The defendant pleaded guilty in the Magistrates’ Court and was committed to this court for sentence on one charge of conspiracy to manufacture a dangerous drug, namely, cocaine, Charge 1, and one charge of trafficking in 79.07 grammes of a solid containing 46.64 grammes of cocaine and 979 grammes of a solid containing 888 grammes of cocaine hydrochloride, Charge 2. Before this court, the defendant confirms his plea to the two charges and his agreement to the Summary of Facts.
Summary of Facts
Briefly stated, in the evening of 10 November 2020, a team of police officers went to carry out an anti-narcotic operation at an apartment rented by the defendant in Grand Yoho Phase 1, Yuen Long. They forcibly gained entrance to the apartment after the defendant, who answered the door, refused to let the police officers in.
In one of the two bedrooms of the apartment, the police officers found among other things, dangerous drugs which were the subject matters of Charge 2 contained in various plastic containers and plastic bags. The estimated street value of the cocaine hydrochloride was HK$1,276,616, and that of the cocaine was HK$103,068 if in powder form and HK$192,858 if in crack form.
Apart from the dangerous drugs, the police also found inside that bedroom a plastic container holding 271 grammes of phenacetin and a metallic utensil containing phenacetin. An electronic scale, 80 resealable plastic bags, a total of 1.78 kilogrammes of a solid containing sodium bicarbonate, a pair of gloves, a plastic bowl, cups, and a pair of metallic chopsticks, a metallic sieve and three utensils all of which tainted with cocaine, a box of gloves, some cups, a cooker and 14 cans of gasoline, and two hammers and a sealer. Moreover, the filters of the air-conditioner of that bedroom were also tainted with traces of cocaine.
Inside a drawer in the other bedroom, the police officers found a pair of scissors and an electronic scale, both of which with traces of cocaine. There were also 400 resealable plastic bags, two boxes of multi zip-lock bags, and a plastic bag of multiple plastic bags.
In the living room, there were, among other things, the defendant’s three iPhones, the tenancy agreement of the apartment dated 12 May 2020, with the defendant named as the tenant, utility bills of the flat under the defendant’s name, two sets of keys and key cards and cash of HK$84,990.
The forensic scientist of the government laboratory inspected the apartment and he opined that the cocaine hydrochloride and sodium bicarbonate could be used as the starting materials for preparing cocaine base and that manufacturing of cocaine base from cocaine hydrochloride has taken place there.
In the subsequent video-recorded interview conducted under caution, the defendant said, among other things, that he collected a block of cocaine from a third party and took it back to the apartment that morning on the instruction of his boss. After that, he cooked the cocaine by adding soda powder and heating up the mixture. After the mixture (crack cocaine) had cooled down, he packed the dangerous drugs in a box and waited for delivery instruction from his boss. The phenacetin was to be added to the cocaine to increase the volume of the dangerous drugs.
He said that he learned how to cook cocaine from someone who came to the apartment on the instruction of his boss in June
2020 and he started cooking cocaine in November 2020. Every time after the cocaine was cooked, he would deliver the same to others on instructions, and he had done this since November 2020.
He worked for his boss because he was in debt. The boss paid him around HK$50,000 a month for cooking cocaine. He did it alone. The cash found in the apartment was given to him by his boss. He had three mobile phones and he used two of which to contact his boss.
The Defendant’s Background
The defendant was born in Shenzhen, the mainland, in July 1995 and is now aged 29. He received secondary education in Hong Kong upon to Form 3. At the time of the arrest, he resided in the apartment with his girlfriend and was unemployed. He has one previous of unlawful possession of dutiable goods in December 2017 for which he was put on probation for 12 months.
Mitigation
Mr Sean, for the defendant, accepts that Charge 1 is a more serious offence than Charge 2 and thus warrants a higher sentence. He also recognises that the only mitigating factor which may reduce the sentence is the defendant’s timely plea. Mr Sean stresses that the defendant is remorseful and he produced two mitigating letters, one from the defendant himself and the other from the defendant’s mother. Mr Sean asked that this court pass a concurrent sentence on both charges.
Sentence, Charge 2
Purely for the sake of convenience, I shall start with Charge 2. The approach to the sentence of the offence of trafficking is laid down in HKSAR v Herry Jane Yusuph which is further elaborated in HKSAR v Lee Ming Ho. One of the salient features of this sentencing approach is the moving away from a rigid arithmetical approach, with starting points and sentences based purely on narcotic content, to a more discretionary approach involving an assessment of the defendant’s role and culpability. However, the quantity of the dangerous drug involved remains the primary determinant in sentencing.
Following the aforesaid sentencing approach, for sentencing purpose, cocaine and cocaine hydrochloride are equated with heroin (HKSAR v Rojas and (R v Chang Chen Liu Sa). In the present case, the total narcotic content of the two dangerous drugs was 934.64 grammes. The applicable guideline band is provided in HKSAR v Abdallah which says
that trafficking in 600 to 1,200 grammes of the narcotic attracts a sentence of between 20 to 23 years’ imprisonment after trial. Thus, on a purely arithmetical approach, the starting point would be 21 years and 8 months’ imprisonment.
However, apart from the quantity of the dangerous drugs, the court also has to take into account the defendant’s role and culpability. Even though the defendant told the police that he was not involved in collecting payment from customers, based on the Admitted Facts, my assessment is that he was more culpable than a mere courier or storekeeper. This in view of the fact that he was entrusted by the boss with a substantial quantity of dangerous drugs which was worth more than HK$1.3 million in total. Moreover, he packed them into transparent plastic bags before delivering them on the instruction of his boss. For all these activities, he was offered a handsome reward of about HK$50,000 a month. Judging from all the circumstances, the defendant was no mere courier.
However, in order to avoid any double counting of the aggravating factors which are also relevant to the manufacturing charge, I adopt for Charge 2 a starting point of 21 years and 8 months’ imprisonment. I note that in the present case there are no cross border elements. The defendant does not have any similar previous conviction and had not used a minor in the offence.
Lastly, I trust that counsel has said all that can be said on the defendant’s behalf in mitigation. I also have regard to what was said in the mitigation letters. However, it is well established that for offences as serious as trafficking in dangerous drugs, financial hardship is not a factor which may reduce sentence (HKSAR v Lee Man Wai).
In the present case, the only mitigating factors which may reduce the defendant’s sentence is his timely plea (Secretary for Justice v Tsang Ho Pong). After deducting the customary one-third discount for plea and remorse, the defendant is sentenced to 14 years and 5 months’ imprisonment for Charge 2.
Charge 1
It is well established that sentences for drug manufacturing offences are far heavier than those of drug trafficking offences involving the same quantity of drugs (HKSAR v Cheng Chi Wai citing R v Cheung Wai Kwong and Another and more recently, HKSAR v Sum Ka Wa).
I accept that the quantity of drugs seized at the manufacturing workshop can be one of the relevant factors affecting sentence. On the other hand, I bear in mind that
the amount of the dangerous drugs found on the premises where manufacturing is taking place will inevitably be a small part, perhaps only a fraction, of the drugs actually manufactured and the capacity of the operation.
Apart from the quantity of dangerous drugs found on the premises, the length of time for which the drug manufacturing workshop has existed and operated, its scale and productivity, the quantity and standard of drug manufacturing paraphernalia, the extent to which the defendant participated in the drug manufacturing and the role he played in the matter are also important factors to be taken into account in sentencing.
I have not lost sight of the fact that Charge 1 is a conspiracy charge which was about a criminal enterprise involving people other than the defendant. Although large amounts of cocaine hydrochloride and sodium bicarbonate, (which were starting materials for the preparation of cocaine base) were found in the apartment, what had not been specified in either Charge 1 or the Summary of Facts are:
(1) the actual total amount of cocaine base that had been manufactured and disposed of; and
(2) the amount of cocaine base which could have been manufactured with the starting materials.
As such, this court has to do its best to arrive at the starting point which is based on inferences and assumptions, compared with HKSAR v Ki Chun Pong.
Apart from the Summary of Facts, I have also examined the case photos. I note that the method of manufacturing in question was just about mixing the cocaine base with soda powder and heating the mixture.
The total commercial value of the dangerous drugs found was in exceed of HK$1.3 million.
In my assessment, despite what the defendant had told the police under caution, and whilst the scale of operation under consideration was not large, given the simple and fast manufacturing process and the starting materials and manufacturing paraphernalia present on the premises, the defendant would have been able to manufacture a substantial quantity of dangerous drugs, more than what had been found, compared with HKSAR v Kan Kong Fai.
As regards the role of the defendant, he told the police that he rented the apartment in early May 2020 which was six months before his arrest with the discovery there of the manufacturing and trafficking paraphernalia which has
obviously been used. I note also that at the time of the defendant’s arrest, there was HK$84,990 in the apartment, which was more than what he said would be his reward for a month’s work.
In addition, he told the police that every time after the cocaine was cooked, he would deliver the same to others on instructions and he had done this since November 2020. Now, this is not to say that the defendant is to be sentenced for trafficking activities other than the subject matter of Charge 1. However, the necessary implication from all of the above is that the manufacturing activity under consideration was not just a one-off operation and that it had been going on for a period of time.
Lastly, in my assessment, the defendant held a key position in a conspiracy in the sense that he was a custodian of the whole operation. Based on the defendant’s admission, he was the only person who took the cocaine and the phenacetin back to the apartment and carried out the manufacturing process there on the instruction of his boss. In view of the capacity of the manufacturing operation, the length of time it had been in operation, the defendant’s significant role in the enterprise, the vast quantity of dangerous drugs produced and the enormous profit that could have been generated, I adopt 27 years’ imprisonment as the starting point of Charge 1. After the customary one-third discount for plea, the sentence is reduced to 18 years’ imprisonment.
Totality
I readily accept that the cocaine hydrochloride (which formed the majority of the dangerous drugs in Charge 2) was a starting material and that the cocaine (which formed the minority) was the end product of Charge 1. In that sense, the two charges were interrelated. The two offences were of different natures and the facts showed that the defendant had played different roles in the matter, thereby enhancing the gravity of his criminality (HKSAR v Cheng Chi Wai). On the other hand, similar to the situation in HKSAR v Sum Ka Wa, in this particular enterprise, the defendant played a significant role in manufacturing vast quantities of dangerous drugs for trafficking and it is clear that he must have intended to continue his manufacturing and trafficking operations had he not been arrested.
However, taking into account the issue of totality and to avoid double counting, and having stepped back and looked at the matter in the round, in order not to impose a crushing sentence on the defendant who is still relatively young, the approach least likely to lead to an inflated or distorted
result by factoring the same consideration into different counts of trafficking and manufacturing is to order all sentences to run concurrently. Therefore I order that the two sentences of the two charges are to run concurrently.
The defendant is sentenced to an overall imprisonment term of 18 years’ imprisonment.