The jury unanimously convicted both defendants, either believing PW1’s evidence or agreeing that there was circumstantial evidence that led to the only irresistible inference of guilt.
The facts of the case involved the 1st defendant and PW1 buying a kilogramme of cocaine from a Colombian drug trafficker called “Dolphin”. According to PW1, they wanted to increase the profit they could make from selling it by cooking it, turning it into crack cocaine. They did not know how to do this themselves, so PW1 asked the 2nd defendant to cook it.
The 2nd defendant rented a hotel room for one night on 28 June 2015. The room she rented was equipped with a cooker or a stove which is required for the manufacturing process. The process required heat, water and baking soda. She cooked whilst a friend she brought with her and the 1st defendant offered assistance. The finished products were packed into small resealable transparent plastic bags ready for resale. There were photographs and a video taken in the hotel room of the cocaine before and after the manufacturing process found in PW1’s mobile phone.
There were phone messages and voice messages between the 2nd defendant and PW1 relating to cooking cocaine and arranging the location to manufacture or cook crack cocaine. There was CCTV of the three of them entering the hotel lobby that night at different times. There was CCTV footage of PW1 and the 1st defendant leaving that hotel at about 7 am the following morning and the 2nd defendant leaving after 1 pm.
The 1st defendant and PW1 took the crack cocaine from the hotel to the Langham Place Hotel where PW1 had booked a room for one night. The 1st defendant left the room not long after arriving and was arrested some time later that day for trafficking in dangerous drugs, drugs separate to this offence. It involved drugs in a parcel he collected sent from overseas, hereinafter referred to as the parcel drugs.
Whilst under arrest, he gave information to the Customs and Excise officers who proceeded to the Langham Place Hotel that afternoon where they arrested PW1 and the cocaine of the alternate Charge 2 in this case, that is dangerous drugs Customs and Excise officers found under a mattress in that hotel room which was 698.03 grammes of a solid containing 630.93 grammes of cocaine.
Some explanation and repetition of a chronology behind this case is required for the purposes of sentencing and mitigation. Mr Raffell for the prosecution has helpfully provided me with the detailed chronology for both the defendants and PW1.
On 28 January 2016, both the 1st defendant and PW1 were jointly charged with the parcel drugs, and PW1 was further charged with one count of trafficking in the cocaine found in the Langham Place Hotel. The 1st defendant was not charged with trafficking that cocaine found under the mattress because of a lack of evidence at that time.
The 1st defendant pleaded not guilty and was acquitted by a jury of trafficking in those parcel drugs in June 2018. After a plea bargain with the Department of Justice who agreed in July 2017, PW1 pleaded guilty to trafficking those parcel drugs and the charge relating to the dangerous drugs found in the Langham Place Hotel was left on the court file. PW1 was not sentenced until 13 May 2019 when he was sentenced to 17 years’ imprisonment for trafficking in the parcel drugs.
PW1 decided to offer assistance to the Customs and Excise Department and gave non-prejudicial statements against both the 1st and 2nd defendants. His first non-prejudicial statement was dated 22 December 2016. In July 2017, his plea bargain was accepted by the Department of Justice. In July 2016, February 2017, August 2017, he gave more non-prejudicial statements. The 1st defendant’s trial began on 11 August 2017 for trafficking those parcel drugs. There was an eight-day voir dire hearing whilst the trial proper was then adjourned to 4 June 2018. He was acquitted on 8 June 2018. By this date, the 1st defendant had been in custody on remand for just under 3 years.
A decision was made not to charge the 1st defendant before that trial with an additional charge of trafficking the drugs found in the Langham Place Hotel room despite the willingness of PW1 to give evidence against him then. It appears that a decision was made or that decision was made because of concerns about the credibility of PW1 amongst other reasons.
However, after PW1 was sentenced to 17 years’ imprisonment in May 2019, the 1st defendant was rearrested on 8 November 2019 on the strength of those non-prejudicial statements. It was decided PW1 had to plead guilty before his offer of assistance was confirmed.
PW1 gave more non-prejudicial statements in October 2018 and April and May 2019.
The 2nd defendant was arrested on 20 July 2015, her first arrest was 20 July 2015 based on information given by her co-conspirators. She was bailed pending legal advice and in January 2016, a decision was made not to charge her in relation to the drugs found in the Langham Place Hotel room. She was charged with possession of dangerous drugs and possession of apparatus fit for inhalation relating to items found in her home during a home search after her arrest in July 2015. She pleaded guilty to these two charges in February 2016 in the Magistrates’ Court and was sentenced to a probation order of 18 months.
The 2nd defendant was rearrested on 23 March 2018 on the strength of those same non-prejudicial statements. An application was made to consolidate two cases, the 1st and the 2nd defendants’ cases, which was approved in December 2020.
There were further delays caused by the pandemic which resulted in this trial only beginning in April 2023. It had been set down for July 2022 but adjourned because of delays caused by the pandemic.
Mitigation
I have heard mitigation put forward on behalf of the 1st defendant. He is now 29 years old, was married but single now. However, he has a very serious and committed relationship with his girlfriend who has recently given birth to their child. She has written a long letter to court and attached photographs for my perusal, as well as a letter from the 1st defendant’s oldest sister in Pakistan who gives me more details of his family’s background.
At the time of this offence he had a clear record. It has been stressed that I should take into account the chronology and history of this case. It has taken 8 years for this charge to come to court and trial. I had been urged to take into account the fact the drugs of this charge were not dealt with in the same trial as the parcel drugs when the two lots of drugs were connected or related.
It was through no fault of the 1st defendant that the Department of Justice decided against proceeding with the charge relating to the hotel drugs mainly because of their concerns of the credibility of PW1. The 1st defendant had been in remand for 3 years before his acquittal of trafficking the parcel drugs and I have been urged to consider this time spent should be taken into account for his sentence.
I have heard and read full written mitigation put forward on behalf of the 2nd defendant. I have considered the helpful authorities relating to, in particular, the factor of delay. The 2nd defendant was only 19 years old at the time of the offence and is now 27. She had a clear record at the time of the offence. As I have said, she now has two convictions for drugs and equipment found in her home after her arrest for this offence in July 2015. She was sentenced to 18 months’ probation and a condition of her order was to undergo drug treatment at the Barnabas Charitable Service Association Limited.
The 2nd defendant is single, her parents are divorced. There were many family members attending court every day during her trial and clearly support her. I have been given full details of her education including all certificates that are relevant. It has been highlighted that from 2018, the defendant has been studying for a higher diploma in social work at the Caritas Institute of Higher Education. Her completion of the course was halted by the present ongoing legal proceedings. She still hopes to become a peer counsellor or social worker in the future.
Mr Hui highlights her community spirit and involvement from as early as 2016. She completed 200 hours of peer counsellor training organised by the Evangelical Lutheran Church of Hong Kong. She has attended workshops on drug rehabilitation. She has worked as an intern for social welfare organisations involving the elderly and the underprivileged. I have seen mitigation letters from the 2nd defendant’s social worker and from Cheer Lutheran Centre where the 2nd defendant worked as a volunteer for several years. Her social worker does stress she has remained drug-free since her probation order and describes her aspiration to become a social worker to help other drug abusers genuine.
I have seen more letters today from her supervisors and teachers that have confirmed at first hand her commitment to dedicate herself to a career of a social worker. It is part of her mitigation and there is proof that she has turned over a new leaf since July 2015.
Approach to Sentencing
In manufacturing dangerous drugs cases, the quantity of the drugs if any found, the scale of the operation and the capacity of equipment is relevant in determining a proper sentence. The extent to which an offender participates and the role they play in the matter are also important factors to be taken into account.
Manufacturing a dangerous drug is much more serious than trafficking the same. A person involved in manufacturing deserves a heavier sentence. A conspiracy to manufacture is a more serious offence than being just found guilty of manufacturing dangerous drugs.
As we have heard from not only the co-conspirator, PW1, but also an expert witness, the process of manufacturing crack cocaine is simple and fast. All that is required is cocaine, water, baking powder or soda, and a source of heat like a cooker.
Here what is relevant is the crack cocaine found in the Langham Place Hotel on 29 June 2015 and I am sure it is the same crack cocaine that was manufactured the night before in the 8 Degrees Hotel. The purity of cocaine, I repeat, is 630.93 grammes and the estimated retail street value at that time was $730,837.41.
According to the sentencing guidelines for trafficking in heroin which apply equally to trafficking in cocaine, trafficking between 600 and 1,200 grammes of cocaine would attract a starting point of between 20 and 23 years’ imprisonment. I have considered the authority of R v Lau Tak Ming [1990] 2 HKLR 370. On the quantity of the cocaine found by the Customs and Excise, mathematically, a starting point of 20 years and 2 months’ imprisonment would be appropriate for trafficking in it.
Taking into account here that the offence both defendants are convicted of is a conspiracy and a conspiracy to manufacture, I do not distinguish to any great extent the roles of either defendants. I will take into account the quantity of drugs found by the Customs and Excise which does mean a starting point of 20 years and 2 months and I enhance it by 15 months.
This enhancement of 15 months takes into account the scale of the operation, it was on a small scale, and it would appear to have been a one-off event. The 2nd defendant booked a room for one night only. This is not a case where premises were rented on a long-term basis for the sole purpose of manufacturing a lot of dangerous drugs. Therefore, the starting point would become 21 years and 5 months for both defendants.
It has been specifically stressed on behalf of the 2nd defendant that she although was found to be part of the conspiracy, she only acted as the cook. She was acting upon or under the instruction and supervision of PW1. The evidence is that the cocaine belonged to the 1st defendant and PW1, not her. In recognition of this, I do intend to reduce the starting point for the 2nd defendant by 1 year, therefore the starting point for the 2nd defendant becomes 20 years and 5 months’ imprisonment.
Defence counsel have urged me to take into account two significant factors. For the 1st defendant, I have been asked to take into account the fact that he was remanded in custody for just under 3 years before he was acquitted in a trial closely connected or related to this charge.
For both defendants, I have been asked to take into account the fact that there has been a significant delay between the commission of the offence and this trial. Mr Raffell for the prosecution very fairly agrees that there has been a long delay for many reasons which can be taken into account as good mitigation.
I have taken all mitigation into account and I have taken into account the chronology and details supplied by the prosecution. It is unfortunate that the 1st and 2nd defendants were not charged with this offence at the same time as the parcel drugs offence. There is a delay and it is through no fault of either defendants. At the same time, I can understand there were reasons behind the decision not to deal with this charge at the same time.
Most importantly, I can take into account that during the delay of so many years, neither defendant reoffended. The 1st defendant has led a law-abiding life and started a family. The 2nd defendant has led a law-abiding life and had real aspirations of helping others. It was not just an empty promise to herself or her family. She worked hard at diploma courses, practical placements, and internships.
For this delay factor, I will reduce both defendants’ individual starting point by 18 months.
There is a submission that the 1st defendant has already served a significant period of time due to his remand in custody pending his trial on the parcel drugs. That remand in custody was not unjustified bearing in mind the quantity of the parcel drugs. That remand was not for this offence. However, if the charges had been dealt with together and he had been convicted of this charge back in 2018, then that remand would have been taken into account. Therefore, I intend to recognise that scenario by reducing the 1st defendant’s starting point by a further 1 year.
After I have taken into account the reduction in the starting points for the factor of significant delay and the 3-year period remand by the 1st defendant, the starting points are as follows.
For both defendants for this count, Count 1, I take a starting point of 18 years and 11 months. I see no other mitigating factors to take into account.
I have considered the principles of sentencing those convicted of trafficking in a dangerous drug as set out in the recent authority of HKSAR v Herry Jane Yusuph. Here I concern myself with the last and sixth step or stage of the sentencing process, that is, to step back and look at the overall sentence passed in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of the offence and the offender.
I have weighed this sentence of 18 years and 11 months against this principle, the drugs involved, and the facts of this conspiracy as well as the mitigation put forward. Standing back, it is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced, or unjust.
Accordingly the 1st defendant is sentenced to 18 years and 11 months’ imprisonment. Similarly, the 2nd defendant is sentenced to 18 years and 11 months’ imprisonment.