The 1st, 2nd and 3rd defendants were jointly charged on an indictment of four offences -- sorry, of the same indictment. The original indictment, I shall call that. On the original indictment, the 1st defendant pleaded guilty to all four charges. The 1st charge was trafficking in a dangerous drug against him only; the 2nd charge was trafficking in a dangerous drug against D1 only; the 3rd charge was trafficking in dangerous drugs against all three defendants; and the 4th charge was manufacturing a dangerous drug against all three defendants.
Upon the 1st defendant’s plea of guilty and the 2nd and 3rd defendants’ pleas of not guilty, the indictment was amended to only the 2nd and 3rd defendants’ names on the indictment to which the 2nd and 3rd defendants were charged with the 1st count of conspiracy to traffic in dangerous drugs, and an alternative charge of trafficking in dangerous drugs as the 2nd count; and the 3rd count of conspiracy to manufacture a dangerous drug, and the 4th count of manufacturing a dangerous drugs. The 2nd and 3rd defendants pleaded not guilty to that those charges.
The 1st defendant, who had pleaded guilty, testified for the prosecution in the trial against the 2nd and 3rd defendants. At the conclusion of the 2nd and 3rd defendants’ trial, the 2nd defendant was convicted of the 1st count of conspiracy to traffic in dangerous drugs and the 3rd count of conspiracy to manufacture a dangerous drug. The 3rd defendant was only convicted of the 2nd alternative count of trafficking in a dangerous drug.
Let me now turn to the facts of this case.
At about 11 pm on 3 October 2018, police officers from the Special Duty Squad, Yuen Long District, intercepted the 1st defendant whilst he was riding a bicycle along Long Ping Road, Yuen Long. Hanging on the handle bars of the bicycle was a plastic bag which contained approximately one kilogramme of methamphetamine hydrochloride, otherwise known as ‘Ice’. He was arrested for trafficking in dangerous drugs.
The 1st defendant was taken to the police station. And then at about 0040 hours on 4 October, shortly after he was arrested, the police team escorted D1 to his home for the purposes of a house search at the village house situated at Number 41A, Wang Chau Fuk Hing Tsuen, Fuk Hi Street, Yuen Long, New Territories; these premises known as the house. The house consisted of three levels: the ground floor, first floor and a rooftop. On the ground floor was a living room and a storeroom and the 1st defendant’s bedroom, a kitchen and a bathroom. On the first floor there was another living room and off that room was a storeroom and a bedroom.
Keys found on the 1st defendant on his arrest were used to open the main door of the house and also used to unlock the 1st defendant’s locked bedroom door on the ground floor. The police found, inside the 1st defendant’s bedroom, eight packets of ‘Ice’. This was in the original indictment, Charge 2. The ‘Ice’ found on the 1st defendant’s bicycle was the original indictment Charge 1.
At about 12.45 am, police officers entered into the first floor bedroom of the house and found the 2nd and 3rd defendants inside the bedroom in that house. Inside the first floor bedroom were more drugs - which was the amount as stated in the amended indictment, the 2nd count, alternative to the 1st count - and they were in the amount of approximately 7.5 kilogrammes of heroin; 3.3 kilogrammes of cocaine; 4.5 kilogrammes of ketamine, together with some 4.6 kilogrammes of white substance. At the trial, it was said this white substance was used for mixing, for manufacturing cocaine.
Inside the kitchen on the ground floor of the house, the police found electronic scales, electric blenders, two metal pots, ladles with traces of cocaine on them, baking soda, and cocaine in two packets, and a number of transparent resealable bags. The total estimated value of all the drugs seized was approximately $14 million. The total value of the drugs seized in the first floor bedroom amounted to approximately $11.5 million. The total amount of cocaine seized was $3.5 million and the crack cocaine was in the sum of $370,000.
Let me now turn to the background of the 1st defendant. The 1st, 2nd and 3rd defendants’ committal date was 16 December 2019. The 1st defendant pleaded not guilty. A date was fixed on 30 July 2020 at the Court of First Instance and the trial date was set for 21 May 2021. At the case management hearing, the 1st defendant pleaded guilty on 29 January 2021. That was four months before the trial date.
In accordance with Ngo Van Nam [2016] 5 HKLRD 1, where a defendant pleads guilty after the date has been fixed for trial but before the first date of trial, he is entitled to a discount of between 25 per cent and 20 per cent. As he did not plead guilty at the earliest opportunity, he is not entitled to the one-third discount.
Let me deal now with the 1st defendant. As I mentioned, the 1st defendant pleaded guilty to four charges on the original indictment. On the 1st count, he pleaded guilty to trafficking in a dangerous drug, trafficking in the amount of 989 grammes of a crystalline solid containing 921 grammes of methamphetamine hydrochloride. In respect of the 2nd count, he also pleaded guilty to a charge of trafficking in dangerous drugs and that was to the amount of 4,525 grammes of a crystalline solid containing 3,910 grammes of methamphetamine hydrochloride. In respect of the 3rd count, trafficking in dangerous drugs, he pleaded guilty to trafficking in 7,587 grammes of a mixture containing 4,625 grammes of heroin hydrochloride, 884.6 grammes of monoacetylmorphine hydrochloride, 3,363 grammes of a solid containing 2,600 grammes of cocaine and 4,544.3 grammes of a powder containing 3,792.9 grammes of ketamine. In respect of the 4th charge, he pleaded guilty to manufacturing a dangerous drug, that is that he manufactured a dangerous drug, namely cocaine.
In respect of the 1st and 2nd charges, it was against him only, and the 3rd and 4th was against him and the 2nd and 3rd defendants. As I mentioned, the 1st defendant gave evidence for the prosecution in this case. It was the evidence of the 1st defendant at the trial that he was a university graduate and that he had a girlfriend in Hong Kong; and he admitted to having the two convictions, as stated in his criminal record, of robbery and possession of dangerous drugs. I note that he was convicted of robbery in 2013, sentenced to 4 years and 3 months’ imprisonment; and in 2016 to 3 months for possession of dangerous drugs. The 1st defendant is a Form 8 recognisance holder. He is not married and he is from Pakistan.
For the 1st defendant, what I am going to do in regards to sentence is I am going to be sentencing him on the principle of totality in respect of all charges. However, I will have to sentence him individually for each charge. May I state at the outset that as a result of the 1st defendant’s plea of guilty not being at the earliest opportunity, I intend to give him a 22 per cent discount.
The defendant gave evidence for the prosecution and it is usual for defendants who give evidence for the prosecution, if they have pleaded guilty at the first opportunity, to have a 50 per cent discount. What I have done is, if it is one-third -- at first opportunity to plead guilty would be 33⅓ per cent, so that means the defendant would get an extra 17-odd per cent for assisting the prosecution.
So I accept that the 1st defendant assisted the prosecution in this case because the 2nd defendant was found guilty upon the 1st defendant’s evidence. Therefore, the discount he shall be awarded, that is 22 per cent plus 17 per cent is 39 per cent. I have, however, taken into account other matters in this case to which was borne out in the trial and to which Mr Marray, of which Mr Francis Yip is now acting for the 1st defendant, but Mr Marray’s submission that the defendant’s family was at risk, and himself, from the 2nd defendant.
It is clear from the trial that the 1st defendant was at risk of harm, he says, from the 2nd defendant from the moment they were arrested at the house. He said the moment they were arrested at the house, the 2nd defendant, who was sitting next to him on the ground floor near the sofa, had threatened him and his family. On top of that, during the trial it was the 1st defendant’s evidence that whilst he was in custody with the 2nd defendant, sharing the same cafeteria or food hall, he had also been threatened by the 2nd defendant whilst in prison.
Over and above, it came out during the trial that the 1st defendant had written a letter to the police. He was cross-examined on this letter he wrote. This letter was exhibited as D3 in the trial, of which he identified it was his signature on the letter and he said that his friend, Chris, wrote the first paragraph when the 2nd defendant was present. However, the remaining paragraphs, the 2nd defendant was not present and he said he did not mention the 2nd defendant’s name because he was still in the same dining hall. So he wanted to save himself to make sure that he was safe. However, he did mention about being threatened by “a boss” and he said he was referring to D2.
In evidence as well, the 1st defendant said that his family had moved from his hometown in Pakistan where they had lived in the same area as the 2nd defendant’s family and his family were scared to be harmed by the 2nd defendant’s family and therefore, they have moved. Mr Marray, in his latest submissions, informed the court that since moving the 1st defendant’s family has been threatened again by some people in Pakistan after they had returned from a wedding and they need to move yet to another location. On this basis, I find there is a risk of threats by D2 to D1. D1 has since moved out from the same Correctional Services Institute as D2 before giving evidence. On that basis, I am prepared to give the 1st defendant a further 5 per cent discount, which will make the total discount for the 1st defendant 44 per cent.
Now, in respect of the trafficking in dangerous drugs for the 1st defendant, what I intend to do is to convert all the drugs to ‘Ice’ and take the combined approach. So the conversion and combined approach. And then for the manufacturing, of course, is a separate matter.
So for Count 1, the defendant has pleaded guilty to trafficking in 921 grammes of ‘Ice’. Had he been convicted after trial, I would have taken a starting point of 26 years, six months’ imprisonment. Giving him the 44 per cent discount, as I have just said, that reduces the term of imprisonment to 12 years 1 month imprisonment.
For Count 2, the defendant had pleaded guilty to 3,910 grammes of ‘Ice’. Had he been convicted after trial the starting point would have been taken at 25 years and 9 months’ imprisonment. Giving him the 44 per cent discount, that term is reduced to 14 years and six months’ imprisonment.
Now, for Count 3, there are a number of drugs involved in Count 3 and I will convert all the drugs there to heroin or cocaine. So there were 2,600 grammes of cocaine and 5,509.6 grammes of heroin. That makes a total of 8,109 grammes of cocaine or heroin. The ketamine was in the amount of 3,792.9 grammes and following the case of Sin Chung Kin [2013] HKLRD 627 for that amount of ketamine, it would equate to about 20 years’ imprisonment. And in converting 20 years’ imprisonment into the drug cocaine, would amount to approximately 600 grammes of cocaine. Therefore, I add 600 grammes to the total of 8,109 and that would equal to 8,709 grammes of cocaine in total for Count 3. Following the case of course of Abdallah, that would mean that would be a starting point of 27 years and 6 months’ imprisonment. Giving the 1st defendant his 44 per cent discount, that would amount to 15 years and 5 months’ imprisonment.
Turning to Count 4, that is the manufacturing charge of cocaine, the amount of cocaine involved in this case is 2,600 grammes of cocaine. There was also, to bulk-up cocaine, a white substance in the amount of 4.6 kilogrammes. That was, it can be considered, a substantial amount. The value of cocaine seized was $3.5 million. The relevant cases in sentencing for manufacturing dangerous drugs is that of R v Cheung Wai Kwong and Another [1997] HKLRD 344 and is also cited in HKSAR v Kam Kwong Fai [2009] 3 HKLRD 582, where in this case:
“the court cited with approval the factors to take into account when sentencing for manufacturing in dangerous drugs.”
And in these manufacturing cases:
“the quantity of drugs seized might give an idea of the scale of the operation, but was not the sole or dominant consideration in determining the starting point. The consideration for determining the proper sentence included the quantity of drugs produced, the scale of the operation, the capacity of the equipment, the output of drugs at the manufacturing station and the role played by the accused.”
In this case, the 1st defendant, according to his evidence, would assist in the manufacturing of cocaine; assist the 2nd defendant who he says was the main manufacturer of cocaine. As I mentioned, the quantity was substantial. The kitchen, as was seen when the police entered the house, was probably just before being used for manufacturing of cocaine. It was strewn with equipment and many of the equipment had traces of cocaine on it. In my view, it was a large-scale manufacturing, given the bulk of the white substance and the cocaine.
In sentencing for 2,600 grammes of cocaine, if it were to be trafficking in cocaine, the starting point would be approximately 24 years and 6 months’ imprisonment. I take that as a baseline. However, it is clear from the case of Cheung Wai Kwong that manufacturing drugs is a much more serious offence than trafficking and warrants a heavier sentence. In the circumstances, I increase that sentence to one of 30 years’ imprisonment. So taking that as a starting point for the manufacturing dangerous drugs in Count 4 for the 1st defendant, I reduce that by 44 per cent and that results in a sentence of 16 years and 10 months’ imprisonment.
Now, I said that I would look at totality of the sentences and the starting points. I take, as a starting point, 30 years’ imprisonment for these offences. And there are aggravating factors for the 1st defendant. First of all, he is a Form 8 holder, therefore a torture claimant, trafficking in very large quantities of drugs. He was paid $5,000 a week, which is a lot of money, as a courier to assist D2 in manufacturing and trafficking in dangerous drugs. There is a multiplicity of drugs in this case. It is four kinds of different drugs in very large amounts; that is, ketamine, cocaine, ‘Ice’ and monoacetylmorphine hydrochloride.
However, I must bear in mind that not only as to D1 but to D2 as well, that I am alive to the fact that the sentence is a lengthy one and I do not want to turn an already lengthy sentence into an overbearing or crushing one. But I must have regard to the two very serious offences of trafficking and manufacturing of dangerous drugs and to reflect these two very serious offences, and I bear in mind the totality, I would increase the 1st defendant’s sentence by 1 year 6 months for those aggravating factors. Therefore, at a starting point overall of 31 years 6 months’ imprisonment, less 44 per cent, results in a total term - 1st defendant, please stand up - of 17 years and 8 months’ imprisonment.
To reflect that term of 17 years 8 months’ imprisonment, I order 10 months of Count 3 to run consecutive to Count 4, which makes a total of 17 years 8 months’ imprisonment. The remaining terms to run concurrent to each other.
D1, you can sit down. I now turn to deal with D2 and D3.
For the 2nd defendant, he was found guilty after trial of the two charges in the amended indictment of the 1st count of conspiracy to traffic in all the drugs, that is methamphetamine hydrochloride, cocaine, ketamine and heroin; that is all the drugs in the premises. He was also found guilty of the 3rd count which is conspiracy to manufacture dangerous drugs, that is the cocaine in the premises.
For D2, he is 37 years of age. He is of junior secondary education in Pakistan. He is not a drug addict. He has a son, aged I believe, nine now. And it says here in his antecedent that he was living with Indonesian girlfriend, Vivan. However, it appears here that his girlfriend was the 3rd defendant in this trial.
The 2nd defendant has six previous convictions dating back to 2012. All of those convictions until 2016, those five convictions, were for violence, of which he received various terms of imprisonment. On 4 January this year 2021, he received a sentence of 14 months and 17 days’ imprisonment for illegal remaining in Hong Kong. He is a Form 8 torture claimant.
Now, for D2’s sentencing, I will need to do the same exercise similar to D1. What I will be doing is I will be converting all the drugs to that of ‘Ice’. Even though this is a conspiracy charge, I will need to take into account the amount of drugs involved. For the amount of ‘Ice’, would be 921 grammes, plus 3,910 grammes, and for the amount of cocaine of which ketamine was converted to cocaine would be 8,709. Adding these three figures together, that would make a total of 13,540 grammes of ‘Ice’. That would mean that following Abdallah, between 4,000 and 15,000 grammes would be between 26 and 30 years’ imprisonment. So taking the total amount of drugs for the trafficking case then, Defendant D2, you will be sentenced on Count 1 to 29 years and 3 months’ imprisonment.
As for the manufacturing charge, Count 3, I take the same starting point as I do for D1. That is 30 years’ imprisonment to which you shall be so sentenced for Count 3.
Now, I have to look at the principle of totality in this case. 2nd defendant, you are a Form 8 torture claimant and it was you who rented the house. Clearly, you were the mastermind in this case. You had employed D1 and paid him $5,000 a week to act as your courier delivering these drugs for you. D1 had assisted you in manufacturing. Once again, there was a multiplicity of drugs involved and you were the one who apparently arranged for these drugs to be sent to different people, communicated with the buyers of the drugs. As compared to D1, you were much higher in the cog than D1. Taking these aggravating factors into account, and again reflecting that the sentence is already a very lengthy one and I do not want the sentence to be a crushing one, but I bear in mind the seriousness of these two offences, of conspiracy to traffic and conspiracy to manufacture, I consider a starting point after trial to be appropriate - please stand up, Defendant - to be one of 32 years’ imprisonment. I therefore order 2 years of Count 1 to run consecutive to Count 3. These sentences shall run concurrent to your sentence in January 2021.
In respect of the 3rd defendant, the 3rd defendant on the amended indictment, you were found guilty of the 2nd count of trafficking in dangerous drugs. That is the drugs found in the bedroom where you were. And this is the same as the original Charge 3, which the 1st defendant has pleaded guilty to. I therefore will not repeat myself in respect of the combined approach and the conversion approach to these drugs, but state that the sentence shall be the same as that would have been for D1’s starting point.
Defendant, please stand up. D3, the starting point shall therefore be 27 years and 6 months’ imprisonment. D3, you were an overstayer since 2016. You are 51 years of age. You have a clear criminal record. You are from the Philippines and as heard in this trial you were a domestic helper between 2003 and 2016 and overstayed since that date to the date of this offence when you were found, which was 2018, which is two years. You have, I am told, not been brought to court yet on your charge of breach of condition of stay and I consider it an aggravating factor that you have overstayed and committed this offence during the period of overstaying. And of course, same as with the 1st and 2nd defendants, there were a multiplicity of drugs involved in this case and you were trafficking in a very large amount of drugs. In the circumstances, to reflect the criminality of this case to which you were involved, I enhance the sentence by 6 months’ imprisonment, making the total term that you will need to serve, of 28 years’ imprisonment.
Just to say for the record that having heard all the mitigating factors from the defendants, there are no factors to which any of these sentences should be reduced as there are no mitigating factors. I believe that is all I need to say now in respect of those matters.