COURT: The defendant pleaded guilty to two counts of trafficking in a dangerous drug and one count of manufacturing of a dangerous drug. He comes before me today for sentence.
Facts of the Case
The facts giving rise to the case are as follows:
At about 8.40 pm on 20 November 2020, the police were conducting an anti-drug operation near Flat 10, 10th Floor, Mei King Mansion, To Kwa Wan Road, Hung Hom, Kowloon (“the Flat”). The police spotted the defendant coming out from the Flat carrying a black plastic bag and intercepted him when the defendant was about to enter the lift.
Upon interception, the defendant dropped the black plastic bag onto the floor and attempted to flee. He was eventually subdued on the 6th Floor of the building and was searched, upon which the police found the keys which could be used to open the door of the Flat and Room C inside the Flat (“Room C”). A total of 305 packets containing 161.7 grammes of a solid containing 137.9 grammes of cocaine were found inside the black plastic bag. This forms the basis for Charge 1.
The police entered Room C with the keys seized from the defendant and conducted a search therein, upon which the following items were found:-
On top of a refrigerator in the living room
There was found a plastic bottle containing 5.8 millilitres of a liquid, which contained 3.16 grammes of a solid upon drying, which were found to contain 2.38 grammes of cocaine.
In the open kitchen area
There were found (i) a plastic bag containing 424 grammes of a solid containing phenacetin, which is a Part I poison; (ii) traces of cocaine on a gas stove, two rangehood fan covers, a lid, a skimmer, a pot with a lid, and an electronic scale; (iii) three boxes of soda powder; and (iv) large quantity of resealable plastic bags.
On a nightstand in the bedroom
There were found (i) a HK$20 banknote containing 0.01 gram of a solid containing cocaine and (ii) a plastic bag containing 1.64 grammes of a solid containing 1.4 grammes of cocaine.
In a cabinet of the bedroom
There were found (i) 11 plastic bags, three HK$20 banknotes and one HK$50 banknote folded in packets, three tissue paper packets and one plastic box, altogether containing a total of 129.13 grammes of solids containing 93.98 grammes of cocaine; (ii) traces of cocaine on two electronic scales with covers; a pair of scissors and one sealing machine; (iii) cash in the sum of HK$10,050; and (iv) a crack cocaine manufacturing formula.
A total of 134 grammes of a solid containing 97.76 grammes of cocaine were therefore found inside Room C, forming the basis for Charge 2.
The defendant was arrested and under caution, he admitted that the drug manufacturing tools and the drugs all belonged to him and it was him who ‘cooked’ the ‘raw coke’.
In subsequent video-recorded interviews, the defendant stated under caution that (i) he agreed to process a bottle of pink liquid passed to him by an unknown male for a reward of HK$2,000 to HK$3,000; (ii) that he was instructed by someone who called him to heat the pink liquid by gas stove and to add water and soda powder, converting the liquid into solid cocaine; (iii) that he cut the solid cocaine into pieces by a pair of scissors and put them into plastic bags; (iv) that he bought the soda powder and gas stove found in the Flat; (v) that the HK$10,050 seized inside Room C was given to him by the unknown male; (vi) that the crack cocaine manufacturing formula on a paper found inside Room C was marked by him as instructed by the unknown male; (vii) and that he had received an instruction to pass the cocaine to the unknown male but was arrested before he could actually deliver the drugs.
A government chemist attended the scene for inspection and ran laboratory tests subsequently. Considered collectively, it was the view of the government chemist that the chemicals and paraphernalia seized at the scene were items associated with the extraction process of drug manufacturing, and the processing of cocaine base could have taken place inside the premises. This forms the basis for Charge 3.
The Defendant’s Background and Mitigation
The defendant is now 35 years old. He was born in Shenzhen, China and came to Hong Kong at the age of 8 in 1995 to join his family. He received education up to Form 2 level in Hong Kong. He lived with his parents in a public housing estate. He was previously married but got divorced in 2018 and has a son aged 8 years old.
According to his antecedent statement, his father, aged 70, is retired and his mother, aged 53, works as a security guard. As regards his father, a letter that was written by defendant was handed up today which reveals the circumstances of his father’s ill health. Apart from his parents, the defendant has one elder brother and one younger brother, aged 36 and 33 respectively.
Prior to his commission of the present offences, the defendant had worked as a transport worker in Hong Kong, earning HK$18,000 per month. He lost his job in mid-2020 as his employer went into financial difficulties due to the COVID pandemic.
In mitigation, it was said on behalf of the defendant that the defendant committed the present offences because after he had lost his job, he used up all his savings by November 2020. It was said that as the defendant was in need of money, he agreed with his friend’s suggestion to make some money by selling cocaine. The bottle of pink liquid seized from the Flat was passed to him by an unknown male about four to five days before his arrest. That unknown male also gave him money to buy the cocaine processing and packaging paraphernalia. The cash of around $10,000-odd found inside the Flat was the leftover of the money given by that unknown male. The unknown male had also taught the defendant on how to process the liquid cocaine and had given the defendant instructions as to where to deliver the cocaine.
It was also said in mitigation on his behalf that the defendant had been using cocaine for about a year before his arrest and some of the cocaine found inside the bedroom were for his own consumption.
As regards his criminal record, the defendant has three previous criminal convictions, none of which are drug- related. He was last convicted of wounding with intent to do grievous bodily harm and was sentenced to 32 months’ imprisonment in June 2010. That conviction was over 12 years ago by now.
Sentencing Principle and Tariffs
Regarding Charge 1 and Charge 2, the trafficking in dangerous drugs offence, the law in relation to sentencing of drug traffickers was explained by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and it involves a six-step approach.
The first step requires the court to assess the gravity of the offence by looking at the type and quantity of the drug involved. Whilst there are two individual trafficking in a dangerous drug charges, they involve the same type of drugs namely cocaine. It is in these circumstances appropriate to consider the total quantity of drugs involved, which are 235.66 grammes of cocaine. The sentencing tariff that is applicable to trafficking in the range of 200 grammes to 400 grammes of cocaine can be derived from the case of R v Lau Tak-ming & Others [1990] 2 HKLR 370, that being a tariff case for heroin, which is confirmed by HKSAR v Abdallah [2009] 2 HKLRD 437, it is also applicable to cocaine. The starting point for that range is one of between 12 and 15 years’ imprisonment.
The second step is to access the role and culpability of the defendant. The defendant’s role and overall culpability is clearly more than that of a mere courier or storekeeper. He admitted his involvement in the processing or manufacturing of the drugs in question. As he admitted in the Summary of Facts, but for his arrest by the police, he was planning to take the drugs, the subject of Charge 1, downstairs and deliver the same to somebody as instructed by the unknown male. I am satisfied that the role of the defendant was more than that of a courier or a storekeeper as he was more involved in the making of the drugs in question. That said, as the defendant has also pleaded guilty to manufacturing of dangerous drugs charge and would be sentenced for that offence as well, I should pay heed to avoid the danger of double counting any such aggravating feature when I come to consider the totality of sentences.
The third step is to identify where in the relevant band of the guidelines the defendant comes. If the defendant’s role is merely that of a courier or storekeeper, the relevant sentencing band of 12 to 15 years’ imprisonment for quantities of 200 to 400 grammes of cocaine will be applicable. On that basis, the mathematically calculated weight-based starting point would be one of around 12 years and 6 months’ imprisonment. But since I find that the defendant’s role is more than that of a mere courier or storekeeper, I am required to enhance the sentence by 6 months, thus bringing the overall starting point to one of 13 years.
The fourth step is to consider whether there is any further aggravating factor which warrants an enhancement of the overall starting point. I am satisfied that there is no such further aggravating feature in this case in respect of Charge 1 and Charge 2.
Fifthly, I am required to have due regard to all mitigating factors. Whilst the defendant claimed he used some of the cocaine found inside his bedroom for his own consumption, it has been well established by case authorities, including HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 and HKSAR v Choi Chun Wo [2018] 5 HKLRD 717, that if a defendant wishes to rely on self-consumption as a mitigating factor, the threshold test is whether ‘all or significant portion’ of the drugs was intended by the defendant for his own consumption.
However, if the defendant’s case was that only a part of the drugs was for his own consumption as opposed to a significant part, the court could still exercise its discretion in deciding whether any reduction in sentence should be given and the extent of such reduction (see paragraphs 58 to 69 of HKSAR v Kong Tat Lung [2018] 5 HKLRD 635). It is said in Kong Tat Lung and I quote at paragraph 63:
“in the absence of clear evidence that a substantial part of the dangerous drug in question is for the defendant’s own consumption, the defendant cannot expect the court to give him a reduction of sentence in the region of 10% to 25% in accordance with the principle laid down in Chow Chun Sang.”
However, the court in Kong Tat Lung confirmed that the sentencing judge still retained a discretion to award a small amount of reduction in sentence.
Taking into account what has been submitted by Mr Khosa on the defendant’s behalf including the urine test report produced by Mr Khosa today, which confirms that the defendant was tested cocaine positive on 24 November 2020 which is four days after the offences, I accept that a small part of the drugs seized might be used by the defendant for his own consumption. As such, I am prepared to exercise my discretion and allow a further reduction in sentence of 3 months. His sentence is thus reduced to 12 years and 9 months.
As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will count for little, unless they are exceptional which I do not find to be the case here. Therefore, the only real mitigating factor that remains in this case is the defendant’s timely and early plea of guilty. For that, I am prepared to give a full one-third discount to the defendant. This will reduce the overall sentence for Charge 1 and Charge 2, the two trafficking counts, to one of 8 years and 6 months.
Manufacture of a Dangerous Drug
Now, I will move on to Charge 3, namely the charge of manufacturing a dangerous drug.
It is well-established by case authorities that amongst the different types of drug-related offences, manufacturing is regarded as the most serious of all, carrying a maximum sentence of life imprisonment and a fine of $5 million.
As the Court of Appeal held in R v Cheung Wai Kwong [1997] HKLRD 344:
“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence.”
In relation to the factors relevant to assessing sentence for manufacturing, the Court of Appeal went on to say that:
“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, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused.”
In HKSAR v Kan Kong Fai [2009] 3 HKLRD 582, the Court of Appeal provided further guidance on the sentencing principles and said that:
“The starting point for drug trafficking is mainly a reflection of the quantity of drugs involved. In drug manufacturing cases, the quantity of drugs seized may give an idea of the scale of the manufacturing operation but is not the sole or dominant consideration in determining the starting point.”
The court then went on to reiterate what has been said in R v Wong Chun-ping [1984] HKLR 247:
“We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of D.D.”
As for sentencing of Charge 3, in mitigation Mr Khosa submitted three cases, namely, HKSAR v Ki Chun Pong, [2019] 1 HKLRD 717, and two reasons for sentences in HKSAR v Ansir Mahmood and Another, HCCC 165/2016 and HKSAR v Lam Woon Fai, HCCC 65/2022. I have duly considered those cases and in particular note that in the latter two cases when deciding the appropriate level of sentence, the courts have considered the circumstances surrounding the manufacturing process, including the presence of paraphernalia, equipment and ingredients needed to manufacture drugs in the relevant premises, the process of manufacturing and the scale of operation. This is indeed consistent with the sentencing approach identified in the cases that I have referred to above, namely, Cheung Wai Kwong and Kan Kong Fai.
With reference to these case authorities, Mr Khosa invites the court to consider enhancing the sentence for the manufacturing charge, Charge 3, for about 24 months from the starting point for drug trafficking, subject to further adjustment upwards or downwards in light of the scale of the operation and the role of the defendant.
Scale of Operation
In the case before us, a quite substantial amount of cocaine was indeed seized from the defendant. The police spotted that the defendant was carrying the black plastic bag containing the dangerous drugs when he came out of the Flat. It can be reasonably inferred that both the cocaine contained in the black plastic bag and those seized from the Flat were product of the defendant’s manufacturing process.
With reference to the quantity of cocaine seized, the ingredient and equipment for manufacturing dangerous drugs found inside the Flat, including but not limited to the gas stove, the pot, the lid, the soda powder, the various electronic scales and the crack cocaine manufacturing formula, I take the view that the manufacturing operation involved in this case cannot be said to be of a small scale, but at least a medium-sized one. In this regard, the court particularly note the ease with which crack cocaine was apparently manufactured in the premises.
The Defendant’s role
In deciding the appropriate level of sentence for Count 3, I must also take into account the role of the defendant. As admitted by the defendant, he was the person responsible for the manufacturing process, albeit under the instruction and guidance of an unknown man.
Having regard to the whole circumstances, in particular the quantity of the drugs seized, the size of the manufacturing operation and the role of the defendant, I would adopt 15 years’ imprisonment as the starting point for sentence for Charge 3. Affording him the one-third discount for his early and timely guilty plea, the overall sentence would be reduced to one of 10 years for Charge 3.
Totality Principle
In the process of imposing more than one sentence, I must take into account the totality principle in ensuring that the overall sentence to be served is appropriate to the culpability of the offender. Further, as I have mentioned earlier on, I should pay particular heed to avoid double counting of any aggravation of sentence for the three charges.
The manufacturing of cocaine clearly added on to the culpability of the trafficking offences. Having considered all the relevant facts of the case and the mitigation advanced by Mr Khosa on behalf of the defendant, I am of the view that it is appropriate to order part of the sentence for the manufacturing count to be served consecutively to those trafficking offences.
The final sentences I would impose individually on the three charges are as follows. For Charge 1, the final sentence to be imposed on this individual charge is 6 years 10 months, that is reduced from a starting point of 10 years 4 months. For Charge 2, the sentence imposed is 6 years and 2 months, that is reduced from a starting point of 9 years 3 months. I would order 1 year and 8 months of the sentence on Charge 2 to be served consecutively to the sentence on Charge 1, making a total sentence for Charge 1 and Charge 2 one of 8 years and 6 months’ imprisonment. For Charge 3, as I have explained, I would impose a sentence of 10 years, 3 years of which is to be served consecutively to the sentences imposed on Charge 1 and Charge 2, making the total sentence one of 11 years 6 months.
This is the sentence I will impose on you. The overall sentence is one of 11 years 6 months.