HKSAR v. Au Chun Wah

CACC 62 & 206/2024, [2026] HKCA 592

On Appeal From [2024] HKCFI 871 & [2024] HKCFI 2724

(Heard together)

CACC 62/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 62 OF 2024

(ON APPEAL FROM HCCC NO 124 OF 2023)

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AND

CACC 206/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 206 OF 2024

(ON APPEAL FROM HCCC NO 46 OF 2024)

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(Heard together)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.These two matters were heard together at a joint hearing in order to enable the Court to consider an issue that is common to each appeal, namely, the proper sentencing approach to cases involving counts on the same indictment for both manufacturing and trafficking in dangerous drugs, where the drugs trafficked are derived from or associated with the same manufacturing operation. There is no issue as to the applicability in either case of the new sentencing guidelines set out in HKSAR v Huang Ruifang (No 3)[1], which was handed down after sentence was passed in both of these two cases. Both appeals were filed within time and are, therefore, within the appeal system, as discussed in the recent decision of this Court in HKSAR v Lam Man Tak[2]. Accordingly, the two appellants are in principle able to take advantage of the revised sentencing guidelines in Huang Ruifang (No 3).

2.As it happens, the appellants were both sentenced by Barnes J (“the judge”) in 2024, but six months apart. The two cases are otherwise factually unconnected; however, both appellants are for present purposes represented by Mr Beel.

CACC 62/2024

The background

3.The appellant (“Au”) pleaded guilty before a magistrate to one count of manufacturing a dangerous drug (Count 1)[3] and one count of trafficking in dangerous drugs involving 197.8 grammes of cocaine narcotic and a total of 15.06 grammes of methamphetamine hydrochloride/methamphetamine (commonly referred to as “Ice”) (“Count 2”)[4], and was committed to the High Court for sentence. On 6 March 2024, he was sentenced to a total of 14 years’ imprisonment by the judge. On 6 December 2024, the Single Judge gave the appellant leave to appeal against sentence, for which he was also granted an Appeal Aid Certificate[5].

The facts

4.On 31 August 2020, police officers, who were conducting an anti-narcotics operation, observed a man coming out from a flat in a building in Kwai Chung, New Territories. The officers intercepted him and subsequently gained access to the flat, which consisted of three subdivided rooms. When, in the course of their enquiries, they heard sounds coming from Room 1 of the subdivided unit, they revealed their identities and demanded entry. Upon receiving no response, the officers forced their way into the room, where they discovered the appellant. At the time, the appellant was in possession of keys to the flat and to Room 1, HK$1,130 in cash and two mobile telephones.

5.Having executed a search warrant, police officers seized from Room 1 the subject matter of Count 2 (namely, 197.8 grammes of cocaine and 15.06 grammes of “Ice”), together with various chemicals and paraphernalia commonly associated with the manufacturing of crack cocaine.

6.The appellant was arrested and admitted under caution that he would help others to “cook the coke” so that he could make some money and then pass it on to someone else. He also claimed that he possessed the smaller quantity of “Ice” for his own consumption, using an “Ice bottle” to smoke the drug. Upon examination of the appellant’s mobile telephones, three videos detailing the manufacturing process of dangerous drugs were retrieved. A further search was conducted in Room 1 on 1 September 2020, where wooden and plastic fragments containing methamphetamine were found.

7.The appellant later admitted in a video recorded interview that he had rented Room 1 for two years as his living accommodation, and that he had been recruited by a person called “Ka Ho” to process the cocaine for a reward of between HK$3,000 and HK$6,000. He performed the processing on about three occasions in August 2020, but had yet to receive any payment. He admitted that he would collect unprocessed cocaine at a flowerbed near the building and, after processing, would then telephone Ka Ho before placing the finished product back in the flowerbed. He explained how he boiled and processed the cocaine using the various paraphernalia found, and that just before the police arrived, he had turned on the electronic pot in order to “melt” some cocaine. He claimed he had purchased some “Ice” for HK$1,500 from a friend for his own consumption.

8.The street values of the various drugs seized were: HK$528,162 in respect of the cocaine powder; HK$1,018,640 for the crack cocaine; and HK$9,294 for the “Ice”. In agreeing to the Summary of Facts, the appellant admitted to manufacturing cocaine and unlawfully trafficking in all of the dangerous drugs seized inside Room 1.

Mitigation

9.The appellant was, at the time of sentence, 55 years of age and living alone. He was effectively of good character, having a minor “spent” conviction for common assault some 40 years earlier, for which he had been fined $300. He was working as the supervisor of a warehouse at the time of his arrest. It was submitted on his behalf that the appellant was a “one-man band” who cooked, or cracked, cocaine in his own home[6], and that both the scale of the operation and the capacity of the equipment was small[7]. It was stressed that his role was at the lowest end of the trafficking hierarchy and that he was akin to a manual worker who simply received and carried out instructions. Although mitigation was advanced that the appellant was a user of “Ice” himself, it seems to have been accepted by his counsel that this would not affect the sentence[8]; presumably because it was believed that the appellant would not be able to substantiate that a ‘significant proportion’ of the “Ice” was for his own consumption, consistent with the requirements in HKSAR v Wong Suet Hau & another[9].

10.Letters from the appellant and his sisters to the judge acknowledged that he had committed the offences out of greed, but that they were out of character. He was said to be extremely remorseful for what he had done.

Reasons for sentence

11.The judge said that the manufacturing of dangerous drugs was a much more serious offence than trafficking in dangerous drugs, and that the manufacturing station, whilst not substantial, had been capable of producing at least 200 grammes (which was roughly the quantity seized) of crack cocaine. She considered that the operation would have continued but for the intervention of the police, and having acknowledged that there was no evidence to suggest the appellant was the mastermind of the enterprise or in a managerial position, the judge adopted a starting point of 15 years’ imprisonment on Count 1.

12.In respect of Count 2, the judge referred to the seven-step approach set out in HKSAR v Islam S M Majharul[10], using the cocaine as the base drug to conduct the absurdity test (which produced a sentence of 13 years and 5.8 months), the ratio test (which produced a sentence of 12 years and 3.4 months) and the conversion test (which produced a sentence of 12 years and 7 months); the latter test being considered the appropriate one to use. She arrived at a starting point of 12 years and 9 months’ imprisonment given the nature and quantity of dangerous drugs involved and the appellant’s role in their production.

13.After the customary one-third reduction for guilty plea, resulting in a term of 10 years’ imprisonment in respect of Count 1, and 8 years and 6 months’ imprisonment in respect of Count 2, the judge ordered 4 years of the sentence on Count 2 to run consecutively to the sentence on Count 1, the remainder to run concurrently. The resultant sentence thereby became 14 years’ imprisonment[11].

CACC 206/2024

The background

14.The appellant (“Lau”) pleaded guilty in a magistrate’s court to two counts of trafficking in a dangerous drug (Counts 1 and 3 between them involved a total of 469.1 grammes of cocaine) and one count of conspiracy to manufacture a dangerous drug (Count 2), for which he was also committed to the High Court for sentence. On 16 September 2024, he was sentenced by the judge to an overall term of 14 years’ imprisonment. On 23 April 2025, the Single Judge granted the appellant leave to appeal against sentence[12].

The facts

15.In the evening of 13 June 2022, the appellant was intercepted by police officers as he was walking along Liberty Avenue in Ho Man Tin, Kowloon. Upon a search of his person, the police officers found a plastic bag containing 13 plastic bags and 3 paper packets, which themselves contained a total of 275 grammes of a solid with a content of 191 grammes of cocaine narcotic (Count 1). He was arrested and cautioned, whereupon he stated that the drugs in his possession were for sale and that he had just come from his flat, which was located nearby. He was thereafter escorted back to his flat by the officers. Following a search of the premises, the officers found items that were typically associated with the manufacturing of crack cocaine from cocaine hydrochloride, as well as electronic scales and numerous re-sealable plastic bags for the respective weighing and packaging of the manufactured product. Under caution, the appellant admitted that he had been manufacturing crack cocaine for about a month from an initial quantity of 1 kilogramme of cocaine (Count 2). Police officers also found inside the premises 17 plastic bags containing a total of 323 grammes of a solid containing 266 grammes of cocaine and 2 plastic bags containing a total of 12.9 grammes of a solid containing 12.1 grammes of cocaine hydrochloride (Count 3). The appellant stated that the 323 grammes of solid found in the 17 packets represented the manufactured product from the original 1 kilogramme of cocaine.

Mitigation

16.Mr Beel, who represented the appellant at sentencing, submitted in mitigation that, in addition to the appellant’s timely plea, the appellant had also rendered assistance to the authorities. We do not propose to go into this matter, which was properly heard and determined by way of Sivan proceedings before the judge.

The sentence

17.In sentencing the appellant, the judge first considered the conspiracy to manufacture dangerous drugs (Count 2) and determined that a starting point of 21 years’ imprisonment was appropriate in the circumstances of the case; and in view of the appellant’s assistance to the authorities, she granted a reduction from the starting point of 48% (including the one-third discount for his guilty plea), resulting in a sentence on Count 2 of 10 years and 11 months’ imprisonment. The judge next considered the two trafficking counts (Counts 1 and 3) together and treated the combined quantity of the crack cocaine and cocaine hydrochloride as 469.1 grammes of cocaine narcotic. The quantity fell within the sentencing band of 400 to 600 grammes, corresponding to 15 to 20 years’ imprisonment under the guidelines prevailing at the time of sentence, namely Attorney General v Pedro Nel Rojas[13]. The judge adopted an enhanced starting point of 19 years’ imprisonment and, after applying a discount of slightly more than 48%, sentenced the appellant to 9 years and 10 months’ imprisonment on each count. In applying the totality principle, the judge ordered that the sentences on Counts 1 and 3 should run concurrently with each other, with 4 years and 2 months of the sentence on Count 2 running consecutively to the concurrent term of 9 years and 10 months’ imprisonment on Counts 1 and 3, thereby resulting in a total sentence of 14 years’ imprisonment.

The two appeals

Au’s grounds of appeal (CACC 62/2024)

18.In his amended perfected grounds of appeal against sentence, Mr Beel has advanced two grounds on behalf of Au. Firstly, it is said that the judge erred in law and/or principle by failing properly to consider the principle of totality, since the appellant’s culpability or criminality on Count 1 (manufacturing) overlapped with Count 2 (trafficking); she was thereby in error in apportioning a quantum of 4 years’ imprisonment on Count 2 to run consecutively to the sentence on Count 1. Secondly, it is the appellant’s contention that during the currency of the appellant’s appeal process, the sentencing guidelines for cocaine have been revised by the Court’s judgment in Huang Ruifang (No 3), which should now properly be deployed in the appellant’s favour.

19.Mr Beel proposed the following sentences by reference to the revised guidelines. In respect of Count 1 (manufacturing), the judge’s adoption of a 15-year starting point appears to have been predicated on an aggregate quantity of approximately 400 grammes of cocaine, based on the nearly 200 grammes found in the premises and the assessed manufacturing capability of 200 grammes or more. Under Huang Ruifang (No 3), the corresponding starting point should now be 14 years and 8 months’ imprisonment for such quantity; and after the customary one-third discount for the appellant’s guilty plea, the resultant sentence would thereby become 9 years and 9 months’ imprisonment.

20.In respect of Count 2 (trafficking), the starting points were 11 years and 11 months (in respect of 197.8 grammes of cocaine) and 7 years and 4 months (in respect of 15.06 grammes of “Ice”), whether under the former or the revised guidelines. Although not filed as a specific ground of appeal, Mr Beel invited the Court to find that “at least part of the Ice”[14] was for the appellant’s own consumption. Further, leaving aside his manufacturing role in Count 1, the judge found the appellant’s role in Count 2 to be at the lowest end of the scale, namely that of a storekeeper. After a one-third discount for his guilty pleas, the resultant sentence should have been in the region of 8 years and 4 months’ imprisonment.

21.Citing HKSAR v Sum Ka Wa[15], Mr Beel submitted that the sentences on Counts 1 and 2 should have been ordered to run wholly concurrently, resulting in an overall sentence of 9 years and 9 months, given that the trafficking was part and parcel of the same course of conduct as the manufacturing, the crack cocaine having been derived from the manufacturing process.

22.As for the “Ice”, if the Court accepted that part of it was intended for the appellant’s own consumption, it may properly be treated as subsumed within the overall manufacturing conduct for totality purposes. But even if not so subsumed, but bearing in mind the overall circumstances and the appellant’s personal background, any consecutive element should have been minimal.

The respondent’s reply (CACC 62/2024)

23.Ms Karinna Lai, on behalf of the respondent, submitted that the overall sentence of 14 years’ imprisonment, whilst on the high side, was neither wrong in principle nor manifestly excessive. In respect of Count 1 (manufacturing), Ms Lai pointed out that 197.8 grammes of cocaine was found and that, since the appellant admitted that he had processed cocaine in the same way “for about 3 times in August 2020”[16], the total quantity processed was about 791.2 grammes (namely, 197.8 grammes × 4). Under the revised guidelines in Huang Ruifang (No 3), the corresponding notional starting point for trafficking would be 17 years and 2 months’ imprisonment.

24.Relying on R v Cheung Wai Kwong and another[17] and HKSAR v Cheng Chi Wai[18], Ms Lai further submitted that the sentence for manufacturing must be substantially higher than that for trafficking. On the facts of the present case, a starting point of 19 years’ imprisonment was warranted, having regard to: (i) the quantity seized; (ii) the scale and productivity of the workshop (including 814 grammes of raw material containing sodium bicarbonate); (iii) the period of operation (three occasions in August 2020 alone); (iv) the paraphernalia present inside the premises; and (v) the appellant’s role.

25.As for Count 2 (trafficking), Ms Lai contended that, under the revised Huang Ruifang (No 3) guidelines and upon converting the 15.06 grammes of “Ice” into cocaine, the notional starting point for all the drugs (equivalent to about 238 grammes of cocaine) should have been about 12 years and 6 months’ imprisonment. She further argued that there should have been an enhancement of 3 months to reflect the multiplicity of dangerous drugs being trafficked: see HKSAR v Yim Hung Lui Ricky[19]. After a one-third discount, the sentence would, therefore, become 8 years and 6 months’ imprisonment.

26.Ms Lai rejected the latest assertion from the Bar table that the “Ice” was for the appellant’s own consumption. Firstly, defence counsel at trial had specifically accepted that the appellant could not claim part of the drugs for his own consumption under relevant authority[20]; accordingly, it was not now open to different counsel on appeal to argue a different position. Secondly, the surrounding circumstances were inconsistent with possession by the appellant of the “Ice” for his own consumption, given that: (i) 0.46 grammes and 0.5 grammes of “Ice” were concealed in wooden and plastic fragments similar to images in a video clip found on the appellant’s telephone; (ii) 14.1 grammes of “Ice” was stored together with the cocaine and sodium bicarbonate; (iii) the total quantity of “Ice” (15.06 grammes) was substantial meriting a sentence after trial in excess of 7 years’ imprisonment; (iv) packaging paraphernalia was readily available; and (v) the street value of the “Ice” (HK$9,294) far exceeded the price the appellant claimed to have paid for the drug (said to be HK$1,500).

27.In respect of totality, Ms Lai submitted that the “Ice” was unrelated to the manufacture of crack cocaine and added to the appellant’s overall criminality, thereby justifying a consecutive element.

28.Ultimately, it was the respondent’s position that the overall sentence of 14 years’ imprisonment, whilst on the high side, was neither wrong in principle nor manifestly excessive. Accordingly, the appeal against sentence should be dismissed.

Lau’s grounds of appeal (CACC 206/2024)

29.In his amended perfected grounds of appeal against sentence on behalf of Lau, Mr Beel advanced two grounds of appeal. It is said, firstly, that the starting point for the combined cocaine quantities in Counts 1 and 3 was manifestly excessive (Ground 1); secondly, the consecutive element of sentence on Count 2 was manifestly excessive and failed properly to take into account that the culpability in Counts 1 and 3 overlapped with Count 2, thereby infringing the principle of totality (Ground 2).

30.Mr Beel contended that, applying the revised guidelines in Huang Ruifang (No 3) to Counts 1 and 3 (trafficking in a total of 469.1 grammes of cocaine), the total quantity now fell within the band of 200 - 500 grammes of narcotic (namely, 12 to 16 years’ imprisonment) yielding an arithmetic starting point of 15 years and 7 months’ imprisonment. Furthermore, the fact that the appellant was the manufacturer should automatically have been reflected in the sentence on Count 2, rather than by enhancing the trafficking starting points for Counts 1 and 3. After applying a 48% discount for the appellant’s assistance to the authorities (which included the usual one-third discount for his guilty pleas), the resultant sentence would be 8 years and 1 month’s imprisonment.

31.In respect of Count 2 (conspiracy to manufacture), Mr Beel relied on the appellant’s admission under caution that he had been given 1 kilogramme of cocaine hydrochloride to convert into crack cocaine. On that premise, trafficking in 1 kilogramme of cocaine under the revised guidelines now fell within the band of 500 - 1,500 grammes band (16 to 20 years’ imprisonment) and, on a purely arithmetic basis, pointed to a starting point of 18 years’ imprisonment. Applying the same 48% discount for the appellant’s assistance to the authorities, the resultant sentence would be 9 years and 4 months’ imprisonment.

32.In respect of the question of totality, Mr Beel submitted that, had the appellant been arrested at the premises rather than on the street with the same quantity of drugs in his possession, and where the possession for trafficking was a direct consequence of the manufacturing, he could have expected that the sentences for the trafficking and manufacturing offences should run wholly concurrently (see Sum Ka Wa, at [35]-[37]). On that footing, he contended that the judge erred in ordering any consecutive element at all.

33.Accordingly, it was submitted that the appropriate sentences would be 8 years and 1 month on Counts 1 and 3, and 9 years and 4 months on Count 2, with all sentences being ordered to run concurrently, thereby producing an overall sentence of 9 years and 4 months’ imprisonment.

The respondent’s reply (CACC 206/2024)

34.Mr Antony Leung, for the respondent, submitted that the aggregate sentence of 14 years’ imprisonment (indicative of an overall starting point of 26 years and 11 months’ imprisonment) imposed on the appellant in respect of all three counts was neither manifestly excessive nor wrong in principle.

35.By reference to the factors identified in Cheng Chi Wai[21] as relevant to assessing the gravity of drug-manufacturing offences, Mr Leung pointed to five aggravating features which were present in this case: (i) the drug-manufacturing activities were continuous for at least one month, rather than taking place on one occasion; (ii) raw materials in large quantities were found, indicating an intention to produce a considerable quantity of crack cocaine over a sustained period; (iii) the operation was highly productive (1 kilogramme of raw cocaine being processed within a single month), with obviously efficient delivery arrangements; (iv) the appellant played an active and major role in obtaining and cooking the cocaine; and (v) more than one person was involved, and the overall circumstances indicated that the appellant’s manufacturing and trafficking were part of a syndicated operation.

36.As for Count 2 (conspiracy to manufacture), Mr Leung submitted that, under the revised guidelines in Huang Ruifang (No 3), the notional starting point for trafficking in 1 kilogramme of cocaine was already 18 years’ imprisonment. He contended that the starting point for Count 2 should be well in excess of 18 years, since the Court in Cheng Chi Wai[22] had held that a sentence for manufacturing must be “substantially higher” than that for trafficking in the same quantity. Drawing an analogy with Count 4 in Cheng Chi Wai[23], he submitted that the judge’s starting point of 21 years’ imprisonment in respect of Count 2, whilst on the high side in light of the revised guidelines, was nevertheless justified on the facts and in light of the five aggravating features identified.

37.Secondly, the judge may have been unduly generous in granting a 48% discount for the appellant’s assistance to the authorities, which lay outside the usual range of 40% - 45% as stipulated in HKSAR v Lo Sze Tung Stephanie[24]. He argued that 43% would have been a more appropriate level of discount.

38.Thirdly, the appellant’s dual role as manufacturer and trafficker justified a partly consecutive sentence to reflect additional culpability: see HKSAR v Chan Wang Mei[25]; HKSAR v Nguyen Thang Loi[26].

Discussion

39.If we go back to first principles, the offence of manufacturing dangerous drugs has generally been regarded as even more serious than the offence of trafficking in dangerous drugs. That is primarily because the actual making of a dangerous drug, by which we include adulterating and refining a dangerous drug as in the present cases, is traditionally viewed by the courts as more serious than trafficking in that drug[27]. A secondary consideration is that the criminality involved is more open-ended: it is often unclear with such offences when the manufacturing commenced and how much had actually been produced, while as a matter of common sense the offence would almost certainly not have ended but for the intervention of the authorities. As the Court in Sum Ka Wa explained[28]:

“…the amount of drugs found in the premises where manufacturing is taking place will invariably be a small part, perhaps only a fraction, of the drugs actually manufactured and the capacity of the operation”.

40.Since manufacturing is by its nature generally the more serious of the two offences, it would normally be prudent to assess the seriousness of the manufacturing offence first and make it the anchor of the sentence before considering sentence for the accompanying offence(s) of trafficking. By doing so, the sentencing court will run less of a risk of double-counting the manufacturing element. For if a court were to consider the trafficking offence first, it would in accordance with principle have to make an assessment of the offender’s role and culpability, which would inevitably involve an assessment of his role as a manufacturer of dangerous drugs. But his role as a manufacturer (or conspirator to manufacturing) is central to the more serious offence of manufacturing a dangerous drug.

41.On the other hand, if one were to assess the sentence for manufacturing first, one would be taking into account the quantity of any dangerous drug in which the defendant was trafficking when gauging the seriousness and extent of his manufacturing. Double-counting would be less likely in the second approach than in the first because the sentencing court has already dealt with the defendant qua manufacturer. And where drugs are found in a place where they have been manufactured, the most obvious course would be to make the sentences on each count run concurrently. That was the point we made in Sum Ka Wa, where the Court held[29]:

“…this was a course of serious criminal conduct, all of which was obviously inter-related, and all of which occurred on the same day, at the same time and in essentially the same place. It was a dangerous drugs manufacturing operation, in which the principal offence particularised was Count 4, while the drugs to be trafficked were particularised in Counts 2 and 3. The facts of this particular case called for an assessment of the gravity of the most serious count, namely Count 4, by reference, among other things, to the quantities of dangerous drugs in Counts 2 and 3. Since the quantities of dangerous drugs in Counts 2 and 3 were to be taken into account in assessing the appellant’s criminality on Count 4, it was important that the making of partly consecutive sentences did not inflate the overall sentence when using the same quantity of dangerous drugs to arrive at both the starting point for trafficking and the starting point for manufacturing. The better and safer course, given that Counts 2 and 3 obviously derived from, and were inextricably linked with, Count 4, was to make all sentences concurrent”.

42.The difficulty comes, however, where the manufacturer is found to have played two active roles as both producer of the dangerous drug and as retailer of those drugs to the public. Then it might be necessary, depending on the facts, to reflect this dual role by making some of the sentence for trafficking run consecutively to the sentence for manufacturing, whilst making sure that the overall totality properly reflects the seriousness of the criminal conduct.

43.In this regard, courts must be careful in deciding whether the manufacturer has actually performed another role which takes his conduct beyond the appropriate sentence for manufacturing, or whether it is incidental to the manufacturing process. On this issue, Mr Beel has argued that, as a matter of common sense, the act of manufacturing does not simply end with the physical creation of the dangerous drug in a cooker or, as in either of the cases before us, the adulteration of cocaine into crack cocaine. The whole process of manufacture will inevitably involve the manufacturer putting what he has created or adulterated into bags or packages following production and handing it over to whoever may have given the instructions for its production. Provided his conduct comes within the entire process of manufacturing the product, which is serious enough, there should be no warrant for further penalising him for trafficking in (in the sense of dealing with) the same. In our view, this is more a matter of common sense on the particular facts of the case.

44.The proper approach to sentence where there are counts of manufacturing (or conspiracy to manufacture) together with trafficking (assuming the drugs being trafficked are those that have been manufactured) may be exemplified in the two cases before us. In Au’s case, the judge first addressed the matter of sentence for the manufacturing count. Acknowledging that it was a more serious offence than trafficking, she rightly held[30]:

“Factors to be taken into consideration include the quantity of dangerous drugs which was just one factor to be taken into consideration, 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 defendant.

Now the amount of cocaine found was almost 200 grammes. Clearly, the manufacturing station although not substantial was capable of producing 200 grammes or more of cocaine. Bearing in mind the operation had been going on but for the intervention by the police, the defendant would have continued to manufacture cocaine.

There is no evidence that the defendant was the mastermind or of a managerial position. I am of the view that a starting point of 15 years is appropriate for this offence.”

Then, the judge turned to the sentence for trafficking in what he had produced, correctly acknowledging in the course of her reasoning[31]:

“I have to consider the role played by the defendant. The defendant being a manufacturer as well is clearly an aggravating factor, however, as I have already considered the appropriate sentence for his role as a manufacturer, to take such role into account for the trafficking would result in double counting.

So there is no evidence of direct trafficking, the pleas are clearly on the basis of possession of the dangerous drugs for the purpose of unlawful trafficking. So I will treat the defendant as a storekeeper of the drugs.

Having bear in mind the role played by the defendant, I am of the view that a starting point of 12 years 9 months is appropriate”.

45.This, with respect, was the correct way to go about sentencing in the circumstances, namely by making an assessment of the appropriate sentence for each charge beginning with the manufacturing count. Had she made both sentences for manufacturing and trafficking run concurrently with each other, in circumstances where there was no evidence of any other role played by the appellant, there would have been no difficulty with the resultant sentence. However, the judge ordered that 4 years of the sentence for the trafficking count should run consecutively to the sentence for manufacturing, thereby resulting in an ultimate sentence of 14 years’ imprisonment. Yet, she had already taken into account the quantity of cocaine, both actual and projected, when determining the appropriate sentence for manufacturing, so the additional sentence of 4 years for trafficking must have taken into account what she had already considered as part of the manufacturing count.

46.There is, however, one matter in Au’s case which would have justified a consecutive element for trafficking. The appellant was also convicted of trafficking in 14.6 grammes of a crystalline solid containing 14.1 grammes of “Ice” (as well as some small fragments of “Ice”), which had nothing to do with the manufacturing offence and, on its own, would have been deserving of a sentence of just over 7 years’ imprisonment. Thus the judge was entitled to add a consecutive element to the sentence for manufacturing by virtue of the appellant’s trafficking in another drug “Ice”, which clearly he did not manufacture. Moreover, she would have been entitled to consider as an aggravating feature the fact that the appellant was trafficking in two different dangerous drugs, thus catering to a wider section of the public. However, she decided not to treat this matter as an aggravating factor in the exercise of her discretion. We think the judge was entitled to take that view: the quantity was relatively small and the appellant was also clearly a drug addict himself who regularly consumed “Ice”[32].

47.Nevertheless, the consecutive element of 4 years’ imprisonment on Count 2 was clearly derived from the 8 years and 6 months’ sentence (discounted by one-third from a 12 years and 9 months’ imprisonment starting point) for the cocaine quotient of Count 2. In our judgment, given that there was no evidence which took the appellant beyond his role as a manufacturer, the consecutive element of the sentence on Count 2 should not have been 4 years’ imprisonment. We would have added 1 year for Count 2 for the “Ice” quotient being trafficked to the 10 years’ imprisonment on Count 1 for manufacturing, thus making an overall sentence of 11 years’ imprisonment.

48.We should add that we do not think the revised guidelines in Huang Ruifang (No 3) assist the appellant. As Mr Beel recognised, there would only be a slight difference of 4 months in the starting point for the notional quantity of cocaine being manufactured, but not such as to make any material difference to sentence on a plea, especially in the context of manufacturing crack cocaine.

49.In the case of Lau, the judge at first adopted the same approach: namely, to assess the appropriate starting point for sentence for the manufacturing count (or, in this case, conspiracy to manufacture), bearing in mind the same factors relevant to manufacturing as earlier stated in Au’s case, one of which was the seizure of 469.1 grammes of cocaine. Of this quantity of dangerous drugs, the judge said that it was[33]:

“… one of the factors in my consideration in gauging the scope and extent of the (manufacturing) operation”.

Having identified a starting point of 21 years’ imprisonment for the conspiracy to manufacture count (Count 2), she went on to assess the appropriate sentence for the trafficking counts (Counts 1 and 3). On these two counts, the judge arrived at a starting point of 19 years’ imprisonment in respect of each count. Both the starting points for manufacturing and for trafficking were then discounted by 48% for reasons we are not prepared to interfere with and therefore accept, thus resulting in 10 years and 11 months’ imprisonment for the manufacturing count, and 9 years and 10 months’ imprisonment for each of the two trafficking counts.

50.Unfortunately, the judge then adopted a different approach to the overall sentence than the one she had previously adopted in Au’s case. In the case of Lau, she treated the sentences on the two trafficking counts (Counts 1 and 3), which were ordered to run wholly concurrently with each other, as the anchor of her sentence before ordering 4 years and 2 months’ imprisonment of the sentence for the manufacturing count (Count 2) to run consecutively to the sentence for the two trafficking counts. With respect, as with Au’s case, the judge should have assessed the sentence for manufacturing first as the more serious offence before considering whether to order any part of the concurrent sentences for trafficking to then run consecutively to it.

51.As we have earlier indicated, by considering the sentence in the order in which she did, the judge ran the risk of double-counting; which is in fact what she did. When assessing the sentence for the trafficking counts, the judge found[34]:

“The role played by the defendant is significant. He is both the manufacturer as well as being a courier.

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.”

Accordingly, it was by reason of his role as manufacturer that the judge substantially enhanced the starting points for the two trafficking offences from what they would otherwise have been arithmetically in accordance with the prevailing guidelines at the time of sentence, namely, 16 years and 8 months’ imprisonment. The judge, therefore, had enhanced the sentence for trafficking by 2 years and 4 months for his role as a manufacturer, but then still went on to pass a separate sentence, with a sizeable consecutive element, for the conspiracy to manufacture count. This reversal of the proper order in which the sentences should have been considered illustrates the danger of double-counting. Had the judge assessed the sentence for the more serious count of manufacturing (or conspiracy to manufacture) first, which would have taken into account, among other factors, the quantities of dangerous drugs actually seized as well as projected, she would then have had to determine whether there was anything which justified any consecutive element for the trafficking counts, or whether the sentences on the trafficking counts should run wholly concurrently with each other and with the manufacturing count.

52.In fact, in Lau’s case, there was also evidence which justified a consecutive element for the two trafficking offences because the appellant had confessed to the dual role we have earlier explained. For when the appellant was intercepted in Ho Man Tin, Kowloon at about 8:11 pm on 13 June 2022 in possession of a plastic bag containing 13 plastic bags and three paper packets containing 275 grammes of a solid containing 191 grammes of cocaine narcotic, the subject-matter of Count 1, he made certain relevant admissions to the police. Paragraph 2 of the Summary of Facts, which the appellant confirmed when he pleaded guilty, read[35]:

“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.”

Paragraph 9 of the same Summary of Facts read[36]:

“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 1kg 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 the Defendant were proceeds of his drug manufacturing. According to him, after manufacturing crack cocaine at the Flat, he would pack the drug into packs of 24g each and pass them to someone unknown on Liberty Avenue.”

53.Although paragraph 2 was more explicit than paragraph 9, it is clear that the appellant was also selling the drugs he had manufactured on the streets of Hong Kong. He not only manufactured the crack cocaine: he also sold it as a retailer. In our judgment that would have warranted a consecutive element for the two trafficking counts to the manufacturing count.

54.If we accept the sentences adopted for the trafficking offences, we also have to determine whether the revised guidelines in Huang Ruifang (No 3) would have affected sentence. Although 469.1 grammes of cocaine under the previous guidelines in R v Lau Tak Ming & another[37] would have warranted an arithmetic sentence after trial of 16 years and 8 months’ imprisonment, the starting point under the revised guidelines in Huang Ruifang (No 3), which we consider are now applicable to the appellant’s case, would have been 15 years and 7 months’ imprisonment. A difference of 13 months in the starting point between the former and revised guidelines would translate to a difference of just under 9 months’ imprisonment on a plea. We are of the view that such a difference between the former and the revised guidelines was not significant enough to warrant our interference in this case.

55.Of course, a difference of 13 months in the starting points for the two trafficking counts could logically have also affected the judge’s assessment of the scale and seriousness of the manufacturing operation, but we consider the judge’s adoption of 21 years’ imprisonment as a starting point for Count 2, given other relevant factors affecting the criminality of the count, was correct. Therefore, adopting a sentence of 10 years and 11 months’ imprisonment after discount for Count 2, we would make the two sentences on Counts 1 and 3 wholly concurrent with each other but partly consecutive and partly concurrent with the sentence on Count 2 to the extent of 1 year being ordered to run consecutively, thus making an overall sentence of 11 years and 11 months’ imprisonment.

Disposition

56.For the above reasons, we reduce the sentence on Au from 14 years’ imprisonment to 11 years’ imprisonment; and the sentence on Lau from 14 years’ imprisonment to 11 years and 11 months’ imprisonment. To this extent each appeal is allowed.

Ms Karinna Lai SPP, of the Department of Justice, for the Respondent in CACC 62/2024

Mr Trevor Beel, instructed by K W Wong & Co, assigned by the Director of Legal Aid, for the Appellant in CACC 62/2024

Mr Antony Leung SPP, of the Department of Justice, for the Respondent in CACC 206/2024

Mr Trevor Beel, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Appellant in CACC 206/2024