DCCC266/2023 HKSAR v. LO KAM MING, CHRISTOPHER - LawHero
DCCC266/2023
District CourtDeputy District Judge M Chow17/1/2024[2024] HKDC 77
criminal
DCCC266/2023
A A
B B
DCCC 266/2023
C [2024] HKDC 77 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 266 OF 2023
F F
G ---------------------------- G
HKSAR
H H
v
I LO KAM MING, CHRISTOPHER I
----------------------------
J J
K Before: Deputy District Judge M Chow in Court K
Date: 18 January 2024
L L
Present: Ms Chung Natalie W S, Public Prosecutor, for HKSAR/
M Director of Public Prosecutions M
Ms Ho Vanessa H Y, instructed by Yu Sun Yau Mak &
N N
Lawyers, assigned by the Director of Legal Aid for the
O Defendant O
Offences: [1] Trafficking in dangerous drugs（販運危險藥物）
P P
[2] Keeping a divan（經營煙窟）
Q Q
[3] Knowingly allowing a prohibited group gathering to take
R place（明知而容許受禁羣組聚集進行） R
S S
------------------------------------------------
T REASONS FOR SENTENCE T
U
------------------------------------------------ U
V V
-2-
A A
B B
C Charges C
D D
1. The D pleaded guilty to 3 charges:-
E E
Charge 1: Trafficking in dangerous drugs, contrary to
F F
section 4(1)(a) and (3) of the Dangerous Drugs
G Ordinance, Cap 134: G
H H
(i) 13.98 grammes of a mixture containing
I 11.08 grammes of heroin hydrochloride; I
J J
(ii) 11.3 grammes of a solid containing 9.63
K grammes of cocaine; and K
L L
(iii) 5 tablets containing 0.06 gramme of
M midazolam. M
N N
Charge 2: Keeping a divan, contrary to section 35(1)(a) and
O (2) of the Dangerous Drugs Ordinance, Cap 134; O
P P
Charge 3: Knowingly allowing a prohibited group
Q Q
gathering to take place, contrary to sections
R
6(1)(c) and 6(2) of the Prevention and Control of R
Disease (Prohibition on Gathering) Regulation,
S S
Cap 599G.
T T
U U
V V
-3-
A A
B B
Summary of Facts
C C
2. On 5 October 2022 at around 1742 hours, police officers
D D
executed a search warrant at Flat C, 3/F, Ng Po House, 103-109 Sai Yeung
E Choi Street South, Mong Kok, Kowloon (“Flat”). E
F F
3. When a person (later known as AP14) rang the doorbell of the
G Flat, D opened the door. The police officers immediately entered the Flat G
and found D standing next to the entrance. D revealed that he was the
H H
keeper of the Flat.
I I
4. There were 13 persons sitting around the tables in the living
J J
room. The Flat is around 400 square feet with a living room, two bedrooms
K and a toilet. There are a keeper’s table and 4 tables in the living room. K
L L
5. On the Keeper’s Table’s, dangerous drugs in Charge 1 were
M found. Other items including the following:- M
N N
(1) A black electronic scale;
O O
(2) A black box containing:-
P P
Q Q
(a) Many pieces of plastic papers;
R
(b) Multiple pieces of aluminum foil; R
(c) Multiple re-sealable plastic bags; and
S S
(d) A black calculator (“Calculator”).
T T
(3) Five unused syringes (“Syringes”); and
U U
V V
-4-
A A
B B
C (4) A grey box containing cash of HK$200. C
D D
6. On Table 3, 4 and 5, there were burnt aluminum foils, fresh
E aluminum foil and cigarette lighters. E
F F
7. On the wall next to Table 3, there were 2 price list.
G G
8. The average estimated street value of all the drugs seized is
H H
around HK$29,925.
I I
Arrest and caution
J J
K 9. D was arrested for the offences of “Keeping a Divan” and K
“Knowingly allowing the taking place of a prohibited group gathering”.
L L
Under caution, D stated he was responsible for opening the door for
M customers and selling drugs to them for consumption (我係依度負責人， M
N
有客人禁鐘，我就負責開門比啲客人入嚟，賣啲毒品比佢地). N
O O
10. There were HK$500 and a mobile phone found from D’s left
P trouser pocket. P
Q Q
11. In a video-recorded interview, the D admitted under caution,
R that:- R
S S
(1) D was introduced by a man called “肥強” to work as a
T keeper of the Flat. T
U U
V V
-5-
A A
B B
(2) D earned daily wage of HK$1,600, his remuneration
C was based on his selling of the dangerous drugs. D C
worked there for 12 hours or sometimes 16 hours per
D D
day.
E E
Criminal Record
F F
G 12. Between 1987 to 2013, the D has a 9 previous court G
appearances with 21 convictions. Only one drug related offence in 2003.
H H
His last convictions in 2013 was an offence of possession of offensive
I weapon. I
J J
Mitigation
K K
13. The D is now aged 63, widowed. His son is now 38 with 2
L L
children. He was a drug addict before the arrest.
M M
14. The D committed the present offence due to financial pressure
N N
as he was unemployed at the material time. He is now remorseful.
O O
15. His last conviction was 10 years ago and he wishes to be
P P
released from prison earlier to spend time with his family.
Q Q
R R
S S
T T
U U
V V
-6-
A A
B B
Sentence
C C
Charge 1 – trafficking in dangerous drugs
D D
E 16. It is well settled that R v Lau Tak Ming [1990] 2 HKLR 370 E
is the sentencing guideline for trafficking in heroin, while AG v Rojas
F F
[1994] 1 HKC 342 stated that heroin tariffs are also applicable to
G trafficking in cocaine. G
H H
17. In the present case, the narcotic content of heroin is 11.08
I grammes and cocaine is 9.63 grammes. The sentencing guideline in Lau I
Tak Ming is still applicable. I am not taking into account of the 5 tables of
J J
midazolam as it has no bearing in the sentence of Charge 1.
K K
18. The total quantity of the 2 types of drugs is 20.71 grammes. It
L L
falls into the sentencing bracket of 5 to 8 years. The starting point is
M therefore 5 years 10 months, given 1/3 discount, it comes down to 3 years M
10 months 20 days.
N N
O Charge 2 – keeping a divan O
P P
19. According to s 35(2) of Cap 134, the maximum sentence is 15
Q Q
years of imprisonment.
R R
20. In the present case, the keeping period was one day. The
S S
premises had an area of about 400 square feet with 4 tables and 14 chairs
T
for the customers. T
U U
V V
-7-
A A
B B
21. When the police entered the flat, there were 13 customers
C sitting around the tables in the living room. The dangerous drugs in C
questions were found at the Keeper’s table. There were 2 price lists on the
D D
wall next to Table 3.
E E
22. The D admitted that he was paid $1,600 per day to keep the
F F
divan, to sell dangerous drugs to the customers, to provide a place and
G paraphernalia for them to consume dangerous drugs. G
H H
23. The Defence referred to a case of HKSAR v Lam Lai Chu
I Patsy CACC 56/2003 that the customary sentence ranged from 12 to 24 I
months.
J J
K 24. With all these information in mind, I take 18 months as the K
starting point, reduce to 12 months after 1/3 discount.
L L
M Charge 3 – group gathering M
N N
25. The D committed the offence during the pandemic period
O when the government imposed measures to combat the covid epidemic. O
This measure was for the general health and the society as a whole.
P P
Q Q
26. To inhale/smoke dangerous drugs in a confine area with 13
R
persons inside a living room without proper ventilation could increase the R
chances of spreading covid.
S S
T T
U U
V V
-8-
A A
B B
27. Both parties provided me with 2 separate cases:-
C C
(1) 香港特別行政區 訴 梁進奎 HCMA 32/2021
D D
(2) 香港特別行政區 訴 劉鑫 HCMA 412/2021
E E
28. These two magistracy appeal cases only tell me that there is
F F
no sentencing guideline for this type of offence. It all depends very much
G on the facts of the case. The dates of offences of these two appeals were G
committed in August and September of 2020.
H H
I I
29. While in the present case, the dates of the offence was in
J
October 2022. The restriction of the number of persons to be gathered was J
4 persons at the material time. There were altogether 14 persons. (13
K K
customers and one D.) That means there were 10 persons more than the
L statutory allowance. L
M M
30. On the other hand, I can see from the photos that there were
N no windows in the living rooms. Windows were all on the bedroom side, N
but they were all closed.
O O
P 31. The Defence said that there was an air purifier in the living P
room. I have a look of the machine from the photos. I cannot be sure if that
Q Q
was really an air purifier, it definitely looked like a worn and old machine
R to me. R
S S
32. The Prosecution cannot tell whether it was plugged in or not.
T Nonetheless, from its appearance, it was not a medical grade or a high T
quality machine to serve the purpose of ventilation.
U U
V V
-9-
A A
B B
C 33. It remains that the quality of ventilation in the living room was C
poor when there were 13 customers gathered together with the D.
D D
E 34. I take 4½ months as the starting point, reduce to 3 months E
after 1/3 discount.
F F
G Sentences for each charge after 1/3 discount G
H H
35. Charge 1: 3 years 10 months 20 days
I Charge 2: 12 months I
Charge 3: 3 months
J J
K Totality K
L L
36. The Defence ask the sentence of Charge 3 to run concurrently
M with other charges. I disagree, as it cannot reflect the gravity of the M
offences.
N N
O 37. I order 6 months for Charge 2 and 1 month 10 days for Charge O
3 to run consecutively to Charge 1. It becomes 4 years and 5 months 30
P P
days. I round up to 4 years 6 months.
Q Q
R R
S S
T T
U U
V V
- 10 -
A A
B B
Order
C C
38. I order the D to serve a period of 4 years and 6 months’
D D
imprisonment.
E E
( M Chow )
F Deputy District Judge F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 266/2023
C [2024] HKDC 77 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 266 OF 2023
F F
G ---------------------------- G
HKSAR
H H
v
I LO KAM MING, CHRISTOPHER I
----------------------------
J J
K Before: Deputy District Judge M Chow in Court K
Date: 18 January 2024
L L
Present: Ms Chung Natalie W S, Public Prosecutor, for HKSAR/
M Director of Public Prosecutions M
Ms Ho Vanessa H Y, instructed by Yu Sun Yau Mak &
N N
Lawyers, assigned by the Director of Legal Aid for the
O Defendant O
Offences: [1] Trafficking in dangerous drugs（販運危險藥物）
P P
[2] Keeping a divan（經營煙窟）
Q Q
[3] Knowingly allowing a prohibited group gathering to take
R place（明知而容許受禁羣組聚集進行） R
S S
------------------------------------------------
T REASONS FOR SENTENCE T
U
------------------------------------------------ U
V V
-2-
A A
B B
C Charges C
D D
1. The D pleaded guilty to 3 charges:-
E E
Charge 1: Trafficking in dangerous drugs, contrary to
F F
section 4(1)(a) and (3) of the Dangerous Drugs
G Ordinance, Cap 134: G
H H
(i) 13.98 grammes of a mixture containing
I 11.08 grammes of heroin hydrochloride; I
J J
(ii) 11.3 grammes of a solid containing 9.63
K grammes of cocaine; and K
L L
(iii) 5 tablets containing 0.06 gramme of
M midazolam. M
N N
Charge 2: Keeping a divan, contrary to section 35(1)(a) and
O (2) of the Dangerous Drugs Ordinance, Cap 134; O
P P
Charge 3: Knowingly allowing a prohibited group
Q Q
gathering to take place, contrary to sections
R
6(1)(c) and 6(2) of the Prevention and Control of R
Disease (Prohibition on Gathering) Regulation,
S S
Cap 599G.
T T
U U
V V
-3-
A A
B B
Summary of Facts
C C
2. On 5 October 2022 at around 1742 hours, police officers
D D
executed a search warrant at Flat C, 3/F, Ng Po House, 103-109 Sai Yeung
E Choi Street South, Mong Kok, Kowloon (“Flat”). E
F F
3. When a person (later known as AP14) rang the doorbell of the
G Flat, D opened the door. The police officers immediately entered the Flat G
and found D standing next to the entrance. D revealed that he was the
H H
keeper of the Flat.
I I
4. There were 13 persons sitting around the tables in the living
J J
room. The Flat is around 400 square feet with a living room, two bedrooms
K and a toilet. There are a keeper’s table and 4 tables in the living room. K
L L
5. On the Keeper’s Table’s, dangerous drugs in Charge 1 were
M found. Other items including the following:- M
N N
(1) A black electronic scale;
O O
(2) A black box containing:-
P P
Q Q
(a) Many pieces of plastic papers;
R
(b) Multiple pieces of aluminum foil; R
(c) Multiple re-sealable plastic bags; and
S S
(d) A black calculator (“Calculator”).
T T
(3) Five unused syringes (“Syringes”); and
U U
V V
-4-
A A
B B
C (4) A grey box containing cash of HK$200. C
D D
6. On Table 3, 4 and 5, there were burnt aluminum foils, fresh
E aluminum foil and cigarette lighters. E
F F
7. On the wall next to Table 3, there were 2 price list.
G G
8. The average estimated street value of all the drugs seized is
H H
around HK$29,925.
I I
Arrest and caution
J J
K 9. D was arrested for the offences of “Keeping a Divan” and K
“Knowingly allowing the taking place of a prohibited group gathering”.
L L
Under caution, D stated he was responsible for opening the door for
M customers and selling drugs to them for consumption (我係依度負責人， M
N
有客人禁鐘，我就負責開門比啲客人入嚟，賣啲毒品比佢地). N
O O
10. There were HK$500 and a mobile phone found from D’s left
P trouser pocket. P
Q Q
11. In a video-recorded interview, the D admitted under caution,
R that:- R
S S
(1) D was introduced by a man called “肥強” to work as a
T keeper of the Flat. T
U U
V V
-5-
A A
B B
(2) D earned daily wage of HK$1,600, his remuneration
C was based on his selling of the dangerous drugs. D C
worked there for 12 hours or sometimes 16 hours per
D D
day.
E E
Criminal Record
F F
G 12. Between 1987 to 2013, the D has a 9 previous court G
appearances with 21 convictions. Only one drug related offence in 2003.
H H
His last convictions in 2013 was an offence of possession of offensive
I weapon. I
J J
Mitigation
K K
13. The D is now aged 63, widowed. His son is now 38 with 2
L L
children. He was a drug addict before the arrest.
M M
14. The D committed the present offence due to financial pressure
N N
as he was unemployed at the material time. He is now remorseful.
O O
15. His last conviction was 10 years ago and he wishes to be
P P
released from prison earlier to spend time with his family.
Q Q
R R
S S
T T
U U
V V
-6-
A A
B B
Sentence
C C
Charge 1 – trafficking in dangerous drugs
D D
E 16. It is well settled that R v Lau Tak Ming [1990] 2 HKLR 370 E
is the sentencing guideline for trafficking in heroin, while AG v Rojas
F F
[1994] 1 HKC 342 stated that heroin tariffs are also applicable to
G trafficking in cocaine. G
H H
17. In the present case, the narcotic content of heroin is 11.08
I grammes and cocaine is 9.63 grammes. The sentencing guideline in Lau I
Tak Ming is still applicable. I am not taking into account of the 5 tables of
J J
midazolam as it has no bearing in the sentence of Charge 1.
K K
18. The total quantity of the 2 types of drugs is 20.71 grammes. It
L L
falls into the sentencing bracket of 5 to 8 years. The starting point is
M therefore 5 years 10 months, given 1/3 discount, it comes down to 3 years M
10 months 20 days.
N N
O Charge 2 – keeping a divan O
P P
19. According to s 35(2) of Cap 134, the maximum sentence is 15
Q Q
years of imprisonment.
R R
20. In the present case, the keeping period was one day. The
S S
premises had an area of about 400 square feet with 4 tables and 14 chairs
T
for the customers. T
U U
V V
-7-
A A
B B
21. When the police entered the flat, there were 13 customers
C sitting around the tables in the living room. The dangerous drugs in C
questions were found at the Keeper’s table. There were 2 price lists on the
D D
wall next to Table 3.
E E
22. The D admitted that he was paid $1,600 per day to keep the
F F
divan, to sell dangerous drugs to the customers, to provide a place and
G paraphernalia for them to consume dangerous drugs. G
H H
23. The Defence referred to a case of HKSAR v Lam Lai Chu
I Patsy CACC 56/2003 that the customary sentence ranged from 12 to 24 I
months.
J J
K 24. With all these information in mind, I take 18 months as the K
starting point, reduce to 12 months after 1/3 discount.
L L
M Charge 3 – group gathering M
N N
25. The D committed the offence during the pandemic period
O when the government imposed measures to combat the covid epidemic. O
This measure was for the general health and the society as a whole.
P P
Q Q
26. To inhale/smoke dangerous drugs in a confine area with 13
R
persons inside a living room without proper ventilation could increase the R
chances of spreading covid.
S S
T T
U U
V V
-8-
A A
B B
27. Both parties provided me with 2 separate cases:-
C C
(1) 香港特別行政區 訴 梁進奎 HCMA 32/2021
D D
(2) 香港特別行政區 訴 劉鑫 HCMA 412/2021
E E
28. These two magistracy appeal cases only tell me that there is
F F
no sentencing guideline for this type of offence. It all depends very much
G on the facts of the case. The dates of offences of these two appeals were G
committed in August and September of 2020.
H H
I I
29. While in the present case, the dates of the offence was in
J
October 2022. The restriction of the number of persons to be gathered was J
4 persons at the material time. There were altogether 14 persons. (13
K K
customers and one D.) That means there were 10 persons more than the
L statutory allowance. L
M M
30. On the other hand, I can see from the photos that there were
N no windows in the living rooms. Windows were all on the bedroom side, N
but they were all closed.
O O
P 31. The Defence said that there was an air purifier in the living P
room. I have a look of the machine from the photos. I cannot be sure if that
Q Q
was really an air purifier, it definitely looked like a worn and old machine
R to me. R
S S
32. The Prosecution cannot tell whether it was plugged in or not.
T Nonetheless, from its appearance, it was not a medical grade or a high T
quality machine to serve the purpose of ventilation.
U U
V V
-9-
A A
B B
C 33. It remains that the quality of ventilation in the living room was C
poor when there were 13 customers gathered together with the D.
D D
E 34. I take 4½ months as the starting point, reduce to 3 months E
after 1/3 discount.
F F
G Sentences for each charge after 1/3 discount G
H H
35. Charge 1: 3 years 10 months 20 days
I Charge 2: 12 months I
Charge 3: 3 months
J J
K Totality K
L L
36. The Defence ask the sentence of Charge 3 to run concurrently
M with other charges. I disagree, as it cannot reflect the gravity of the M
offences.
N N
O 37. I order 6 months for Charge 2 and 1 month 10 days for Charge O
3 to run consecutively to Charge 1. It becomes 4 years and 5 months 30
P P
days. I round up to 4 years 6 months.
Q Q
R R
S S
T T
U U
V V
- 10 -
A A
B B
Order
C C
38. I order the D to serve a period of 4 years and 6 months’
D D
imprisonment.
E E
( M Chow )
F Deputy District Judge F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V