COURT: The defendant pleaded guilty in the Magistrates’ Court to one count of conspiracy to manufacture a dangerous drug and one count of conspiracy to traffic in a dangerous drug. He was committed for sentence on 15 May 2023. Today, he confirms his plea as well as his agreement to the Summary of Facts.
Facts
On 10 November 2021, police carried out an anti-narcotics operation in and around International Industrial Centre in Fo Tan, Shatin, New Territories. At around 8.10 pm, the defendant was intercepted coming down the lift as he entered the lift lobby. As soon as he was intercepted and the police revealed their identity, he dropped a white bag and resisted the officers. He was subdued and admitted he had come from Room J2 on the 14th floor.
In the white bag, the police found a transparent resealable plastic bag containing 36 transparent resealable plastic bags containing a total of 166 grammes of a solid containing 124 grammes of cocaine.
He was arrested and cautioned and after that, he admitted possession of the cocaine because he was unemployed and needed to earn some quick money. He told the police he had rented a flat on the 14th floor. The defendant had keys to the premises and was escorted upstairs.
In a workshop, J2, on the 14th floor, the police discovered ample paraphernalia for cooking cocaine. That is manufacturing or making crack cocaine or cocaine base from cocaine hydrochloride using sodium bicarbonate or baking soda. Crack cocaine is more expensive than cocaine hydrochloride. It is more profitable for drug traffickers.
The police found a container holding 3.34 grammes of a solid containing 2.27 grammes of cocaine, other containers and liquid containing cocaine or traces of cocaine in them. The air-conditioner filters of the workshop contained traces of cocaine. Separately, from 13 plastic bags and a paper towel inside the workshop, the police found a total of 266.95 grammes of a solid containing 208.47 grammes of cocaine. Therefore, a total of 211.81 grammes of a solid containing 210.74 grammes of cocaine were found inside the room.
The defendant was arrested and cautioned again and admitted possession of all the items inside the workshop. Further investigation revealed the defendant had rented the premises on 14 October 2021. He signed a one-year lease.
In a subsequent video-recorded interview, he was very frank. He told the police he was before COVID pandemic, a chef but lost his job during it and was in desperate need of money. He met someone called ‘Lok Chai’, his named co-conspirator, in early October 2021, who offered him a way to make quick money. He was told to rent a workshop with all the proceeds provided by an unknown person. He was told to buy utensils and was given a list. Days later, he was told to collect cocaine in Tai Po, which was sufficient to make two batches of crack cocaine. He was taught over the phone by an unknown man how to cook the cocaine.
The process only requires baking powder, water and a source of heat. After he cooked the crack cocaine, he was told to package it in resealable plastic bags of different weights using electronic scales and a sealing machine he had bought. He then delivered that first batch over three occasions as directed, hiding it in a bush near a public toilet in Chun Yeung Estate. He received $4,000 cash as a reward for manufacturing and delivering this batch of crack cocaine.
There was then a second occasion, when he was again told to collect cocaine in Shatin in early November and told to manufacture crack cocaine from it according to the instructions he had received on the first occasion. He made a second batch on the second occasion and had made two deliveries to the same bush by the same public toilet. It consisted of five packets of 25 grammes each of crack cocaine, a total of 125 grammes.
He was arrested the following day when he was about to make a third delivery of it, totalling 124 grammes. What the police found in the workshop was a further 13 packets of 25 grammes already manufactured or processed but yet to be delivered.
Therefore, according to the defendant’s own frank admissions, the crack cocaine for the second batch he manufactured was quantifiable and consisted of 459.74 grammes. The police found 334.74 grammes on the day of his arrest and he admitted he had already delivered from this second batch 125 grammes, making a total of 459.74 grammes.
The amount manufactured and trafficked for the first batch is not quantifiable but according to his own admissions, he was given a similar amount of cocaine hydrochloride to cook on both occasions.
Mitigation
The defendant is now 21 years old and single. He has an elder sister who is studying in the Mainland. At the time of his arrest, he was living with his mother in Mong Kok. In mid-2021, he was working as an apprentice chef but lost his job due to the pandemic. The defendant is a man with a clear record.
He was financially destitute when this Lok Chai offered him a job in manufacturing crack cocaine and delivering it for a financial reward. He very foolishly agreed to join in a conspiracy to manufacture and to traffic in a dangerous drug. Mr Wong has said all he can say on his behalf in mitigation. His best mitigation is his plea of guilty at the earliest opportunity. I have read and had been shown letters from the defendant and his mother. Sadly, they carry little weight for such serious offences.
Sentencing
Let me deal with Charge 2 first. In considering the approach to sentencing the defendant, I have taken into account HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 that was very recently discussed by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150. Although this Charge 2 is a conspiracy to traffic, in the approach to sentencing those that traffic in dangerous drugs, six steps have been identified which the court should take. They are assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all of the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guidelines according to the drugs seized, if possible. Here, Charge 2, as I have said is one of conspiracy to traffic in a dangerous drug where the defendant conspired with Lok Chai and other persons unknown to unlawfully traffic cocaine. The amount has not been quantified in this charge. However, the amount found by the police on the defendant and in the workshop alone totalled 334.74 grammes.
The tariff for those that traffic in cocaine follows the tariff for those that traffic in heroin and is laid down in R v Lau Tak Ming and Others [1990] 2 HKLR 370. Those that traffic between 200 and 400 grammes will be sentenced to between 12 and 15 years’ imprisonment after trial. Those that traffic between 400 and 600 grammes will be sentenced to between 15 to 20 years’ imprisonment. Those that traffic between 600 and 1,200 grammes will be sentenced to between 20 to 23 years’ imprisonment.
The amount found by the police, 334.74 grammes, within itself attract a 14-year term of imprisonment after trial. If I add the 125 grammes already delivered from the second batch as disclosed by the defendant, then the total of 459.74 grammes would in itself attract a 16 year and 6 months term of imprisonment after trial. I would also perhaps take into account the trafficking of the first batch manufactured by the defendant, which according to the defendant’s own admissions was more than likely of a similar amount.
Now, the second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. When arrested, the defendant took full responsibility when he admitted under caution that he was taught how to cook the cocaine which he would then deliver. He agreed to set it up and do the delivery, taking the risk of a reward.
Now, having heard mitigation, I accept and take the view that he was a foot soldier, courier, storekeeper, and a cook. Bearing in mind the fact that he has been charged with conspiracy to manufacture as well, Charge 1, I would not take that last job or role into account. Strictly speaking, it is not part of trafficking dangerous drugs anyway but an entirely separate offence. I would not enhance the starting point for Charge 2 by taking into account this last role as a cook or manufacturer because the sentence for manufacturing will reflect it instead.
Normally, for the third step, the starting point for Charge 2 would be determined by the relevant tariffs and the quantity of dangerous drugs involved. Here, I intend to take that 16 year and 6 months starting point for the cocaine quantifiable for the second batch and enhance it by 2 years. I find a starting point of 18 years and 6 months appropriate for the conspiracy to traffic in dangerous drugs count, Count 2.
I do not find any other aggravating factors or rather exceptional mitigating factors other than the defendant’s plea at the earliest opportunity.
Count 1
Those involved with manufacturing play a more significant role than just a courier or a storekeeper, it is a more serious offence than trafficking per se. After all, it can reasonably be inferred that more dangerous drugs were or were to be manufactured, packed and delivered than those that were seized at the time of the defendant’s arrest. By his own admission, the defendant had already manufactured a batch of crack cocaine and delivered it all before starting on the second batch. It is a well-known principle that sentences for manufacturing offences are often far heavier than those of trafficking offences.
I have referred myself to R v Cheung Wai Kwong and Another [1997] HKLRD 344. In manufacturing cases, the quantity of drugs seized is not the sole consideration in determining a starting point, although it does give an idea of the scale of the operation. Other factors include the capacity of the equipment found, the output of the drugs at the manufacturing premises as well as the role played by the defendant. I have also referred myself to HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, where the Court of Appeal has laid some guidelines for in particular the scale of the operation concerned.
I have considered this was an unsophisticated operation of a fairly small scale and we know that the premises had only recently been rented in the defendant’s name for a period of one year.
However, I take into account the manufacturing process would have been continuous if not interrupted. This is not a case of renting a hotel room for one night to cook crack cocaine. However, I accept it was not a large-scale operation, nor was the defendant although the cook, the mastermind or sole operator.
Taking into account those factors I find relevant, as well as the starting point I find appropriate for conspiracy to traffic in a dangerous drug, I will take a starting point for Charge 1 of 20 years and 6 months’ imprisonment.
Now, the defendant is entitled to a discount of one-third to both starting points.
Therefore, for Count 1, I sentence the defendant to 13 years and 8 months’ imprisonment.
Count 2, I sentence the defendant to 12 years and 4 months’ imprisonment.
I have considered the facts of the case and the totality principle. I will order that the sentences for Charge 1 and 2 be served concurrently.
I do stand back and look at the overall in order to ensure that it is fair, just, and balanced in all the circumstances of not only the offence but also the defendant. In this case, the sentence of 13 years and 8 months is substantial but it cannot be judged for that reason alone to be unfair, imbalanced, or unjust in the circumstances and the facts.
Accordingly, the defendant is sentenced to a total of 13 years and 8 months’ imprisonment.