COURT: The two defendants, Wong Ho-kei (D1) and Wong Man-wai (D2), were jointly charged with three offences: Manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, that is the 1st count; trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the same ordinance, that is the 2nd and the 3rd count. They both pleaded guilty to all three counts before a magistrate and both were committed to the Court of First Instance of the High Court for sentence.
The Facts of the Case
Police officers mounted an anti-narcotics operation on 4 August 2021 outside a flat in Park Yoho, Yuen Long. Both D1 and D2 emerged from the flat and both tried to go back inside when they noticed the presence of the police. Both were intercepted.
Inside the rucksack carried by D1, 13 packets of 222 grammes of a solid containing 182 grammes of cocaine were found. D1 also possessed keys to the Park Yoho flat. The flat was searched on the strength of a search warrant. From the table and floor inside one of the rooms, the police found items and drug manufacturing paraphernalia including bowls, pots, scissors, sieve, beakers, plastic bags, electronic scale, portable gas cookers, electronic cooker, air purifier, vacuum sealing machine and solid containing phenacetin and paracetamol. A total of 1,001.56 grammes of cocaine was found as well.
A scientist from the government laboratory gave an opinion that the manufacturing of cocaine base with the use of phenacetin and paracetamol as adulterants could have taken place at the flat. The cocaine base so produced is in the form commonly known as ‘Crack’ and they would commonly be dried before packaging.
D1 was arrested for trafficking in a dangerous drug and manufacturing a dangerous drug. Under caution, he admitted trafficking and manufacturing dangerous drug to repay debt for his family. He knew that was wrong. In a subsequent video-recorded interview, D1 admitted among other things that he met someone called Ah Keung and told the latter, Ah Keung, about his family financial problems. So Ah Keung told him that he had a job opportunity to offer. So D1 gave his mobile number to Ah Keung.
Later, someone contacted D1 and offered him a job. He was told to collect raw cocaine which he did. Afterwards, he purchased manufacturing equipment on the instruction of an unknown man via the mobile phone and also taught him how to mix the raw cocaine with the powder and how to heat, solidify, dry, and grind the whole product.
D1 understood that the manufacturing process was of a dangerous drug and D1 had known D2 for 6 to 7 years and he knew D2 also had financial difficulties. So he asked D2 to take part in the operation. D1 also shared his reward with D2. D1 let D2 pack the cooked cocaine into plastic bags after he cooked the cocaine and was broken into smaller pieces.
At the time of the arrest, he was instructed to leave the flat to make a delivery but was arrested. He was supposed to earn 13,000 to 15,000 for the job but he had not received the money yet. He said all the cocaine found inside the flat were manufactured by him, the flat was rented in his name.
D2 was arrested for the offence of manufacturing dangerous drug upon the discovery of the drug manufacturing equipment inside the flat. Under caution, D2 admitted committing the offence for money. D2 was also arrested for conspiracy to traffic in a dangerous drug upon dangerous drug being found on D1’s person and inside the flat. Under caution, D2 admitted trafficking in a dangerous drug with D1 as he was in need of money.
In a subsequent video-recorded interview, D2 said he became unemployed during the pandemic and owed debts for around $100,000. D1 knew he was in need of money and asked him to help out. D2 did not know what he had to do until he arrived at the flat. He then knew the job was drug related. D1 was responsible for manufacturing the dangerous drug and D2 the packaging. He would weigh the cocaine and put them into bags with a weight of 24 grammes each. D2 admitted the cocaine found inside D1’s rucksack was packed by him. A total of 1,474.76 grammes of a solid containing 1,183.56 grammes of cocaine was seized from the flat and on D1.
The estimated street value at the time was $1,693,024 in powder form, and HK$2,159,049 in crack form.
Both D1 and D2 accepted and admitted that at all material times, they manufactured the cocaine found at the flat and knowingly possessed all the cocaine seized for the purpose of unlawful trafficking.
Background and Mitigation
First, D1. According to the antecedent statement, D1 was born in 1994 so he is now 29 years of age. He has a clear record. He received tertiary education in the United States and worked as a storekeeper until he became unemployed in March 2021.
The defendant is single, he has a father aged 65, a mother aged 57, and three brothers who all lived apart. And that, of course, was when the antecedent statement was taken, they should be a bit older now.
In mitigation, Ms Vivian Wong for D1 submitted that the defendant studied psychology in Hong Kong and then went to Maryland in the US to study mechanical engineering and business. D1 had to cut short his study due to family problems. D1’s parents were divorced and his father was said to be a gambler, incurring debts of over a million dollars and had extramarital affairs. D1’s mother suffered from serious depression and attempted to kill herself a few times. That was the reason why D1 returned to Hong Kong during his third year of study.
There had been occasions when D1’s mother was hurting herself and D1 rushed home from work. As the sole breadwinner to support his mother and three younger brothers who are all students, D1 worked full-time as a kitchen staff. He also worked part time in a logistic company or in a karaoke at night. He earned a total monthly salary of $20,000 and gave a significant portion of 15,000 to his family. D1 lost his job due to the pandemic and the economic downturn about six months before these offences.
Ms Wong submitted that in respect of the 1st count, that is the manufacturing count, no quantity is specified and the basis of the charge was the cocaine found under Count 2 and also the phenacetin and paracetamol found inside the flat. Ms Wong also submitted that since D1 admitted the cocaine found in his rucksack was part of the cocaine manufacturing in the flat, the two quantities should be considered together in consideration of the overall gravity of the trafficking in a dangerous drug and the manufacturing dangerous drug charges.
For the 1st count, Ms Wong referred this Court to the case of R v Cheung Wai Kwong and Another and HKSAR v Kam Kwong Fai, regarding the factors to be taken into consideration for sentence. Ms Wong submitted that the manufacturing was done in a “home setting”. Only two persons were involved and the number of each equipment ranged from one to three. The operation went on for about a week, that is from late July to 4 August. Ms Wong submitted that only 15 per cent of the cocaine manufactured by D1 was being trafficked by him and D2, which was different from the case of HKSAR v Chan Wang Mei referred to by the prosecution. In that case, 85 per cent was being trafficked.
Ms Wong submitted the six-step approach for trafficking in a dangerous drug set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph is applicable here. With the combined quantity of 1,118.56 grammes, Ms Wong submitted a starting point of 22 years and 11 months appropriate, having referred to the case of HKSAR v Lau Tak Ming and HKSAR v Abdallah.
Now, as to the role of D1, Ms Wong submitted that as he was taking instructions from another unknown person, D1 did not take up a management role in the hierarchy. D1 was asked to rent a flat under his name in May 2021. It was only in July 2021 that he was instructed to deal with the drug. Whilst D1’s role was more than that of a courier, he acted under instructions and was not the one who took control of the activities. D1 admitted he had asked D2 to work with him when he knew D2 was also in financial difficulty. D1 was prepared to share his reward with D2. Ms Wong, in her written submission, submitted that both D1 and D2 were in the same rank in the hierarchy.
Ms Wong submitted that D1 fully accepted his financial difficulty was not a valid reason to commit the offences. In mitigation, Ms Wong stressed that the defendant pleaded guilty at the first practical opportunity, made full admission after arrest, and is genuinely remorseful. Ms Wong also stressed that D1 had a clear record and planned to continue studying. Ms Wong invited this court to consider a concurrent sentence for all three charges as the combined quantity of dangerous drugs in the 2nd and the 3rd count had already been factored when considering the 1st count.
Ms Wong also invited this Court to pass a sentence as lenient as possible so as not to crush the hope of D1 who was genuinely remorseful and had a concrete plan to start anew.
The defendant’s parents and maternal uncle had written to this Court, asking for leniency on behalf of D1. D1 was described as a kind-hearted person who was willing to help others. When D1 was studying in the US and staying with his maternal uncle who is a pastor, D1 cut short his study when he learned of the impending divorce of his parents, thinking he could mediate and help change their minds. In the end, his parents were divorced, which was a blow to D1. D1 had learned a lesson. They all asked this Court to give D1 a chance so that he can reunite with his family earlier.
D1 also wrote to this Court explaining why he cut short his study and came back to Hong Kong to help out. He explained that he felt as the oldest son, he needed to shoulder the responsibility of taking care of the family. Due to financial difficulties, when his business failed, he resorted to commit the present crimes. He expressed his deep remorse and his wish to further his studies while in gaol.
D2
According to the antecedent statement, D2 was born in 1997, so he is now 26 years of age. He is not a first offender. He had four previous convictions, three are triad related. He admitted to be a member of the Sheung Shui Wo Shing Wo triad society.
D2 had one previous conviction of trafficking in a dangerous drug in 2020 and he was sentenced to 3 months’ imprisonment. D2 was educated up to Form 3 level and worked as a cook from 2013 to 2021 and then became unemployed. Defendant is single and lived with his parents and an elder brother prior to his arrest.
In mitigation, Mr Anthony Yuen for D2 submitted, as disclosed in D2’s video-recorded interview, that he was badly in need of money after he lost his kitchen job due to the pandemic. And he also borrowed money from loan sharks.
D1 decided to help D2 to solve the money problem. Mr Yuen submitted that the role of D2 was minor as he only helped in packaging the cocaine. Mr Yuen stressed that D2’s family members who are very concerned about his situation and deeply regretted for not having given D2 suitable guidance.
Regarding the sentence, Mr Yuen referred this Court to the authorities for the trafficking of cocaine and submitted that since the cocaine in the 2nd and 3rd count clearly came from the same source, the total amount should be taken to consider the appropriate starting point. Mr Yuen submitted that a starting point of 23 years would be appropriate.
As for the manufacturing count, Mr Yuen submitted this Court should take into account the quantity of dangerous drugs produced, the scale of the operation, capacity of the equipment, output of drug at the manufacturing station, and the role played by the defendant.
D2 and his sister wrote to this Court asking for leniency. D2 related to the financial problem he faced after he was laid off. He said he dare not tell his family the true position so he went out each day pretending to go to work while seeking employment. He started borrowing money to make ends meet and committed the present offences to earn quick money. D2 is remorseful and would use his time in gaol to study. He begged for leniency so that he could be released earlier to take care of his parents.
D2’s sister said she worked as a tour guide, so she was away from Hong Kong a lot. She said D2 was a well-behaved and hardworking person, helpful to others and loving to family. D2’s sister said due to their mother’s ill health, D2’s older brother and herself engaged in their work, they failed to supervise D2 so D2 was influenced by bad elements and committed such serious offences. When the family visited D2, D2 showed deep remorse. The whole family begged this Court to give D2 a chance and pass a lenient sentence on D2.
Consideration and Reason for Sentence
For the offence of manufacturing a dangerous drug and trafficking in a dangerous drug, the punishment is the same. A person convicted on indictment is liable to life imprisonment and a fine of $5 million. For the offence of manufacturing, this Court had to bear in mind that manufacturing is much more serious than the trafficking or possession of dangerous drug. A person involved in the manufacturing process was clearly nearer to the source of evil than a trafficker and deserve a heavier sentence (see the cases of Wong Chun Ping, R v Cheung Wai Kwong and the case of HKSAR v Ip Yuet Ho).
Factors to be taken into consideration include the quantity of dangerous drug, which is just one factor to be taken into consideration, the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drug, and the role played by the defendant. The fact that a total of 1,183.58 grammes of cocaine had been manufactured on the day of the offence showed that the manufacturing station with the equipment found was capable and would be capable if the defendant had not been arrested in the manufacture of at least 1 kilogramme of cocaine in a weeks’ time.
While D1 took instructions from others, he was nevertheless the one who had rented the place and was responsible for the actual cooking of the cocaine.
There was indeed no evidence that D1 was in the management rank of the hierarchy, but he was the main person who actually manufactured the dangerous drugs cocaine. His role, while not that of a mastermind, still cannot be said to be insignificant. I take into account the fact that D1 recruited D2 to assist in the manufacturing operation and promised to pay D2 from the reward he was going to get. No doubt, with another pair of hands doing the packaging, the manufacturing process would be quickened. The offence is more serious when more persons are involved.
I reject Ms Wong’s submission on differentiating the present case from that of Chan Wang Mei on the basis of percentage of dangerous drugs being trafficked. Realistically and common sense would tell us that the ultimate purpose of manufacturing dangerous drug was for the purpose of trafficking. Therefore all the cocaine found inside the flat was also for the purpose of trafficking. So the fact that it so happened they had not been delivered yet does not change this fact.
So having considered all the factors I mentioned, I am of the view that a starting point of 26 years appropriate for the 1st count. That is for D1.
D2’s role was packaging the cooked cocaine and he was recruited by D1 to help. So D2’s role is slightly less serious than that of D1. I am of the view that a starting point of 25 years is appropriate.
D2 had a previous conviction of trafficking in a dangerous drug but I bore in mind that the sentence was 3 months’ imprisonment which indicate the offence was not serious. I will not enhance the starting point on D2 on account of this previous similar.
So they both pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. So with the discount, the sentence is one of 17 years and 4 months for D1 and 16 years and 8 months for D2.
Now, in respect of the two trafficking charges, that is the 2nd and the 3rd count. Both offences were committed on the same day and the facts were closely linked. So the proper approach was to have regard to the total amount of dangerous drug in these two counts to arrive at an overall starting point. Cases supporting this is Chow Yu Chi, Cheung Kwok Leung, and Wong To.
Now, adopting the six-step approach in Herry Jane Yusuph, one, the total quantity of cocaine was 1,183.56 grammes. So according to the case of Abdallah, this quantity falls under the bracket of between 600 and 1,200 grammes with a starting point between 20 to 23 years.
Second point, both defendants were involved in the trafficking. They both possessed the cocaine found inside the flat for the purpose of unlawful trafficking. D2 packed the cocaine found inside D1’s rucksack and then performed the delivery job when they were both intercepted.
While there was no evidence either D1 or D2 was the mastermind, their respective role was more important and more culpable than that of a courier. They in fact manufactured the dangerous drug in question. So as far as trafficking in a dangerous drug is concerned, I do not think I should differentiate the role of D1 and D2.
So the third point. Having considered the circumstances of the offences and the defendant’s role, I am of the view that a notional after trial starting point of 23 years is appropriate for D1 and D2.
The fourth point. There are no aggravating factors to enhance this starting point. I have already mentioned that I would not enhance the starting point with D2’s previous conviction.
So the fifth point is both defendants pleaded guilty at the earliest available opportunity and so is therefore entitled to a full one-third discount.
So the sixth point is with the discount, the sentence is one of 15 years and 4 months.
The Totality
Clearly, I need to look at the totality of sentence, having regard to their respective culpability to arrive a fair and just sentence for all three offences. While I appreciate the quantity of cocaine trafficked by both defendants have already been taken into account for the manufacturing offence, the offence of trafficking dangerous drug is clearly distinct from the manufacturing offence even though the dangerous drug trafficked was a product of the manufacturing performed by both defendants. I do not agree that the sentences imposed for manufacturing and trafficking should all run concurrently.
So having considered the totality principle, I am of the view that an overall sentence of 18 years and 6 months is appropriate for D1 and for D2 an overall sentence of 17 years and 8 months.
So to achieve this, D1 will be sentenced as follows: 1st count, the manufacturing dangerous drug count, 17 years and 4 months; 2nd count, trafficking in a dangerous drug, 15 years and 4 months; the 3rd count, trafficking in a dangerous drug, 8 years. The sentence on the 2nd and 3rd to run concurrently, making a total of 15 years and 4 months. And then 1 year and 2 months of the sentence on the 2nd and 3rd count to run at the expiration of the 17 years and 4 months imposed on the 1st count, then making a total of 18 years and 6 months.
For D2, the 1st count, manufacturing dangerous drug, 16 years and 8 months; 2nd count, 15 years and 4 months; 3rd count, also 8 years. And then the sentence on the 2nd and 3rd to run concurrently, making a total of 15 years and 4 months. 1 year of the sentence on the 2nd and 3rd count to run at the expiration of the 16 years and 8 months imposed on the 1st count, then making a total of 17 years and 8 months.