CRIMINAL CASE NO. 377 OF 2011
COURT: All three of you have pleaded guilty before the start of this trial, and will receive full credit for doing so.
The facts are straightforward and reveal, as counsel for the defence have rightly recognised, a serious offence both as to the manufacturing of cocaine, which the 1st and 2nd defendants have admitted, and as to doing an act preparatory to manufacturing the cocaine, admitted by the 3rd defendant.
In short, police conducted a brief surveillance operation in which they observed all the defendants at one time or another. This revealed that the 3rd defendant, Chen Shun‑to, was purchasing various items essential to the manufacturing operation. He was seen to do so on 26 and 27 March last year. These were chemicals and various hardware items.
The 1st defendant, Lau Nai-wai, was seen in the 3rd defendant’s company on both of those dates while the 3rd defendant was making purchases. The 1st defendant was also seen in the vicinity of Sheung Shing House, which I will call “the factory”.
On the next day, 28 March, the 1st and 3rd defendants were together when a woman gave them something, which it turns out now was to be used to help in stirring the cocaine while it was being purified, and then they were seen with the 2nd defendant at a restaurant.
Eventually, the 1st and 2nd defendants were seen to go to Sheung Shing House. The 3rd defendant never went into that address, but he was seen close by.
On the following day, 29 March, the police raided the factory, where they found the 1st defendant standing just outside the kitchen, whilst the 2nd defendant was caught in front of the stove, tending to some large pot which was filled with cocaine, and it now turns out that the quantity of drugs was 1.28 kilogrammes inside a solid weighing 1.31 kilogrammes, the value of which on the street would have been just over $1,321,000.
All the chemicals for manufacturing cocaine, in the sense in this case of purifying the cocaine, were present in the factory, together with weighing and also drug packaging paraphernalia, and the photographs I am shown this morning speak for themselves.
The 1st defendant said immediately that he was helping “a mainland guy” to entertain the 2nd defendant, who was the one who was cooking the “Ho Lok”, as he called it. The 1st defendant had on him three mobile telephones and also over $15,000 in cash.
Later, in an interview with the police, he explained that he was being paid at the rate of $5,000 a day to allow his flat to be used for the manufacture of cocaine. He referred to someone - it is agreed on behalf of the 3rd defendant that this was the 3rd defendant being referred to - but the 1st defendant referred to someone called “Ma Lau” or “Monkey”, who he said had introduced him to the person who wanted cocaine to be manufactured, and he agreed also that he had been on shopping trips with the 3rd defendant.
It is plain that the 1st defendant, who is now aged, I think we agreed, 55, was deeply involved in this enterprise from the fact that he had allowed his flat to be used to produce cocaine and from the general role he had been observed to have played, but in addition to that, the evidence reveals that a very large number of telephone calls between himself and the 3rd defendant had taken place on the days leading up to his arrest, and I will refer later to that aspect of the case.
The 1st defendant has a long history of criminal offences, but of these, only one of them really has real relevance, and it is the conviction in 1999, when he was sentenced to a total of 8½ years’ imprisonment on two charges of trafficking in dangerous drugs. This appears to have had no deterrent effect whatsoever.
In mitigation, aside from the 1st defendant’s plea, Mr Khosa has referred to the fact that Mr Lau did indicate a plea of guilty before becoming aware of the statement made by the 2nd defendant which had implicated him. It is also, as Mr Khosa has pointed out, the fact that the case was effectively nipped in the bud, so that ultimately none of the cocaine found its way onto the market. He suggested that the mastermind behind the case appears to be a mainlander who was financing the whole affair. In any event, it certainly was not, it was submitted, the 1st defendant. I was also invited not to make an order for costs, or at least a partial order for costs, in relation to the $15,000 found in the 1st defendant’s possession.
Now, I am going to take the 2nd defendant in a moment, but just turning to the 3rd defendant’s case, while the factory was being raided in Ngau Tau Kok, a simultaneous visit was made by the police to the 3rd defendant’s flat in Wong Tai Sin. In his possession was a piece of paper, and on that paper were listed a number of chemicals; also other equipment. Dr David Chan Tai-wai lists the items, two of which were acetone and kerosene, both of which were found, of course, in the 1st defendant’s flat. Also on the list were sulphuric acid and ethanol and a piece of filtration apparatus.
In addition, the 3rd defendant had three mobile telephones, just like the 1st, and one of the numbers used by the 3rd defendant had been used in no less than 129 calls between himself and the 1st defendant between 15 and 29 March 2011, and 91 of those calls were between 26 and 29 March. Again, the 3rd defendant, who is aged 32, was plainly deeply involved, and it is worthy of note that the offence to which he has pleaded guilty is one which carries the same maximum sentence as the offence of manufacturing.
In my opinion, it makes very little difference, and plainly the legislature thinks the same, as to who was actually stirring the pot in the kitchen, who lent the premises and other assistance to the whole crime, or who was supplying the chemicals from the outside, making very sure he did not get his fingerprints on the inside of the premises.
Added to that, the 3rd defendant, like the 1st, is no stranger to the courts in that he has served a 6‑year sentence for trafficking in dangerous drugs. That was as long ago as 2002, but again it seems to have completely failed as a deterrent.
I am not entirely impressed by the suggestion that the defendant is remorseful as both he tries to make out, and, on his behalf, his counsel. It will not be held against him that as recently as up until this morning he was trying to make out that he was unaware that cocaine was being manufactured, and trying to get himself a lighter sentence by saying it was ketamine. That will not be held against him, but it does not exactly show a remorseful state of mind.
I have taken into account the four letters which are before me, and of course, as I have said, his plea.
Now I turn to the 2nd defendant. The 2nd defendant is, I think, 41, and before he came to Hong Kong from Peru he had been engaged in extracting the narcotic content from the leaves of the coca plant. To put it another way, he was in the cocaine trade. And let there be no doubt about it, that is why he was needed in Hong Kong. Ms Crebbin has realistically recognised that there was, in this case, no defence of duress which could possibly be put forward on the 2nd defendant’s behalf.
Those who are mixed up in the drugs trade must expect sometimes that problems with their personal life will occur. When the call to go to China came, where, incidentally, the 2nd defendant had been twice before, he answered the call, no doubt spurred on to some extent by what might happen to members of his family if he did not go. By being part of this filthy trade, it is a risk you take. It is the way the drugs world works; it always has. You were not the innocent farming peasant that you tried to make yourself out to be, drawn into something you knew little or nothing about. You were the skilled hand at extracting and purifying cocaine. There is no other reason why people went to the trouble of bringing you from Peru to Hong Kong.
Now, again, Dr David Chan, the forensic scientist in this case, has set out the method by which cocaine is extracted from coca leaves, and he does that at page 206 in the bundle, and in that, he sets out five stages of purification, and the items found inside the factory in this case, such as kerosene and hydrochloric acid, sodium carbonate, ammonia and acetone, are all consistent with the various stages of purification, and the other paraphernalia found with those chemicals showed quite clearly that cocaine purification had been taking place.
So in the case of the 2nd defendant, again, apart from his plea of guilty, it has been suggested that he was a peasant farmer; while not selling mobile telephones or driving a lorry or growing potatoes, was just a normal peasant farmer. I said quite clearly to Ms Crebbin I do not accept that mitigation. It is rejected out of hand. From a very young age, you were able to extract, on your own admission, cocaine from the leaves of the coca plant, and that is common ground, and that is why you were brought over to Hong Kong to help with this factory.
Now, the 2nd defendant, to his credit, gave to the police a statement in which he implicated the 1st defendant, and he will receive credit for that, even though in the end it had no bearing on the 1st defendant’s decision to plead guilty. When the 1st defendant decided to do that, he was not aware of the 2nd defendant’s statement against him. I also have Ms Crebbin’s full written mitigation speech, and I have considered that in its entirety.
Now, it is impossible, in this case, to say that this was not a relatively sophisticated operation, because the gang had involved the 2nd defendant by bringing him all the way over from Peru, and it is quite obvious that the financial gains expected were very considerable. Manufacturing dangerous drugs is usually regarded as more serious than trafficking, as was indicated in R v Cheung Wai Kwong [1997] 3 HKC.
I consider on Count 1 that the starting point should be, in view of the large amount of drugs known to be involved in this case and the nature of the operation, 23 years’ imprisonment, albeit the fact that this was manufacturing could well have called for enhancement above the trafficking guidelines in Abdallah [2009] HKLRD 437. In addition, the 1st and 3rd defendants both have previous convictions for trafficking, and in the 2nd defendant’s case, he had travelled from a place far away to bring a foreign element to this case. Nevertheless, I think a 23-year starting point appropriate.
Will the 1st defendant please stand? Taking all the factors in your case into account, the sentence on you will be one of 15 years and 4 months’ imprisonment. There will also be an order that you pay towards the prosecution costs $15,000, and I may say that is a very small contribution, but I make it because of the cash you had in your possession.
Mr Delaney, there is a small balance, and that can go back to the prisoner.
MR DELANEY: My Lord.
COURT: Yes, sit down, please. Could the 2nd defendant please stand? There is a particular factor in your case which enables me to reduce to a