COURT: The defendant was charged with conspiracy to manufacture a dangerous drug, contrary to section 6(1)(a) and (2) and 39 of the Dangerous Drugs Ordinance, Chapter 134 and sections 159A & 159C of the Crimes Ordinance, Cap 200. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
On 20 August 2020, the police mounted an anti-narcotic operation and officers laid ambush in Vista Paradiso. The defendant was seen getting into a taxi. The police intercepted the taxi and told the defendant to get out as he was suspected to be trafficking in dangerous drugs. The police wanted a body search. The defendant became emotional and refused to get off the taxi so the police pulled the defendant out and he tried to escape without success.
Upon body search, a police officer found from the defendant, among other things, two keys and a tenancy agreement of a flat in Vista Paradiso.
Using the keys found on the defendant, the police gained entry to the flat, executing a search warrant. In the kitchen of the flat, the police found:
(a) 12 plastic bags containing a total of 286 grammes of a solid containing 250 grammes of cocaine;
(b) 10 plastic bags containing a total of 198 grammes of a solid containing 170 grammes of cocaine. And the defendant’s DNA was found in the bags;
(c) a set of metal pot containing traces of a solid containing cocaine;
(d) a gas stove which did not contain any controlled substance;
(e) two hood covers which did not contain any controlled substance;
(f) a plastic bottle containing traces of a liquid which did not contain any controlled substance;
(g) a paper box and 325 grammes of a powder containing sodium bicarbonate which is not a controlled substance;
(h) two electronic scales containing traces of a powder containing cocaine;
(i) a plastic measuring cup, one pair of scissors and a metal spoon containing a total of 1.6 grammes of a solid containing 1.45 grammes of cocaine;
(j) a plastic measuring cup containing 12.9 grammes of a solid containing 10.6 grammes of cocaine;
(k) a metal bowl containing traces of a solid containing cocaine;
(l) a metal sieve which did not contain any controlled substance;
(m) two paper boxes containing a total of 890 grammes of a powder containing sodium bicarbonate which is not a controlled substance;
(n) five glass bottles containing traces of a liquid containing cocaine. The defendant’s DNA was found in three of the bottles;
(o) two plastic bags containing traces of a solid containing cocaine;
(p) a bottle opener;
(q) three boxes of transparent resealable plastic bags;
(r) a box of plastic gloves.
On a table in the living room, the police found the following:
(a) two glass bottles containing 3.13 kilogrammes of a liquid containing 799 grammes of cocaine hydrochloride;
(b) a sealing machine which did not contain any controlled substance;
(c) a water bill under the defendant’s name;
(d) nine pieces of paper which were seemingly records;
(e) a plastic bottle. The defendant’s DNA was found from the bottle.
The defendant was arrested for manufacturing a dangerous drug. Under caution, the defendant said, “I helped another to cook. The reward was HK$10,000 for cooking a bottle of red wine; those are dangerous drugs.”
Various exhibits were seized upon the suggestion of a government chemist, Mr Kwok, who came to inspect the premises.
Mr Kwok explained that cocaine commonly existed in two chemical forms: Cocaine base form and cocaine hydrochloride. Cocaine base can be converted from the hydrochloride to make it suitable for smoking, in a process using an alkaline substance such as sodium bicarbonate. The cocaine base produced is commonly known as crack.
Mr Kwok gave his view or opinion as follows:
(a) The two glass bottles found in the living room contained a liquid containing cocaine hydrochloride, which could be a starting material for preparation of the cocaine base, that is, crack cocaine.
(b) The three paper boxes found in the kitchen contained a powder containing sodium bicarbonate, which could be used as an alkaline material for preparation of the cocaine base.
(c) The 22 plastic bags found in the kitchen contained a solid containing cocaine base. The cocaine base could have been the product of the aforesaid cocaine base manufacturing process.
(d) Paraphernalia found at the scene, including the metal pot, the plastic measuring cups and the metal bowl were all found to contain cocaine. These findings indicated that these paraphernalia could have been associated with the process of converting cocaine hydrochloride with sodium bicarbonate.
(e) The electronic scales were all found to contain traces of cocaine. These findings suggest that these items could have been used in handling cocaine.
(f) And the solid found in the sink and the water tap was found to contain cocaine. This finding indicated that a handling process of cocaine had taken place in the sink.
So as a result of the scene inspection and subsequent laboratory findings listed above, Mr Kwok was of the opinion that, considered collectively, the above chemicals and paraphernalia seized at the scene were items commonly associated with the process of making cocaine base and that they have been involved in making cocaine base from liquid cocaine hydrochloride in the said premises.
The defendant admitted, during two video-recorded interviews, that he agreed in June 2020 with someone called Ah Wing to cook cocaine for a reward. He was given money to rent a flat and he rented the flat in question. He also gave descriptions of purchasing the raw materials and cooking utensils, and how they cooked the cocaine. The cocaine found in the 22 plastic bags were cocaine cooked by him. He was given $50,000 in July by Ah Wing as a reward, but he had already spent the money to repay debts. He told the police that photos and videos of him cooking cocaine could be found in a hidden album in his mobile phone. The photos capturing cocaine-cooking at the flat were taken by him. Some of the videos were taken by him, some sent by others. The defendant also identified the written record recording the quantity of cocaine manufactured.
The landlord of the flat confirmed that she had leased the premises to the defendant on 20 July via a property agent. Those were the facts admitted by the defendant.
Background and Mitigation
According to the antecedents statement, the defendant is a 29-year-old single man with two previous convictions of possession of dangerous drug. He was educated up to secondary level and had worked as a kitchen worker and car mechanic.
Ms Sabrina See, counsel for the defendant, confirmed the contents of the antecedents statement and I was informed that the defendant became a drug abuser when he was about 19 years of age, and he had the habit of taking cocaine prior to his arrest. And due to the COVID-19, he was not able to have a secure job and he owed others a lot of money. He agreed to manufacture for Ah Wing under the guidance or instructions of Ah Wing.
Ms See submitted that the defendant made full admission after arrest and he cooperated with the police by giving his passcode to his mobile phone so that the police could access the photos and videos of him cooking cocaine.
The defendant pleaded guilty at the earliest opportunity and he regretted committing the present offence. Ms See submitted that although the defendant had two previous convictions of possession of dangerous drugs, he had not been in gaol before and he did not realise the offence he committed was so serious and would attract such a long term of sentence.
Ms See, on behalf of the defendant, urged this Court to consider the following matters in sentence:
(1) the quantity of drug seized was not huge, a total of 1,231 grammes of cocaine;
(2) the length of time for the manufacture was about two months;
(3) the scale of workshop was small and the defendant worked alone;
(4) the method of manufacture was simple and not sophisticated; and
(5) the defendant was not the mastermind.
Ms See referred to the sentencing guidelines in the case of Lau Tak Ming used for the trafficking of cocaine and submitted that 1,231 grammes falls into the 1,200 to 4,000 grammes band with a starting point between 23 to 26 years. Ms See urges this Court to adopt a starting point of 23 years.
Consideration of Sentence
In the case HKSAR v Wong Ping Kay [2002] 3 HKLRD 161, the Court of Appeal said that the quantity of the drugs, the scale of the operation and the capacity of the equipment should be considered in determining the proper sentence for manufacture of dangerous drug. In another case, HKSAR v Cheng Chi Wai, unreported [2021] HKCA 181, the Court of Appeal said that:
“Apart from the quantity of drug seized, the length of time for which the drug-manufacturing workshop has existed and operated, its scale and productivity, the quantity and standard of the drug-manufacturing paraphernalia, the extent to which the defendant participated in the drug-manufacturing and the role he played in the matter are all important factors to be taken into account in sentencing.”
Now, in my view, it would not be appropriate to sentence the defendant as if he had been found guilty of trafficking the cocaine in question. In the case R v Cheung Wai Kwong [1997] 3 HKC 496, the Court of Appeal said:
“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence.”
Furthermore, one must also bear in mind that the defendant had pleaded guilty not just to manufacturing dangerous drugs, but conspiracy to manufacture, which is a more serious offence. And because he had been involved in a conspiracy, it would be inappropriate to sentence the defendant on the basis that he worked alone.
Now in coming to my decision as to the proper starting point, I take into account the quantity of drugs found, that is 1,231 grammes of cocaine, and the fact that the operation had been going on for about two months, that is starting from the time the defendant agreed with Ah Wing and rented the premises and so on, and the defendant was acting together with the co-conspirator to manufacture the cocaine, although the defendant was the only person who actually performed the manufacturing process, he rented the premises and sourced the raw material for the process. I also take into account that the scale of the manufacture is not big, but on the other hand it was easy to convert the liquid cocaine into crack cocaine.
After considering all these matters, I am of the view that a starting point of 25 years is appropriate.
The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. And apart from this discount on his plea, I do not see any other ground to further reduce his sentence.
So for the offence of conspiracy to manufacture a dangerous drug, the defendant is sentence to 16 years and 8 months’ imprisonment.