COURT: The defendant pleaded guilty before a magistrate to one charge of conspiracy to manufacture a dangerous drug. He was committed before me for sentence.
In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, in particular, the type of dangerous drug involved, personal background of the defendant, and mitigation put forward on his behalf.
Facts of the case may be summarised as follows.
On 17 October 2022, the defendant was intercepted by police when he was to go to a domestic flat. At that time, he was carrying two packs of baking soda and a pack of six rolls of kitchen paper towel. With the password provided by the defendant, officers opened the electronic lock of the flat and gained entry.
Upon search of the flat, cocaine was found at various places in the open kitchen, inside bags, bowls, pots and containers, as well as on items like stoves and electronic scales. Phenacetin and sodium bicarbonate were also found.
Upon arrest, the defendant admitted under caution that he was responsible for cooking drug in the flat and distributing the drug.
In a subsequent video-recorded interview, the defendant said he was introduced by a friend, “Ah Wang”, to a person whom he called “1”. He first met “1” around 25/26 September. “1” instructed him to take raw “Coke” to the flat and taught him how to cook and prepare the drug. “1” also instructed him to hide the drug at places for people to pick up.
He first went to the flat on a day between 22 September and 2 October that year. He was instructed by “1” on 3 October to start manufacturing drug. On that day, he brought 1 kilogramme of raw cocaine from a factory building to the flat and was told that a person would come to teach him how to manufacture the drug. A person did come with utensils like induction stove, electronic scales, containers and resealable plastic bags and taught him how to cook drugs.
The defendant then started cooking drug and then put it in bags. Each bag contained 24 grammes of drug. There were 40 bags and he sealed the bags. He was instructed to carry the drug to an industrial zone where a person came and collected the drug. He received a remuneration of $12,000.
On 14 October 2022, he was instructed by “1” to take 1,000 grammes of raw cocaine again to the flat and there he manufactured the drug alone. He then put the drug into bags. There were also 40 bags, each weighed 24 grammes. He put the drug at a place and waited until a person came to get the drug. He received $12,000 as remuneration.
On 17 October 2022, the day of arrest, “1” instructed him again. This time he obtained 1,000 grammes of cocaine and prepared two bags, each containing 24 grammes of drugs. He took the drug to a place and waited until a person came to get the drug.
When he was returning to the flat after lunch, he was stopped by the police and later arrested.
In his mobile phone, there were WhatsApp communications between him and “1” on 17 October in which he sent photographs and video footage of his preparing drug. Previous messages between the two of them had been automatically deleted.
He gave an account of how the paraphernalia found in the flat were used in the manufacturing process and said the packet of cocaine found in the cupboard was an extra portion of the drug he manufactured.
CCTV of the building captured the defendant on 30 September, 3, 14 and 17 October 2022.
I was told that the defendant is now 21 years of age. He was born in the mainland and came to Hong Kong in 2020 to join his family. He is single and has received education up to Form 3. He was unemployed. He did not have any criminal conviction record before.
Learned counsel for the defence, Ms Virginia Lau, stressed that the defendant pleaded guilty at the earliest opportunity and is now full of remorse. He equipped himself during custody and is determined to turn a new leaf.
Ms Lau informed the court that the defendant was unable to cope with the new environment in Hong Kong and started to mix with bad peers. Under the desire to earn quick money in order to move back to the mainland, he succumbed to temptation and committed the present offence. When he committed the offence, he was only of the age of 17 years.
The defence submitted a letter written by the defendant in which he expressed remorse. Also submitted was a letter from the father of the defendant, in which he set out some background of the defendant and pleaded leniency on his behalf. The defence also produced certificates for the defendant receiving some vocational trainings.
In consideration of the sentence, I have regarded the general sentencing principle and approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
As the drug involved in this case was cocaine, I will refer to the tariff set out in the recent case of HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138. Despite this case took place before this tariff case, having regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that this case is applicable in the present case.
The case concerns a conspiracy lasting from 28 September to 17 October 2022, lasted less than a month.
I bear in mind as endorsed in HKSAR v Sum Ka Wa [2024] 4 HKLRD 777, that the offence of manufacturing is to be regarded as more serious than the offence of trafficking.
It has been established in various cases that in sentencing the manufacturing offence, the quantity of drug found is relevant but this is not the only factor to be taken into consideration. The court should also consider the scale of the operation, the capacity and productivity of the equipment, the length of time the manufacturing operation had been going on, whether the manufacturing station had been producing or was likely to produce a substantial quantity of drugs and the role of the defendant.
In assessing the scale of the operation and the degree of culpability of the defendant, I take into account the whole of the circumstances as revealed in evidence, bearing in mind the above matters.
In R v Wong Chun Ping, CACC 493/1983, the Court of Appeal remarked that only exceptional cases, for instances, if it is clear that the capacity of the equipment is very small, should the court consider a sentence of less than 10 years’ imprisonment on a conviction of manufacturing dangerous drug.
In HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, the Court of Appeal remarked: “that 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.”
The observation of the Court of Appeal in these cases has been considered in the light of the new tariff in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.
I also have regarded to cases such as HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012 and HKSAR v Chung Yat Ho, CACC 367/2010. Despite these cases concern the offence of conspiracy to traffic in dangerous drugs, I am of the view that the underlying principles if applicable are relevant in the process of gauging the degree of seriousness of the case and culpability of the defendant.
According to these cases, the salient matters to take into account include the followings:
(1) If the quantity of the drug involves is known, it provides the court with a ready means of identifying the appropriate starting point, though quantity is not the only factor relevant to assessment of gravity.
(2) If the quantity of the dangerous drug is unspecified, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions probably derived from the particular facts of the case.
(3) Unless the facts which give rise to the inferences and assumptions are clear cut, the court will inevitably lean in favour of the defence.
(4) If the account provided by the defendant is to be taken into account, the court should note the possible margin of variation and uncertainty in the account.
(5) The appropriate degree of purity of the narcotic being manufactured.
(6) If applicable the facts that but for the admission of the defendant, the prosecution would not have known the details of the conspiracy.
In the circumstances of the present case, I find that the defendant occupied a relatively low position in the hierarchy. But judging from the quantity of drugs the defendant admitted he had dealt with, there must be considerable trust in him from those higher in the hierarchy.
The exact quantity of drugs which the defendant had dealt with under the conspiracy is not known, but there are some indications from the overall circumstances of the case. I have analysed the evidence to see whether an estimate can be made which fairly reflects the quantity of drugs which were agreed to be manufactured, bearing in mind the matters I have just mentioned.
According to the confession of the defendant, he had on three occasions took drugs to the flat for manufacturing purpose, and on each occasion the quantity was 1,000 grammes of raw cocaine.
Although CCTV captured him appearing in the building for more than three occasions, that without more is insufficient basis to find that apart from the three occasions he disclosed, he went to the flat for manufacturing of more dangerous drug.
Slightly less than 700 grammes of cocaine was found during the search of the flat. I do not consider this quantity of drug found can be regarded as a safe basis to find that the defendant had in fact brought more drugs to the flat than he had admitted.
The drug and paraphernalia found disclosed as a manufacturing operation which was not sophisticated. That said, from the confession of the defendant, around 3 kilogrammes of raw cocaine had been dealt with and around 2 kilogrammes had been distributed in a span of less than a month.
The quantity the defendant mentioned was gross quantity and the account he had given was less than precise and I have to make an assessment of the purity. In this regard, the drug actually found provides a reference on the purity. Bearing in mind, the purity of each batch of drug might not be the same, my assessment of the purity of the drug which the defendant had handled was in the region of 70 per cent. With all the above in mind, in my judgment, it is appropriate to consider the sentence on the basis that the total quantity of narcotic which the defendant had dealt with in the manufacturing process was in the region of 2 kilogrammes.
I find the defendant, the person in charge of the place of the daily running of this manufacturing operation.
I also have to consider the potential harm and note that the evidence does not indicate this conspiracy would not have continued but for the interference of the police.
I bear in mind the Court of Appeal in Huang Ruifang (No 3) held that if the narcotic being trafficked in is between 1,500 and 5,000 grammes, a sentence of 20 to 24 years’ imprisonment should be considered.
The defendant was 17 years old at the time of the offence. Though relatively young, I have to bear in mind the nature and seriousness of the offence. At the same time, I accept that the defendant must have been manipulated by those behind him. On balance, I am persuaded to slightly adjust the sentence downward.
Having considered the whole of the relevant circumstances, I adopt a notional sentence after trial of 20 years and 9 months.
The defendant pleaded guilty before a magistrate and for this reason alone, he is entitled to a one-third discount.
The defendant gave quite a detailed account of his involvement and the quantity of drug involved. It is not a case where without his confession there is no evidence to reveal this offence. There is sufficient circumstantial evidence to prove a case of manufacturing. That said without his confession there is no evidence to indicate the extent of the operation. For this reason and also that this is the first time the defendant is convicted of any offence, I am prepared to give the defendant a further discount of 16 months.
In all the circumstances of the present case, having regard to everything said on behalf of the defendant, I am of the view that this is the extent of discount the defendant is entitled to.
In my judgment, the sentence to be imposed is a fair, just and balanced one in all the circumstances of the case and of the defendant.
For the reasons I have just said, I sentence you to an immediate imprisonment term of 12½ years.