COURT: The defendant pleaded guilty to one count of conspiracy to manufacture a dangerous drug and one count of conspiracy to traffic in a dangerous drug. He pleaded guilty on 17 August 2023 in Eastern Magistracy and was committed to the Court of First Instance for sentence. He confirms his pleas and admission of the Summary of Facts.
The facts are as follows. On 27 November 2020, the defendant presented himself to Kwai Chung Police Station and reported that he had been assaulted by several people who accused him of stealing a quantity of dangerous drugs. He had also been threatened and blackmailed. He admitted to the police that he had been involved in manufacturing crack cocaine and distributing it. He was arrested, and under caution, he made full admissions of both counts.
He told the police he met a man surnamed ‘Tam’, when they both studied at Hong Kong Institute of Vocational Education. In September 2020, he told Tam he was short of money. Tam told him he could help, and instructed the defendant to buy a new prepaid SIM phone number.
After that, the defendant received a phone call from an unknown male in early October 2020. This man told him to go to a designated address, Unit U, in Kinetic Industrial Centre in Kowloon Bay. There he met a man who introduced himself as ‘Sifu’. He never found out his real name.
Thereafter, on three separate occasions in October, he met this man at Unit U. The defendant was taught how to cook crack cocaine from cocaine. It is a simple process that only requires baking soda, water, and a heat source. He was paid $1,000 on each occasion for attending the demonstrations.
On the third occasion, he actually assisted in the cooking process. In that unit was cocaine and all the paraphernalia needed to manufacture crack cocaine. On the fourth occasion, he met this man in either late October or early November 2020. He was told to go to a different address, Room 16 at 126 Wai Yip Street. He was given a key and told this would be the last time this man would teach him how to manufacture dangerous drugs.
Thereafter, he was to go to these premises and do it himself. In short, he was taught how to cook crack cocaine and package the finished product.
On that fourth occasion, he went straight out and delivered two packets to a Pakistani man in a restaurant. After that delivery, he returned and processed the remainder of the brick of cocaine. Each brick weighed 1,000 grammes. The following day, he went back to Room 16 and saw that same male, who taught him this time how to package the crack cocaine he had made the day before. He told him to package the finished product into bags weighing 23.75 grammes each. He was then instructed over the phone by the unknown man where to deliver the packages to others.
Thereafter, in November 2020, on numerous occasions, he went to Room 16 alone and manufactured crack cocaine. On those same occasions, he would deliver packaged drugs as directed when instructed. He also collected drugs from various people, including Tam, to take back to Room 16 to repackage before re-delivering.
On 25 November 2020, he went to Room 16 to work, to manufacture crack cocaine, but discovered a quantity of dangerous drugs was missing. He called the unknown man to tell him the drugs were missing.
Later that same day, he met the unknown man and two other men, who took him to Kai Tak Cruise Terminal Park, where he was beaten up. The key to Room 16 was taken away and all information relating to his co-conspirators was deleted from his phone. He was released, but not before he was told he had to compensate them for the lost drugs. He and his family were threatened. At home, he discussed what happened to him with his father, who advised him to report this to the police.
He told the police that he had received $4,000 in total and knew he had manufactured and delivered crack cocaine of more than 2,000 grammes.
The police acted on his information, and after obtaining a search warrant, raided Room 16, but it was empty. They also raided Unit U, but only found a plastic bag sealing machine, a hairdryer and some slippers. The defendant recognised that sealing machine as one used to package dangerous drugs.
The defendant admits between 1 October 2020 and 25 November 2020, he conspired with Tam, Sifu and the unknown male and others to unlawfully manufacture a dangerous drug, as well as unlawfully trafficking it.
Mitigation
At the time of these offences, the defendant was 19 years old. He had a clear record, but has since been convicted of two drug-related offences, possession of dangerous drugs and possession of equipment intended for the smoking, inhalation, ingestion, etc, of a dangerous drug.
I have heard full mitigation put forward on the defendant’s behalf by Mr Sheung. I have read the many letters submitted coming from the defendant, every member of his family, college teachers and previous employers.
Mr Sheung also stresses the unique features of this case. If the defendant had not surrendered himself and admitted these offences to the police, they would not have come to light. If the defendant had not been so frank, honest and detailed, the amount he manufactured and delivered would not have come to light.
In addition, the defendant provided meaningful assistance that led to a tangible result. The information to the police led to the arrest of Tam. Tam is due to stand trial for trafficking in dangerous drugs in the Court of First Instance. The defendant has indicated he will give evidence for the prosecution. However, that trial is well over a year away, not reasonably imminent, therefore I intend to deal with sentence today.
It has been suggested that all of these factors can be taken into account in mitigation. These factors should be given weight in the defendant’s favour.
Sentencing
For those who manufacture dangerous drugs, Charge 1 here, they must know it is a more serious offence than trafficking per se. It is a well-known principle that sentences for manufacturing dangerous drugs are often far heavier than those for trafficking offences.
I have been referred to authorities and, in particular, I refer myself to 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. I have also referred to HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, where the Court of Appeal has laid some guidelines for, in particular, the scale of the operation concerned.
I have been urged to consider the operation here was unsophisticated and of a small scale. The process of manufacturing in itself is not complex. The defendant himself did not rent the premises. He was a foot soldier in the conspiracy. He was tempted by easy money. Moreover, he was not involved in this conspiracy for very long.
As I said above, those that manufacture a dangerous drug often face a heavier sentence than those who traffic that same dangerous drug. The defendant here faces both charges. I intend to first deal with the conspiracy to traffic a dangerous drug.
For Charge 2, I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. That was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly, passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug. As a result of the defendant’s own admission, we have an estimate of a quantifiable amount of cocaine in this case. Therefore, the guidelines for trafficking cocaine is relevant.
I have been referred to the latest authority from the Court of Appeal relating to the sentencing guidelines for cocaine, HKSAR v Huang Ruifang [2025] HKCA 234. The guideline starting point for trafficking in cocaine upon a conviction after trial, where between 1,500 to 5,000 grammes is trafficked, should now be between 20 to 24 years’ imprisonment.
I do take into account the defendant’s admission was not an exact amount when he said 2,000 grammes. Here, 1,500 grammes would attract a 20-year term of imprisonment, whilst 2,000 grammes of cocaine would mathematically speaking attract a starting point of 20 years and 7 months’ imprisonment.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. He admitted his role as a cook in premises set up to manufacture crack cocaine. He also admitted his role as a courier of the finished product. He agreed to do it for a financial reward. He was not an instigator, a mastermind, nor did he buy the cocaine needed for the process. I accept and take the view he was a cook, a foot soldier and a courier.
Obviously, the role as a cook relates to the first charge of conspiracy to manufacture. I do not enhance the starting point in this conspiracy to traffic because he manufactured crack cocaine. The sentence for Charge 1 will reflect that role and the elements of that charge.
This means that the starting point for Charge 2 is to be determined by the relevant tariffs and the estimated quantity of dangerous drugs he admitted he trafficked. Therefore, for the third step, taking into account it was an estimate, I find 20 years’ imprisonment appropriate with reference to the latest sentencing guidelines for Charge 2.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. There are no aggravating factors. I have been urged to reduce the starting point to reflect what is suggested to be quite exceptional mitigation in this case.
The defendant did voluntarily surrender himself to the police and he revealed his own role in a crime of which the police were unaware.
This is relevant to mitigation. It does not affect the starting point. It is appropriate to consider this after I have applied the discount to the starting points I find appropriate.
However, I will say here that although normally a surrender by a person whose participation in an offence may not otherwise have come to light would be significant mitigation, in this case, the defendant did it to save his own skin, so to speak. He did not do it because he felt a pang of conscience or regret, but because the police may have been the lesser of two evils. It would be fair to assume that if drugs had not gone missing, it would have been business as usual and he likely would have continued to manufacture crack cocaine for his co-conspirators. Nevertheless, it is good mitigation. I will deal with this mitigation at the end as it applies to both charges.
The defendant pleaded guilty at the earliest opportunity, and he would normally benefit from a one-third discount. Here, the defence suggests that he should in fact be entitled to a larger discount because he has provided meaningful assistance.
The prosecution does not dispute that his information led to the arrest of a co-conspirator who will stand trial next year. Although he has indicated he will, at this stage, the defendant has not yet given evidence against Tam. If he does, he may very well be in the supergrass category. But until then, I have to confine myself to what has happened to date.
I am of the view that his valuable assistance to the police means he should be, at this stage, entitled to a 40 per cent discount. That 40 per cent discount applied to the starting point of 20 years means the starting point is reduced to 12 years’ imprisonment for Charge 2.
The last step of the six steps is to stand back and look at the overall sentence in order to ensure that it is fair, just and balanced. In all of the circumstances, of not only the effect of the sentence, but also the defendant.
In this case, the sentence of 12 years is substantial and significant, but it cannot be judged for that reason alone to be unfair, imbalanced or unjust in the circumstances and facts here.
Charge 1
As I have said above, those that manufacture dangerous drugs often receive heavier sentences than those who traffic dangerous drugs.
Since there is a second charge of conspiracy to traffic and the estimated amount is quantifiable according to the defendant’s own admission, the starting point I considered appropriate for Charge 2 is relevant to this charge. This was not a case of renting a hotel room for one night to cook crack cocaine. An operation was set up solely for that purpose. Possibly two premises were set up for that purpose.
I have taken into account all mitigation and those factors I find relevant and increase the starting point of 20 years’ imprisonment that I found appropriate for Charge 2 by 2 years to reflect the seriousness of this conspiracy to manufacture charge. Therefore, for Charge 1, the starting point is 22 years’ imprisonment.
After applying a discount of 40 per cent to that 22 years’ imprisonment, the starting point is reduced to 13 years and 2 months’ imprisonment for Charge 1.
After I have considered the totality principle and the facts of the case together, I will order that the sentences for Charges 1 and 2 be served concurrently.
I have yet to deal with the particular mitigation of a voluntary surrender, and but for that surrender and frank admissions, these offences would not have come to light. I will reduce the sentences of each charge by a further 1 year.
Let me repeat, I sentence the defendant as follows. For Charge 1, I sentence the defendant to 12 years and 2 months’ imprisonment. For Charge 2, I sentence the defendant to 11 years’ imprisonment.
Accordingly, the defendant is sentenced to a total of 12 years and 2 months’ imprisonment.