HKSAR v. Chan Kin Wai

HCCC 133/2021 HCCC 134/2021 (Heard together) [2022] HKCFI 2046 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 133 OF 2021 ________________________   HKSAR     v     Chan Kin-wai   ________________________ AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 134 OF 2021 ________________________   HKSAR     v     Wen Yong-kang (A1)     Chan Kin-wai (A2)   ________________________

Before:

Hon Johnny Chan J

Date:

8 June 2022 at 3.37 pm

Present:	Mr Fergus Chau, SPP of the Department of Justice, for HKSAR
	Mr Luk King-wang, instructed by Ho & Associates, assigned by DLA, for the accused in HCCC 133/2021 and the 2nd accused in HCCC 134/2021
	Mr Yuen Siu-kei, instructed by Wan Yeung Hau & Co, assigned by DLA, for the 1st accused in HCCC 134/2021

Offence:	HCCC 133/2021
	(1)  Manufacturing a dangerous drug (製造危險藥物)
	(2)  Trafficking in a dangerous drug (販運危險藥物)
	HCCC 134/2021
	(1)  Manufacturing a dangerous drug (製造危險藥物) (against A1 only)
	(2)  Trafficking in a dangerous drug (販運危險藥物) (against A1 only)
	(3)  Possession of a dangerous drug (管有危險藥物)  (against A2 only)

________________________

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

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COURT: HCCC 134/2021, Charges and Pleas

There are two defendants in this case. The 1^st defendant, Wen Yong-kang, pleaded guilty in the court below to one count of manufacturing of a dangerous drug (1^st charge)  and one of trafficking in a dangerous drug (2^nd charge)  and admitted the facts pertaining to the charges.

The 2^nd defendant, Chan Kin-wai, pleaded guilty in the court below to one count of possession of a dangerous drug (3^rd charge)  and admitted the facts pertaining to the charge.

The 2^nd charge concerns 289.71 grammes of solid containing 129.11 grammes of cocaine.

The 3^rd charge concerns 0.01 grammes of cannabis in herbal form.

Both defendants confirm their pleas and admission of the facts before me. I convict the 1^st defendant of the 1^st and the 2^nd charge on his own pleas and admission. I convict the 2^nd defendant of the 3^rd charge on his own plea and admission.

The Facts

The Summary of Facts dated 14 May 2021 reads:

“1. At around 5.05 pm on 1 March 2020, in an anti-crime operation, police officers patrolled in the area of Sau Mau Ping. Outside No. 333 Ngau Tau Kok Road, an officer intercepted D1 as D1 attempted to leave after seeing the police officers. D1 was searched. In D1’s right front pants’ pocket, two hotel room cards of Hotel Cozi Harbour View, Wai Yip Street, Kwun Tong (“Hotel”)  were found. Upon enquiry, D1 confirmed that the hotel cards belonged to him, and he resided at Room 413 of Hotel Cozi Harbour View, and his personal properties were in that room.

2.  D1 was escorted to Hotel Cozi Harbour View by the officers.  At the Hotel, upon enquiry, the hotel manager confirmed that the seized hotel cards from D1 were cards accessible to Room 1119 instead of Room 413; and that the seized room cards were invalid because at around 11.42 am on 1 March 2020, the registered tenant of Room 1119, that is D2, came to extend the staying period of Room 1119 without bringing the two room cards so those room cards were not renewed.  D1 explained that he had forgotten the room number. 

3.  D1 was then escorted to Room 1119, and the hotel manager used a room card to open the room.  No one was in Room 1119 at that time.  Upon search of Room 1119, the following items were found:

On the window balcony:

(a)  11 resealable plastic bags containing a total of 258 grammes of a solid containing 129 grammes of cocaine;

(b)  1 resealable plastic bag containing 0.01 grammes of a solid containing cocaine;

(c)  a black induction stove containing 0.04 grammes of a solid containing cocaine;

(d)  a metal utensil containing a metal stand containing traces of cocaine;

(e)  a metal lid containing 0.05 grammes of a solid containing cocaine;

(f)  a black tray;

(g)  a glass.

On the television cabinet:

(h)  A toothbrush containing 0.16 grammes of a solid containing 0.11 grammes of cocaine;

On the ground:

(i)  A resealable plastic bag containing 319 grammes of a solid containing phenacetin;

(j)  two piles of white substance, later confirmed to be a total of 0.25 grammes of a solid containing sodium bicarbonate;

(k)  two electronic scales a total of 0.04 grammes of a solid containing cocaine;

(l)  a spoon and two resealable plastic bags containing traces of a solid containing cocaine;

(m)  two opened baking soda boxes containing a total of 322 grammes of a solid containing sodium bicarbonate;

(n)  an air dryer containing 0.06 grammes of a solid containing cocaine;

(o)  an electronic boiler containing 0.01 grammes of a solid containing cocaine;

(p)  a bowl;

(q)  a glass;

(r)  a luggage (E24)  containing:

(i)  an electronic scale containing 0.02 grammes of a solid containing cocaine;

(ii)  a metal plate containing 0.05 grammes of a solid containing cocaine;

(iii)  36 resealable plastic bags containing a total of 0.01 grammes of a solid containing cocaine;

(iv)  23 resealable plastic bags;

(v)  transparent plastic plate containing 0.01 grammes of a solid containing cocaine;

(vi)  22.1 grammes of a solid containing traces of cocaine;

(vii)  9.13 grammes of a solid containing traces of cocaine.

On a cabinet:

(s)  Two plastic bottles;

(t)  two lighters.

Near the front door:

(u)  A black facial mask;

(v)  a bicycle;

(w)  a speaker;

(x)  a hotel room rent receipt.

On the washing basin table in the toilet:

(y)  A white plastic bag containing cigarette butts, a paper box and a solid containing traces of cocaine;

(z)  a metal sieve containing 0.02 grammes of a solid containing cocaine;

(aa)  a heat-proof glove;

(bb)  two bottles;

(cc)  an empty cigarette box;

(dd)  a lighter;

(ee)  a mobile phone;

(ff)  a bottle of hand sanitizer.

4.  D1 was arrested for manufacturing of dangerous drug.  Under caution, D1 claimed that the seized dangerous drug was for his self-consumption.

5.  D1’s iPhone and cash of HK$122.5 were seized from him.

6.  Whilst the officers were investigating the case in Room 1119, D2 went to the hotel lobby and made arrangement to extend the renting period of Room 1119.  Officers arrived at the lobby, and arrested D2 after being pointed out by the hotel manager. 

7.  Upon search of D2, in his left front pants’ pocket, a small plastic container containing 0.01 grammes of cannabis, in herbal form, was found.  D2 was arrested.  Under caution, he admitted that the seized cannabis was for his self-consumption.  D2’s iPhone and cash of HK$287.2 were also seized from him. 

8.  D1 and D2’s residences in Kwai Chung and Sau Mau Ping were searched with nothing suspicious found. 

9.  Hotel manager and the receptionist confirmed that the seized room cards from D1 were originally used to access Room 1119, but it was invalid after 2 pm on 1 March 2020 when D2 handled the extension of rental at 11.42 am on 1 March 2020.  Room 1119 was rented by D2 on 29 February 2020 through online booking website at around 8.56 pm, and D2 came in person to retrieve the room at around 9 pm.  D2 was provided two room cards for Room 1119 after $500 deposit was paid on 29 February 2020 as well as the room rental receipt. 

10.  In subsequent cautioned video-recorded interviews, D1 and D2 remained silent in the presence of their legal representatives. 

11.  CCTV footages from Hotel Cozi Harbour View showed that at the material times on 29 February 2020:

(a)  D1, D2 and a wanted person (WP)  entered the hotel at around 8.52 pm on 29 February 2020, and D2 went to check in at the counter. D2 was also seen carrying a luggage (of similar appearance with the seized luggage)  and he entered Room 1119, but he left in about four minutes. On the other hand, D1 stayed in the hotel, yet he left and then returned to Room 1119 multiple times during the small hours.

(b)  In the early morning at about 6.51 am, D2 appeared again and he entered Room 1119, and he stayed until 11.33 am; he left twice for short periods of time (one appearing to bring back takeaway food at around 8.05 am, and the other occasion was at around 11.34 am when D2 went to the counter to handle the extension of stay at the counter). D2 then left.

(c)  At about 7:44 pm, D2 returned for the payment of extension of stay at the counter.

12.  The mobile phones of D1 was examined.  One of the D1’s seized phones was found with 227 photos of process of suspected manufacturing of cocaine, including weighing of white substances, packaging of the same in bags with markings of suspected weights written on them, etc.  In some photos, the weighing scale, the induction stove, etc, were the same as the ones seized in Room 1119. There was also one Snapchat conversation capture found in D1’s phone where street names of different types of dangerous drugs, such as LSA, LSD, 25i, were mentioned.

13.  The forensic scientist, Dr Chow Lok-fung, who attended the scene to inspect Room 1119, explained the procedure of ‘cracking’, that is the conversion of cocaine hydrochloride into cocaine base by dissolving the former and the alkaline chemical such as sodium bicarbonate, and this procedure could be speeded up by heating the mixture solution and adulteration could be carried out by the addition of other substances such as phenacetin.  Dr Chow also opined that:

(a)  Cocaine base was found in Room 1119, in the plastic bags at the windowsill, and at the luggage, and on a toothbrush. Cocaine base is the final product of the cracking procedure.

(b)  Sodium bicarbonate was found in the room, which is a starting material of the cracking procedure.

(c)  Weighing instruments, i.e. scales, were found in the room, and the cocaine found on the scales was cocaine base.

(d)  Paraphernalia seized in the room, including a sieve, a lid, a stand, a boiler, plates, etc, were found to contain cocaine, indicating that those items could have been used in handling cocaine.

(e)  Based on the scene inspection and subsequent findings, particularly the fact that the chemicals and paraphernalia seized from the scene were those commonly associated with the cracking procedure, there is a possibility that the cracking procedure had taken place in Room 1119.

14.  In March 2020, the average retail prices for the seized dangerous drugs were:

(a)  Cocaine powder: HK$1,132 per gramme;

(b)  Crack cocaine: HK$1,326 per gramme;

(c)  Herbal cannabis: HK$164 per gramme;

15.  The average retail price for the seized cocaine was in the range of $327,952 and $384,155.  The monthly averaged percentage purity of cocaine in March 2020 was 81 per cent for cocaine other than crack cocaine, and 77 per cent for crack cocaine.

16.  D1 now admits and accepts that at all material times he, together with D2:

(i)  manufactured cocaine; and

(ii)  unlawfully trafficked in the seized cocaine found in Room 1119.

17.  D2 now admits and accepts that at all material times he had in his possession the seized herbal cannabis.” 

Criminal Records and Antecedents of D1 and D2

D1 has one criminal record for shop theft recorded against him in 2018.

Born in mainland in December 2000, D1 came to Hong Kong in 2012. He is now 21 years old. He was educated up to Form 4. He worked as a waiter for two months earning a monthly salary of $8,000 after dropping out of school in 2017. He has become unemployed since then.

D1 is single and he resided with his mother and elder sister in Kwai Chung at the time of his arrest.

D2 has a clear record, born in mainland in February 1999, D2 came to Hong Kong in 2005. He is now 23 years old. He was attending Diploma of Foundation Studies at IVE (Chai Wan)  at the time of his arrest. He resided with his parents in Sau Mau Ping at the time of the offence.

Mitigation

D1

Mr Yuen submits that of the 258 grammes of a solid containing 129 grammes of cocaine, D1 intended to consume 24 grammes. Mr Yuen submits this portion is not of significant portion to attract part-consumption mitigation. He further informs the court that D1 will not give evidence to substantiate his claim that he intended to consume 24 grammes of the mixture.

Mr Yuen informs me that at the mention hearings of 10 May 2021, 31 May 2021 and 15 June 2021, D1 informed the court in the presence of D2 that D1 was willing to testify against D2 who pleaded not guilty to the charges at the committal proceedings.

Mr Yuen asks me to give the highest possible discount for D1’s intended assistance.

Mr Yuen submits that the manufacture is of the lowest scale and the room in question was merely rented for one day prior to the arrest.

Mr Yuen asks me to impose concurrent sentences of both counts and pass the most lenient sentences possible.

D2

Mr Luk submits in mitigation that the parents of D2 visited D2 frequently during his remand in custody. To prepare himself for his living after his release from prison, D2 had completed an English course through an online and distance learning programme during his remand in custody and is now attending another online English course.

Mr Luk submits that D2 is a filial son in the eyes of his parents and he is not bad in nature.

Mr Luk submits D2 has shown his genuine remorse. He repents for the mistake he made. He was immature and he mingled with dubious peers. He is now determined to reform and he promises that he will not reoffend in future.

Mr Luk submits letters of mitigation by D2’s parents and D2 himself.

Mr Luk submits that a modest fine is appropriate for D2’s possession of 0.01 grammes of herbal cannabis, with a term of imprisonment in default, which should be served concurrently with the terms of imprisonment that the court will impose for the 2^nd charge in HCCC 133/2021.

Consideration (Sentences)

1^st charge against D1

In sentencing the 1^st defendant, I have considered the quantity of cocaine base manufactured, but the quantity of drugs was but one factor to be taken into consideration. I have also taken into consideration the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs and the role played by D1.

Manufacturing of cocaine is undoubtedly much more serious than trafficking of cocaine. Room 1119 was obviously used as a manufacturing station for the cracking procedure. The cocaine base found in the room, that is the cocaine base at windowsill in the plastic bags, at the luggage and on the toothbrush was the final product of the cracking procedure. The room had only been rented for one day and the cracking procedure had produced almost 130 grammes of cocaine base. The staying period of Room 1119 had been extended at 11.42 on 1 March 2020, with the phenacetin and sodium bicarbonate and the equipment in the room, more cocaine base could be produced if more cocaine hydrochloride was brought to the room.

The use of a hotel room as a manufacturing station made the operation a highly mobile one, making it more difficult for the police to detect the crime.

Mr Yuen cites HKSAR v Cheng Chi Wai, CACC 50/2019, [2021] HKCA 181, he relies on paragraph 33 of the judgment and submits that a starting point of 10 years should be adopted for the 1^st charge.

In the present case, the cracking procedure had taken place for a substantial period of time, almost 130 grammes of cocaine base had been produced. The cracking procedure in question was not a simple and straightforward procedure. Obviously the 10 years starting point envisaged by the Court of Appeal in paragraph 33 of the judgment in Cheng Chi Wai does not apply to the cracking procedure and the facts of this case.

In R v Cheung Wai Kwong & Another [1997] HKLRD 344, the Court of Appeal said at page 348 of the judgment:

“When the Court of Appeal in Wong Chung Ping suggested a minimum of 10 years’ imprisonment on a conviction for manufacturing dangerous drugs, the guidelines for trafficking and possession for unlawful trafficking in dangerous drugs were those set down in the case of Chan Chi Ming v R [1979] HKLR 491. Those were guidelines based on the quantity of mixture as opposed to the quantity of narcotics. According to those guidelines, a quantity of mixture between 150 to 1,000 grammes would attract a sentence ranging from 5 to 8 years’ imprisonment. Since that decision, the courts have become much more tougher with drug offenders and the basis has also changed. In the case of R v Lau Tak Ming and Yeung Wai Shing and Others [1990] 2 HKLR 370, a quantity of over 600 grammes of narcotics (which could well be 1,000 grammes of mixture)  would attract a sentence of 20 years or more. The minimum sentence of 10 years in Wong Chun Ping (decided in 1984 when the old guidelines were adopted), which counsel did not seek to challenge would easily have been over 20 years now.”

Given the fact that the cracking procedure involved converting cocaine hydrochloride, which itself is a dangerous drug, into cocaine base, the facts of the case, the quantity of cocaine base produced, the aforesaid consideration of the capacity of the manufacturing station to produce more cocaine base and the role of D1, in my judgment, a starting point of 13 years’ imprisonment is appropriate for the 1^st charge.

D1 is entitled to one-third reduction for his timely plea, which would bring the sentence down to 8 years and 8 months, that is 104 months.

The fact that D1 had indicated in open court he was willing to testify against D2 might have an impact on D2’s ultimate decision to plead to the trafficking charge in HCCC 133/2021. I am prepared to give an additional reduction of 8 months for D1’s assistance. That would bring the sentence down to 8 years.

I can see no other mitigating or aggravating factors.

In my judgment, a sentence of 8 years’ imprisonment, that is 96 months’ imprisonment, is a fair, just and balanced sentence in all the circumstances of the 1^st charge and the background of D1.

For the reasons given, on the 1^st charge, I sentence D1 to 8 years’ imprisonment, that is 96 months’ imprisonment.

2^nd charge against D1

In sentencing the 1^st defendant, I have considered the nature and quantity of the dangerous drug, the facts of the case, the background of the 1^st defendant and all the matters urged on the 1^st defendant’s behalf by Mr Yuen. In applying the sentencing guideline for trafficking in cocaine as set down in R v Lau Tak Ming and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, I should follow the six-step approach in HKSAR v Herry Jane Yusuph, CACC 93/2019.

For trafficking in 129.11 grammes, that is almost 130 grammes of cocaine, D1’s case falls into the band of 50 grammes to 200 grammes of cocaine, which calls for an initial starting point of 8 to 12 years’ imprisonment.

The appropriate starting point should reflect not only the quantity of the dangerous drug, but also the culpability of the 1^st defendant as reflected by the Summary of Facts. Arithmetically, 130 grammes of cocaine calls for an initial starting point of 10 years and 2 months, but given the role of the 1^st defendant in the trafficking activities in question, a starting of 11 years is warranted.

D1 was closely related to Room 1119 and deeply involved in the illicit activities in the room. The room, apart from being used as a storage place of a large quantity of cocaine. It was also used as a small manufacturing factory of cocaine, given the tools, utensils, appliances and paraphernalia and chemicals found in the room, D1 role was more than a storekeeper.

For the reasons given, I adopt 11 years’ imprisonment, that is 132 months, as the starting point for the 2^nd charge.

D1 is entitled to one-third reduction for his early plea, that would bring his sentence down to 7 years and 4 months’ imprisonment, that is 88 months’ imprisonment.

I accept that the fact that D1 had indicated in open court he was willing to testify against D2 might have an impact on D2’s ultimate decision to plead to the trafficking charge in HCCC 133/2021. I am prepared to give an additional reduction of 6 months for D1’s assistance in that regard. That would bring the sentence down to 6 years and 10 months’ imprisonment, that is 82 months’ imprisonment.

Although the room had been rented for one day before the arrest of the defendants, the stay had been extended by D2 at around 11.42 am on 1 March 2021. I am sure but for the arrest action, further trafficking and/or manufacturing activities would take place in the room.

I can see no other mitigating or aggravating factors.

In my judgment, a sentence of 6 years and 10 months’ imprisonment, that is 82 months’ imprisonment, is a fair, just and balanced sentence in all the circumstances of the 2^nd charge and the background of D1.

For the reasons given, on the 2^nd charge, I sentence D1 to 6 years and 10 months’ imprisonment, that is 82 months’ imprisonment.

Consideration of Totality

The manufacturing charge and the trafficking charge are distinct and separate offences in law. In considering whether I should order the sentences of the two charges to run wholly concurrently or partly consecutively with each other. I have considered the one transaction rule. At one point, I was inclined to order the sentences to run partly consecutively with each other. On second thought, I have come to the conclusion that I should order the sentences to run wholly concurrently with each other.

After the cocaine base had been produced, had D1 done any additional act, for example, delivering the cocaine base to another place, then the sentences for 1^st and 2^nd charge should be ordered to run partly consecutive with each other. In the present case, D1 just possessed the cocaine base in Room 1119 for the purpose of trafficking, that is he just kept the cocaine base in the room for the purpose of trafficking after the cracking procedure. On the facts, the sentences for the manufacturing charge and the trafficking charge should run concurrently with each other.

I order that the terms of imprisonment for the 1^st and 2^nd charge are to run concurrently with each other. The total of imprisonment for D1 is 8 years imprisonment.

3^rd charge against the 2^nd defendant

Given the nature of the dangerous drug, its quantity, the clear record and guilty plea of D2, a financial penalty is appropriate for the 3^rd charge. A fine of HK$1,200 after plea is appropriate.

On the 3^rd charge, I impose a fine of HK$1,200.

D2 is given 3 months to pay. In default, 3 days imprisonment, to be served consecutively to the sentences he has to serve for HCCC 133/2021.

HCCC 133/2021, Charges and Pleas

The defendant, Chan Kin-wai, pleaded not guilty in the court below and before me to one count of manufacturing a dangerous drug (1^st charge). He pleaded not guilty in the court below to one count of trafficking in a dangerous drug (2^nd charge). Before me today, the defendant pleads guilty to the 2^nd charge and admitted the facts pertaining to the charge.

I convict the defendant of the 2^nd charge on his own plea and admission.

The prosecution informs me that the prosecution will not proceed with the 1^st charge and asked that the 1^st charge be kept in court’s file and the prosecution shall not proceed with the 1^st charge without leave of this court or the Court of Appeal.

I order that that the 1^st charge be kept in the court’s file and the prosecution shall not proceed with the 1^st charge without leave of this court or the Court of Appeal.

The 2^nd charge concerns 289.71 grammes of solid containing 129.11 grammes of cocaine.

The Facts

The Summary of Facts dated 23 September 2021 reads:

“1. At around 5.05 pm on 1 March 2020, in an anti-crime operation, police officers patrolled in the area of Sau Mau Ping. Outside No. 333 Ngau Tau Kok Road, an officer intercepted a male named Wen Yong-kang (“Wen”)  as Wen attempted to leave upon seeing the police officers. Wen was searched. In Wen’s right front pants’ pocket, two hotel room cards of Hotel Cozi Harbour View, Wai Yip Street, Kwun Tong (“Hotel”)  were found.

2. Wen was escorted to Hotel Cozi Harbour View by the officers. At the hotel, upon enquiry, the hotel manager confirmed that the seized hotel cards from Wen were cards accessible to Room 1119; and that the seized room cards were invalid because at around 11.42 am on 1 March 2020, the registered tenant of Room 1119, that is the defendant, came to extend the staying period of Room 1119 without bringing the two room cards so those room cards were not renewed.

3. Wen was then escorted to Room 1119, and the hotel manager used a room card to open the room. No one was in Room 1119 at that time. Upon search of Room 1119, the following items were found:

On the window balcony:

(a) 11 resealable plastic bags containing a total of 258 grammes of a solid containing 129 grammes of cocaine;

(b) a resealable plastic bag containing 0.01 grammes of a solid containing cocaine;

(c) a black induction stove containing 0.04 grammes of a solid containing cocaine;

(d) a metal utensil containing a metal stand containing traces of cocaine;

(e) a metal lid containing 0.05 grammes of a solid containing cocaine;

(f) a black tray;

(g) a glass.

On the television cabinet:

(h) A toothbrush containing 0.16 grammes of a solid containing 0.11 grammes of cocaine.

On the ground:

(i) A resealable plastic bag containing 319 grammes of a solid containing phenacetin;

(j) two piles of white substance, later confirmed to be a total of 0.25 grammes of a solid containing sodium bicarbonate;

(k) two electronic scales a total of 0.04 grammes of a solid containing cocaine;

(l) a spoon and two resealable plastic bags containing traces of a solid containing cocaine;

(m) two opened baking soda boxes containing a total of 322 grammes of a solid containing sodium bicarbonate;

(n) an air dryer containing 0.06 grammes of a solid containing cocaine;

(o) an electric boiler containing 0.01 grammes of a solid containing cocaine;

(p) a bowl;

(q) a glass;

(r) a luggage (E24)  containing:

(i) an electronic scale containing 0.02 grammes of a solid containing cocaine;

(ii) a metal plate 0.05 grammes of a solid containing cocaine;

(iii) 36 resealable plastic bags containing a total of 0.01 grammes of a solid containing cocaine;

(iv) 23 resealable plastic bags;

(v) transparent plastic plate containing 0.01 grammes of a solid containing cocaine;

(vi) 22.1 grammes of a solid containing traces of cocaine;

(vii) 9.13 grammes of a solid containing traces of cocaine.

On a cabinet:

(s) Two plastic bottles;

(t) two lighters.

Near the front door:

(u) A black facial mask;

(v) a bicycle;

(w) a speaker;

(x) a hotel room rent receipt.

On the washing basin table in the toilet:

(y) A white plastic bag containing cigarette butts, a paper box and a solid containing traces of cocaine;

(z) a metal sieve containing 0.02 grammes of a solid containing cocaine;

(aa) a heat-proof glove;

(bb) two bottles;

(cc) an empty cigarette box;

(dd) a lighter;

(ee) a mobile phone;

(ff) a bottle of hand sanitizer.

4. Whilst the officers were investigating the case in Room 1119, the defendant went to the hotel lobby and made arrangement to extend the renting period of Room 1119. Officers arrived at the lobby, and arrested the defendant after being pointed out by the hotel manager. Under caution, the defendant admitted, inter alia, that he was asked by his friend “Fei Kay” to rent a room to bring a suitcase to the room for $400.

5. The defendant’s iPhone and cash of HK$287.2 were also seized from him.

6. The defendant’s residence in Sau Mau Ping was searched with nothing suspicious found.

7. The hotel manager and the receptionist confirmed that the seized room cards from Wen were originally used to access Room 1119, but it was invalid after 2 pm on 1 March 2020 when the defendant handled the extension of rental at 11.42 am on 1 March 2020. Room 1119 was rented by the defendant on 29 February 2020 through online booking website at around 8.56 pm, and the defendant came in person to retrieve the room at around 9 pm. The defendant was provided two room cards for Room 1119 after 500 deposit was paid on 29 February 2020 as well as the room rental receipt.

8. In subsequent cautioned video-recorded interviews, the defendant exercised his right of silence.

9. CCTV footages from Hotel Cozi harbour View showed that at the material times on 29 February 2020 and 1 March 2020:

(a) Wen, the defendant and a wanted person (WP)  entered the hotel at around 8.52 pm on 29 February 2020, and the defendant went to check in at the counter. The defendant was also seen carrying a luggage (of similar appearance with the seized luggage)  and he entered Room 1119, but he left in about four minutes. On the other hand, Wen stayed in the hotel, yet he left and then returned to Room 1119 multiple times during the small hours.

(b) In the early morning at about 6.51 am, the defendant appeared again and he entered Room 1119, and he stayed until 11.33 am; he left twice for short periods of time (one appearing to bring back takeaway food at around 8.05 am, and the other occasion was at around 11.34 am when the defendant went to the counter to handle the extension of stay. The defendant then left.

(c) At about 7.44 pm, the defendant returned for the payment of the extension of stay at the counter.

10. In March 2020, the average retail prices for the seized dangerous drugs were:

(a) Cocaine powder: HK$1,132 per gramme;

(b) Crack cocaine: HK$1,326 per gramme;

(c) Herbal cannabis: HK$164 per gramme;

11. The average retail price for the seized cocaine was in the range of HK$327,952 and 384,155. The monthly averaged percentage purity of cocaine in March 2020 was 81 per cent for cocaine other than crack cocaine, and 77 per cent for crack cocaine.

12. The defendant now admits and accepts that at all material times he, together with Wen, knowingly and unlawfully trafficked in the seized cocaine found in Room 1119.”

Criminal Record and antecedent of the defendant

The defendant has a clear record. Born in mainland in February 1999, the defendant came to Hong Kong in 2005. He is now 23 years old. He was attending Diploma of Foundation Studies at IVE (Chai Wan)  at the time of his arrest. He resided with his parents in Sau Mau Ping at the time of the offence.

Mitigation

Mr Luk submits in mitigation that the parents of the defendant visited the defendant frequently during his remand in custody. To prepare himself for his living after his release from prison, the defendant had completed an English course through an online and distance learning programme during his remand in custody and is now attending another online English course.

Mr Luk submits that the defendant is a filial son in the eyes of his parents and he is not bad in nature.

Mr Luk submits that the defendant has shown his genuine remorse. He repents for the mistake he made. He was immature and he mingled with dubious peers. He is now determined to reform and he promises that he will not reoffend in future.

Mr Luk submits letters of mitigation by the defendant’s parents and the defendant himself.

Mr Luk submits that applying the tariffs in R v Lau Tak Ming [1990] 2 HKLR 370, trafficking in 50 grammes to 200 grammes of cocaine warrants 8 to 12 years’ imprisonment. For 130 grammes of cocaine, arithmetically the starting point should be around 10 years 2 months.

Mr Luk submits that, according to HKSAR v Ngo Van Nam, CACC 418/2014, the defendant should be given a 25 per cent reduction for his guilty plea.

Consideration

In sentencing the defendant, I have considered the nature and quantity of the dangerous drug, the facts of the case, the background of the defendant and all the matters urged on the defendant’s behalf by Mr Luk.

In applying the sentencing guideline for trafficking in cocaine as set down in R v Lau Tak Ming and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, I should follow the six-step approach in HKSAR v Herry Jane Yusuph, CACC 93/2019.

Mr Luk is right that for trafficking in 130 grammes of cocaine, the defendant’s case falls into the band of 50 grammes to 200 grammes of cocaine, which calls for an initial starting point of 8 to 12 years’ imprisonment.

The appropriate starting point should reflect not only the quantity of the dangerous drug, but also the culpability of the defendant as reflected by the Summary of Facts. It is true that arithmetically, 130 grammes of cocaine calls for an initial starting point of 10 years and 2 months, given the role of the defendant in the trafficking activities in question, a starting of 11 years is warranted.

The defendant was closely related to Room 1119. The room was used as a storage place of a large quantity of cocaine. Obviously, it was also used as a small manufacturing station of cocaine, given the tools, utensils, appliances and paraphernalia and chemicals found in the room.

The defendant role was more than a storekeeper, he was the tenant of the hotel room and he was plainly aware of what was going on inside the room, given the period of time he stayed in the room and the number of visits he made.

For the reasons given, I adopt 11 years’ imprisonment, that is 132 months, as the starting point for the 2^nd charge.

The defendant only pleaded guilty to the 2^nd charge after the committal proceedings. He is entitled to 25 per cent discount for his guilty plea and clear record, that would bring his sentence down to 8 years and 3 months’ imprisonment, that is 99 months’ imprisonment.

I can see no other mitigating or aggravating factors.

In my judgment, a sentence of 8 years and 3 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of the 2^nd charge and the defendant.

Sentence

For the reasons given, on the 2^nd charge, I sentence the defendant to 8 years and 3 months’ imprisonment, that is 99 months’ imprisonment.