HKSAR v. LIM CHING FUNG AND OTHERS

HCCC 14/2021

[2021] HKCFI 1888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 14 OF 2021

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Introduction

In the Magistrates’ Court, the first three defendants, D1 to D3, pleaded guilty to a joint charge of manufacturing in a dangerous drug, Charge 1, and the 4^th defendant, D4, pleaded guilty to a charge of trafficking, Charge 2. They are committed to this court for sentence. Before me, they confirmed their guilty plea and their agreement to the Summary of Facts prepared by the prosecution.

The particulars of Charge 1 are that D1 to D3, on or about 21 January 2019, at an unnamed house near DD 41 Lot 902, Tong To Ping Tsuen, Sha Tau Kok, New Territories in Hong Kong (“Location 1”), unlawfully manufactured a dangerous drug, namely cocaine hydrochloride.

The particulars of Charge 2 are that D4, on or about January 2019, outside the container office near DD 41 Lot 432, Sha Tau Kok Road, Shek Chung Au, Sha Tau Kok, New Territories, in Hong Kong (“Location 2”), unlawfully trafficked in a dangerous drug, namely, 953 grammes of a solid containing 811 grammes of cocaine hydrochloride.

Brief Facts

Charge 1

Shortly stated, at 2000 hours on 21 January 2019, outside location 1, where there were a number of buckets containing chemical solvents, a platelet, two iron barrels and cans of gasoline with gas lance, D1 and D2 were seen carrying big water buckets and D3 was seen holding a gas lance. The three defendants tried to flee when they were intercepted by police and were subdued. Under caution, they all admitted to the police that they were paid to manufacture dangerous drugs at location 1.

Inside location 1, the police found:

•  a total of about 18.964 kilogrammes of cocaine contained in 11 buckets, containing some in liquid form and some in damp solid and some in solid/liquid mixture.

•  A total of 6.1392 kilogrammes of a solid containing 5.112 kilogrammes of cocaine hydrochloride contained in seven packets in a garbage bag.

•  Various containers and tools (including electronic blender and electronic scale)  containing small quantities of cocaine and cocaine hydrochloride.

•  Cocaine manufacturing apparatus such as densitometer, soda powder, Glad wrap, active charcoal, lime, heating pipe, surgical mask, electric furnace with cover, electronic scale.

•  71 buckets of various chemicals namely, isopropyl alcohol, sulphuric acid, ethyl acetate and some other chemicals.

In summary, the total quantity of cocaine narcotic found at location 1 was 18.77038 kilogrammes and the total quantity of cocaine hydrochloride narcotic found there was 5.11213 kilogrammes.

The total retail value of all the dangerous drugs was $36,056,927.50.

Later, D1 and D3 made further admissions under caution:

•  D1 said he was invited by D2 in December 2018 to become a lookout for D3 who manufactured dangerous drug. He said that he was promised a reward of HK$100,000 of which he was already paid HK$30,000 by D2.

•  D2 said he was recruited by one ‘Ah Wai’ to come to Hong Kong to work as a lookout in October 2018 for a reward of HK$100,000 and that he and D1 had each received HK$30,000 from ‘Ah Wai’ for monitoring D3 manufacturing dangerous drugs. On 19 January 2019, ‘Ah Wai’ drove him to location 1 where he met D1 and D3.

•  D3 said he was recruited by a Chinese man in Colombia to come to Hong Kong to manufacture cocaine and he was promised a reward of about US$20,000 which sum he had not yet received. He came to Hong Kong on 13 December 2019 and he met D1 and D2 on 24 December 2019 at location 1. He said that D2 had paid him $5,000 for daily expenses.

Charge 2

On the same night between 2038 and 2045 hours, D4 was driving in his private vehicle with registration mark VS7253, first to location 1 and then to location 2. When he was approached by the police, he drove the car away. Later that night, he was intercepted by the police when he was walking towards Sheung Tam Shui Hang Village. During the search of the car VS7253, the police found inside: the key of another car registration number MY334; keys for the container office at location 2: mobile phones belonging to D1 and D2 and three mobile phones belonging to D4.

The police took D4 to location 2 where the car MY334 was parked. Inside that car, there were: a plastic bag containing the cocaine hydrochloride, the subject matter of Charge 2 which was estimated to have a retail value of HK$1,049,253; a digital scale; and a few transparent resealable plastic bags.

At the time, D4 also had HK$14,760 in his possession.

Antecedents

D1

D1 was born in Hong Kong and is now aged 23. After D1 had finished Form 3, I am told by Mr Wong that D1 continued to attend VTC to learn air-condition installation. He has a clear record. He is single and he used to leave with his parents and a sister.

Mr Wong tells me that a few months prior to the offence, D1 moved to live in Shenzhen alone because he was in debt and he did not want his family to worry about him. D1 committed the present offence, I am told, because he was desperate to earn quick money and was under bad peer influence.

D2

D2 is now aged 28. He was born on the mainland and moved to Hong Kong in 2001. He is educated up to Form 1 and had worked as a courier, garage worker, and porter. He has two previous, one of criminal damage (in 2010)  and the other of criminal intimidation (in 2021). He is single and he lives in Shenzhen alone. Ms Lau tells me that D2’s father passed away in 2004 when D2 was still a child. After that, D2 was ignored and mistreated by his stepmother. D2 committed the offence owing to bad peer pressure. I take note of all D2 said in his mitigating letter and in particular that he is now truly remorseful.

D3

D3 was born in Columbia and is now aged 40. He has primary education and worked in a garage. He is married in Columbia with a daughter, aged 5, and his son, aged 1. He has a clear record in Hong Kong.

D4

D4 is born in Hong Kong and is now aged 28. He is educated up to Form 3 and was a transportation worker. He is single. His parents have divorced and he lives with his mother. I am told by Mr Leung, counsel for D4, that D4’s sister is studying at a university in Taiwan. He has two previous records, one of trafficking in 2009 and the other of possession in 2011.

Sentence, Charge 1

The maximum sentence for this offence is life imprisonment. The sentencing approach is given in the recent judgment of the Court of Appeal in HKSAR v Cheng Chi Wai, CACC 50/2019. It is noted that “manufacturing” is a more serious offence than “trafficking”. The quantity of the dangerous drug seized is a relevant factor but not the sole factor.

In sentencing, the court will take into account also the time the manufacturing centre had existed and had been in operation, the scale of the manufacturing and its capacity, the number of the tools and their sophistication, the role of the defendant in the manufacturing and the degree of his participation.

In case of a large scale manufacturing site which had been in operation for a lengthy period of time, in which the defendant had an active participation and played an important role, the appropriate starting point would exceed 30 years’ imprisonment.

Having considered the Summary of Facts and looked at the case photos, I have no doubt that location 1 was a large-scale manufacturing site for cocaine and cocaine hydrochloride involving a large number of tools and a large quantities of chemicals. The total quantity of the narcotics was more than 24 kilogrammes with a total retail value of over HK$36 million. Based on the admissions of D1 to D3, it would appear, however, that the manufacturing there would have been in operation for only a short period.

D1 and D2 were tasked to serve as a lookout and to keep an eye on D3 who was involved in the actual manufacturing process. That said, based on AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and according to the sentencing tariff laid down by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKSAR 438, even it were for trafficking in the quantity of the dangerous drug concerned, the starting point would be more than 30 years.

In all the circumstances, I adopt 31 years’ imprisonment as the starting point of Charge 1 in respect of D1 and D3. The fact that D3 had come to Hong Kong specifically for committing the offence is an aggravating factor, for which I add another 2 years on top. Therefore, in case of the trial and before considering any reduction for mitigation, the sentence for D1 and D2 would be 31 years’ imprisonment, and the sentence for D3 would be 33 years.

In relation to D1 and D2, I trust that Mr Wong and Ms Lau have said all that can be said on their behalf in mitigation. However, apart from their respective timely plea for which the customary one-third discount would be given, I can see no mitigation factors capable of reducing the sentence.

The full co-operation of D1 and D2 after the arrest by making admission to the police should be subsumed within that one-third discount (Secretary for Justice v Lee Chun Ho, Jeef [2009] 6 HKC 471). Thus, D1 and D2 are each sentenced to 20 years and 8 months’ imprisonment.

As regards D3, my attention has been drawn by Mr Kelly to the fact that D3 had provided a non-prejudicial statement, (NPS), to the police on 22 January 2019 which was the day following his arrest.

According to Mr Kelly, which is now being said by the prosecution, D3 has never said or done anything to retract from his willingness to assist. Then, that NPS was included in the draft committal bundle and D3’s name appear on the List of Prosecution Witnesses as PW5, the description “accomplice witness” and the draft committal bundle was served on all parties, that is the sentence I add to the Summary of Facts. Then in October 2020, D3’s name again appeared on the amended list of prosecution witness which was served on all parties.

Having heard counsel, I have no doubt that the inclusion of D3’s NPS in the draft committal bundle and the appearance of his name twice on the list of prosecution witnesses was a mistake on the part of the prosecution. This is because it is elementary that D3, as an accused in the case, was neither competent nor compellable as a prosecution witness (see Criminal Evidence in Hong Kong by Bruce and McCoy at chapter 9, paragraph 105 to 150).

However, whether or not it had been the intention of the prosecution to call D3 as a prosecution witness in the trial of his co-accused, by their action, they had held out to the other parties that that was their intention and the prosecution had not done anything to disabuse people, including D3, of that purported intention.

Based on the court’s record, all the defendants first formally indicated a guilty plea on 4 January 2021, which was almost two years after D3’s NPS was given. I have read the NPS of D3. Although D3 was unable to give the proper names of the other defendants in that statement, what he said there was consistent with his admission under caution as recorded in the Summary of Facts.

Having consider the contents of the NPS, I am of the view that D3 would be able to give useful evidence for the prosecution in case his co-accused pleaded not guilty.

Although D3 was eventually not required to give evidence in court for the prosecution, fairness requires that an additional discount be given to him for his assistance that he had offered to the prosecution (Z v HKSAR [2007] 2 HKC 265).

In all the circumstances, in my view, D3 is entitled to an overall discount of 40 per cent from the notional starting point of 33 years. Therefore, he is sentenced to 19 and 9 months’ imprisonment.

Charge 2

For sentencing purpose, the sentencing tariff laid down in Abdallah also applies to trafficking in cocaine hydrochloride (see R v Chang Chen Liu Sa [1994] 3 HKC 685). Therefore, trafficking in 600 to 1,200 grammes of cocaine hydrochloride attracts a starting point of 20 to 23 years’ imprisonment.

Charge 2 concerns 811 grammes of the narcotic. Taking an arithmetical approach for calculating the starting point which is appropriate for a drug courier, the starting point would be 21½ years’ imprisonment.

In the present case, there is no evidence to suggest that the role of D4 was other than that of a courier, therefore the starting point for D4 is 21½ years’ imprisonment.

Mr Leung has said all that can be said on behalf of D4 in mitigation. However, similar to the situations of D1 and D2, apart from D4’s timely plea, I can see no mitigating factors which may reduce his sentence.

Therefore, D4 is sentenced to 14 years and 4 months’ imprisonment.