HKSAR v. YIU KA HEI JEREMY

HCCC 137/2023

[2024] HKCFI 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 137 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 22 May 2023 to two charges of trafficking in dangerous drugs (Charge 1 &2)  and one charge of conspiracy to manufacture a dangerous drug (Charge 3), and he was committed for sentence to the Court of First Instance.

2.  Charge 1 alleges that on 5 October 2020, outside Twin Regency, No 11 Tak Yip Street, Yuen Long, New Territories, the defendant unlawfully trafficked in 119 grammes of a solid containing 109 grammes of cocaine. 

3.  Charge 2 alleges that on 5 October 2020, at Twin Regency, No. 11 Tak Yip Street, Yuen Long, New Territories, the defendant unlawfully trafficked in (1)  311.22 grammes of a solid containing 200.66 grammes of cocaine and (2)  0.37 gramme of a powder containing 0.29 gramme of ketamine.

4.  Charge 3 alleges that between 1 April 2020 and 5 October 2020, both dates inclusive, in Hong Kong, the defendant conspired together with persons known as “Cheung Kwan” and “Si Fu”, and other persons unknown, to unlawfully manufacture 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 Summary of Facts reveals that on 5 October 2020, police officers intercepted the defendant at the entrance of Twin Regency, 11 Tak Yip Street, Yuen Long.  Upon search, 5 plastic bags containing a total of 119 grammes of a solid containing 109 grammes of cocaine was found inside two boxes of cosmetic products in the plastic bag he was holding.  Defendant was arrested for Trafficking in a Dangerous Drug and under caution, he admitted that he lost a lot of money in gambling, so he helped to traffic dangerous drugs to repay his debts.

7.  The police later escorted the defendant to his residential address at Twin Regency (‘the premises’)  for a search.  Upon search, the police further found 15 plastic bags containing a total of 311.22 grammes of a solid containing 200.66 grammes of cocaine, and a plastic box containing 0.37 grammes of a powder containing 0.29 grammes of ketamine.  Other traces of cocaine were also found on various other drug trafficking and/or manufacturing paraphernalia such as electronic scales, sealing machine, glass beakers, metal spoons and metal sieve.  The police also found a total of 2.07 grammes of a powder containing sodium bicarbonate in 5 paper boxes.

8.  The defendant was further arrested for “Manufacture of a Dangerous Drug”. Under caution, the defendant admitted he ‘cooked’ dangerous drugs by using the paraphernalia found therein, according to the instructions of the boss who employed him.  

9.  A Government Chemist attended the scene and confirmed that the setting of the premises was fit for drug-manufacturing.  It was opined that the chemical in the paraphernalia seized from the scene were items commonly associated with the process of “making cocaine base” from cocaine hydrochloride, which means turning cocaine powder into crack cocaine.

10.  The police subsequently took two video-recorded interviews with the defendant on 6 Oct 2020.  Under caution, he stated inter alia that:

(a)  He lost around HK$300,000 when he gambled in Macau in 2019;

(b)  In late April 2020, the defendant was introduced by a male friend to manufacture dangerous drugs, in order to repay his debts;

(c)  The defendant later learned how to manufacture dangerous drugs from a person called “Si Fu” and he began to manufacture dangerous drugs in June 2020 in two hotel rooms at two different hotels and manufactured 600 to 700 grammes of Dangerous Drugs.

(d)  Since 6 July 2020, the defendant rented the premises at Twin Regency as instructed by his controllers, Si Fu and Cheung Kwan and he started to manufacture dangerous drugs therein in mid-July 2020. The dangerous drugs that the defendant manufactured for the first time in the premises was treated as a failure and some of them were seized by the police during the raid while around 10 packs (around 240 grammes)  had already been sold to the market.

(e)  The defendant had been out of work until September 2020, as there was no raw materials. Around 2-3 weeks prior to his arrest, He received a few batches of raw materials for manufacturing dangerous drugs;

(f)  Upon receiving the cocaine on about 23 and 25 September 2020, The defendant manufactured the drugs by various methods, such as baking it with soda powder and medicine. After he manufactured the dangerous drugs, the defendant sent the dangerous drugs out by courier drivers he booked from the delivery companies such as GoGo Van or LaLa Move as instructed by “Cheung Kwan”;

(g)  The defendant had manufactured around 1,000 g of cocaine, and some of them were already sold to the market. He would conceal dangerous drugs in cosmetic products or toys, before sending them out;

(h)  The defendant admitted that the drugs found on him were about to be delivered;

(i)  The defendant stated that 15 packs of the dangerous drugs found at his residential premises were manufactured during the first time, which were treated as a failure;

(j)  The defendant would receive HK$300 reward for every 24 grammes of dangerous drugs he sold.

11.  The property agent handling the leasing of the premises confirmed that the defendant was the tenant from 7 July 2020.

12.  The Government Laboratory analyzed the seized drugs and confirmed the nature and quantity of the same as exactly described in the particulars of both Charge 1 and 2.

13.  The value of the dangerous drugs seized in this case was HK$592,697 (if treated as cocaine powder)  or HK$1,014,361 (if treated as crack cocaine).

Mitigation

14.  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 6.  After graduation since 2015, the defendant had been working as a chef in a Japanese restaurant, earning around HK$18,000 to HK$20,000 per month.

15.  The defendant is still single and at the material times, he lived with his mother and elder brother in Tin Shui Wai.

16.  In mitigation, Mr David Iu, counsel for the defendant, informs the court the defendant comes from a broken family as his parents were divorced when he was only 2 years old.  The defendant had been a filial son to his mother and during the time when he was employed, he contributed around HK$8,000 per month to his mother for living expenses.

17.  Mr Iu told the court that the defendant committed the present offences because of financial pressure.  At the material times, due to social events and the pandemic, the defendant was unemployed as the restaurant in which he worked was forced to close down.

18.  Further, the defendant had incurred a gambling debt in the sum of around HK$300,000.  He wanted to earn some quick money to repay his debts and to pay for his mother’s living expenses.  Without due consideration to the possible serious consequences and under the influence of some friends of dubious character, the defendant just followed the syndicate’s instructions and committed the present offences.  He made frank admissions to the police upon arrest and pleaded guilty in court at the earliest opportunity.

19.  Mr Iu urged the court to take into account the total quantities of drugs in Charge 1 and Charge 2 as the cocaine in Charge 1 were taken out by the defendant from the premise in Charge 2.

20.  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.

21.  For Charge 3, Mr Iu submitted that:-

(1)  The workshops were not of a large-scale;

(2)  The workshops were of home-made nature, with failures in the manufacturing process;

(3)  Defendant was not the mastermind and he only played a passive role as a staff, and acted only upon instructions from the bosses of the sydincate;

(4)  The manufacturing had not been processed every day and had been stopped for a certain period of time due to lack of raw materials; and

(5)  The quantity and standard of drug-manufacturing paraphernalia were not of a significant nature.

22.  Mr Iu urged the court to take into account of the totality principle and order that the sentence of Charge 3 be run concurrently with the sentences of Charge 1 and Charge 2

23.  Two letters are submitted in mitigation.  One is written by the defendant himself in which he described how he regretted of committing the present offences due to his own stupidity.  He says that he recognizes the mistakes he has made and now realizes the seriousness of his conduct to which he has pleaded guilty and the undesirable effects of the misdeeds that he would bring to the society.  He expresses deep remorse and he is keen to reform and turn a new leaf.  He expresses his wish to complete different practical courses whilst serving his time to become a skilled person in future.

24.  The other letter is from the defendant’s elder brother who described the defendant as a young man who had worked very hard to attain his goal in life and became an assistant chef in a famous Japanese restaurant but he was under the bad influence of his dubious friends and committed the present offences.  The elder brother is very sensible and he asks the court to pass a proper sentence to let the defendant to understand his wrongdoings and to rehabilitate and to integrate into the society at the same time.

Consideration of Sentence

25.  In Charge 1 and 2, the defendant pleaded guilty and was convicted on two trafficking charges.  As said, he was first arrested outside Twin Regency in Yuen Long on 5 October 2020 for Trafficking in Dangerous Drugs in relation to the 5 plastic bags of cocaine found on him.  The police found a keycard and the passcode in defendant’s wallet and escorted him to search the premises he rented where further 15 plastic bags of cocaine were found in relation to Charge 2.

26.  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 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 home 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…”

27.  The defendant was arrested after he took the 5 plastic bags out from the premises. The prosecution does not seek to dispute the defendant’s claim in the VRI that he was instructed to deliver the drugs to someone in Charge 1 from the premises by passing the 5 plastic bags to the courier driver.  The dangerous drugs seized in Charge 1 were thus originated from 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.

28.  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 agree with the submission by Mr Iu and impose a concurrent sentence.

29.  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.

30.  The total narcotic contents of dangerous drugs involved in this case (Charges 1 & 2)  are as follows: 309.66 grammes of cocaine and 0.29 gramme of ketamine.

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

32.  The first step is to assess the gravity of the offence.  There are two different types of drugs involved in this case, namely, cocaine and ketamine.

“Cocaine”

33.  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.

34.  According to the sentencing guidelines for the quantity of 309.66 grammes of cocaine, the defendant is in the band of 200 grammes and 400 grammes where the starting point for traffickers after trial subject to any enhancement is 12 to 15 years’ imprisonment.

“Ketamine”

35.  According to SJ v Hii Siew-Cheng [2008] 3 HKC 323, for trafficking in the quantity up to 1 gramme, it is within the court’s discretion and will be under 2 years’ imprisonment.  As the quantity found in relation to ketamine is only 0.29 gramme, a very small quantity, I judge that the presence of ketamine in this case is immaterial to the overall sentence of the two charges.

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

37.  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.”

38.  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.

39.  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.

40.  The facts of this case reveal that the defendant’s role in this case is not merely a courier or storekeeper.  By his own admission to the police, the defendant admitted to have manufacture drugs in the premises by turning cocaine powder into crack cocaine.  He was also responsible for packaging the dangerous drugs and arranged delivery of the same to others upon instructions from Cheung Kwan and Si Fu from the syndicates.  As a consequence, he should therefore be treated as actual trafficking 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, namely Conspiracy to 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 drug at the premises.

Overall Starting Point for the trafficking charges

41.  In determining the proper overall starting point of the trafficking charges, I have reminded myself of the sentencing principle for trafficking in cocktail drugs.  There are three means of cross-checking the appropriateness of the overall starting point in case of a trafficking involving different types of dangerous drugs (Absurdity Test, Conversion Test and Ratio Test)  (See HKSAR v Chan Yuk Leong CACC 318/2013).

42.  To achieve a reasonable and realistic sentence, I will adopt the combined approach, which involves an upward adjustment from the starting point of the base drug.  In the present case, ketamine is obviously the less serious drugs and as I said, the quantity is so small so I will therefore use cocaine as the basis of calculation to calculate the starting point.

43.  According to the sentencing guideline for 309.66 grammes of cocaine, the starting point is 13 years and 8 months’ imprisonment.

44.  In determining the upward adjustment for the remaining 0.29 grammes of ketamine, I have already expressed the view that the presence of the very small quantity of ketamine in this case is immaterial to the overall sentence.  This is further supported after cross-checking the results provided under the above three tests.  Mr Leung, SPP has done the calculations in respect of the three tests to which the defence raised no objection.  Even by assuming the sentence for trafficking 0.29 grammes of ketamine is 7 months according to calculation, the result of the three tests are also 13 years and 8 months.

45.  Having applied the three cross-check tests, I therefore consider that a total of 13 years and 8 months as a notional starting point would be appropriate.

46.  In determining the appropriate overall starting point for Charge 1 and 2, as said, I will also take into account the role and culpability of the defendant as a courier or storekeeper.  I therefore decide not to make any upward adjustment to the overall starting point for both trafficking charges.

47.  The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point.  As already noted, the trafficking in this case involves two different types of dangerous drugs.

48.  Usually, the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.  Yet, because of the relatively small quantities of the ketamine in comparison with cocaine, I decide not to enhance the starting point at all.

49.  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.

50.  Apart from the defendant’s timely and early plea of guilty at the committal stage, Mr Iu was unable to identify any other mitigating factor on behalf of the defendant.  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.  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 9 years’ imprisonment.

51.  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 9 years’ imprisonment for both of the trafficking charges is not too harsh especially bearing in mind that only a part and certainly not all of the sentence will have to be served consecutively to the sentence of Charge 3 which I shall now discuss.

52.  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 [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 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.”

53.  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.”

54.  Furthermore, one must also bear in mind that the defendant had pleaded guilty not just to manufacturing dangerous drugs, but conspiracy to manufacture, which is a more serious offence.  And because he had been involved in a conspiracy, it would be inappropriate to sentence the defendant on the basis that he worked alone. 

55.  According to what the defendant told the police during the VIR, he was first introduced to manufacture dangerous drug in order to repay his debts in late April 2020. He was then further introduced to Si Fu and Peter who taught him how to manufacture dangerous drug and he learned the process in June 2020 in a hotel room.  Later he moved to another hotel where Si Fu and Cheung Kwan instructed him to manufacture the dangerous drug he had earlier handled as there were some problems in the drugs.  The defendant rented the premises on 6 July 2020, about 3 months before the raid according to instructions of his controllers, after learning how to manufacture crack cocaine by baking the cocaine hydrochloride. From mid-July to 25 September, the manufacturing process was however stopped because there was no raw material.  He frankly admitted that he had manufactured around 1,000 grammes of cocaine during the period and some of them have already been sold to the market while some (i.e. about 311 grammes of cocaine seized by the police in the 15 plastic bags in the premises)  were manufactured during the first time and was treated as a “failure” and stored in the premises.

56.  I take into account the quantity of drugs manufactured, that is 1,000 grammes of cocaine, and the fact that the operation had been going on and off for about three months.  The defendant was acting together with the co-conspirators to manufacture the cocaine firstly in hotel rooms and later in the premises.  Although the defendant was the only person who actually performed the manufacturing process, he also rented the premises according to the instructions of his controllers and was also responsible for packing and arranging the delivery of the crack cocaine.  I take into account that the scale of the manufacture is not big, but on the other hand, it is easy to convert the liquid cocaine and the block of cocaine into crack cocaine. 

57.  According to the sentencing tariff in Abdallah, the starting point for trafficking 1,000 grammes of cocaine is 22 years’ imprisonment.

58.  After considering all these matters, I am of the view that a starting point of 24 years and 9 months is appropriate for conspiracy to manufacture the same quantity of cocaine in Charge 3.

59.  The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount.  Apart from this discount on his plea which reduced the sentence to 16 years and 6 months’ imprisonment, I further took into account that the quantity seized in both Charge 1 and 2 were only 309.66 grammes and but for his own frank admission in the VRI, the remainder of the quantity of cocaine manufactured by the defendant during the period would not be known at all.  Because of this special reason, I shall further reduce the sentence by 12 months to 15 years and 6 months’ imprisonment.

Totality

60.  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 HKSAR v Tang Wing-han, Sean [2021] HKCFI 2528, DHCJ McWalters (as he then was)  was dealing a defendant of the same age who was charged with similar offences.  The sentence of trafficking and manufacturing a DD after discount was fixed at 14 year and 10 months and 16 years and 2 months respectively.

61.  DHCJ McWalters finally decided not to impose a partly consecutive sentence of the trafficking charge to the sentence of the manufacturing charge as he was of the view that otherwise the sentence would not be a just sentence but would rather be a crushing one. 

62.  In order not to impose a sentence which is so crushing on this defendant, and only because of this reason, I will likewise impose a concurrent sentence in respect of all the three charges.

63.  As a final step, I must now consider whether the overall sentence is a fair, balanced and just sentence for this offender.  This is a sad case.  The defendant is 25 years old when he committed the present offences. He was a young chef who should have a promising future ahead of him.  As he became unemployed due to the pandemic and had a huge gambling debt, he was so eager to earn quick money that he has fallen to the trap of the drug syndicate. It also appears that he was so stupid and had grossly underestimated the serious consequences of his wrongdoings at all and allowed himself to be manipulated by the drugs syndicate to be a drug-packaging worker, a courier and even to manufacture dangerous drugs.

64.  I totally agree with DHCJ McWalters when he said tailoring the sentence to the needs of the defendant without diminishing its punitive and deterrent characteristics is no easy task in the 6^th and the final step.  Doing the best I can in the balancing exercise, I believe an overall sentence of 15 years’ imprisonment is a fair, balanced and ultimately just sentence which can sufficiently punish this defendant while providing encouragement he may need to pursue his path of rehabilitation.  In so doing, apart from the 12 months which I have reduced earlier because the quantity of cocaine manufactured was only coming from his own admission, I further reduce the sentence for another 6 months from 15 years and 6 months’ imprisonment to 15 years’ imprisonment.

65.  For Charge 1, I impose a sentence of 9 years imprisonment. For Charge 2, I impose a sentence of 9 years imprisonment. For Charge 3, I impose a sentence of 15 years’ imprisonment.

66.  The sentences on Charge 1 to Charge 3 are to run concurrently.  The total sentence of Charge 1 to 3 is therefore 15 years’ imprisonment.