He was seen to leave the flat at 2224 hours that night carrying a paper bag. A search of that bag found 12 individual plastic bags with a total weight of 285 grammes containing 245 grammes of cocaine. He also had $4,700 in his possession. When intercepted, the defendant admitted that he was going to sell the ‘coke’ to others. That cocaine forms the basis of Count 1.
The police then carried out a search of the flat and found a further seven plastic bags of cocaine, one of which had a further 14 plastic bags of cocaine within it. The narcotic weight of those seven bags of cocaine was 294.21 grammes. This forms the basis of Count 2.
Flat B on the 31st Floor of Tower 17, Ocean Shores, O King Road, Tseung Kwan O is a very smart building according to the photographs. The defendant had entered into a tenancy agreement for this property on 24 April 2020. He maintained that he was unemployed at the time of his arrest and yet he was able to rent a property for $16,500 per month and provided a security deposit for double that amount. The flat was clearly not occupied. Cupboards were bare, the beds unmade and there were no personal products in the bathroom. This was a property rented for the sole purpose of manufacturing drugs.
The photographs show a large pan on the stove in the kitchen, the remains of crystals in the sink which were found to contain cocaine and in one of the bedrooms there were scales, plastic bags, a metal mixing bowl and almost a kilogramme of bicarbonate soda as well as empty plastic bags and marker pens for onward sale of the crack cocaine which was to be made there.
It would appear that this flat was used solely to produce crack cocaine and given what was recovered from the defendant that evening, he could easily produce a kilogramme of cocaine a day.
The defendant is just 22 years of age and he is single. He was 19 at the time of this offending and lived with his parents and siblings. He has only one matter, which is a theft, on his record and which dates back to 2015 when he would have been just 15 years old for which he received a probation order which he breached. He left school after Form 3 and undertook vocational training as an electrical engineer but did not complete the course. Thereafter, he had a number of part-time jobs.
At some stage, he started taking drugs. When he was not in employment, he could not afford to keep himself and maintain that habit and so he says he was recruited to watch over the flat and to pack and deliver the drugs. In return, he was allowed to have some of the drugs for his own consumption.
The total quantity of drugs recovered under Counts 1 and 2 was 539.21 grammes. For trafficking in 539.21 grammes of cocaine, the defendant falls to be considered under the guidelines set out in HKSAR v Lau Tak Ming [1990] 2 HKLR 370. For trafficking in between 400 and 600 grammes of cocaine, the guideline sentence after trial is between 15 to 20 years’ imprisonment.
(Discussion re length of sentence)
For trafficking in 539.21 grammes of cocaine, the starting point for sentence after trial is 18 years 5 months. If I were to consider each count individually, then the defendant would receive a starting point for sentence after trial of 12 years and 6 months under Count 1 and 13 years and 6 months under Count 2, making a total sentence of 26 years. But these two counts fall to be considered as one course of events and it is therefore correct to consider the total value of the drugs for the purpose of the ultimate disposal of this matter rather than the individual quantities.
The manufacturing of dangerous drugs is a far more serious offence than trafficking dangerous drugs and a person found to be manufacturing dangerous drugs deserves a far heavier sentence than a person found to be trafficking. That is HKSAR(R?) v Wong Chun Ping and Others [1984] HKLR 247, approved in HKSAR v Cheung Wai Kwong and Another [1997] HKLRD 344.
In seeking to achieve the correct sentence for this offence, the court is required to consider the scale of the operation, the capacity of the equipment and whether it was capable of producing substantial quantities of drugs as well as the role played by the defendant in it. The difficulty is that the court does not know the exact manufacturing capacity of this enterprise. As the Court of Appeal stated in HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799:
“...where a conspiracy to traffic in an unspecified quantity of dangerous drugs is concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts in the case. Those facts, and those inferences and assumptions from which they derive, will vary from case to case. We would add that, unless the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence.”
There was evidence that evening of the fact that some 500-odd grammes had recently been produced and the defendant accepted that he was going to sell it on. There was no evidence to suggest that anyone other than the defendant was involved in this operation on a day-to-day basis. He had rented the premises on 24 April 2020 for a period of two years, but had only been operating at best for 11 days. The operation was a simple one, but the manufacture of crack cocaine is a simple one and very few tools are required in order to produce a very large amount of crack.
On the other hand, given his background, it is highly likely that the defendant was receiving the cocaine from someone else and then perhaps purchasing all the other necessary equipment in order to make and distribute these drugs to customers for someone else.
If manufacturing is considered more serious than trafficking and if the combined amount of crack cocaine recovered would attract a starting point for sentence of 18 years and 5 months and is equivalent to what might be produced on a daily basis, giving the benefit of the doubt to the defendant, what then is the appropriate sentence for the manufacturing of it given the proven facts and the inferences which can be drawn from them?
Given his role, the period of time over which the defendant was in a position to manufacture and distribute the drugs and the amount which was recovered on arrest as a guide to what might be produced, at the least on a daily basis, I consider an uplift of 2 years is appropriate to reflect the established view that the manufacture of drugs is more serious than the trafficking of them.
On Count 1, I adopt a starting point after trial of 12 years and 6 months, which after discount for his early plea of guilty is 8 years and 4 months. On Count 2, I adopt a starting point of 13 years and 6 months, which after discount for his early plea of guilty is 9 years. On Count 3, bearing in mind the fact that if these drugs were within one count, the appropriate starting point would be 18 years and 5 months, I consider the correct starting point after trial for manufacturing these drugs to be one of 20 years and 3 months, which after a one-third discount for plea is 13 years and 6 months.
On Count 1, the defendant will go to prison for 8 years and 4 months. On Count 2, he will go to prison for 9 years, that sentence to be served wholly concurrently with Counts 1 and 3. On Count 3, he will go to prison for 13 years and 6 months, that sentence to be served wholly concurrently with Counts 1 and 2.
The total sentence of imprisonment is therefore one of 13 years and 6 months.