COURT: In this case, the defendant faces three charges. He pleaded guilty to and was convicted of Charges 1 and 3, both trafficking in dangerous drugs offences during his fourth committal hearing on 25 May 2020. He pleaded not guilty to what was then Charge 2, manufacturing a dangerous drug. Trial for that charge was set down to commence today, 28 April 2023.
This court was informed by letter on 12 April 2023 of the defendant’s intention to plead guilty to manufacturing a dangerous drug. This is the reason there are two case numbers and two sets of Summary of Facts.
Summary of Facts
A short summary of the facts relating to all three charges will suffice. The police were watching a building on Waterloo Road in the evening of 4 October 2018 when they saw the defendant come out of the building. He looked nervous and was carrying a purple paper bag. He was intercepted. He struggled and resisted police officers. He was eventually subdued and handcuffed.
In his bag were 11 bags of cocaine totalling 262 grammes, the cocaine of Charge 1. He was arrested and admitted going to sell the cocaine found in that bag. He had keys and mobiles on him. One set of keys opened the door to Room A of a unit upstairs on the 3rd floor. There was also a passcode for that lock on the door.
The defendant was taken upstairs and escorted into Room A. It was a one-room studio. The police found a lot more cocaine, this is the cocaine of Charge 3. There was also plenty of evidence of manufacturing drugs in the form of kitchen utensils, a cooker, scales, bags, bowls, and an air-conditioner filter with traces of cocaine. The police found a plastic bottle and a cigarette butt with the defendant’s DNA on both. The fingerprint of the defendant was found on the inside surface of the glass bathroom door.
Under caution at the time of his arrest, the defendant admitted that the drugs found on him as he left the building were manufactured by him and he was going to sell all 11 transparent resealable plastic bags. Inside the premises after the police found more cocaine and evidence of manufacturing crack cocaine, the defendant admitted under caution that in the premises he had helped other people to manufacture dangerous drugs for sale because he owed a lot of debt.
The Failed Attempt to Reverse His Pleas for Charges 1 and 3
In October 2021, the defendant indicated an intention to apply to reverse his plea to both trafficking charges, Charges 1 and 3. After legal aid was specifically granted for this application, several hearings and directions to file affirmations, a three-day hearing was set down on 29 March 2023 to hear the application. I refused the application on 31 March 2023.
Several members of the defendant’s former legal team were made available for the purposes of the application hearing but ultimately were not required to give evidence. The defendant himself elected not to give evidence. No oral evidence was called in the end. All affirmations were taken into account. Two weeks after that decision, the defendant indicated by letter an intention to plead guilty to Charge 2 as well, the manufacturing a dangerous drug charge.
I found the defendant had fabricated allegations against his former legal team to support his application to reverse his pleas. I found the defendant entered his pleas with full knowledge of the evidence against him and had been given proper and full legal advice. There was no basis to allow his application to reverse his pleas either in law or on the facts. Not even in the interest of justice did I allow the application. There was no merit whatsoever in that application.
Mitigation
I have heard and read full mitigation from Ms Cheung on behalf of the defendant and she has provided many helpful authorities to assist me. The defendant is now 28 years old and was unemployed at the time of his arrest. He was briefly married in 2017 for one year and had a son. After his divorce, his son has been raised by his parents. He is now 7 and in primary school. The defendant had a clear record before these offences.
Prior to the defendant’s arrest and before he lost his employment he was working as a telecommunications technician earning about $20,000 a month. I have a letter written by the defendant who now says he has reflected upon his past mistakes, feels great remorse, and intends to lead a law-abiding life after serving his punishment for these offences. He regrets burdening his parents and depriving his young son of a father. He is studying whilst in remand in order to prepare for his future.
Sentencing Approach for Charges 1 and 3
As far as sentencing the two trafficking charges are concerned, the proper approach has been identified in written mitigation by Ms Cheung. There are two trafficking offences because different quantities of cocaine were found in the defendant’s possession on the same day but at different locations. The first amount was found in the bags in his possession during the stop and search after he left the building, and the second amount for the 3rd charge was found upstairs in the premises during the house search.
Separate sentences must be imposed but I will determine the starting point by adding together the quantity of drugs in both Charges 1 and 3. The ultimate appropriate sentence for this total quantity of drugs is then imposed for both charges with the sentences to run concurrently.
According to the sentencing guidelines for trafficking in heroin which applies equally to trafficking in cocaine, trafficking between 600 and 1,200 grammes of cocaine would attract a starting point of between 20 and 23 years’ imprisonment. I have considered the authority of R v Lau Tak Ming [1990] 2 HKLR 370. On the total quantity of the cocaine found by the police on that same day, mathematically, a starting point of 21 years and 8 months’ imprisonment would be appropriate for trafficking in it.
I have considered the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, to be considered when sentencing defendants convicted of trafficking in dangerous drugs. Identifying the defendant’s role is the second step. Here, he is clearly a courier as well as a manufacturer or cook. Bearing in mind the fact that he has been charged with manufacturing as well, Charge 2, I will not enhance the starting points of Charges 1 and 3 to take into account his dual role. The sentence for Charge 2 will reflect that role.
One of the steps is to consider the mitigating factors and discount given for a plea of guilty. There are no further mitigating factors that are relevant here. His previous clear record carries no weight with such serious charges. But for his failed spurious attempt to reverse his pleas to Charges 1 and 3, he would have been entitled to a full one-third discount in sentencing those trafficking charges.
However, he is no longer entitled to a full one-third discount in my view after having heard his application to reverse his pleas. There were several mention hearings and a substantive hearing. Much time, financial resources and manpower was in my view, wasted. His former legal team were all put to the trouble of drafting several affirmations. They were falsely accused of negligence, dishonesty, and perjury.
I can take his actions into account but I will bear in mind he did not give evidence. After careful consideration, I accept the submission in mitigation that I consider at least 25 per cent discount if I find he is no longer entitled to a full one-third discount for Charges 1 and 3. I will reduce the starting point of 21 years and 8 months by 25 per cent.
Charge 2
In manufacturing dangerous drug cases, the quantity of the drugs, if any found, the scale of the operation and the capacity of equipment is relevant in determining a proper sentence. The extent to which an offender participates and the role they play in the matter are also important factors to be taken into account.
Manufacturing a dangerous drug is much more serious than trafficking the same. A person involved in manufacturing deserves a heavier sentence.
The process of manufacturing crack cocaine is simple and fast. All that is required is cocaine, water, baking powder, or soda, cooking utensils, and a source of heat, a cooker. Here, the total amount of cocaine found on the defendant after he left the premises and in the premises added up to 939.78 grammes of cocaine. The defendant has admitted that the estimated value of all of it was in the range of 1.33 million and 1.75 million. There is a range because some of the cocaine was still in powder form and some had been manufactured into crack cocaine. Crack cocaine is more potent and more expensive.
In this case, I have taken into account several factors, such as the size and productivity of the premises for the purposes of drug manufacturing. The extent to which the defendant participated in the drug manufacturing role which he admitted at the scene.
It would appear that the drug manufacturing process was not a one-off, but rather a continuous act or situation since the premises were rented and set up for cooking crack cocaine. After all, the defendant was arrested downstairs, about to go and deliver or sell crack cocaine when there was more powdered form cocaine upstairs to be cooked to make more crack cocaine, I am sure, at a later stage.
I have considered submissions made in mitigation, the seriousness of a manufacturing charge, and the quantity of drugs found that day. I have taken into account the starting point I found appropriate for the amount of drugs involved in Charges 1 and 3, 21 years and 8 months.
I find it appropriate to adopt a starting point of 23 years and 8 months’ imprisonment for the manufacturing charge, Charge 2.
The defendant is not entitled to a full discount of one-third for his very late indication of a plea for Charge 2. I have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, following the Court of Appeal’s guidance and taking into account the fact that a trial date had been set for 28 April 2023, with the defendant only indicating his intention to plea 14 days earlier, the discount can be between 20 to 25 per cent. Having regard to when the defendant indicated his intention to plead guilty and all other relevant circumstances, I intend to apply a discount of about 21 per cent.
Therefore I sentence the defendant as follows;
After applying a 25 per cent discount to the starting point of 21 years and 8 months for both Charges 1 and 3, the trafficking charges, I sentence the defendant to 16 years and 3 months’ imprisonment for Charges 1 and 3.
After applying a discount of about 21 per cent to the starting point of 23 years and 8 months’ imprisonment for Charge 2, the manufacturing a dangerous drug charge, I sentence the defendant to 18 years and 6 months’ imprisonment for that charge.
At this stage, I concern myself with the last and sixth step or stage of the sentencing process as discussed in Herry Jane Yusuph, that is to step back and to look at the overall sentence passed in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of the offences and the offender.
I have weighed a sentence of 18 years and 6 months, if I make all three sentences concurrent, against this principle, the drugs involved and the facts of all the charges as well as the mitigation put forward. Standing back, it is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced, or unjust.
After I have considered the totality principle and the facts of the case together, I will order all three sentences to be served concurrently. Accordingly, the defendant is sentenced to a total of 18 years and 6 months’ imprisonment.