HKSAR v. Bar-yitzhaq Amir and Another

HCCC 75/2023

[2025] HKCFI 1246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 75 OF 2023

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REASONS FOR SENTENCE

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The Charges

1.On 15 October 2020, the 1^st Defendant was arrested together with the 2^nd Defendant when they were seen coming out from an apartment at Cornell Centre in Chai Wan.  The 1^st Defendant was later indicted for three dangerous drugs related offences: the 1^st count (against him only)  of possession of a dangerous drug, namely 0.50 gramme of a solid containing 0.23 gramme of ketamine; the 2^nd count (against both defendants)  of trafficking in dangerous drugs, namely, 1,285.6 grammes of a powder containing 1,022.3 grammes of cocaine hydrochloride, 79.24 grammes of a substance containing 34.98 grammes of cocaine hydrochloride, and 0.09 gramme of 3,4-methylenedioxymethamphetamine; and the 3^rd count (against both defendants)  of manufacturing a dangerous drug, namely, cocaine hydrochloride.

The proceedings

2.Both defendants were remanded in custody after their arrest but on 15 August 2022, the 2^nd Defendant was granted bail by a magistrate in the cash sum of HK$100,000 coupled with conditions.  In the proceedings in the magistracy, both defendants maintained their not guilty pleas to their respective charges and on 27 March 2023, they were committed to the Court of First Instance for trial.  On 19 October 2023, a trial of the two defendants was fixed to commence in the Court of First Instance on 6 March 2025 with a total of 12 days reserved.  On 10 September 2024, a case management hearing was held to discuss matters pertaining to the trial.

The 1^st Defendant’s plea offer

3.After the case management hearing, by a letter dated 21 October 2024, the 1^st Defendant through his counsel made an offer to the prosecution which included the following terms: (i)  he would plead guilty to the 3^rd count of manufacturing a dangerous drug and that plea was offered in full satisfaction of the indictment against him; (ii)  he would be brought before the court for arraignment as soon as practically possible; (iii)  he would provide the police with a non-prejudicial statement and testify against the 2^nd Defendant at the trial should the prosecution ask him to do so; and (iv) special provisions would be put in place for his security and protection whilst in CSD custody.  It was further stated that if it was the intention of the prosecution to obtain such a non-prejudicial statement, there was nothing to be gained by delay. 

4.On 30 October 2024, the prosecution agreed to accept the plea offer and on 12 November 2024, a draft summary of facts was sent to the defence for consideration.  The summary of facts was agreed on 5 November 2024. 

5.Further to the plea offer, the 1^st Defendant provided a total of 6 non-prejudicial statements on 25 November 2024, 16 December 2024, 27 December 2024, 15 January 2025, 27 January 2025 and 28 February 2025 respectively.

6.By a letter dated 19 February 2025, the prosecution advised the 1^st Defendant that a decision had been made to call him to testify at the trial of the 2^nd Defendant which was to commence on 6 March 2024.

The 1^st Defendant’s plea and the 2^nd Defendant’s absconding

7.On 5 March 2025, the 1^st Defendant was arraigned before this Court.  He pleaded guilty to the 3^rd count, admitted a summary of facts dated 26 November 2024 and was formally convicted of that count.  The 1^st and 2^nd counts were ordered to be left on court file.  His mitigation and sentencing was adjourned to 21 March 2025, the last day of the scheduled trial of the 2^nd Defendant.

8.On 6 March 2025, the first day of the scheduled trial, the 2^nd Defendant failed to attend court and a warrant of arrest was issued.  On 10 March 2025, the 2^nd Defendant still could not be located by the police.  His bail was estreated and the remaining trial dates were vacated. 

Facts Admitted by the 1^st Defendant

9.The facts of the case can be summarized as follows. 

10.On 14 October 2020, an anti-narcotic operation was conducted during which the police kept a parcel under observation.  The parcel was believed to be a transformer in which cocaine was concealed.

11.At about 6:57 p.m., the parcel was seen being delivered by a light goods vehicle to the carpark exit of Cornell Centre in Chai Wan.  The 2^nd Defendant was seen alighting from the light goods vehicle and lingered there.

12.At about 7:00 p.m., the 1^st Defendant approached the 2^nd Defendant and had a chat with him.  The 1^st Defendant then walked to the lift lobby and soon returned to the carpark exit and loaded the parcel onto a trolley.  The two defendants then took the lift to the 17^th Floor and entered the premises at Room 1710.

13.At about 7:59 p.m., the two defendants were seen emerging from the premises.  The 2^nd Defendant was seen discarding a white object into the trash bin next to the lift on the 17^th floor.  They later went to the lift lobby again where the 2^nd Defendant was seen discarding a metal box into the trash bin.  They then returned to the premises.  A transformer was later retrieved by the police from the trash bin and it was found to contain traces of cocaine.

14.In the early hours on 15^th October 2020, a male was seen entering the premises.  Later, when the 2^nd Defendant and the male came out, they were intercepted by the police.  Upon entry into the premises, the police found the 1^st Defendant in the living room.  He was searched and the subject dangerous drug of the 1^st count was found from the right front pocket of his trousers.  The police also found 3 mobile phones and 2 electronic tablets in a sling bag and the 1^st Defendant admitted that they belonged to him.  He also admitted that he was the tenant of the premises.

15.The police searched the premises and found the subject dangerous drugs of the 2^nd count and paraphernalia used in the manufacturing process.  In particular, they found two electronic scales, an induction stove, some spoons, some plastic bags and a device, which contained cocaine or traces of cocaine.  They also found some wet paper-like materials containing cocaine hydrochloride in a metal bowl, a glass dish and plastic bags in the kitchen.  The police also found a tenancy agreement in the name of the 1^st Defendant on the dining table in the living room.  It was for a tenancy from 1 May 2020 to 30 April 2021 at a monthly rent of HK$25,500.

16.A forensic scientist attended the premises.  He gave the opinion that one of the illicit cocaine manufacturing methods is the separation of cocaine hydrochloride.  The process involves extracting cocaine from material impregnated with cocaine hydrochloride.  The impregnated material is firstly soaked with solvent (e.g. water)  in order to dissolve the absorbed cocaine hydrochloride.  The damp material is then pressed or squeezed to extract the cocaine solution which is then dried to obtain the cocaine hydrochloride solid or powder.

17.The forensic scientist gave the opinion that, when considered collectively, the wet paper-like materials (with cocaine hydrochloride)  and the paraphernalia seized at the premises were all items associated with the process of separation of cocaine hydrochloride.

18.The estimated street value of all the dangerous drugs seized from the premises was about HK$1.95 million in total.

19.The 1^st Defendant admitted that he, together with the 2^nd Defendant, had unlawfully manufactured at the premises a dangerous drug, namely, cocaine hydrochloride.

Background and Mitigation

20.The Defendant was born in February 1975, and he is an Israeli national with university qualifications. He is not a drug addict but concedes to be a moderate user of recreational drugs.  He has no previous convictions in Israel but has one previous conviction in Hong Kong for a breach of condition of stay in 2021 for which he received a suspended sentence. 

21.Mr Arthur acting for the 1^st Defendant contended that the manufacturing operation was not very sophisticated and the small quantity of paraphernalia used in the manufacturing process consisted mainly of kitchen equipment.  He contended that it was more than the work of amateurs but there was no designated area which could have constituted a workshop; to the contrary, some of the dangerous drugs were apparently manufactured on the dining table and in the kitchen. 

22.Mr Arthur also contended that the role played by the 1^st Defendant was essentially limited to providing his premises to the 2^nd Defendant and the male to manufacture the dangerous drugs. 

23.Mr Arthur further contended that the 1^st Defendant is entitled to a significant discount for the following reasons:-

(i)  His plea of guilty to the 3^rd count;

(ii)  The very comprehensive non-prejudicial statements that he had provided, which were “undoubtedly crushing” for the 2^nd Defendant;

(iii)  His willingness to testify in the prosecution case;

(iv)  His cooperation and assistance at some real personal risk to himself;

(v)  His non-prejudicial statements may be fairly considered as of great assistance to the authorities.

24.Mr Arthur pointed out that the prosecution had been warned repeatedly by various means – including a letter to the prosecutor dated 19 December 2024, a telephone conversation between defence counsel and the prosecutor on 22 January 2025, and another letter dated 5 February 2025 – of the prospect of the 2^nd Defendant absconding.  By a letter dated 11 February 2025, the prosecutor wrote back and advised that “Application for imposition of more stringent bail conditions on the 2^nd Defendant will be made at an appropriate stage.”  Despite that letter, the prosecution took no subsequent action to vary the bail conditions of the 2^nd Defendant. 

25.Mr Arthur contended that in light of the evidence in the 1^st Defendant’s non-prejudicial statements which were served on the 2^nd Defendant, it came as no surprise that the 2^nd Defendant chose to abscond.  In those circumstances, Mr Arthur contended that the 1^st Defendant should not be penalized or disadvantaged by the 2^nd Defendant’s absconding and the 1^st Defendant should be treated as if he had given the evidence in his non-prejudicial statements from the witness box.  Mr Arthur contended that in all the circumstances of the present case, the 1^st Defendant should be given a discount of 50% for his assistance to the authorities.

Discussion on sentence

26.In HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, the Court of Appeal gave the following guidance on sentencing the offence of manufacturing a dangerous drug:

(1)  The quantity of drugs involved in a drug-manufacturing offence was extremely difficult to determine since the drugs seized represented only the quantity manufactured but not yet sold. 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. Sentences for manufacturing offences were far heavier than those of trafficking offences involving the same quantity. (See paras. 25–26.)

(2)  The starting point for manufacturing offences must be based on the overall circumstances of individual cases. The quantity seized at a manufacturing workshop must be a relevant factor as that showed, to some extent, its size and productivity, and reflected the seriousness of the offence. Further, the length of time the workshop had operated, its scale and productivity, the quantity and standard of manufacturing paraphernalia, the extent of the Defendant’s participation and role were all important factors. (See paras. 30–32.)

(3)  The appropriate starting points for drug-manufacturing offences were as follows:

(i)  If the manufacturing act was a one-off rather than continuous, a starting point slightly higher than that for trafficking in the same quantity of drugs might be appropriate. However, the starting point for manufacturing offences, even where only a small amount of drugs were seized, should not be less than 10 years’ imprisonment, unless the manufacturing act was just nominal. (See paras. 27, 33.)

(ii)  If the manufacturing act was continuous, and the workshop was of considerable scale and productivity involving a large amount of chemicals and a not insignificant quantity of high-standard manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial. (See para. 34.)

(iii)  For a large-scale, productive and long-running manufacturing workshop, where the Defendant played an active and important role, and an exceptionally large amount of drugs was seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence. (See paras. 35–36.)

27.According to the above principles, this Court should not base a sentence solely or mainly on the quantity of dangerous drugs seized but should consider all the circumstances pertaining to the operation including its nature and extent.

28.The 3^rd count alleged the offence to have taken place on 15 October 2020.  In other words, the prosecution does not allege the operation to be a long running one.  There was no workshop set up for the manufacturing process at the premises.  Apparently, dangerous drugs were manufactured on the dining table in the living room and in the kitchen.  Looking at the paraphernalia seized at the premises, the operation was obviously not very sophisticated.

29.On the other hand, there was found on the premises a total of 1,057.28 grammes of cocaine hydrochloride.  According to the latest decision of the Court of Appeal in Huang Ruifang [2025] HKCA 234, the relevant sentencing band for trafficking in cocaine between 500 grammes and 1,500 grammes would be 16 to 20 years’ imprisonment.  With the quantity of cocaine in question, the starting point for the offence of trafficking should be around 18 years and 2 months’ imprisonment.

30.As observed in HKSAR v Cheng Chi Wai (supra), sentences for manufacturing offences are “far heavier” than those of trafficking offences involving the same quantity.

31.In the present case, whilst the manufacturing process at the premises was not very sophisticated and not alleged to be long-running, it was certainly being operated to produce a very large quantity of cocaine.  The quantity of drugs seized at the scene is a relevant factor that shows, to some extent, the productivity and size of the operation, and reflects on the seriousness of the offence. 

32.As to the role played by the 1^st Defendant, I find that he did not simply permit the manufacturing to take place in his own rented apartment; he was observed by the police to have assisted the 2^nd Defendant in collecting a parcel and bringing it back to the premises; and the two of them were also seen coming out together from the premises to discard items into the trash bin on the 17^th floor, where the police subsequently retrieved a transformer which had traces of cocaine. 

33.Bearing in mind all the circumstances pertaining to this operation and the 1^st Defendant’s involvement in it, I shall adopt 21 years’ imprisonment as the starting point for the 3^rd count of manufacturing a dangerous drug.  I should point out that Mr Arthur had suggested a sentence of 20 years’ imprisonment to be the starting point.

The 1^st Defendant’s plea and assistance to the authorities

34.There is no dispute that the 1^st Defendant was ready and eager to give evidence at the trial against the 2^nd Defendant, with a motive to obtain a discount in sentence.  He had given a total of six non-prejudicial statements against the 2^nd Defendant and Mr Arthur was correct to describe the statements as being very extensive and “amounting to a gold mine of information implicating the 2^nd Defendant”.  Having considered the contents of those statements, the prosecution elected to call the 1^st Defendant as a witness and to put forward his evidence as being “truthful and material”.  As the judge appointed to preside over the trial of the 2^nd Defendant, I have had the opportunity to consider those statements.  It is my assessment that had the 2^nd Defendant not absconded, and his trial proceeded to verdict, there would have been a high prospect of conviction against the 2^nd Defendant, bearing in mind the strength of evidence from the 1^st Defendant and the other evidence in the prosecution’s case.  No doubt appreciating that to be the case, the 2^nd Defendant chose to abscond.

35.Quite a number of appellate decisions were brought to this Court’s attention on the range of discounts that could be given to a Defendant who has offered assistance to the authorities.  Mr Wei, prosecuting counsel on fiat, has very properly pointed out that in HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309, the Court of Appeal made the following observations (at §64):-

“From our analysis of the authorities we are satisfied that within the 40%-50% discount range there is a category of cases relating to a Defendant who has offered to testify for the prosecution but whose offer has not been taken up because of some supervening event beyond the Defendant’s control. The existence of such a category not only ensures fairness and justice in the sentencing process, it also provides support to the underlying policy of the courts by encouraging cooperating defendants to become more than just an informant. After all, convictions are obtained through evidence, not information, and not too infrequently the cooperating Defendant will be the only source of that evidence.”

36.In this Court’s view, the present case falls into that category of cases identified by the Court of Appeal as within the 40%-50% discount range.

37.It is also clear that the quantum of discount to be given depends very much on the circumstances of each individual case.  I have already set out the circumstances of the present case above and it is my assessment that a 48% discount is warranted in this case, subject however to a deduction due to the fact that the 1^st Defendant’s plea was not timely. 

38.As can be seen from HKSAR v Chan Yat Wah [2024] 3 HKLRD 824 (at §§31 and 34), the “usual” discount of 50% already incorporates a one-third discount for a timely guilty plea.  In the present case, the 1^st Defendant’s plea offer was only made on 21 October 2024, long after the trial had been fixed on 19 October 2023. According to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, that being the case, the 1^st Defendant should only obtain a discount within the range of 20 to 25% for his plea.  In my view, his plea only warrants a 23% discount as it was only offered about one year after the trial was fixed and some five months before the scheduled trial.  The discount should therefore be some 10% short of the usual one-third discount for a timely plea.

39.Taking into account the 1^st Defendant’s plea not being timely, I shall therefore deduct 10% from the 48% discount proposed above, arriving at a discount of 38% to be given for the 1^st Defendant’s assistance to the authorities.

40.Applying the 38% discount to the starting point of 21 years, the ultimate sentence is rounded off to become 13 years’ imprisonment. 

41.Mr Arthur contended that the 1^st Defendant is a man of previous good character.  Given the grievousness of the offence of manufacturing a dangerous drug, the 1^st Defendant’s personal background and circumstances will count for little: see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at §73.  No further discount will therefore be given to the 1^st Defendant.

42.Lastly, I consider the sentence of 13 years’ imprisonment fair, just and balanced in all the circumstances of the offence and the 1^st Defendant.  I therefore sentence the 1^st Defendant to a term of imprisonment of 13 years for the 3^rd count.  

Exhibits

43.Upon an application by the prosecution and at the request of the 1^st Defendant, the Court ordered items 49, 51, 62, 63, 64, 65, 74, 75, 76, 77, 78 be returned to the 1^st Defendant.

Mr Mark Wei, counsel on fiat, of the Department of Justice, for the Prosecution

Mr Michael Arthur, instructed by S.H. Chan & Co, assigned by DLA, for the 1^st Defendant