COURT: The defendant is charged with two counts of trafficking in dangerous drugs and one count of manufacturing dangerous drugs. The 1st charge involved 50.7 grammes of cocaine. The 2nd charge involved a total of 416 grammes of ketamine and 107.36 grammes of cocaine. The 3rd charge of manufacturing involved an allegation that he unlawfully manufactured cocaine inside certain industrial premises. He pleaded guilty before the Magistrate’s Court and was committed for sentence before the Court of First Instance.
Facts of the Case
The three charges were committed on the same day, 3 March 2021, as a result of an anti-dangerous-drugs operation conducted by the police.
At around 4.40 pm of that day, the defendant was observed to have walked quickly into Kam Foo Industrial Building (“the Building”). About 12 minutes later, he was observed to be walking out of a room inside the Building (“the Room”). He was subdued and apprehended by the police after his attempt to flee and a brief struggle. It was found that the defendant was the tenant of the room.
Upon search, the police found on his person a total of three transparent resealable plastic bags containing 50.7 grammes of cocaine. This forms the basis of Charge 1. The police also found approximately HK$34,000 in cash, and three mobile phones from the defendant. Upon arrest for the trafficking offence, the subject of Charge 1, and under caution, the defendant admitted selling cocaine to others to earn money because he was, at the time, unemployed and was suffering from financial hardship.
At around 4.58 pm, equipped with a search warrant and with the defendant’s consent, the police gained entry into the Room in question and conducted a search therein. As a result, the police found a total of 416 grammes of ketamine and 107.36 grammes of cocaine. That forms the basis for Charge 2. Upon arrest for the trafficking offence, the subject of Charge 2, and under caution, the defendant admitted that he would sell the cocaine and ‘K Chai’ to others.
In the Room, the police also found an air-conditioner filter, an electric fan above the induction stove, and three paper boxes containing a total of 803.8 grammes of sodium bicarbonate. A number of drug manufacturing or packaging paraphernalia were also seized inside the room, including two electronic scales, a pair of scissors, a box of non-reusable gloves, a box of zip bags, a marker, a cutter, five bags containing a large number of unused transparent resealable plastic bags, a hammer wrapped with a plastic wrapping, and a heat sealer (collectively “the paraphernalia”). Some of these paraphernalia were found to contain traces of cocaine or to have actually contained cocaine therein. The police declared arrest of the defendant for manufacturing dangerous drugs upon which the defendant remained silent.
A tenancy agreement was obtained from the landlord of the subject room. It was found that the defendant had signed an agreement to rent the Room on 11 December 2020, the tenancy to start on 1 January 2021 for a period of two years at a monthly rental of HK$6,200. Investigation also revealed that the defendant owned all of the keys to the subject room.
In subsequent cautioned video-recorded interviews, the defendant admitted, amongst others, that he delivered drugs upon instruction of an acquainted man called ‘Ah Shing’ in exchange for a financial reward of around HK$3,000 to HK$4,000, depending on the quantity of drugs that he delivered on each occasion. He said he did so because he was, at the time, unemployed.
As to each delivery of drugs, the defendant said he would be instructed by Ah Shing to go to a designated place to pick up a paper bag containing drugs and to bring the drugs to another designated place, leaving it there for collection by persons unknown to him. He did not, he claimed, have the contact numbers of the persons picking up the drugs. He also admitted that the dangerous drugs, the subject of Charge 1 and Charge 2, had been collected from a designated place near New Town Plaza in Sha Tin on 1 March 2021, that is, two days before the offences. And he claimed that he stored those drugs in the room for the purpose of future delivery.
On the day in question, that is, 3 March, the defendant said he had intended to deliver those drugs that were found on his person, the subject of Charge 1, to Mong Kok for delivery to others. Those drugs that were found inside the premises, the subject of Charge 2, were stored in the room by him pending instructions to deliver those drugs. He explained that the Samsung mobile phone found on his person was the one he used for communicating with Ah Shing. He claimed that the cash seized on his person had been given to him by his mother. He admitted being the sole tenant of the room, that he had rented the room for about two months. He confirmed that he was the only person possessing the keys and had exclusive access to the room. When asked questions regarding the paraphernalia found in the kitchen cabinet of the room, he did not respond and remained silent.
The Government Chemist attending the scene confirmed, upon inspection, that manufacturing process of cocaine base could have occurred in the Room. According to the Chemist’s finding, the sodium bicarbonate, the cocaine found in the flat, as well as the paraphernalia seized could have been used in the process of making cocaine base. It is now accepted by the defendant that the 50.7 grammes of cocaine found on his person, the subject of Charge 1, were also the product of such a manufacturing process that had taken place in the room. These form the basis of Charge 3.
At the time of the seizure, the total street value of the cocaine seized inside the room was in the range of between HK$268,270 for cocaine powder and HK$352,704 for crack cocaine. The total street value of the ketamine seized was HK$272,373.
Defendant’s Background
The defendant is now 44 years old, born in Hong Kong and attained up to Secondary 1 education. He is separated from his wife and he has a son and a daughter, both from another relationship. Before the arrest, he lived with his maternal grandmother, his mother, and his son, while his daughter resided with her mother separately. The defendant was unemployed at the time of the arrest as he claimed, but he had previously worked as a lorry driver as well as a part-time sales of surgical masks before the arrest.
The defendant has a string of criminal records involving 14 criminal offences, 3 of which were for trafficking in dangerous drugs and 7 for possession of dangerous drugs. His trafficking in dangerous drugs records were in 2009 and 2012 respectively, for which he had been sentenced to 3 years and 4 months’ and 6 years’ imprisonment respectively. His last conviction was in 2019 for which he was sentenced to a total of 12 months’ imprisonment in respect of two charges of possession of dangerous drugs, one charge of driving a motor vehicle with any concentration of specified illicit drugs (in short, drug driving), and one charge of possession of offensive weapon. He was last discharged from prison on 23 January 2020. That was around 14 months before his commission of the current offences.
Mitigation
In mitigation, Ms So, on behalf of the defendant, asked me to consider the circumstances under which the defendant committed the present offences. It was said that the defendant committed the offence because of his unemployment as a result of the pandemic and his difficulty in supporting his children financially. It was said that the defendant succumbed to his friend’s suggestion about earning quick money by trafficking in dangerous drugs. It was said that the defendant realised that what he did was wrong and that he is now remorseful.
Two mitigation letters were produced to the court, one from the defendant’s mother and the other from his son. The court has read the two mitigation letters, but as the case authorities speak consistently, personal circumstances and financial difficulty do not count as mitigation for offences as serious as those involved in the case.
Sentencing Considerations
Charge 1 and Charge 2
For Charge 1 and Charge 2, the proper approach to sentencing drug trafficking offences has been set out by the Court of Appeal in the case of Herry Jane Yusuph [2021] 1 HKLRD 290, which involves a six-step approach.
The first step requires the court to assess the gravity of the offence by looking at the type and quantity of the drug involved. The applicable tariff for trafficking in ketamine is set out in SJ v Hii Siew Cheng [2009] 1 HKLRD 1. As to trafficking in cocaine, the tariffs can be found from the case of R v Abdallah [2009] 2 HKLRD 437 and R v Lau Tak Ming [1990] 2 HKLR 370.
Whilst there are two individual trafficking counts, they involve the same type of drugs, namely, cocaine, and the facts pertaining to those two charges are closely linked. Hence, the proper approach would be to take into account the total quantity of the drugs in the two charges and derive an appropriate starting point for sentence (see HKSAR v Wong To, CACC 508/2000, and HKSAR v Chow Yu Chi, CACC 359/2000).
For the two charges, the total quantity of cocaine is 158.06 grammes and the total quantity of ketamine is 416 grammes. For a quantity between 50 to 200 grammes of cocaine, a starting point of between 8 and 12 years’ imprisonment would be appropriate. For a quantity between 300 and 600 grammes of ketamine, a starting point of between 9 and 12 years’ imprisonment would be appropriate. Where more than one drug is involved, the proper approach would be to use the combined approach (see HKSAR v Islam Majharul [2020] 3 HKLRD 146).
Using the sentencing bands identified above as the benchmark, the quantity of cocaine in this case is 158.06 grammes, the starting point in pure mathematical terms would be one of 10 years and 11 months. For the quantity of ketamine involved, namely, 416 grammes, on a strict arithmetic calculation, the starting point is one of 10 years and 2 months. In this case, the more serious and potent drug is cocaine. Hence, it would be appropriate to use it as the base drug to derive the overall starting point under the combined approach. I will hence adjust the starting point upwards from 10 years and 11 months, that is the starting point for cocaine, to one of 13 years and 4 months.
In accordance with the principles enunciated in HKSAR v Chan Yuk Leong, CACC 318/2013, I have crosschecked this starting point against the result of the absurdity test, the conversion test, and the ratio test (see below).
Absurdity Test
The starting point derived under the absurdity test would be 19 years and 4 months.
Conversion Test
Under the conversion test, if one were to convert all the drugs into cocaine, the starting point would be 13 years and 4 months. If one were to convert all the drugs into ketamine, the starting point would be 13 years and 6 months.
Ratio Test
The ratio test would produce a starting point of 13 years and 10 months.
Whilst the absurdity test, conversion test and ratio test are means to provide a crosscheck as to where the appropriate sentence lies, the ultimate objective is still to meet the object of the sentencing policy of the courts of Hong Kong, namely, to place emphasis on the need of deterrence in order to curb drug trafficking activities such as the present, whilst recognising that separate treatment of each drug by way of a consecutive sentence may produce an unjust result.
Bearing that in mind and in the circumstances of this case, I take the view that a starting point of 13 years and 4 months, crosschecked against the results of the three tests that I have just mentioned, would produce a just outcome.
The second step of the six-step approach is to assess the role and culpability of the defendant. As to the role and culpability of this defendant, Ms So submitted in mitigation that the defendant acted only as a messenger and his role was only to follow instructions of others, and that he was not the mastermind.
Whilst accepting to some degree that submission of Ms So, I am mindful of the fact that the role of the defendant insofar as the two trafficking offences are concerned was more than just a mere courier or storekeeper. The defendant’s role was that of a person who agreed to store dangerous drugs on behalf of a person who trafficked in dangerous drugs and delivered the dangerous drugs in accordance with the instructions that he received from others. Because he was performing these functions, particularly, the fact that he had actually rented the Room for the storage of drugs, that he was the only person having full exclusive access to the Room, his culpability should be taken as somebody who is greater than a person who is simply a mere courier or storekeeper.
Furthermore, as the facts reveal, he was actually involved in manufacturing cocaine in the Room in question. These features clearly heightened his culpability and thus warrant enhancement in the sentence for the trafficking offences.
That said, as the defendant has also been charged and pleaded guilty to a count of manufacturing dangerous drugs and he will in due course be sentenced for that count as well, I should pay heed in terms of totality of the sentences to avoid the danger of double-counting such aggravating features when I come to consider the proper overall sentence to be imposed on the defendant in light of the totality principle.
The third step of the six-step approach is to identify where in the relevant band of the guidelines the defendant comes. Taking into account my assessment of the defendant’s role and culpability and the weight of the narcotics of the two types of drugs in which he trafficked, I take the view that for his culpability, I should adopt a slightly higher starting point for both Charge 1 and Charge 2. An overall starting point of 13 years and 10 months’ imprisonment would be, in my view, appropriate, that is, adding 6 months to the notional starting point that I have earlier on identified.
The fourth step is to consider whether there is any further aggravating factor applicable to the trafficking offences which warrant an enhancement of the overall starting point. Since there were two different types of drugs involved in the present case, both of which are of substantial quantities, there is, hence, an aggravating feature which requires an enhancement of sentence.
As the court have repeatedly said, the availability of more than one type of drug involved in trafficking activities, must have enabled the offender to reach a wider market, hence the requirement for deterrence (see Chan Yuk Leong at paragraphs 23 to 25, HKSAR v Wong Wang Hing [2023] HKCA 729 at paragraphs 10 and 11, HKSAR v Husain Saddam [2018] HKCA 55 at paragraph 22). For this aggravating factor, I consider than an enhancement of 3 months from the starting point that I have just identified to be appropriate. And this will bring the sentence to 14 years and 1 month.
Furthermore, in light of the defendant’s previous criminal record and as fairly accepted by Ms So on behalf of the defendant, the court is justified to enhance the sentence on account of that aggravating feature. But Ms So asks the court to be as lenient as possible in terms of the level of enhancement. In light of the previous convictions, especially those involving drug trafficking and considering case authorities, including those submitted by Ms So, the starting point should be enhanced by 6 months to 14 years and 7 months to reflect such additional aggravating factor.
So for the two trafficking counts, the overall starting point would be 14 years and 7 months.
Charge 3
I now turn to Charge 3, the manufacturing of dangerous drugs count. As the Court of Appeal held in The Queen v Cheung Wai Kwong [1997] HKLRD 344, the most serious feature of the offence of manufacturing dangerous drugs is the fact of manufacturing rather than the quantity of drugs seized. The starting point for sentencing manufacturing offences is based on the overall circumstances of individual cases. It would only be in exceptional cases that a sentence of less than 10 years’ imprisonment on conviction for manufacturing dangerous drugs would be appropriate.
In sentencing manufacturing dangerous drugs offences, the quantities of dangerous drugs seized at the location is a relevant factor to be taken into account, but the sentencing court should also consider other factors which reflect the seriousness of the offence, namely, the scale of operation, the capacity of the equipment found, whether the manufacturing location had been producing, or was likely to produce a substantial quantity of drugs, as well as the extent of the defendant’s participation and role (see Cheung Wai kwong and HKSAR v Kan Kong Fai [2009] 3 HKLRD 582).
In the present case, insofar as the capacity of the operation is concerned, the paraphernalia found as well as the drugs actually seized in the premises and on the defendant are useful indication of the scale of the operation. The defendant was involved in a process of what is colloquially known as “cracking the drug”. In other words, producing crack cocaine, which is a more valuable form of the drug cocaine.
Although no specific amount of cocaine that had been converted to crack cocaine can be established on the facts, it is admitted in the Summary of Facts that a total amount of 157.7 grammes of cocaine in crack cocaine form were found on the defendant’s person, subject of Charge 1, and in the flat, subject of Charge 2. These could have been the product of the manufacturing process that had taken place inside the Room. Assuming that it was a case of trafficking and applying the tariff of Lau Tak Ming, for the quantity of cocaine involved, a starting point of around 10 years and 10 months would be appropriate. And given the fact that it is a manufacturing offence, the sentence should be more serious than this.
Ms So invites the court to consider two cases, namely, HKSAR v Leung Chun Yin Jack, reasons for sentence by the Court of First Instance in HCCC 395/2015, and HKSAR v Ki Chun Pong [2019] 1 HKLRD 717. With reference to these cases, Ms So invites me to consider an enhancement for the manufacturing charge, for Charge 3, of 1 year from the starting identified for trafficking in the same quantity of drugs found in the premises and on the defendant’s person.
The Scale of Operation
I accept that the scale of operation in the Room in question is basic and not on an industrial scale, but equally having considered the circumstances surrounding the manufacturing process, including the presence of paraphernalia, equipment and chemicals needed to manufacture drugs in the relevant premises, the process of manufacturing, and scale of operation, I take the view that it cannot be said that the scale was small. In particular, in light of the large quantity of transparent resealable plastic bags and the variety of the paraphernalia found inside the Room. There was a fairly large quantity of sodium bicarbonate found in the premises.
In addition, the facts revealed that the defendant had been occupying the Room for approximately three months before the police raid according to the tenancy agreement. The fact that the Room which could be used specifically for the purpose of manufacturing crack cocaine was rented for two years also reflects the planning and sophistication of the operation.
On the information and on the evidence before me, and having considered the whole circumstances, in particular, the quantity of drugs seized, the scale of the manufacturing operation, and the role of the defendant, I will adopt 12 years and 10 months’ imprisonment as the starting point for Charge 3, the manufacturing count, which I consider would be sufficient to reflect his culpability.
Discount for Guilty Plea
Finally, I have taken into account all mitigating factors said on behalf of the defendant. It is trite that personal circumstances bear little weight as a mitigating factor for offences as serious as the present. Apart from the defendant’s timely and early guilty plea, I find no other mitigating factors that would warrant a further reduction of sentence. For that plea, I am prepared to give the full one-third discount to the defendant and the overall sentence for Charge 1 and 2, that is, the two trafficking counts, is hence reduced to one of 9 years and 8 months, whilst the sentence for Charge 3, the manufacturing count, is reduced to 8 years and 6 months’ imprisonment.
Totality
In the process of imposing more than one sentence for the offences, I must take into account the totality principle to ensure that the overall sentence to be served is appropriate to the culpability of the offender. As I have mentioned earlier on, I must also pay particular heed to avoid double counting any aggravation of sentence for the three charges. The manufacturing of cocaine clearly added onto the culpability of the trafficking offences, which involved both cocaine and ketamine.
Having considered all the relevant circumstances and the mitigation advanced by Ms So on behalf of the defendant, I take the view that it is appropriate to order part of the sentence for the manufacturing count to be served consecutively to those imposed for the trafficking counts.
The final sentences I would impose on the three charges are as follows.
For Charge 1, the final sentence to be imposed on this individual charge is 6 years and 2 months.
For Charge 2, the sentence imposed is 9 years and 4 months, following the combined approach.
Given the appropriate sentence for Charge 1 and Charge 2 should be based on their combined quantity of drugs as I have explained earlier on in the six-step approach, I consider it appropriate to order 3 years and 6 months of the sentence on Charge 2 to be served consecutively to the sentence on Charge 1, resulting in a total sentence for the two charges of 9 years and 8 months.
For Charge 3, the manufacturing count, I would impose a sentence of 8 years and 6 months. And I would order 2 years of this sentence to be served consecutively to the sentences I have imposed on Charge 1 and Charge 2, hence making the total sentence one of 11 years and 8 months.
Defendant, you are therefore sentenced to an overall term of 11 years and 8 months’ imprisonment.