HKSAR v. NG KA CHUN

HCCC 89/2025

[2026] HKCFI 505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 89 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs and three charges of manufacturing a dangerous drug, and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 13 March 2025. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed his pleas and his agreement to the Summary of Facts through counsel.

2.  The particulars of the charges state as follows:

(1) Regarding Charge 1, on the 12th day of October 2022,

at Room 403, 4th Floor, Kam Tong Building, No 16 Mok Cheong Street, Kowloon City, Kowloon, in Hong Kong (“the Room”), the defendant unlawfully trafficked in dangerous drugs, namely:

(i) 36.76 grammes of a solid and 203 capsules containing a total of 48.45 grammes of 3,4- methylenedioxymethamphetamine (MDMA);

(ii) 2,458 millilitres of a liquid, 7.13 grammes of a liquid, 13.45 grammes of a solid and 303 capsules containing a total of 10.68 grammes of N, N‑dismethyltryptamine (DMT);

(iii) 4,052.25 grammes of a solid containing 6.73 grammes of tetrahydrocannabinol (THC);

(iv) 14 tablets containing 1.66 grammes of fluoroethamphetamine (FEA);

(v) 43 capsules and 0.22 grammes of a solid containing a total of 1.03 grammes of bromodimethoxyphenethylamine (NBOMe);

(vi) 56 tablets containing 0.64 grammes of hydroxy-N-methyl-N-isopropyltryptamine (4-HO-MiPT);

(vii) 10 grammes of a liquid containing 0.25 grammes of hydroxy-N-methyl-N-ethyl-tryptamine (4-HO-MET);

(viii) 514.42 grammes of a solid containing 0.322 grammes of psilocin;

(ix) 0.28 grammes of a liquid containing 0.07 grammes of methoxy-N,N-dimethyltryptamine (5-MeO-DMT); and

(x) 10 blotting papers containing lysergide (LSD).

(2) Regarding Charge 2, the particulars of the charge provide that between the 1st day of August 2022 and the 12th day of October 2022, both dates inclusive, at the Room, the defendant unlawfully manufactured a dangerous drug, namely DMT.

(3) Regarding Charge 3, between the 1st day of August 2022 and the 12th day of October 2022, both dates inclusive, at the Room, the defendant unlawfully manufactured a dangerous drug, namely THC.

(4) Regarding Charge 4, between the 1st day of August 2022 and the 12th day of October 2022, both dates inclusive, at the Room, the defendant unlawfully manufactured a dangerous drug, namely psilocin.

3.  The Summary of Facts admitted by the defendant provides, inter alia, as follows. On 12 October 2022, the police conducted an anti-narcotics operation in Kowloon City, Hong Kong.  By around 5.10 pm, the defendant walked out from the Room. At that time, the defendant was holding a brown envelope in his hand and carrying a rucksack.  Police officers lying in ambush on the 4th Floor of the building intercepted the defendant.  Search of the defendant found:

(1) Inside the brown envelope, a plastic bag containing 4.23 grammes solid containing 8 milligrammes psilocin;

(2) Three sets of keys, including two sets for opening the metal gates, the main door and the room doors of the Room;

(3) Cash of HK$280;

(4) A mobile phone with two SIM cards; and

(5) Three bank cards.

4.  The defendant told the police that he lived in the Room.  With the defendant’s consent, the police searched the Room and found on a table in the living area a plastic bag containing some suspected dangerous drugs.  Upon arrest and under caution, the defendant said that the illicit drugs were for him to sell to other people for earning money.  Upon further search of the Room, the police found:

(1) Inside a cabinet in the living area:

(i) Large quantity of empty pill capsules of different sizes assorted in five plastic bags;

(ii) A plastic bag containing:

(a) A glass phial containing 6.92 grammes liquid containing 2.93 grammes DMT, glycerol and propylene glycol;

(b) A glass phial containing 0.44 grammes solid containing 0.06 grammes THC;

(c) A glass phial containing 0.28 grammes liquid which upon drying containing 0.07 grammes solid containing 5-MeO-DMT;

(iii) A plastic bag (Exhibit 64) containing three plastic bags, which contained a total of 56 tablets containing 0.64 grammes 4-HO-MiPT;

(iv) A plastic bag which contained plastic bags with a total of 27 pieces of blotting paper, 10 of which contained traces of lysergide or LSD;

(v) A plastic bag which contained a plastic bottle containing 10 grammes liquid containing 0.25 grammes 4-HO-MET;

(vi) A plastic bag containing 3 glass phials, one of which contained 0.21 grammes liquid containing traces of DMT and another of which contained 0.31 grammes liquid containing glycerol and propylene glycol;

(vii) Miscellaneous items including bags of desiccant, empty envelopes, stickers of a medical service centre stating the contents to be medical reports, tin foils, resealable plastic bags, thank you cards, cardboards and packaging materials;

(viii) A water bill issued to the defendant;

(2) On a table near the cabinet in the living area:

(i) A plastic bag containing:

(a) A plastic bag containing 43 capsules containing a total of 0.84 grammes NBOMe;

(b) A plastic bag containing 277 capsules containing a total of 1.95 grammes DMT;

(c) A plastic bag containing 26 capsules containing a total of 0.11 grammes DMT;

(d) A plastic bag containing 99 capsules containing a total of 11.2 grammes MDMA;

(e) A plastic bag containing 104 capsules containing a total of 7.87 grammes MDMA; and

(f) Three plastic bags containing a total of 176 capsules;

(ii) A plastic bag containing:

(a) A plastic bag containing 0.22 grammes solid containing 0.19 grammes NBOMe;

(b) A plastic bag containing 0.96 grammes solid containing 0.78 grammes MDMA;

(c) A plastic bag containing 14 tablets containing a total of 1.66 grammes FEA; and

(d) A plastic bag containing 35.8 grammes of a solid containing 28.6 grammes MDMA;

(iii) A paper box marked “MUHA MEDS” (Exhibit 96) containing 8 smaller paper boxes, each of which contained a cartridge. The cartridges contained a total of 5.76 grammes liquid containing 3.56 grammes THC;

(iv) A plastic box containing two cartridges:

(a) One of which contained 0.78 grammes liquid containing glycerol.

(v) Utensils including:

(a) A metal spoon containing traces of solid containing DMT;

(b) Two metal forceps containing traces of solid containing THC and DMT; and

(c) Two metal spatulas containing traces of solid containing DMT;

(vi) Two electronic balances, one of which contained traces of THC and DMT;

(vii) A glass bottle containing 7.24 grammes liquid; and

(viii) Miscellaneous items including resealable plastic bags, a roll of tin foil, a pair of scissors, a “CONFIDENTIAL” office stamp, sellotape, sticky labels, bottles of saline solution and a pack of chocolate;

(3) On a table behind a sofa in the living area:

(i) A metal stand with clamps and a separation funnel containing traces of THC;

(ii) Four glass flasks and a plastic plug;

(iii) A glass bottle containing 580 millilitres liquid containing 1.24 grammes DMT and cyclohexane;

(iv) A paper box containing 476 grammes solid containing sodium bicarbonate;

(v) A plastic bottle containing 880 millilitres liquid containing propylene glycol;

(vi) A plastic bottle containing 720 millilitres liquid containing glycerol;

(vii) An electronic balance;

(viii) A glass jar with tap and a rack;

(ix) Some plastic parts; and

(x) A roll of tissue paper;

(4) In a refrigerator;

(i) Four plastic bags containing foil packets containing a total of 3.8 kilogrammes solid with the appearance of chocolate, containing 2.86 grammes THC;

(ii) Two plates containing solid with the appearance of chocolate, containing a total of 186 grammes solid containing 0.25 grammes THC;

(iii) Two plastic bags containing a total of 1.64 grammes solid containing 1.64 grammes DMT;

(iv) A metal plate and a plastic wrapping containing a total of 0.07 grammes solid containing DMT;

(v) A metal plate containing a plastic film and 0.03 grammes solid containing DMT, and 270 millilitres liquid containing 0.65 grammes DMT and cyclohexane;

(vi) A glass food container containing 0.55 grammes solid containing 0.55 grammes DMT, and 68 millilitres of liquid containing 0.12 grammes DMT and cyclohexane; and

(vii) An opened chocolate bar (Exhibit 43);

(5) In the kitchen:

(i) Two induction cookers, one of which contained traces of DMT;

(ii) A syringe and a plastic dropper containing traces of DMT;

(iii) A glass bottle containing 1.53 litres liquid containing 0.39 grammes DMT and 10 millilitres liquid containing 0.05 grammes DMT and cyclohexane;

(iv) A glass bottle containing 1.44 litres of liquid containing sodium hydroxide; and

(v) Miscellaneous items including chocolate moulds, metal racks, saucepans, a pot, a glass bottle, a glass funnel, tubes, scrapers, cups, a bowl, a brush and gloves;

(6) In the room next to the kitchen:

(i) A rack on which there were six plastic storage boxes containing some garden soil, two of which with visible fresh fungi, which were tested to contain a total of 342.8 grammes solid containing 0.06 grammes psilocin;

(ii) Two glass bottles containing dried fungi, one of which was tested to contain 2.59 grammes solid containing 2 milligrammes psilocin;

(iii) Three bottles of sodium hydroxide;

(iv) 11 blocks of coco peat;

(v) An electric heater containing 0.01 gramme solid containing DMT;

(vi) A dehydrator containing traces of DMT;

(vii) A humidifier;

(viii) Some tubes;

(ix) A plastic container containing 0.02 grammes solid containing psilocin;

(x) Four metal spoons containing a total of 0.03 grammes solid containing DMT;

(xi) An electronic balance containing traces of DMT;

(xii) A plastic bag containing a spoon and a plastic bag containing a total of 10.3 grammes solid containing 0.24 grammes DMT;

(xiii) A metal can marked naphtha, which contained cyclohexane;

(xiv) Three bottles marked naphtha;

(xv) Multiple glass and plastic containers;

(xvi) A bottle of antiseptic and a bottle of water;

(xvii) A bag of peganum harmala seeds powder;

(xviii)Two impulse sealers;

(xix) A vacuum packaging machine;

(xx) A laminar flow cabinet;

(xxi) A plastic bag containing four plastic bags, one of which contained 0.05 grammes solid containing THC;

(xxii) Three glass bottles, two of which contained a total of 169 grammes of solid containing 0.26 grammes psilocin;

(xxiii)A bowl containing 0.01 gramme solid containing psilocin and DMT;

(xxiv)A glass container with a spatula containing a total of 0.51 grammes solid containing 0.5 grammes DMT;

(xxv) Three glass containers and a spoon containing a total of 0.31 grammes solid containing 0.31 grammes DMT;

(xxvi) A paper packet containing 64 capsules;

(xxvii) Three glass containers;

(xxviii)A grinder;

(xxix) A bottle containing 760 millilitres liquid containing acetic acid;

(xxx) Bags containing some flowers;

(xxxi)A lamp machine;

(xxxii) Plastic boxes containing some test kits;

(xxxiii)Bags containing syringes and petri dishes; and

(xxxiv)A bucket containing some garden soil.

5.  In total, the police seized drugs as particularised in the particulars of offence for Charge 1 as set out above.

6.  Upon further arrest and caution for trafficking and manufacturing dangerous drug, the defendant said that he grew the “hallucinogenic mushrooms” and processed them for selling to other people to earn money.

7.  In the presence of the defendant, the police took 120 photographs depicting, inter alia, the state of the Room.

8.  Police investigation revealed that the defendant rented the Room for two years from 1 August 2022 onwards for $10,000 per month.

9.  As revealed by the defendant during a subsequent video-recorded interview with the police:

(1) The defendant was educated up to bachelor degree. He was unemployed at the time of his arrest.

(2) The defendant previously resided in Tin Shui Wai. From 1 August 2022 onwards, he resided at the Room which he rented.

(3) The defendant had been selling substances, including dangerous drugs and other substances, to other people for about one year. He had earned money or bartered for goods in the process. He would put the substances into empty pill capsules and would use the packaging materials found inside the Room to pack the substances.

(4) The HK$280 cash seized on the defendant was derived from the sale of substances. The defendant kept all the money he earned from the sale of the substances in cash to avoid detection. All the money he earned was used for paying his living expenses.

(5) Regarding the hallucinogenic mushrooms (psilocin):

(i) The defendant knew that the envelope that he carried at the time of his arrest contained a plastic bag containing some powder of hallucinogenic mushrooms. The powder gave hallucinogenic effect upon consumption. He put the powder into the envelope and put a sticker of a medical service centre outside as camouflage so that other people would not open the envelope casually. He further put the stickers on the plastic bags inside the envelope.

(ii) Before the arrest, the defendant received a telephone call from an anonymous caller, who asked for the hallucinogenic mushrooms to be delivered to a specific location. The defendant then informed the caller of the price of the drug.

(iii) At the time of arrest, the defendant was on his way to deliver the envelope to the anonymous caller. As usual, he would put down the dangerous drug at a location and leave; then the buyer would retrieve the drug and put down the payment in cash at the same location. The defendant would pick up the cash 15 to 30 minutes afterwards.

(iv) The defendant personally gathered spores to grow the mushrooms. He placed the spores on some garden soil and applied fertilisers in the six plastic storage boxes in the room next to the kitchen. He purchased the laminar flow cabinet for about RMB1,000 and used it to increase his chance of success in growing the mushrooms. He purchased the lamp machine for growing the mushrooms, but had decided not to use it anymore. He managed to grow the mushrooms in recent months through trial and error.

(v) He harvested some of the mushrooms, dried them and grounded them into powder to prolong the shelf life. He kept some dried mushrooms and some powder in the room next to the kitchen. According to his knowledge, the mushrooms could be consumed orally, with or without being grounded into powder. He sold the powder at HK$150 to HK$200 per gramme.

(6) Regarding DMT:

(i) The defendant manufactured DMT in the kitchen of the Room. To do so, he first mixed acetic acid (vinegar) and sodium bicarbonate with mimosa powder, then added naphtha and sodium bicarbonate to separate the water content. He used magnetic mixer and separation funnel to assist in the process. DMT can be extracted by cooling and drying the naphtha. He kept some half-product in the kitchen and in the refrigerator. He acquired the skill to manufacture DMT by browsing the internet and through trial and error. He stored the mimosa powder in the room next to the kitchen.

(ii) The DMT was in powder form. He stored some of it in the refrigerator. According to the defendant’s knowledge, it had hallucinogenic effect and it could be infused into smoking oil, cigarettes or cannabis for smoking. The defendant knew that the bottles of smoking oil inside the Room contained DMT. He sold DMT at a higher price of HK$1,500 to HK$2,000 per gramme because of the high potency of the drug.

(7) Regarding THC:

(i) The defendant obtained some bottles of smoking oil including those kept in Exhibit 96 from a friend. He knew that the oil contained THC, which had the effect on human nervous system and gave a relaxing effect.

(ii) The chocolate seized by the police in the refrigerator was infused with THC. The defendant produced it by adding THC into melted chocolate and putting the chocolate into the moulds. He intended to sell the THC-infused chocolate after repackaging.

(8) Regarding other substances:

(i) The defendant knew some of the bags contained mimosa and peganum harmala seeds, from which harmine could be extracted. These substances might give hallucinogenic effect upon consumption.

(ii) The defendant knew that a bag of the substance contained NBOMe or “2C-B” which gave hallucinogenic effect upon consumption. According to the defendant’s knowledge, the substance could be consumed orally or by snorting. He sold the substance at HK$150 to HK$200 per capsule.

(iii) The defendant knew that the pieces of blotting paper were “poisonous stamps” or “LSD” (lysergic acid diethylamide), which gave hallucinogenic effect upon consumption. They could be consumed by placing on the skin or the oral cavity. He possessed the stamps for personal collection and for selling to other people for HK$100 to HK$200 per a single small square. He would sell them in the same way as selling the hallucinogenic mushrooms.

(iv) The defendant made smoking oil in the Room. He bought the raw materials on the internet. He produced different flavours of smoking oil.

(v) According to the defendant’s knowledge, the tablets in Exhibit 64 had hallucinogenic effect upon consumption. He obtained them by exchanging other drugs with someone else. He would sell them at HK$150 to HK$200 per tablet.

10.  Ms Chan Lai-ping, a forensic scientist, inspected the Room on 12 October 2022. Based on her inspection and the subsequent laboratory examination results, she opined that:

(1) Addition of THC containing substances (such as THC oil) to melted chocolate is a common method of making THC-infused chocolate. This process involves melting chocolate in a saucepan with a heat source and followed by the addition of substances containing THC (such as THC oil) and then well mixed. The mixed product is removed from the heat source and poured into any container or mould. This finished product would be solidified upon cooling. With reference to this background:

(i) The solid (Exhibit 43) found inside the refrigerator had a label and physical appearance consistent with chocolate, and the THC containing liquid found in the living area could be used as the starting materials for the preparation of THC-infused chocolate as described above.

(ii) The solids in the two ceramic plates found inside the refrigerator, with a physical appearance consistent with the solid in Exhibit 43, were found to contain THC, which could be the final product of the mixing process as described above.

(iii) The solids in the foil packets found inside the refrigerator, with a physical appearance consistent with the solid in Exhibit 43, were found to contain THC, which could be the final product of the mixing process as described above.

(2) DMT can be separated from an impure starting material through extraction (using an acid such as acetic acid, an alkali such as sodium hydroxide and a non-polar organic solvent such as cyclohexane) and then purified through recrystallization. In an acidic aqueous medium, DMT would dissolve from the starting material and the process can be speeded up through the use of a heat source. The acidic solution containing DMT can be separated readily from the impure materials that remained undissolved. Then, DMT would be extracted from the aqueous medium into the non-polar organic solvent after the acidic solution is basified with the addition of alkali. Finally, DMT in the organic solvent can be purified through evaporation and recrystallization. With reference to the above background:

(i) The solid in the plastic bag was found to contain low purity DMT which could be used as the starting material of the purification process.

(ii) The lower layer of the liquid mixture inside the glass bottle was found to contain DMT. The upper layer was found to contain cyclohexane and DMT at a higher concentration than the lower layer. These findings suggested that extraction of DMT from the liquid mixture using cyclohexane as the non-polar organic solvent as mentioned above had taken place.

(iii) The glass container found inside the refrigerator was found to contain a mixture of solid and liquid. The solid was found to contain DMT of high purity, whereas the liquid was found to contain DMT and cyclohexane. These findings suggested that DMT recrystallization process using cyclohexane as the non-polar solvent as mentioned above had taken place.

(iv) The solids in the two plastic bags were found to contain DMT of high purity which could be the products of the recrystallization process as described above.

(v) The solids in the glass containers were found to contain DMT of high purity which could be the residue of the products of the recrystallization process as described above.

(vi) The liquid in the glass bottle was found to contain DMT and cyclohexane. This finding suggested that extraction of DMT using cyclohexane as the non-polar organic solvent as mentioned above could have taken place.

(vii) The liquid sample obtained from the metal container was found to contain cyclohexane which could be used in the extraction and recrystallization processes as described above.

(viii) Acetic acid and sodium hydroxide are chemicals that can be used in the extraction process as described above.

(ix) The induction cooker and the electric heater which contained traces of DMT could be used as heating sources in the extraction/recrystallization process as described above.

(x) Other paraphernalia including the metal spoons, the metal forceps, the metal spatulas, the electronic balances, the ceramic bowl, the syringe and the plastic dropper were all found to contain DMT. These findings indicated that such items could have been used in the handling of DMT.

(3) In conclusion:

(i) The material and chemicals seized from the scene (mentioned in (1)) were those items commonly associated with the process of making THC-infused chocolate as mentioned in (1).

(ii) The chemicals and paraphernalia seized from the scene were items commonly associated with the process of DMT extraction and recrystallization as mentioned in (2) and such process had taken place in the premises.

11.  As of October 2022, the street value of each capsule of MDMA was HK$62, and during the course of his submissions, Mr Leung has quantified the total figure regarding the MDMA seized at HK$12,586.

12.  On 12 October 2022, the defendant possessed all the drugs at the Room for the purpose of unlawful trafficking.  And the defendant further admits that between 1 August 2022 and 12 October 2022, both dates inclusive, he unlawfully manufactured DMT, THC and psilocin at the Room.

13.  The personal background of the defendant is as follows.  The defendant is now 33 years old.  He was born in Shenzhen on the Mainland and moved to Hong Kong in 1996.  He received education up to bachelor’s degree level in Hong Kong.  He is single with no children.  His father passed away in 2018.  His mother is now 61 years old and partially dependent on the defendant before he was arrested.  The defendant has a younger sister who is a dancing teacher.

14.  From September 2018 to April 2020, the defendant worked for a non-profit organisation, ie YWCA, earning HK$18,000 per month.  In May 2020, he joined a pharmaceutical company for an administration/marketing and sales position earning HK$20,000 per month.  He became unemployed in May 2021 due to the COVID pandemic.  He then worked as a freelancer with unstable income until his arrest. 

15.  The defendant studied creative media in university.  He was unable to find a job after graduation in 2018.  As his father passed away around that time and his own future appeared bleak, he developed some mental health issues, I am told. He was diagnosed with moderate depression and received psychiatric treatment at the Castle Peak Hospital from 2018 to 2019.  However, I am told that the drugs prescribed by the doctors were unhelpful and only brought about side effects.

16.  After seeing no improvement in his symptoms for the most part of a year, the defendant learned from a friend that “hallucinogen therapy” could be an effective treatment for mood disorders.  The defendant tried the psychedelic drugs supplied by the friend out of desperation.  To his surprise, his condition drastically improved after a few intakes.  In just a few months, he was able to stop taking prescribed drugs and no longer required psychiatric treatment.  Due to this subjectively felt positive experience, the defendant became very interested in hallucinogenic drugs and began regularly using them ever since.  He also believed that such drugs could help others in a similar situation.  I am told that he was never involved with hard drugs such as cocaine, ‘Ice’ and heroin, and there is no evidence in this case to suggest otherwise.

17.  As pointed out by the defendant’s counsel, this is a highly unusual drug trafficking and manufacturing case in that the offender appears to have no connection to any syndicates/organised crime.  The defendant became involved in psychedelic drugs out of personal interest and a mistaken belief that they could be beneficial to himself and others.  The defence counsel submits that he lacked appreciation and insight of the adverse effect of the drugs and the criminality of his own actions.  After the arrest, he realised how serious the mistake was.  I am told that he is now deeply remorseful for the offence.  He had all along cooperated with the police and gave a detailed explanation of his operation in his video-recorded interview.  He pleaded guilty at the earliest opportunity.

18.  The defendant has three previous convictions which are of a dissimilar nature to drugs.  The last one was back in 2007.

Charge 1 (Trafficking in dangerous drugs)

19.  The tariff for trafficking in MDMA is laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1: relevant to the present case, 10 to 50 grammes, 4 to 6 years’ imprisonment; 50 to 300 grammes, 6 to 9 years’ imprisonment. 

20.  Charge 1 took place on 12 October 2022.  The tariff for trafficking in herbal cannabis/cannabis resin laid down in Attorney Generalv Tuen Shui Ming And Another [1995] 2 HKCLR 129 applies.  The Court of Appeal in that case laid down that the tariff for trafficking in cannabis resin is: under 2,000 grammes, up to 16 months (at page 136).  This tariff cannot be applied directly to THC, which is the principal psychoactive constituent of cannabis. Therefore, there is a practice of converting THC into other forms of cannabis for the purpose of applying the tariff.

21.  I am told that there is no tariff for DMT, FEA and NBOMe, 4‑HO-MiPT, 4-HO-MET, psilocin, 5-MeO-DMT and LSD.  In the expert statement of Dr Chong Yeow-kuan contained in the sentencing bundle, Dr Chong made comments on some of these drugs.

(1) FEA - it appears that FEA overdoses results in toxicity similar to MDMA overdoses.

(2) 4-HO-MiPT - the molecular structure and pharmaceutical effect are similar to psilocin. The toxicity is expected to be similar to psilocin.

(3) 4-HO-MET - it is a close structural and functional analogue of psilocin. Its risks are likely similar to those of psilocin and LSD.

22.  In HKSAR v Abdul Sameer [2022] HKDC 1069, Deputy District Judge Bernard Chung considered expert evidence on NBOMe, DMT, LSD and psilocin and treated them to be of similar potency as MDMA and ketamine (at paragraphs 20 to 21).  The tariffs in Hii Siew Cheng was thus applied to these drugs.

23.  In the present case, relatively small quantities of DMT, FEA, NBOMe, 4-HO-MiPT, 4-HO-MET, psilocin, 5-MeO-DMT and LSD was seized by the police.  In view of the expert evidence as set out above, I accept that these drugs should be treated as having similar potency as MDMA.  I shall apply the tariff in Hii Siew Cheng (supra) to the total quantity of MDMA, DMT, FEA, NBOMe, 4-HO-MiPT, 4-HO-MET, psilocin, 5-MeO-DMT and LSD (ie 63.312 grammes). 

24.  Thus, as submitted by the defendant, the drugs in the present case could be divided into two categories: (1) MDMA and others (63.312 grammes) and (2) THC (6.73 grammes).

Starting point for MDMA and others

25.  Applying the tariff for MDMA as laid down in Hii Siew Cheng (supra), 63.312 grammes of MDMA and other drugs warrant a starting point of 73.9 months.  As the amount of LSD is unspecified, it could not be reflected in the arithmetical calculation of starting point.  However, the presence of LSD can be reflected in an increase of the sentence for dealing in more than one type of drugs.

Starting point for THC

26.  In Tuen Shui Ming And Another, supra, it was mentioned that the THC concentration in cannabis resin was 6.65% on average.  As suggested by the defendant, 6.65% should thus be adopted for converting THC into cannabis resin for the purpose of considering sentence.  Accordingly, 6.73 grammes of THC could be notionally converted into 101.2 grammes of cannabis resin.  Applying the tariff for cannabis resin, 101.2 grammes of cannabis resin warrants a starting point of 0.8 month.

27.  As various kinds of dangerous drugs were involved in Charge 1 with a combined weight of 70.042 grammes, in order to assist me in identifying the global starting point of the offence, the “Absurdity Test”, the “Conversion Test” and the “Ratio Test”, as explained in HKSAR v Chan YukLeong CACC 318/2013 (Judgment dated 8 April 2014), have been conducted with the following results: 88.5 months under the Absurdity Test, 73.9 months under the Conversion Test and 68.5 months under the Ratio Test.

28.  Having considered the above results in the round, and taking into account that more than one type of dangerous drugs is involved, I consider that the global starting point of 74 months’ imprisonment would be appropriate in the present case.  That is purely based on the quantity and types of drugs involved, before any consideration of the defendant’s role in the offence.

Defendant’s role in the operation

29.  The assessment of the defendant’s role and culpability is the second step of the sentencing exercise (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290). In the present case, the evidence available shows that the defendant was simultaneously the courier, storekeeper, actual trafficker, manager, operator and controller, and it was all along a one-man operation.  Obviously his culpability would be higher than that of a mere courier, yet it is, as submitted by the defendant, incomparable to that of an organiser at the top of a drug syndicate.  He did not recruit others to assist him, nor did he make substantial gains.  For his role and culpability, I would increase the notional sentence after trial for Charge 1 to 86 months’ imprisonment. 

30.  I consider that there is no aggravating factor which would enhance the notional sentence after trial for Charge 1. 

31.  I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely guilty plea, for which I will give him a one-third discount. 

32.  Accordingly, the defendant is sentenced to 4 years and 9 months’ imprisonment on Charge 1.

Charges 2 to 4 (Manufacturing dangerous drugs)

33.  In deciding the proper sentence for the offence of manufacturing dangerous drugs, the quantity of drugs seized was but one factor to be taken into consideration.  Other factor included the scale of the operation, the capacity of the equipment, whether the manufacturing station have been producing or likely to produce substantial quantity of dangerous drugs and the role played by the defendant (see R v Cheung Wai Kwong [1997] HKLRD 344 at 348 B to F). 

34.  In HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, the court observed as follows:

“33. Should there be information which shows that the drug- manufacturing act is a one-off rather than a continuous act, a starting point slightly higher than the sentence for ‘trafficking’ in the same quantity of ‘drugs’ may be considered appropriate. However, this Court agrees with the approach adopted in WongChun Ping (supra) and reiterates that the starting point for ‘drug-manufacturing’ offences should not be less than 10 years’ imprisonment unless the act of drug-manufacturing was just nominal , for instance, only a one-off mixing and diluting of a small quantity of drugs without involving any sophisticated paraphernalia or a large amount of chemicals as raw materials.

34. If the drug-manufacturing act is a continuous act spanning a period of time, and the drug-manufacturing workshop is of considerable scale and productivity involving a large amount of chemicals used for drug-manufacturing as well as a not insignificant quantity of high-standard drug- manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial.

...

36. When it comes to a large-scale, productive and long-running drug-manufacturing workshop, where the defendant plays an active and important role, and where an exceptionally large amount of drugs is seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence.”

35.  In the present case, the manufacturing charges relate to DMT (Charge 2), THC (Charge 3) and psilocin (Charge 4).

36.  In relation to Charge 2, 10.68 grammes of DMT was actually seized.  The level of sophistication was low as the defendant simply learned the skill by browsing the internet and through trial and error.  The defendant stated in his VRI that as the yield is low, he only sold a small amount to others.

37.  In relation to Charge 3, 6.73 grammes of THC was actually seized.  The defendant added THC into melted chocolate and put the chocolate into moulds. He intended to sell the THC-infused chocolate after repackaging, yet he stated in his VRI that he never actually sold any.

38.  In relation to Charge  4, a very small quantity (0.322 gramme) of psilocin was actually seized.  Rather primitively, the defendant collected spores outside, cultivated the spores and consumed the grown mushrooms by himself to test if there was any psychoactive effect.  The defendant further stated in the VRI that he only succeeded in cultivating mushrooms a few months before the arrest and the yield was also low.

39.  I accept the defendant’s submission that the facts of this case show that the defendant had a rather unproductive small-scale operation.  As he did not manage to sell much of the drugs, the small quantity seized more or less accurately reflected the scale of the operation.  The defendant only managed to produce a small quantity of drugs up to the time of his arrest, and it would be difficult for him to ramp up production in the hypothetical future, as it was the defendant’s one-man operation without input of knowledge, manpower, materials, etc from a drug syndicate.  The seriousness of Charges 2 to 4 is thus on the lower end of the scale.

40.  The defence further submits that the case of HKSAR v ChanWing Chung [2018] HKCFI 2365 is comparable.  In Chan Wing Chung, evidence shows that the defendant was manufacturing crack cocaine in the premises.  The police seized 26.61 grammes of a solid containing 17.28 grammes of cocaine and an assortment of paraphernalia.  The learned judge adopted a starting point of 10 years’ imprisonment.  Of course, the factual content of each case is different and decisions by courts of equal jurisdiction may not necessarily be helpful.

41.  In the present case, the operation cannot be called nominal, yet it is a one-man operation which was not particularly productive, it seems.  I would adopt an initial starting point of 11.5 years’ imprisonment.  However, as different drugs were being manufactured at the Room, I would increase the starting point to 12 years’ imprisonment for each of Charge 2 to Charge 4.  After applying a one-third discount, I would sentence the defendant to 8 years’ imprisonment for each of Charge 2, Charge 3 and Charge 4.

Totality of sentence

42.  As Charges 2 to 4 are essentially part of the same small-scale operation, I would order the sentences for Charges 2 to 4 to run concurrently.

43.  In HKSAR v Sum Ka Wa [2024] 4 HKLRD 777, the court observed that as the drugs particularised in the trafficking charges were derived from and inextricably linked with the manufacturing charge, the better and safer course was to make all sentences to run concurrently.

44.  In the present case, part of the drugs particularised in Charge 1 (ie 10.68 grammes of DMT, 6.73 grammes of THC and 0.322 gramme of psilocin out of 70.042 grammes of drugs) were derived from Charges 2 to 4.  In the circumstances, I would nevertheless order a large part of the sentence on Charge 1 to run concurrently with the sentences on Charge 2 to 4.  Taking into account in particular also the totality principle, I would order 9 months of the sentence on Charge 1 to run consecutively, and the remainder to run concurrently, with the sentences on Charges 2 to 4.  This results in the total sentence of 8 years and 9 months’ imprisonment.

45.  In conclusion, the defendant is sentenced as follows:

(1) 4 years and 9 months’ imprisonment on Charge 1;

(2) 8 years’ imprisonment on Charge 2;

(3) 8 years’ imprisonment on Charge 3;

(4) 8 years’ imprisonment on Charge 4;

(5) I order that the sentences on Charge 2, Charge 3 and Charge 4 are to run wholly concurrently;

(6) I further order that 9 months of the sentence on Charge 1 is to run consecutively to the sentences on Charge 2, Charge 3 and Charge 4, thus resulting in a total sentence of 8 years and 9 months’ imprisonment.