HKSAR v. Cheung Chi Chun and Another

HCCC 227/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 227 OF 2017

-----------------

-----------------

---------------------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------------------

COURT:

The 1st defendant, Mr Cheung Chi-chun, pleaded guilty to one charge of manufacturing a dangerous drug (Charge 1) and one charge of trafficking in a dangerous drug (Charge 2).

The 2nd defendant, Ms Lam Hil-lan Helena, also pleaded guilty to the 2nd charge of trafficking in a dangerous drug.

The Particulars of Offence in respect of Charge 1 provide that on 11 May 2016, at Room 805, 8th Floor, Solo, No 83 Bedford Road, Tai Kok Tsui, Kowloon, in Hong Kong, the 1st defendant manufactured a dangerous drug, namely cocaine.

The Particulars of Offence in respect of Charge 2 provide that on 11 May 2016, at Room 805, 8th Floor, Solo, No 83 Bedford Road, Tai Kok Tsui, Kowloon, in Hong Kong, the 1st and 2nd defendants unlawfully trafficked in a dangerous drug, namely 504 grammes of a powder containing 389 grammes of cocaine hydrochloride.

The Summary of Facts admitted by the defendants provide that on 11 May 2016, police officers laid ambush on 8th Floor, Solo, No 83 Bedford Road, Tai Kok Tsui. At around 7.27 am on the same day, they saw the 1st defendant (a 37-year old male at the time) on the 8th Floor, outside Room 805 (the “Flat”). He was holding a key in his hand and was about to open the door. The 1st defendant was intercepted.

Police officers knocked on the door of the Flat. The 2nd defendant (a 34-year old female) opened the door from inside.

On the floor under the washing basin in the toilet, there was a handbag which contained a yellow paper box containing a drawstring bag. Inside this drawstring bag, there was a transparent re-sealable plastic bag containing 504 grammes of a powder containing 389 grammes of cocaine hydrochloride.

A search of the other areas of the Flat produced the following items. From the table of the kitchen:

(a) Six boxes containing a total of 354 grammes of a powder containing sodium bicarbonate.

(b) One electronic scale containing traces of a powder which did not contain any dangerous drug.

(c) One spoon and one chopping board containing traces of a powder containing cocaine.

(d) A beaker and one dropper containing traces of a powder containing cocaine.

(e) One spoon and one glass container containing 444 grammes of a powder containing sodium bicarbonate.

(f) One pot and one sieve containing 0.02 gramme of a powder containing cocaine.

(g) One induction cooker containing traces of a powder which did not contain any dangerous drug.

On a desk in the living room and on the floor near this desk:

(h) One beaker and one pair of forceps containing a total of 0.07 grammes of a powder containing cocaine.

(i) Two spoons containing traces of a powder which did not contain any dangerous drug.

(j) Two electronic scales containing traces of a powder which did not contain any dangerous drug.

(k) A pair of scissors.

(l) One electronic scale containing traces of a powder containing cocaine.

(m) One electronic dehydrator containing traces of a powder which did not contain any dangerous drug.

The 1st and 2nd defendants were arrested for manufacturing dangerous drugs. Under caution, both defendants said “there is nothing I want to say”.

The 1st defendant in his video-recorded interview said under caution, inter alia, that:

(a) The Flat was rented by him and he was living in the Flat.

(b) He became acquainted with a person called “Tai B”.

(c) In the small hours on the offence date, he received a call from Tai B who instructed the 1st defendant to collect drugs for him. The 1st defendant agreed as he owed Tai B a debt.

(d) The 1st defendant drove to Tsim Sha Tsui as instructed. A while later, a foreigner called the 1st defendant and told him to go to Cameron Road. The 1st defendant did as told. After he arrived, a foreigner approached the 1st defendant’s car and knocked on the door of his door. The 1st defendant lowered his car window. The foreigner passed a plastic bag to the 1st defendant.

(e) Inside this plastic bag, there was a drawstring bag containing a bag of cocaine.

(f) The 1st defendant returned to the Flat with the cocaine which he had collected. His girlfriend, the 2nd defendant, went to the flat to visit him. The 2nd defendant was very tired and fell asleep.

(g) The 1st defendant placed the cocaine which he had collected into the 2nd defendant’s handbag without her knowledge before the 1st defendant left the flat at around 6.45 am to find his friend.

(h) His girlfriend, the 2nd defendant, would rarely go to the flat and had her own place to live.

(i) The paraphernalia found inside the flat were for packaging drugs.

The 2nd defendant in her video-recorded interview said under caution, inter alia, that:

(a) The 1st defendant was her boyfriend. The 2nd defendant was living in China and would stay with her family in Sha Tin when she came to Hong Kong.

(b) The flat was rented by the 1st defendant and he was living in the flat. The 2nd defendant had a key to the flat.

(c) At around 4 am on the offence date, the 1st defendant went to her home in Sha Tin. The 1st defendant then drove her to Bedford Road and asked the 2nd defendant to help him to make a phone call. The 2nd defendant did as told. The call was made to a male foreigner who spoke in English. The foreigner arranged to meet the 2nd defendant at Exit B2 of Yau Ma Tei MTR station.

(d) The 1st defendant then drove the 2nd defendant to the vicinity of Exit B2 of the MTR station. The 2nd defendant alighted from the 1st defendant’s car. She received an incoming call from the foreigner again. A foreigner with a dark complexion then approached the 2nd defendant and gave her a bag which contained items including a yellow paper box and cocaine.

(e) After she collected the plastic bag, the 1st defendant signalled her to get into the car.

(f) The 1st and 2nd defendants then went to the Flat with the drugs collected from the foreigner.

(g) The handbag which the police found in the toilet belong to the 2nd defendant. The yellow paper box seized from the handbag was the yellow paper box which she had collected from the foreigner.

(h) After they returned to the flat, the 1st defendant took out items such as a measuring cup, a bowl and some containers. The 2nd defendant saw the 1st defendant putting some powder and baking soda together and pouring water into it. The 2nd defendant guessed the 1st defendant was making cocaine.

Doctor Chan Tai-wai David, the Government Forensic Scientist who attended the Flat and examined the seized items was of the opinion that the chemicals and paraphernalia seized from the Flat were items commonly associated with the process of making cocaine base (“crack”) and such process could have taken place at the Flat.

Cocaine, also referred to as cocaine base, is the main psycho active substance extracted from coca leaves. Cocaine base can be made from cocaine hydrochloride through a conversion process to make it suitable for smoking. Typically, cocaine hydrochloride and baking soda (sodium bicarbonate), in a suitable proportion, are mixed in a container. Water is added to dissolve the mixture. The container with the dissolved mixture is then heated to speed up the chemical reaction between the baking soda and the cocaine hydrochloride. Subsequently, cocaine base is produced and precipitated from the solution. The cocaine base so produced is in the form of lumps, commonly called ‘crack’. Cocaine hydrochloride is usually taken by snorting or by injection while cocaine base or ‘crack’ is smoked by glass pipes.

Cocaine hydrochloride and sodium bicarbonate were found at the Flat. They are the starting materials for the preparation of cocaine base.

Paraphernalia found at the Flat as set out above were found to contain traces of cocaine. Such finding was consistent with them having been used in handling cocaine.

According to the representative of the landlord of the Flat, the 1st defendant had been renting the Flat since 14 April 2016.

The estimated retail value of the cocaine hydrochloride seized in this case (ie, the dangerous drugs mentioned above) was HK$534,744 at the time of seizure.

By way of personal background, the 1st defendant is now 38 years of age. He was born in China in 1979. He has received education up to Secondary Form 1 level in Hong Kong. At the time of his arrest, he was unemployed. He had previously worked as a decoration worker and an air-conditioning technician. He is single and he was living at the location of the offence at the time of his arrest.

The 1st defendant has 11 previous convictions, 6 of which were for possession of dangerous drugs. The 1st defendant also has one previous conviction for trafficking in dangerous drugs. That was recorded in 1999, for which the 1st defendant was sentenced to 5 years’ imprisonment.

Mr Laurence Poots, on behalf of the 1st defendant, urged upon me to give him the full one-third discount. Mr Poots further urged me to give a slight discount for the fact that some of the drugs, the subject matter of Charge 2, was for his own consumption, although he is not able to specify the precise quantity. As I have indicated to Mr Poots, I am not prepared to accept this line of mitigation without hearing any evidence from the 1st defendant. Indeed, an urine test conducted on the 1st defendant at the Lai Chi Kok Reception Centre on 14 May 2016 showed that he was “cocaine negative”.

A mitigation letter from the 1st defendant’s mother has been submitted to the court. The content of which has been duly noted.

By way of personal background, the 2nd defendant is 35 years of age. She was born in Hong Kong in 1982. She has received education up to Secondary Form 5 level. At the time of her arrest, she was unemployed. She had previously worked as a sales person for two years. She has a 10 year old son.

Mr David Boyton, on behalf of the 2nd defendant, correctly submitted that the greatest mitigation in this case is her guilty plea. Mitigation letters from respectively the 2nd defendant and the father of her son have been submitted to the court and their contents have been duly noted. However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant will offer little mitigation in serious cases of drug trafficking.

I shall deal firstly with the 1st defendant.

Regarding the offence of “manufacturing a dangerous drug”, the Court of Appeal in The Queen v Cheung Wai Kwong [1997] HKLRD 344 held, inter alia, as follows:

(1) Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process was clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence. In deciding the proper sentence for the offence of manufacturing dangerous drugs, the quantity of drugs was but one factor to be taken into consideration. Other factors including the scale of the operation, the capacity of equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played the accused.

(2) Since Wong Chun Ping v R [1984] HKLR 274, decided in 1984, suggesting a minimum of 10 years’ imprisonment for manufacturing dangerous drugs, the court had become much tougher with drug offenders. The sentence of 10 years’ imprisonment when the old guidelines were adopted would easily have been over 20 years now. The sentence of 21 years imposed by the judge was neither wrong in principle, nor manifestly excessive. It was appropriate for the offence in the circumstances of that case.

On the facts of the present case, I am of no doubt that the Flat was a significant manufacturing station with quite a large scale of operation. Charge 2 of this case involved some 504 grammes of a powder containing 389 grammes of cocaine hydrochloride. From the Admitted Facts, it is clear that this and the significant quantity of sodium bicarbonate found at the Flat were “the starting materials for the preparation of cocaine base”.

In all the circumstances of this case, I would adopt a starting point of 21 years’ imprisonment on Charge 1.

After giving a one-third discount to the 1st defendant for his guilty plea, the 1st defendant is accordingly sentenced to 14 years’ imprisonment on Charge 1.

As to Charge 2, in this jurisdiction, sentencing for trafficking in cocaine is aligned to the guideline for trafficking in heroin contained in R v Lau Tak Ming [1990] 2 HKLR 370. In the present case, the quantity of narcotic involved in Charge 2 is 389 grammes of cocaine hydrochloride. According to the Lau Tak Ming case, for trafficking in between 200 and 400 grammes of heroin, the proper sentence to be imposed after trial should be 12 to 15 years’ imprisonment.

In my view, following the guidelines in the Lau Tak Ming case and based on the quantity of the narcotic involved, the proper starting point for sentence on Charge 2 should be 14 years and 10 months’ imprisonment.

After giving a one-third discount to the 1st defendant for his guilty plea, the 1st defendant is accordingly sentenced to 9 years and 10 months’ imprisonment on Charge 2.

I then have to give anxious consideration to the totality principle in deciding the total sentence that the 1st defendant has to serve.

In this regard, I bear in mind that the two offences were committed at the same time and place. I also bear in mind that the quantity of narcotic involved in the 2nd charge has been expressly taken into account when deciding on the starting point for the 1st charge.

In these circumstances, I consider it appropriate to order the sentence on Charge 2 to run wholly concurrently with the sentence on Charge 1.

Thus, the total sentence which the 1st defendant has to serve is 14 years’ imprisonment.

I turn now to the sentence of the 2nd defendant.

In respect of the 2nd defendant, I would adopt the same starting point of 14 years and 10 months’ imprisonment on Charge 2. I see no basis for adopting a lower starting point for the role she played.

The 2nd defendant has given assistance to the prosecution over and above her guilty plea.

In particular, the prosecution accepts that on 19 May 2017, the 2nd defendant’s two non-prejudicial statements against the 1st defendant were served on the 1st defendant’s legal representatives, and on 10 July 2017, both the 1st and 2nd defendants pleaded guilty at the Eastern Magistrates’ Court.

In these circumstances, I agree with Mr Boyton that the 2nd defendant should be given a 40% discount from the starting point [see: for example, HKSAR v Ng Shek Yu, CACC 178/2000 (Judgment of the Court of Appeal dated 1 March 2001); HKSAR v Herrera Jhorman [2013] 1 HKC 119, paragraph 21].

Accordingly, the 2nd defendant is sentenced to 8 years and 10 months’ imprisonment on Charge 2.