And on these charges, he was committed to this court for sentence. The facts and the pleas were confirmed by him on 23 February this year. However, sentencing was adjourned till after the trial of the 3rd and the 4th defendants in the case.
The facts are quite extensive in that it began on 19 October 2018 when police officers saw the 1st defendant and his female friend, who was the 2nd defendant originally, came out from the flat in Park Yoho. And they were intercepted and the drugs were found which is the subject matter of the 1st charge. And when cautioned, he admitted that “Ah Wa” had told him to bring those bags of “coke” to Yoho Town for delivery and that he would be rewarded with several thousand dollars.
Later, entry was gained into the flat, and inside the flat was found Sum Ka-wa, the 2nd defendant in these proceedings and the 3rd defendant in the original indictment. And inside the flat, there were found equipment for the manufacture of dangerous drugs and also the dangerous drugs which is the subject matter of the 3rd charge. And then also found inside the flat with the 3rd accused was drugs which is the subject matter of the 2nd charge which the 2nd accused faces by himself. And I will deal with that a little later on.
And the 1st defendant in his video-recorded interview gave an account about how he met the 2nd accused in this case, Sum Ka-wa, and how on 19 October he was present inside the flat when he saw the 2nd accused, Sum Ka-wa, prepare the cocaine into packages for him to deliver. And he also, in a video-recorded interview, claimed that he saw Sum Ka-wa mixing cocaine with soda powder and water, etc.
And so the total estimated street value of all the drugs that were seized came to a staggering value of about $38,181,941.45.
Now, in relation to the 2nd defendant, Sum Ka-wa, he had also pleaded guilty to the 2nd charge in the lower court for trafficking in a dangerous drug, namely, 444 grammes of a solid containing 405 grammes of cocaine and 3,991 grammes of a solid containing 3,025 grammes of cocaine hydrochloride. He had also pleaded guilty to the 3rd charge jointly with the 1st accused. And he had also pleaded guilty to the 4th charge of manufacturing a dangerous drug which is, namely, cocaine, and the place of the manufacture was the flat in Park Yoho.
And as far as the facts are concerned in relation to the 2nd accused, Sum Ka-wa, he had also admitted that the paraphernalia for manufacturing were found inside the flat and he said under caution that he was responsible for looking after the flat for others and that he would be rewarded $8,000 for each kilogrammes of dangerous drug that he handled. And the thumb prints of the 3rd accused were lifted from some glass beakers which were found in the kitchen and his DNA was also found on a number of bags containing drugs. His DNA was also found on two other bags of cocaine hydrochloride which was carried by the 1st accused when he left the flat.
And the Summary of Facts which he admitted to, he admitted that the manufacturing was done with the material and the tools which were found inside the flat. And the 2nd accused in his video-recorded interview said that he came to know this person called “Sun Gor” about two years prior to his arrest and that three months before his arrest, this person, Sun Gor, passed him the key to the flat and that he occasionally slept in the flat and that the machinery for manufacture were already in the flat when he first arrived at the flat.
And he said about three weeks prior to his arrest, he had helped carry drugs to the flat and so he would listen to the directions of this person called Sun Gor as to who to give the drugs to. And he does not know the telephone number of this Sun Gor and he also admitted to the value of the drugs which were seized in the sum of over $38 million.
Now, these are extremely serious charges and as Mr Ma and Mr Fung said, there is not very much in the background that would alter the seriousness of the offences. The only real mitigating factor is the fact that they pleaded guilty at the earliest opportunity and is therefore entitled to the full one-third discount.
I also agree with both counsel that for this amount of drugs that the only sensible approach is a global approach as far as considering sentence is concerned.
So as far as the drugs in relation to the 1st accused is concerned, I agree with Mr Ma that the total starting point for all the drugs in relation to the two counts he pleaded guilty to would merit a total sentence of over 30 years. And Mr Ma also submitted that he was a courier as far as his role was concerned and unlike the 2nd defendant, Sum Ka-wa, who was manufacturing, he only went to the flat to pick up the drugs and although he knew fully what was going in.
In relation to the 2nd defendant, Sum Ka-wa, Mr Fung correctly also supports the view that as far as sentencing is concerned, a global approach is reasonable in the circumstances. And he prays in aid the case of HKSAR v Casado Montalvo Omar Esteban and Others, the High Court case of number 233/2019, where 16.3 kilogrammes of cocaine was found in the premises. And the court, using the quantity of cocaine which was found inside the premises as a yardstick, had proposed a starting point of 30 to 31 years would be appropriate for the manufacturing charge. However, different levels of starting point were adopted for the different participants.
The fact in this case was that as far as the manufacturing is concerned, it was not just a one-off operation. It was plainly an operation that had been going on for some time. And even considering the 2nd defendant’s admission that he only was in the flat for a couple of weeks, however, the amount that was generated was not only the amount found inside the flat by the police at the time.
So considering the sentence in this case and the various guidelines which Mr Fung has identified in relation to the different types of cocaine, I consider that as far as the 1st accused is concerned, on the 1st charge, that a starting point sentence of 25 years and 3 months is appropriate, reduced by one-third to 16 years, 10 months. In relation to the 3rd charge, I consider that a starting point of 33 years reduced by one-third to 22 years is appropriate.
In relation to the 2nd defendant, Sum Ka-wa, on the 2nd charge, I consider that a starting point of 25 years and 3 months is appropriate, reduced to 16 years and 10 months because of his plea. On the 3rd count which he jointly faces with the 1st defendant, I also consider a same starting point of 33 years, reduced to 22 years because of his plea.
Now, on the 4th charge for manufacturing, as I have said, it was clear that manufacturing was going on inside the flat and although even accepting his admission that he was not the mastermind, he was in fact a custodian of the whole operation. And I consider that the operation is not one that is minor. It is fairly large operation and capable of producing large amounts of drugs. So I would consider that an appropriate sentence to be one of starting point of 33 years after trial. And because of the fact that he had pleaded guilty, the sentence will be reduced to 22 years.
Now, I have to consider the totality principle. Having considered the totality principle and in relation to the 1st accused, as Mr Ma said, the 1st accused, three previous dangerous drugs convictions were for possession. This is his first time when he is charged with trafficking. I will therefore have to considering the totality principle, sentence the 1st defendant in this way.
On the 1st charge, he is sentenced to 16 years 10 months.
On the 3rd charge, his 22 years’ imprisonment, 4 years will be consecutive to the sentence in the 1st charge, which would make a total sentence of 20 years and 10 months.
In relation to the 2nd defendant, Sum Ka-wa, again, in relation the 2nd charge, he is sentenced to 16 years 10 months.
In relation to the 3rd charge, 22 years, 4 years will be consecutive to the sentence in the 2nd charge, which will make a total sentence of 20 years and 10 months.
Now, in relation to the 4th charge of manufacturing, the starting point of 33 years is reduced to 22 years and of that, 6 years will be consecutive to the sentences in the 2nd and 3rd charges. And therefore, the total sentence will be one of 26 years and 10 months.