The Facts Admitted By the Defendants
The 1st count first, 1st charge, trafficking in a dangerous drug, that is against the 1st defendant. It happened in the evening of 7 April 2022. A team of customs officers carried out anti-narcotics operation at Vibe Centro, No. 9 Muk Ning Street in Kai Tak, Kowloon. D1 was seen coming out of the building carrying a red paper bag, and he was intercepted by the officers when he tried to flee. He was subdued after the brief chase, and a search was conducted. Inside the paper bag were found two zip-lock bags containing a total of 19 plastic bags, which in turn contain 410 grammes of a solid containing 354 grammes of cocaine.
Under caution, D1 said the red paper bag contained ‘K powder’, and that he delivered to others for money. D1 had the resident access card of the building at the time, and he confirmed that he lived at Flat B, 5th Floor, Tower 1B of the building. I will refer to that as the flat.
The Rest of the Facts Concerning the 2nd and the 3rd Charge
Custom officers proceeded to the flat and rang the doorbell, and then the 2nd defendant answered the door. When the officers declared their customs identities, the 2nd defendant tried to close the door but he was soon overpowered by the officers. The officers subdued and arrested D2. D2 confirmed he was residing at the flat. The officers also found a resident access card of the building in D2’s possession.
A search was conducted inside the flat. A large quantity of drugs and equipment for adulterating and packaging drugs were found. In the open kitchen, the officers found following:
(1) one plastic bag containing 976 grammes of a solid containing 923 grammes of cocaine hydrochloride;
(2) one plastic bag containing 965 grammes of a solid containing 829 grammes of cocaine hydrochloride;
(3) one electronic scale containing 0.02 grammes of a solid containing cocaine;
(4) one metallic pot containing traces of a solid containing cocaine. The pot contained 670 millilitres of a liquid containing 0.05 grammes of a solid upon drying. The solid contained cocaine;
(5) on top of the said metallic port were found one sieve and two metallic spoons, which in turn contained 3.04 grammes of a solid containing 1.83 grammes of cocaine;
(6) one electric cooker containing 0.01 grammes of a solid containing cocaine;
(7) four plastic packets containing a total of 2.22 kilogrammes of a solid containing phenacetin, which is the Part I poison;
(8) three plastic bags containing a total of 442 grammes of a solid containing phenacetin;
(9) one packet consisting of plastic wrappings and three plastics packets containing a total of 912 grammes of solid containing paracetamol, which is not a substance controlled under the Dangerous Drugs Ordinance;
(10) four packets containing a total of 1.76 kilogrammes of a solid containing paracetamol;
(11) three paper boxes containing a total of 1.2 kilogrammes of a solid containing sodium bicarbonate, which is not the substance control under the ordinance;
(12) one plastic bottle containing 37.5 grammes of a liquid in which no substance controlled under the ordinance was detected.
In a television cabinet in the living room, the officer found the following that is among other things:
(1) one plastic bag containing 962 grammes of a solid containing 706 grammes of cocaine;
(2) one black plastic bag containing two plastic bags, which in turn contained 569 grammes of a solid containing 299 grammes of cocaine;
(3) one red paper bag containing 18 plastic bags containing 372 grammes of a solid containing 126 grammes of cocaine and one plastic bag containing three tablets containing a total of 0.51 grammes of MDMA;
(4) one plastic bag containing 471 grammes of a solid containing 469 grammes of cocaine hydrochloride; and
(5) one black plastic bag containing one plastic bag containing 995 grammes of a solid containing 910 grammes of cocaine hydrochloride and one packet containing 978 grammes of a solid in the form of a block, containing 921 grammes of cocaine hydrochloride.
Now, on a table in the living room, the officers found among other things the following:
(1) one electronic scale containing 0.02 grammes of a solid containing cocaine;
(2) one broken plastic bottle containing traces of a solid containing cocaine;
(3) one paper box containing 15 plastic bags containing 96.5 grammes of a solid containing 62 grammes of cocaine, three plastic bags containing 4.87 grammes of a solid containing 3.34 grammes of cocaine and two plastic bags containing 0.44 grammes of a solid containing 0.32 grammes of ketamine;
(4) one white box containing 15 plastic bags containing 75.6 grammes of a solid containing 29.8 grammes of cocaine and six plastic bags containing 93.5 grammes of a solid containing 69.1 grammes of cocaine;
(5) one orange paper box containing 39 plastic bags containing a total of 91.6 grammes of a solid containing 64.3 grammes of cocaine;
(6) one sealing machine;
(7) and two packets of transparent resealable plastic bags.
Under reminded caution, both defendants denied knowledge of these items found inside the flat and D1 had been the sole tenant of the flat since December 2021.
The forensic scientist Dr Chow Lok-fung attended the flat on 7 April 2022 to determine whether or not the process of dangerous drugs manufacturing could have taken place at the premises. Based on his site inspection of the flat, coupled with the results of chemical analysis, Dr Chow expressed the opinion that the chemicals and the equipment seized from the flat were items commonly associated with the process of making cocaine base, that is crack cocaine, from cocaine hydrochloride, and the process could have taken place inside the flat.
The estimated value of cocaine found on D1 upon arrest was HK$372,690, whereas the cocaine and cocaine hydrochloride found inside the flat were valued at HK$6,047,767.89. So the aggregate value of cocaine and cocaine hydrochloride was approximately 6,420,457.89.
Background and Mitigation
D1 was born in 1998 and is now 27 years of age. He has a clear record in Hong Kong. Mr Stephen Wong, counsel for the 1st defendant, submitted that the 1st defendant was a Year 4 university student in the Mainland. He lived with his mother and stepfather in Hong Kong before his arrest.
With reference to the case of Abdallah, Mr Wong submitted a notional starting point of 26.6 years for the trafficking of a total of 5,767 grammes of cocaine, that is the 1st and 2nd charges together.
As for the manufacturing of cocaine, Mr Wong submitted that although the flat was rented by D1 since December 2021, access records showed that D1 and D2 had frequent access during March and April 2022.
After referring to the recent case of Sum Ka Wa, submitted by the prosecution and to the case of Cheng Chi Wai, Mr Wong submitted that a starting point between 28 to 30 years is appropriate. Mr Wong also submitted that given the two trafficking charges are linked with the manufacturing charge, all three sentences should be ordered to run concurrently to avoid inflating the overall sentence.
D1 had written a letter of mitigation to this Court. D1 explained that he went to university in the Mainland in 2017. He was back in Hong Kong during the summer break in 2021. At the time Hong Kong was experiencing the peak of the pandemic, COVID, and he faced financial difficulties when he was only able to get part-time menial jobs of low wages. He came to know a friend who introduced him to a high-paid job. He did not know what the job entailed at the beginning. However, when he realised the job involved the trafficking of drugs, he still did it even though he knew it was wrong. He lamented destroying his future by his greed and he promised to be a useful member of the society.
D1 expressed that he is willing to bear the consequences of his misdeed and will use the time in custody positively to turn over a new leaf.
D2
D2 was born in year 2000 and is now 24 years of age. He has a clear record. Ms Sabrina See, counsel for the 2nd defendant, submitted that D2 came to Hong Kong when he was about two to three years old and had completed Form 5 education here. He had been gainfully employed since he left school, and he worked for two years in Dongguan as an assistant. However, he lost his job due to the pandemic. D2 came back to Hong Kong and worked as a part-time construction worker.
Ms See referred to the case of Herry Jane Yusuph and Abdallah, and submitted that the role D2 was not higher than that of a courier or a storekeeper, save for his role in the manufacturing of cocaine. For the trafficking of dangerous drug offence, Ms See submitted a notional starting point of 26 years, 6 months and 5 days.
As for the manufacturing of cocaine, Ms See submitted that despite the large quantity of drug seized, the setup, and use of the equipment are not sophisticated, and the manufacturing only required cooling of the mixture after mixing and heating the drug with soda powder.
Ms See also submitted that the access card of D2 showed visits between March and early April, a period of about one month. Ms See submitted a notional starting point of between 29 years, 3 months and 31 years, 11 months. Ms See also submitted that all three sentences should run concurrently after giving D2 a full one-third discount.
Both D2 and his aunt had written to this Court. D2 in his letter referred to losing his job as an assistant due to the pandemic and working in a construction site in Hong Kong afterwards. D2 expressed deep remorse for having committed the present offences, causing pain and anguish to his family. D2 said he had to shoulder the consequence of wrongfully trusting bad elements in committing the offences for which he has not gained any benefit. He asked this Court to give him a chance, saying that he would use the time in custody to continue with his studies.
D2’s aunt stressed that D2 is a kind-hearted person. He was influenced by dubious characters to commit the offences. D2 made regular contribution to family members and he did not commit the offence for financial gain. D2’s aunt asked this Court to impose a lighter sentence.
My Consideration for The Sentence
Manufacturing and trafficking of dangerous drugs are serious offences. A person convicted of either offence on indictment is liable to imprisonment for life and to a fine of $5 million.
For the offence of manufacturing dangerous drugs, as said in the case of Cheung Wai Kwong:
“Manufacturing was undoubtedly much more serious than trafficking or possession of dangerous drugs. In deciding the proper sentence, the quantity of drug was but one factor to be taken into consideration. Other factors include the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs and the role played by the defendant.”
Now, I take into account the fact that two bags, each containing almost one kilogramme each of cocaine hydrochloride were found in the open kitchen, no doubt to be turned into crack cocaine in due course but for the arrest action by the C and E officers.
I also take into account the cocaine found in D1’s possession when he was intercepted. The 354 grammes of cocaine was clearly the product of the manufacturing operation taking place in the flat. Furthermore, a total of 1,131 grammes of cocaine was found in the television cabinet, and a further 2,300 grammes of cocaine hydrochloride was also found in the same television cabinet showing both the finished product and those to be processed in due course.
Although the manufacturing process does not involve very sophisticated method, the scale of the operation cannot be said to be small. I accept that the operation appear to have been going on for about a month, based on the record or the access record of D1 and D2 using their access card to go to the flat. However, the operation would clearly have gone on, but for the arrest action on that day. I am of the view that a notional starting point of 29 years is appropriate for this offence.
Both pleaded guilty at the first available opportunity and are entitled to a full one-third discount. So with the discount, the sentence is one of 19 years and 4 months, that equals to 232 months.
The Trafficking Offence
I will deal with both defendants in accordance with the six steps in the case of Herry Jane Yusuph. For D1, the total dangerous drug involved in both counts amount to 5,767 grammes of cocaine which falls into the bracket of 26 to 30 years in Abdallah.
For D2, total of quantity of dangerous drugs involved in Count 2 was 5,413 grammes, which also falls into the 26 to 30 year bracket in Abdallah.
The Second Step
On the evidence, D1 was both a courier and was also involved in the manufacturing of crack cocaine. D2 was both a keeper of the dangerous drug and also involved in the manufacturing of crack cocaine.
The Third Step
Having considered the role played by D1, I am of the view that a notional starting point of 26 years and 9 months is appropriate, bearing in mind that the flat was rented under his name. In the case of D2, I am of the view that a notional starting point of 26 years and 7 months is appropriate for him, so 2 months less than D1.
The Fourth Step
As I have already taken the manufacturing role of D1 and D2 into account to arrive at the notional starting point of 26 years and 9 months and 26 years and 7 months respectively, there are no other aggravating factors to enhance the starting point.
The Fifth Step
The only mitigation factor for both defendants is their timely plea. I do not see any other mitigating factor to further reduce the sentence. With the discount, the sentence for D1 is 17 years and 10 months, and it work out be 214 months. Whereas for D2, it is 17 years and 8 months, that is 212 months. I have actually rounded it up from 212.6, rounded it up to 212.
The Sixth Step, also the Last Step
The last step is to consider the overall sentence to ensure it is fair, just, and balanced. With the one-third discount, the sentences for the trafficking in dangerous drugs is 17 years and 10 months for D1 and 17 years and 8 months for D2.
The sentence for the manufacturing offence of both defendants is 19 years and 4 months. Having considered the recent judgment of Sum Ka Wa, which the prosecution had properly brought to my attention, I am of the view that a concurrent sentence of 19 years and 4 months for all offences is fair, just, and balanced in all circumstances of the offence and the offender.
The Actual Sentence
For D1, Count 1, trafficking in a dangerous drug, 17 years and 10 months; Count 2, trafficking in dangerous drugs, 17 years and 10 months; Count 3, manufacturing of dangerous drugs, 19 years and 4 months.
All three sentences to run concurrently, making a total of 19 years and 4 months.
D2, Count 2, trafficking in dangerous drugs, 17 years and 8 months; Count 3, the manufacturing of dangerous drug, 19 years and 4 months.
Both sentences to run concurrently, making a total of 19 years and 4 months.