COURT: The defendant, Ma Tsz-wing, faced the following three counts: two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, that is the 1st and the 2nd count; and one count of manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the same ordinance.
The defendant pleaded guilty to all three counts before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The Facts Admitted by the Defendant
On 8 June 2021, police conducted an anti-drug operation near the ground floor of Tower 3, Oceans Waves, Victoria Skye in Ngau Tau Kok. They spotted the defendant and another male leaving this Tower 3 furtively. The defendant was then holding a paper bag.
When the police tried to intercept the two of them, they ran away. And during the attempt to escape, the defendant threw away the paper bag which was later retrieved by the police.
The defendant was subdued at the basement carpark of Tower 3. Upon search of the paper bag which the defendant had thrown away, a total of 17 plastic bags containing 381.9 grammes of a solid containing 196 grammes of cocaine were found, that is the 1st charge.
Then two mobile phones and a resident card for Oceans Waves, Victoria Skye were found from the defendant’s person. The defendant was then brought to Room L, 28th Floor of Tower 3 which was a studio flat and a search took place. The following items were found in the open kitchen area and the living space of the room:
(1) A plastic bag containing 463 grammes of a solid containing 421 grammes of cocaine hydrochloride;
(2) a plastic bag containing 65.5 grammes of a solid containing 36.9 grammes of cocaine;
(3) a plastic bag containing 1 kilogramme of a solid containing 915 grammes of cocaine hydrochloride;
(4) 12 plastic bags containing a total of 277 grammes of a solid containing 144 grammes of cocaine;
(5) two paper boxes, one of them was opened and with one spoon inside, containing a total of 2.13 kilogrammes of a powder containing sodium bicarbonate, which is not a controlled substance;
(6) a glass bowl containing 0.11 grammes of a solid containing 0.04 grammes of cocaine;
(7) a scraper containing 0.05 grammes of a solid containing cocaine;
(8) a pair of scissors containing 0.01 grammes of a solid containing cocaine;
(9) two electronic scales;
(10) a cutter containing 0.01 grammes of a solid containing cocaine;
(11) a metal pot containing 0.30 grammes of a solid containing traces of cocaine;
(12) a sieve containing 0.04 grammes of a solid containing cocaine;
(13) a plastic lid, a pair of chopsticks and a ladle collectively containing a total of 0.38 grammes of a solid containing 0.2 grammes of cocaine;
(14) a pair of chopsticks containing 10.5 grammes of a solid containing 5.88 grammes of cocaine;
(15) a ladle for picking up rice containing 1.46 grammes of a solid containing 0.78 grammes of cocaine;
(16) a sealing machine containing 0.03 grammes of a solid containing cocaine;
(17) a drying machine and a lid containing traces of a solid containing cocaine;
(18) a multi-layered plastic wrapping containing traces of cocaine; and
(19) a rental receipt in the name of the defendant.
So in total, 1,463 grammes of a solid containing 1,336 grammes of cocaine hydrochloride, 355.09 grammes of a solid containing 187.8 grammes of cocaine and 0.3 grammes of a solid containing traces of cocaine were found inside the room, that is the 2nd charge.
As a result of a scene investigation conducted by a government forensic scientist and the subsequent laboratory findings, the forensic scientist is of the opinion that, considered collectively, the chemicals and the paraphernalia seized at the scene were items commonly associated with the process of making cocaine base from cocaine hydrochloride and the process could have taken place, that is Charge 3.
The defendant admitted he unlawfully trafficked the dangerous drugs particularised in the 1st and 2nd charge and manufactured cocaine inside the room.
Background and Mitigation
Defendant was born in 1999, so he is now 24 years of age. He is a single man with a clear record. So according to the antecedent statement, the defendant was educated up to the first year of university. At the time of the arrest, he was a student.
In mitigation, counsel for the defendant, Mr David Ma and Mr Deryk Yue submitted that the total amount of cocaine trafficked as in Charges 1 and 2 was 1,719.80 grammes.
Adopting the six-step approach in Herry Jane Yusuph, the tariff for trafficking such an amount of cocaine is 23 to 26 years. The defendant was no more than a courier or a storekeeper except that he processed the cocaine in the flat.
The defendant’s role in manufacturing the cocaine could be sufficiently reflected in the sentence of Charge 3, so there is no need to make an upward adjustment.
Defence counsel submitted that a starting point of 23 years 6 months would be appropriate for Charges 1 and 2. Defence counsel submitted there were no aggravating factors save that the defendant’s admission of manufacturing in Charge 3.
The mitigating factor is the defendant’s timely plea. It is submitted that the global starting point of 23 years and 6 months is a fair and just one.
As for the manufacturing of cocaine, defence counsel referred to the case of Cheng Chi Wai regarding the relevant factors to be taken into consideration. After referring to the equipment found, defence counsel submitted the operation was not on a large-scale and the defendant was not the mastermind of the operation.
Counsel submitted that a starting point between 25 years 10 months and 28 years 2 months, representing a 10 per cent to 20 per cent upward enhancement of the global starting point for Charges 1 and 2 would be fair.
Counsel submitted that a final global starting point of a term between 26 to 27 years after considering totality would be appropriate. With the full one-third discount, the final sentence should be around 17 years 4 months to 18 years.
Consideration of sentence
For the offence of manufacturing dangerous drugs and trafficking in a dangerous drug, the punishment is the same. That is 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 drugs. A person involved in the manufacturing process was clearly nearer to the source of evil than a trafficker and deserved a heavier sentence. The case in support is Wong Chun Ping and Cheung Wai Kwong also Ip Yuet Ho.
Factors to be taken into consideration include the quantity of dangerous drugs, which was 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 was slightly to produce substantial quantities of dangerous drugs, and the role played by the defendant.
The total amount of cocaine seized in this case that is 1,719.80 grammes would give one an idea how much cocaine this manufacturing station was capable of producing. Clearly, this manufacturing station was capable of producing a substantial quantity of the dangerous drug, cocaine.
Realistically, the defendant would have gone on to manufacture cocaine but for the fact that his act was interrupted by the police.
Bearing in mind the trafficking of such a quantity of cocaine would attract a notional starting point of 23 to 26 years, that is to be explained in great detail later when I deal with the two trafficking offences.
And bearing in mind this appears to be a one-man band kind of operation, the scale of operation was not particularly large, although not small, and the defendant was not the mastermind. I am of the view that a starting point of 26 years is appropriate. With a full one-third discount, the sentence is one of 17 years and 4 months.
Now for the offence of trafficking of cocaine, I will adopt the six-step approach decided in the case of Herry Jane Yusuph.
So the first step, the cocaine seized in the 1st count was clearly closely related to the cocaine hydrochloride and the cocaine in the 2nd count and I will combine the two to arrive at an overall starting point.
The case in support is Chow Yu Chi, Cheung Kwok Leung and Wong To. The total amount is 1,719.8 grammes which falls under the 1,200 to 4,000 grammes bracket with a starting point of 23 to 26 years, that is the case of Abdallah.
The second point is the defendant’s role was that of a manufacturer, storekeeper and deliverer of the drugs. However, as I have already separately considered the defendant’s role as a manufacturer, I will not take that into account here to avoid double counting.
I must, however, emphasise here that the defendant was not merely a courier, he was actively involved in the trafficking of the dangerous drug, cocaine as well as a storekeeper.
Bearing in mind the role played by the defendant, I am of the view that a notional starting point of 24 years is appropriate. Apart from the manufacturing of the cocaine here, there is no other aggravating factors in the trafficking. I have already indicated that I will not take the manufacturing into account. So for this step, there are no aggravating factors.
Now the fifth step is the mitigating factor. The only mitigating factor is the defendant’s timely plea. Defendant is entitled to a full one-third discount. So with the discount, the sentence is one of 16 years for Charges 1 and 2.
The last step is I now have to stand back and consider what is a fair, just and balanced sentence for all three offences. Clearly, it would not be proper to order all sentences for the three offences to run completely consecutively.
Having considered the totality principle, I am of the view that a sentence of 18 years is fair, just and balanced. A sentence of 18 years would be equivalent to a global starting point of 27 years for all three offences which would properly reflect the criminality involved.
To achieve this, I will order 2 years of the 17 years and 4 months sentence on the 3rd charge to run consecutively to the 16 years imposed on the 1st and 2nd charge.
Actual sentence
Count 1, 16 years’ imprisonment. 2nd count, 16 years’ imprisonment. 3rd count, 17 years and 4 months’ imprisonment.
The sentence of 16 years for Counts 1 and 2 to run concurrently. 2 years of the 17 years and 4 months for Count 3 to run at the expiration of the 16 years imposed on Counts 1 and 2, making a total of 18 years.