COURT: The four accused in this matter are charged jointly with one count of manufacturing a dangerous drug, contrary to sections 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134. In gist, it is alleged that the four of them, on or about 10 November 2017, at a residential flat in Hung Shui Kiu, Yuen Long, New Territories, in Hong Kong, manufactured a dangerous drug, namely cocaine. A total of about 16.3 kilogrammes of cocaine (that worth up to HK$157 million) was seized inside the flat by the police.
They pleaded guilty to the charge at the committal proceedings before the magistrate and were on 2 July 2019 committed to the Court of First Instance for sentence. They came before me for that purpose initially on 26 November 2019 when, having heard mitigation advanced on behalf of the four accused, I adjourned the matter to 6 December 2019 for parties to provide me with further materials concerning certain issues that arose from the mitigation – namely, the alleged assistance offered by the various accused to the police.
Pursuant to the court’s direction, Mr Gary Leung, senior public prosecutor for the prosecution very helpfully compiled and produced a bundle of materials containing a chronology and the relevant documents, setting out the circumstances in which the various accused came to offer information to the police and provide their non-prejudicial statements respectively. Counsel for the 1st accused, Ms Patricia Alva (who replaced Mr Paul Stephenson, the previous counsel representing the 1st accused at the first hearing on 26 November), also helpfully filed a written submission of her further mitigation on behalf of the 1st accused.
Having heard further mitigation from each counsel on 6 December, I adjourned my delivery of sentence to today. Meanwhile, again at my direction, counsel for the prosecution and counsel for the 1st accused each provided the court with copies of further correspondences that took place between February and June 2019, which pertained to the offer of assistance by the 1st accused to the police. I shall deal with this aspect of mitigation in greater detail in the latter part of my reasons for sentence below.
Facts of the case
The facts as agreed by the accused are as follows: On 10 November 2017, equipped with a search warrant, a team of police officers conducted investigation at the subject premises at Flat F, 26th Floor, Block 7 of the residential estate called “Uptown” in Yuen Long. At around 4.52 am in early morning, the officers gained entry into the flat and found the 1st accused to 4th accused therein. There were four bedrooms in the flat. At the time, the 1st accused was sleeping on the sofa in the living room, while each of the 2nd to the 4th accused was sleeping inside one of the bedrooms separately. The police officers immediately put them under control.
The flat smelt of kerosene and upon a quick search, the police found several big water buckets containing liquid, a few bags of suspected dangerous drugs and tools for manufacturing dangerous drugs inside the master bedroom which was unoccupied by any of the accused at the time.
The police at once declared arrest of the accused for manufacturing dangerous drug. Upon being cautioned at the scene, the 1st accused remained silent whereas each of the 2nd to 4th accused made admissions as to their respective involvement. In gist, the 2nd accused told the police that it was a man nicknamed “Hin Siu” who asked him to come up to help the South American male to cook “Coke” at a reward of $3,000 for a “key”. The 3rd accused said he only rented the place and kept the other man under observation when they cooked; and that he did so because he owed someone money. The 4th accused admitted that he was asked by “Ah B” to go up to the flat to manufacture dangerous drugs, cocaine.
Forensic scientist was summonsed to the scene and upon inspection the following items, among others, were seized:
Inside the master bedroom
There were found three resealable transparent plastic bags and one red plastic bag, each containing suspected dangerous drug;
Buckets of different sizes - some with paraphernalia such as metal spoons, scoops and a stirrer; some with white powder; and some containing liquid and black soil-like mixture;
Two black plastic bags containing similar black soil-like mixture on the floor;
On the windowsill - there were five white bottles of liquid labelled “Refined Sulphuric Acid” and five other white bottles of liquid with Chinese word “安水” written on it;
An electronic scale; and
Four empty metal tanks.
Inside the master bedroom’s toilet
There were found two metal tanks next to the sink - one empty and one containing some liquid; and
Inside the bathtub - three plastic bags containing black soil-like mixture.
Inside the kitchen
There was found a cooking stove.
Inside the living room
There were found five carton boxes wrapped by transparent plastic sheet;
One carton box containing suspected dangerous drugs; and
Five plastic bags containing white powder (marked with “Sodium hydroxide”).
At the time of arrest, the 1st accused had on his person a mobile phone, US$951, 123.8 Sol (Peruvian currency). Each of the 2nd and 4th accused had only a small amount of cash, namely HK$70 and HK$50 on their persons, whereas the 3rd accused had with him two mobile phones, HK$3,800 cash, small amount of renminbi and two keys to the main door of the flat and the bedroom in which he was found sleeping.
The items seized from the flat were later sent to the Government Chemist for examination. In a nutshell, traces of cocaine were found on the electronic scale and a total of 16,319.76 grammes of cocaine or cocaine hydrochloride (in both solid and liquid form) were found in some of the plastic bags and containers seized. Other chemicals (such as ammonia, sodium carbonate, sodium hydroxide and substances not controlled by the Dangerous Drugs Ordinance) were found in a liquid or powder in the rest of the bags and containers seized.
The estimated street value of the drugs found was to the tune of around HK$105.9 million (as powder) or HK$157.4 million (as crack cocaine) at the time.
Upon further forensic investigation, the 1st accused’s DNA was found on two of the plastic bags containing cocaine seized from the master bedroom, whereas the 3rd accused’s DNA was found from the inside surface of a rubber glove seized also from the master bedroom. Further, the 1st accused’s palm prints were found inside the toilet of the master bedroom and a storeroom in the flat; while the 4th accused’s palm prints were found in the master bedroom.
Police further investigation revealed that it was the 3rd accused who took out the lease of the flat for a two-year term from 7 November 2017 to 6 November 2019. The 3rd accused visited the flat with the estate agent on 22 October 2017 and signed the tenancy agreement four days later on the 26th. He was given the keys to the flat on 28 October 2017, and on the same day he was captured by the CCTV to have moved items into the flat.
The CCTV footage also captured the 3rd accused leading the 1st accused (who was carrying a suitcase) into the lift on 3 November 2017. On 6 November 2017, the 2nd to the 4th accused were seen arriving at the lift lobby (each carrying various items with them) and then taking the lift up to the 26th floor where the flat was together. On the following two days, on 7th and 8th November, the three of them were seen waiting and taking delivery of goods at the entrance of Uptown or of Block 7, and bringing the goods to the 26th floor where the flat was located.
In their subsequent video-recorded interviews taken under caution, the 1st accused denied any knowledge and involvement in the matter, whereas the 2nd to the 4th accused made admissions as to their respective involvement.
In gist, the 1st accused claimed to have worked in a bakery in Peru and that he came to Hong Kong to travel. He said he had used a lot of money and his friend in Hong Kong, a Mr Wong, with whom he got acquainted in Peru, allowed him to stay in the flat. He then went up to Uptown and was picked up by someone to the flat.
The 2nd accused admitted to the police that he was recruited by a man named Hin Siu to assist someone to manufacture cocaine in the flat. He met up with Hin Siu on 5 November 2017 and was given a mobile phone. Someone later called that mobile phone and instructed him to meet up with the 3rd and the 4th accused the following day, on the 6th. He did so and was led to the flat where the 1st accused was already inside. On the following two days, on 7th and 8th November, the 2nd accused went together with the 3rd and the 4th accused to pick up goods and materials downstairs (including the plastic buckets and paper boxes) and moved them to the flat. On 9th November, he saw the 1st accused “making things” in the master bedroom from where irritating smell was emitted.
The 3rd accused admitted renting the subject flat on behalf of someone to whom he owed a debt of HK$200,000. With money provided by this creditor of his, he procured pillows and beddings for the flat and went to pick up the 1st accused (and later the 2nd and the 4th accused). He was asked to keep watch and look after everyone in the flat. He also helped pick up tools and materials for making the dangerous drugs. He said the 1st accused started “cooking” the cocaine first and he followed suit. He was the only person with the key to the flat.
The 4th accused told the police that he was recruited by his former secondary schoolmate “Ah B” to learn from the 1st accused how to make cocaine. He was promised a payment of $3,000 for three to four days. He described to the police how he met up with the 1st, 2nd and 3rd accused at the flat and helped picking up goods and tools for the 1st accused’s vetting, and how the 1st accused started making cocaine with the three of them watching and making notes.
According to the expert opinion of the forensic scientist who attended the scene, the items seized at the flat could be used to manufacture cocaine, and he described such manufacturing process comprising (i)the use of the plastic bags of cocaine hydrochloride as starting materials; (ii)neutralising them into cocaine base with the alkaline chemicals such as ammonia and sodium carbonate or hydroxide; (iii)then extracting and purifying a cocaine base using the kerosene as organic solvent; and (iv)finally evaporating the kerosene from the cocaine extract using the cooking stove in the kitchen, to produce the products in a form of solid containing cocaine base with 90 per cent purity found in the plastic bags.
By pleading guilty and admitting the Summary of Facts, all four accused now accept and admit that at the time of the offence they were acting together to manufacture the dangerous drugs, cocaine, as particularised in the charge.
Defendants’ background and mitigation
I now turn to the personal background of each of the accused and the mitigation advanced on their behalf by counsel.
1st accused
The 1st accused is now 40 years old. He was born in Peru and was educated to upper secondary level there. He is single living with his family in Peru, and has four children with three different women - a daughter aged 15, three sons aged 9, 5 and the youngest just 14 months. He claimed to have worked as a baker in Peru earning about US$450 per month, which was not enough to support the family and his children. He said he needed to buy school books and uniforms and the mother’s earning capacity was very limited as a laundry worker earning only US$14 per week occasionally. He has no criminal record in Hong Kong, nor any in Peru.
As to how he became involved in the offence, it was said in mitigation that the 1st accused came to know a man whilst playing football in Peru who offered to teach him how to manufacture dangerous drugs. He was promised a payment of US$10,000 for the job. As the 1st accused was at the time heavily in debt having borrowed from friends and taken out a loan from a financial house, the offer of such sum of money to clear all debt was too much to refuse for him.
It was submitted that the 1st accused had offered to assist the police to make further arrest by requesting the police to check the CCTV footage at the arrival hall of the airport the day he arrived in Hong Kong (namely, 18 October 2017) which, according to him, would show two individuals who are the masterminds of the syndicate that arranged him to come to Hong Kong. That offer of assistance was however, D1 claims, not taken up by the police proactively enough until some months had elapsed by which time, through no fault of his own, any CCTV records would have been erased or overwritten. It was said in these circumstances that the 1st accused should be given some reduction in sentence because it was the police’s delay (contenting themselves with the arrests already made), rather than the lack of information that the 1st accused was able to give, that may have prevented further arrests and prosecutions of the main culprits. [As mentioned, I shall return to this aspect of mitigation below.]
Reliance was also placed upon the 1st accused’s participation in an anti-drug programme run by Father John Wotherspoon as another mitigating factor. In a letter dated 3 November 2019 produced to the court, Father John stated that the 1st accused had greatly assisted him in his anti-drug campaign to stop drug mules coming to Hong Kong from Peru and other parts of South America by writing three letters which are posted on the Internet and in social media dedicated for such purpose. Father John attributed such efforts and publicity to a great reduction in the number of South American drug mules arrested in Hong Kong airport - from 30 in 2016 to just 5 in 2019. The court is thus urged to afford a 3-month discount to the 1st accused in accordance with the approach suggested by the Court of Appeal in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.
In a further mitigation submission, Ms Alva put forth a suggestion that there should not be any distinction between sentences of all four accused on account of their role. It was said that as the Summary of Facts disclosed, all the four accused were aware of what the others were going to do and that acting together, each of them played a vital role in the joint venture and thus each is liable to be sentenced on an equal footing with the others engaged in the same enterprise, there being no ringleader or mastermind. Reference was made to the judgment in Kilima at paragraph 164 where the Court of Appeal cited with approval a passage in a judgment of Stuart-Moore VP in SJ v Tso Tsz Kin [2004] 2 HKC 139 at paragraph 16, which Ms Alva said support her contention.
2nd accused
2nd accused is now 37 years old. He was educated to Form 2 and was brought up in a single-parent family by his mother. He has three half-brothers and sisters out of his mother’s three different relationships, with whom he maintains a very distant relation. The 2nd accused himself is married and has a five-year-old son who is now under protective custody with an aunt. His relationship with his son is very close. Photos were produced showing the intimate moments he had with his son. Also produced to the court are documents including a letter from a sushi shop owner and a few photograph printouts evidencing that the 2nd accused had participated in some charitable events in distributing food to the elderly since 12 May 2017.
The 2nd accused has five previous criminal convictions for various offences ranging from theft to managing vice establishment and being a triad member. The last conviction in 2010 was for doing an act preparatory to trafficking in dangerous drugs for which offence he was sentenced in October 2010 in the District Court to 3 years 4 months’ imprisonment.
After his release from jail in 2012, he went to Macau and worked as a sushi master for a while. He came back from Macau in 2013 to 14 and worked as a private driver to an employer earning around 15,000 per month. Sometime prior to the offence, he quitted the job and became a GoGoVan driver earning $700 per day. That is when he came to know Hin Siu whilst driving GoGoVan. From time to time, he related to Hin Siu that he was in financial difficulties as the van business was not good. Hin Siu was generous to lend him money on occasions. In early November, he was asked by Hin Siu to take up a job to look after a “kitchen” and was offered $3,000 a day. He understood that to mean something involving dangerous drugs. He was to pick up people and to offer help if needed. Upon his arrest, he frankly told the police that he was employed as early as on 5th November and admitted his role and involvement. He was arrested before he could complete the assignment and he was never paid any money for the job.
On behalf of the 2nd accused, it was said that he had rendered practical assistance to the authority by providing to the police an NPS on 19 February 2019 elaborating on the roles played by the others including the 1st accused who, the 2nd accused portrayed, was the one coming to Hong Kong to “teach” them how to manufacture cocaine. As it turned out, the 1st accused later pleaded guilty to the charge of manufacturing. By reference to authorities of HKSAR v Lo Sze Tung Stephanie, CACC 190/2017 and HKSAR v Montoya Mauricio, CACC 192/2018, the court is urged to give a discount of up to 45 per cent in sentence for that mitigation, given that the 2nd accused had given an NPS but was in the end not required to testify as the 1st accused had pleaded guilty.
In further mitigation, and in response to the point made by Ms Alva for the 1st accused that there should not be any distinction of sentence on account of the accused’s role, Ms Lee on behalf of the 2nd accused took issue with that proposition and submitted (by reference to HKSAR v Cheung Wai Kwong [1997] HKLRD 344) that the role played by the accused should be distinguished and that, in any event, the 2nd accused in the present case played a minimal role and should receive a lighter sentence. Ms Lee pointed out that no DNA or palm prints of the 2nd accused were found on the items seized and that the 1st accused could have still manufactured the drugs himself with or without the assistance of the 2nd to 4th accused. The 2nd accused’s role, it is said, was only akin to that of a courier in a trafficking case - namely that he was merely there to “watch the kitchen”.
3rd accused
The 3rd accused is now aged 30. He was educated to Form 5 and worked previously as a construction worker earning $26,000 a month. He is single and living with his family before his arrest. His mother is now aged 60 and he has two younger brothers and sisters. His father left the family 10 years ago with whom he had no longer any contact.
The 3rd accused has a criminal record for “unlawful sexual intercourse with a girl under 16 in 2007 when he was only 18 years old”, which offence is wholly unrelated to the type of offence in the present case.
Four letters of mitigation from the accused himself, his girlfriend, his mother and a Mr Wong, who is his close friend, were produced to the court. These letters provide some insight into the 3rd accused’s background and character, as well as his remorse for committing the present offence. In his own letter, the 3rd accused stated that during his incarceration he had found religion and had planned to pursue study in prison. He wished to be given a chance to turn over a new leaf and to become a useful man again after the inevitable lengthy period of imprisonment.
As regards the offence, it was said that the 3rd accused committed the offence because he was in debt owing some $200,000 to others. In a focused and realistic submission in mitigation, Mr Chau accepted on behalf of the 3rd accused that given the quantity of cocaine seized (which was over 16 kilogrammes) and the fact that manufacturing dangerous drugs is more serious than trafficking, a starting point for sentence of over 30 years is appropriate at the sentencer’s discretion with a few years added on top to take into account the nature of the offence (being manufacturing) as well as the extent of the drug manufacturing operation involved. The court is urged to treat the 3rd accused as somebody of clear record and to give him the full one-third discount, bearing in mind his plea as early as possible.
4th accused
The 4th accused is the youngest among the four accused. He is now aged 21, of clear record. His parents divorced since he was young and his elder brother lives with his father in mainland China, both of whom he rarely sees. The 4th accused was a “cross-border” child born in Hong Kong but lived in China. He moved to Hong Kong when he was around 12 years old and started studying Primary 4 in Hong Kong. He lived with his aunt and uncle in Hong Kong and his mother would come visit him from China.
He studied up to Form 3 and quit school. He then worked as a chef earning around 14,000 a month. But the restaurant later closed down and he has been unemployed since 2017. Further, he was owed two months’ wages.
He maintains a harmonious relationship with his mother, but unfortunately, his mother was diagnosed with breast cancer about three years ago. His mother and his two aunts were present in court on the last occasion to show support to him. Also produced to the court were letters from the mother and two of the 4th accused’s former teachers in his primary and secondary schools, all pleading for leniency for him.
As regards the current offence, it was explained that the 4th accused wanted to earn quick money to cover his mother’s medical expenses for the cancer treatment as well as to pay for daily expenses and to repay a loan that he had borrowed. He did not, in the end, receive any reward as he was arrested. It was said that he committed the offence out of foolishness and bad influence from his undesirable peers. He did not think about the consequences at the time, but now realises how serious the offence is.
His role in the offence was said to be very minor, merely to follow instructions of others. As he confessed in his video-recorded interview, he was asked to go up to the flat to learn how to manufacture dangerous drugs. The manufacturing process was simple and basic. At the time when the police entered the flat, the 4th accused was sleeping in a bedroom and there were no activities carrying on. Further, the CCTV footage only showed him helping others to carry the bags up to the flat. He was cooperative and confessed to the offence upon arrest.
Like the 2nd accused, it was said that the 4th accused should be given discount for assisting the police by giving two NPSs as well. Reference was made again to the Court of Appeal’s judgment in Stephanie Lo in which a discount in the range of 40 per cent to 50 per cent was suggested for assistance rendered to authorities, which did not involve testifying for the prosecution because the other offender pleaded guilty.
Sentencing principles – Manufacturing dangerous drug
The courts of Hong Kong have taken a very serious view of drug‑related offences and the policy underlying the approach to sentencing such offences is to impose a deterrent sentence. Amongst the different types of drug-related offences, manufacturing is regarded as the most serious of all, carrying a maximum sentence of life imprisonment and a fine of $5 million.
As the Court of Appeal held in Cheung Wai Kwong (above):
“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence.”
The Court of Appeal went on to say that:
“For the offence of manufacturing dangerous drug, the quantity of drugs found is of course relevant but this is not the only factor to be taken into consideration. In deciding the proper sentence for such offence, the court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused.”
These are the well-established factors relevant to assessing sentence for manufacturing.
In HKSAR v Kan Kong Fai [2009] 3 HKLRD 582, the Court of Appeal explained the first of those factors:
“The starting point for drug trafficking is mainly a reflection of the quantity of drugs involved. In drug manufacturing cases, the quantity of drugs seized may give an idea of the scale of the manufacturing operation but is not the sole or dominant consideration in determining the starting point.”
The court went on to observe on the facts of that case that:
“...although the police seized only 4.39 grammes of cocaine, the paraphernalia and raw materials in question could be used for producing a large quantity of “crack cocaine”. The facts of the case showed that the process of manufacturing “crack cocaine” was simple and fast.”
Much of what was said there is equally applicable to the present case.
In the case before us, a much more substantial quantity of cocaine - over 16 kilogrammes of cocaine - had indeed been produced and seized. Coupled with the paraphernalia and raw materials present in the flat, and bearing in mind the simple and fast process of manufacturing crack cocaine, the whole circumstances suggest that the manufacturing operation was a fairly large one (in any event not small at all) and had clearly the capacity of producing more drugs but for the police intervention.
Using that total quantity of cocaine, 16 kilogrammes, as a yardstick, and applying the tariffs for trafficking in that amount of drug, a starting point in the region of 30 to 31 years would be appropriate had the offence been one of trafficking. See HKSAR v Abdallah [2009] 2 HKLRD 437.
And as made clear by the authorities, given that it is a manufacturing offence which is much more serious, the starting point for sentence should be higher than that for trafficking.
Starting points adopted
Taking into account the circumstances of this case and all the relevant factors as set out in Cheung Wai Kwong, I would adopt the following starting point for sentence in respect of each accused, before any discount for their plea and other applicable mitigation.
For the 1st accused, I am satisfied that he assumed a more significant role than the others in the manufacturing operation being the one who came all the way to Hong Kong from Peru to be the “chemist” in charge of the process. An initial starting point of 34 years would be appropriate. As he came to Hong Kong for the specific purpose of committing the grave offence, it is a serious aggravating factor which, I judge, warrants an enhancement of 2 years in the circumstances of this case, having regard to the relevant level of enhancement as suggested in Abdallah as well as the nature, scope and duration of his drug manufacturing activities in Hong Kong. See HKSAR v Montoya Mauricio (above) at paragraphs 22 to 25. This would bring the starting point for his sentence to 36 years.
For the 2nd to the 4th accused, I accept that their roles in the offence were less than that of the 1st accused, but that as amongst the three of them, the 3rd accused played a slightly more significant role than the other two. The 3rd accused was the one who rented the flat and prepared it for the arrival of the others. He was tasked to keep watch of the others and he was the one to have the keys to the premises. As regards the 2nd and the 4th accused, the facts revealed that they arrived at the flat at a later time and were merely following instructions to help out with the manufacturing process.
In the circumstances, I would adopt a starting point of 33 years for the 2nd and the 4th accused, and of 33½ years for the 3rd accused.
Assistance to police
1st accused
For the 1st accused, as mentioned before, the 1st accused claims that he had offered useful information to the police which could have led to identification of masterminds and possibly further arrests and prosecutions, but for the alleged delay on the part of the police in pursuing the matter proactively. This is disputed by the prosecution and in light of the principles set out in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516 at paragraph 100 of that judgment, I ask the parties to supply me with all relevant information on the issue so that the court may properly assess the 1st accused’s claim and determine, on the basis of complete and accurate information that can be appropriately relied on, whether the information or assistance was “of practical use” or not.
Through the helpful assistance of Mr Leung for the prosecution, the court is apprised of the chronology of events pertaining to the 1st accused’s request to provide information and the actions taken by the police in response. The following is what had happened:
The 1st accused was arrested on 10 November 2017, and in his video-recorded interview he denied any knowledge or involvement in that offence.
On 21 December 2017, the 1st accused sent a letter to the police from Lai Chi Kok Reception Centre requesting the police to pay him a visit with a Spanish interpreter as he said he could offer “some information about the case and the people involved here in Hong Kong and Peru”. That was the first time he made such an offer of information more than a month after the offence, and more than two months after his arrival in Hong Kong, as he claimed he arrived in Hong Kong on 18 October 2017.
Five months later on 21 May 2018, the police visited the 1st accused with an interpreter during which he could not provide any information apart from simply saying that his Peruvian friend arranged him to manufacture dangerous drugs in Hong Kong. According to the investigation report prepared by the police, the 1st accused could not provide any details of the person, and the police thus took the view that the information could not be traced.
Meanwhile the police investigation continued and the legal advice was obtained, with charges being laid against the 1st accused for trafficking initially, and against the 2nd to 4th accused for manufacturing on the first return date before the magistrate on 26 November 2018.
On 19 February 2019, the police took NPS from the 2nd and the 4th accused upon their request.
On 21 February 2019, then counsel for the 1st accused, Mr Stephenson, wrote to the Department of Justice indicating that the 1st accused would plead guilty to the charge of trafficking and requesting for a copy of the statement that, according to what he was told by the 1st accused at conference, the 1st accused had provided to the police when the police visited him at Lai Chi Kok Reception Centre upon his request to offer assistance. According to Mr Leung for the prosecution, there was never any such statement provided by the 1st accused at the time.
A second NPS was taken from the 4th accused on 3 April 2019.
On 4 April 2019, Mr Leung wrote back to Mr Stephenson in reply to his letter of 21 February informing him that the charge against the 1st accused will be amended to manufacturing and that the police did visit the 1st accused upon his request earlier on but that no statement was, indeed, taken from him. The investigation report for the 21 May 2018 visit was attached to that letter showing that the 1st accused was unable to provide any concrete information.
Then two months later, on 5 June 2019, the 1st accused’s solicitors wrote to the prosecution requesting for the first time “a copy of the CCTV footage that the investigating officer concerned may have retrieved from the arrival hall of the Hong Kong International Airport on 18 October 2018 between 4.30 pm to 6 pm when the 1st accused had arrived in Hong Kong and was in the waiting area somewhere close to McDonald shop”. It was stated that “the said CCTV footage recording will assist them in obtaining further instructions in the matter”.
According to the chronology prepared by Mr Leung, the police then in June 2019 enquired with the Hong Kong International Airport about the CCTV footage and was told that such footage could no longer be retrieved given the passage of time. This fact was communicated to the solicitors by Mr Leung by way of a letter dated 6 June 2019.
On 20 June 2019, Mr Stephenson wrote again to Mr Leung, indicating that the 1st accused will plead guilty to manufacturing dangerous drug and further stating that “with respect to their earlier request for CCTV at the airport, D1 informs them that this shows other persons involved in the drug operation. D1 also informs them that the police had told him that in order to seek further arrests, the police would show D1 photographs of other suspects from which he could try to identify other persons involved. This was not followed through by the police.” It was said that the 1st accused offered to give such further assistance and provide NPS but the police need to take steps to facilitate this.
Mr Leung replied immediately on the same day reiterating the lack of concrete information provided by the 1st accused during the 21 May 2018 visit. This led to a second letter from Mr Stephenson of 20 June 2019 suggesting that the 1st accused was under the impression that the police would provide photographs of other persons who may be of interest to their investigation and that according to what he was told by the 1st accused, the owner of the flat had a role in the illicit drug trade and knew what was going on. He added that the 1st accused would assist the police in this further enquiry if required.
On 27 June 2019, Mr Leung wrote back to Mr Stephenson refuting the suggestion that the police had refused to investigate the 1st accused’s claim. It was stated that any “impression” or “suspicion” harboured by the 1st accused would not advance police investigation, and that despite the 1st accused’s alleged willingness to assist, he could not provide any concrete information when the police visited him.
The matter was thus left as it was and the 1st accused, together with the other three accused, pleaded guilty to the manufacturing charge at committal on 2 July 2019.
It can be seen from the above chronology that there was a proper basis to support the prosecution’s stance that the 1st accused’s claim of having offered information that could potentially be of practical use had not been made out. The first time that the alleged CCTV footage taken on 18 October 2018 at the airport arrival hall was mentioned was on 5 June 2019 and the fact that such footage might show the other suspects involved was only made clear in the letter of 20 June 2019 - by which time almost 20 months had elapsed.
Coupled with what was recorded in the police investigation report for the 21 May 2018 visit, which I have no reason to doubt, I reject the submission made on behalf of the 1st accused that he had provided information that could potentially assist the police. No discount should be given to him on such ground.
2nd and 4th accused
On the other hand, in respect of the 2nd and the 4th accused, as accepted by the prosecution, I agree that the assistance they provided to the police in the form of the NPSs was indeed of practical use and that they should be entitled to a discount for that. In accordance with the principles laid down in Z v HKSAR (2007) 10 HKCFAR 183 and the approach set out in Stephanie Lo and Mauricio, I am prepared to afford them each a 45 per cent discount to reflect such mitigating factor which is inclusive of the one-third discount for their early plea.
1st accused’s participation in Father Wotherspoon’s programme
In respect of the 1st accused, there is an additional mitigating factor that has to be considered. It is his participation in Father Wotherspoon’s anti-drug campaign. I accept what Father Wotherspoon has stated in his letter concerning the assistance rendered by the 1st accused in the programme. I am prepared to exercise my discretion and give him the 3 months’ discount for such participation in the initiative. See Kilima at paragraph 91.
Sentences imposed
1st accused
I would adopt a starting point of 36 years after enhancement. Allowing the full one-third discount for the early guilty plea, the sentence is reduced to 24 years. And deducting 3 months from that for Father Wotherspoon’s initiative, the final sentence would be 23 years and 9 months.
There are no other grounds to reduce his sentence as it is trite that in such serious drug cases, financial pressure should account for no weight as a mitigating factor, lest potential offenders would be encouraged to succumb to it. So the 1st accused is sentenced to 23 years and 9 months’ imprisonment.
2nd and 4th accused
I adopt a starting point of 33 years. Allowing 45 per cent discount, the sentence is brought down to 218 months which is 18 years and 2 months’ imprisonment. Again there are no other mitigating factors warranting any further discount. So they are sentenced each to 18 years and 2 months’ imprisonment.
3rd accused
I adopt a starting point of 33½ years. That is 402 months, and allowing full one-third discount for the early guilty plea, the sentence is brought down to 268 months which is 22 years 4 months’ imprisonment. Again there being no other mitigating factors warranting any further discount, I sentence him to 22 years 4 months’ imprisonment.