HKSAR v. TO CHUN WAI, JOE

HCCC 118/2018

[2018] HKCFI 1576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 118 OF 2018

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REASONS FOR SENTENCE

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Charges

1.  The defendant TO Chun‑wai, Joe faced one count of doing an act preparatory to manufacturing a dangerous drug, contrary to section 6(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of facts

2.  The facts disclosed that on 8 January 2017 the defendant was seen by the police acting furtively at the staircase of a building in Tuen Mun.  He looked terrified when he saw the police, turned round and fled.  The police gave chase and intercepted him.  Upon enquiry the defendant gave an address which was in the same building.  When the police gained entry to the flat with a key from the defendant, they could smell a strong pungent odour and sound of water bump and water flowing in the flat. Search was conducted inside the flat and the police seized the following items:

(a) From under the air‑conditioner, 1 notebook (“E2”);

(b) From beneath a bed in the living room:

(i) 1 plastic box containing 2 plastic bags containing a total of 270 grammes of a powder containing sodium bicarbonate (“A1”);

(ii) 1 glass bottle containing 20.4 grammes of a solid containing sodium chloride (“A2”);

(c) On a platform next of the entrance of the kitchen:

(i) 1 piece of paper containing 7.55 grammes of a solid (“B1”);

(ii) 1 glass bottle of liquid containing 55 millilitres of a liquid (“B2”);

(iii) 1 electronic scale containing traces of a powder containing methamphetamine (“B3”);

(d) On a working bench next to the platform inside the kitchen:

(i) 1 glass beaker and 3 plastic bottles containing a total of 220 millilitres of a liquid (“B4”);

(ii) 1 foilpack containing 4 tablets containing phenylpropanolamine, which is a Part 1 poison, being a compound structurally derived from alpha‑methylphenethylamine by substitution in the aliphatic part (“B5”);

(iii) 1 glass thermometer (“B6”);

(iv) 1 glass separating funnel containing 130 millilitres of a liquid (“B7”);

(v) 1 plastic funnel and 1 glass beaker containing traces of a powder (“B8”);

(vi) 1 plastic box containing 1 glass rod containing traces of a powder (“B9”);

(vii) 2 pairs of gloves containing traces of a powder (“B10”);

(viii) 1 plastic bag containing a powder containing 144 grammes of a powder containing ammonium chloride (“B11”);

(ix) 1 glass condenser (“B12”);

(x) 1 glass funnel with a filter paper containing a damp solid which, upon drying, was found to contain 8.66 grammes of a solid (“B13”);

(xi) 1 glass flask 1 plastic bottle containing 80 millilitres of a liquid (“B14”);

(xii) 1 plastic box containing 1 syringe with a hypodermic needle and a needle cap attached containing traces of a solid (“B15”);

(xiii) 1 glass flask and 1 filter funnel containing traces of a powder (“B16”);

(xiv) 1 plastic tray containing a 23.3 grammes of a solid containing ammonium sulphate (“B17”);

(xv) 1 plastic bottle containing 147 millilitres of a liquid containing methanol (“B18”);

(xvi) 1 plastic bottle containing 240 millilitres of a liquid (“B19”);

(xvii) On a heating and stirring mantle: 1 glass flask, 1 glass condenser, 2 adapters fitted with 1 glass thermometer and 1 glass dropper, and 2 plastic bottles containing a total of 230 millilitres of a liquid (“B20”);

(e) Beneath the working bench inside the kitchen:

(i) 1 glass bottle containing 630 millilitres of a liquid containing hydrochloric acid (“B21”);

(ii) 1 glass bottle containing 226 millilitres of a liquid containing acetone (“B22”);

(iii) 1 glass bottle containing 315 millilitres of a liquid (“B23”);

(iv) 1 glass bottle containing 178 millilitres of a liquid containing xylene (“B24”);

(v) 1 glass bottle containing 380 millilitres of a liquid (“B25”);

(f) On the shelf next to the working bench, 1 plastic bottle containing 305 millilitres of a liquid (“B26”);

(h) In a paper box beneath the shelf:

(i) 1 glass bottle containing 553 grammes of a powder containing phosphorus (“B27”);

(ii) 1 plastic bottle containing 462 grammes of a solid containing potassium hydroxide (“B28”);

(iii) 1 plastic bottle containing 393 grammes of a solid containing sodium hydroxide (“B29”);

(iv) 1 glass bottle containing 227 grammes of a solid containing iodine (“B30”);

(v) 1 plastic bottle containing 3.74 grammes of a solid containing ammonium sulphate (“B31”);

(vi) 1 glass bottle containing 15.0 grammes of a powder (“B32”);

(vii) 1 glass bottle containing 2 syringes with a hypodermic needle and a needle cap attached (“B33”);

(viii) 1 glass bottle containing 1 glass bottle containing traces of a liquid containing hydrochloric acid (“B34”);

(ix) 1 glass bottle containing 5.23 grammes of a solid containing pseudoephedrine which is a Part I poison, being an alkaloid of ephedra (“B35”);

(x) 1 glass bottle containing 5 millilitres of a liquid containing acetone (“B36”);

(xi) 1 glass bottle containing traces of a liquid (“B37”).

3.  The defendant was arrested and cautioned.

4.  E2 (a notebook seized from the Flat) described a process of making 3, 4 methylendedioxymethamohetaine, which is a hallucinogen, from “natural oil” in 6 steps.  E2 also included a list of chemicals being used in the process and a detailed procedure of the process.  The procedure was detailed enough to be followed and performed by a person with some basic chemistry training but the procedure was incomplete and only covered the first three steps of the process.

5.  Some of the chemicals mentioned in the list of chemicals and the procedure in E2 were seized from the flat.  These were ammonium chloride (B11), potassium hydroxide (B28), sodium hydroxide (B29), acetone (B22), xylene (B24) and hydrochloric acid (B21).

6.  6 fingerprints lifted from E2 positively matched the defendant’s left forefinger and ring finger prints.  Fingerprints lifted from B4 and B5 positively matched the defendant’s right forefinger, middle finger and thumb prints.

7.  Government Chemist subsequently confirmed that exhibits seized from the scene could be used to make methamphetamine hydrochloride.  The method was described in the admitted facts but I will not reiterate them here.

8.  The equipment seized from the flat could produce 18 to 27 grammes of methamphetamine hydrochloride.

9.  The defendant was the licensee of the Housing Authority flat in question and the defendant admitted that at all material time he did an act preparatory to manufacturing a dangerous drug.

Background and mitigation

10.  The defendant was born in March 1976 so he is 42 years of age.  He is not a man with a clear record.  He has 2 previous convictions, one was for possession of dangerous drug in 1995 when he was sentenced to Probation for 12 months. He was in breach of the Probation Order and was brought before the magistrate in 1996 and the Probation Order was extended.  He was also convicted of Taking Conveyance Without Authority for which he was sentenced to 14 weeks’ imprisonment.

11.  In mitigation, the defendant’s counsel Mr Freddy Woon informed me of the defendant’s background.  The defendant has two sons from a previous marriage and was contributing $2000 per month to support them.  He has re‑married.  There are no children from this union and his wife lives in the Mainland.  His wife was a housewife but has to work as a waitress since the defendant’s arrest.

12.  The defendant studied up to Form 3 and since leaving school he has worked as a driver delivering goods.  Prior to his arrest he was earning $14,000 per month.  The defendant’s only previous drug‑related offence was possession of dangerous drug back in 1995.  I was also informed that the defendant was convicted of Taking Conveyance Without Authority when he lent the company vehicle to his friend without permission from the company.

13.  As to why the defendant commit such a serious offence,  Mr Woon informed me that it was all because of greed, the wish to make quick money.  The defendant came to know someone called Ah Wai who offered to teach him how to manufacture “ice” with a teaching fee of $20,000.  The defendant made a part‑payment of $5000 as he could not afford to pay the whole amount.  Ah Wai taught the defendant 3 out of the 6 steps so the defendant did not know all the steps when he was arrested by the police.

14.  Mr Woon accepted that according to the admitted facts, the expert opinion was that the equipment could produce 18 to 27 grammes of “ice” but he urged me to consider that the actual chemicals found could produce 0.89 to 1.34 grammes of “ice”.

15.  Mr Woon submitted that the scale is not large and the defendant is an amateur who did not know all the processes of manufacturing “ice”.

16.  The defendant wrote to me expressing his deep remorse and promised never to commit any offence in future.

17.  The defendant’s mother, elder sister and brother‑in‑law and his younger sister all wrote to me, asking for leniency on his behalf.  The defendant was described as a filial son and loving brother, who has taken up the responsibility of looking after his mother and other family members after his father passed away.

18.  I was informed by Mr Woon that the defendant’s family are all in court, giving him support.  Further, the defendant has started to attend religious gathering in prison and a Pastor has come to court to support him.

Sentence

19.  In HKSAR v Pei Yuk Kam CACC 213/2010, unreported, the Court of Appeal said (at para 34 of the judgment), “[d]oing or offering to do an act preparatory to or for the purposes of manufacturing a dangerous drug, while it is a separate activity, being in anticipation of, or co‑lateral to, the manufacturing process itself, is nevertheless an activity so integral to the manufacturing process that it must be viewed with similar seriousness.”

20.  The Court of Appeal also observed earlier in HKSAR v Kan Kong Fai [2009] 3 HKLRD 582, at 586, the offence of drug manufacturing is the most serious of all drug‑related offences, graver than trafficking and in all but the most exceptional cases warranting a heavier sentence.

21.  In R v Wong Chun Ping [1984] HKLR 247, at 257 the court said 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 dangerous drugs.

22.  I should add here that Mr Woon agreed with these authorities being applicable here and did not seek to persuade me to adopt a starting point lower than 10 years.  He urged me to consider adopting 10 years as the starting point.

23.  According to the admitted facts, the equipment seized from the flat could produce 18 to 27 grammes of methamphetamine hydrochloride.  According to HKSAR v Tam Yi‑chun [2014] 3 HKLRD 691, 18 to 27 grammes fall under the band of 10 to 70 grammes, with the starting point of one between 7 to 11 years.

24.  I appreciate Mr Woon’s submission that the actual chemicals seized could yield up to 1.34 grammes of “ice”, a small amount.  However, I am of the view that I need to judge the scale according to the equipment available.  Having said that, I do accept that the defendant was an amateur in his attempt to manufacture ice.

25.  Having considered the scale of the operation, I am of the view that a starting point of 10 years is appropriate here.

26.  The defendant pleaded guilty at the earliest available opportunity and I will give him the full 1/3 discount.

27.  While I appreciate the love and concern of the defendant’s family for him, and his wish to start a new life, these are not matters I can take into account to further reduce the sentence.

Actual Sentence

28.  For the offence of Doing an act preparatory to manufacturing a dangerous drug, the defendant is sentenced to 6 years and 8 months’ imprisonment.