were 4 different kinds of drugs. Mr Leung asked me not to aggravate the sentence by reason of D’s previous convictions.

23.For the fifth step, D’s timely pleas of guilty would entitle him to a one-third discount in sentence.

24.For the sixth step, Mr Leung urged the court to make such an order that would result in most of the sentence for the 1^st charge running concurrently with the sentence for the 2^nd charge.

Sentencing considerations

1^st Charge

25.On the 1^st charge of keeping a divan, Mr Leung correctly drew the court’s attention to the case of Lam Lai Chu Patsy where the Court of Appeal pointed out that sentences ranging from 12 to 24 months’ imprisonment had been considered as appropriate starting points for this offence.

26.Given the size of the Flat, its layout and furnishing, the amount of drugs and paraphernalia available for consumption and the number of people inside at the time of the police raid, I consider 15 months’ imprisonment to be an appropriate starting point for this charge.

27.His plea of guilty, which is the only mitigating factor, and for which he will receive a one-third discount, will result in the final sentence of 10 months for this charge.

2^nd Charge

28.I will adhere to the six-step approach mentioned in Herry Jane Yusuph in assessing the sentence for the 2^nd charge, which involves trafficking in a mixture of drugs.

29.I accept Mr Leung’s submission to ignore the presence of the very small quantity of midazolam in the sentencing process as it would have a negligible effect on the overall sentence. The Court of Appeal in HKSAR v Cheung Wai Man [2018] HKCA 731 approved of such an approach.[1]

30.I will thus be sentencing D effectively for trafficking in 2.65 g of cocaine, 4.74 g of heroin and 0.20 g of ice. As cocaine and heroin share the same sentencing tariff, I accept the submission to treat them as one drug and use their aggregate quantity of 7.39 g in the assessment of sentence. The Court of Appeal in the recent case of Huang Ruifang handed out new guidelines for trafficking in “heroin and cocaine” and in “ice”.

31.As an assessment of D’s role and culpability, I would adopt the following description by Acting CJHC Macrae when he was dealing with an appeal against sentence by an applicant who had been convicted of the same two offences as the ones in our case in HKSAR v Luo Zhiheng [2025] HKCA 281:

“18. This was actually a very serious matter indeed. In many ways, it was the trafficker in full flight, selling a variety of dangerous drugs, thus catering to a wider section of the illicit drug market, and providing the equipment and premises to consume them.”

32.Trafficking in 7.39 g of heroin and cocaine would come within the sentencing band “Up to 10 grammes of narcotic: 2 to 5 years’ imprisonment”. Trafficking in 0.2 g of ice would come within the band “Up to 10 grammes of narcotic: 3 to 7 years’ imprisonment”.

33.Considered individually and applying the guidelines arithmetically, trafficking in 0.2 g of ice would result in a sentence of 37 months, whereas trafficking in 7.39 g of heroin and cocaine would result in a sentence of 51 months.

34.In this connection, I would like to mention that Mr Leung informed the court that his calculation of the sentence of 7.2 months for trafficking in 0.2 g of ice was the result of his misreading of the guidelines.

35.I agree with counsel that the combined approach would yield a fairer result, but I note that instead of using the most serious drug (which, in this case, is ice)  as the base drug, counsel used the drug with the largest quantity ie heroin and cocaine, for that purpose.

36.However, the Court of Appeal in HKSAR v Cheung Wai Man [2018] HKCA 731 [39] said: “The other is the ‘combined approach’ where the applicable sentence for the more or most serious drug (in terms of potency)  is first calculated, and then adjusted upwards to take into account significant quantities of the other (less serious)  drugs.” I would follow this judgment and use ice, which is more potent than heroin and cocaine, as the base drug.

37.According to the absurdity test, which is “shorthand for the approach set out by this court (Ma CJHC and Stock JA)  in Yip Wai Yin at para 9(2), where the court compared the proposed sentence with a sentence where it is assumed that the entire quantity seized contained only the most serious (ie The most potent)  drug”[2], using ice as the basis of this test and applying the tariff arithmetically, trafficking in 7.59 g of ice would yield a starting point of 6 years. This is the result that counts for the absurdity test.

38.According to the conversion test:

(a)  conversion to ice – trafficking in 7.39 g of heroin and cocaine would lead to a sentence of 51 months, which corresponds to the sentence for trafficking in 3.2 g of ice. Adding this 3.2 g to the 0.2 g of ice in our case would yield an aggregate amount of 3.4 g of ice. Trafficking in this quantity of ice would lead to a sentence of 52 months;

(b)  conversion to heroin and cocaine – trafficking in 0.2 g of ice would lead to a sentence of 37 months, which corresponds to the sentence for trafficking in 3.5 g of heroin and cocaine. Adding this 3.5 g to the 7.39 g of heroin and cocaine in our case would yield an aggregate amount of 10.89 g of heroin and cocaine. Trafficking in this quantity of heroin and cocaine would lead to a sentence of 61 months.

39.According to the ratio test, the result is 52 months. This is the sum of the following calculations: 0.2/ 7.59 x 72 months and 7.39/ 7.59 x 51 months.

40.Given the substantial quantity of heroin and cocaine compared to the quantity of ice, I would adjust the 37 months for trafficking in ice upwards by 15 months, bringing the starting point for trafficking in this cocktail of drugs to 52 months’ imprisonment.

41.In considering the existence of aggravating factors, I bear in mind that “the guidelines in various drug trafficking cases are devised for those at the bottom of the trafficking hierarchy, namely, couriers and shopkeepers”[3]. D was a seller of dangerous drugs. This role places him in a higher hierarchy than the couriers and shopkeepers. His sentence should be at a higher point within the tariffs than that for the courier and shopkeeper.

42.And he did the selling in his capacity as the keeper of a divan. Macrae JA in HKSAR v Lau Siu Fung CACC 56/2017 said:

“16. The keeper of a divan, to which others could come, buy and consume dangerous drugs, is a matter that clearly aggravates the offence of trafficking, for the obvious reason that the keeper in such circumstances is not only providing the drugs in question, he is also providing the means, facilities and opportunity for their consumption. To repeat a well-worn phrase, the applicant in the present case was providing ‘a one-stop shop’.”

43.Dealing in a variety of different drugs is another aggravating factor which, in the circumstances of our case, can be subsumed under the aggravation for selling dangerous drugs in a divan.

44.For these aggravating features, I would increase the starting point by 5 months, bringing the eventual starting point to 57 months.

45.D’s guilty plea is the only mitigating factor. After giving him the full one-third discount, the final sentence for the 2^nd charge is 38 months’ imprisonment.

Totality

46.The two offences are distinct and separate offences, albeit committed in the same place and at the same time. Their sentences should be made to run consecutively to each other, subject to the principle of totality[4].

47.I consider a total sentence of 43 months after plea to be fair and just. To achieve this total sentence, I order that 5 months of the sentence for the 1^st charge are to run consecutively to the sentence for the 2^nd charge.