COURT: The defendant, Au Chun-wah, was charged with the following two offences, one is manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, now that is the 1st charge. The 2nd charge is trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the same ordinance, 2nd count. He had pleaded before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Admitted Facts
On 31 August 2020, police conducted anti-narcotics operation on the 12th floor of Tak Tai Building in Kwai Chung. A male was seen coming out from Flat K and the police gained entry to the flat.
There were three subdivided rooms inside the flat. When the police requested the person inside Room 1 to open the door, no response was received. And the police broke open the door and found the defendant inside.
Upon execution of a search warrant, the police conducted a search and found the following. First of all, on the tea table and cupboard in the living room:
(1) An electric cooker containing 55.9 grammes of a solid containing 33 grammes of cocaine;
(2) a metal utensil, a spoon and a sieve containing a total of 0.05 grammes of a solid containing cocaine;
(3) a metal plate containing traces of a solid containing cocaine;
(4) a pair of scissors containing traces of a solid containing cocaine;
(5) a plastic box with a pair of tongs containing traces of a solid containing cocaine;
(6) a paper box containing 465 grammes of a solid containing sodium bicarbonate;
(7) a plastic bag containing two plastic bags containing a total of 0.03 grammes of a solid containing cocaine,;
(8) a plastic bottle containing 36 mL of a liquid containing 0.06 grammes of a solid upon drying containing methamphetamine; and
(9) a bottle of cooking wine.
Then inside a red paper bag placed on a cabinet inside the bedroom found the following:
(1) A plastic bag containing 145 grammes of a solid containing 100 grammes of cocaine;
(2) four plastic bags containing a total of 95.7 grammes of a solid containing 64.8 grammes of cocaine;
(3) a pack of resealable plastic bags;
(4) a plastic bag containing 349 grammes of a solid containing sodium bicarbonate;
(5) a pencil case containing one plastic bag containing 14.6 grammes of a crystalline solid containing 14.1 grammes of methamphetamine hydrochloride and a digital scale;
(6) a calculator; and
(7) a box of filter paper.
The defendant also had keys to the room and the flat, cash of $1,130 and two mobile phones. Under arrest and caution, the defendant admitted he helped others to cook the dangerous drugs, ‘Coke’, in order to earn more money.
He also said he would cook the soft drink that is ‘Coke’ and pass it to someone else to earn more money whereas the ‘Ice’ was for his own consumption. He also claimed to use the ‘Ice’ bottle to consume ‘Ice’.
Upon examination on the two mobile phones found on the defendant, three videos showing the manufacturing processes were retrieved.
The police returned to the room with the defendant on the next day that is on 1 September 2020 and another search was conducted. A green nylon bag containing 2.01 kilogrammes of wooden fragments containing 0.46 grammes of methamphetamine and 795 grammes of plastic fragments containing 0.5 grammes of methamphetamine were found on the floor next to the tea table in the living room.
And in the video-recorded interview, the defendant admitted under caution among other things the following. He rented the room and had been living there for about two years. A person named ‘Ka Ho’ recruited the defendant to process the cocaine for a reward of about $3,000 to $6,000.
The defendant had proceeded cocaine for about three times in August 2020 but had not yet received any reward. An unknown person would place the unprocessed cocaine at a flowerbed near Tak Tai Building. The defendant would go and pick up and process it in the room.
After he finished processing, he would phone the friend and then put the product back to the flowerbed to be collected. The defendant would boil the solid cocaine for two to three minutes and then dry it with a fan. After that the cocaine would be packed in plastic bags with 1 ounce per bag.
The defendant also elaborated about how he used various equipment for cooking and packing cocaine. Defendant said he just turned on the electric pot melt the cocaine when the police arrived.
The red paper bag seized contained the unprocessed cocaine given to him by the unknown person a few days ago and the ‘Ice’ was for his own consumption. He purchased it from a friend for $1,500 and the government chemist had examined and certified the narcotic contents of the dangerous drugs seized.
As to the street value of the dangerous drugs seized for cocaine powder was approximately $528,162. If it is in crack form, it is $1,018,640, and as for the ‘Ice’, it is $9,294.
Now upon scene inspection and subsequent laboratory findings, the government chemist gave opinion that the chemicals and the equipment seized from the scene were those commonly associated with the process of making cocaine base from cocaine hydrochloride and manufacturing of cocaine base could have taken place at the scene.
The defendant admitted at the material time inside the room he had manufactured cocaine, that is Charge 1 and unlawfully trafficked in the dangerous drugs particularised in Charge 2.
Background and Mitigation
The defendant was born in 1968, so he is 55 years of age. The defendant had one previous conviction of common assault and was fined $300 in 1984.
According to the antecedent statement, the defendant was educated up to Primary level and had worked as a warehouse staff. The defendant is single and lived alone prior to his arrest.
Mr Yeung Yeuk-chuen, counsel for the defendant, submitted that the defendant was basically a one-man band in the manufacture of cocaine. His trafficking was ancillary to the manufacturing. Mr Yeung submitted that the scale of the operation was small. The defendant used his own residence to do the manufacturing. The capacity of the equipment was also small. The electric cooker contained 55.9 grammes of a solid containing 33 grammes of cocaine.
His home station had been producing or was likely to produce small quantity of drugs. The defendant’s role was at the bottom of the hierarchy. He was a manual worker who obeyed directions and was not the mastermind. Mr Yeung suggested a starting point of 15 years, appropriate for this offence.
Regarding the trafficking of cocaine and ‘Ice’, Mr Yeung submitted that the amount of ‘Ice’ was small in comparison to the amount of cocaine. Although the defendant had claimed the ‘Ice’ was for his own consumption, he had pleaded guilty to trafficking of them.
Mr Yeung accepted that the defendant was not able to claim part of the drugs for his own consumption in accordance with the authority that is Chow Chun Sang.
The defendant and his five siblings all wrote to this Court asking for leniency. The defendant was described as a kind-hearted, loving and responsible person. His relationship with his workmates was good.
The defendant himself claimed that he committed these serious offences due to greed and is now extremely remorseful. Reference was made to the defendant’s mother, who is over 90, not being told of the defendant being incarcerated. The defendant and all his siblings ask for a lenient sentence for his earlier release.
There was also a letter from the defendant’s former company saying that his performance at work was good when he worked as a vice supervisor in the warehouse.
Consideration for sentence
For the offence of manufacturing dangerous drugs and trafficking in dangerous drugs, the punishment is the same. A person convicted on indictment is liable to life imprisonment and a fine of $5 million.
For the offence of manufacturing, this Court has to bear in mind that the manufacturing is much more serious than the trafficking or possession of dangerous drugs. A person involved in the manufacturing process was clearly nearer to the source of evil than a trafficker and deserves a heavier sentence, see the cases of R v Wong Chun Ping and Others [1984] HKLR 247, R v Cheung Wai Kwong and Another [1997] HKLRD 344 and HKSAR v Ip Yuet Ho [2008] 6 HKC 35.
Factors to be taken into consideration include the quantity of dangerous drugs which was just 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 drugs, and the role played by the defendant.
Now the amount of cocaine found was almost 200 grammes. Clearly, the manufacturing station although not substantial was capable of producing 200 grammes or more of cocaine. Bearing in mind the operation had been going on but for the intervention by the police, the defendant would have continued to manufacture cocaine.
There is no evidence that the defendant was the mastermind or of a managerial position. I am of the view that a starting point of 15 years is appropriate for this offence.
Now for the trafficking of cocaine and ‘Ice’, I will adopt the seven-step approach decided in the case of HKSAR v Islam S M Majharul [2020] 3 HKLRD 146.
First step, bearing in mind the difference in quantity, I will use the cocaine as the base drug to do the calculation. The amount of cocaine here is 197.8 grammes.
The second point, according to the case of Lau Tak Ming, the tariff for the trafficking of heroin is used for the trafficking of cocaine, 197.8 grammes falls into the bracket of 50 to 200 grammes with a starting point of 8 to 12 years.
I now have to determine how much this starting point should be increased to allow for the quantity of the other drug, that is the ‘Ice’. The quantity of ‘Ice’, methamphetamine is 15.06 grammes, which would itself attract a starting point of 7 to 11 years as it falls under the 10 to 70 grammes bracket in the case of Tam Yi Chun.
I am grateful to Miss Winnie Mok for the prosecution, who had provided me with the calculation of the three tests, that is the absurdity test, ratio test and conversion test. So the result are 13 years 5.8 months, 12 years and 3.4 months, and 12 years and 7 months respectively. I am of the view that 12 years and 7 months under the conversion test is the appropriate one here.
The fourth point is the level of enhancement for the aggravating factor that two types of drugs were involved. Bearing in mind the relatively small amount of ‘Ice’ when compared to the quantity of cocaine, I will not enhance the starting point.
The fifth point, other aggravating factors. I have to consider the role played by the defendant. The defendant being a manufacturer as well is clearly an aggravating factor, however, as I have already considered the appropriate sentence for his role as a manufacturer, to take such role into account for the trafficking would result in double counting.
So there is no evidence of direct trafficking, the pleas are clearly on the basis of possession of the dangerous drugs for the purpose of unlawful trafficking. So I will treat the defendant as a storekeeper of the drugs.
Having bear in mind the role played by the defendant, I am of the view that a starting point of 12 years 9 months is appropriate.
So the sixth point is the mitigating factor. The only mitigating factor here is the defendant’s timely plea. He is entitled to a full one-third discount, so the sentence for manufacturing dangerous drugs would be 10 years and for the offence of trafficking in dangerous drugs would be 8 years and 6 months.
The seventh point, the last point is the totality. I now have to make sure that the sentence is fair and just. After consideration, I am of the view that a term of imprisonment of 14 years would be fair and just.
So for the 1st charge, manufacturing, the defendant is sentenced to 10 years’ imprisonment. For the 2nd charge, trafficking in dangerous drugs, the sentence is 8 years and 6 months, 4 years of which would run at the expiration of the 10 years imposed on the 1st charge, making a total of 14 years.