COURT: Defendant, on 3 January 2023, you pleaded guilty before a magistrate to three charges. The 1st and 2nd charge relate to trafficking in dangerous drugs. The 3rd charge relates to manufacturing of dangerous drugs. The charges were committed all on the same date and all at the same location. That is on 27 November 2020, at Room 803, Royal View Hotel, No. 353 Castle Peak Road, Ting Kau, Tsuen Wan, New Territories.
In respect of the 1st charge, you admitted that you were trafficking in one plastic bag containing 972 grammes of a solid containing 884 grammes of cocaine hydrochloride and 24.16 grammes of a solid containing 21.82 grammes of cocaine.
In respect of the 2nd charge of trafficking in dangerous drugs, you admitted that you were trafficking, in one plastic bag, the drugs containing 0.26 grammes of a solid containing 0.24 grammes of cocaine.
In respect of the manufacturing charge, you admitted that you unlawfully manufactured the dangerous drug, namely, cocaine. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.
The Summary of Facts in support of the charge to which you admitted before the magistrate and to which you admitted to the amendments before this court today can be summarised as follows.
On 27 November 2020 at about 8 pm, police officers of the Narcotic Bureau conducted an anti-narcotics operation in the Royal View Hotel. The police officers intercepted you when you left Room 803 of the hotel. Upon interception, you attempted to flee but was subdued. With the room key found in your possession, the police escorted you back into Room 803.
Upon search, a large amount of cocaine, that is the cocaine mentioned in Charge 1 and numerous drug manufacturing paraphernalia were found in the room. The drug packaging paraphernalia included, amongst many others, an electric stove, a metal pot, measuring glass beakers, bowls, soda powder, plastic gloves, electric scale, electric sealing machines. And of some of these paraphernalia, traces of cocaine were found or contained some cocaine.
In respect of Charge 2, the trafficking count, those drugs were found on your person together with three mobile phones. When you were arrested for manufacturing of dangerous drugs and trafficking in dangerous drugs, under caution you admitted that you manufactured dangerous drugs, ie, the cocaine for others for a reward of $1,500. You further admitted that you had brought the bag of cocaine you had just produced or manufactured, you were bringing to a customer for testing the quality.
A government chemist was summoned to the scene at Room 803 and confirmed the setting in the hotel room was fit for manufacturing dangerous drugs.
With reference to the general cocaine manufacturing scenario that is from cocaine hydrochloride into cocaine base or crack cocaine, the observations made by the Government chemist that is by looking at the paraphernalia found including the skimmer, the glass beaker and various containers containing traces of cocaine, the discovery of cocaine hydrochloride, soda powder, and cocaine base or crack cocaine in Room 803, the government chemist opined that the chemicals and the paraphernalia seized at the scene could have been involved in the making of cocaine base or crack cocaine at the scene.
The police had inquired with Royal View Hotel and it was confirmed that at about 6 pm that day, that is about two hours before you were arrested, you had checked-in alone to Room 803 by using your Hong Kong ID card and that you had paid $319 cash for the hotel room. CCTV footages of the room of the Royal View Hotel were observed at the material time and no other person other than yourself had entered or left Room 803.
Various photographs were found in your telephone through the WhatsApp media folder and they also confirmed that they were taken in that room on that day during the manufacturing process.
In a video-recorded interview under caution, you admitted that you had been recruited by a person called Dai Shi Hing about two to three months ago and this was someone who you had met in a bar in Tsim Sha Tsui. Knowing that you were unemployed, he invited you to manufacture dangerous drugs for him for the reward of $1,500 each time.
You agreed to do that for him and exchanged your contacts. A few days before your arrest, Dai Shi Hing contacted you and asked you to pick up a suitcase at the downstairs of your residence. When you took the suitcase back to your home, you found manufacturing paraphernalia inside but no drugs.
You stated and claimed that on 27 November, you picked up the bag of cocaine at a street in the Kwai Chung Industrial area as instructed by Dai Shi Hing. Afterwards, you then brought the suitcase and the bag of cocaine with you in a taxi to the Royal View Hotel in Tsuen Wan. You then booked the room for one night to cook the cocaine.
In the video-recorded interview, you elaborated on how you cooked the cocaine. After having cooked some cocaine, Dai Shi Hing directed you to bring some crack cocaine as a sample to a customer and on doing so, of course, you were then arrested.
The estimated street value of the dangerous drugs found in this case being 906.06 grammes of cocaine hydrochloride was estimated to be at $1,299,332 or if it was crack cocaine, valued at an estimated $2,431,265 as at November 2020.
Defendant, you were born on 9 May 1975. Of course, it is noted that your birthday will be tomorrow. You are still 47 years of age. You have 24 previous convictions on 13 occasions. None are similar to the present charges, but six are related to dangerous drugs, mostly for possession of dangerous drugs.
You have admitted in your antecedents that you are a drug dependent and you have informed me you have been a drug addict since you were approximately 14 years of age.
Prior to your arrest, you were a self-employed truck driver, earning $30,000-odd a month. You have been educated up to secondary 3 level. You are a divorcee with two children, two boys. Your ex-wife and son are present here in court.
Mr Victor Ho, your counsel, has submitted very detailed written submissions to this court which I have taken into account. He has just elaborated today before me that in this case you co-operated with the officers immediately upon arrest and gave a detailed admission in your video-recorded interview.
In this case, you were not the mastermind but were instructed clearly to manufacture dangerous drugs by a person called Dai Shi Hing. It is Mr Ho’s submission that you had only engaged in one day of manufacturing, in fact, only probably just two hours of drug manufacturing. You were instructed by Dai Shi Hing on how to mix the chemicals.
In respect of the trafficking charges, Mr Ho refers to the case of Herry Jane Yusuph [2021] 1 HKLRD 290. And in respect of the manufacturing charge, Mr Ho refers to the case of HKSAR v Cheng Chi Wai [2021] HKCA 181. He asks this court to impose a concurrent sentence for the manufacturing and drug trafficking charges and says that you, defendant, as submitted in your letter are very remorseful and you had worked hard to earn a living. You understand this is a huge mistake made by you. You are willing to face the consequences and bear the responsibility. Particularly, you are very grateful for having your sons and ex-wife who are very supportive.
Defendant, the charges to which you face as you are well aware, are very serious charges of trafficking and manufacturing in dangerous drugs. You had been found to traffic in a total of 906.06 grammes of cocaine. That total being the total of Charges 1 and 2.
The guideline case for trafficking in that large quantity of drugs is laid down in the well-known case of Abdallah [2009] 2 HKLRD 437. For trafficking in that amount of drugs, the starting point between 600 and 1,200 grammes is that of 20 to 23 years’ imprisonment.
Defendant, for Charge 1 you trafficked in 905.82 grammes of cocaine. had you been convicted after trial, an appropriate term for that quantity of drugs would have been a starting point of 21 years and 6 months’ imprisonment.
You have pleaded guilty, that is your strongest mitigating factor, at the earliest opportunity and for that reason you should be granted the full one-third discount. Therefore, on Charge 1, you shall be sentenced to a term of 14 years and 4 months’ imprisonment.
On Charge 2, you were trafficking in 0.24 grammes of cocaine. The guideline case for trafficking that amount of cocaine is that laid down in Lau Tak Ming [1990] 2 HKLR 370. The guideline for trafficking for up to 10 grammes of cocaine is 2 to 5 years. For this quantity of cocaine, defendant, had you been convicted after trial, a starting point of 2 years would be appropriate. Giving you full credit for your plea of guilty that should be reduced to one of 1 year and 4 months’ imprisonment.
Turning to Charge 3, the manufacturing in dangerous drugs charge, the authority that Mr Ho relied upon is HKSAR v Cheng Chi Wai [2022] 3 HKLRD at page 408 or the court citation of [2021] HKCA 181. That is the most recent judgment as I can see regarding manufacturing dangerous drugs which was handed down on 2 March 2021 by Yeung VP, as he then was, giving judgment of the court. In that case, the court reflected upon the very well-known case of R v Cheung Wai Kwong [1997] HKLRD 344, to which the courts have had had regard when imposing sentences for manufacturing dangerous drugs.
The starting point for manufacturing offences are based on the overall circumstances of individual cases. The factors to be taken into account are the quantities seized at the manufacturing location which is and must be a relevant factor. What is also taken into account is the size and productivity which reflects the seriousness of the offence.
Further, the length of time the workshop had operated is a factor and its scale and productivity. The quantity and standard of the manufacturing paraphernalia as well as the extent of the defendant’s participation and role were all important factors.
In Cheng Chi Wai, one of the court’s findings and holdings was that if the manufacturing act was one-off rather than continuous, a starting point slightly higher than that for trafficking in the same quantity of drugs might be appropriate.
Defendant, here there was a large quantity of drug manufacturing paraphernalia and chemicals used to manufacture the cocaine into base or crack cocaine.
In this case, defendant, you have admitted the offences at the very first opportunity and your admission supports the fact that this was the first day you manufactured cocaine at the hotel room which is what is known as the workshop.
You had only checked into the hotel some two hours before you were arrested. I therefore accept on the evidence before me in this case that this was a one-off rather than a continuous manufacturing. I have regard to the role to which you have played that you were instructed by someone else to manufacture these drugs and that during that manufacturing process, you had in fact sent WhatsApp photos to that person.
The quantity of drugs found was large at about 950 grammes. As one knows, manufacturing is much more serious than trafficking charges and it is a well-known principle that for manufacturing offences, sentences are far heavier than those of trafficking offence.
But in this case, given I find that it was a one-off time of manufacturing and following the court in Cheng Chi Wai, I consider a starting point slightly higher than that for trafficking in the same quantity of drugs to be appropriate.
In the circumstances, for Charge 3, I take a starting point of 23 years’ imprisonment had you been convicted after trial. Giving you full credit for your plea of guilty of one-third, that shall be reduced to 15 years and 4 months’ imprisonment.
The sentences in Charge 1, 2 and 3 shall run concurrent to each other. Defendant, you shall therefore serve a term of 15 years and 4 months’ imprisonment.