CRIMINAL CASE NO. 234 OF 2010
COURT: You were originally charged with two counts on the indictment, the first being manufacturing a dangerous drug and the second being trafficking in a dangerous drug.
The particulars of the first count were that on 15 December 2009, at an address provided, you unlawfully manufactured a dangerous drug, namely, cocaine.
On 28 January this year at a pre-trial review you indicated your intention to plead guilty and if necessary to assist the prosecution by giving evidence.
On 21 February this year you entered pleas of guilty to each of those charges. Thereafter, the prosecution amended the charge against your co-accused Faraz, the 1st count then alleging a conspiracy to manufacture dangerous drugs involving you, a person named Zeeshan Mushtaq who was nicknamed ‘Shani’, Tahseen Safder who was nicknamed ‘Small Michael’ and Shabir Hussain nicknamed ‘Ah Sen’, together with your former co-accused Qayyum Faraz.
You did give evidence in the course of the trial relating to Faraz. Your evidence was the only evidence that was tendered by the prosecution in respect of the conspiracy charge. In respect of the conspiracy charge that implicated Faraz, it is plain that the charge was amended from one of the two of you having manufactured the cocaine to a wider ranging conspiracy based upon the statements which you made to the police.
At the conclusion of the trial, Faraz was acquitted unanimously by the jury in respect of both counts.
The charge relating to trafficking in the dangerous drugs set out the quantities and nature of the drugs which were found in the premises on 15 December 2009. They were 204.63 grammes of cocaine hydrochloride and 142.58 grammes of cocaine, as well as 2,440.43 grammes of cannabis resin.
The Summary of Facts which you agreed for the purposes of your plea indicated, and at this level coincided with the evidence that you gave, that at 9.28 pm on that day the police, who had been keeping watch on the premises, heard some noises emanating from the flat and looked out of their ambush post and saw Faraz leaving the flat followed by you.
You were then seen to lock the main door of the flat, whereupon the police moved forward to apprehend both of you. There was a struggle between you and the police officer who arrested you and he was eventually able to recover the key to the flat from you by force.
When the police entered the flat with the two of you, the flat was found to be empty of any furniture except a wall unit, and the only other items found in the flat were the drugs and the equipment used for manufacturing.
You accepted in the Summary of Facts that was read to you that there was equipment present in the flat and it was clear from the evidence before this court during the trial of Faraz that drugs manufacturing had been conducted there.
Your fingerprint was found inside the flat and your DNA was found in a large number of locations in the flat, including on a number of cigarette ends. A headscarf which you were wearing at the time was found to be impregnated with cocaine.
You also agreed in the Summary of Facts read to you that the process described in that Summary of Facts was one which you followed, which had the effect of converting cocaine hydrochloride into what is commonly known as crack cocaine. You also accepted that you had manufactured the drugs by converting the cocaine hydrochloride into crack cocaine.
The drugs overall had a value of some $688,000.
There are two issues which it seems to me I have to decide. First that is the appropriate starting point on the manufacturing charge and secondly the extent of the discount which you are to receive.
It is now well settled that this goes back to the decision of Cheung Wai Kwong. It is clear that for the offence of manufacturing of dangerous drugs the quantity of drugs found is, of course, relevant, but this is not the only factor to be taken into consideration.
In deciding the proper sentence for such offence, the court should also consider the scale of the operation, the capacity of the equipment and whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused.
The evidence that you gave in the trial of Faraz is that this was an ongoing operation which if the dates to which you testified in evidence-in-chief and in cross-examination were correct, had endured for approximately 3 weeks at the time of your arrest. But if, as you subsequently claimed, those dates were incorrect and should have been a month to a month and a half earlier, the duration of the manufacturing would have been 2 months or more.
Whatever the actual duration may have been, it is clear, particularly given that these premises were leased in August 2009 for a 2-year period and were used exclusively for the manufacture of drugs, that it was intended that this would be an ongoing project. That is clear, even from evidence independent of that which you gave.
It was your evidence that you were processing between 500 grammes and a kilogram of cocaine every approximately 2 days. It would not be appropriate for me to find that that was the exact scale of the operation, but what it does indicate was that this was not a minor one-off event on the day of your arrest and the very quantity of cocaine found is consistent with an operation which could be described as substantial or significant.
It has rightly been pointed out to me by Mr Dunn on your behalf that this was not a sophisticated operation. It did not need to be because - and the evidence is clear about this - the manufacture of cocaine hydrochloride into crack cocaine is itself a very simple process which can be carried out with nothing other than equipment bought in a supermarket. Other than the cocaine hydrochloride, the only substance required is bicarbonate of soda which is readily and freely available.
The case of Cheung Wai Kwong was followed by the Court of Appeal in Wong Ping Kay, and it was accepted that the observations of the Court of Appeal regarding the distinction to be drawn between manufacturing and trafficking in dangerous drugs remained relevant, and indeed Wong Ping Kay was more recently followed by the Court of Appeal in Kan Kong Fai.
That last case is of interest in that it appears to suggest that a factor of 1.6 or 1.8 might be an appropriate multiplier to use to suggest an appropriate starting point when comparing manufacturing dangerous drugs with trafficking in dangerous drugs.
Facts vary from case to case, obviously, and I do not believe it is particularly helpful to say that one would take the starting point following on guidelines for trafficking in drugs and then simply multiply it up. Sentencing is in part rather than an arithmetical exercise. Certainly, however, to have some regard to the sentence that would be appropriate for trafficking in the drugs would be helpful, for the courts have consistently adopted the approach that sentences for manufacturing the same quantity of drugs will be higher.
Looking, then, at the appropriate starting point for the cocaine - and just the cocaine, not the cannabis - on the basis of a charge of trafficking there was in aggregate 347.2 grammes of cocaine, whether in hydrochloride or base form, which falls almost exactly three-quarters of the way up the band of sentencing in Lau Tak Ming, dealing with quantities of drugs between 200 and 400 grammes, prescribing periods of imprisonment between 12 and 15 months after trial. Although Lau Tak Ming applies to heroin, of course, it has been extended to cocaine in Pedro Nel Rojas.
Consequently, the appropriate starting point for the cocaine alone in the trafficking charge would be about 14 years and 3 months to be accurate. Taking that into account and the other factors which I have mentioned, it seems to me that the appropriate starting point on the manufacturing count - count 1 - would be one of 20 years’ imprisonment.
It would probably be easiest, then, having starting the calculation, to finish it in regard to the second count because there in that count was also a quantity of cannabis which has to be taken into effect. Once again, the guideline suggests that for quantities between 2,000 and 3,000 grammes of cannabis resin, the period of imprisonment after trial should be between 16 and 24 months.
The quantity here was 2,444 grammes which is almost exactly halfway up the bracket and I would consequently take as a starting point, if I were sentencing for that alone, a 20‑month starting point. Sentencing practice, however, dictates that it is not appropriate to simply add the starting point for the quantity of one drug to the quantity of another drug, but rather to take the more serious drug and make some upward adjustment for the presence of the second drug.
On the trafficking count, it seems to me that the appropriate overall starting point would be one of 15 years’ imprisonment.
I turn now to the question of discount. You are certainly entitled by virtue of your early plea to a full one-third discount from each of the two starting points that I have indicated. Other than that one-third discount, there is nothing in the commission of the offence or in your personal circumstances which justifies any further discount for you.
The only other issue is the fact that you have testified, as you indicated you would do, against Faraz in respect of the conspiracy charge.
I certainly acknowledge the principle that it is appropriate to reward those persons who admit their guilt and are prepared to give truthful testimony against others involved in the offence to receive an additional discount. That varies, on current sentencing practice, somewhere between 45 and 50 per cent in the ordinary course and perhaps as much as 60 per cent where supergrasses are involved. You certainly do not fall into the supergrass category.
The difficulty which I have in this particular matter is that it is plain that the jury, by its verdict, did not accept your evidence. Yours was the only evidence which implicated Faraz as I have already said, and by its acquittal, the jury indicated that it rejected it.
To an extent, your evidence in court was consistent with previous statements which you had made. There were differences. There were differences as to what you told the police about your personal abilities and circumstances. There were differences as to what you told the police and what you said in court between who was present at the time when you were recruited.
You indicated in your initial non-prejudicial statement to the police that Faraz and the person nicknamed Shani had been present and made the offer of employment to you, whereas in your testimony before the jury, you indicated that only Faraz had been present. That of course was a significant difference in the context of this case because the admitted fact was that at the time when you said these events occurred, Shani was in fact already in prison.
I have been helpfully referred by Mr Dunn to the decision of the Court of Appeal in Chan Sau Hing, which dealt with a situation where a judge had deprived a person who had offered to give evidence on behalf of the prosecution of any discount at all, even the one-third discount to which the appellant was plainly entitled by virtue of a plea of guilty.
The Court of Appeal indicated that it was accepted by counsel for the respondent that the testimony of the 1st appellant could be described as up to proof of her witness statement. While there may be some prevarications, they were insufficient to merit a new discount. It is quite clear, in my judgment, that the Court of Appeal recognises there may be circumstances in which no discount at all would be granted but that that was not one of them. The court went on to say:
“In our view, it is not appropriate to analyse at this stage in detail her evidence and her witness statement. What is clear is that the 1st appellant had given evidence as promised. The crux of the matter was that she confirmed that the firm operated for the purpose of cheating people of their money. There is no indication in the Reasons for Sentence that the 1st appellant’s evidence was at variance with the rest of the prosecution’s case against the defendants or that it had in any way affected the prosecution’s case.”
I would interject and say that this case is distinguishable because the crux of the matter here, and the basis of the prosecution’s case of a conspiracy to defraud, was based upon your statements. There was a significant variation in your statement which I have already highlighted and the prosecution’s case was dependent entirely upon your evidence which, for whatever reason, was rejected by the jury.
The Court of Appeal went on to say:
“Witnesses should be encouraged to come forward and give evidence. In the case of a defendant who wishes to do so, he is entitled to expect that his sentence would attract a further discount because of his willingness to give evidence against the co‑defendants. Unless it can be demonstrated clearly that a certain aspect of his evidence is totally different from what is contained in his witness statement, we are of the view that the usual 45% to 50% discount should be given. Judges should be circumspect in disallowing the proper discount.”
I note there that another accomplice had given evidence and they had received a 50 per cent discount. It seems to me that this case that involves you is factually different from that and whilst I accept - obviously have to because I am bound by the principle that is enunciated - that should not be taken as proscribing that the mere fact of giving evidence, where that is the only evidence for the prosecution, which is completely rejected by the jury entitles you to the full discount. If that were so, then it would be open to any accused to plead guilty, to give evidence which was absolutely unfounded and then still to expect a 50 per cent discount.
It must be that the principle is to encourage people to give evidence truthfully, not falsely in the hope of securing for themselves an added benefit which was your expressed reason for wishing to give evidence in statements which were evidence in the trial against Faraz and which you claimed you could not remember saying at the time you were being interviewed for those statements.
I do not, for one moment, suggest that a person who elects to give evidence would only receive the additional discount in the event of a successful prosecution. But in the circumstances of the present case, it seems to me that although you expressed your willingness to testify, and did testify, the evidence that you gave was such as not to warrant any further discount than the one-third for your plea of guilty.
The consequence is that the 20-year sentence on count 1 falls to be reduced to one of 13 years and 4 months imprisonment, and the 15-year sentence on count 2 falls to be reduced to 10 years by virtue of your pleas of guilty in respect of those two offences.
The trafficking in the dangerous drugs was obviously interwoven with the manufacture of them or vice versa. I do not take the view that the presence of the cannabis would justify making the second sentence anything other than wholly concurrent with the first sentence.
The result is, on count 1, you are to serve 13 years and 4 months’ imprisonment; on count 2, 10 years. The two sentences are to be served concurrently with one another. In total: 13 years 4 months’ imprisonment.