HKSAR v. TAM HAU YING AND OTHERS

HCCC 284/2024

[2025] HKCFI 1791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 284 OF 2024

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REASONS FOR SENTENCE

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1.  The 3 defendants each pleaded guilty to the following counts they face, admitted to the corresponding Summary of Facts, and were committed, on 2^nd September 2024, by Magistrate Mr. Sze Cho Yiu, Jeffrey to the Court of First Instance for sentence. They confirmed their pleas and admissions before me, and their convictions were duly recorded.

2.  D1 pleaded guilty to 2 counts of trafficking[1] in dangerous drugs and 1 count of manufacturing[2] a dangerous drug (counts 1, 3 and 4).

3.  D2 pleaded guilty to 1 count of trafficking in dangerous drugs (count 1).

4.  D3 pleaded guilty 1 count of trafficking in dangerous drugs (count 2).  

FACTS (As amended on 24^th April 2025)

Count 1 (against D1 and D2)

5.  D1 and D2 were intercepted by police officers at around 9:15pm on 12^th July 2021 after leaving a metal hut (“the Hut”)  of a village located at DD 76, Lot 2227, Ko Po Tsuen North in Fanling.  D1 was carrying a black plastic bag with 9 plastic bags inside, which contained 174g of cocaine.  They were arrested.  D1 claimed under caution that she was delivering cocaine for D2, while D2 claimed that the drugs belonged to D1, and it was she who was accompanying D1 to the village entrance.  

6.  They were taken back to the hut, which was divided into 2 separate flats of 300 square feet each (“Flat 1” and “Flat 2”)  and with separate entrances.  D1 and D2 claimed they lived in Flat 2 and Flat 1, respectively.  

Count 2 (against D3 only)

7.  About 30 minutes after the said interception, D3 was seen entering the village entrance and was arrested for trafficking in dangerous drugs.  D3 claimed under caution that he was there to find his girlfriend, D2.  He was taken to Flat 1 and cautioned for the dangerous drugs found inside, which is detailed below.  D3 claimed that he was trafficking in those drugs at $2,000 per delivery.

8.  The following items were found in Flat 1.  Inside an opened black nylon bag (“the black nylon bag”)  placed next to the bed in the bedroom were 2,939g of a solid of N isopropylbenzylamine; 223g of a solid containing 137g of ketamine; and 11,996g of a solid containing 11,100g of cocaine hydrochloride in 12 blocks.  Police also found the following items on the desk inside the bedroom: the tenancy agreement for Flat 1; 2 keys; a Samsung mobile phone; and D3’s passport.  

Counts 3 and 4 (against D1 only)

9.  D3 was also taken to Flat 2 and cautioned for the dangerous drugs and the manufacturing paraphernalia found there, as set out below.  D3 claimed he had nothing to do with them.

10.  The following items were found in Flat 2.  Inside the bedroom were numerous mobile phone cases on the bed; a packet containing 953g of a solid containing 850g of cocaine hydrochloride; a total of 540g of a solid containing sodium bicarbonate; and metal pots, spoon, scissors and a digital scale with a total of 10.92g of solid containing 1.5g of cocaine found on these drug manufacturing paraphernalia.

11.  In the living room were 49.49g of a solid containing 43.79g of cocaine; D2’s Hong Kong Institute of Technology student card; Flat 2’s tenancy agreement, and one set of 2 keys for Flat 1.

12.  Under caution, D1 claimed that she was responsible for delivery of the dangerous drugs after D2 and D3 had cooked them.

D1’S CAUTIONED VIDEO RECORDED INTERVIEWS

13.  Two video recorded interviews were conducted with D1 and she claimed the following.  She had known D2 for around 10 years.  She met D3 as D2’s boyfriend a few months before the arrest.  It was D2 who put her to work by telling her to bring the drugs in Flat 2 to the village entrance and hand it over to D2 there, which D1 had done before.  D1 claimed that the drugs she was delivering were manufactured by D2 and D3.  She knew that D2 and D3 were manufacturing drugs in the bedroom of Flat 2 about 4 or 5 days before the arrest, although she had not witnessed the process since the door was closed.  D1 had not discussed with D2 about monetary reward yet since the trafficking only started recently.  

14.  D1 claimed she helped D3 carried the black nylon bag from the village entrance to Flat 1.  She also bought some of the drug manufacturing and trafficking materials including the baking soda, water, electric stove and re-sealable plastic bags together with D2.

15.  D1 wrote her own name, identity card number and old phone number on the tenancy agreement found in Flat 2.  She would take photos of the dangerous drugs being weighed on the digital scale for record purpose and to send to D2.  D1 confirmed that she had taken part in packaging the dangerous drugs as well.  

D2’S CAUTIONED VIDEO RECORDED INTERVIEWS

16.  D2 claimed in her own video recorded interviews the following.  She was D3’s girlfriend.  D2 had known D1 for around 10 years.  On the day of the arrest, it was D1 who asked her to accompany her while D1 delivered the drugs, which D2 knew was cocaine because D1 had shown them to her.  

17.  When they reached the village entrance, D1 handed over the mobile phone to her so that she can guide the man, who was coming to receive the dangerous drugs, to them.  D2 claimed she had never touched the dangerous drugs carried by D1.  She had, however, seen her boyfriend D3 bring the dangerous drugs to Flat 1 around a month before the arrest.  She did ask D3 what was inside the black nylon bag and was told that it was cocaine.  D2 claimed that D3 had passed one block of cocaine to D1 around a month ago.  D2 admitted to having been in D1’s home (Flat 2)  a few days ago, and that she knew that D1 had started to traffic in dangerous drugs about 2 or 3 months ago.  

D3’S CAUTIONED VIDEO RECORDED INTERVIEWS

18.  D3 claimed in his 4 video recorded interviews the following.  He had been living with D2 in Flat 1 for about 6 months.  On the day of his arrest, he left Flat 1 at around 7pm and had no knowledge of the drugs that the police found with D1 upon her interception.

19.  D3 claimed that he agreed to deliver the drugs found in the black nylon bag to the village entrance at $2,000 per delivery.  He had entered Flat 2 before to socialize with D1.  

20.  Government chemist subsequently confirmed the chemical and narcotic contents of all the chemical substances seized from D1 and D2, and the two flats.  

21.  In relation to D1’s home at Flat 2, based on scene inspection and laboratory findings, which included cocaine found on the seized metal pots, metal spoon and pair of scissors, shovels and digital scale, government chemist concluded that they were chemicals and paraphernalia which could have been involved in the manufacture of cocaine from cocaine hydrochloride base.  Cocaine hydrochloride and baking soda (sodium bicarbonate)  can be mixed with water and heated to become a cocaine base known as crack.  Crack is one of the two forms of cocaine usually smoked using a glass pipe.  

LEASING OF THE TWO FLATS

22.  Landlord of the Hut confirmed that D3 was the sole registered tenant of Flat 1, as stated on the rental agreement dated 3^rd July 2020.  Flat 2 was rented by D1 on 3^rd April 2021.  The landlord received rental payments in cash from D1 and D2.  The 2-month rental deposit for the Hut was also paid in cash.  

23.  The estimated street value of the dangerous drugs in counts 1, 2 and 3 are, respectively, $216,384 (in powder form)  or $262,848 (as crack); $13,519,492 (in powder form)  or $16,422,524 (as crack)  plus $134,692 for the ketamine; and $1,074,031 for the cocaine, plus $68,082 or $82,701 for the cocaine hydrochloride in powder or crack form.

24.  By their admission to the Summary of Facts, the defendants had each accepted and admitted that at all material times they had committed their respective offences in the manner as follows:

(a)  Dl and D2 had unlawfully trafficked in 174g of cocaine at the village entrance at Ko Po Tsuen North, Fanling. (count 1)

(b)  D3 had unlawfully trafficked in 137g of ketamine and 11,100g of cocaine hydrochloride at the Hut. (count 2)

(c)  Dl had unlawfully trafficked in 45.29g of cocaine and 850g of cocaine hydrochloride. (count 3)

(d)  D1 had unlawfully manufactured cocaine. (count 4)

PREVIOUS CONVICTION

25.  D1 and D2 are both of previously clear record.  

26.  D3 has two previous convictions.  He was sentenced to be detained in the Rehabilitation Centre for robbery when he was 16, and was put on probation for 18 months in 2015, when he was 19 years old, for the possession of dangerous drugs.  

D1’S BACKGROUND AND MITIGATION

27.  D1 was born in Hong Kong in August 2001 and is aged 23.  She has separated with her husband after the present case.  They have a 5 year old son together.  D1 was educated up to Form 3 level and was unemployed at the time of arrest.  

28.  In relation to count 4, Mr. Ernest Yuen, counsel for D1, reminded the court that D1 has not been charged with the dangerous drugs found in Flat 1, and that D2 and D3 have not been charged with manufacturing dangerous drugs.  

29.  Mr. Yuen pointed out that the manufacturing had gone on for about 2 months, that the scale of the workshop was small, the method of manufacturing was simple.  He submits that D1 was not the mastermind of the manufacturing operation, and was only working under the instructions of D3. It is Mr. Yuen’s position that the operation did not, and had not been likely to be able to produce substantial quantity of dangerous drugs.  

30.  Mr. Yuen said that D1 comes from an underprivileged background.  She became a mother at a young age.  Her commission of the offences was motivated by financial hardship, and she was trying to provide for herself and her child.

31.  D1 wrote to tell the court how her former husband had refused to support her and their child and so she had to bear the burden of providing for the family, which led to her being in debts, which in turn caused her to commit the present offences.  D1’s 4 sisters wrote to tell the court how D1 has always been a good natured person, how it had not been an easy life for D1, and how she is now remorseful.  

D2’S BACKGROUND AND MITIGATION

32.  D2 was born in Hong Kong in April 2001 and is aged 24.  She was 20 at the time of her commission of the offence.  

33.  D2’s parents divorced when she was 7, and she has since been living with her mother and sister in a public housing unit.  

34.  D2 was educated up to Form 6 level.  She started working as a hair-styling assistant until she saved enough money to open a mobile phone accessories shop and moved out of the family home.  That happened about 6 months before her arrest for the present case.  

35.  D2 wrote to let the court know she blames herself for being rebellious, and regrets letting her mother down, who suffers from depression.  She vows not to give up on herself and will be diligent in her studies while in remand and hope to pass her DSE English examination.  She has meanwhile obtained certificates for 2 other courses.  

36.  D2’s mother wrote, blaming herself for neglecting D2.  She tells the court that D2 is kind by nature and that her teachers used to describe her as a helpful, caring and diligent student.

37.  Mr. Caesar Lo, counsel for D2, submitted that, based on D2’s admissions, she played the role of a courier in the trafficking of the cocaine found on her when intercepted.  Mr. Lo pointed out that D2 is a first offender, that she is a young person who had gone astray due to her rebellious character and mixing with the wrong company, and that she has owned up to her mistakes and is determined to turn a new leaf.

D3’S BACKGROUND AND MITIGATION

38.  D3 was born in Hong Kong in January 1996 and is aged 29.  He is educated up to Form 5 level.  He used to work as a chef at a Japanese restaurant, earning around $17,000 per month.  He is divorced with a 3 year old daughter who lives with his ex-wife.  D3 contributes $5,000 as monthly support for his own mother.

39.  Mr. Franco Kuan, counsel for D3, told the court that D3 was made redundant during the pandemic, which led to significant financial hardship.  He committed the present offence to alleviate his financial burdens.

40.  D3’s father passed away while D3 was in remand for this case, which caused D3 considerable distress, leading to insomnia, dizziness and loss of appetite.  

41.  D3 and his family members wrote in mitigation.  D3 wrote about his remorse while his mother and sister wrote about the good personal qualities of D3, as well as seeking leniency.  

SENTENCING

42.  The maximum sentence on conviction upon indictment for trafficking in or manufacturing of dangerous drugs is that of life imprisonment and a fine of $5 million.

43.  In relation to the trafficking in dangerous drugs offences, the sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Huang Ruifang [2025] HKCA 234, and HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 are applied as follows.  

COUNT 1: AGAINST D1 AND D2: TRAFFICKING IN 174G OF COCAINE

Step 1:

44.  The applicable guideline tariff band is “8 to 12 years”.

Step 2: The defendant’s role and culpability

D1

45.  D1 had admitted in her video recorded interviews that she had taken part in the packaging of the dangerous drugs.  I find that her overall role in the trafficking of the drugs found in her possession in count 1 was that of a courier, a storekeeper, as well as someone who had taken part in the packaging of the drugs.  

D2

46.  As for D2, she had helped to guide the person who was to receive the dangerous drugs being delivered.  There is insufficient evidence in the summary of facts to find that she had taken part in the packaging of the dangerous drugs in the Hut.  Her role is that of a courier in relation to the drugs in count 1.

Step 3: The relevant band within the guidelines

47.  For 174g of cocaine, the arithmetical application of the guideline tariff would lead to a starting point of 11 years 3 months’ imprisonment.

48.  For D1’s higher culpability as someone who had taken part in the packaging of the drugs, I will adopt a higher starting point of 11 years 9 months’ imprisonment.  

49.  For D2’s role as a courier, a starting point of 11 years 3 months’ imprisonment is adopted.  

Step 4: Aggravating factor

50.  There are no aggravating factors other than the fact that count 1 was committed by more than one person.  Bearing in mind the already lengthy sentence, I exercise my discretion not to enhance the starting points on this basis.  

Step 5: Mitigating factors

51.  As much as I may sympathize with each of the defendants’ personal circumstances and the reasons behind their decision to commit the respective offences, I will refer to the following passage of the judgment in HKSAR v Lkhaijav Bayanmunkh [2012] 2 HKC 233; CACC 320/2011, at paragraph 11, where the Court of Appeal stressed that the courts had been,

“…at pains to make it clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers. Should it do so the courts are at risk of creating a group that drug traffickers can target for exploitation precisely because it is known that such persons will be treated more leniently.”

52.  The only mitigating factor for either of the defendants is, therefore, their timely guilty plea.

Step 6: totality

53.  Taking a step back, I find the sentences fair, just and balanced.

54.  In relation to Count 1, D2 is sentenced to 90 months’ imprisonment after plea.

55.  In relation to D1, if count 1 is dealt with alone, she would have received a sentence of 94 months’ imprisonment after plea.  However, since D1 faces another count of trafficking in dangerous drugs and there is close proximity in her commission of the two offences, the total drugs involved in D1’s two counts should be considered together when deciding on her sentence on the two trafficking charges.  This will be dealt with further below.  

COUNT 2: D3 ONLY, TRAFFICKING IN 11,100G OF COCAINE HYDROCHLORIDE AND 137G OF KETMAINE

56.  The applicable tariff bands are “24 to 27 years” and “6 to 9 years” for the cocaine and ketamine respectively. 

D3’S ROLE AND CULPABILITY

57.  The defendant had admitted to delivering the dangerous drugs in the black nylon bag for a friend at $2,000 per delivery.  Based on the Summary of Facts, there is insufficient evidence to infer that he had packaged the drugs inside, or that he was trafficking in them directly.  As such, he is sentenced on the basis of him being a courier.  

58.  The individual starting point for the 11,100g of cocaine hydrochloride and 137g of ketamine within the tariff bands based on his role as a courier are, respectively, that of 25 years 10 months, and 7 years.  

59.  Count 2 involved D3 trafficking in two different types of dangerous drugs.  The combined approach as propounded in HKSAR v Yip Wai Yin [2004] 3 HKC 367, and the absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong (陳旭亮)  CACC 318/2013 are applied to assist the court in arriving at the proper starting point.

ABSURDITY TEST

60.  If all 11,237g of narcotics were the more potent drug of cocaine, the notional starting point would be 25 years 10.5 months.

CONVERSION TEST

61.  For 137g of ketamine, the notional tariff starting point is 7 years.  36.7g of cocaine would yield the equivalent starting point of 7 years.

62.  If this 36.7g of converted cocaine is added to the actual 11,100g of cocaine, the starting point would be 25 years 10.1 months, which is the same as that for 11,100g of cocaine when rounded up.

RATIO TEST

63.  Based on the proportion of the two drugs, the sentence should be about 25 years 7 months.

THE COMBINED NOTIONAL STARTING POINT

64.  With reference to the above test results, and bearing in mind D3’s role and culpability, I find that a proper combined starting point is that of 25 years 10 months’ imprisonment for count 2.

Step 4: Aggravating factors

65.  The defendant trafficked in 2 different types of drugs and it is trite law that trafficking in more than one variety of dangerous drugs is an aggravating factor, because the trafficker will be able to cater to a wider market[3]. Given the relatively small quantity of ketamine involved, I will enhance the sentence by 2 months, taking the combined starting point to 26 years.

Step 5: Mitigating factors

66.  I repeat what is stated earlier about the court’s view on the personal circumstances of a defendant paling into insignificance in cases as serious as the present one.  The only mitigating factor is the defendant’s timely guilty plea, for which he will be given the usual one-third discount.  

Step 6: Totality

67.  Taking a step back, I find the sentence fair, just and balanced.

68.  D3’s sentence for Count 2 is, therefore, 208 months after plea, or 17 years 4 months’ imprisonment.  

COUNT 3: AGAINST D1 ONLY: 45.29G OF COCAINE AND 850G OF COCAINE HYDROCHLORIDE

69.  Although the total of 895.29g of dangerous drugs that were trafficked in count 3 were particularized separately as cocaine and cocaine hydrochloride, the same guideline tariff band applies to both, and D1 will be sentenced for the aggregate quantity, for which the applicable band is “16 to 20 years”.

70.  According to the Summary of Facts, the drugs were found in the living room and bedroom of Flat 2, the home of D1, who claimed under caution that she was responsible for delivering the drugs after D2 and D3 had cooked them.  It is noted that D1 had also pleaded guilty to count 4 for manufacturing dangerous drugs in Flat 2, where the paraphernalia and chemicals related to drug manufacturing were found.  This would suggest that what D1 claimed under caution at scene about how D2 and D3 had cooked the drugs was not entirely accurate, since by her guilty plea to the manufacturing charge, she had admitted that she was also involved in the cooking of the drugs there.  

71.  In any event, D1 had admitted to trafficking in the particularized drugs found in Flat 2, and she will be sentenced on this basis on count 3.  

72.  D1 had admitted to having taken part in the packaging of the dangerous drugs as stated in the Summary of Facts.  This would render her more culpable than a mere courier or storekeeper.  

73.  For 895.29g of cocaine, the guideline starting point is 17 years 7 months.  For the packaging involved, I would adopt a starting point of 18 years for the slightly higher culpability.  

74.  There are no other aggravating factors other than D1’s role in the manufacturing of those and possibly other drugs which will be dealt with when applying the principle of totality.  

75.  I repeat what is said earlier about the court’s view on the personal circumstances of a defendant not being a mitigating factor in serious drug trafficking cases.  The only mitigating factor is her timely guilty plea.

76.  The sentence against D1 on count 3 would, therefore, have been 12 years after plea if it is considered alone.

77.  However, as mentioned above, the cocaine in the joint possession of D1 and D2 in count 1, and the cocaine in the sole possession of D1 in Flat 2 in count 3 were found within close proximity.  It is trite law that in such situations, the court will sentence on the combined quantity of the drugs found[4].

78.  If the 174g of cocaine is added to the 895.29g of cocaine, the total quantity of 1,069.29g would lead to a notional starting point of 18 years 3 months for a courier or storekeeper who had not been involved in the packaging of the drugs.  Since D1 was so involved, I would adopt the combined starting point of 18 years 9 months. Therefore, the combined sentence after plea would be 12 years 6 months’ imprisonment.

79.  To achieve this combined sentence, I would sentence D1 to 94 months’ imprisonment on count 1, and 144 months’ imprisonment on count 3, both after plea, and order 6 months in count 1 to be served consecutively to the sentence in count 3, and the balance concurrently, resulting in a sentence of 12 years 6 months after plea for the two counts.  

COUNT 4

80.  In the case of HKSAR v Sum Ka Wa [2024] HKCA 760, the appellant pleaded guilty to two counts of trafficking in dangerous drugs and one count of manufacturing of a dangerous drug.  The facts were that D1 was intercepted when coming out from a residential premises being in possession of 405g of cocaine and 3,025g of cocaine hydrochloride[5].  D1 was charged alone for trafficking in these dangerous drugs (count 1).

81.  D1 was brought back into the premises, where the appellant was found, together with 900.19g of cocaine, 19,061.33g of cocaine hydrochloride; 3,574.42g of heroin; 433.33g of ketamine; and 8.22g of ‘Ice’.

82.  Inside the premises were also an abundance of utensils, paraphernalia and containers used in the manufacturing and packaging of cocaine, which became the subject-matter of count 4, the manufacturing charge, which the appellant faced alone.

83.  The appellant was also charged alone for the drugs found on D1 (count 2), jointly with D1 for trafficking in the drugs found in the premises (count 3).

84.  The estimated street value of all dangerous drugs seized that day was assessed at about HK$38.2 million.

85.  The Court of Appeal made the following general observations about sentencing in cases where large manufacturing and trafficking operations were inextricably linked.

86.  First, it is vitally important the sentencing judge retains some overall perspective, otherwise an exercise in arithmetic alone may lead to error and result in distorted and extremely long sentences.  The Court proceeded to state that a realistic prevailing sentencing limit for trafficking in dangerous drugs is that of 35 years’ imprisonment after trial.  

87.  Secondly, the Court reiterated that it had long been held that the offence of manufacturing is to be regarded even more seriously than the offence of trafficking, because “the amount of drugs found in the premises where manufacturing is taking place will invariably be a small part, perhaps only a fraction, of the drugs actually manufactured and the capacity of the operation.” The Court, therefore, found that the learned trial judge’s adoption of the same starting point for the trafficking of the drugs found in the premises as the manufacturing charge incorrect as a matter of principle.  The raw material found, being 19kg of cocaine hydrochloride and 1.22kg of sodium bicarbonate would have yielded an enormous quantity of cocaine base for commercial trafficking and the enterprise was clearly a continuing one.

88.  The Court quoted the following passages of the English translation of the judgement of Yeung VP in HKSAR v Cheng Chi Wai (鄭志偉)  [2021] HKCA 181, CACC 50/2019:

“31. The quantity of drugs seized at a drug-manufacturing workshop must be one of the relevant factors affecting sentencing as the quantity of drugs seized shows, to some extent, the size and productivity of the drug-manufacturing workshop, and it also reflects the seriousness of the offence.

32. However, apart from the quantity of drugs seized, the length of time for which the drug-manufacturing workshop has existed and operated, its scale and productivity, the quantity and standard of drug-manufacturing paraphernalia, the extent to which the defendant participated in the drug-manufacturing and the role he played in the matter are all important factors to be taken into account in sentencing…”

“…35. This Court cannot ignore the fact that the purpose of setting up a large-scale and productive drug-manufacturing workshop cannot simply be for manufacturing a small quantity of drugs just once. Over a long period of operation, the quantity of drugs that these drug-manufacturing workshops can produce must be extremely large and certainly would far exceed the quantity of drugs seized on the spot at the workshops. The sentence must therefore reflect the seriousness of these offences. Even if the quantity of drugs seized on the spot is not significant, the sentence for ‘drug-manufacturing’ offences must be substantially higher than that for ‘trafficking’ in the same amount of ‘drugs’.

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.”

89.  The Court in Sum Ka Wa also proceeded to state that:

“unless the capacity of the manufacturing enterprise is shown to be on an industrial scale, with massive quantities of dangerous drugs being produced, or capable of being produced, for consumption both locally and abroad, we consider that a realistic upper limit for the offence of manufacturing dangerous drugs, borne out of the practical experience of our courts over the past four decades, should be 38 years’ imprisonment.”

90.  The third observation that the Court had was that caution should be exercised when ordering partly consecutive and partly concurrent sentences, lest the resulting sentence be too great for the overall criminality of the defendant.  In any event, be it making other sentences concurrent to the principle offence or adding to it, the sentencing court must always apply common sense and have an overall appreciation of the criminality involved, so as to arrive at the proper sentence.  

91.  The Court then proceeded to apply their own above observations to the appellant’s case and found what he did amounted to a course of serious criminal conduct, all inter-related, and all of which occurred on the same day, at the same time and in essentially the same place.  It was a drug manufacturing operation, with the manufacturing charge as the principle offence (count 4), while the drugs to be trafficked were in counts 2 and 3.  

92.  The Court found that the assessment of the gravity of the manufacturing count, being the most serious, would require reference to the quantities of dangerous drugs in counts 2 and 3, among other things.  Since the quantity of dangerous drugs in the two counts are taken into consideration when assessing the criminality of the manufacturing count:

“it was important that the making of partly consecutive sentences did not inflate the overall sentence when using the same quantity of dangerous drugs to arrive at both the starting point for trafficking and the starting point for manufacturing. The better and safter course, given that counts 2 and 3 obviously derived from, and were inextricably linked with, count 4, was to make all sentences concurrent.”

93.  The Court further remarked that the drugs in counts 2 and 3 ought to have been dealt with as though they had been found together and formed one count of trafficking in dangerous drugs, as in accordance with ordinary principles.  If that was done, had the drugs in count 2 be added to that in count 3, the extra quantity would not have made any appreciable difference to the sentence on count 3, and as such there was no need for any consecutive element as between the sentence in the two counts.  

94.  The Court found that given the scale and continuing nature of the manufacturing, the significant role of the appellant, the vast quantities of dangerous drugs produced and the enormous profits that would have been generated, they would have assessed the starting point for the manufacturing charge at 36 years’ imprisonment.  A timely plea would have resulted in a sentence of 24 years’ imprisonment.  

95.  The Court stressed that the appellant had played a significant role in manufacturing vast quantities of dangerous drugs for trafficking, and that he must have intended to continue with his manufacturing and trafficking operations, but find that the approach to sentencing him that would least likely lead to an inflated or distorted result by factoring the same considerations into different counts of trafficking and manufacturing was to order all sentences for the 3 counts to run concurrently.  

96.  The appeal was allowed and sentence reduced to 24 years imprisonment for all 3 counts after plea.  

97.  Given the comparatively smaller size of the operation in the present case, I would like to refer to the following two paragraphs in the judgment of Yeung VP in HKSAR v Cheng Chi Wai (鄭志偉)  [2021] HKCA 181, CACC 50/2019 that was not quoted by the Court of Appeal in Sum Ka Wa:

“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 Wong Chun Ping 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.”

98.  In the present case, on 12^th July, D1 was in possession of 174g of cocaine with D2 and they were on the way to deliver the drugs to someone at the village entrance.  It is not clear from the Summary of Facts if D1 was involved in the manufacturing of this 174g of cocaine.

99.  In Flat 2, there were 43.79g of cocaine, a packet containing 850g of cocaine hydrochloride, 540g of sodium bicarbonate, and manufacturing paraphernalia.  Based on the presence of these materials, the Government chemist found that cocaine had or could have been manufactured from the cocaine hydrochloride base.  The Government chemist did not state how much of cocaine could have been manufactured from the materials found in Flat 2.

100.  D1’s lease for Flat 2 commenced on 3^rd April 2021.  The arrest was on 12^th July 2021.  

101.  The street value of the cocaine and cocaine hydrochloride found in Flat 2 was about $1.7 to $1.8 million.

102.  It is not clear from the Summary of Facts if D1 had admitted to manufacturing the dangerous drugs found in Flat 1, or whether she had conducted manufacturing of dangerous drugs in Flat 1.  It is, however, a fact that D1 had not been charged with trafficking in the huge quantity of dangerous drugs in count 2, which D3 alone faces.  There is no suggestion in the Summary of Facts that the drugs in count 2 were part of the products of D1’s manufacturing.

103.  Be that as it may, I find that based on the available facts, the only reasonable inference must be that the manufacturing was not a one-off event and had been going on for some time.  But for the intervention of the police, D1 would have continued with the manufacturing in Flat 2, and D1 must have played, and would have continued to play, a significant role in the manufacturing.  

104.  Based on the quantity of raw materials and the paraphernalia present in Flat 2, I find that the manufacturing operation can be regarded as a small to medium sized operation.

105.  Given D1’s role and culpability, and considering all the circumstances of the offence and the above cited sentencing principles, I adopt a starting point of 22 years 6 months’ imprisonment against D1 for count 4.  

106.  I repeat what is said above in relation to the personal circumstances of an offender in serious cases not being considered a mitigating factor.  The only mitigating factor is the defendant’s timely guilty plea.

107.  This sentence is discounted to (180 months)  15 years’ imprisonment after plea.  

TOTALITY IN RELATION TO D1’S COUNTS 1, 3 AND 4

108.  As mentioned above, D1’s combined starting point for the two trafficking charges in counts 1 and 3 is 18 years 9 months’ imprisonment, which becomes 12 years 6 months’ imprisonment after plea.

109.  I find that even if I assumed all the drugs in counts 1 and 3 were manufactured by D1, I would still have adopted the same starting point in count 4.  Bearing in mind the observations of the Court of Appeal in Sum Ka Wa, I will order all 3 sentences to be served concurrently, resulting in a sentence of 15 years’ imprisonment after plea for counts 1, 3 and 4.

FINAL SENTENCES

D1: counts 1, 3 and 4

110.  Concurrent sentence of 15 years’ imprisonment after plea.

D2: count 1

111.  7 years 6 months’ imprisonment after plea.

D3: count 2

112.  17 years 4 months’ imprisonment after plea.