COURT: The defendant pleaded guilty to two charges of trafficking in dangerous drugs and one charge of manufacturing a dangerous drug on 30 May 2024 before a magistrate and he was committed to the Court of First Instance for sentence. The 1st charge alleged that on the 13th day of July 2021, outside a particular flat in Yoho Town, Yuen Long, he unlawfully trafficked in 49.1 grammes of cocaine hydrochloride and 101.5 grammes of cocaine narcotic. The 2nd charge alleged that inside that particular flat, he unlawfully trafficked in 0.47 grammes of cocaine hydrochloride and 54.76 grammes of cocaine narcotic. The 3rd charge alleged that on or about the 13th day of July 2021, inside the flat, he unlawfully manufactured cocaine.
According to the Summary of Facts to which he admitted at the time of his plea of guilty, on 13 July 2021 the police intercepted the defendant and his girlfriend at about 8.02 pm as they were leaving the flat together. At that time, the defendant was carrying a messenger bag in which the police found five envelopes containing seven plastic bags of drug which is particularised in the 1st charge.
Upon search of the premises, the police found an unfurnished guest bedroom which could be unlocked by the key seized from the defendant. In the living room and the guest bedroom of the premises, the police seized a total of 0.51 gramme of a solid containing 0.47 gramme of cocaine hydrochloride and 61.9 grammes of a solid containing 54.76 grammes of cocaine narcotic, that is the subject matter of the 2nd charge.
The total estimated street value of the cocaine and cocaine hydrochloride seized from the defendant and in the flat was about $265,026 for cocaine powder.
In the guest bedroom and also in the living room of the premises, the police also found a large number of chemicals and apparatus which contained traces of cocaine,. That included electronic scales, a notepad and piles of empty resealable plastic bags, cash of $46,520, a metal pot and a box containing 2.8 litres of a liquid and also 313 grammes of a solid containing phenacetin, a Part I poison.
Also there were a total of 639 grammes of sodium bicarbonate which is commonly known as baking soda. Also, there were gas canisters, chopsticks, cups, hammers, scissors, scales, packets, boxes, electronic scales containing cocaine or cocaine hydrochloride or their traces, spoon and sealing machine.
The government chemist attended the scene and inspected the premises, and he was of the opinion that the apparatus and chemicals in the premises were engaged or involved in the manufacturing process of converting cocaine hydrochloride to cocaine base. The process involved mixing cocaine hydrochloride with baking soda in water and then heating the solution. The cocaine base produced could be obtained, precipitated from the solution after cooling.
Upon his arrest, the defendant admitted that he was trafficking in the cocaine seized by the police. He admitted that he was manufacturing the cocaine and that he would lock himself in the guest bedroom when he was engaged in the manufacturing of the drug.
He said he received instructions from an unknown person to collect cocaine and to deliver them to different places. He would earn a reward of $500 for every 24 grammes of drug delivered. That unknown person also instructed him and told him how to manufacture crack cocaine because he was told that the cooked crack cocaine could sell at a higher price. He bought all the apparatus and chemicals as instructed by that person. He also said that the cash of $46,420 seized in the flat was given by his family as part of the wedding ceremony.
The defendant now admits that he was in possession of all the cocaine and cocaine hydrochloride seized from his person and in the flat for the purpose of unlawful trafficking, and that on or about the date of his arrest, he manufactured cocaine inside the premises.
The defendant is 25 years of age. He has a clear criminal record. At the time of the offence, he was 21 years old. He is single and now he has a daughter of 3 years. He has received education up to Form 5 standard and he worked as a logistic worker earning about $20,000 a month before his arrest. He resided at the particular premises with his girlfriend at the material time.
In his mitigation, counsel Mr Michael Leung informed this court that he committed the offences because he wanted to earn more money for the wedding and the setting up of the new family with his girlfriend. Counsel also submitted a mitigation letter prepared by the defendant’s father to plead for leniency.
In mitigation, counsel urged this court to take into account the fact that the operation of manufacturing in the premises was not of a large scale and it was only confined to the small bedroom. And counsel urged this court to take into account the fact that the defendant also pleaded guilty at the earliest opportunity.
In respect of sentencing for the three charges, counsel referred to the cases of HKSAR v Ho Tak Wing HCCC 210/2022 and HKSAR v Cheng Tun Cheung HCCC 307/2023, and urged this court to adopt an enhancement of no more than 6 months for Charges 1 and 2 to reflect the fact that he was not merely a storekeeper. In respect of the three charges, counsel urged this court to take into account the totality principle.
I should point out that both trafficking and manufacturing dangerous drugs are very serious offences. According to the well-established principle, matters such as a clear record, relatively young age and family background do not deserve any further discount for sentencing. In the circumstances of this defendant, I do not see anything from his family and personal background that would entitle him to any meaningful discount.
In the sentencing of the 1st and the 2nd charges, that is the charges for trafficking in dangerous drugs, I will bear in mind the approach set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In respect of the 3rd charge of manufacturing a dangerous drug, no doubt it is a much more serious offence than the trafficking of dangerous drug. I do bear in mind the principles enunciated in the case of HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408 that the starting point for manufacturing offences must be based on the overall circumstances of individual cases. Usually the starting point for manufacturing offences, even only where a small amount of drug was seized, should not be less than 10 years’ imprisonment unless the manufacturing act was just nominal.
In the case of HKSAR v Wong Ping Kay [2002] 3 HKLRD 161, the Court of Appeal also reminded that a sentencing court should bear in mind the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs, the role played by the defendant and the quantity of the equipment or paraphernalia found inside.
I do accept that in this particular case, the defendant did not operate on a very large scale and only one single type of drug was involved. I will take into account the scale of his manufacturing process including the quantity of the paraphernalia found, the quantity of Part I poison and baking soda found in the premises.
Before I come to the sentence of the individual charges, I consider that it is more fair to take a global view of this matter. I do bear in mind that the manufacture of dangerous drug is a much more serious offence. When it is viewed in the light of the trafficking offences, it should be seen as a very important aggravating feature.
After taking into account all the circumstances including the total quantity of cocaine found on his person and the premises, the scale of the manufacturing operation, I think the overall starting point for all the three charges should be one of 14 years’ imprisonment.
The only mitigating feature is his early plea of guilty to the three charges which will entitle him to a full one-third discount. So the ultimate overall sentence for the three charges should be one of 9 years and 4 months’ imprisonment.
I shall now come to the sentence for the individual charges. In respect of Charges 1 and 2, I will adopt the approach set out by the Court of Appeal in the Herry Jane Yusuph case. Bearing in mind the principle stated by the Court of Appeal in the case of HKSAR v Wan Lau Mei [2014] 4 HKC 75 in respect of how to sentence two trafficking offences where different quantities of drugs were found in the defendant’s possession on the same day but at different locations, I will regard the offences in Charges 1 and 2 as representing one occasion of possession of the total amount. So I will impose a sentence on both the 1st and 2nd charges for the total and then I will make the sentences concurrent with one another. This approach would more truly reflect the culpability of the defendant for the fact that he was in overall possession of the drugs found on his person and also in the premises.
For the 1st and 2nd charges, the total quantity of cocaine narcotic involved was 205.83 grammes of cocaine narcotic. Mathematically that would attract a starting point of 12 years and 1 month’s imprisonment.
I take into account his role and culpability, especially that he was not simply a courier or storekeeper because he was involved in the delivering of the drug to customers at different locations, he stored all the cocaine in the premises. He was also actively engaged in the manufacturing of the cocaine and he was responsible for the buying of all the equipment and chemicals required. Bearing in mind his overall culpability and his role, I would enhance the mathematical starting point by 5 months. So the notional starting point after trial for the 1st and the 2nd charges should be 12½ years.
Bearing in mind his plea of guilty to the charges at an early stage, I will give him the full one-third discount. So the overall sentence for the trafficking charges, that is Charges 1 and 2, should be 8 years and 4 months’ imprisonment. And 8 years and 4 months is also the sentence I impose for each of Charge 1 and Charge 2.
I shall come back to the sentence of the 3rd charge, bearing in mind my view is that the overall sentence for the three charges should be 9 years and 4 months’ imprisonment. So I will also adopt my view that the overall starting point for all three charges should be 14 years of imprisonment.
For the 3rd charge of manufacturing a dangerous drug, taking into account the scale of the operation, his role in the matter, the period of manufacturing (that is on or about 13 July 2021), the type of the drug found, the quantity of the chemicals found and the other paraphernalia, I consider that the overall starting point for the manufacturing charge should be 14 years’ imprisonment. From that starting point I will give him a full one-third discount for his plea of guilty and reduce the sentence for the 3rd charge to 9 years and 4 months’ imprisonment.
As I said, the global view that I took earlier has already taken into account the quantity of the drug seized on the 1st and the 2nd charges, the scale of the manufacturing operation, his overall role and culpability and his involvement in the three offences. In the circumstances, I will order the sentence in the 3rd count to be served wholly concurrent to the sentences in the 1st and 2nd charges. So the overall sentence for the defendant for all the three charges would be one of 9 years and 4 months’ imprisonment.
In respect of each the 1st and the 2nd charge, he is sentenced to 8 years and 4 months’ imprisonment. In respect of the 3rd charge, he is sentenced to 9 years and 4 months, to be served wholly concurrent with the other two charges. The overall sentence is 9 years and 4 months’ imprisonment.