HKSAR v. LAU TSZ HIN

HCCC 14/2023

[2023] HKCFI 1838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 14 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one count of manufacturing a dangerous drug contrary to s6(1)(a) and (2) of the same ordinance, before the Eastern Magistrates’ Court on 9 January 2023.

2.  On 31 March 2021, the police were carrying out an anti-drug operation in the vicinity of a flat in Cambo House on Prince Edward Road West (“the Flat”), when they observed the Defendant leaving the Flat carrying a black plastic bag. Upon interception, the keys to the Flat were recovered from the defendant and a search was carried out of the Flat which recovered, in all, 490 g of cocaine hydrochloride and 475.72 g of crack cocaine plus a significant amount of other paraphernalia for manufacturing crack cocaine and for its onward supply. It is very clear from the photographs taken of the scene, that very little else was being done in the flat and that it was being used purely for the manufacture and supply of dangerous drugs. Not surprisingly therefore, the defendant admitted as much upon arrest and caution.

3.  The defendant was also frank in interview, save for the suggestion that he alone was responsible for this commercial enterprise, which is highly unlikely given what he said he was able to produce and the supply cost of the underlying cocaine hydrochloride. He admitted that he had been making crack cocaine for the last 5 months using a mixture of 1,000g of cocaine each time to make 45 “portions” of crack cocaine mixing it with phenacetin as the adulterant. Phenacetin is an analgesic originally prescribed to reduce fever. Use of it is now heavily regulated because of its carcinogenic properties. It is known to permanently damage both the kidneys and liver.

4.  The street value of the drugs recovered from the Flat was HK$2,895,055.

5.  The defendant is 28 years of age and was educated up to Form 6. He has only one previous conviction, which was for trafficking in dangerous drugs in 2016, when he received a sentence of 16 months’ imprisonment. He maintained in interview that it was during this period of incarceration that he learned how to manufacture crack cocaine. That was a lesson that will ultimately be very costly.

6.  Mr Leung, on behalf of the defendant has concentrated his submissions upon the calculation of sentence.

SENTENCE

7.  The defendant faces two counts. One of trafficking in a total of 965.72g of cocaine and one of manufacturing cocaine. The former covers the totality of the drugs recovered, some of which had been converted into crack cocaine and some of which had not yet been converted. The latter count covers his admissions in interview as to manufacturing. I have not been provided with the video recorded interview and have confirmed the basis with counsel.

8.  The leading authorities for the sentencing of trafficking in cocaine are R v Lau Tak-ming & Others [1990] 2 HKLRD 370 and AG v Pedro Nel Rojas [1994] 2 HKCLR 69. For trafficking in quantities over 600g, in this case it was approximately 965g of cocaine, the relevant guideline can be found in HKSAR v Abdallah [2009] 2 HKLRD 437, which indicates a starting point for sentence after trial of 21 years 9 months’ imprisonment. That starting point does not reflect the application of all of the principles as laid down in HKSAR v Herry Jane Yusuph CACC93/2019, which recognises that the guidelines laid down in Lau Tak-ming and other authorities are premised upon defendants who supply drugs as a courier rather than those who undertake other roles for which they may be deemed more culpable than the courier who delivers drugs to others. The defendant cannot be said to be a simple courier or storekeeper even though he carried out both of those roles. He was dealing in these drugs as a manufacturer and, on his own admission, he appears to have been doing this for himself rather than working for others for a reward. If that were correct, he is more culpable than the guidelines set out in Lau Tak-ming and Abdallah suggest are appropriate and as mentioned below “nearer to the source of evil...” as well as closer to the profit. Accordingly, that guideline starting point for sentence of 21 years 9 months would be enhanced by 2 years for this aggravating factor to 23 years 9 months. The effect of that enhancement for his significantly more substantial role in the trafficking of dangerous drugs is that there is little, if no, difference between charging the defendant for trafficking and charging the defendant for manufacturing the amount recovered and I am mindful of that fact when considering the principle of totality.

9.  Count Two, is charged as manufacturing. For these purposes the prosecution relies upon his admissions in interview and include the drugs recovered upon arrest. Mr Leung accepts this on behalf of the defendant even although there is an element of double counting. It therefore covers prior acts over a period of 5 months including the day of arrest. In R v Cheung Wai-kwong & Anor [1997] 3 HKC 496, the Court of Appeal stated:

“ Manufacturing was undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process was clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence...”

10.  A number of difficulties arise in respect of assessing the appropriate sentence for Count Two. Some of the authorities placed before the Court, consider the initial basis for sentence (one might call it the starting point) by reference to the actual amount recovered. In this case that would have been 965 g of cocaine, the sentence for which would have been enhanced by the fact of manufacturing in a similar way to enhancing sentence for the substantially more culpable role under Herry Jane Yusuph. In HKSAR v Ip Yuet Ho [2008] 6 HKC 35, the Court of Appeal stated the quantity of drugs seized in a manufacturing case represents only those drugs which have not yet been disposed of. In that case, Yeung JA referred to Roberts CJ in R v Wong Chun ping & Others [1984] HKLR 247, who at 257 said:

“ The quantity of drugs found on the premises where manufacturing is taking place, or has taken place, is of some value in indicating the scale of the manufacturing operation. And we suggest that a person convicted of manufacturing should normally receive a longer sentence than he would have done if convicted of unlawful possession, for the purpose of trafficking of the amount of DD found on the premises. However, the serious aspect of manufacturing is that the process of distribution and trafficking in DD depends upon a refining process being undertaken between the grower and the consumer.

It is therefore the act of manufacture that is the worst feature of this most serious offence, not merely the actual amount of drug which is found on the premises where the process takes place.

For instance, it may well happen that a quantity of 100 grammes of a mixture containing salts of esters of morphine is present in premises where manufacturing is found to have taken place. The Chan Chi-ming [1979] HKLR 491 tariff would have suggested a sentence of 3 to 5 years which would be wholly inadequate for the offence of manufacturing.

We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of DD.”

11.  The prosecution has chosen to distinguish for sentencing purposes that which was recovered as trafficking and that which the defendant admitted to manufacturing on other occasions over 5 months including the day of arrest. They seek a different basis for sentencing therefore than the majority of authorities before me, which are based upon the nature of the operation as informed by the amount actually recovered at the time of arrest. Nevertheless, I note that the amount of drugs in this case far exceeds those considered in Ip Yuet Ho.

12.  If a sentence of 10 years is the starting point in cases of manufacturing, what other factors is it appropriate to take into consideration. According to Roberts CJ supra “It is therefore the act of manufacture that is the worst feature of this most serious offence, not merely the actual amount of drug which is found on the premises where the process takes place”. Accordingly, the nature and size of the manufacturing operation may enhance the starting point for sentence taken in conjunction with the amount found to have been manufactured and the role of the defendant. If the amount of drugs and the nature of the operation in Wong Chun-ping attracted a starting point of 10 years then operations which are able to turn over significantly greater amounts of adulterated dangerous drugs will inevitably attract a significantly increased starting point.

13.  The process of manufacturing crack cocaine is a simple one and does not require sophisticated equipment nor a lot of it, whereas a cannabis farm would require a lot of space, equipment and time and yet the former operation is far more serious than the latter. The fact that less equipment is required to manufacture or produce a far more dangerous drug is therefore not determinative. In this case, the Flat was rented for the sole purpose of manufacturing crack cocaine and was deliberately situated in a residence and area which would not ordinarily give rise to suspicion. The defendant did not have the financial resources to pay for the Flat as he was unemployed. Nor did he have the resources to purchase the significant quantities of drugs needed to carry out this operation. A kilo of cocaine, even purchased in bulk by professional traffickers, must have cost a lot of money if the street value at the time was just short of HK$3,000,000. On his own admission, the defendant had the ability to turn out 1,000s of grammes per day if he had a regular supply of cocaine and the adulterant. He admitted manufacturing cocaine over a 5 months period and producing a kilo of mixture at a time in order to make 45 “portions” of crack cocaine.

14.  We do not know the weight of a “portion”. The exhibits recovered from the flat do not assist in assessing this. Some exhibits indicate only trace elements; some show small amounts of less than a gramme of cocaine and others evidence larger amounts into the 100s of grammes. Item 2 of paragraph 3 of the Summary of Facts appears to refer to photograph 9 of 28, which shows a pink washing bowl with large crystalline objects, presumably crack cocaine. That substance weighed 374 g with a narcotic content of 242 g or 64%. The narcotic content of the different larger amounts of cocaine recovered varies between approximately 36-96%. The narcotic content from Count 1 is approximately 50% according to Mr Leung and I will use that as a base line. Even if the defendant had manufactured just 1,000 g of crack cocaine per month, which had a 50% narcotic content, that would be a further 500 g x 5 or 2,500 g of cocaine, and would attract a sentence in the region of 24 years 6 months under Abdallah for trafficking without enhancement for manufacturing or role. That calculation is giving the defendant a considerable benefit of the doubt, as it is highly probable that he could turn around quantities significantly greater than this on a daily basis. If I were to reduce this calculation to 4 months so as to avoid any double counting in March in respect of Count One, on the basis of just one batch a month for 4 months, then the narcotic content amount would reduce to 2,000g and the starting point for sentence would reduce to 24 years without any enhancement for the act of manufacturing of say 2 years and the role of the defendant as, according to him, sole proprietor. That would add another 2 years which makes a total of 28 years before any discount for plea. If I were to ignore his lack of truthfulness in interview and make the assumption that he was not the sole proprietor, nor the supplier of the underlying drug but the storekeeper, manufacturer and supplier of the crack cocaine only, this would keep the calculation at 24 years for the narcotic content under Abdallah and 2 years for manufacturing. That would make 26 years in total, which, on the facts of this case, I consider to be the appropriate figure.

CONCLUSION

15.  Having considered the basis upon which the indictment was put and accepted. The appropriate sentence before discount for plea under Count One should be 23 years 9 months’ imprisonment. The defendant entered his plea at the earliest opportunity and is entitled to a full one third discount. He will therefore go to prison for a period of 15 years 10 months under Count One. Under Count Two the sentence is one of 26 years which, with a one third discount for his plea at the earliest opportunity is a period of 17 years 4 months’ imprisonment.

16.  Accordingly, the defendant will go to prison for 15 years 10 months on Count One and 17 years 4 months on Count Two to be served wholly concurrently with one another.