COURT: The defendant pleaded guilty before a magistrate to the following charges:
Charges 1 and 2, which are for the offence of trafficking in a dangerous drug; and
Charge 3, which is for the offence of manufacture of a dangerous drug.
Accordingly, he was committed before me for sentence.
In sentencing, I have considered the whole of the circumstances, including the nature and facts of the case,
the type and quantity of the dangerous drug involved, personal background of the defendant, and mitigation put forward on his behalf. I have also had regard to the sentencing approach and principle as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The facts of the case may be summarised as follows.
On 15 June 2022, police officers intercepted the defendant at the lift lobby on the 13th floor of the building in which he was occupying a flat. He was holding a paper box. Inside the box were five plastic bags containing a total of 106.1 grammes of a solid containing 96.5 grammes of cocaine. This is subject matter of Charge 1.
With the key found on the defendant, police entered the flat from which the defendant had left. Inside the bedroom and the kitchen, cocaine and manufacturing apparatus were found. The total quantity of the cocaine found was 500 grammes of a solid containing 483 grammes of cocaine hydrochloride and 8.59 grammes of a solid containing 8.22 grammes of cocaine. This batch of drug is the subject matter of Charge 2.
The defendant was arrested and remained silent under caution.
The government chemist who examined the scene and some items seized therein was of the opinion that manufacturing process of converting cocaine hydrochloride to cocaine base could have been taken place at the scene.
The defendant started to rent the flat around nine months before the offences were committed. This is the basis of Charge 3.
I was told the defendant is now 27 years old. He attained education up to Form 1. He started to work at young age as a casual warehouse worker. Later, he became a bartender. He eventually ran a car cleaning and garage business but he suffered a substantial setback during the pandemic. Then he worked as a warehouse worker and decoration worker. At the time of arrest, he was unemployed.
He had a girlfriend who gave birth to their son. The declining financial situation led to frequent quarrels and eventually the girlfriend left him. The defendant was still supporting her and their son financially. He was under great financial pressure and it was in these circumstances he was lured into committing the offences.
This was the second time the defendant committed a drug-related offence. In April 2014, he was convicted of the offence of trafficking in dangerous drugs and was sentenced to 4 years’ imprisonment. He had also been convicted twice for the offence of AOABH. Probation order was imposed on both occasions and he breached the first order resulting in the order being extended.
In mitigation, learned counsel for the defence, Ms Flora Cheng, stressed that the defendant pleaded guilty at the earliest opportunity, and is now remorseful.
Ms Cheng informed the court that the parents of the defendant separated since the defendant was very young and he was brought up by his parental grandparents. She also informed the court that the defendant became addicted to drugs under bad peers’ influence.
Ms Cheng also made submission in relation to the scale of the manufacturing operation and the role of the defendant in relation to the three offences.
All the charges relate to cocaine. Having heard counsel and had regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that the tariff set out in the recent case of HKSAR v Huang Ruifang (No.3) [2025] 2 HKLRD 138 should be applied. This case is also relevant to the sentencing of the manufacturing count.
For the trafficking charges, I see no reason to depart from the tariff.
As regards the role of the defendant, in my judgment he was more than a one-time courier but there is no strong reason to find that he was not occupying a relatively low position in the hierarchy.
This is the second time the defendant was convicted of the offence of trafficking in a dangerous drug. About six years after he had been discharged for serving sentence for that offence, he committed the present case. I am of the view that the sentence should be enhanced by 3 months for this reason.
For these reasons, I adopt the following notional sentence after trial for each of the trafficking charges:
Charge 1: 9½ years; and
Charge 2: 16 years.
In the circumstances of the present case, I accept the submission of Ms Cheng that it is appropriate to consider an overall sentence for the two trafficking charges taking into account the total quantity of the narcotic involved.
For Charge 3, which relates to the offence of manufacturing of dangerous drugs, it is an offence in most circumstances much more serious than trafficking in dangerous drugs. In R v Wong Chun Ping, CACC 493/1983, the Court of Appeal remarked that: “only exceptional cases, for instance 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 the conviction for manufacturing of dangerous drugs.”
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 to be considered in the light of the new tariff in HKSAR v Huang Ruifang (No.3).
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 my assessment, I bear in mind the above and take into account the circumstances in which the dangerous drug was found, the quantity of the dangerous drug and the paraphernalia found.
I also take into account the submission of Ms Cheng, including the followings:
(1) The defendant had only started this manufacturing operation for less than a month;
(2) The scale of the operation was small and amateurish;
(3) The defendant was the only person involved in the operation; and
(4) The equipment used were all ordinary household items such as pots, spoons, scissors and plastic containers.
In my judgment, the defendant played a major role in the day-to-day operation of this manufacturing station. What he had done involved manufacturing crack cocaine. I am entitled to take into account the quantity of the drug found on the defendant and in the flat. Also, I have to take into account the manufacturing potential of the place and there is no indication that if the defendant had not been arrested, he would have stopped this operation.
Taking into account the whole of the relevant circumstances, including the previous conviction of trafficking in dangerous drugs, for which an enhancement of 3 months is warranted, in my judgment only a notional sentence after trial of 17 years is sufficient to reflect the seriousness of the case and the culpability of the defendant in this manufacturing operation.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount for each count in the circumstances.
Having considered the whole of the circumstances, including what Ms Cheng said on behalf of the defendant, in my judgment, this is the extent of discount the defendant is entitled to.
The defendant is being sentenced for three offences. As said, the aggregate sentence for Charges 1 and 2 should reflect the total quantity of the drug seized. Further, I am of the view that the drug on the defendant and the drug found in the flat were products of his manufacturing exercise. Having regard to cases including HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Sum Ka Wa [2024] 4 HKLRD 777, taking into account the whole circumstances of the case and the findings I have just mentioned, in my view, it is appropriate to order the sentence for Charge 3, the manufacturing charge, to run concurrently with the sentences for the other two charges.
In my Judgment, the individual sentences and the aggregate sentences are just, fair and balanced in the circumstances of the case and to the defendant.
For the reasons I have said, I impose the following sentences on you:
Charge 1: 6 years and 4 months;
Charge 2: 10 years and 8 months;
Charge 3: 11 years and 4 months.
Further, I order all the sentences to run concurrently.
As a result, you are to serve a total sentence of 11 years and 4 months.