COURT: The defendant pleaded guilty before a magistrate to one charge of manufacturing of a dangerous drug and was committed before me for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, type of the dangerous drug involved, personal background of the defendant and mitigation put forward on his behalf.
The facts which the defendant admitted may be summarised as follows. The police conducted a search of a shack premises in which the defendant was found in one of the three bedrooms. Many dangerous drug manufacturing apparatus and equipment were found inside the premises. On some of these items, methamphetamine traces were found. Two plates of ‘Ice’ and semi-finished product in the form of methamphetamine were also found. The total quantity of the methamphetamine hydrochloride found was 38.4 grammes. There were also 8.45 grammes of methamphetamine.
The defendant admitted under caution manufacturing of the dangerous drug. He said a man called Kam Mo who sold him ‘Ice’ before requested him to make ‘Ice’ and provided him with all the necessary chemicals and equipment.
He picked up the medicine pills for this purpose about one week prior to the search. He extracted ephedrine from the pills and produced ‘Ice’ through some chemical process. He was waiting for Kam Mo to collect the finished product.
I was told that the defendant is 66 years of age. He is married with two sons both adults. He had received education up to Secondary 3 in the mainland and came to Hong Kong in 1979. He had been employed as a decoration worker as well as warehouse attendant.
He is not a person of clear record but all his previous records are not related to dangerous drug and the latest conviction was back in 1998. He claimed to be addicted to drugs.
In mitigation, learned counsel for the defence, Mr Ma, stressed that the defendant had pleaded guilty at the earliest opportunity. The circumstances in which the defendant committed the offence was as he stated during the video-recorded interview. Mr Ma asked the court to take into account that only one type of drug was manufactured. The place where the defendant committed the offence was indeed his own residence. All the raw material and equipment for manufacturing the drug were provided to the defendant by Kam Mo and the duration in which the defendant had engaged in the exercise was only about one week.
Mr Ma also urged the court to accept that in this one-week time the defendant could only produce 23 grammes of ‘Ice’, thus reflecting the low productivity of the operation. Mr Ma also submitted that only the defendant alone was involved in this small scale operation and the defendant was manipulated by Kam Mo. Mr Ma also pointed out that the defendant had not tried to escape nor try to destroy part of the dangerous drug existing in the premises so as to lower his culpability. Mr Ma also asked the court to accept that the defendant had been promised part of the drug produced as his reward for self-consumption.
Trafficking in a dangerous drug is an offence of serious nature. Manufacturing dangerous drug is, in most circumstances, much more serious than trafficking in dangerous drug. Despite most manufacturing cases take the form of refining process, trafficking activities in particular for this type of drug depend on this refining process.
In sentencing, the quantity of drug found is relevant to the sentence but this is not the only factor to be taken into consideration. The court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing more or was likely to produce a substantial quantity of drug and the role of the defendant.
In assessing the scale of the operation, the circumstances in which the dangerous drug was found, the quantity of the dangerous drug found and the paraphernalia found as well as other relevant evidence such as confession of the defendant should all be taken into account.
In the present case, evidence shows that the defendant was engaged by another person who had sold drug to the defendant before to manufacture dangerous drug. From the defendant’s own admission, he received a substance for the manufacturing only a few days prior to his arrest. The defendant was a person who is involved in the manufacturing process and it seems that he was the only person directly involved.
As regards the capacity of the operation, the paraphernalia found and the drugs seized are useful indications. The equipment found was as stated in the Summary of Facts. The narcotic content of the dangerous drug found inside the flat was in the region of some 46 grammes of two forms of methamphetamine.
Taking into account the circumstances of the police entry into the flat, there was no indication that the defendant had discarded some of the dangerous drug before those seized were found.
If it was a case of trafficking, just taking the quantity of the drug involved into account, a starting point of around 9 years and 5 months should be considered. This is, however, a manufacturing case which is more serious in nature. In my assessment, this case ranked at the lower end of the spectrum of size of operation and the role of the defendant was also at the low end of the hierarchy.
I also have to take into account that it defies common sense to think that this place would only be used for the purpose of manufacturing a quantity of dangerous drug as seized. Continuation of the operation was only interrupted by the action of the police.
In consideration of sentence, I have had regard to the cases including HKSAR v Kan Kong Fai [2009] 3 HKLRD 582, R v Cheung Wai Kwong [1997] HKLRD 344, HKSAR v Wong Ping Kay [2002] 3 HKLRD 161 and HKSAR v Ip Yuet Ho [2008] 6 HKC 35. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
I do not consider the previous criminal record of the defendant calls for enhancement of the sentence.
In all the circumstances, I adopt a starting point of 11 years and 9 months. I have considered the submission that part of the drug produced would be for the defendant’s own consumption.
Having regard to the whole circumstances, in my judgment, the quantity of drug for that purpose would not have been significant and in any case, my assessment is that such drug would have carried a very high latent risk. For these reasons, I do not think that such assertion has any material impact on the sentence.
The defendant pleaded guilty before the magistrate and for this he is entitled to a one-third discount. In all the circumstances, having regard to submission of learned defence counsel, I am of the view that this is the extent of discount the defendant is entitled to.
So defendant, please stand up. For the reasons I have said, I sentence you to an immediate imprisonment term of 7 years and 10 months.