COURT: The defendant, Chow Wai-wa, pleaded guilty to one count of conspiracy to manufacture a dangerous drug, contrary to section 6(1)(a) and (2), and 39 of the Dangerous Drugs Ordinance, Chapter 134, and sections 159A and 159C of the Crimes Ordinance, Chapter 200.
The Summary of Facts Admitted by the Defendant
On 15 December 2021, the defendant was intercepted by the police near the junction of Cameron Road and Chatham Road South as he was acting furtively. Upon confirming the defendant’s identity, it was found that the defendant was wanted by the police in another case. When the defendant was arrested and taken back to the police station, later that day, the police escorted the defendant back to his reported address in Luen On Street, Kwun Tong, for investigation.
Upon search, dangerous drug and various dangerous drug manufacturing paraphernalia were found in the living room of the flat. These items were subsequently confirmed by Dr Lin Sze-wah, the forensic scientist of the government laboratory, including the following: 8 kilogrammes of a solid in the form of 8 blocks containing a total of 7,086 grammes of cocaine hydrochloride, it is a salt of cocaine, each plastic bag contain 1 kilogramme of a cocaine solid and 1,296 grammes of a solid containing phenacetin; 1,263 grammes of a solid containing sodium bicarbonate; various items including scales, pots, induction stove, sieve, glass bowls, scissors, hammer, etc, containing a small quantity of cocaine; and six plastic bottles containing a total of 518 millilitres of a liquid containing 0.01 grammes of a solid containing upon drying containing cocaine.
After examining and analysing these exhibits found in the premises, Dr Lin was of the opinion that the chemicals and the items seized at the flat were items commonly associated with the process of making cocaine base, that is crack cocaine, and that they had been involved in making cocaine base in the flat. Therefore, it can be established that manufacturing process of cocaine base and the use of phenacetin as adulterant had been taking place in the flat.
Police later conducted a video-recorded interview with the defendant and under caution, the defendant among other things stated that he worked as a part-time chef and earned about $13,000 to $14,000 per month. The place where the drugs were found was his home which he rented and he was enticed by someone known as Ah Ming to manufacture dangerous drugs for Ah Ming and he would be paid $10,000 for cooking each brick of cocaine. And Ah Ming promised to pay him in one go in cash after the defendant had kept all 10 bricks of cocaine. And the defendant bought cups, gloves, an induction stove, pots, and a pair of scissors for cooking the cocaine. An unknown male delivered 10 bricks of cocaine and some cutting agent to him and another unknown man brought the bag of soda powder and other equipment such as electronic scales, sieve, and chopsticks to the flat. And the defendant was taught by these males the procedure of manufacturing the dangerous drugs.
On 14 December 2021, having cooked two bricks of cocaine, he put the finished products into about 100 smaller plastic bags and then he passed the same to an unknown male who came to the flat later that day. And the eight bricks of cocaine seized were the left over from the 10 bricks of cocaine provided to him by one of the unknown males.
The average retail price of cocaine for the month of December 2021 was in the range of 1,082 for cocaine powder to $1,761,000 for crack cocaine per gramme.
The defendant admitted that he, between 25 November 2021 and 15 December 2021, both dates inclusive, conspired together with other persons unknown to unlawfully manufacture 10 bricks of cocaine, that is 10 kilogrammes of cocaine solid. Those were the facts admitted by the defendant.
Background and Mitigation
According to the antecedents statement, the defendant was born in November 1997, so he is now 26 years of age. He has three previous convictions of common assault in 2012 and 2015 and was sentenced to probation for 12 months and to rehabilitation centre respectively. He was educated up to Form 5 level. He had worked as a construction site worker and warehouse keeper and he was a cook at the time of the offence when he was arrested. He is single.
Defence counsel, Mr Charles Chiu, gave more details to this court regarding the defendant’s background. The defendant’s father passed away about 10 years ago. Prior to his arrest, he was living at the flat in question where the drugs were found. His mother and his elder brother lived apart. Since early 2021, the defendant was made redundant due to the pandemic, COVID, and he was able to work part-time as a chef earning about $13,000 a month.
So after paying rental of $9,200 per month, he had hardly any money left for food and necessities and he was also not able to contribute any money towards his mother’s expenses. So he resorted to make quick money by engaging himself in dealing with dangerous drugs.
The defendant is extremely remorseful for his misdeed. He had not received any money yet because he had not finished cooking all the 10 bricks of cocaine. Counsel submitted that the defendant operated a workshop from his own home since 13 December, and then the operation ended on 15 December when he was intercepted by the police. The scale of the operation was small, involving 10 bricks of cocaine base and he was the only who did the manufacturing alone.
The process was simple, not sophisticated, involving the use of an alkaline agent to crack the cocaine base and heat up the mixture. The defendant was not the mastermind of this.
Counsel submitted that there was nothing to suggest that the operation would continue after the 10 bricks had been cooked. The eight bricks were found to contain 7,086 grammes of cocaine. So based on the defendant’s admission that eight bricks found were leftovers from the 10 bricks and taking into account the by-products of cooking two bricks was 2.83 grammes of a solid containing 1.56 grammes of cocaine, counsel submitted that the two bricks that had been cooked would have contained about 1,771.5 grammes of cocaine if they were of identical quantity as the eight bricks. So the total quantity of cocaine would therefore be 8,857.5 grammes.
Now, counsel cited the well-known case of Lau Tak Ming and Rojas, and also the case of Abdallah, and submitted that for the trafficking of 8,857.5 grammes of cocaine, the starting point would have been 27 years and 9 months.
Counsel also referred this court to the case of Cheng Chi Wai, where the Court of Appeal stated that the starting point for drug manufacturing should not necessarily be linked to the starting point of trafficking in a dangerous drug offence of the same quantity. And there should be no fixed proportion between the two.
The starting point of drug manufacturing offence must be based on the overall circumstances. The quantity of drugs seized at the drug manufacturing workshop must be one of the relevant factors affecting the sentencing as the quantity of drugs seized shows, to some extent, the size and productivity of the workshop and seriousness of the offence. The Court of Appeal further stated that the length of the operation and whether it was a one-off operation was relevant.
Counsel also referred this court to a number of cases involving the manufacturing of dangerous drugs and the starting point adopted as examples only, say in the case of Lam Tsz Kin it was 28 years and in the case of Cheng Cho Him which was 25 years.
The defendant wrote to this court himself, asking for leniency. He said he had deeply reflected and understood the actions he committed had a very significant impact on the society and himself. He hoped to change through faith and was actively participating in religious activities. He also hoped to further his studies while in gaol. He asked this court to impose a lighter sentence so that he can start a new life soon. He promised he would not break the law after he was released from prison.
Consideration for Sentence
A person convicted of conspiracy to manufacture dangerous drugs upon indictment is liable to life imprisonment and a fine of $5 million. Stated by the Court of Appeal in Cheng Chi Wai, the starting point for manufacturing dangerous drugs should not necessarily be linked to the starting point of trafficking in a dangerous drug of the same quantity. But the amount of dangerous drugs seized is one of the factors to be taken into consideration.
On the evidence before me, the defendant was running an operation involving 10 blocks of cocaine. The operation ran for two days only before it was stopped. He managed to cook two out of the 10 bricks, leaving eight still undone. The operation was a one-man band and the scale was relatively small.
Assuming that all 10 bricks were of identical or similar quantity, and having taken into account the residue cocaine found, I agree with counsel’s assessment of 8,857.5 grammes of cocaine. So if the defendant were convicted of trafficking in this amount of cocaine, a starting point of 27 years and 9 months would have been appropriate because that would fall into the band of 4,000 to 15,000 grammes in the case of Abdallah with a starting point of 26 to 30 years.
Having considered the relatively small scale of the one-man band operation, that the period of operation was not long but one has to be realistic to bear in mind that but for the interruption the defendant would have continued with the manufacturing until at least all the 10 bricks were finished. I am of the view a starting point of 30 years is appropriate.
The defendant pleaded guilty in the earliest available opportunity and is therefore entitled to a full one-third discount. With this one-third discount, the sentence is one of 20 years.
So for the offence of conspiracy to manufacture dangerous drugs, the defendant is sentenced to 20 years’ imprisonment.