COURT: The defendant, Lau Siu-fung, pleaded guilty to the following charges before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The 1st and the 3rd count are both trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The 2nd count is conspiracy to manufacture a dangerous drug, contrary to sections 6(1)(a) and (2) and 39 of the Dangerous Drugs Ordinance, Chapter 134 and also sections 159A and 159C of the Crimes Ordinance, Chapter 200.
Summary of Facts admitted by the defendant
On the day in question, the defendant was intercepted by the police for a search at Liberty Avenue, a plastic bag containing 13 plastic bags and three paper packets containing a total of 275 grammes of a solid containing 191 grammes of cocaine were found from the sling bag carried by the defendant.
Under arrest and caution for the offence of trafficking in a dangerous drug, the defendant claimed to have possessed the 10-odd packets of dangerous drugs for sale to earn quick money. The defendant also told the police that he had taken the drug from his home at Victoria Avenue. The defendant voluntarily took the police to his home for a search.
Drug manufacturing equipment including: three metallic pots; a pack of plastic gloves containing used and unused gloves; a pack of finger cots; four packs of soda powder; two pairs of scissors; four electronic scales; an induction cooker; four piles of transparent resealable plastic bags in different patterns; two packs of zipper bags; and markers were found from the flat.
The aforesaid equipment together with the metallic filter, air conditioner filters, and the stove of the flat were all found to contain traces of cocaine.
Further, the following drugs were found from the flat. 17 plastic bags containing a total of 323 grammes of a solid containing 266 grammes of cocaine; two plastic bags containing a total of 12.9 grammes of a solid containing 12.1 grammes of cocaine hydrochloride, which is the salt of cocaine; three transparent resealable plastic bags containing a total of 771 grammes of something called phenacetin, it is a type of Part I poison; and five resealable plastic bags containing a total of 1.64 kilogrammes of a solid containing paracetamol.
Under further arrest and caution for the offence of manufacturing a dangerous drug, the defendant admitted manufacturing crack cocaine from raw cocaine for sale in order to earn quick money.
In a subsequent video-recorded interview, the defendant claimed inter alia that he would be rewarded by someone with HK$10,000 cash upon the successful manufacturing and delivery of crack cocaine based on 1 kilogramme of raw cocaine.
At the time of arrest, he was on his way to deliver cooked cocaine to his customer on Liberty Avenue. The HK$6,500 cash seized from him were proceeds of his drug manufacturing. According to the defendant, after manufacturing crack cocaine at the flat, he would pack the drug into packs of 24 grammes each and pass them to someone unknown at Liberty Avenue.
He was not a drug addict and was taught by someone unknown to manufacture crack cocaine inside the flat around a month prior to the arrest. Since then, he had been manufacturing dangerous drugs inside the flat. He knew that the raw and manufactured products were all dangerous drugs.
The amount of cocaine seized from the flat represented the remains of the finalised product which he had manufactured from the 1 kilogramme of raw cocaine obtained from his co-conspirators. For the other manufactured products, he had already delivered them to the customers.
Upon inspection of the flat and examination of exhibits seized therefrom, forensic scientists of the government laboratory gave the opinion that manufacturing of cocaine base, commonly known as crack cocaine, from cocaine hydrochloride with the use of phenacetin as an adulterating agent had taken place at that flat.
At the material time of seizure, the total street value of the cocaine seized from the defendant’s person and flat was estimated to be HK$500,413 in powder form and HK$752,415 in crack form. The street value of the seized cocaine hydrochloride was HK$10,784.
Background and Mitigation
According to the antecedent statement, the defendant was born in April 1997, so he is now 27 years of age. He has a clear record. He was educated to Form 2 level and was unemployed at the time of the arrest. He claimed to have a daughter who is being raised by a foster family.
Mr Jeevan Hingorani, the counsel for the defendant, gave the court more background information on the defendant. The defendant was the only child, born in the Mainland. He is now 27. He dropped out of school in Hong Kong after completing Form 2 and entered the workforce.
The defendant and his girlfriend had a daughter in May 2017. Unfortunately, his girlfriend suffered from postpartum depression and the daughter was then placed in temporary foster care. At that time, returning home twice a week. The defendant and his girlfriend separated in 2021 due to increasing disputes.
The defendant applied for custody of his daughter, but due to his arrest and incarceration, that brought the application to a halt. The defendant’s father is now in charge of the welfare of the little girl. Prior to the commission of these offences, the defendant worked as a plasterer.
Mr Hingorani submitted that since the defendant’s remand, he only saw his daughter during visits. The defendant deeply regrets his failing in caring for his daughter as a father. The defendant is extremely remorseful and is determined to mend his way so that he can be a good father to his daughter.
The defendant had written to me himself. Basically, you were telling me what your counsel had already told me about you and your daughter, and you certainly had expressed your deep remorse as well. Your father had also written to this court asking for leniency and also your older sister.
Originally, I was told you were the only child, but it transpired that your father had a mistress in the Mainland and you were the child of that union. So you were still the only child to your mother. But since coming to Hong Kong, you have been taken care of by your father and your elder sister. Taken care only in the sense of tutoring you because your sister was already married at the time and had a child.
So your elder sister gave quite a bit of history about you. And I do not think it is necessary to repeat them here. Suffice it to say that you and everyone else asked for leniency from this court.
Consideration for the sentence
Conspiracy to manufacture a dangerous drug and trafficking in dangerous drugs are both serious offences. A person convicted of these offences on indictment is liable to life imprisonment and to a fine of $5 million.
For the offence of conspiracy to manufacture a dangerous drug, the Court of Appeal has said in the case of HKSAR v Tsang Ka Wing, with reference to the case of HKSAR v Chan Kam Loi as follows:
“Where a conspiracy to traffic in an unspecified quantity of dangerous drugs is concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts in the case. Those facts and inferences and assumptions from which they arrive will vary from case to case. We would add that unless the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence.”
On the evidence before this court, the amount of cocaine seized by the police amount to 469.1 grammes, which is one of the factors in my consideration in gauging the scope and extent of the operation.
From the defendant’s own admission, he had already delivered some finished products to others and he was in the process of delivering some more to others when he was intercepted by the police. The operation was not too substantial, it can be said as a one-man band.
The operation had been on-going for over one month and would have continued, no doubt, but for the arrest of the defendant. The process was not sophisticated. The defendant added adulterant to the cocaine powder and turned it to crack cocaine by heating. As can be seen from the Admitted Facts, the price of crack cocaine is much higher than that of cocaine in powder form.
Having considered all the circumstances, I am of the view that a starting point of 21 years is appropriate for the offence of conspiracy to manufacture a dangerous drug.
The defendant pleaded guilty at the earliest opportunity and is entitled to a full one-third discount. Apart from the discount for plea, there exist special circumstances on the papers which justify the lenient view to be taken of the fact and I will give the defendant a total discount of 48 per cent. The sentence, therefore, 10 years and 11 months, which is the same as 131 months.
I now turn to consider the two counts of trafficking in a dangerous drug. The cocaine involved in the 1st count was 191 grammes, and in the 3rd count 278.1 grammes, treating cocaine hydrochloride the same as cocaine. So the total amount of cocaine for trafficking was 469.1 grammes.
Now I will follow the six steps stated in the case of Herry Jane Yusuph in relation to the trafficking in the dangerous drug charges.
First step
For the trafficking of cocaine, the guidelines for the trafficking of heroin is applicable. That is the case of Attorney General v Pedro Nel Rojas and the case of Lau Tak Ming. 469.1 grammes falls into the band of 400 to 600 grammes with a starting point of 15 to 20 years.
Second step
The role played by the defendant is significant. He is both the manufacturer and as well as being the courier.
Third step
Due to the defendant’s involvement, I am of the view that the proper starting point is 19 years, which is within the band of 15 to 20 years.
Fourth step
As I have already taken into consideration the defendant’s role as a manufacturer, there is no other aggravating factor to increase the starting point to avoid double counting.
Fifth step
The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount.
Apart from the discount for plea, there exist special circumstances on the papers which justify the lenient view to be taken of the fact and I will give the defendant a total discount of slightly over 48 per cent. So the sentence for the two trafficking charges is 9 years and 10 months, which is the same as 118 months.
Sixth step
The final step, I now have to step back to consider the totality. I am of the view that a total sentence of 14 years, which is the same as 168 months, would properly reflect the criminality involved in these offences.
Actual sentence
1st count, trafficking in a dangerous drug, 9 years and 10 months’ imprisonment; 2nd count, conspiracy to manufacture dangerous drug, 10 years and 11 months’ imprisonment; the 3rd count, trafficking in dangerous drugs, 9 years and 10 months’ imprisonment.
The sentence of the 1st and the 3rd count to run concurrently, totalling 9 years and 10 months’ imprisonment.
Now of the 2nd count, 4 years and 2 months, (that is 50 months) of the 10 years and 11 months imposed on the 2nd count to run at the expiration of the 9 years and 10 months imposed on the 1st and 3rd count, making a total of 168 months, 14 years.