The particulars of the charges respectively stated that between 7 July 2020 and 25 September 2020, in Hong Kong, the defendants conspired together and with another person known as “Ah Wai”, to unlawfully manufacture (ie under Charge 1) and to unlawfully traffic in (ie under Charge 2) dangerous drugs, namely ketamine, flurodeschloroketamine (“FDCK”) and cocaine.
As the two charges refer to the same time period, the same personnel involved and the same dangerous drugs involved, it is clear that the charges only differ in that Charge 1 targets the acts done in the manufacturing process, whereas Charge 2 targets the other acts done in the dealing in and dealing with the dangerous drugs, such as the weighing, packing and delivery of the drugs.
The Summary of Facts admitted by the defendants provide, inter alia, as follows:
Interception of D1 at Flat 1
On 24 September 2020, at around 4.53 am, police laid ambush outside Flat 714, 7th floor, Block B, Hi-tech Industrial Centre, 491-501 Castle Peak Road, Tsuen Wan, New Territories (“Flat 1”). The police saw the 1st defendant leaving the flat and intercepted him at the lift lobby on the ground floor. The 1st defendant tried to flee but was subdued. The police seized two bundles of keys and six mobile phones on the 1st defendant.
The police then brought the 1st defendant to Flat 1. Police managed to open the gate’s lock with one of the 1st defendant’s keys. The 1st defendant also provided the password of the digital lock that secured the flat’s wooden door, enabling the police to enter it for search.
Search of Flat 1
Flat 1 was an industrial unit, with a room and a washroom. It was furnished with some shelves and tables placed with various dangerous drugs manufacturing apparatus and chemicals. When the police entered, there were many bowls of liquid being laid on the floor (later examine to be a mixture ketamine, FDCK and methanol).
Government Chemist Dr Ho attended the scene for inspection, and directed police on seizures there for later examination. Dr Ho opined that ketamine and FDCK purification process was taking place at Flat 1. The process involved dissolving impure ketamine and FDCK in an organic solvent. Impurities that cannot be dissolved in the solvent can then be separated from the solution. The solid ketamine and FDCK with higher purity can then be obtained by evaporating the solvent residue by heating. The relevant seizures at Flat 1 are summarised below:
(1) 18 glass pots and bowls containing solids that were immersed in a liquid. The liquid contained methanol, ketamine and FDCK. The solids contained ketamine and FDCK.
(2) Two measuring cups containing liquid that contained lower purity ketamine and FDCK.
(3) Four metal containers that contained methanol residue.
(4) Three induction heaters with traces of ketamine and FDCK.
(5) Paraphernalia that contained solids containing either small amount of ketamine and FDCK, or traces of them: beaker, metal pots and ladles, thermometers, plastic containers, sieves, funnel, knife, measuring cups, spatula and metal cans.
(6) A notebook that listed chemicals and paraphernalia related to the process.
(7) In summary, the total quantifiable dangerous drugs seized at Flat 1 are 7,836.15 grammes of solid containing 1,337.6 grammes of FDCK and 5,256.33 grammes of ketamine.
Discovery of Flat 2 and D2’s Involvement
On the same day of the police raid at Flat 1, the police contacted the flat’s landlord and discovered that the 2nd defendant was the named tenant of the flat. The period of lease began from 15 September 2020 (9 days before the police raid) to run for two years. The landlord recalled that after they advertised the flat for lease, another unknown male first came to visit the flat and agreed to rent it. Few days later, however, it was the 2nd defendant who came to sign on the tenancy agreement instead. The 2nd defendant provided his HKID card and work proof as requested by the estate agent. The work proof was the 2nd defendant’s business card of a decoration company, sent in the form of a photograph to the landlord’s mobile phone (via Whatsapp and by the 2nd defendant’s phone number). The business card set out an address at Flat 704A, Well Fung Industrial Centre, 68 Ta Chuen Ping Street, Kwai Chung, New Territories (“Flat 2”).
Search of Flat 2
On that information, on the next day, on 25 September 2020, the police obtained a warrant and searched Flat 2. No one was inside the flat when the police entered. Upon search, police seized many paraphernalia, chemicals and dangerous drugs. Government Chemist Dr Tam attended Flat 2 for inspection and directed on seizures for later examination. The relevant ketamine and FDCK seizures are as follows:
FDCK and ketamine
(1) A plastic bucket and a beaker containing liquid that contained solid. The liquid contained FDCK and ketamine upon drying. The solid contained FDCK and ketamine.
(2) Various paraphernalia that contained different amounts of FDCK and ketamine (in solid or upon drying from liquid), or traces of them: plastic bottles, cups, plates, plastic bags, pot and lid, electronic scale, bucket, etc.
(3) Two plastic bottles containing ethanol.
(4) The total FDCK and ketamine involved are:
a. 1,368.69 grammes of a solid containing 200.68 grammes of FDCK and 813.19 grammes of ketamine.
b. 123.88 grammes of a solid containing 4.64 grammes of ketamine.
Cocaine
(5) A total of 115.56 grammes of a solid containing a total of 5.98 grammes of cocaine or its traces were found in a blender, scattered in cups, plastic bucket, jerrycans (which also contained petrol and dichloromethane) and paraphernalia, such as sieve, skimmer, knives, spatulas, plastic basin and tray.
(6) 670.9 grammes of potassium permanganate and 1,305 millilitres of acetone, both being controlled chemicals.
(7) Boxes of sodium bicarbonate (baking soda).
(8) A bottle containing hydrochloric acid.
‘Ice’ bottle
(9) A glass tube shaped as a bulb containing 0.4 gramme of a solid containing methamphetamine, commonly known as ‘Ice’, which should be noted, however, that ‘Ice’ is not one of the drugs alleged to have been manufactured or trafficked in the two charges laid against the defendants.
Dr Tam opined that the extraction of cocaine from “black cocaine” could have taken place in Flat 2. The process involved purifying the cocaine from its mixture form with other substances. The form is known as “black cocaine”, which was used to avoid detection by masking its cocaine characteristics. Dr Tam opined that the black solid seized in the blender (and spatula) at Flat 2 was the black cocaine, which was chemically altered with zinc-containing substance. The extraction process would involve dissolving it into dichloromethane, and then to add potassium permanganate and petrol afterwards. After stirring, there would be two immiscible layers. Baking powder (sodium bicarbonate) would be further added to the collected lower layer to precipitate out the cocaine base. These chemicals were all found in Flat 2.
There was also a mattress laid on the floor with the bed already made in Flat 2. The police also seized a stack of the 2nd defendant’s business card in the flat, same as the one being sent to Flat 1’s landlord.
Further enquiry
The police enquired with the landlord of Flat 2. Flat 2 was leased to the 2nd defendant from 7 July 2020 (ie over two months before the police raid) for two years. The 2nd defendant presented his HKID card and contacted the landlord by his mobile phone.
D2’s arrest
Police located and arrested the 2nd defendant about half a year later on 20 April 2021. The police seized his two mobile phones on him.
Cautioned Statements
D2
Upon arrest and under caution for manufacturing dangerous drugs, in three video-recorded interviews, the 2nd defendant made detailed admissions to the conspiracy. He admitted that he was recruited by the 1st defendant (along with a person known as “Ah Wai”) to “cook” dangerous drugs.
Background of the Conspiracy
(1) The 1st defendant and Ah Wai asked the 2nd defendant to rent Flat 2 (with funds provided by the 1st defendant) in July 2020. The 2nd defendant would stay over in the flat every night. He soon realised that the 1st defendant and Ah Wai used the flat to manufacture dangerous drugs.
(2) The 2nd defendant agreed to do so because he owed the 1st defendant money. However, by the end of August 2020 (about two months into the scheme) the 2nd defendant already settled the debt. The 1st defendant then promised the 2nd defendant HK$200,000 after they are “done with” all ketamine.
(3) The 2nd defendant admitted having used two mobile phone numbers to message with the 1st defendant. One of the numbers was given to him by the 1st defendant and Ah Wai on a SIM card. He said he had ceased to use that by April 2020 and returned the card to them.
D2’s role (re Flat 2)
(4) The 1st defendant and Ah Wai taught the 2nd defendant how to mix the chemicals in Flat 2 to produce ketamine: by mixing methanol with other chemicals, and to remove the solid/product from the buckets with spoons as instructed.
(5) On the 1st defendant’s instructions, the 2nd defendant bought some of the paraphernalia (induction cooker, fan, methanol, pots and buckets, etc) in the flat. He identified the photographs of some of the seizures when police showed them to him. Other items were brought to the flat by the 1st defendant and Ah Wai.
(6) The 2nd defendant would weight and pack the produced ketamine for them.
(7) The 2nd defendant made the business cards to rent places by the name of a decoration company that he made up.
(8) The 1st and 2nd defendants would use the ‘Ice’ bottle seized in the flat to consume ‘Ice’.
(9) There were three boxes of baking soda that would be used by the 1st defendant and Ah Wai to manufacture cracked cocaine at the flat. The 1st defendant and Ah Wai had taught the method to the 2nd defendant.
D2’s role (re Flat 1)
(10) D2 rented Flat 1 on the 1st defendant’s instruction.
(11) D2 attended Flat 1 every other day, to obtain utility fees from the 1st defendant and Ah Wai.
(12) The 2nd defendant admitted buying some of the chemicals and paraphernalia in Flat 1 when photographs were shown to him: pots, straws, trays, ethanol.
(13) There was a notebook written with dangerous drugs manufacturing guidelines seized in Flat 1. The 2nd defendant admitted he wrote the first six pages on the 1st defendant’s instructions.
(14) The 2nd defendant was not sure if he had used the ‘Ice’ bottles seized in Flat 1 to smoke ‘Ice’ when the bottles were shown to him, though he had smoked ‘Ice’ in Flat 1.
D1
On the other hand, the 1st defendant admitted to his manufacturing dangerous drug at Flat 1. He said one “Ah Keung” instructed him to produce “perfume” at Flat 1 (which he believed to be an anaesthetics drug). He was told to pour various chemicals in the pots and to heat them, and he would earn about HK$10,000 for each kilogramme of solid produced.
WhatsApp communications between the 1st and 2nd defendant
The police seized the 1st defendant’s mobile phone. In its WhatsApp, they found that the 1st defendant communicated with two mobile telephone numbers used by the 2nd defendant. While the messages did not directly mentioned drugs, they mentioned chemical names. The messages showed that the 1st defendant gave instruction to the 2nd defendant on dangerous drug manufacturing process and drug deliveries. Their scheme began as early as 23 August 2020. The 2nd defendant would report to the 1st defendant of his whereabouts, the expenses incurred and would send the 1st defendant photographs of the process. On one instance, the 1st defendant accounted to the 2nd defendant his remuneration to date. Some highlights of the messages and their dates below are set out as example:
(1) 24 August 2020: the 2nd defendant sent photographs of bags of suspected dangerous drugs being weighed on a scale. The 1st defendant asked the 2nd defendant to close the gate (of a premises) when the 2nd defendant leaves.
(2) 25 August 2020: the 1st defendant asked the 2nd defendant to give a man called “Big eye” “2 pieces” and to give “4 pieces” to a man called “Fatty”. The 2nd defendant then said he will go to soak up the stuff and to blow dry them.
(3) 3 September 2020: on the 1st defendant’s instructions, the 2nd defendant sent photographs of several bowls of suspected ketamine and FDCK liquid (with white residue) similar to those later seized in Flat 1. The 2nd defendant again sent photographs of similar bowls of ketamine product again on 10 September 2020.
(4) 10 September 2020: the 1st defendant sent photos of the vacant Flat 1 to the 2nd defendant.
(5) 11 September 2020: the 2nd defendant sent photographs of baskets of suspected dangerous drug solid and the 1st defendant asked the 2nd defendant whether he had soaked them in chemical and asked D2 to package them for delivery.
(6) 14-15 September 2020: the 1st defendant said he would deposit HK$10,000 to the 2nd defendant and that the balance would be HK$170,000.
In addition, the police also seized some photographs of suspected dangerous drug taken at Flat 1 in the 1st defendant’s mobile phone photo album.
Street Values
According to the police narcotic expert, the estimated street values of the seized drugs at both Flat 1 and Flat 2 are as follows:
Flat 1
(1) Ketamine: HK$3,847,550 (at HK$491 per gramme), discounting all liquid.
Flat 2
(2) Ketamine: HK$732,851 (again, at HK$491 per gramme), discounting all liquid.
(3) Cocaine: HK$203,154 (at HK$1,758 per gramme).
The 1st and 2nd defendants both admit that between 7 July 2020 and 25 September 2020, both dates inclusive, they conspired together to manufacture and to traffic in ketamine, FDCK and cocaine at Flat 1 and Flat 2.
Regarding the personal background of the defendants, the 1st defendant is 56 years of age. He was born in Mainland China. He has been educated up to Primary 4 level in Hong Kong. He is married and had been living with his 46 year-old wife and 11 year-old son. His parents have passed away. At the time of his arrest, he was working as a transportation worker, earning about HK$15,000 a month.
The 1st defendant has a total of 10 previous convictions, two of which are drug related. He has one previous conviction for trafficking in dangerous drugs, for which he was sentenced to 6 years’ imprisonment on 7 August 2015.
The 2nd defendant is 39 years of age. He had been educated up to secondary Form 5 level. He is single and was living with his parents who are both over 70 years old. Before the offences in question, the 2nd defendant worked as a casual construction/decoration worker. He became unemployed and was in financial difficulty. He foolishly committed the present offences in order to make money.
The 2nd defendant has four previous convictions for drug related offences, two of which are for the offence of trafficking in dangerous drugs. For these two trafficking offences, he was sentenced respectively to 2 years’ imprisonment on 4 January 2011 and 8 years and 8 months’ sentence on 22 January 2016.
The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Henry Jane Yusuph [2021] 1 HKLRD 290 which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The first step is to identify the relevant sentencing band (or bracket) applicable to the quantity of drug concerned. The second step is an assessment of the role and culpability of the defendant based on the evidence before the court. The third step is to identify where in the relevant band of the guideline the defendant comes. It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant. The fourth step is to consider the aggravating factors which bear on the “notional sentence after trial”. The fifth step is to have regard to any matters of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”. The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just and balanced sentence”.
I shall adopt a similar “six step” approach in arriving at the appropriate sentences for both charges in the present case.
Regarding step one, which involves the identification of the appropriate initial sentencing range applicable to the quantity of drugs involved, the duration of the conspiracy, and nature of the operation, including the number of people involved, before considering the role and culpability of the defendants under step two.
The total quantifiable dangerous drugs seized at Flat 1 are 6,593.93 grammes of ketamine/FDCK. The total quantifiable dangerous drugs seized at Flat 2 are 1,018.51 grammes of ketamine/FDCK, and 5.98 grammes of cocaine.
Therefore, the total quantity of ketamine/FDCK is 7,612.44 grammes. According to the sentencing guideline for trafficking in ketamine set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for over 1,000 grammes of ketamine, the sentence would be 14 years’ imprisonment upwards.
In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal was of the view that for 5.12 kilogrammes of ketamine, the starting point of 22 years was appropriate. It is well recognised that the sentencing/starting point would not increase proportionally for large quantity of drugs and the graph would flatten as the quantity increases. Accordingly, I hold that the starting point for trafficking in 7,612.44 grammes of ketamine/FDCK would be around 23 years’ imprisonment.
As for the 5.98 grammes of cocaine, according to HKSAR v Huang Ruifang [2025] HKCA 234 at paragraph 62, the starting point would be in the range of 2 to 5 years, arithmetically, at around 3 years and 9 months. Under the conversion approach, 5.98 grammes of cocaine would, therefore, be equivalent to around 10 grammes of ketamine/FDCK.
In assessing the starting point, the addition of this small quantity of cocaine into the quantity of ketamine/FDCK would not materially affect the starting point for trafficking (save for the enhancement for more than one drug involved, which will be dealt with under step four below).
23 years is the starting point for trafficking in around 7.6 kilogrammes of ketamine/FDCK on a single occasion. It is important to remember that under Charge 2, what is charged is a conspiracy. In HKSAR v Leung King Hung [2024] HKCA 804, the Court of Appeal considered that in a conspiracy to traffic, the notional starting point would be based not only on the quantity of drug seized, but also on the duration of the conspiracy, the number of people involved and their role. Taking into account all the relevant considerations in the present case, I hold that the notional starting point under step one for Charge 2 (trafficking) should be 24 years’ imprisonment.
As to the starting point under step one for Charge 1 (manufacturing of dangerous drugs), I take into account the following:
(1) It has long been held in this jurisdiction that the offence of manufacturing is to be regarded even more seriously than the offence of trafficking.
(2) If the drug manufacturing act is a continuous act spanning a period of time, and the drug manufacturing
workshop is of considerable scale and productivity involving a large amount of chemicals used for drug manufacturing as well as a not insignificant quantity of high standard drug 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 HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, paragraph 34. In our case, the quantity of drugs seized was over 7.6 kilogrammes of ketamine.
(3) When it comes to a large scale, productive and long-running drug manufacturing workshop, where the defendant plays an active and important role, and where an exceptionally large amount of drug is seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence: see HKSAR v Cheng Chi Wai, ibid, paragraph 36.
In the present case, taking into account all the relevant circumstances, I hold that the notional starting point under step one for Charge 1 (manufacturing of dangerous drugs) should be 26 years’ imprisonment.
Regarding step two, concerning the role and culpability of the defendants, I shall first deal with the position of the 2nd defendant. I accept that based on the Summary of Facts, the 2nd defendant was a worker, but he was obviously more than just a courier or storekeeper, a preposition which is not disputed by the 2nd defendant’s counsel. The 2nd defendant took up the lease of Flat 1 and Flat 2. He was intricately involved with the manufacturing process. He was responsible for weighting and packing the finished product. He was even responsible for delivering at least some of the drugs to the buyers.
Regarding the 1st defendant, I consider that he was one step above the 2nd defendant in the hierarchy. He recruited the 2nd defendant. He funded the rental of Flat 1 and Flat 2. He promised the remuneration to be paid to the 2nd defendant. He taught the 2nd defendant how to manufacture the finished product. The 1st defendant also gave instructions to the 2nd defendant regarding drug deliveries.
Regarding step three, based on my findings made at step two, I would adopt the following “notional sentences after trial” for the offences in question:
(1) Regarding the 1st defendant on Charge 1 (manufacturing): 27 years and 6 months’ imprisonment.
(2) Regarding the 1st defendant on Charge 2 (trafficking): 25 years and 6 months’ imprisonment.
(3) Regarding the 2nd defendant on Charge 1 (manufacturing): 27 years’ imprisonment.
(4) Regarding the 2nd defendant on Charge 2 (trafficking): 25 years’ imprisonment.
Regarding step four, I am required to consider any aggravating factors, which would go to enhance the “notional sentences after trial” identified under step three. There are two such aggravating features in the present case.
The first aggravating feature concerns the multiplicity of dangerous drugs being manufactured and trafficked in (ie ketamine and cocaine), thereby catering to a wider market of consumers. I would enhance the sentence of imprisonment by 6 months for this factor.
The second aggravating features concerns the defendants’ previous convictions for trafficking in dangerous drugs, which is also an accepted factor justifying an enhancement of sentence under step four. For this factor, I would enhance the sentence of the defendants by further 6 months’ imprisonment.
This would take the “notional sentences after trial” to the following level:
(1) Regarding the 1st defendant on Charge 1 (manufacturing): 28 years and 6 months’ imprisonment.
(2) Regarding the 1st defendant on Charge 2 (trafficking): 26 years and 6 months’ imprisonment.
(3) Regarding the 2nd defendant on Charge 1 (manufacturing): 28 years’ imprisonment.
(4) Regarding the 2nd defendant on Charge 2 (trafficking): 26 years’ imprisonment.
Regarding step five, I consider that the only factor which may reduce the defendants’ sentences are the timely guilty pleas, for which I will give them a one-third discount. Accordingly, the defendants’ sentences are reduced to the following:
(1) Regarding the 1st defendant on Charge 1 (manufacturing): 19 years’ imprisonment.
(2) Regarding the 1st defendant on Charge 2 (trafficking): 17 years and 8 months’ imprisonment.
(3) Regarding the 2nd defendant on Charge 1 (manufacturing): 18 years and 8 months’ imprisonment.
(4) Regarding the 2nd defendant on Charge 2 (trafficking): 17 years and 4 months’ imprisonment.
In the case of the 2nd defendant, counsel submits that the 5 months’ sentence resulting from the 2nd defendant’s last conviction on 14 March 2022 should be considered in term of totality, although counsel accepts that the possession of dangerous drugs offence was committed on a separate occasion, long after the present offences, thus in principle liable to be punished by consecutive sentences. I agree with that submission, and I consider it just that the 2nd defendant’s sentence on Charge 1 (manufacturing) should be reduced by 2 months, making it 18 years and 6 months’ imprisonment.
Finally, I consider the sentences indicated above, to be fair, just and balanced sentences, taking into account the very serious nature of the present case.
Accordingly, the 1st defendant is sentenced to 19 years’ imprisonment on Charge 1, 17 years and 8 months’ imprisonment on Charge 2, and I order that the sentences are to run concurrently.
In the case of the 2nd defendant, I sentence him to 18 years and 6 months’ imprisonment on Charge 1, and 17 years and 4 months’ imprisonment on Charge 2. Again, I order the sentences to run concurrently.
So that the total sentence to be served by the 1st defendant is 19 years. And the total sentence to be served by the 2nd defendant is 18 years and 6 months.