COURT: The defendant pleaded guilty in the Magistrates’ Court to three charges. He pleaded to one count of trafficking in a dangerous drug, unlawfully trafficking in 9.98 grammes of a solid containing 9.19 grammes of cocaine (Charge 1). He pleaded to one count of manufacturing a dangerous drug, unlawfully manufacturing cocaine (Charge 2). Lastly, he pleaded to another count of trafficking in a dangerous drug, namely 811 grammes of a solid containing 749 grammes of cocaine (Charge 3). He was committed for sentence and today confirms his plea and agreement to the Summary of Facts.
Summary of Facts
At around 1 am on 13 April 2019, a team of police officers were on anti-narcotics operation in a building at 157-159 Kowloon City Road, Kowloon. The defendant was seen leaving the main entrance of the building and looking around, to his left and right. The police intercepted him and revealed their identities.
The defendant was searched and a plastic bag wrapped in tissue containing 52 transparent resealable plastic bags of a total of 9.98 grammes of a solid containing 9.19 grammes of cocaine were found in his underwear, the drugs of Charge 1. He admitted under caution that this was the first time he trafficked in drugs and he did it to earn money for his family.
The defendant was found in possession of keys which had access to Room A, 3rd Floor of 157-159 Kowloon City Road. The police used the keys to gain access to the premises and found a two-bedroom flat.
They had a search warrant and searched the premises. They found bags of drugs, paraphernalia and equipment for manufacturing dangerous drugs. He was further cautioned after another arrest and admitted that he cooked the dangerous drugs in the premises for sale.
The police found another 35 plastic bags containing a total of 811 grammes of a solid containing 749 grammes of cocaine, the drugs of Charge 3. There was equipment found which a government chemist inspected and concluded were items commonly associated with the process of converting cocaine hydrochloride to cocaine base. This is the basis of Charge 2.
That equipment included a bag weighing 1.43 kilogrammes of sodium bicarbonate powder. In addition, there was an electronic scale, a cooking pot, a gas stove, sieves, a spoon, a pair of scissors, a sealing machine, a blender, a glove and another two paper boxes containing 902 grammes of sodium bicarbonate powder. Most of these items contained traces of cocaine.
The defendant agrees that the estimated street value of all the cocaine seized was approximately $1,299,537.
The Defendant’s Background and Mitigation
The defendant is now 24 years old. He was 20 at the time of his arrest. He was not particularly academic but finished Form 3. Thereafter, he worked in kitchens and restaurants. When he was arrested, he was working casually, earning $800 a day with about 18 days’ work a month.
The defendant is a man with a clear record. He is single and started to live on his own when he was 18 and not with his divorced parents and sibling. The defendant himself describes his behaviour, when a teenager, as rebellious. He was not academic and argued with his mother constantly. He moved out due to their disagreements and spent a lot of time in cybercafés which is how he became or how he came to become involved in drugs through bad peers.
He met two men, Yip and Au, who introduced him to cocaine. This led to a habit which he could not afford. As is too often the case, Yip had a solution to his money problems and took him to the address. That is the flat where the police found the drugs of Charge 3 and paraphernalia of Charge 2. The defendant was told it was for storing drugs and that he was asked to look after the premises and any drugs that were delivered to there. On 11 April 2019, the defendant was given a mobile phone by Au for the purposes of communicating to him messages to pick up and deliver drugs.
On 12 April 2019, a man called that mobile and asked the defendant to pick up something near the taxi stand at Kowloon Tong MTR. Then after that, Au told him to go to the supermarket to buy large bottles of distilled water, tissue and soda powder. The defendant went back to the premises and there met Yip and another man. Both of them were in the course of manufacturing dangerous drugs. He was told to go downstairs to buy newspaper to cover all the windows of the unit.
That same evening, he was in the cybercafé when Au called him to go to the premises. When he arrived, the other man had already left. He found a basin full of white solid objects inside. He then broke apart the white solids. He weighed and packed those drugs into 24-gramme bags.
After midnight, that is in the early hours of 13 April 2019, he was told to bring dangerous drugs, the drugs of Charge 1, to deliver to a customer and this was when he was intercepted by the police downstairs. He had been promised $500 to deliver that bag of cocaine. He had not yet been paid when he was arrested.
Ms Lee has said all she can say on behalf of the defendant. His best mitigation is his plea of guilty. I have also had sight of and considered the contents of a letter from the defendant himself and his mother. I am sure his remorse is genuine. He has learnt a bitter lesson. He is so sorry he has disappointed his mother and grateful she has not given up on him. He will study hard whilst he serves his sentence.
The defendant has indicated his plea at the earliest opportunity and is entitled to a discount of one-third. This discount does encompass and take into account the mitigating factors of a previous clear record and remorse.
However, in this case, I have considered all mitigating factors put forward and, in my view, they are significant enough to apply a discount of 40 per cent to any starting point.
Sentencing
I have considered the approach to the sentencing of trafficking dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, the defendant has been caught red-handed leaving premises to deliver drugs from A to B, as well as having a role where he manufactures or at least assists in the manufacturing of dangerous drugs.
The first step of the six steps is to assess the gravity of the offence and identify the relevant guidelines which are applicable to the quantity of drugs concerned. In respect of cocaine, the relevant decision is R v Lau Tak Ming and Others [1990] 2 HKLR 370.
The relevant band for this quantity of cocaine is 20 to 23 years’ imprisonment for 600 to 1,200 grammes. If I add up the cocaine from Charges 1 and 3, the total amount of cocaine is 758.19 grammes. That would attract a starting point of 20 years and 9 months’ imprisonment after trial. In fact, the amount of cocaine in Charge 3 alone, 749 grammes, would mathematically attract the same starting point, that is, 20 years and 9 months’ imprisonment.
If I consider the cocaine of Charge 1 alone, that is 9.19 grammes of cocaine, the relevant sentencing band for this quantity is 2 to 5 years’ imprisonment for up to 10 grammes of cocaine. That would be a starting point of 4 years and 9 months’ imprisonment after trial.
The second step is to assess the defendant’s role and culpability based upon the evidence. The Court of Appeal in that authority reaffirmed that the bands as identified in sentencing guidelines were for the least culpable of drug traffickers. Couriers would fall into this category. This defendant admits that he was not only a drug courier but also someone who agreed to manufacture dangerous drugs before delivering it. According to the defendant’s own explanation in mitigation, he was one of several men in the unit dealing with the cocaine and his role was to divide up and weigh the finished products to pack them into transparent resealable plastic bags to deliver as instructed.
The third step is to identify where in the relevant band this defendant comes. This starting point is identified by reference to the quantity of the dangerous drugs as well as the role and culpability of the defendant. This is a starting point before taking into account any aggravating factors. In respect of this defendant, trafficking in the quantity of cocaine in Charge 1 does produce a starting point of 4 years and 9 months’ imprisonment and the quantity of cocaine in Charge 3 does produce a starting point of 20 years and 9 months’ imprisonment. This is on the premise that the defendant’s role was one of a courier.
Turning to Charge 2, that is manufacturing dangerous drugs, the amount of cocaine to take into account is the drugs of both Charges 1 and 3. That is a total of 758.19 grammes. The value of all the cocaine seized was over HK$1 million.
The relevant case in sentencing for manufacturing dangerous drugs is that of R v Cheung Wai Kwong and Another [1997] HKLRD 344. In manufacturing cases, the quantity of drugs seized is not the sole consideration in determining a starting point, although it does give an idea of the scale of the operation. Other factors include the capacity of the equipment found, the output of drugs at the manufacturing premises as well as the role played by the defendant.
Ms Lee for the defendant has referred me to HKSAR v Ki Chun Pong, CACC 73/2018. There the court enhanced the starting point for the amount of drugs found in the premises by a year for the manufacturing charge.
Mr Tsui for the prosecution has referred me to HKSAR v Cheng Chi Wai, CACC 50/2019. The factors relevant to sentencing a manufacturing charge is explored and reiterated in that authority.
As I said above, the defendant said that his role was more akin to an assistant; he was not the mastermind or the person in charge; he was tasked with packaging and delivering. It is clear from that authority in relation to manufacturing dangerous drugs that those involved with manufacturing play a more significant role than a courier and that it is a more serious offence than trafficking per se. After all, it can reasonably be inferred that more dangerous drugs were or were to be manufactured, packed and delivered than those which were seized at the time of the police raid. Therefore, it warrants a heavier sentence.
It has been suggested in mitigation that I should look at the scale of the operation, it was not sophisticated nor on a large scale. I agree to some extent. I will take into account the amount of drugs found inside the premises and on the defendant. I also take into account and accept his role as one of an assistant. There is no evidence otherwise. So I will increase the starting point of 20 years and 9 months that I find appropriate for trafficking that amount of cocaine by 2 years. Therefore, I will take a starting point of 22 years and 9 months for the manufacturing of dangerous drugs (Count 2).
The fifth step is to consider all mitigating factors when assessing the overall discount. That authority makes it clear that the usual or normal discount of one-third is not an impenetrable ceiling beyond which a sentencing judge cannot go if he has good reason in the proper exercise of his discretion. As I have said above, I have heard mitigation which gives me good reason to go beyond the usual one-third discount.
I intend to sentence Charge 1 on the basis of the quantity involved and that is 9.19 grammes of cocaine which I find attracts a starting point of 4 years and 9 months’ imprisonment after trial. After a discount of 40 per cent is applied to that starting point, I will sentence the defendant to 2 years and 10 months’ imprisonment for Charge 1.
As explained above, I will take a starting point of 22 years and 9 months for the most serious charge, Charge 2. After a discount of 40 per cent is applied to that starting point, I will sentence the defendant to 13 years and 8 months’ imprisonment for Charge 2.
I intend to sentence Charge 3 on the basis of the quantity of cocaine involved and that is 749 grammes which I find attracts a starting point of 20 years and 9 months’ imprisonment after trial. After a discount of 40 per cent is applied to that starting point, I will sentence the defendant to 12 years and 5 months’ imprisonment for Charge 3.
I must consider the principle of totality and this is where the sixth step in that sentencing authority is relevant. Any sentencing court must at this stage also stand back and observe the overall sentence to ensure that it is fair, balanced and just to the defendant and to the seriousness of these offences.
I am alive to the fact that the sentence I will impose is a lengthy one and I must ensure it is not an overbearing or crushing sentence. I am of the view that the enhancement of the trafficking starting point by 2 years for the manufacturing-drugs charge is more than fair and certainly justified. I see no other reason to consider any further discounts other than the 40 per cent applied. I see no further adjustment applicable or justifiable.
The totality principle in this case means I will make all three sentences concurrent. This is all the more pertinent when, as I have said, if I were to add the drugs of both Charges 1 and 3 together, the starting point is the same mathematically for the drugs of Charge 3 alone. It is therefore only fair to impose concurrent sentences.
Accordingly the defendant is sentenced as follows: Charge 1, I repeat, 2 years and 10 months’ imprisonment; Charge 2, 13 years and 8 months’ imprisonment; Charge 3, 12 years and 5 months’ imprisonment.
I order that all three sentences be served concurrently. Therefore, the defendant will serve a total of 13 years and 8 months’ imprisonment. Can I ask, defendant, Mr Wong, do you understand those sentences?
ACCUSED: Understood. Understood.