HKSAR v. CHEUNG TUNG HING

HCCC 357/2023

[2025] HKCFI 2709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 357 OF 2023

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AND

HCCC 358/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 358 OF 2023

________________________

________________________

(Heard together)

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The present two cases involving these two defendants are arising from the same case (ESCC 2383/2021) which is committed to the Court of First Instance for trial and sentence respectively because of the different pleas tendered by the two defendants at the committal proceedings on 9 November 2023.  D1 faces two counts of “Trafficking in a dangerous drug” (1^st and 3^rd Count) and one count of “Manufacturing a dangerous drug” (2^nd Count) while D2 originally faces only two counts of “Trafficking in a dangerous drug” (1^st and 2^nd Count).

2.  D1 pleaded guilty to all the three counts as charged at the committal proceedings and was thus committed to the Court of First Instance for sentence (HCCC 358/2023).  D2, however, pleaded not guilty to all the two counts of “Trafficking in a dangerous drug” during the committal proceedings and was thus committed to the Court of First Instance for trial (HCCC 357/2023).  

3.  On 3 February 2025, D2 was further charged with an additional count of “Manufacturing a dangerous drug” and before that, additional statements and evidence were supplied to D2 by the prosecution.  As a result, plea bargaining discussion was held between the parties and finally, the prosecution confirmed on 24 March 2025 that if D2 will plead guilty to the drug-manufacturing charge (Count 3), they are contended to leave the two drug-trafficking charges (Count 1 & 2) in the court file.

4.  This morning, D2 pleads guilty to the drug-manufacturing charge (Count 3) and admits the Summary of Facts and he is convicted as charged accordingly and I order the remaining two counts of the drug-trafficking charges to be left in the court file and not to be proceeded with without the leave of the court (HCCC357/2023).  D1, on the other hand, confirms his pleas to all the three counts as charged and also his admission of the Summary of Facts as amended (HCCC358/2023).  I therefore proceed to sentence these two defendants after reading the written mitigations and the authorities filed by their counsels and hearing their supplementary mitigations in court this morning.

FACTS

5.  According to the Summary of Facts agreed by both defendants, the Police mounted an anti-narcotics covert operation in the vicinity of Habour Plaza Metropolis, 7Metropolis Drive, Hung Hom Bay, Kowloon, Hong Kong (“the Hotel”) on 2 November 2021.

6.  At around 8:07 p.m., D1 was intercepted while he was coming out from the lobby of the Hotel. Upon search of D1’s rucksack, one recycle bag containing 19 small transparent packets containing a total of 367 grammes of a solid containing 326 grammes of cocaine (“E3”) was found.  D1 was arrested and cautioned for “trafficking in a dangerous drug”.

7.  A door key card (“E4”) to Room 12106 of the Hotel (“the Room”) was found on D1.  After confirming that D1 was the registered guest of the Room, the Police escorted him back to the Room for further investigation.

8.  At around 8:27 p.m., when the Police entered into the Room, another male (D2) was found inside the bathroom of the Room.

9.  The Police conducted a search inside the Room.  The following items were found on the dining table in the living room area:

(a) One glass bowl containing 119 grammes of a solid containing 89 grammes of cocaine (“E7”);

(b) Six plastic bags containing 125 grammes of a solid containing 93 grammes of cocaine (“E8”);

(c) One plastic bag containing 34.2 grammes of a solid containing 21.5 grammes of cocaine (“E9”);

(d) One glass container and one metallic spoon containing 0.33 grammes of cocaine (“E10”);

(e) One glass bowl containing 0.01 gramme of a solid containing cocaine (“E11”);

(f) One metallic sieve containing 0.08 gramme of a solid containing cocaine (“E12”);

(g) One electronic scale containing 0.01 gramme of a solid containing cocaine (“E13”);

(h) One electronic scale containing traces of a solid containing cocaine (“E14”);

(i) One paper box containing 227 grammes of a solid containing sodium bicarbonate;

(j) Large quantity of unused small resealable bags;

(k) One box of “GLAD” zipper bags;

(l) One marker pen;

(m) One lighter; and

(n) One pile of paper towels.

10.  On the desk in the bedroom of the Room, the following items were found and seized:

(a) One plastic bag containing 727 grammes of a solid containing 654 grammes of cocaine hydrochloride, i.e. a salt of cocaine (“E20”);

(b) One plastic bag containing 501 grammes of a solid containing 426 grammes of cocaine hydrochloride, i.e. a salt of cocaine (“E21”);

(c) Four plastic bags containing 0.63 gramme of a solid containing 0.38 gramme of cocaine (“E22”);

(d) One plastic bag containing 351 grammes of a solid containing traces of cocaine (“E23”);

(e) Three plastic bags containing a total of 67.7 grammes of a solid containing phenacetin, which is listed as Part 1 Poison (“E24”);

(f) One plastic bag containing 39.3 grammes of a solid containing phenacetin, which is listed as Part1Poison (“E25”);

(g) One stove containing traces of a solid containing cocaine (“E26”);

(h) One glass lid and one metallic stand containing traces of a solid containing cocaine (“E27”);

(i) Two electronic scale containing traces of cocaine (“E28”);

(j) One pair of chopsticks containing 0.01 gramme of a solid containing cocaine (“E29”);

(k) One pair of chopsticks (in three pieces) containing traces of a solid containing cocaine (“E30”);

(l) One pair of scissors containing traces of a solid containing cocaine (“E31”);

(m) One metallic pot, one metallic tong and one piece of paper, containing 55 ml of a liquid containing traces of a substance upon drying containing phenacetin, which is listed as Part1 Poison (“E32”);

(n) One kettle;

(o) One piece of cloth; and

(p) Large quantity of unused small resealable bags.

11.  In summary, a total of 279.32 grammes of a solid containing 204.21 grammes of cocaine and 1,228 grammes of a solid containing 1,080 grammes of cocaine hydrochloride were found in the Room.

ARREST AND CAUTION OF THE DEFENDANTS

12.  D1 and D2 was respectively arrested and cautioned for "manufacturing a dangerous drug".  Under caution, D1 admitted that he had manufactured dangerous drug inside the Room.  D2 however denied the offence and claimed that he merely came to the Room to accompany D1, watch television and smoke.

13.  Video-recorded interviews were taken from D1.  D1 admitted, inter alia, that :-

(a) he acquainted a stranger who invited him to traffic in a dangerous drug;

(b) he had only trafficked dangerous drugs 2 days before he was arrested;

(c) he booked the Room via Trip.com;

(d) he received around 1,000 grammes cocaine powder from another stranger at 7:00 am on 2 November 2021 inside the Room;

(e) he was carrying 326 grammes of cocaine while he was being intercepted by the police;

(f) he had lost money on gambling and wanted to earn quick money;

(g) he brought all the manufacturing and packing apparatus to the Room;

(h) he had manufactured crack cocaine by heating up the mixture of baking soda, cocaine powder and water;

(i) after manufacturing the crack cocaine, an unknown person would arrange someone for pick up.

14.  In D2’s video-recorded interview, he stated, inter alia, that:

(a) he was acquainted with D1 around two months ago in a friend’s gathering. He called D1 “開心仔師傅” on WhatsApp;

(b) he first visited the Room from around 3 a.m. to around 9 to 10 a.m. on 2 November 2021, before he left for work. D2 claimed he just went up to watch TV, smoke and chat with D1. He then slept on the sofa and had never entered the sleeping room;

(c) he visited the Room again after work at around 7:30 p.m. on 2 November 2021 to use the toilet, as he had a stomachache. He rushed straight into the toilet once he entered the hotel room and remained inside the toilet for a few minutes before he was arrested by the police.

(d) he denied knowledge of any drug or drug paraphernalia inside the Room.

EXPERT OPINION ON MANUFACTURING A DANGEROUS DRUG

15.  The Government Chemist, one Dr. Chow attended the Room at about 11 p.m. on 2 November 2021 for a scene inspection.

16.  Having inspected the scene and considered the chemical findings of the items found, Dr. Chow opined that manufacturing of cocaine base from cocaine hydrochloride had taken place at the Room.

SUBSEQUENT INVESTIGATION

17.  Upon review of the CCTV footage of the Hotel and investigation, it is revealed that:

(a) At around 10:47 p.m. on 1 November 2021, D1 registered at the Hotel and entered the Room.

(b) At around 4:19 a.m. on 2 November 2021, D2 arrived at the Hotel and went up to the Room with D1. He manufactured the cocaine involved in the present case. At around 10:01 a.m., D2 left the Room for work.

(c) At around 6 p.m., D1 asked D2 to purchase some re-sealable plastic bags for packing the drugs.

(d) At around 7:32 p.m., D2 came back to the Hotel after work, went up the Room together with D1, and continue to manufacture and pack the drug.

(e) At around 8:05 p.m., D1 left the Room to deliver the drug manufactured and was eventually arrested by the Police.

18.  Examination of D2’s mobile phone seized revealed WhatsApp messages between D1 and him on manufacturing and trafficking of drugs.

19.  Police Narcotics Expert, Mr. Chu Siu-lun, considered the WhatsApp messages found in the D2’s mobile phone and identified certain phrases as slangs relating to dangerous drugs.

STREET VALUE

20.  The estimated street value of drugs involved in November 2021 were as follows:

(a) E3, which was in form of crack cocaine, was HK$379,478;

(b) E7-E9, which were in form of crack cocaine, was HK$488,251;

(c) E20 and E21, which were in form of a salt of cocaine, was HK$1,269,752;

and the total estimated street value of the drugs involved was HK$2,137,481.

21.  Despite what he said under caution after his arrest, D2 now accepts and admits that, at the material time, he, together with D1, manufactured a dangerous drug, namely cocaine, including those found on D1 and inside the Room, at the Hotel.

BACKGROUNDS & MITIGATIONS

22.  D1 is aged 27. He was born in the mainland, and he later came to Hong Kong when he was around three years old.  He completed Form 3 and quitted school in 2014.  At the time of arrest, D1 claimed that he was unemployed, and his last job was a bartender in 2018.  He is still single and before arrest, he lives with his mother, stepfather and two brothers aged 20 and 21 together with his stepbrother aged 4 at a public housing unit in Oi Man Estate, Ho Man Tin, Kowloon.

23.  D1 had a similar record of “Trafficking in a dangerous drug” involving 500 grammes of ketamine back in 2014 for which he was sentenced to 6 years’ imprisonment in the High Court upon pleading guilty.  He was subsequently brought up in the West Kowloon Magistrates’ Court for two offences relating to Prevention and Control of Disease Ordinance (Cap. 599) and another offence of “Possession of liquor for sale/supply without a license”.  He was sentenced to 7 day’s imprisonment and a fine of $2,000.

24.  D2 is also aged 27.  He was also born in the mainland, and he later came to Hon Kong when he was 7 years old.  He completed Form 3 education.  At the time of arrest, he worked as a goods vehicle driver.  He is single and he resides with his mother and elder brother at a public housing unit at Wo Che Estate, Shatin.

25.  D2 was convicted of three counts of theft in 2013 for which he was put on Probation for 18 months.  He had however been in drug addiction since 2021.

26.  In mitigation, Mr. Percy, Counsel for D1, emphasized that D1 co-operated fully with the police following his arrest.  He provided accurate information and access to the Room and confessed to both trafficking and manufacturing cocaine.  In the VRI, he further elaborated and explained how he became involved with drugs and how he hoped to earn quick money to pay-off his crippling gambling debts.  Mr. Percy emphasized that D1 pleaded guilty to all the three counts and agreed to the Summary of Fact at the earliest opportunity.

27.  Apart from his full co-operation, D1 has also provided the police with a Non-Prejudicial Statement (NPS) dated 14 December, 2023 implicating D2 in the manufacturing operation.  After the committal, he also offered himself as a prosecution witness in the trial against D2.  Mr. Percy submits that the information in the NPS was of some practical value.  D1’s offer of information and assistance as a witness had eventually contributed to the decision by D2 to plead guilty and so avoid the expenses of a trial.

28.  Relying on Z v HKSAR (2007) 10 HKCFAR 183, Mr. Percy urged the court to give D1 a discount of 40% which included the one-third reduction for guilty plea, for a defendant who provided assistance to authorities without giving evidence.

29.  Mr. Percy also submitted letters of mitigation from D1 and his mother for my consideration.  I am not going to refer to the details of the letters.  In short, D1 is now very remorseful and his mother of course asks the court to pass a lenient sentence on him. 

30.  As for the proper starting points adopted for the two trafficking counts, Mr. Percy properly referred me to the most recent guidelines laid down by the Court of Appeal in HKSAR v Huang Ruifang [2025] HKCA 234 involving trafficking in large quantities of cocaine.  As for the count of manufacturing cocaine, Mr. Percy relied on HKSAR v CHENG Chi Wai CACC 50/2019 (2 March 2021) and HKSAR v SUM Ka Wa CACC 144/2023 (8 August 2024) involving large manufacturing and trafficking operations where the offences are inextricably linked.  He particularly relied on the fact that the duration of the manufacturing was short, only in the region of 6 hours or more before the arrest.

31.  Mr. Ng, counsel for D2, submitted that despite the not guilty pleas tendered by D2 to the two counts of trafficking in a dangerous drug at committal, the subsequent decision by D2 to plead guilty to the additional count of manufacturing a dangerous drug should nevertheless still be considered as a timely plea for which D2 should be entitled to the full one-third discount.

32.  Mr. Ng also referred me to the cases on manufacturing a dangerous drug.  He emphasized that it would be inappropriate to deliver a sentence based solely on the quantity of drugs seized.  The starting point for drug-manufacturing offences must be based on the overall circumstances of individual cases and he stressed that the consideration should include the extent to which the defendant took part in the drug manufacturing and the role he played in the matter (See para. 32 of HKSAR v Cheng Chi Wai (supra.)).  Mr. Ng stressed that the less culpable defendant should receive a lesser sentence, and he urged the court to consider that D2 was not the mastermind in the syndicate.  He was only instructed to wrap and mix the dangerous drug in the Room and he was offered a reward of HK$20,000 worth of drugs to satisfy his drug addiction and there is no evidence to show that D2 was connected to actual trafficking in dangerous drugs.

33.  Mr. Ng also submitted a letter of mitigation by D2 for my consideration.

SENTENCING CONSIDERATIONS

34.  In sentencing, I have considered the facts of the case, the nature and the quantity of the drugs involved, the relevant sentencing guidelines and authorities and the mitigations put forward by counsels for the two defendants.

HCCC358/2023

35.  As for the two trafficking counts, which only concern D1, it is well established that drug-trafficking is a very serious offence which carries a maximum sentence of life imprisonment and a fine of HK$5 million.  I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  It was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.

36.  In the approach to sentencing, six steps have been identified which the court should take.  They are assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and, lastly, passing a sentence which is fair, just and balanced in all of the circumstances of the offence and the defendant.

37.  The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized.  

38.  D1 pleaded guilty and was convicted of two charges of trafficking, Count 1 and 3.  He was first intercepted by the police whilst he was coming out from the lobby of the Hotel where 19 small transparent packets containing a total of 326 grammes of cocaine related to Charge 1 was found inside the rucksack he was carrying.  He was then escorted to the Room he had rented to which he had access.  Inside the Room, a total of a solid containing 204.21 grammes of cocaine, and a solid containing 1,080 grammes of cocaine related to Charge 3 were found.  

39.  In such circumstances, I consider the trafficking offences underlying these two charges arose from the same course of the criminal conduct.  It is therefore only fair that the aggregate amount of the drugs involved should be added altogether for fixing a global starting point for both charges.  As the Court of Appeal held in the case of HKSAR v Chong Cho Kit, CACC 363/2005 (unrep., 12 July 2006), at §14,

“The rationale is obvious because it would be unfair, for example, to treat two lots of drugs, one lot found on the accused when he was stopped when coming out of his room and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence.”

40.  The present case involves a total of 1,610.21 grammes of cocaine.

41.  In determining the proper overall starting point for Count 1 and 3, I have referred to the recent case of HKSAR v Huang Ruifang [2025] HKCA 234, where the Court of Appeal has revised the sentencing guidelines for trafficking in heroin and cocaine.  For a total of 1,610.21 grammes of cocaine, applying the revised tariff, between 1,500 grammes and 5,000 grammes, the band is between 20 to 24 years.  Therefore, based solely on the quantity by itself would, mathematically speaking, attract a starting point of 20 years and 1.5 months.

42.  The second step is to assess the role and culpability of the defendant based upon the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant.  The assessment made in the second step is relevant in deciding where the defendant falls within or outside the band.

43.  The Court of Appeal reaffirmed that the bands are for the least culpable of drug traffickers. As was held in the Herry Jane Yusuph at §59, and I quote,

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

44.  There is no doubt that D1’s role in the present case was not limited to that of a courier or storekeeper.  By his own admission to the manufacturing charge (Count 2), he was clearly involved in the process of manufacturing crack cocaine inside the Room.  It is also clear that D1 was responsible for packing and distributing the crack cocaine after it was manufactured.  I consider his role to be above the category of ‘courier or storekeeper’ and is in the category of an ‘actual or direct trafficker’ which is described in Herry Jane Yusuph at § 61.  D1 should be considered as such based on his own admissions after his arrest, the staggering quantities of dangerous drugs found on him at the time of arrest and in the Room he rented, and the paraphernalia associated with manufacturing drug and trafficking drug that was found in the Room.  However, since D1 is charged with manufacturing dangerous drug to which he has also pleaded guilty, in order to avoid double counting, for the consideration of enhancement as far as the trafficking charges are concerned, here I would only focus on his operating a packaging and distribution centre for cocaine in a hotel room and ignore his part in the manufacturing of crack cocaine in the Room.  In any event, an enhancement of the sentence is still required due to his heightened culpability based on his role.

45.  In HKSAR v Islam Azharul [2020] 1 HKLRD 644, the Court of Appeal considered an enhancement of six months’ imprisonment appropriate for a defendant who was involved in the packaging and dissemination of dangerous drugs by renting a room to store them.  He was also in possession of over 90 bags and packets of drugs worth more than $73,000 at the time of his arrest and was found with a knife bearing traces of the drugs, as well as an electronic scale. 

46.  By comparison, the present case is of course much more serious both in terms of the quantities and the street values involved which is well over HK$2 million.  I therefore consider an enhancement of the overall starting point of around 11 months’ imprisonment appropriate as far as the two trafficking counts are concerned. The overall sentence of the two trafficking counts would therefore be increased from 20 years and 1.5 months to 21 years of imprisonment.

47.  The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance the starting point.  Looking at his criminal records, this is by far the second time D1 is convicted of trafficking charge.  D1 had a similar trafficking record back in 2014 for which he was sentenced to 6 years’ imprisonment.  Mr. Percy also properly acknowledged that a previous conviction for a similar offence of trafficking in a dangerous drug is an aggravating factor which might increase the starting point for sentence.  However, after taking into account the already lengthy sentence that will be imposed, in the end, I have decided not to enhance the sentence because I firmly believe D1 had already learned a bitter lesson and the overall sentence he would receive would be sufficient to deter him from re-offending in the future.

48.  The fifth step is to consider all mitigating factors.  As submitted by Mr. Percy, D1 pleaded guilty to all the three charges at the earliest opportunity during the committal proceedings and made admissions at the scene after his arrest.  The defendant should be given the customary one-third discount for his timely plea. On top of that, I agree with Mr. Percy that apart from D1’s full co-operation with the police after the arrest, he has also provided the police with a NPS implicating D2 in the manufacturing operation.  D1 has also offered himself to be a prosecution witness to testify against D2 in his trial.  It is clear that the information in the NPS was of some practical value.  I accept that D1’s offer of information and assistance as a witness for prosecution largely had contributed to the decision by D2 to plead guilty to the drug-manufacturing charge.  As such, according to Z v HKSAR (supra.) I shall follow the practice of giving a discount of 40% (including the one-third discount for pleading guilty).

49.  Apart from that, there is nothing in the paper to demonstrate that there is anything exceptional warranting any further reduction in sentence.  After applying such a discount, D1’s overall sentence on Charge 1 and 3 is reduced from 21 years to 12 years and 7 months of imprisonment.

50.  The sixth and final step is to stand 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.  

51.  In my judgment, the final sentence of 12 years and 7 months on the two trafficking counts is, of course, harsh for D1.  However, in light of the above and the fact that the offences he committed are serious and taking into account also the role he had played in the trafficking operation, I have no doubt that the sentence is fair, just and balanced in the circumstances.

52.  In relation to the manufacturing count, it is undoubtedly much more serious than trafficking in dangerous drugs.  In The Queen v Cheung Wai Kwong & Another [1997] HKLRD  344, the Court of Appeal already held that

“A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserved a heavier sentence. (see R v Wong Chun Ping & Others [1984] HKLR 247)”

53.  In deciding the proper sentence for the offence of manufacturing dangerous drugs, the Court of Appeal made it clear that the quantity of drugs was but one factor to be taken into consideration.  Other factors included the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs and the role played by the accused.

54.  The Court of Appeal also ruled that if the drug-manufacturing workshop was of a significant scale and very active, the starting point of the sentence would easily be in excess of 20 years.

55.  In HKSAR v Cheng Chi Wai [2021] HKCA 181, the Court of Appeal agreed that the starting point for “drug-manufacturing” offences should not necessarily be linked to the starting point for trafficking offences with the same quantity of “drugs” and there should be no fixed proportion between the two.  However, it was also held that the quantity of drugs seized is obviously relevant in assessing the seriousness of the offence as it will be indicative of the size and productivity of the manufacturing operation. 

56.  The Court of Appeal opined that if there is information to show that the manufacturing act is a one-off rather than a continuous act, a starting point slightly higher than the sentence for trafficking in the same quantity of drugs may be considered appropriate.

57.  If the manufacturing act is a continuous act spanning a period of time, and the manufacturing workshop is of considerable scale and productivity involving a large amount of chemicals used for manufacturing as well as a not insignificant quantity of high-standard manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial.

58.  When it comes to a large scale, productive and long-running drug-manufacturing workshop, where the defendant plays an active and important role, and where an exceptionally large amount of drugs is seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence.

59.  In my judgment, the present case reveals a drug-manufacturing workshop operated in a hotel room rented by D1 where a quantity of 204.21 grammes of crack cocaine was already manufactured and raw materials found in the Room, namely 1,080 grammes of cocaine hydrochloride and the 227 grammes of sodium bicarbonate would in the future have certainly yielded more quantity of cocaine base for commercial trafficking.  According to my enquiry with Mr. Lam, SPP, for the prosecution, the Room was registered by D1 for a rental for 3 nights and the enterprise was clearly not one-off and short -lived but will be continuing for at least 3 days if not intercepted by the police.

60.  Taking into account the quantity of the cocaine involved in this case, the commercial value of the cocaine found, the capacity of the equipment, the fact that the manufacturing workshop had already been start producing once the Room was occupied and was likely to produce even many more quantities of cocaine base to be packed and distributed into the market, I consider it was still a fairly large scale operation capable of producing large amount of crack cocaine. 

61.  In light of the role played by D1 in the whole manufacturing operation, I consider a starting point of 23 years of imprisonment appropriate in his case.

62.  As stated, because of his assistance to the authorities, D1 would be given 40% reduction (including one-third discount because of his plea) in his sentence.  The sentence on Charge 2 is therefore also reduced from 23 years to 13 years and 9 months’ imprisonment which is slightly more than 40%.

63.  As for totality, in HCCC358/2023, for D1, I think it is only right that all the sentences on Count 1 to 3 shall run concurrently.

HCCC357/2023

64.  For D2, he pleaded not guilty to the two drug-trafficking counts at the committal on 9 November 2023 and the case was committed to the Court of First Instance for trial.  A trial date has already been fixed on today (i.e. 23 June 2025).  He only indicated he would plead guilty to the additional count of manufacturing a dangerous drug after plea-bargaining on 14 February 2025 and in particular, after he was served with the NPS from D1 implicating him in the manufacturing operation and also with the clear knowledge that D1 was prepared to testify for the prosecution in the trial.

65.  Mr. Ng submitted that in these special circumstances, D2 should still be treated as if he had pleaded guilty at the earliest opportunity and hence should still be given the one-third discount.  He said that D2 acknowledged that he performed the act of manufacturing a dangerous drug but not trafficking in a dangerous drug. Firstly, Mr. Ng argued that the elements of the offence of drug-manufacturing are different from drug-trafficking.  Secondly, the legal representatives were not able to provide timely advice to D2 about the manufacturing charge and thirdly, the non-availability of the remaining relevant WhatsApp messages had prevented D2 from plea bargaining or indicating his intention to plead guilty to the manufacturing charge.

66.  I disagree. According to the Third Schedule of the Dangerous Drugs Ordinance (Cap.134), the offence of unlawful trafficking (section 4) is a statutory alternative to the offence of unlawful manufacturing (section 6).  Furthermore, the legal definition of trafficking in relation to a dangerous drug includes “dealing in or with the dangerous drugs” which must also be part and parcel of the act of drug-manufacturing.  There is therefore no logical basis for D2 to argue that he acknowledged that he performed the act of unlawful manufacturing but not unlawful trafficking of a dangerous drug.  In fact, from what he said under caution at the scene, he was merely denying any knowledge of the presence and existence of cocaine at all found in the Room.  If, according to Mr. Ng, D2 fully knew that he took part or assisted D1 in the manufacturing of cocaine base inside the Room, he should only consider himself fortunate and he could have pleaded guilty to the two trafficking charges at the committal proceedings at the earliest opportunity especially when those are lesser charges if he really wants to accept his responsibility in the matter and is genuinely remorseful. 

67.  In accordance with the principle of awarding one-third discount to a defendant on account of his true remorse and his genuine effort to save court’s time, I therefore refuse to give D2 the one-third discount as requested.  According to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, in the usual cases where an indication of a plea of guilty after the fixing of trial dates but before the first day of trial, the relevant discount should be between 20% to 25%.  Taking into account the fact the additional charge of unlawful manufacturing was still only laid by the prosecution after the committal, in such circumstances, I would award D2 with the upper range so that a 25% discount would be appropriate.

68.  Lastly, Mr. Ng urged me to impose a lesser sentence in light of the minor role and hence lesser culpability of D2 in the manufacturing charge.

69.  I accept that D2 is not a mastermind in the syndicate, and unlike D1, he is not a major player. His task was only limited to wrapping and mixing of the dangerous drugs inside the hotel room and he was only offered a reward of HK$20,000 worth of drugs to satisfy his drug addiction.  There is no evidence that he was involved in the dissemination or delivery of the crack cocaine after the manufacturing process was completed. 

70.  By comparison with the role played by D1 in the manufacturing charge, based on the above, I consider a lesser starting point of 22 years of imprisonment will be enough to reflect D2’s role.  After giving him the 25% discount as indicated, the sentence he should receive in the additional Count 3 is 16 years and 6 months of imprisonment.

ORDER

HCCC358/2023 (D1)

71.  Count 1 - 12 years and 7 months.

72.  Count 2 - 13 years and 9 months.

73.  Count 3 - 12 years and 7 months.

74.  Sentences on Count 1- 3 to run concurrently.  (Total sentence: 13 years and 9 months.)

HCCC357/2023 (D2)

75.  Count 3 - 16 years and 6 months of imprisonment.