COURT: The defendant pleaded guilty to one count of manufacturing a dangerous drug, and one count of trafficking in dangerous drugs, namely, 106.14 grammes of a solid containing 90.84 grammes of cocaine and 0.35 grammes of a solid containing 0.31 grammes of cocaine hydrochloride.
The defendant rented a room in Block C, Kuen Yick Building, in Yuen Long which I will refer to in short as “the Flat”, for two years, from 1 September 2021 to 31 August 2023, for a monthly rent of $8,600 and was given four keys to access the Flat. An estate agent assigned by the owner of the Flat visited the Flat in mid-January 2022 and everything was normal.
In the morning of 26 May 2022, the defendant was found lying on the ground near Kuen Yick Building and bleeding. The case was reported to the police. At about 9.43 am, police officers arrived at the scene and the defendant was then sent to the hospital. On the ambulance, the defendant told the police that he jumped off the building from the 5th floor and mentioned “drugs” and “owed others money”.
The police subsequently located the Flat and forcibly entered the Flat at about 12.05 pm. In different locations in the Flat, the police found a number of items including the following:
(i) the tenancy agreement with the defendant as the tenant;
(ii) two paper boxes containing a total of 947 grammes of a powder containing sodium bicarbonate, a substance used as an alkaline material for the preparation of crack cocaine;
(iii) one white paper bag containing a bunch of resealable transparent plastic bags;
(iv) four beakers containing a total of 0.05 grammes of a solid containing cocaine and paracetamol, which suggests that the paracetamol could have been used as an adulterant in cocaine;
(v) one plastic bag containing one spoon and a total of 189 grammes of a solid containing paracetamol;
(vi) one opened paper box and a spoon containing a total of 379 grammes of a solid containing sodium bicarbonate;
(vii) drug manufacturing paraphernalia including a
stainless steel sink, a sealing machine, a heat ventilator, plastic containers, syringe, thermometer, sieves and spoons;
(viii) 15 transparent plastic bags, one baking soda paper box and 12 plastic gloves in a rubbish bag in the room; and
(ix) a combined total of 106.14 grammes of a solid containing 90.84 grammes of cocaine, and 0.35 grammes of a solid containing 0.31 grammes of cocaine hydrochloride. The total narcotic content is 91.15 grammes of cocaine, which formed the basis for Count 2.
At around 7.30 pm on 26 May 2022, the defendant was arrested in Tuen Mun Hospital.
After the government chemist inspected the scene and the items found in the Flat, he opined that all the chemicals and paraphernalia seized were commonly associated with the process of making crack cocaine.
The defendant’s left thumb print was found on the sealing machine. In a black Samsung phone seized from the Flat, a total of 260 photos and three videos covering the period from 16 February to 21 April 2022 showing weighing and packing of drugs were found.
As at May 2022, the street value of 106.14 grammes of cocaine, that is the gross weight, was estimated at HK$96,375 (in powder form) and HK$142,864 (in crack form), and that 0.35 grammes of cocaine hydrochloride was HK$318.
The defendant admitted that he manufactured cocaine at the Flat, he knew the nature of the drugs in the Flat and he unlawfully trafficked in them.
Background and Mitigation
The defendant was 32 years old at the date of the offence and is now 35 years old. He finished education up to Form 5. Afterwards, he had worked in Hong Kong, South America, Vietnam and Malaysia. The defendant then worked as an interior designer apprentice in Hong Kong since 2021. Due to the pandemic, he became unemployed and committed the present offences in order to make money.
The defendant has no previous criminal record. In mitigation, the defendant’s counsel, Ms See, invited me to consider that the operation of the manufacturing is not on a large scale, the defendant was not the mastermind of the operation, his participation in the manufacturing was limited, the defendant had pleaded guilty at the first earliest opportunity, and he is genuinely remorseful.
Sentencing Considerations
Count 2 (Trafficking)
I will first deal with Count 2, which is the trafficking charge.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. Applying the guidelines laid down in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437, the relevant sentencing band for trafficking 91.15 grammes of cocaine is between 8 to 12 years’ imprisonment.
For trafficking in a total of 91.15 grammes of cocaine, a mathematically calculated place within the relevant sentencing band would be 9 years 1 months’ imprisonment, after rounding down.
On the evidence, there is nothing to suggest that the defendant had any role beyond an ordinary storekeeper for the purposes of Count 2. I therefore assess his culpability on Count 2 on that basis, as his role and culpability in processing the cocaine is considered in Count 1. I do not see any basis for departing from the mathematically calculated starting point insofar as Count 2 is concerned.
Count 1 (Manufacturing)
Next, Count 1, the manufacturing count. I consider the sentence approach in the manufacturing of dangerous drugs as set out by the Court of Appeal in R v Cheung Wai Kwong and Another [1997] HKLRD 344 and HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408.
In Cheung Wai Kwong, the Court of Appeal emphasised that manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs, as the person involved in the manufacturing process is nearer to the source of evil than the trafficker, and deserves a heavier sentence.
The tariffs in deciding a proper sentence for the offence of manufacturing dangerous drugs were listed out by the Court of Appeal in Cheung Wai Kwong at page 348 (b) to (f) and Cheng Chi Wai at page 409. The court would need to consider the role and participation of the accused, the scale of the operation and its productivity, the length of time the workshop had operated, the capacity and standard of the equipment, and whether the workshop had been producing or is likely to produce substantial quantities of dangerous drugs. The quantity of drugs seized at the manufacturing workshop is a relevant but not the only relevant factor.
On the appropriate sentence, the Court of Appeal in Cheng Chi Wai gave the following guidance:
(i) If the manufacturing act was one-off rather than continuous, a starting point slightly higher than that for trafficking in the same amount of drugs might be appropriate.
(ii) If the manufacturing act was continuous, and the workshop was of considerable scale and productivity involving a large amount of chemicals and high-standard manufacturing paraphernalia, then even if the amount of drugs seized on the spot were not substantial, the starting point should not be lower than 20 years’ imprisonment.
In the present case, I accept that the manufacturing workshop was not large scale. The amount of paraphernalia found in the Flat were limited, production capacity would appear to be fairly limited, and the equipment as well as the setup was not sophisticated. However, evidence from the Samsung mobile phone seized at the scene showed that the workshop operated at least for two months between 16 February and 21 April 2022. It was continuous and not an one-off operation.
In these circumstances, I will adopt a starting point of 10 years and 6 months’ imprisonment for Count 1.
The only mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point which brings the sentence on Count 1 down to 7 years’ imprisonment, and the sentence on Count 2 down to 6 years’ imprisonment.
Considering the overlapping nature of the two charges, the sentences on both counts will be served concurrently.
Defendant, I sentence you to a total of 7 years’ imprisonment.