CRIMINAL CASE NO. 156 OF 2011
COURT: The 1st defendant has pleaded guilty to trafficking in a dangerous drug, namely 309.9 grammes of a solid containing 221.06 grammes of cocaine and manufacturing a dangerous drug, namely, cocaine.
The 2nd defendant has pleaded guilty to the same trafficking offence to which the 1st defendant has pleaded guilty and has also pleaded guilty to the offence of being a tenant of premises to be used for the unlawful manufacturing of a dangerous drug, namely, cocaine.
These charges arise out of an anti-dangerous drug operation conducted by a team of police officers on 4 November 2010. At about 8.20 pm the 1st and 2nd defendants were seen walking out of Flat C, 33rd Floor, Residence Oasis Tower 7, Tseung Kwan O (the premises), and searched.
Police found inside a handbag carried by the 2nd defendant a brown paper bag containing 65 small packets of crack cocaine, the drugs the subject of the 1st count on the indictment.
Upon arrest and under caution the 2nd defendant admitted that she was assisting her boyfriend, the 1st defendant, to deliver the cocaine.
The 1st defendant, under caution, also admitted that the cocaine belonged to him and he had requested the 2nd defendant to carry the cocaine for him because he believed that police seldom conducted searches on females.
The police then took both defendants back to the premises for a house search. The police used keys seized from the 2nd defendant to gain entry to the premises.
Inside the rooms of the flat there were paraphernalia and equipment for manufacturing cocaine from cocaine hydrochloride. There were a plastic bag, porcelain cups, plastic containers, two electronic scales, sieves, a metal hammer, some spoons, some bowls and a ventilation fan. There were also three boxes containing a total of 1.38 kilogrammes of a powder containing sodium bicarbonate.
At the premises the police seized altogether 1,042.976 grammes of solids containing 498.85 grammes of cocaine and 133.42 grammes of solids or powder containing 119.14 grammes of cocaine hydrochloride.
The cocaine hydrochloride and sodium bicarbonate that were found at the premises were capable of being used as the starting materials for the production of cocaine base, that is crack cocaine. The scales and the fan at the premises were all found to contain cocaine and would have been used for weighing and air drying the cocaine base product.
The porcelain cups, the spoons, the hammer, the sieves and the metal rack seized from the premises were all found to contain cocaine. This indicates that these paraphernalia were used in the process of making crack cocaine.
The ventilation fan blade and the air-conditioner filter were both found to contain traces of cocaine indicating that a handling process of cocaine had taken place at the premises.
The 1st defendant under caution admitted that he manufactured crack cocaine in the premises because crack cocaine fetched a higher price than cocaine hydrochloride. He said that after he finished cooking the cocaine he would pack it into small packets and deliver it in accordance with instructions he would receive from another.
The 1st defendant further admitted that he and the 2nd defendant were on the way to deliver the cocaine in Mongkok when they were intercepted.
The 2nd defendant under caution admitted that she had lived at the premises since March 2010, but she denied involvement in the drug manufacturing. Nevertheless she admitted knowledge of the cocaine and the paraphernalia for manufacturing crack cocaine in the premises.
The premises had been rented in the 2nd defendant’s name since March 2010. As the tenant of the premises the 2nd defendant had permitted the 1st defendant to manufacture crack cocaine in the premises.
The total crack cocaine seized at the podium in the 1st count had an estimated retail value at the time of its seizure of HK$356,385. The total crack cocaine and cocaine hydrochloride seized at the premises in the 2nd and 3rd count had an estimated retail value of HK$1,319,893.
In different cases the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when sentencing a defendant convicted of a drug trafficking offence.
The first is that for sentencing purposes cocaine is to be treated as the same as heroin. Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained. Thus the quantities to which these defendants must be sentenced is 221.06 grammes of cocaine in respect of the 1st charge; and 498.85 grammes of cocaine and 119.14 grammes of cocaine hydrochloride in respect of the 2nd charge.
Thirdly, the sentencing ranges for trafficking in heroin and cocaine are taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming & Others [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There the Court of Appeal said that for amounts of between 200 to 400 grammes the sentencing range should be 12 to 15 years’ imprisonment.
However, these sentencing tariffs do not apply to the offence of manufacturing a dangerous drug which is a more serious offence than trafficking and warrants a heavier sentence.
For the offence of manufacturing a dangerous drug the Court of Appeal said in HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 that the quantity of drugs seized might give an idea of the scale of the manufacturing operation but was not the sole or dominant consideration in determining the starting point. It said that the considerations for determining the proper sentence included the quantity of drugs produced, the scale of operation, the capacity of the equipment, the output of drugs at the manufacturing station and the role played by the accused.
The Court of Appeal went on to say that only in exceptional cases should the sentence be less than 10 years’ imprisonment.
The existence of these sentencing tariffs leaves little room for mitigation. But notwithstanding this the sentencing tariffs play a very important role for two main reasons. Firstly they lead to consistency in sentencing and they do this by removing distinctions between drug traffickers who are couriers or storekeepers and generally ignore the particular role played by the trafficker. Effectively everyone involved in drug trafficking is subject to the same tariffs, see HKSAR v Manalo [2001] 1 HKLRD 557.
By achieving consistency in sentencing the courts avoid disparities in the levels of sentence which understandably can lead to feelings of grievance.
Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits. The Court of Appeal said in Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20:
“It is important to follow the guidelines so that people who engage in such evil business can be assured of the length of the inevitable custodial sentence, and hopefully such an approach will be a deterrent.”
In the Chan Ka Wah case the Court of Appeal made it clear that the sentence imposed should normally be within the suggested bands and that it requires exceptional circumstances to justify a departure from the guidelines. No such circumstances are present in this case.
Nevertheless, I still have some sentencing discretion. I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender and any previous involvement he or she may have had in drug offences, see HKSAR v Abdallah [2009] 2 HKLRD 437.
But there are certain matters that the Court of Appeal has said cannot be treated as mitigation. Relevant to this case are the fact that the defendant has a clear record and youth (other than extreme youth). There is little mitigation present in this case other than the plea of guilty.
I accept that the 2nd defendant’s involvement was the result of her association with the 1st defendant and that she assisted him in a relatively minor way. But assist him she did. She allowed him to use the premises for manufacturing cocaine and she delivered the drugs for him. The 1st defendant’s claim that he was new to drugs is more difficult to accept.
In respect of the trafficking charge, the quantity of drugs is within the 12 to 15 years’ imprisonment band as it covers trafficking in 200 to 400 grammes. As the quantity is 221.06 grammes I adopt 12 years as my starting point. I discount that sentence by one-third to allow for the plea of guilty. The resulting sentence is 8 years’ imprisonment.
For the manufacturing charge I take into account the size of the operation, the capacity of the manufacturing equipment and the role played by the 1st defendant.
The Government Chemist’s statement makes it clear that cocaine hydrochloride is just a water soluble form of cocaine which is consumed by snorting or injection, whilst cocaine base, which is water insoluble, is consumed by smoking. The latter is made from the former through a conversion process. As both are just different forms of cocaine it is only right to treat both of them as the narcotic for sentencing purposes. Thus, the total amount of narcotic that was seized at the premises is 617.99 grammes.
Had the charge been trafficking, this amount of narcotic would have been within the 20 to 23 years’ imprisonment band. Were it to be combined with the drugs, the subject of the 1st charge, then the total narcotic would be 839.05 grammes.
A sentencing court dealing with two counts of trafficking in circumstances similar to those present here would normally combine the two amounts and sentence the defendant for the total amount of narcotic found on his person in the street and back at the premises he occupied. However, because the charge is manufacturing I am required to adopt a higher starting point than I would have adopted for trafficking.
For the 2nd charge I adopt 21 years as my starting point and reduce it by one-third to allow for the plea of guilty. The resulting sentence is 14 years.
I must then decide whether it should be made wholly or partially consecutive to the trafficking offence. The only justification for not making it wholly consecutive is the totality principle. A wholly consecutive sentence would result in a sentence of 22 years’ imprisonment and in my view that would be disproportionate to this defendant’s criminality and would result in a crushing and unjust sentence.
I therefore order that 8 years only of the sentence for the manufacturing offence be served consecutively to the sentence for the trafficking offence and I therefore sentence the defendant to a total sentence of 16 years’ imprisonment.
In respect of the 2nd defendant and the offence of permitting premises to be used for manufacturing a dangerous drug, I note that the maximum sentence is 15 years’ imprisonment. Here the 2nd defendant was clearly aware of what the 1st defendant was doing and, in fact, was assisting him in distributing the cocaine he was manufacturing.
This is a serious offence and I adopt a starting point of 6 years’ imprisonment. I reduce it by one-third to allow for the plea of guilty and this results in a sentence of 4 years’ imprisonment.
I have then considered whether it should be made partially or wholly consecutive to the sentence for the trafficking offence. Again, the only justification for not making it wholly consecutive is the totality principle.
The resulting sentence of 12 years’ imprisonment would in my view be disproportionate to this defendant’s criminality and result in a crushing and unjust sentence. I therefore order that only 2 years of the sentence for permitting premises to be used for manufacturing a dangerous drug be served consecutively to the sentence for the trafficking offence.
I therefore sentence the 2nd defendant to a total sentence of 10 years’ imprisonment.