HKSAR v. Ling Si Nga

DCCC 736/2019

[2020] HKDC 886

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 736 OF 2019

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REASONS FOR SENTENCE

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1.The defendant is convicted of a charge of doing an act preparatory to manufacturing a dangerous drug, contrary to section 6(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap 134, one charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, and a charge of possession of poison including in Part I of the Poisons List, contrary to sections 23(1) and 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138, on her own plea and agreement to the Summary of Facts.

Facts

2.On 22 October 2018, the police officers attended the defendant’s residence as per the charge sheet for investigation.  They located the defendant there as well as the followings found at the scene:-

(1)  1 segment of plastic straw containing methamphetamine hydrochloride, 1 metal dish containing pseudoephedrine, some chemicals and apparatus, and 1 ice flask with 4 green coloured ball pattern, all in the living room;

(2)  1 plastic bag containing phenacetin, 1 funnel in green colour with filter paper containing phenacetin, 1 heater, 1 small bottle in brown colour named Mesotartaric acid 98% containing 4.63 grammes of a solid containing tartaric acid, 1 glass tube containing traces of methamphetamine, 1 set of Buchner funnel containing methamphetamine, all in the kitchen;

(3)  1 hand-held blender, 1 glass funnel, 1 quadruple-neck round bottom flask, 1 plastic bottle containing a dish containing powder containing phenacetin, both found in the TV shelf in a bedroom, 13 bottles of different labels, 12 glass tools of irregular shapes, 1 sieve containing traces of methamphetamine, 1 electric blender, all inside the wardrobe in a bedroom;

(4)  1 pair of gloves on the floor in a bedroom;

(5)  1 conical flask containing liquid containing phenacetin, 3 bottles containing traces of methamphetamine, 1 ice flask with a pink straw, all found in the washbasin in a toilet;

(6)  4 bottles containing substances which were not controlled under the Dangerous Drugs Ordinance and Part I of the Poisons List of the Pharmacy and Poisons Ordinance was found on the floor in a toilet; and

(7)  a triangular cylinder.

3.The defendant was arrested and cautioned.  Under caution, she admitted that:-

Charge 1 – Doing an act preparatory to manufacturing a dangerous drug

(i)  She intended to manufacture ‘Ice’ (methamphetamine) and she had been doing so since 2017. She learnt how to make or manufacture ‘Ice’ online. So she followed the instructions listed on the website and bought all the required chemicals as well as raw materials on her own at a chemical plant.

(ii)  She did so because she wanted to make money since her husband gave her little money and she was unemployed. She did research and practice how to make ‘Ice’. However, she failed to do so.

(iii)  She never sold her “products” to others because she only managed to produce some semi-final products and the ‘Ice’ she produced was for her own consumption.

(iv)  At the time of arrest, the seized ‘Ice’ was still under production and was merely semi-final products. She usually made ‘Ice’ in the kitchen or toilet of the offence location.

(v)  The items seized at her residence were for manufacturing ‘Ice’.

Charge 2 - Possession of a dangerous drug

(vi)  She admitted that the seized methamphetamine at the scene was for her own consumption.

4.Government Chemist, Mr Kwok, examined the seized exhibits which included:-

(i)  0.81 gramme of a crystalline solid containing 0.81 gramme of methamphetamine hydrochloride;

(ii)  0.38 gramme of a solid containing 0.02 gramme of methamphetamine;

(iii)  1.02 grammes of a solid containing traces of methamphetamine and 110 millilitres of a liquid containing traces of methamphetamine;

(iv)  129 grammes of a crystalline solid containing pseudoephedrine;

(v)  1,267.3 grammes of a powder containing phenacetin;

(iv)  1.86 grammes of a solid containing phenacetin; and

(vii)  132 millilitres of a liquid containing phenacetin.

5.The former three substances were all controlled under the Dangerous Drugs Ordinance, First Schedule Part I and for the fourth until the seventh item were all controlled under Part I of the Poisons List of the Pharmacy and Poisons Ordinance.

6.Mr Kwok also compiled a report which explained the ingredients, procedures, and the chemical reaction of making ‘Ice’.

7.After examining the scene and the seized exhibits, he formed the follow opinion:-

(i)  Pseudoephedrine found at the scene could be used as a starting material for ‘Ice’ manufacturing;

(ii)  Traces of methamphetamine were detected on an apparatus found at the scene, and that indicated the handling of methamphetamine could have been taking place within the premises;

(iii)  The flat bottom flask and set of Buchner funnel contained traces of methamphetamine. These findings suggested that a chemical extraction process and filtering process involving methamphetamine could have been taken place;

(iv)  Chemical reagents commonly used to adjust the acidity of the solution so as to facilitate chemical conversion process were also found at the scene;

(v)  Some laboratory glassware, a set of Buchner funnel and a pH paper were found at the scene. They could be materials used to carry out simple chemical synthesis; and

(vi)  As a result of the scene inspection and subsequent laboratory findings as listed above, the above chemicals and paraphernalia seized from the scene were items commonly associated with the process with ‘Ice’ manufacturing. However, two critical chemicals, namely hydrogen iodide and red phosphorous, which are reagents used to react with pseudoephedrine to form methamphetamine were not found at the scene. Therefore, no conclusive comment could be given on whether or not the manufacturing process of methamphetamine hydrochloride from pseudoephedrine had taken place in the premises.

Criminal record

8.The defendant had no similar conviction in the past but just one conviction for criminal damage.

Mitigation

9.The defendant is now aged 53. 

10.She came to Hong Kong at the age of 12 after completing Primary 1 level education in the Mainland. 

11.She now lives with her mother aged over 90 and she has a daughter who lives with her separated husband. 

12.Her daughter is suffering from Major Depressive Disorder. 

13.The defendant worked as a part-time daily cleaning worker before arrest. She received $400 each day for work.  Her separated husband give her $2,000 per month and she has to support herself and her mother.  She therefore faces heavy financial difficulty and that was the reason for her committing the present offence. 

14.She is now deeply remorseful.

15.In mitigation, defence counsel has produced to this court for consideration mitigation letters from the defendant and her daughter. 

16.Defence counsel referred this court also to the case of HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 where the court held that:-

“As far as the offence of drug manufacturing is concerned, an appropriate minimum starting point is 6 years’ imprisonment irrespective of the quantity of drugs seized, in order to reflect the gravity of the offence.”

17.He also invited this court to consider adopting the stance of the Court of Appeal in the case of HKSAR v Pei Yuk Kam, CACC 213/2010, where the Court, although commented that doing an act preparatory to or for the purposes of manufacturing a dangerous drug is an activity so integral to the manufacturing process that it must be viewed with similar seriousness, did not interfere with a starting point of 4 years and 6 months’ imprisonment after trial after taking in consideration of the intended manufacturing operation was small-scale and unsophisticated, the quantity of chemicals were limited and a number of necessary chemicals were still absent.

18.Defence counsel submitted that the Government Forensic Chemist, Mr Kwok, observed in his statement that two critical chemicals which are reagents used to react with pseudoephedrine to form methamphetamine were not found at the scene and therefore no conclusive comment could be given on whether or not manufacturing process of methamphetamine hydrochloride from pseudoephedrine had taken place. 

19.He submitted that the circumstances of this case is very much similar to that in Pei Yuk Kam and that the intended manufacturing operation was small-scale and unsophisticated, the quantity of chemicals were limited and the number of necessary chemicals were still missing.  Moreover, he submitted that the drugs seized according to the defendant was for her own consumption and that she has not sold it to anyone.  He submitted that a similar starting point of 4 years and 6 months’ imprisonment would be appropriate.

20.And as for Charge 2, it is submitted that the total drugs in question is only 0.83 grammes of methamphetamine hydrochloride and that considering the quantity involved, the starting point of 12 months’ imprisonment as in the case of HKSAR v James David Sanborn, DCCC 351/2019, be adopted.

21.As for Charge 3, defence counsel accepted that pseudoephedrine is the starting material for the illicit manufacturing of methamphetamine and the quantity seized at the scene is 129 grammes. 

22.As for the remaining 1,267.3 grammes of phenacetin, it is submitted that there is no evidence to suggest it is connected with an illicit manufacturing of the methamphetamine.  There is no evidence to suggest also that they were possessed for the purpose of trafficking.  Defence counsel ask that it would be appropriate to dispose of this charge by way of a short term of imprisonment or alternatively a fine as in the case of HKSAR v Tsang Kin Chung Ridgeley [2007] 2 HKC 446.

23.Finally, it is submitted that all three charges are committed in the course of a single transaction and that it would be appropriate to enforce a concurrent sentence for the charges.

Discussion

1^st charge

24.A person convicted of the 1st charge shall be liable on conviction of indictment to a fine of 5 million and imprisonment for life. 

25.According to the scene report by Government Chemist Kwok, as two critical chemicals, namely hydrogen iodide and red phosphorous (reagents used to react with pseudoephedrine to form methamphetamine), were not present at the scene, although the many other chemicals and paraphernalia seized from the scene were items commonly associated with the manufacturing process of ‘Ice’, no conclusive comment would be given as to whether or not the manufacturing process of methamphetamine hydrochloride from pseudoephedrine had ever taken place in the defendant’s residence.

26.This court notes that the amount of methamphetamine or methamphetamine hydrochloride seized from the scene is not substantial.  The amount of pseudoephedrine, ie the starting material for manufacturing methamphetamine, however is quite substantial, ie 129 grammes, and therefore the amount of methamphetamine that could be manufactured is of a significant amount.  This court is of course aware of the absence of the two reagents as well as the conclusion by Kwok in the scene report.

27.CJ Roberts said in the case of Wong Chun Ping [1984] HKLR 247, at 257 that, it is only in exceptional cases, for example, when the capacity of the manufacturing equipment is very small, should a court consider a sentence of less than 10 years’ imprisonment on a conviction for manufacturing. 

28.In adopting this approach, the court in the case of Kan Kong Fai, held that, even when the scale of operation is very limited, an appropriate minimum starting point should be one of 6 years’ imprisonment. 

29.Hartmann JA said in the cited case of HKSAR v Pei Yuk Kam, CACC 213/2010, that:-

“36. Doing or offering to do an preparatory act may or may not reflect a lesser degree of moral culpability than participating in the manufacturing process. Each case will depend on its own facts.

37. In the present case, the judge was well aware of the authorities indicating that manufacturing and doing an act preparatory to or for the purposes of manufacturing a dangerous drug should attract similar sentences. He was also aware of the direction in Kan Kong Fai that, even when the scale of operation is very limited, a minimum starting point for manufacturing should be 6 years.”

30.In that case, the Court of Appeal did not disturb the sentence of 4 years and 6 months’ imprisonment.  In fact, it was commented that the discount of 25 per cent from the sentencing starting point of 6 years given by the trial judge was a substantial discount. 

31.The intended operation in that case was said to be of small scale and unsophisticated.  The quantity of chemical was limited and a number of necessary chemicals were missing.  It was said however by the Court of Appeal that:-

“38. Nevertheless, on the authorities, no matter how limited and no matter how crude the intended operation, he was obliged to take as his starting point a sentence similar to the starting point of 6 years that would have to be applied if the applicant had been convicted of manufacturing.”

32.In that case the amount of ‘Ice’ seized was 0.49 grammes whereas in our case the same was 0.81 grammes.  As I said earlier, the quantity of starting material in our case, pseudoephedrine, is 129 grammes which could produce a significant quantity of methamphetamine hydrochloride after conversion.

33.The defendant is the sole operator of this operation.  There is no evidence that she is assisted by others.  From the exhibit list and the packaging and the description of the contents list in the scene report of Mr Kwok, one could also see that the chemicals and all the paraphernalia associated with the manufacturing of methamphetamine were numerous in quantity.

34.The present offence is one of the most serious offence.  Considering the circumstances of the present case and the authorities in the area, this court considers that the appropriate sentencing starting point would be one of 6 years. 

35.The nature of this charge is most serious in drug related offences, similar to manufacture of drugs, although the defendant does not have any drug related previous convictions, the only appropriate sentencing option is one of a custodial sentence.  There is also nothing before this court to justify suspending the same.  For such serious offence, personal background of the defendant is seldom a mitigating factor, nor is the defendant’s hope to earn fast money a valid mitigating factor.

36.The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount.  Despite the efforts of mitigation by defence counsel, there is no other valid mitigating factor. 

37.Accordingly, the defendant is sentenced to 4 years’ imprisonment for this charge.

2^nd Charge

38.The subject matter of this charge is 0.81 grammes of methamphetamine, 0.38 grammes of a solid containing 0.02 gramme of methamphetamine, 1.02 grammes of a solid containing traces of methamphetamine and 110 millilitres of a liquid containing traces of methamphetamine.

39.Defence counsel urged this court to adopt the sentencing starting point of 12 months’ imprisonment as in the case of James David Sanborn where the defendant possessed 0.72 grammes of methamphetamine hydrochloride. 

40.This court agrees that 12 months’ imprisonment is an appropriate sentencing starting point.  As the defendant is entitled to a full one-third sentencing discount by reason of her guilty plea, she is sentenced to 8 months’ imprisonment for this charge.

41.The defendant is sentenced to a term of imprisonment more than 9 months for the 1st charge and there is no need therefore for the court to call for any report before sentencing the defendant a custodial sentence under this charge.

3rd charge

42.Any person guilty of this offence is liable on conviction to a fine of 100,000 and imprisonment for 2 years. 

43.The subject matter of this charge includes 129 grammes of a solid containing pseudoephedrine, 1267.3 grammes of a powder containing phenacetin, 1.86 grammes of a solid containing phenacetin and 132 millilitres of a liquid containing phenacetin. 

44.Pseudoephedrine is the starting material for the manufacture of methamphetamine.  As for phenacetin, the court agrees, as submitted by defence counsel, there is no evidence that the same was connected with the illicit manufacturing of methamphetamine.  The amount of phenacetin is substantial.

45.This court finds 6 months’ imprisonment appropriate as a sentencing starting point for this charge.  By reason of her guilty plea, the same is discounted by one-third and the defendant is sentenced to 4 months’ imprisonment for this charge.

46.Considering the totality principle and having regard to the culpability of the defendant in the whole case, the court considers that the appropriate sentence for the defendant is 4 years and 1 month’s imprisonment. 

47.As the commission of the 2nd charge is closely connected to the commission of the 1st charge, this court orders that the sentence in the 2nd charge is to run wholly concurrent to the sentence in the 1st charge. 

48.Part of the Part I poison in the 3rd charge, ie the pseudoephedrine, the starting material for the manufacturing of ‘Ice’, was already considered in the sentencing of the 1st charge and the sentencing attributable to the possession of pseudoephedrine therefore should be made concurrent to the sentence in the 1st charge whereas the sentence for the possession of the other Part I poison should be made consecutive.

49.Accordingly, 1 month of the sentence for the 3rd charge is to run consecutive to the sentence of the 1st and 2nd charge, and the rest of the sentence in the 3rd charge is to run concurrent to the sentence in the 1st and 2nd charge. 

50.The defendant is therefore sentenced to a total of 4 years and 1 month imprisonment for this charge.