COURT: The defendant, Chan Tsz-fung, pleaded guilty to the following charges before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
And the 1st count is a conspiracy to traffic in dangerous drugs, contrary to section 4(1)(a) and (3) and section 39 of the Dangerous Drugs Ordinance, Chapter 134 and sections 159A and 159C of the Crimes Ordinance, Chapter 200.
The 2nd count is conspiracy to manufacture a dangerous drug, contrary to Sections 6(1)(a) and 39 of the Dangerous Drugs Ordinance, Chapter 134, and also sections 159A and 159C of the Crimes Ordinance, Chapter 200.
The Summary of Facts Admitted By the Defendant
On the day in question, the defendant was stopped by the police as he walked out of a location in Kung Um Road, Yuen Long, as he was acting suspiciously. He disclosed his address to the police and the police gained entry to his home by using keys provided by him. Apart from the keys, the police also found four mobile phones and cash of $104 on the defendant.
Upon search of the home, the police found the following: on the floor of the living room, a brown paper bag containing a resealable plastic bag containing 184 grammes of cannabis in herbal form, that would be Exhibit E1; and a resealable plastic bag containing 1,020 grammes of a solid containing what is called dimethyl sulfone, which is not controlled under the Dangerous Drugs Ordinance, that is Exhibit 2; a black plastic bag containing a resealable plastic bag containing 281 grammes of a mixture, containing 10.6 grammes of cocaine and 39.3 grammes of heroin hydrochloride, Exhibit 3; a resealable plastic bag containing 999 grammes of a crystalline solid containing 700 grammes of methamphetamine hydrochloride, that is ‘Ice’, E4; there is another green eco-friendly bag containing six resealable plastic bag containing 2,554 grammes of a solid containing dimethyl sulfone.
On the table of the living room, there were two electronic scales, a large quantity of resealable plastic bags, and an electric sealer.
Under caution upon arrest for trafficking in dangerous drugs, the defendant admitted he was unemployed, so he helped others to guard the warehouse and sell dangerous drugs for money.
In a subsequent video-recorded interview, the defendant said the following under caution. He helped someone called Ah Fai to guard the warehouse in return for the salary of $30,000 to $40,000. About half a year before he was arrested he received keys from Ah Fai. He was the only person who had the keys to this location and he had to pay rental of $6,000 to live there.
He said the Exhibit E1 and E2 were cannabis and ‘Ice’, E3 and E4 were cocaine and ‘Ice’. He collected them two weeks before the arrest. He said the other ingredients were poured into the ‘Ice’ and the scales were used for weighing the dangerous drug. The resealable plastic bags were for packaging. Of the mobile phones seized from him, one was for contacting others, one for taking pictures, one for contacting customers, and one was for his private use.
The estimated street value of the dangerous drugs were as follows. E1 is the cannabis, HK$39,192. E4, that is the ‘Ice’, HK$815,184. E3, that is the mixture of cocaine and heroin hydrochloride, if all sold as heroin, HK$334,109, if all sold as cocaine, range from HK$285,215 to HK$377,102.
Background and Mitigation
According to the antecedent statement the defendant was born in 1989 is now 35 years of age. He has four previous convictions, two of them were trafficking in dangerous drugs in 2011. The other two were offences of violence, AOABH and fighting in public place. He was educated up to Form 5 level. He used to work as a highway maintenance worker. He was unemployed at the time of offence and the defendant claimed to be a cocaine abuser.
Mr Paul Leung, counsel for the defendant, gave more information of the defendant to this court. The defendant is a divorcee. He used to work as a furniture assembler earning $20,000 per month. But during COVID, he lost his job because the furniture could not be delivered to Hong Kong from the Mainland. The defendant was declared a bankrupt in late 2020. And defendant has a 10-year-old daughter who lives with his ex-wife and he is not supporting the daughter.
As defendant was made a bankrupt, he was unable to meet the financial needs of himself and his family. Through an old friend, Ah Fai, offered him a job in guarding the warehouse with dangerous drugs and to act according to Ah Fai’s instruction in return for a payment of $30,000 to $40,000 per month. Defendant has to pay $6,000 to rent the place, it was Ah Fai who taught him how to manufacture dangerous drugs.
Mr Leung referred this court to the sentencing guidelines for the dangerous drugs involved in this case and the result of three tests for my consideration. That is the absurdity, the conversion, and the ratio tests.
Mr Leung accepts that the defendant’s previous drug-related convictions amounts to an aggravating factor but asked this court not to increase the starting point as the convictions were more than 10 years ago. On the other hand, Mr Leung accepts that the presence of more than one drug amounts to an aggravating factor.
Mr Leung submitted that the defendant is remorseful and promised to start afresh. The defendant plans to study and acquire skills and knowledge in the fields of construction and decoration while in gaol. The defendant asked this court to pass the most lenient sentence on him.
My Consideration for Sentence
Conspiracy to traffic in dangerous drugs and to manufacture dangerous drugs are both serious offences. A person convicted of these offences on indictment is liable to life imprisonment and a fine of $5 million.
So I will consider the appropriate sentence for the conspiracy to manufacture dangerous drugs first.
For the offence of manufacturing, this court has to bear in mind that manufacturing is much more serious than the trafficking or possession of dangerous drug. A person involved in the manufacturing process was clearly nearer to the source of evil than a trafficker and deserve a heavier sentence. The authorities are Wong Chun Ping and Others v R, R v Cheng Wai Kwong and Another, and also HKSAR v Ip Yuet Ho.
The factors to be taken into consideration include the quantity of dangerous drug which was only one factor to be taken into consideration, 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 drug, and the role played by the defendant.
Now, the defendant here admitted having collected 2,554 grammes of a solid containing dimethyl sulfone, which was an ingredient he poured into the ‘Ice’. The defendant manufactured ‘Ice’ for around 3 months prior to his arrest. 700 grammes of ‘Ice’ was found at the scene. The operation does not appear to be substantial or sophisticated, the defendant acted alone, the scale of operation was small.
I am of the view that a starting point of 22 years and 6 months is appropriate for this offence of conspiracy to manufactured dangerous drugs.
The defendant entered a timely plea and is entitled to full one-third discount. So with the discount, the sentence is 15 years.
For the other offence, the conspiracy to traffic in dangerous drugs, I will adopt the seven-step approach in the case of Majharul.
The first step of the different drugs involved, 184 grammes of cannabis in herbal form, mixture of 10.6 grammes of cocaine and 39.3 grammes of heroin hydrochloride and 700 grammes of ‘Ice’, I will use ‘Ice’ as the base drug due to its potency and higher quantity.
Then the second step, according to the sentencing guidelines for the trafficking of ‘Ice’, that is the case of Tam Yi Chun and Abdallah, 700 grammes of ‘Ice’ falls into the 600 to 1,200 grammes band, with a starting point of 20 to 23 years. So a notional starting point of 20 years and 6 months would have been appropriate for the trafficking of this amount of dangerous drug.
However, the defendant is convicted of a conspiracy to traffic ‘Ice’ and other drugs, so I am of the view that a starting point of 21 years is appropriate here.
The third step, I have to consider how much increase I need to do on top of the 21 years for the ‘Ice’, for the conspiracy to traffic ‘Ice’.
Now, according to the sentencing guidelines for the trafficking of cocaine and heroin, that is Rojas and Lau Tak Ming, a mixture of 49.9 grammes of these two drugs falls into the 10 to 50 grammes band, with a starting point of 5 to 8 years. As for the 184 grammes of herbal cannabis, I will not take that into account.
Now, assuming 49.9 grammes of cocaine and heroin were ‘Ice’, 749.9 grammes of ‘Ice’ would attract a starting point 20 years and 9 months. Now that is the absurdity test.
By converting the cocaine and heroin to ‘Ice’, it would amount to 24 grammes of ‘Ice’. So the starting point for 724 grammes of ‘Ice’ would be 20 years and 7 months. And the ratio test will result in a starting point of 20 years and 8 months.
So one can see there is not much difference with the three tests in the quantity of ‘Ice’, as the quantity of ‘Ice’ is much larger than that of the cocaine and heroin. I am of the view that the notional starting point of 21 years should be increased by 3 months to allow the quantity of the other drugs.
The fourth step, the defendant was dealing with several types of drugs which is an aggravating factor. I further enhanced this notional starting point by 3 months. So by now the notional starting point is 21 years and 6 months.
The fifth Step, the defendant acted both as a manufacturer and trafficker. He had two previous convictions of trafficking in dangerous drugs which was more than 10 years ago. I am of the view that a further increase of 3 months is appropriate. So now the notional starting point is 21 years and 9 months.
The sixth step, the defendant pleaded guilty at the earliest opportunity and is entitled to a full one-third discount.
So the sentence would be 14 years and 6 months.
Now the final step, the seventh step, I will step back and consider the totality. So I am of the view that a total sentence of 16 years and 6 months would properly reflect the criminality involved and would not be unfair or unjust in this case.
So the actual sentence for the 1st count, conspiracy to traffic in dangerous drugs, 14 years and 6 months. The 2nd count, conspiracy to manufacture dangerous drug, 15 years’ imprisonment, 2 years of which to run at the expiration of the 14 years and 6 months imposed on the 1st count. So making a total of 16 years and 6 months.