Background and The Facts
The defendant in HCCC 111 of 2012, Lai Ka-chun, whom I shall hereinafter refer to as “D1” for the sake of convenience, pleaded guilty in the Eastern Magistrates’ Court to one count of manufacturing of a dangerous drug. He was committed to this court for sentence.
The defendant in HCCC 137 of 2012, Lui Siu-pong, whom I shall hereinafter refer to as “D2”, again for the sake of convenience, faced one count of conspiracy to manufacture a dangerous drug (1st count); one count of conspiracy to traffic in a dangerous drug (2nd count); and one count of trafficking in a dangerous drug (3rd count).
The 2nd defendant pleaded not guilty to all three counts, and a trial was originally scheduled to start today. However, the 2nd defendant pleaded guilty to the 2nd and the 3rd counts and accepted the Summary of Facts this morning. That plea was accepted by the prosecution, and upon the 2nd defendant’s conviction, I ordered that the 1st count was to be left on the court file and not to be proceeded with without the leave of the court, as requested by the prosecution.
Briefly, on 2 September 2011, the police intercepted the 1st defendant when he came out from a flat in Sheung Shui Centre. The flat was a 500 square feet flat with two rooms, one kitchen and one washroom. The flat was not furnished and was empty, except that one of the rooms was apparently dedicated to the manufacturing of crack cocaine.
During the house search conducted in the premises, the police found the paraphernalia associated with manufacturing and packaging of cocaine, such as measuring cups, a measuring glass, metal pots, two electric furnaces, gloves, metal spoons, electronic scale, a pile of transparent plastic bags, a hammer, a pair of scissors, a vacuum sealer and a thermal sealer and about 790 grammes of powder containing sodium bicarbonate.
In addition, a total of 954.07 grammes of powder containing 895.13 grammes of cocaine hydrochloride was seized.
The 1st defendant admitted the offence of manufacturing of a dangerous drug under caution. He made further admissions during the subsequent video-recorded interview, saying that he was asked by “Ah Bee” to cook the cocaine, with HK$200 per pack as reward. He also admitted that prior to his arrest, he had cooked cocaine for 22 or 23 times.
As for the 2nd defendant, the facts which he admitted revealed that when he was stopped by the police on 2 September 2011, he was found to have had with him a transparent resealable plastic bag containing 27.32 grammes of a solid containing 25.26 grammes of cocaine hydrochloride. Under caution, the 2nd defendant admitted that he was taking the “coke” to someone and he would receive HK$150 as reward. This is the subject matter of the 3rd count to which he pleaded guilty.
In respect of the 2nd count, the 2nd defendant admitted that he, together with the 1st defendant and “Ah Bee”, conspired to traffic in cocaine between early July 2011 and the day of his arrest. Their agreement was that the 1st defendant was responsible for cooking the cocaine, while he himself was responsible for delivering the cocaine as instructed by “Ah Bee”. On the average, the 1st defendant would cook nine bags of cocaine each time, and each bag would contain about 25 grammes of cocaine. The 2nd defendant said he would receive HK$150 for delivering each pack of cocaine. The 2nd defendant further admitted that on the day of his arrest, the amount of drug found in the premises where the 1st defendant cooked cocaine was a total of 954.07 grammes of a solid containing 895.13 grammes of cocaine hydrochloride.
Mitigation (1st Defendant)
The 1st defendant is aged 28 and is single. He was educated up to Form 4 level. The 1st defendant had worked as a kitchen worker until April 2011. The 1st defendant has been before the court on one previous occasion when he was convicted of “possession of a dangerous drug”. For that offence, he was put on probation.
In mitigation, it was said that the 1st defendant met with “Ah Bee” in July 2011. As the 1st defendant was out of job at the time, he succumbed to the temptation of earning quick money, and therefore agreed to cook the cocaine for “Ah Bee”. Ms Li, who acted for the 1st defendant, emphasised that at the time when the police entered the premises, they did not see anybody cooking any cocaine there. However, the 1st defendant was very co‑operative and made full admissions from the very beginning, telling the police that he was indeed responsible for cooking the cocaine.
It was also stressed that at an early stage - that is, in March last year - the 1st defendant had already provided a detailed statement to the police implicating the 2nd defendant. Ms Li told the court that as the 2nd defendant only indicated his plea yesterday, the 1st defendant had all along been prepared to give evidence against the 2nd defendant and had, during this long period of time, suffered the stress and anxiety associated with his giving evidence. Ms Li therefore urged that greater reduction be given to the 1st defendant on account of his having provided useful assistance to the police.
This morning, a letter written by the 1st defendant was also handed to the court. In short, the 1st defendant expressed his remorse and admitted his foolishness in committing the offence.
Mitigation (2nd Defendant)
The 2nd defendant is aged 26 and is single. He has a 5‑year‑old daughter. The 2nd defendant was educated up to Form 2 level and had worked as a vehicle attendant and driver. The 2nd defendant has been before the court on six previous occasions with a total of 13 convictions. Two of those were “possession of a dangerous drug” offences, while one was “possession of equipment fit for injecting or inhaling dangerous drugs”.
In mitigation, Mr Cahill asked the court to treat the 2nd and the 3rd counts as arising from the same course of conduct. It was also said that judging from the small reward the 2nd defendant got for the delivery of the drug, it was clear that the 2nd defendant was not the mastermind of the operation.
Sentencing Considerations
In R v Cheng Wai Kwong and Another [1997] 3 HKC 496, the Court of Appeal observed that:
“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence.”
The court also identified as relevant to the consideration of sentence factors such as the quantity of drugs found, the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs, and the role played by the accused.
In this case, as accepted by Ms Li for the 1st defendant, the scale of operation could not be described as small. The premises were dedicated to the manufacturing process, with the 1st defendant assigned as the one for the manufacturing work, whereas the 2nd defendant was assigned as the courier. The total quantity of cocaine hydrochloride found in the premises when the police entered was 895.13 grammes.
Having considered all the relevant facts of this case, I consider that an appropriate starting point is one of 24 years in respect of the manufacturing of a dangerous drug charge admitted by the 1st defendant. He pleaded guilty to the charge, and he will receive a one-third reduction for his plea. In addition, I accept that he did provide useful assistance to the police. Although the 1st defendant was not required to testify in court against the 2nd defendant, I am sure that his agreeing to do so was a major cause in relation to the 2nd defendant’s plea this morning.
I will therefore give the 1st defendant a total reduction of about 45 per cent to take account of his plea and his assistance to the police. Therefore, in respect of the count of manufacturing of a dangerous drug, I order that the 1st defendant is to serve a term of 13 years for this offence.
In HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal laid down further guidelines for trafficking in heroin and cocaine. For trafficking between 600 to 1,200 grammes of cocaine, a term of 20 to 23 years’ imprisonment is called for.
So for the 2nd defendant, the starting point which I am going to adopt for the 2nd count - that is, the conspiracy to traffic in a dangerous drug - is one of 24 years. I arrive at this after having taken into account the fact that the conspiracy had lasted for about two months; that the 2nd defendant would deliver about 25 grammes of cocaine each time; and that there was a total of about 900 grammes of cocaine hydrochloride found in the premises at the time when the police entered.
In respect of the 3rd count, and in accordance with the guidelines laid down in R v Lau Tak Ming and Others [1992] HKLR 370, I would adopt a starting point of 6 years’ imprisonment, having considered the quantity involved and the facts of this case.
The 2nd defendant pleaded guilty to both counts, and he will receive a one-third reduction in sentence. Other than this, there is nothing which would warrant any further reduction. However, given the facts disclosed, I would treat both the 2nd and the 3rd counts as arising from the same set of facts and would order the terms for these two counts to run wholly concurrently.
Therefore, for Count 2, the 2nd defendant is going to serve a term of 16 years’ imprisonment, and for Count 3, a term of 4 years, both terms to run wholly concurrently, resulting in a total sentence of 16 years.