The 2nd charge is manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. The particulars of this charge allege that on the same date and at the same location as the 1st charge, the defendant manufactured cocaine.
The defendant pleaded guilty to these offences at the first opportunity in the magistracy and was committed to the Court of First Instance for sentence. At the time of his plea, he also admitted the truth of a Summary of Facts which set out the circumstances of the commission of his offence. Before me, he confirmed both his plea and his admission of that Summary of Facts.
The Summary of Facts reveals that on 24 September 2019 at around 1.15 pm, the defendant was intercepted by police officers at the ground floor lobby of Tower 1B of the Vibe Centro building. The police officers were conducting an anti-dangerous-drugs operation and were armed with a search warrant for Flat C of this building which was the flat being rented by the defendant. At the time of his interception, the defendant was asked for the address of his residence and he replied that he was living at Flat C on the 32nd floor of this building. The defendant was told that he was suspected of being involved in a drug-trafficking case and was cautioned. In reply, he said, “I know. There is still a little bit more ‘Ho Lok’ up there.” When asked what he meant by “Ho Lok”, the defendant replied “cocaine”.
The police officers took the defendant to Flat C on the 32nd floor and, using a key card provided by the defendant, gained entry to it. There was no one inside Flat C at the time they entered it. Inside the flat, the police found all the paraphernalia and chemicals for manufacturing cocaine base from cocaine hydrochloride. Cocaine base is commonly known by its street name of crack cocaine and it is usually taken by smoking. It is more valuable than cocaine hydrochloride, the salt form of cocaine, which is usually taken by snorting or dissolved in water for injection. That the premises and all that was contained in it were being used for the manufacture of crack cocaine was confirmed by the expert opinion of a forensic scientist.
In a subsequently conducted video record of interview, the defendant confirmed that he had rented Flat C on the instructions of a person he called Peter whom he had met at a bar in Tsim Sha Tsui in early July 2019. Peter had asked him if he wanted to earn some money and when the defendant said that he did, Peter told him to rent a flat and gave him $50,000 in cash and a mobile phone. The defendant used the cash to rent Flat C at a monthly rental of $12,500. The defendant said he was the only person who had a key for Flat C. The defendant also used part of the $50,000 to purchase the cooking utensils that he needed for manufacturing the crack cocaine.
When asked how he would handle the manufactured drugs, the defendant said that everything would be mixed together and packaged. He would then follow Peter’s instructions and call someone by using the phone number Peter had given to him. The defendant would tell this person to go downstairs of his building and would there give him the drugs. In return for doing this work for Peter, the defendant expected to get $16,000. However, the defendant said, he had not yet received any money from Peter other than the initial $50,000.
The total estimated retail value of the seized dangerous drugs was around $1,551,813.
The Summary of Facts concluded with admissions by the defendant that he was both trafficking in the dangerous drugs seized from Flat C and had manufactured those drugs.
The defendant’s antecedent report reveals that the defendant was born in China on 13 October 1992 and is now 28 years of age. He settled in Hong Kong in 2000 and was educated up to secondary school Form 1 level. At the time of his arrest, the defendant was unemployed but had previously worked as a kitchen worker, a fitness coach, and a construction site worker. His father is dead and prior to renting Flat C, he was living alone with his mother. He is single and he has an elder brother.
The defendant has a criminal record dating back to 2007 when he would have only been 15 years of age. At this time, he was convicted of assault occasioning actual bodily harm, blackmail and criminal intimidation and sentenced to rehabilitation centre. In his antecedent statement, the defendant said that he had been taking drugs since 2008. His criminal record shows that he was convicted of possession of dangerous drugs in both 2009 and 2012 and sent to DATC. In 2016, he was convicted of criminal damage and at that time was also sent to DATC from which he was discharged on 9 November 2016.
The defendant’s counsel, Mr Jacky Jim, informs me that the defendant has qualifications to work as a construction worker and produced copies of those qualifications to me. He said that the defendant had been unable to find employment from June 2019 onwards as a consequence of the public order unrest that occurred in Hong Kong. Mr Jim informs me that the reason for the commission of the offence was purely financial. The defendant was unemployed and needed money to take care of his elderly mother. His older brother was living apart but was also in financial difficulty and is now a bankrupt. The defendant’s monthly earnings decreased from about $17,000 to only about $8,000.
Mr Jim handed to me a letter written by the defendant and emphasised how much the defendant regretted what he had done. He said the defendant is genuinely very remorseful. In his letter, the defendant explains that he has repeatedly thought of reasons why he committed these serious crimes. He explained how his father had died when he was only 6 years of age and that since his early childhood, he and his mother and elder brother had been living together and taking care of each other. The defendant’s brother married and had his own family of two daughters but then the business in which he was engaged failed and he had to apply for bankruptcy.
The defendant says in his letter that the health of his mother is not good and she suffers from both diabetes and high blood pressure. He and his brother had to bear the heavy burden of taking care of the family but this was difficult because the defendant became unemployed. In order to relieve the stress that he was feeling, the defendant would go to bars to drink and it was in one of these bars that he met the person called Peter.
Peter became aware of the defendant’s financial difficulties and offered him the means to earn some quick money. The defendant realises now how foolish and greedy he was to accept this offer. He concludes his letter by saying:
“After I was arrested, my mother and my brother did not abandon me and keep visiting me in the prison. Even I was detained in the Stanley Prison that is so far away, they insist to visit me. They told me they do not wish me to be rich. All they want is the whole family be safe and keep intact and that is enough. When I heard that, my tears came out of my eyes. If I could understand that this simple principle, I will not commit these offences.”
The two offences with which the defendant is charged concern the same dangerous drugs. The defendant manufactured the small amount of crack cocaine that is particularised in the trafficking charge and would have intended to use the large amount of cocaine hydrochloride that is also particularised in that charge in order to manufacture further crack cocaine. Once he had completed the manufacturing process, he would have packaged the crack cocaine and handed it over to the person that Peter had nominated.
The law relating to the sentencing of drug-trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug whilst reaffirming that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment.
There was, however, still a role for the exercise of sentencing discretion. The goal of the sentencing guidelines was to achieve a reasonable consistency in general but not at the expense of preventing justice from being done in a specific individual case. They were not to be regarded as straitjackets and did cater for a discretionary element.
With these general principles in mind, I now turn to the six steps laid down in that judgment.
The first step is to assess the gravity of the offence and, as Macrae VP said in Herry Jane Yusuph at page 319, paragraph 57 of the report, this is done by:
“...focusing on the harm caused or created by the offence, which is principally gauged by the type and quantity of the particular drug concerned. Accordingly, the first step when approaching the sentence for an offence of trafficking in a dangerous drug is for the judge to identify the relevant guideline band (or bracket) applicable to the quantity of drug concerned.”
In respect of the quantity of cocaine and cocaine hydrochloride in which the defendant trafficked, the relevant decision is R v Lau Tak Ming and Others [1990] 2 HKLR 370. When the two types of cocaine are added together, the total amount of cocaine is 1,055.04 grammes. The relevant Lau Tak Ming sentencing band for this quantity of cocaine narcotic is 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes.
The second step is to assess the defendant’s role and culpability based upon the evidence. It is not disputed that the defendant’s role was that of a person who agreed to manufacture dangerous drugs on behalf of a person who trafficked in dangerous drugs and after the manufacturing process was completed, to hand over the finished product to another person. In order to distinguish the defendant’s role as manufacturer from his role as trafficker, I am going to assess his culpability as trafficker at the same level as a courier for that was what he was effectively doing once his manufacturing role was completed.
The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant. This initial or preliminary step in the determination of an appropriate sentence is described by Macrae VP as a starting point in the calculation of the defendant’s sentence as opposed to the notional sentence after trial. The starting point is identified by reference to the quantity of the dangerous drugs and the role and culpability of the defendant. The notional sentence after trial will be the figure that is reached after consideration is given to whether there are present any aggravating factors.
In respect of this third step, I do not understand the Court of Appeal to be eschewing the use of mathematics to identify where within the relevant band weight would suggest the defendant comes. Weight, of course, is just one of the factors, albeit one of the most important factors.
The assessment made in the second step is also relevant to determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.
In respect of this defendant, trafficking in 1,055.04 grammes of cocaine, the relevant Lau Tak Ming sentencing band of 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes produces a mathematically calculated weight-based starting point of 22 years and 3 months’ imprisonment.
In respect of the trafficking charge, taking into account my assessment of the defendant’s role and culpability and the weight of the cocaine in which he trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band. This provides me with a starting point of 22 years 3 months’ imprisonment.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. After completing this fourth step, I will arrive at the notional sentence after trial. If there are no aggravating factors, then the starting point will become the notional sentence after trial. The defendant appears before me as a drug user but who has no previous conviction for trafficking in a dangerous drug. There is no aggravating factor that requires me to enhance this starting point. Thus, the notional sentence after trial becomes 22 years and 3 months’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. In Herry Jane Yusuph, Macrae VP discussed the new sentencing regime laid down by the Court of Appeal in its decision in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and the reference in that and other cases to the one-third discount for a plea of guilty being the “high watermark” for the discount to which a defendant is entitled on a plea of guilty. He said at page 326, paragraph 77:
“Although the ‘high watermark’ reference to discount ‘normally’ or ‘usually’ applies to the vast majority of cases in which a plea is entered at the earliest opportunity, ‘unless there are very special factors to be taken into account’, the one-third discount was not intended to be an impenetrable ceiling beyond which a judge cannot go if he has good reasons in the proper exercise of his discretion for doing so.”
The one-third discount which an offender receives for his timely plea of guilty would generally encompass the bulk of the mitigating factors available to a defendant, such as prior good character, remorse, and impecuniosity as a motivation for the offence.
I cannot see that there is present in respect of this defendant anything that could be characterised as a very special factor which would justify me going beyond the one-third discount for the matters referred to by Mr Jim when those matters are considered either singly or cumulatively. A one-third discount of 22 years and 3 months produces a sentence of 14 years and 10 months’ imprisonment.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, balanced, and just in all the circumstances of the offence and the offender. This is particularly relevant to cases involving multiple offences where the principle of totality comes into play to ensure that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced and ultimately just. I shall address this step when I have finalised my sentence for the more serious charge of manufacturing a dangerous drug.
Essentially, the sentence for manufacturing a dangerous drug is also to be calculated, where the evidence allows it, by reference to the quantity and type of dangerous drug found on the premises at the time of the police raid. By relying on the same quantity of cocaine that is the subject of the 1st charge and applying to it the same sentencing guidelines, the same figure of 22 years and 3 months is reached. However, such a figure does not allow for the fact that manufacturing a dangerous drug is a far more serious offence than trafficking in a dangerous drug and for the fact that it takes place over a period of time during which it can reasonably be inferred that more dangerous drugs were or were to be manufactured than those which were seized at the time of the police raid.
In respect of this defendant, we know that he had been in occupancy of Flat C for approximately six weeks prior to the police raid. Mr Jim submitted that the manufacturing that produced the crack cocaine found at the time of the police raid was the first and only occasion that the defendant had manufactured cocaine since taking up occupancy of Flat C. After he explained to me why he made this submission, I could see that there was substance to it and I accept it.
In arriving at an appropriate sentence for a person convicted of manufacturing a dangerous drug, the law requires me to have regard to the scale of the manufacturing operation, the capacity of the equipment used in it, whether the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs and the role played by the accused (see R v Cheung Wai Kwong and Another [1997] HKLRD 344 and HKSAR v Kan Kong Fai [2009] 3 HKLRD 582.
The evidence makes it impossible for me to reach any detailed or precise conclusions on any of these matters. In this respect, the Summary of Facts is, regrettably, quite deficient. Mr Jim submits that the operation and the capacity of equipment showed that the present manufacturing is not really the worst kind as only home-scale cooking utensils were being used.
I accept that the scale of the operation is not industrial but, equally, it can be said that it was not small. The fact that the defendant was given $50,000 by Peter and tasked to rent for two years a premises which could be used specifically for the purpose of manufacturing crack cocaine reveals the seriousness of the intent behind the operation even if it does not allow of inferences to be drawn in respect of the operation’s scale and production capacity.
In doing the best I can on the limited information available to me, I am of the view that given my acceptance of the assertion that this was the first time the defendant had manufactured crack cocaine, an appropriate enhancement of the trafficking starting point is 2 years. No other enhancement is justified and so this produces a notional sentence after trial of 24 years and 3 months’ imprisonment. When this is discounted by one-third, the final sentence that is reached at the end of the Herry Jane Yusuph step five is 16 years and 2 months’ imprisonment.
This brings me to the final step in the six steps laid down in Herry Jane Yusuph and this step requires me to apply the totality principle to the final sentence. In my view, the issue of totality is relevant not just to determining whether any part of the manufacturing sentence should be ordered to be served consecutively to the trafficking sentence but if it should not, to also whether the final sentence of 16 years and 2 months’ imprisonment itself needs further adjustment to ensure it is fair, balanced and ultimately just.
As earlier mentioned, Mr Jim has emphasised the strong remorse that the defendant genuinely feels which is reflected in what he has written to me in his letter. The letter provides, I believe, real insight into the defendant and I believe what he has written in it.
The defendant is 28 years of age. A sentence as long as 16 years and 2 months will mean that even if he receives a further discount from the Commissioner for Correctional Services for good behaviour while serving his sentence, he will still not be discharged from custody until he is in his late 30s. He is keen to return to his mother to help look after her. She will be a much older person and it is only right that he should be given the opportunity to spend as much of her remaining days as possible with her.
I am satisfied that in these circumstances, if I were to make any part of the manufacturing sentence consecutive to the trafficking sentence, the final sentence would not be a just sentence but would rather be a crushing one. That being so, I order that the sentence for manufacturing a dangerous drug run concurrently with the sentence for trafficking in a dangerous drug.
I must now consider whether a sentence of 16 years and 2 months’ imprisonment is a fair, balanced and ultimately just sentence for this offender. I have been much impressed by what I have heard from the defendant’s own mouth in his letter to me and from what I have been told by Mr Jim who has spoken not only to his client but to his client’s mother who is in court today. The fact that she has come today to support her son and her assistance to Mr Jim in enabling me to better understand her son’s difficulties in developing from a teenager into adulthood persuade me that what this defendant needs is encouragement to rehabilitate himself.
Tailoring the sentence to the needs of this defendant without diminishing its punitive and deterrent characteristics is not easy. Nevertheless, I believe that some adjustment is needed to the mathematically created sentence. Reducing the 16 years 2 months to 15 years’ imprisonment will, I hope, provide the defendant with the encouragement he may need to pursue a path of rehabilitation yet still result in a sentence that is fair, balanced and ultimately just.
The total sentence that the defendant must serve is therefore 15 years’ imprisonment.