COURT: Defendant, on 6 November 2023, you pleaded guilty to four charges before a magistrate at the Eastern Magistracy. As a result of your pleas of guilty, you were committed here to the Court of First Instance for sentence. All charges were committed on 2 September 2021 and were committed at or outside Room 3 of Flat D, 1st Floor, No. 108D Boundary Street, Kowloon City, Kowloon.
Defendant, you admitted, in relation to the 1st count, trafficking in dangerous drugs outside No. 108D Boundary Street 8 grammes of a solid containing 7.14 grammes of cocaine.
In respect of Count 2, you admitted to wilfully obstructing a police officer in his due execution of duty, contrary to section 36(b) of the Offences against the Person Ordinance, Chapter 212, and outside Flat D of which the address I have just mentioned. And the police officer concerned was Police Constable 14767 Lo Chung-lai.
In relation to Count 3, you admitted to manufacturing cocaine inside Room 3 of Flat D.
In relation to Count 4, you admitted that inside Room 3, Flat D, you unlawfully trafficked in 1,410 grammes of a solid containing 1,210 grammes of heroin hydrochloride, 567.7 grammes of a solid containing 516.7 grammes of cocaine hydrochloride, 195.26 grammes of a solid containing 165.26 grammes of cocaine, and 7.05 grammes of a solid containing 6.20 grammes of ketamine.
You admitted the Summary of Facts which were dated 29 August 2023. The facts in support of these charges are set out as follows.
On 2 September 2021, police officers had mounted an anti-narcotics operation in the vicinity of the premises at Boundary Street. At about 10 pm, they observed you to be leaving the premises at Boundary Street. You were intercepted. A body search was conducted on you and found from your right trousers pocket was the drugs as quantified in Count 1, which were contained in 50 plastic bags. Also found upon you were keys and an access card. You were arrested and cautioned. You remained silent.
The officers then escorted you to Flat D. Upon arrival at the flat, you suddenly became emotional and kept struggling. You used your body to prevent the officers from opening the door of the flat. Despite warnings given to you by the officers that you would be arrested for obstructing a police officer if you did not stop struggling, you continued to struggle. You were eventually subdued. You were then led into the flat and again suddenly rushed forward and were subdued again.
Upon the strength of a search warrant, the flat was searched. The drugs as quantified in Charge 4 were found in a carton box next to the desk, on the desk and inside the drawer of the desk in the bedroom. Also found were three electronic scales and a bag containing other resealable plastic bags. Found in the kitchen were utensils, such as a metal pot, bowls, liquid, chopsticks, sieves and other paraphernalia with traces of cocaine. This founded the subject matter of Count 3 of manufacturing dangerous drugs.
You were arrested and cautioned for trafficking in dangerous drugs and manufacturing dangerous drugs and obstructing the police officer you remained silent. The estimated street value of all the dangerous drugs found in this case was in the range of HK$1,886,684 and HK$1,953,150 depending on whether the cocaine was in powder form or in crack form respectively.
I turn now to the background and mitigation submitted on your behalf by your counsel, Ms Fanny Wong Kam-hing. Defendant, you were born in the mainland and came to Hong Kong when you were eight years old. You are now 27 years of age. You are single and previously lived with your parents and elder sister in Sham Shui Po. You have been educated up to Form 1. You worked as a casual kitchen worker and earned between $12,000 to $17,000 per month depending on the availability of work. At the time of your arrest, you were unemployed. I am informed you had been an addict of cocaine and ketamine for about five to six years at the time you were arrested.
Defendant, you have two previous convictions. One is related to possession of dangerous drugs to which you were sentenced to 8 months’ imprisonment in 2019.
Through your counsel, Ms Fanny Wong, it is admitted that the drugs in Count 1, that is, 7.14 grammes and the 165.26 grammes of cocaine in Count 4 were drugs actually manufactured by you. The 516.7 grammes of cocaine hydrochloride from Count 4 would have been manufactured by you to make cocaine or what is known as “crack cocaine”.
I am informed that shortly before the commission of the incident charges, you had become so increasingly addicted to cocaine and ketamine that you had to rent a room to live away from your parents and elder sister in order to hide your addictions from them. Unfortunately, this newfound freedom, as Ms Wong says, in living away from your family actually exacerbated your addictions in no time and you soon resorted to trafficking and manufacturing in cocaine as you found yourself in financial difficulties feeding your addictions with your small wages as a kitchen worker.
I am informed that you succumbed to trafficking and manufacturing due to your friends’ persuasion to earn quick money. You were given instructions by a person higher up in the chain whereby you were told to manufacture and deliver these drugs and after doing so, you would get paid. There was nobody else under you but only one person whom you received instructions from. Once you had got the job done, that is, had all the drugs delivered and manufactured, you would be paid about $15,000 to $20,000.
I have received two letters, one from yourself and one joint letter by your parents and sister. I am informed that your family are very supportive of you. They find that you were a filial son, a trusting person, but not having enough experience, have been misguided by your obviously dubious peers. I am informed that you advised them not to come to court today, that you did not want them to hear what you know will be a lengthy sentence handed to you.
In your own letter, you have realised your very wrongdoing and certainly are regretful for your misdeeds. Being a young man that you are, 27 years of age, I am informed by Ms Wong that you intend to make the best opportunity whilst you are incarcerated and attend courses to improve yourself.
I turn now to sentence. I turn first to deal with Charges 1 and 4, that is, the trafficking in dangerous drugs. The sentence approach to sentencing in drug trafficking cases are the cases laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. The application of the principles and steps are as follows.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The tariff case for the drug cocaine and/or heroin is set out in the case of Lau Tak Ming [1990] 2 HKLR 370. But for large amounts, the tariff case authority is that of Abdullah [2009] 2 HKLRD 437. The tariff case for the drug ketamine is set out in the authority of the Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
The total amount of ketamine in this case in Charge 4 is 6.20 grammes. In the tariff case of Hii Siew Cheng, an amount of between 1 gramme to 10 grammes of ketamine would attract a term of 2 to 4 years’ imprisonment. The total cocaine and heroin in Counts 1 and 4 are as follows: 7.14 grammes of cocaine in Count 1, 516.7 grammes of cocaine hydrochloride and 165.26 grammes of cocaine in Count 4, which equals 689.1 grammes of cocaine and also 1,210 grammes of heroin hydrochloride. Cocaine and heroin have the same guidelines. Therefore, I shall add the cocaine and heroin together and the total amounts to 1,899.1 grammes of cocaine and heroin.
In this case, there were three types of drugs involved in the trafficking: Cocaine, heroin and ketamine. The most appropriate test in sentencing the defendant is to convert all the drugs to cocaine or heroin, which are the most potent drugs and also command the same sentence. The least potent drug is ketamine. The total amount of ketamine is 6.2 grammes, which would attract a sentence of about 3 years’ imprisonment after trial. Converting ketamine to that of heroin would amount to about 4 grammes. The total amount of heroin therefore is 1,899.1 plus 4 grammes, which equals 1,903.1 grammes of heroin. The arithmetical starting point of that amount of drugs and following the tariff guidelines is 23 years and 9 months’ imprisonment.
The second step is to assess the role and culpability of the defendant based on the evidence. In this case, the defendant was the manufacturer of the drug cocaine in his flat, which was rented in his name. On the day in question, he was walking out of the premises with 50 packets of drugs in his pocket. It was extremely likely that at that time he was going to deliver them to a buyer. He had a large amount of drugs in the flat, intending to deal with the drugs to others in the sense that he was directly trafficking. I am told by Ms Wong that he was not the operator or financial controller who would make the substantial gains. He was given instructions by a person above and he would be paid $15,000 to $20,000 when all of the drugs had been manufactured and delivered.
I should have said earlier that the band of 1,903.1 grammes of heroin falls within the band of 1,200 to 4,000 grammes, which attracts a sentence of 23 to 26 years’ imprisonment.
In regards to the third step, to identify where in the relevant band the defendant comes, given the circumstances of the offence and the role of the defendant, I consider that an appropriate starting point should be one of 23 years and 11 months’ imprisonment.
The fourth step is to consider whether there are any aggravating features. There are a multiplicity of drugs involved in this case, that is, cocaine, heroin hydrochloride and ketamine. A trafficker may be able to cater to a far wider market than a trafficker in only one kind of drug and as such an enhancement of sentence of 1 month’s imprisonment is warranted, making the notional starting point 24 years’ imprisonment.
The fifth step is to consider any mitigating factors. In this very serious offence of trafficking, personal circumstances generally count for little and there are none in this case. The only significant mitigating factor is the defendant’s plea of guilty. The defendant has pleaded guilty at the earliest opportunity and will benefit from a one-third discount to his sentence. The notional starting point of 24 years’ imprisonment will therefore be reduced by one-third to that of 16 years’ imprisonment.
The defendant is charged with four offences and I must sentence him separately for all four offences. I turn now to deal with the charges.
I turn now to Charge 1. Defendant had unlawfully trafficked in 7.14 grammes of cocaine. That amount falls in the band of up to 10 grammes, which warrants a sentence of between 2 to 5 years’ imprisonment. For that amount of cocaine, I would accordingly take 4 years’ imprisonment as the appropriate starting point. And after a one-third discount, reduce that term to 2 years and 8 months’ imprisonment.
In Count 2 of wilfully obstructing a police officer, I will take a starting point of 3 months’ imprisonment after trial. And giving him the one-third discount, that term should be reduced to 2 months’ imprisonment.
I turn to Count 3. In that count, the defendant pleaded guilty to manufacturing cocaine. The leading case for sentencing in manufacturing dangerous drugs and principles in sentencing are set out in the R v Cheung Wai Kwong and Another [1997] HKLRD 344 and HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408. It is well-settled law and goes back to the decision in R v Cheung Wai Kwong and adopted in Cheng Chi Wai that the offence of drug manufacturing is much more serious than trafficking in drugs and warrants a heavier sentence.
I turn to the factors to be taken into consideration when sentencing for manufacturing dangerous drugs. One of the factors is the quantity seized at a manufacturing workshop as that showed to some extent its size and productivity and reflected the seriousness of the offence. In this case, the quantity seized was 7.14 grammes in Count 1 and 516.7 plus 165.26 grammes in Count 4, making a total of 689.1 grammes of cocaine, either trafficked or to be trafficked.
The second factor is the length of time the workshop had operated. It is the defendant’s case that this is the first and only occasion that cocaine was manufactured. There is no evidence to show otherwise and I accept that. In the circumstances, this manufacturing was not continuous. The charge is only on one date and I shall base the sentence that manufacturing was a one-off occasion.
The third factor is to have regard to its scale and productivity. The manufacturing could have produced a large amount of drugs given the quantity found.
The fourth factor is the quantity and standard of manufacturing paraphernalia. The manufacturing paraphernalia was simple and basic items, but that was all that was needed for converting cocaine hydrochloride to crack cocaine as is set out in the admitted Summary of Facts.
The fifth factor is the role the defendant played. The defendant himself manufactured the drugs. He used his flat rented in his name as the workshop or station to store and then manufacture the dangerous drugs ready for trafficking. His participation was therefore significant and had a leading role, only role, in the manufacturing process.
In the present case, the defendant had manufactured 689.1 grammes of cocaine. If the defendant had been trafficking in that amount of cocaine, the starting point after trial would on a mathematical calculation be 20 years and 3 months’ imprisonment. At paragraph 33 in Cheng Chi Wai, the Court of Appeal said and I quote:
“Should there be information which shows the drug-manufacturing act is a one-off rather than a continuous act, a starting point slightly higher than the sentence for trafficking in the same quantity of drugs may be appropriate.”
Taking into account the above factors and that this offence is more serious than that of trafficking and a heavier sentence is warranted, I consider a notional starting point of 22 years’ imprisonment to be appropriate. Giving the defendant a discount of one-third for his early plea of guilty, I reduce that term to one of 14 years and 8 months’ imprisonment in Count 3.
I turn to Count 4. In relation to Count 4, it is a trafficking in dangerous drugs. The drugs involved are 681.96 grammes of cocaine plus the converted amount of ketamine, which is 4 grammes, which equals a total of 685.96 grammes of cocaine, plus the 1,210 grammes of heroin hydrochloride, amounts to a total amount trafficked of 1,895.96 grammes of cocaine and/or heroin. The amount falls in the band of between 1,200 to 4,000 grammes, which warrants a sentence of between 23 to 26 years’ imprisonment. For this amount, as I have calculated earlier and taking into consideration the factors, I will take 24 years as the appropriate starting point. And after a one-third discount, reduce that term to 16 years’ imprisonment.
As stated in Cheng Chi Wai at paragraphs 53 and 55, I quote, where that case involved trafficking in dangerous drugs and manufacturing in dangerous drugs:
Charge 1 is of a different nature than the other charges. The facts show that the appellant was going to sell the drugs after manufacturing them and it was extremely likely that at the time of his arrest, the applicant was delivering the drugs to the buyer according to the sales arrangement. It was evident that the applicant had played different roles in the matter, thereby enhancing the gravity of the appellant’s criminal acts.”
At paragraph 55, the court went on to say:
“Overall, it was appropriate for the trial judge to order 1 year and 8 months after 9 years’ sentence for Charge 1 to be served consecutively to the remaining charges. It did not constitute unfairness to the applicant.”
In sentencing, I have regard to the principle of totality. Charge 1 and 4 of trafficking are of a different nature than Charge 3, manufacturing dangerous drugs. You have played different roles and this enhanced the gravity of your criminal acts. In the circumstances, I order 1 year of Charge 3 to run consecutive to Charge 4 and the remainder of the terms in all charges to run concurrent to each other.
The total term of imprisonment which you shall serve will therefore be 17 years’ imprisonment.
Having regard to the overall sentence I have passed as stated in Herry Jane Yusuph and step six, I consider it fair, just and balanced in all the circumstances of the offences and you, the offender.