HKSAR v. CHU PAK LAM

HCCC 394/2019

[2021] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 394 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, on 25 November 2019, you pleaded guilty to two charges at the Eastern Magistracy before a magistrate. The 1st charge is that of manufacturing a dangerous drug. The 2nd charge is that of trafficking in a dangerous drug. The two charges were committed on 27 August 2018, at the 2nd Floor of Sections B and C, of Kat Hing Wai, Lot No 209, in Demarcation District No 109, Pat Heung, Yuen Long, New Territories. In the 1st charge, you admitted to manufacturing a dangerous drug, namely, cocaine at those premises and in respect of the 2nd charge, you admitted to trafficking in 162.8 grammes of cannabis in herbal form at those premises. The premises as referred to in the Summary of Facts is a village house.

On that date, at about 1 pm, police officers arrived there with a view to conducting an anti-narcotics operation and executed a search warrant at the house. The officers went up to the 2nd Floor of the house and saw you opening the door and coming out of the house. As soon as the police officer disclosed his identity to you, you immediately shut the door and locked yourself inside the house. Despite the officers demanding you to open the door, you did not and therefore they broke into the house. Upon entering into the house the officers saw you running along the corridor towards the living-room. However, you were eventually subdued after a brief struggle.

Upon a house search the drugs were found. As admitted today in the Summary of Facts the amount of drugs found in purity of cocaine was 1,449.79 grammes. Also found were the sealing machine, a box of plastic gloves, paper towels, electronic scales, scissors and a cup and a cooler box, so there was much paraphernalia used in respect of manufacturing drugs found. The two stoves found there also contained traces of cocaine. There were also three paper boxes, each containing about 450 grammes of sodium bicarbonate found.

When you were arrested and cautioned, you admitted that the items inside the house were for you to, I quote, “cook and package” the dangerous drugs. You admitted that the two bags of cannabis belonged to you. The keys of the house were found in your possession.

In a video-recorded interview, you claimed you had been living in the house for around two months and you paid the rent for the house and half of the utility bills. However, at that time you were unemployed. You admitted that the paraphernalia and utensils seized were used by you to manufacture cocaine. You further admitted that you had possession of all the dangerous drugs found. In the video-recorded interview, you were able to recount and explain how the manufacturing process took place in the house and identified the items used to manufacture cocaine. You explained the plastic gloves were used to conceal your fingerprints.

The government chemist who attended the scene at the house confirmed that there was manufacturing of drugs conducted there. He found that the solid containing cocaine hydrochloride could be the starting material of the process of conversion of cocaine hydrochloride to cocaine base. One of the plastic bags was found to actually contain cocaine base which was the final product of the process of conversion. The sodium bicarbonate found was the alkaline chemical used for the conversion.

The other paraphernalia, such as the cup, the bowl, the metal spoons, the basins, the scissors which contained traces of cocaine, could have been used in handling the cocaine. The two stoves, which were found to contain traces of cocaine, could have been used as the heating sources for the process. The electronic scale, which was found to contain traces of cocaine, could also have been used as a weighing device for the process.

The total estimated street value of all the cocaine seized was $2,331,069 of cocaine powder, or $2,530,986 of crack cocaine and $35,002 of herbal cannabis.

Through your plea of guilty and in the Summary of Facts, you admit that you had manufactured cocaine and you were in possession of the herbal cannabis for the purposes of trafficking.

Defendant, you are 26 years of age and single. You were born in Hong Kong. You have two previous convictions; that of misleading a police officer by giving false information and using a vehicle with false identifying marks, both convicted and sentenced on 13 December 2016, to which you were ordered to serve 160 hours of community service.

In mitigation by your counsel, Ms Joyce Wu, she informs the court that your parents got divorced when you were very young and hence grew up in a broken family. You have lost contact with your 71-year-old father but have very close contact with your mother who is here today, she is 61 and retired. You have received education up to Secondary level 2 and have had a history of employment working as an assistant chef, warehouse attendant and delivery worker until March 2018 when you became unemployed. When you were employed, you had contributed some $3,000 to $4,000 a month to your mother.

The reason for you committing this offence, I am informed, was because of financial difficulty. As can be seen, you have been unemployed for a period of about five months prior to the commission of the offence and you were lured into this dangerous drugs business by peers in order to earn quick cash. Ms Wu informs me that you are very remorseful for your misdeeds and you are determined to stay away from drugs and hope to take care of your mother and fulfil your filial duties when you are released.

Ms Wu has correctly and properly referred to the guidelines for trafficking in drugs and cannabis and the factors that should be taken into account when sentencing for dangerous drugs.

In this case, the strongest mitigating factor is your early plea of guilty at the first opportunity. For that you will be given the full one-third discount.

It is well settled law and goes back to the decision in R v Cheung Wai Kwong & Anor, [1997] HKLRD 344, Chan J, as he then was, that the offence of drug manufacturing is much more serious than trafficking in drugs and warrants a heavier sentence.

In HKSAR v Kam Kwong Fai, [2009] 3 HKLRD 582, the court there cited with approval the factors to take into account when sentencing for manufacturing in dangerous drugs that were laid down in Cheung Wai Kwong. In drug manufacturing cases, the quantity of drugs seized might give an idea of the scale of the operation but was not the sole or dominant consideration in determining the starting point. The consideration for determining the proper sentence included the quantity of drugs produced, the scale of the operation, the capacity of the equipment, the output of drugs at the manufacturing station and the role played by the accused.

In this case, the police seized inside the premises 1.44 kilogrammes of cocaine hydrochloride. The paraphernalia and raw materials found inside the house were for making crack cocaine. The process of manufacturing crack cocaine is simple and fast. The scale of the operation in the present case cannot be considered to be small.

The street value of the cocaine powder was some $2.3-odd million. If it was converted to crack cocaine, it would be $2.5-odd million. A substantial quantity of drugs was there for manufacturing. Defendant you were the one who was actually manufacturing the drugs and converting the cocaine to crack cocaine. You therefore played a major role in the manufacturing process. You were also the tenant and occupier of those premises and paid the rent for those premises.

Defendant, the quantity of cocaine seized was about 1.4 kilogrammes or 1,449.79 grammes. Had you been trafficking in this quantity of drugs, the leading case and guideline for trafficking in cocaine is that of Abdallah. Trafficking in 1,200 to 4,000 grammes of cocaine would attract a starting point of between 23 to 26 years’ imprisonment, if you had been convicted after trial. Taking into account the quantity of drugs had you been convicted after trial, I would have taken a starting point of 23 years’ imprisonment.

As the offence of drug manufacturing is much more serious than trafficking and warrants a heavier sentence, I enhance that sentence by 2 years, making the starting point that of 25 years’ imprisonment. You pleaded guilty at the first opportunity and I discount from that sentence by one-third and you shall therefore serve the sentence of 16 years and 8 months’ imprisonment on Charge 1.

In respect of Charge 2, you were trafficking in 162.8 grammes of cocaine in herbal form. I sentence you to 1 month’s imprisonment. Taking into account the totality principle, I order that term of 1 month to run concurrent to the term of 16 years 8 months’ imprisonment.

So the total is 16 years 8 months’ imprisonment.