COURT: The defendant has pleaded guilty in the Magistrates’ Court to two charges. He pleaded guilty to one count of trafficking in a dangerous drug, unlawfully trafficking in 569.02 grammes of a solid containing 410.3 grammes of cocaine, Charge 1. He pleaded guilty to one count of manufacturing a dangerous drug. He did or offered to do an act preparatory to or for the purpose of manufacturing a dangerous drug, namely cocaine, Charge 2. He was committed for sentence on 14 August 2023 and today confirms his pleas and agreement to the Summary of Facts.
Summary of Facts
The defendant was arrested as a result of an anti-narcotics operation targeting premises rented in his name. When he left the premises, Flat G, 8th Floor, Tower 9, Park Signature, Yuen Long, in the evening of 16 November 2021, he was arrested. Police had been waiting outside the premises. They immediately entered the premises and a search warrant was executed.
On the kitchen bench and in a cupboard above it, the police found bags of cocaine, baking soda, cooking utensils and other paraphernalia commonly associated with the process of converting cocaine hydrochloride to cocaine base or crack cocaine.
Inside a cabinet near the bed inside the bedroom, they found more cocaine, a large quantity of empty transparent resealable plastic bags, as well as a bag containing phenacetin. The government chemist inspected all the items and equipment found in the premises and concluded the scene showed all the equipment necessary for and evidence of cooking or processing cocaine hydrochloride to cocaine base.
The process of manufacturing crack cocaine is simple and fast. All that is required is cocaine, water, baking powder or baking soda, cooking utensils and a source of heat. Crack cocaine is more potent and more expensive than cocaine.
The defendant was arrested for manufacturing a dangerous drug and under caution at the scene he told the police he had no money, so he went online and taught himself how to manufacture dangerous drugs to sell. Selling crack cocaine will make more profit than selling cocaine.
The defendant agreed that he was a named tenant renting at $9,500 per month from 9 November 2021 to 8 November 2023. He also agrees that the estimated market retail value of the cocaine seized was $994,646.96.
Mitigation
The defendant is now 22 years old, born raised and educated up to Form 2 in Hong Kong. He is single and at the time of arrest was unemployed. Prior to that, he was working as a casual construction worker earning approximately $15,000 a month. He did live with his great grandmother, grandmother and a sister who is a student. The defendant comes from a broken family and raised by grandmothers from a young age.
I have been told being unemployed, he was tempted by the lure of quick money to support his own as well as his grandmothers daily expenditure. Under the influence of peers, he let them use his name to rent premises and set up the operation in the flat. He did not pay the rent nor was he a mastermind of the operation. He did not buy the drugs found in the premises worth nearly $1 million. He was not working on his own as a one-man band but for others.
The defendant is not a man with a clear record. In September 2018, he was sentenced to a detention centre order for trafficking in dangerous drugs. This is his second conviction for trafficking in dangerous drugs. Counsel for the defendant, Mr Iu, has urged me to take into account his plea at the earliest opportunity, his relatively young age and the fact that the manufacturing operation was not of a large scale nor off his own back. He was essentially an employee taught how to convert cocaine into crack cocaine and had only been doing it for a few days before his arrest.
Mr Iu has said all he can say on behalf of the defendant in mitigation. The best mitigation here is the defendant’s plea of guilty at the earliest opportunity.
Sentencing
Charge 1
It is well established that trafficking in a dangerous drug is a very serious offence. I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, that was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guidelines the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized. The tariff for the drug cocaine which applies equally to trafficking heroin is set out in the authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370, and where between 400 and 600 grammes of cocaine is trafficked, the starting point after trial should be between 15 to 20 years’ imprisonment.
Here we have 410.3 grammes of cocaine, therefore mathematically speaking, that amount of dangerous drugs will attract a starting point of 15 years and 3 months’ imprisonment.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. When arrested, the defendant took full responsibility as he admitted under caution that he learnt online how to cook the cocaine which he would then sell. He appears to admit this operation was set up by himself only, essentially a one-man band. However, in mitigation, there was a different explanation and that is he was not in a financial position to rent a flat, set up the operation and buy or had the ability to take on consignment, nearly $1 million worth of drugs himself. He agreed to do it for others, taking the risk for a reward.
Having heard that mitigation, I accept it and will take the view he was a foot soldier, courier, storekeeper and cook. Bearing in mind the fact that he has been charged with manufacturing as well, Charge 2, I will not take that last job or role into account; strictly speaking, it is not part of trafficking dangerous drugs anyway but an entirely separate offence. I would not enhance or consider it in my starting point for Charge 1 here, that is taking into account his last role as a cook or a manufacturer because the sentence for Charge 2 will reflect it instead.
This means the starting point for Charge 1 is to be determined by the relevant tariffs and the quantity of dangerous drugs involved for the third step. That will be 15 years and 3 months’ imprisonment as calculated above according to the relevant authorities.
The fourth and fifth steps require me to consider whether there are any aggravating or any exceptional mitigating factors. There are no mitigating factors other than his plea of guilty at the earliest opportunity. He does have one previous similar conviction which I will, on this occasion, not take into account as an aggravating factor.
As I have said, the defendant’s timely plea means he will benefit from the full one-third discount. When I apply that discount to the starting point of 15 years and 3 months’ imprisonment for Charge 1, the defendant is sentenced to 10 years and 2 months’ imprisonment.
Charge 2
Those involved with manufacturing play a more significant role than a courier or a storekeeper. It is a more serious offence than trafficking per se. After all, it can reasonably be inferred that more dangerous drugs were to be manufactured, packed, and delivered, than those that were seized at the time of the defendant’s arrest. It is a well-known principle that sentences for manufacturing offences are often far heavier than those of trafficking offences.
I have referred myself to R v Cheung Wai Kwong and Another [1997] HKLRD 344. In manufacturing cases, the quantity of drugs seized is not the sole consideration in determining a starting point, although it does give an idea of the scale of the operation. Other factors include the capacity of the equipment found, the output of drugs at the manufacturing premises as well as the role played by the defendant. I have referred myself also to HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408 where the Court of Appeal has laid down some guidelines for in particular the scale of the operation concerned.
I have been urged to consider this as an unsophisticated operation of a small scale, and since we know the premises had only been recently been rented in the defendant’s name for a period of two years, therefore this operation could only have been up and running for a matter of days.
Since we have a quantifiable amount of cocaine in this case, the guidelines for trafficking cocaine and the starting point I consider appropriate for Charge 1 is relevant. I take into account premises had been rented and the manufacturing process would have been continuous if not interrupted. There was a lot of cocaine in the premises to be manufactured. This was not a case of renting a hotel room for one night to cook crack cocaine. However, I accept it was not a large scale operation nor was the defendant, although he was a cook, the mastermind or sole operator.
Taking into account those factors I find relevant, it is appropriate to take a starting point of 17 years and 3 months for the manufacturing charge, Charge 2. I have increase the starting point of trafficking that amount of cocaine by 2 years to reflect the seriousness of this manufacturing charge.
Now after applying a discount of one-third to that starting point of 17 years and 3 months for Charge 2, the defendant is sentenced to 11 years and 6 months’ imprisonment.
Conclusion
Accordingly I sentence the defendant as follows.
For Charge 1, I sentence the defendant to 10 years and 2 months’ imprisonment.
For Charge 2, I sentence the defendant to 11 years and 6 months’ imprisonment.
After I have considered the totality principle and the facts of this case together, I will order that the sentences for Charge 1 and 2 be served concurrently. Therefore, the defendant is sentenced to a total of 11 years and 6 months’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just, and balanced in all the circumstances, of not only the offence but also the defendant. In this case, the sentence of 11 years and 6 months is substantial and significant but it cannot be judged for that reason alone to be unfair, imbalanced, or unjust in the circumstances and facts here.
Accordingly, the defendant is sentenced to 11 years and 6 months’ imprisonment.