HKSAR v. SITU HAO STEVEN AND ANOTHER

HCCC 203/2024

[2025] HKCFI 5485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 203 OF 2024

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REASONS FOR SENTENCE

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The Charges

1.  On 20 August 2024, in the Eastern Magistracy, the 1^st defendant and the 2^nd defendant pleaded guilty to one count of conspiracy to manufacture a dangerous drug, namely, cocaine, and one count of trafficking in dangerous drugs, involving 576.66 grammes of a solid containing 382.78 grammes of cocaine and 503.09 grammes of a solid containing 472.72 grammes of cocaine hydrochloride.  On the same day, they admitted a Summary of Facts dated 28 May 2024 and they were committed to the Court of First Instance for sentencing.  Today, before this Court, the two defendants confirmed their guilty pleas to the two charges and their admission of the Summary of Facts.

Facts Admitted

2.  The facts of the case can be summarized as follows. 

3.  On 12 November 2021, the police intercepted the 1^st and 2^nd defendants outside Meilan Building in Mong Kok and they were escorted to Room C on the 2^nd Floor of Meilan Building.  The police gained entry into Room C with a key found from the 1^st defendant’s trousers pocket.  Upon a body search, keys to Room C were also found from the 2^nd defendant’s trousers pocket.  

4.  The police entered and searched the premises and found there the dangerous drugs as set out in the trafficking count.  Apart from the drugs, the police also found some quantities of Part 1 poison and sodium bicarbonate.  There were also paraphernalia in the premises including an induction cooker, a metal pot, metal trays, an electric fan, a drying device, two electronic scales, a dough roller, a hair dryer, an electric fan and a heat-sealing machine, some of which were found to contain a small quantity of cocaine.

5.  On 12 November 2021, a Government Forensic Scientist inspected Room C and the items there.  He was of the opinion that the cocaine hydrochloride and the sodium bicarbonate found at Room C could respectively be the starting or alkaline material for preparation of crack cocaine which was the product of a cocaine base manufacturing process and the paraphernalia found there could have been associated with the process.

6.  A rental agreement in respect of Room C was later found at the 2^nd defendant’s home. 

7.  There was a total of 503.09 grammes of a solid containing 472.72 grammes of cocaine hydrochloride with an estimated street value of $520,195; and a total of 576.66 grammes of a solid containing 382.78 grammes of cocaine with an estimated street value of $596,266 (for cocaine in powder form) or $1,008,002 (for cocaine in crack form).

The 1^st defendant’s admissions

8.  The 1^st defendant was arrested at the scene for manufacturing a dangerous drug.  Under verbal caution, he admitted that in order to earn $500, he had gone to Room C with “Chi Wai” (i.e. the 2^nd defendant) to manufacture dangerous drugs.  In a subsequent video-recorded interview held under caution, the 1^st defendant admitted that:

(a) he had known the 2^nd defendant for 10 odd years;

(b) in about October 2021, the 2^nd defendant wanted to rent Room C, and so he went there with the 2^nd defendant for inspection;

(c) after renting Room C, the 2^nd defendant gave him one set of the keys to Room C;

(d) only the two of them had the keys to Room C and he had visited Room C for 6-7 times;

(e) he and the 2^nd defendant had purchased the baking soda together.

The 2^nd defendant’s admissions

9.  Under verbal caution, the 2^nd defendant admitted that as he knew he could earn $5,000 each time, he had asked “Ah Ho” to manufacture dangerous drugs with him.

10.  In a subsequent video-recorded interview under caution, the 2^nd defendant admitted that:

(a) he had known the 1^st defendant for about 11 years;

(b) before being intercepted by the police, he and the 1^st defendant were manufacturing dangerous drugs in Room C;

(c) the 1^st defendant helped the process by passing the tools to him and weighing the drugs and baking soda;

(d) in early October 2021, he had come to know “Alex” on Facebook who offered him the job of manufacturing dangerous drugs;

(e) he went to Room C for the first time on 11 October 2021; and on 11 November 2021, he started to manufacture dangerous drugs in Room C;

(f) in the afternoon on 11 November 2021, Alex had told him someone would deliver dangerous drugs to him; and in the evening, the dangerous drugs were delivered to him;

(g) he described the way he manufactured the dangerous drugs by mixing, cooking, drying and weighing the drugs;

(h) he would receive $5,000 for cooking that quantity of dangerous drugs and he had offered to pay the 1^st defendant $2,000 out of the $5,000.

11.  The two defendants also admitted in the Summary of Facts that at all material times, they had conspired with persons unknown to unlawfully manufacture cocaine; and they had unlawfully trafficked in the subject dangerous drugs as set out in the 2^nd charge.

Background and Mitigation

12.  The 1^st defendant is 30 years of age, married with two children.  He was born in the Mainland and had received education up to Form 4 level.  He came to Hong Kong in 2007.  He had worked as a salesperson, an insurance agent, a construction worker and a transportation worker respectively and he was the sole breadwinner of the family.  He is not a drug addict and has a clear record. 

13.  In mitigation, Ms Wu, counsel acting for the 1^st defendant, submitted that he had committed these offences due to financial difficulties as he had become unemployed due to the economic downturn and the Covid-19 pandemic.  The 1^st defendant had under-estimated the seriousness of the offences and their legal consequences as he thought he was only assisting the 2^nd defendant and he was not the person responsible for the actual “cooking” of the drugs.  It was maintained that the 1^st defendant was not the mastermind and he had only joined the conspiracy at a later stage by taking up a relatively minor role of assisting the 2^nd defendant.  Ms Wu thus pleaded for the most lenient sentence that could be imposed on the 1^st defendant.

14.  The 2^nd defendant is 31 years of age and has a clear record.  He was born in the Mainland and came to Hong Kong in 2006.  He completed his secondary education in 2012 and later became a baker.  In 2018, he got married and his first son was born.  In the next year, his second son was born and he lost his job.  In 2019, the Covid-19 pandemic arrived and he could not find any job and the family had little savings.  The 2^nd defendant was therefore desperate in trying to look for a job and in early October 2021, he was approached by a person known as Alex on Facebook who offered him the job for a reward of $5,000 and asked him to rent the premises, which he did on 11 October 2021 for two years.  Alex told the 2^nd defendant that his job was to manufacture cocaine and gave him instructions to buy the cooking ingredients and the tools.  On 11 November 2021, Alex told him to be ready for the drugs.  As he saw himself to be “rather new” to the activity, he called and invited the 1^st defendant to help him do the job at a reward of $2,000 each time.  The 1^st defendant agreed and came to help. 

15.  The 2^nd defendant is remorseful and has written a letter to this Court to express remorse in his own words.

16.  Mr Chau acting for the 2^nd defendant accepted that it is unrealistic to suggest that the operation was meant to be one-off as the premises had been rented for 2 years.  But he contended that there were not many tools found and the operation was that to be undertaken by one person.  It was only because the 2^nd defendant was new to this activity that he engaged the 1^st defendant as a helping hand.  Mr Chau contended that in all the circumstances of the case, the starting point for the manufacturing count should be no more than 20 years’ imprisonment.

Discussion on sentence

17.  I shall start by dealing with the 1^st charge of conspiracy to manufacture a dangerous drug.

18.  In HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, the Court of Appeal gave the following guidance on sentencing the offence of manufacturing a dangerous drug:

(1) The quantity of drugs involved in a drug-manufacturing offence was extremely difficult to determine since the drugs seized represented only the quantity manufactured but not yet sold. It would be inappropriate to base a sentence solely or mainly on the quantity seized, in contrast to drug‑trafficking offences where the quantity involved was fixed. Sentences for manufacturing offences were far heavier than those of trafficking offences involving the same quantity (see paras. 25–26).

(2) The starting point for manufacturing offences must be based on the overall circumstances of individual cases. The quantity seized at a manufacturing workshop must be a relevant factor as that showed, to some extent, its size and productivity, and reflected the seriousness of the offence. Further, the length of time the workshop had operated, its scale and productivity, the quantity and standard of manufacturing paraphernalia, the extent of the defendant’s participation and role were all important factors (see paras. 30–32).

(3) The appropriate starting points for drug-manufacturing offences were as follows:

(i) If the manufacturing act was one-off rather than continuous, a starting point slightly higher than that for trafficking in the same quantity of drugs might be appropriate. However, the starting point for manufacturing offences, even where only a small amount of drugs were seized, should not be less than 10 years’ imprisonment, unless the manufacturing act was just nominal (see paras. 27, 33).

(ii) If the manufacturing act was continuous, and the workshop was of considerable scale and productivity involving a large amount of chemicals and a not insignificant quantity of high-standard manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial (see para. 34).

(iii) For a large-scale, productive and long-running manufacturing workshop, where the defendant played an active and important role, and an exceptionally large amount of drugs was seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence (see paras. 35–36).

19.  According to the above principles, this Court should not base a sentence solely or mainly on the quantity of dangerous drugs seized but should consider all the circumstances pertaining to the operation including its nature and extent.

20.  The 1^st charge alleged the offence to have taken place between an unknown date in October 2021 and 12 November 2021, i.e. for a period of a month or so.  As rightly accepted by Mr Chau, the manufacturing operation was clearly not intended to be one-off.  On the other hand, looking at the paraphernalia seized at the premises, the operation was not very sophisticated.

21.  There was however found on the premises a total of 855.5 grammes of cocaine narcotic content.  According to the latest decision of the Court of Appeal in Huang Ruifang [2025] HKCA 234, the relevant sentencing band for trafficking in cocaine between 500 grammes and 1,500 grammes would be 16 to 20 years’ imprisonment.  With the quantity of narcotic content in question, the notional starting point for the offence of trafficking should be around 17 years and 5 months’ imprisonment.

22.  As observed in HKSAR v Cheng Chi Wai (supra), sentences for manufacturing offences are “far heavier” than those of trafficking offences involving the same quantity.

23.  In the present case, whilst the manufacturing process at the premises was not very sophisticated, it was certainly not intended to be one‑off and it was being operated to produce a very large quantity of cocaine.  The quantity of drugs seized at the scene is a relevant factor that shows, to some extent, the productivity and size of the operation, and reflects on the seriousness of the offence. 

24.  Turning to the roles played by the 1^st and 2^nd defendants respectively.  I accept the submission by Ms Wu that the 1^st defendant was only playing the role of assisting the 2^nd defendant, and that he only joined the conspiracy at a later stage.  On the other hand, I find that the 2^nd defendant was in charge of the manufacturing operation and had set it up upon the instructions of Alex, including having obtained a tenancy at the premises for a period of two years.

25.  Bearing in mind all the circumstances pertaining to this operation, I shall adopt 20 years’ imprisonment as the notional starting point for the charge of conspiracy to manufacture a dangerous drug.  Given the lesser role played by the 1^st defendant, I shall discount that by one year to come to 19 years’ imprisonment as the starting point in his case.  Whereas the 2^nd defendant was the person in charge of the operation, I shall use 20 years’ imprisonment as the starting point to sentence him.

26.  Turning to mitigating factors. The Court of Appeal has repeatedly held that personal circumstances and financial difficulties count very little in cases as serious as the present one: see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at §73.  The strongest mitigating factor in this case is the defendants’ timely guilty pleas.  I will give the full one-third discount to each of the defendants, and that brings the sentence for the 1^st charge down from 20 years to a sentence of 13 years and 4 months’ imprisonment in the 2^nd defendant’s case; whereas the sentence will be reduced from 19 years to a sentence of 12 years and 8 months’ imprisonment in the case of the 1^st defendant.

27.  Turning to the 2^nd charge of trafficking in dangerous drugs. 

28.  In sentencing the defendants, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

29.  The first step is to identify the relevant guideline band applicable to the quantity of the dangerous drugs in question.  As I have said, according to the decision of the Court of Appeal in Huang Ruifang [2025] HKCA 234, the relevant sentencing band for trafficking in cocaine between 500 grammes and 1,500 grammes would be 16 to 20 years’ imprisonment.  With the quantity of narcotic content in question, the notional starting point for the offence of trafficking should be around 17 years and 5 months’ imprisonment.

30.  The second step is to assess the role and culpability of the defendants respectively.  I find that the 2^nd defendant, being in charge of the premises and having recruited the 1^st defendant to assist him, played a more culpable role than the 1^st defendant in trafficking the dangerous drugs in question.  

31.  The third step is to decide where within the relevant guideline band the defendants should come.  The role of the defendants was to possess the dangerous drugs for onward supply to others.  I shall increase the notional starting point by 1 year and 1 month in the case of the 2^nd defendant, making it 18 years and 6 months’ imprisonment.  Turning to the case of the 1^st defendant, as he was only recruited by the 2^nd defendant as a helping hand, his role was relatively less serious.  I shall use a notional starting point of 18 years’ imprisonment in his case.

32.  Turning now to mitigating factors.  As I have said, personal circumstances and financial difficulties count for very little, if any, in cases as serious as the present one.  The strongest mitigating factor in this case is the defendants’ timely pleas of guilty.  I will give the full one-third discount to each of the defendants.  In the case of the 1^st defendant, that will bring the sentence down from 18 years to a sentence of 12 years’ imprisonment. In the case of the 2^nd defendant, that will bring the sentence down from 18 years and 6 months to a sentence of 12 years and 4 months’ imprisonment. 

33.  I consider these sentences fair, just and balanced in all the circumstances of the trafficking offence and of the defendants.  They are therefore sentenced accordingly for the 2^nd charge of trafficking in dangerous drugs.

34.  Turning to the question of totality.  As there is clearly overlap in the culpability of the offences on the 1^st and 2^nd charges, I shall order the sentences imposed on the two defendants for the 2^nd charge to be served concurrently with the sentences to be served by them for the 1^st charge.  Therefore, the overall sentence to be served by the 1^st defendant is 12 years and 8 months’ imprisonment; whereas and the overall sentence to be served by the 2^nd defendant is 13 years and 4 months’ imprisonment.  

Exhibits

35.  An order in terms of the Prosecution’s amended application, not objected to by the Defence, was granted to dispose the exhibits.