HKSAR v. LI WING LOK

HCCC 165/2023

[2024] HKCFI 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 165 OF 2023

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleaded guilty in the Eastern Magistrate’s Court on 26 June 2023 to two charges of trafficking in dangerous drugs (Charge 1 & 2)  and one charge of manufacturing of a dangerous drug (Charge 3), and he was committed for sentence to the Court of First Instance.

2.  Charge 1 alleges that on 29 March 2021, at the Mei Fuk Street Parking Entrance, Mei Fuk Street, Sai Kung, New territories, the defendant unlawfully trafficked in 2,001.99 grammes of a solid containing 1,893.75 grammes of cocaine hydrochloride and 6.43 grammes of a solid containing 5.55 grames of cocaine.

3.  Charge 2 alleges that on 29 March 2021, at Flat E, 2^nd Floor, Tower 5, the Mediterranean, No. 8 Tai Moong Tsai Road, Sai Kung, New Territories, (“the premises”),  the defendant unlawfully trafficked in 47,072.23 grammes of a solid containing 43,828.21 grammes of cocaine hydrochloride, 589.15 grammes of a solid containing 516.26 grammes of cocaine and 0.52 grammes of solid containing cocaine.

4.  Charge 3 alleges that on 29 March, 2021, at the premises in Charge 2, the defendant unlawfully manufactured a dangerous drug, namely, cocaine.

5.  The defendant comes before me today for sentence, having confirmed his pleas and his admission of the Summary of Facts.

The facts

6.  The following Summary of Facts was admitted by the defendant:-

“Re: Charge 1

At around 6:35 p.m. on 29^th March 2021, custom officers intercepted D near Mei Fuk Street Car Park Entrance, Mei Fuk Street, Sai Kung, New Territories. Upon search of two paper bags carried by D, two packets containing a total of 2,000 grammes of a solid containing 1,892 grammes of cocaine hydrochloride (a salt of cocaine)  were found. Upon bodily search of D, 41 plastic bags were found. They contained

(a)  a total of 1.99 grammes of a solid containing 1.75 grammes of cocaine hydrochloride (a salt of cocaine); and

(b)  6.43 grammes of a solid containing 5.55 grammes of cocaine,

2. A total of 2,001.99 grammes of a solid containing 1,893.75 grammes of cocaine hydrochloride (a salt of cocaine)  and 6.43 grammes of a solid containing 5.55 grammes of cocaine was found in D’s possession upon interception. D possessed them for the purpose of trafficking.

Re: Charges 2 and 3

3. Upon further enquiry, keys to Flat 2E, Tower 5, the Mediterranean No. 8 Tai Moong Tsai Road, Sai Kung (“the Premises”)  were found on D. Custom officers gain entry into the Premises and opened the safe (“the Safe”)  inside a bedroom of the Premises by keys provided by D.

4. Inside the Safe, the following items were found:

(a)  25 plastic bags containing a total of 576 grammes of a solid containing 505 grammes of cocaine;

(b)  one packet containing one plastic bag containing 994 grammes of a solid containing 871 grammes of cocaine hydrochloride (a salt of cocaine);

(c)  one packet containing one plastic bag containing 1,000 grammes of a solid containing 876 grammes of cocaine hydrochloride (a salt of cocaine);

(d)  one packet containing one plastic bag containing 1,000 grammes of a solid containing 876 grammes of cocaine hydrochloride (a salt of cocaine);

(e)  one packet containing one plastic bag containing 1,000 grammes of a solid containing 898 grammes of cocaine hydrochloride (a salt of cocaine);

(f)  43 packets containing a total of 43,078 grammes of a solid containing 43,078 grammes of cocaine hydrochloride (a salt of cocaine), all in the form of a block.

5. Inside the kitchen of the Premises, the following items were found:

(a)  one plastic bottle containing 420 milliltires of a liquid containing ammonia;

(b)  one plastic bottle containing 1.14 litres of a liquid containing acetone;

(c)  one plastic bottle containing 2.85 litres of a liquid containing hydrochloride acid;

(d)  one microwave with one glass plate and one ring containing 0.01 gram of a solid containing cocaine;

(e)  one plastic bag containing 179 grammes of a powder containing sodium bicarbonate;

(f)  two paper boxes containing a total of 940 grammes of a powder containing sodium bicarbonate;

(g)  two ladles containing a total of 0.01 gramme of a solid containing cocaine;

(h)  one plastic measuring cup containing 0.03 gramme of a solid containing cocaine;

(i)  two metal cup containing traces of a solid containing cocaine;

(j)  one metal pot with one cover and one ladle containing traces of a solid containing cocaine;

(k)  one broken glass container, one plastic sieve, three metal spoons and one metal butter knife containing a total of 0.45 gramme of a solid containing 0.38 gramme of cocaine;

(l)  one electronic scale with two pieces of batteries;

(m)  one plastic bowl containing traces of a solid containing cocaine;

(n)  51 plastic bags containing a total of 12.7 grammes of a solid containing 10.9 grammes of cocaine;

(o)  one metal sieve containing 0.01 gramme of a solid containing cocaine;

(p)  one plastic box containing 0.02 gramme of solid containing cocaine;

(q)  two electronic scales containing traces of a solid containing cocaine;

(r)  two pairs of scissors containing traces of a solid containing cocaine;

(s)  two cutters containing traces of a solid containing cocaine;

(t)  one electronic scale;

(u)  one dustpan with one brush containing 0.11 gramme of a solid containing traces of cocaine;

(v)  19 plastic bowls with 17 covers containing a total of 0.28 gramme of a solid containing traces of cocaine;

(w)  two pieces of range hood filters;

(x)  one metal pot;

(y)  one metal wok with two covers containing a total of 0.01 gramme of a solid containing cocaine;

(z)  one plastic box containing 0.01 gramme of a solid containing cocaine;

(aa)  one plastic bowl containing 0.23 gramme of a solid containing 0.21 gramme of cocaine hydrochloride (a salt of cocaine); and

(bb)  two plastic bags containing 0.03 gramme of a solid containing cocaine.

6. A total of 47,072.23 grammes of a solid containing 43,828.21 grammes of cocaine hydrochloride (a salt of cocaine), 589.15 grammes of a solid containing 516.28 grammes of cocaine, 0.52 grammes of a solid containing cocaine were found in the Premises. D possessed them for the purpose of trafficking.

7. D rented the Premises at $22,000 per month.

8. Ms. LEUNG Shuk-mei, Government Chemist opined that based on the scene inspection and subsequent laboratory findings, she is of the view that the chemicals and paraphernalia seized from the Premises were those items commonly associated with the process of making cocaine base from cocaine hydrochloride and the process could have taken place at the Premises.

9. The estimated street value of the seized cocaine was around HK$71,177,568.56”

Mitigation

7.  The defendant is 28 years of age with a clear record. He was born and raised in Hong Kong.  He was educated up to Form 3 level. Prior to the present offence, the defendant, his father and the elder brother were all working as construction workers in the same company owned by the family. The defendant claimed he earned around HK$20,000 to HK$30,000 per month.

8.  Defendant’s parent divorced during his teenage years. He was still single and at the material times, he lived with his father and elder brother in a public housing estate in Tseung Kwan O.

9.  In mitigation, Mr. Leslie Pang, counsel for the defendant, informs the court that the defendant married with his girlfriend, whom he had entered into courtships for 10 odd years in prison after he was arrested for this case and remanded into custody.

10.  Defendant’s family is very supportive and they have attended court hearings and have been visiting him regularly during his remand.

11.  The Defendant was very close to his grandfather who was his main caretaker during childhood and teenage as he was brought up in a broken family but his grandfather passed away after his arrest.

12.  Mr Pang told the court that the defendant committed the present offences because of financial difficulties.  At the material times, due to the pandemic, the family business was badly affected and the company was liquidated. The defendant was unemployed and financial pressure had gradually increased for him and his family.  Meanwhile, the defendant also wanted to marry his then girlfriend.

13.  Without due consideration to the possible serious consequences and under the influence and persuasion his friends, the defendant committed the present offences in order to earn quick money.  He made frank admissions to the police upon arrest and pleaded guilty in court at the earliest opportunity.

14.  Mr Pang submitted that the defendant is extremely remorseful for his wrongdoings and is willing to face the consequences.  He therefore decided to plead guilty and to bear the responsibility.

15.  Mr Pang submitted four mitigation letters written by the defendant, his wife, his brother and sister, and his social worker respectively for consideration.  I am not going to refer the content of the letters suffice it to say that they all beg for a lenient sentence and stressed that the defendant is now truly remorseful and have their full support. The defendant in particular has expressed deep remorse in his letter and now understands that dangerous drugs are extremely harmful to the society, especially to teenagers. He therefore has joined Father Wotherspoon anti-drug campaign to warn others against drug trafficking.  In addition, he feels sorry for disappointing his family and undertakes not to re-offend.

16.  Although there was also the presence of ketamine so that sentences may be enhanced, it is hope that the extent of enhancement will not be great.

Consideration of Sentence

17.  In Charge 1 and 2, the defendant pleaded guilty and was convicted on two trafficking charges.  In Charge 1, he was first intercepted by the customs officers near Mei Fuk Street Car Park Entrance in relation to the two packets containing 1,893.75 grammes of cocaine hydrochloride and 41 plastic bags containing 5.55 grammes of cocaine solid found on him.  The Custom officers found keys to the premises and escorted him to search the premises where further packets of cocaine were found in relation to Charge 2 (i.e. 43,828.21 grammes of cocaine hydrochloride, 516.26 grammes of a solid containing cocaine and 0.52 grammes of a solid containing cocaine)  Under such circumstance, I consider that a concurrent sentence on both charges is appropriate.

18.  In HKSAR v CHONG Cho-kit CACC 363/2005 (Unrep, 12 July 2006), the Court of Appeal said (in para 14)  :-

“ … It is only in respect of trafficking offences that arose from the same incident that the aggregated total amount of drugs would be taken for fixing the starting point…The rationale behind is obvious because it would be unfair, for example , to treat two lots of drugs, one lot found on the accused when he was stopped coming out of his room and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence…”

19.  Similar packs of cocaine hydrochloride containing similar quantity were also found inside the safe of the premises. The dangerous drugs seized in Charge 1 were part and parcel of the dangerous drugs seized in Charge 2.  Therefore, it is only fair that the two lots of dangerous drugs should therefore be added together for fixing a global starting point for both charges.

20.  Based on the facts of this case, I am satisfied that both Charge 1 and Charge 2 arose from the same course of criminal conduct and hence I would impose a concurrent sentence.

21.  It is well-established that trafficking in a dangerous drug is a very serious offence.  In the Court of Appeal case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstance was of far less importance than the sentencing principles of denunciation, deterrence and punishment.

22.  The total narcotic contents of dangerous drugs involved in this case (Charges 1 & 2)  are 46,244.31 grammes of cocaine

23.  In sentencing, I shall follow the six-step approach as mentioned in the case of Herry Jane Yusuph [2021] 1 HKLRD 290

24.  The first step is to assess the gravity of the offence.

25.  Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming & Others [1990] 2 HKLR 370, as modified by HKSAR v Abdallah [2009] 2 HKLRD 437 apply to cocaine.

26.  As for Charge 1 and Charge 2, the quantity of cocaine involved is substantial.  According to Adallah (supra.), the starting point for trafficking between 4,000 grammes to 15,000 grammes is between 26 to 30 year’s imprisonment and for quantity over 15,000 grammes, it was within the discretion of the sentencing court.

27.  In HKSAR v Chu Ho Wa [2022] 1 HKLRD 359, the Court of Appeal made the following comment when dealing with 34,432 grammes of ICE:

“ It must be recognised that anything above 30 years ‘ imprisonment is an extremely long sentence and, it is, we think, neither prudent or possible to apply a mathematical increase where vast quantities are involved, and where there are likely in future to be even larger quantities.”

28.  In that case, the Court of Appeal considered a starting point of 30½ years’ imprisonment for a limited role in trafficking and 31 years’ imprisonment for a more active role in trafficking was appropriate.

29.  The total quantities for both trafficking charges in this case is a staggering 46,244.31 grammes of cocaine, I consider a starting point of 31 years and 6 months’ imprisonment is appropriate.

30.  The second step is to assess the defendant’s role and culpability based upon the evidence.

31.  As was held in Herry Jane Yusuph (supra.), at paragraph 59:

“ The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is, the person who is delivering, distributing, or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

32.  The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band whether above or below given the circumstances of the offence and the role of the defendant.

33.  The assessment made in the second step is relevant in determining where within the band or outside the band the defendant comes.  The Court of Appeal reaffirmed that the bands were for least culpable of drug traffickers, namely, the courier or the storekeeper.

34.  The facts of this case reveal that the defendant’s role in this case is not merely a courier or storekeeper.  By pleading guilty to Charge 3, the defendant now admits to have manufactured drugs in the premises.  According to the presence of manufacturing paraphernalia in the premises and the opinion of the Government Chemist, it is abundantly clear that the defendant manufactured dangerous drugs in the premises by turning cocaine hydrochloride into crack cocaine. With the presence of electronic scale and large numbers of plastic bags containing smaller quantities of cocaine, no doubt the defendant was also responsible for packaging the dangerous drugs.  As a consequence, he should therefore be treated as an actual trafficker and is in a more serious position than a courier or storekeeper.  However, as he has already been charged with and pleaded guilty to Charge 3, i.e. “Manufacture a dangerous drug”, in order to avoid double penalty, I am going to assess his culpability as trafficker at the same level as a courier or storekeeper for that was what he effective doing once he has manufactured the dangerous drugs at the premises. I therefore decide not to make any upward adjustment to the overall starting point for both trafficking charges.

35.  The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point.

36.  The defendant has no previous similar record and all the aggravating features in the trafficking charges will be reflected in the sentence of the manufacturing charge so I decide not to enhance the starting point for both trafficking charges at all.

37.  The fifth step is to consider all mitigating factors.  As the Court of Appeal made clear in Herry Jane Yusuph (supra.), in cases of trafficking in a dangerous drug, personal circumstances will count for little unless they are exceptional.

38.  Apart from the defendant’s timely and early plea of guilty at the committal stage, Mr Pang submitted that the defendant had joined Father Wotherspoon anti-drug campaign to warn others against drug trafficking.  The court can never accept economic reason for committing crimes and in sentencing serious offences such as the present, family circumstances virtually play no part in mitigation.  In HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, the Court of appeal said that participation in Father Wothrtspoon’s campaign is an act of reparation and should be treated as mitigating a defendant’s culpability. However, in assessing the discount, the court shall consider the nature, extent and duration of participation in the campaign. The minimum discount should be one of 6 months’ imprisonment which, in appropriate circumstances, can be increased up to 1 year.  There is however no information as to the extent of defendant’s participation in the campaign supplied by defence and as such, I cannot see that there is present in respect of this defendant any special reason which would justify me going beyond the one-third discount.  After the one-third discount, sentence on both Charge 1 and Charge 2 is reduced to 21 years’ imprisonment.

39.  The sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender.  In my judgment, the overall sentence of 21 years’ imprisonment for both of the trafficking charges is of course harsh especially bearing in mind that in the normal course of event, a part of the overall sentence, albeit usually less than 2 years, will have to be served consecutively to the sentence of Charge 3 to reflect the additional culpability of the trafficking charges in addition to the manufacturing charge.  I shall come to consider this matter later when I consider the totality of the sentences.

40.  As to the Manufacturing charge, in the case HKSAR v Wong Ping Kay [2002] 3 HKLRD 161, the Court of Appeal said that the quantity of the drugs, the scale of the operation and the capacity of the equipment should be considered in determining the proper sentence for manufacture of dangerous drug.  In another case, HKSAR v Cheng Chi Wai, unreported [2021] HKCA 181, the Court of Appeal said that:

“ Apart from the quantity of drug seized, the length of time for which the drug-manufacturing workshop has existed and operated, its scale and productivity, the quantity and standard of the drug-manufacturing paraphernalia, the extent to which the defendant participated in the drug-manufacturing and the role he played in the matter are all important factors to be taken into account in sentencing.”

41.  Therefore, it would not be appropriate to sentence the defendant as if he had been found guilty of trafficking the cocaine in question.  In the case R v Cheung Wai Kwong [1997] 3 HKC 496, the Court of Appeal said:

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

42.  The summary of facts reveal no information as to the length of time for which the drug manufacturing workshop has existed and operated.  I take into account the quantity of drugs manufactured, that is about 46 kilogrammes of cocaine which is substantial.  At the same time, I also take into account that the scale of the manufacture is not big.  It was just a home-made workshop and it was easy to convert the liquid cocaine and the block of cocaine into crack cocaine. 

43.  As said, I fix 31 years and 6 months’ imprisonment as the global starting point for the two trafficking charges.

44.  After considering all these matters, I am of the view that a starting point of 33 years and 3 months is appropriate for manufacturing the same quantity of cocaine in Charge 3.

45.  The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount.  The sentence is reduced 22 years 2 months’ imprisonment. 

Totality

46.  As said, the sentences for both Charge 1 and Charge 2 should be served concurrently.  The remaining issue is whether the sentence on Charge 3 should run wholly concurrently with the sentences on the first two charges.  In Cheng Chi Wai (supra.), the Court of Appeal considered that the trafficking charge is of a different nature to the manufacturing charge:

“ The facts showed that the applicant was going to sell the drugs after manufacturing them, and it was extremely likely that at the time of the arrest the applicant was delivering drugs to the buyer according to sales arrangement. It was evident that that the applicant had played different roles in the matter, thereby enhancing the gravity of the applicants’ criminal act.”

47.  The Court of Appeal stated that overall it was appropriate for the sentencing judge to order 1 year and 8 months out of the 9 year sentence for the trafficking charge to be served consecutively to the trafficking charge and it did not constitute unfairness to the applicant.

48.  In this case, the defendant was carrying with him packets of cocaine when he was intercepted by the Customs Officers at the carpark entrance.  Apart from manufacturing the crack cocaine, there was the presence of electronic scale and large numbers of packets of drugs in smaller quantities in the premises which all goes to indicate that his role is certainly more than a mere manufacturer which calls for additional penalty so that a partly consecutive sentence is warranted.

49.  However, looking at the overall sentence, for a defendant of hitherto clear record, a sentence of 22 years and 2 months’ imprisonment after plea of guilty is already harsh and lengthy.  In order to lessen the crushing effect on the defendant, and only because of this reason, I decide not to order him to serve any additional sentence.  In the circumstance, I order the sentences on Charge 1 and Charge 2 to be served concurrently with the sentence on Charge 3:

Order

(1)  For Charge 1, I impose a sentence of 21 years’ imprisonment;

(2)  For Charge 2, I impose a sentence of 21 years’ imprisonment;

(3)  For Charge 3, I impose a sentence of 21 years and 6 months’ imprisonment.

50.  I order that the sentences on Charge 1 to Charge 3 to run concurrently.

51.  The total sentence of Charge 1 to Charge 3 is therefore 21 years and 6 months’ imprisonment.