COURT: Chu Pak-kiu, you confirmed your plea to two counts of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134; and one count of manufacturing a dangerous drug, contrary to section 6 of the ordinance, and you confirmed your admission of the Summary of Facts and you are hence, convicted as charged.
The particulars of the 1st count are that on 24th day of March 2022, outside the entrance of Golden Lion Garden Phase 2, Nos. 1 to 3 Kak Tin Street, Sha Tin, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 167 grammes of a solid containing 134 grammes of cocaine.
The particulars of the 2nd count are that on 24th day of March 2022, at Flat 2, 12th Floor, Block C, Golden Peace Court, Golden Lion Garden (referred to as “the Flat”), in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 574 grammes of a solid containing 424.3 grammes of cocaine and 3,017.86 grammes of a solid containing 2,453.76 grammes of cocaine hydrochloride.
The particulars of the 3rd count are that on 24th day of March 2022, at the flat in Hong Kong, unlawfully manufactured a dangerous drug, namely, cocaine.
The Admitted Facts
The facts admitted are that in the evening on 24 March 2022, a team of customs officers carried out an anti-narcotics operation in plainclothes in the Sha Tin area.
At around 2137 hours, the accused emerged from the entrance of Golden Lion Garden. He was on his own and was carrying a black plastic bag. When the officers approached the accused, revealed their identities and requested to inspect the bag, the accused immediately dropped the bag onto the ground and then gave no reply to the officers. Upon search, 2 zip-lock bags containing 7 plastic bags containing the dangerous drugs under Charge 1 were found. The accused was arrested. Under caution, he denied knowledge of the bag and its contents.
A body search was conducted on the accused. It was found in his possession a bundle of keys, 2 resident access cards of Golden Lion Garden, 2 mobile phones and cash in the sum of HK$6,060. Upon inquiry, the accused said the keys and the access cards were for access to the Flat.
The officers gained entry into the Flat, followed by a house search inside the flat. A large quantity of drugs and paraphernalia for adulterating and packaging drugs were found at different locations, and the accused responded to enquiry made concerning such items under a reminded caution.
Inside a cupboard in the living room, the officers found:
(a) a total of 33 plastic bags containing a total of 528.9 grammes of a solid containing 381.9 grammes of cocaine; and
(b) 1 induction stove and a tray.
The accused admitted the drugs were supposedly dangerous drugs and admitted packaging such drugs with the paraphernalia found.
On the windowsill of the living room, the officers found:
(a) 1 sealing machine containing traces of a solid, in which no substance controlled under the Dangerous Drugs Ordinance was detected;
(b) 1 electronic scale containing traces of a solid containing cocaine;
(c) 1 metal spoon containing traces of a solid containing cocaine;
(d) one pair of scissors;
(e) 1 black marker; and
(f) a number of zip-lock bags containing 6 stacks of zip-lock bags of different sizes.
The accused admitted he purchased the items for “sealing the stuff”.
On the floor of the living room, the officers found:
(a) 2 packets consisting of plastic wrappings, containing 1,959 grammes of a solid, in form of blocks, containing 1,589 grammes of cocaine hydrochloride, a salt of cocaine;
(b) 2 plastic bags containing 1,057 grammes of a solid containing 863 grammes of cocaine hydrochloride;
(c) 1 electronic scale containing traces of a solid containing cocaine;
(d) 4 pieces of gloves containing traces of a solid containing cocaine;
(e) 1 plastic bag containing 286 grammes of a solid containing paracetamol, which is a painkiller and not a substance controlled under the ordinance;
(f) 1 plastic bag containing 1.03 kilogrammes of a solid containing phenacetin, which is a painkiller and a Part I poison;
(g) 1 opened paper box containing 155 grammes of a solid containing sodium bicarbonate, which is not a substance controlled under the ordinance;
(h) 1 plastic cup and one tray; and
(i) 1 stack of black plastic bags and 1 box of zip-lock bags.
The accused admitted the drugs were supposedly dangerous drugs and “for cooking”, and the soda powder was for “mixing” purposes.
On the bed inside the bedroom, the officers found:
(a) 1 blender containing 1.86 grammes of a solid containing 1.76 grammes of cocaine hydrochloride;
(b) 2 plastic bags containing a total of 45.1 grammes of a solid containing 42.4 grammes of cocaine;
(c) 2 electronic scales containing traces of a solid containing cocaine;
(d) 1 bowl containing traces of a solid containing cocaine;
(e) 1 stack of zip-lock bags; and
(f) 1 black marker.
The accused admitted packaging such dangerous drugs with the paraphernalia found.
On the table inside the kitchen, the officers found:
(a) one pair of pliers containing traces of a solid containing cocaine;
(b) 1 knife containing traces of a solid containing cocaine;
(c) 1 screwdriver containing traces of a solid containing 0.05 grammes of a solid containing cocaine hydrochloride;
(d) 1 bowl and 1 metal spoon containing traces of a solid containing cocaine;
(e) 1 plastic bag containing 1 plastic cup containing 59.8 grammes of a solid containing sodium bicarbonate; and
(f) 1 metal pot and 1 cover containing a total of 0.08 grammes of a solid, in which no substance controlled under the ordinance was detected.
The accused admitted purchasing such items for “crushing the stuff”.
Officers also found in the Flat cash in the sum of HK$3,200, two tenancy agreements of the flat in which the accused was the named tenant and two letters addressed to the accused issued by public utilities.
Examination of the accused’s mobile phone revealed a long string of WhatsApp conversation between the accused and one
person named ‘Commander’ between 24 February and 24 March 2022. There were 25 occasions the accused sent to Commander videos and photographs of items resembling the drugs and manufacturing paraphernalia found inside the Flat. There were also videos stored in the mobile phone that showed weighing, heating and processing of suspected dangerous drugs.
The landlady of the Flat confirmed she leased the Flat to the accused and had been receiving rental payments from the accused by bank transfers.
Prints of the accused’s right palm were found on the inside of the toilet door and the glass door of the kitchen cabinet inside the flat.
The estimated retail value of the drugs under Charge 1 amounted to HK$148,463, and that of the drugs under Charge 2 amounted to approximately HK$3.19 million.
Forensic scientist opined that the chemicals and paraphernalia seized from the Flat were items commonly associated with the process of making cocaine base from cocaine hydrochloride and the process could have taken place inside the Flat.
The accused admitted at the material times he unlawfully trafficked the dangerous drugs in Charges 1 and 2 and the relevant quantity and unlawfully manufactured cocaine inside the Flat.
Mitigation
The accused is now aged 30. He has no criminal conviction record. According to the antecedent statement, prior to his arrest, he worked as a waiter earning $20,000 a month. The accused lived with his parents at Wah Fu Estate, together with his elder sister and younger brother.
Mr Ma together with Mr Yung for the accused submitted that given the drugs found upon interception and the drugs found inside the Flat were of the same type, and given the proximity in time and location they were found, a global starting point should be adopted for the drugs under Charges 1 and 2, which gave rise to 3,012.06 grammes in total.
Mr Ma also submitted as the role and culpability of the accused in respect of Charge 3 could be sufficiently reflected in the sentence therefor, hence this court is urged not to adjust upward the sentence for Charges 1 and 2 in considering the approach laid down in Herry Jane Yusuph.
As regards Charge 3, Mr Ma submitted that the manufacturing paraphernalia found in the flat were limited in number and of low capacity; the setup was not sophisticated; the operation was not on a large scale as it involved only 1 person, which lasted for about 1 month. It was also submitted that the accused was not the mastermind. At the hearing, Mr Ma suggested a 10 to 20 per cent upward adjustment from the sentences of the trafficking charges for the manufacturing charge.
In the course of discussion about the scale of operation, Mr Lui very helpfully submitted a photo album and led me through the relevant photos. This Court has therefore a much better view of the Flat and the paraphernalia found thereat.
Sentencing Principles
For many years, the community in Hong Kong has taken a severe view of drug trafficking, more so in respect of manufacturing dangerous drugs.
The view of the community is reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking and manufacturing. The sentencing policy underlying is to impose deterrent sentences.
The guidelines applicable to the trafficking in cocaine can be found in R v Lau Tak Ming, AG v Pedro Nel Rojas and HKSAR v Abdallah Anwar Abbas. The relevant band concerning the quantity of dangerous drugs under Charge 1 is 8 to 12 years; and that under Charge 2 is 23 to 26 years. Mr Ma has very helpfully conducted an arithmetic exercise, which resulted in the notional starting points of 10 years 2 months’ imprisonment for Charge 1 and 24 years 9 months’ imprisonment for Charge 2. These results coincided with those under my calculation.
On a combined approach as suggested, that 3,012.06 grammes of cocaine attracts an initial starting point of 24 years 11 months’ imprisonment.
As regards sentencing principles for manufacturing dangerous drugs, the Court of Appeal stated in R v Cheung Wai Kwong and Another that:
“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.”
Further:
“In deciding the proper sentence for the offence of manufacturing dangerous drugs, the quantity of drugs was but one factor to be taken into consideration. Other factors included the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs and the role played by the accused.”
This court is also referred to two cases: Lau Hing Hon (transliteration), CACC 521/2000 and HKSAR v Wong Ping Kay. Lau Hing Hon involved one count of manufacturing dangerous drugs and one count of unlawful trafficking of 3,065.99 grammes of heroin. The Court of Appeal did not disturb the starting point of 30 years’ imprisonment concerning the manufacturing charge adopted by the learned sentencing judge.
Wong Ping Kay involved a ‘one-man band’ small scale operation. The Court of Appeal considered the quantity of drugs found, 14.88 grammes of heroin, along with 111 grammes of caffeine, a blender cup with a blade, a brush and betting slips, all of which bore traces of heroin, large number of plastic straws and bags, that the appellant had 18 previous convictions, 10 of which were drug-related, the original starting point of 18 years was reduced to 10 years.
Much assistance could be derived from the case of HKSAR v Cheng Chi Wai. The Court of Appeal said it would be inappropriate to base a sentence solely or mainly on the quantity seized, in contrast to drug trafficking offences where the quantity involved was fixed. The Court of Appeal also stated at paragraph 30:
“The starting point for ‘drug-manufacturing’ offences must be based on the overall circumstances of individual cases.”
At paragraph 31:
“The quantity seized at a drug-manufacturing workshop must be one of the relevant factors affecting sentencing as the quantity of drugs seized shows, to some extent, the size and productivity of the drug-manufacturing workshop, and it also reflects the seriousness of the offence.”
At paragraph 32:
“...the length of time for which the drug-manufacturing workshop has existed and operated, its scale and productivity, the quantity and standard of 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.”
In respect of how the Court should approach a case which involves a defendant trafficking dangerous drugs and also manufacturing dangerous drugs, I made reference to paragraphs 53 to 56 of the case of Cheng Chi Wai.
Discussion
The photos showed different parts of the Flat. The Flat looks to me to be a one-bedroom unit of about 300 to 350 square feet, I am contented to adopt Mr Ma’s suggestion. I am of the view there was no or minimal sign of residency, for example there was no mattress or pillow in the bedroom. Apart from two lemons, a bottle of vinegar and a bottle of vodka, there was no other edible items in the kitchen.
In view of all the relevant paraphernalia found in the Flat, as well as the images shown by the photos, the only reasonable inference is that the Flat was predominantly used to manufacture dangerous drugs. As agreed by the accused, he lived in Wah Fu Estate with his family members. Evidence admitted shows that the accused has been involved in manufacturing dangerous drugs for about 1 month prior to his arrest.
Having considered the relevant authorities, in particular the passages in the judgment of Cheng Chi Wai, paragraphs 33 to 36, I am of the view that the scale of operation in the present case lies somewhere between a small-scale or one-off operation; and a continuous or large-scale operation. In view of the overall circumstances and the quantity of the drugs found, a 15 per cent upward adjustment of the notional starting point for Charges 1 and 2 combined, as suggested by Mr Ma, is an appropriate starting point for Charge 3. Arithmetically, the relevant starting point should be around 28 years 7 months’ imprisonment.
Role of the Accused
In light of the fact that the accused did play the role of a courier as per Charge 1, as well as the role of manufacturing dangerous drugs as per Charge 3 (which has been taken into account the quantity of drugs under Charges 1 and 2), and that I shall ultimately consider the totality principle, it would not be meaningful to consider
theoretically the actual role of the accused as a trafficker as per Herry Jane Yusuph.
Disposition
I have considered submissions made by counsel on your behalf, the only and strongest mitigating factor is your timely plea, for which a full one-third discount is warranted.
For Charge 1, you shall be sentenced to 6 years and 9 months’ imprisonment. For Charge 2, you shall be sentenced to 16 years and 6 months’ imprisonment. For Charge 3, you shall be sentenced to 19 years’ imprisonment.
I order the terms for Charges 2 and 3 to be served concurrently. For reason that Charge 1 was based on the fact that you were stopped by the officers on your way out of the Flat, and that a number of zip-lock bags were in your possession together with the dangerous drugs in question, I order 1 year out of the sentence of Charge 1 be served consecutively to the concurrent sentences of Charges 2 and 3.
Therefore, the total term you are required to serve is 20 years’ imprisonment.