HKSAR v. CHAN PUI HONG

HCCC 134/2024

[2025] HKCFI 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 134 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of trafficking in a dangerous drug; one of manufacturing of a dangerous drug; and one of possession of dangerous drugs before Magistrate Ms. Vivian Ho and was committed, on 22 April 2024, to the Court of First Instance for sentence. He confirmed his pleas of guilty and admissions to the summary of facts before me, and his convictions were duly recorded.

COUNT 1: TRAFFICKING IN A DANGEROUS DRUG

2.  Particulars are that the defendant on 25 May 2022, near lamp post No.AB2255, Wan On Street, To Kwa Wan, Kowloon, unlawfully trafficked in a dangerous drug, namely 21.6g of a solid containing 17.8g of cocaine.

COUNT 2: MANUFACTURING OF A DANGEROUS DRUG

3.  Particulars are that he on or about 25 May 2022, at Flat A (hereinafter as “the Flat”), 26^th floor, Tower 1B, Upper East, No.23 Sung On Street, Hung Hom, Kowloon, unlawfully manufactured a dangerous drug, namely cocaine.

COUNT 3: TRAFFICKING IN A DANGEROUS DRUG

4.  Particulars are that he on or about 25 May 2022, at the Flat, unlawfully trafficked in dangerous drugs, namely 790g of a solid containing 635g of cocaine hydrochloride; 273.53g of a solid containing 221.74g of cocaine, and 2,699.50g of a solid containing 1,597.70g of ketamine.

COUNT 4: POSSESSION OF DANGEROUS DRUGS

5.  Particulars are that the defendant on 25 May 2022, at Room 517, Oi Tat House, On Tat Estate, Sau Mau Ping, Kowloon, had in his possession dangerous drugs, namely 21.90g of a solid containing 3.34g of cocaine and 3.79g of cannabis in herbal form.

SUMMARY OF FACTS

COUNT 1

6.  Customs Officers noticed the defendant lingering suspiciously on Wan On St at around 12:30am on 25 May 2022 and went up to intercept him.  Upon search, a re-sealable plastic bag containing the dangerous drugs in count 1 were found inside his backpack.  The drugs had an estimated value of HK$19,612.80.

7.  The defendant was arrested.  He admitted under caution that it was cocaine inside the bag and he was going to distribute them to others.  He also disclosed that he got the cocaine from the Flat.

COUNT 2 AND 3

8.  Customs officers escorted the defendant to the Flat and opened the door with a key found on him.  The following items were on the kitchen counter:

(a)  A resealable plastic bag containing 790 grammes of a solid containing 635 grammes of cocaine hydrochloride;

(b)  On three pieces of kitchen towel, 271 grammes of a solid containing 220 grammes of cocaine;

(c)  Inside a yellow plastic bag:-

(i)  A resealable plastic bag containing 149 grammes of a solid containing 67.5 grammes of ketamine;

(ii)  7 plastic bags containing a total of 1.75 kilogrammes of a solid containing 1.07 kilogrammes of ketamine;

(iii)  3 plastic bags containing a total of 748 grammes of a solid containing 431 grammes of ketamine;

(iv)  A plastic bag containing 52.5 grammes of a solid containing 29.2 grammes of ketamine;

(d)  A plastic container and a plastic drainer containing a total of 1.07 grammes of a solid containing 0.70 grammes of cocaine;

(e)  A digital scale containing 0.02 grammes of a solid containing cocaine;

(f)  A digital scale containing traces of a solid containing cocaine;

(g)  A metal pot with a cover containing a total of 1.20 litres of a liquid containing phenacetin, a Part 1 Poison;

(h)  A metal spoon, a pair of chopsticks and a ceramic bowl containing a total of 0.57 grammes of a solid containing 0.41 grammes of cocaine;

(i)  A glass bowl containing 0.86 grammes of a solid containing 0.63 grammes of cocaine;

(j)  Traces of a solid on the built-in induction stove which contained traces of cocaine;

(k)  A pair of scissors containing 0.01 grammes of a solid containing cocaine;

(l)  A plastic bag containing 1.36 kilogrammes of a solid containing phenacetin, a Part 1 Poison; and

(m)  A rolling pin, a box of Ziplock bags and some small transparent resealable plastic bags.

9.  Under caution, the defendant claimed that the ‘white powder’ and the solids on the kitchen towel were cocaine.  Some of which was for ‘cooking’ and some for distribution. He said there was some ketamine inside the yellow plastic bag.  The drugs and paraphernalia all belonged to him, which he used to manufacture drugs for distribution.  He would receive around HK$20,000 per month for his efforts.

COUNT 4

10.  The defendant was brought to his home at Room 517 Oi Tat House.  Upon search, two re-sealable plastic bags were found on the television cabinet in the living room, containing all the dangerous drugs in count 3.

11.  The defendant claimed under caution that the drugs were cocaine and herbal cannabis and that they were for his self-consumption.  

12.  The tenancy agreement for the Flat and a commission receipt issued by the property agent to the defendant for the rental of the Flat were found on the dining table of Room 517.  The defendant had started renting the Flat since 23 December 2021 for a period of two years at a monthly rental of HK$13,000.

FURTHER INVESTIGATION

13.  Forensic Scientist Dr. Tang opined that the chemicals and paraphernalia seized from the Flat were items commonly associated with the process of making cocaine base from cocaine hydrochloride, and that such process could have taken place at the Flat.

14.  WhatsApp communications apparently relating to the manufacturing and trafficking of dangerous drugs were found in one of the defendant’s mobile phones, together with some photos of white solids on a digital scale, and photos of re-sealable packets containing white solids.  The defendant’s fingerprint was found on a ceramic bowl and a metal pot inside the Flat.

15.  By his admission to the summary of facts, the defendant had accepted and admitted that, at all material times, he had unlawfully trafficked in the dangerous drugs found on his person and in the Flat; that he had manufactured cocaine at the Flat; and that he was in possession of the dangerous drugs found in his home at Room 517.

PREVIOUS CONVICTIONS

16.  The defendant is of previously clear record.  

BACKGROUND AND MITIGATION

17.  The defendant was 20 at the time of the offences and is now 23.  He has had no communication with his father and was raised by his mother, who was their sole financial support.  

18.  The defendant was educated up to Form 6.  He decided to quit school and worked full time to help out his mother.  He had since worked as a part-time waiter and event helper.  He had worked as an insurance agent from July 2020, after obtaining his license.  Due to the COVID pandemic, he was not able to meet the minimum requirement set by the company and had to resign in 2021, and had been unemployed since then.

19.  Ms. So, counsel for the defendant, submitted that the defendant was feeling strained financially during his unemployment.  He did not want his mother to worry about him and so, under the influence of undesirable peers, he foolishly decided to commit the present offences.  In the defendant’s handwritten mitigation letter, he claims it was a previous school mate who enticed him with the chance to earn quick money through things related to dangerous drugs.  

20.  Ms. So told the court that the defendant’s family has been visiting him regularly while in remand.  The defendant plans to enrol in a degree course in Economics offered by Hong Kong Metropolitan University.

21.  The defendant’s mother wrote in mitigation, recounting how shocked she was when told about her son’s involvement in the case, how the defendant has all along been an upright person.  She feels that the defendant used to be slightly distant in their relationship, but in her visits during his remand, she senses that he cherished every visit.  She talks about how the defendant regrets not being able to see her mother for a last time before her passing, but family support has managed to relieve the pain he feels.  Ms. So told the court that madam Siu has been quite ill since last year, fainting at home in January and was hospitalized for 11 days.  Reports show an increase of infections in her pancreas.  She also suffers from diabetes, needing regular tests to follow up with her health condition.  She is also seeking psychiatric help for the depression she suffers from, no doubt related to all the difficulties she has been facing recently.  

22.  Reverend Franke Wong wrote on behalf of the defendant, informing the court about the defendant’s involvement since primary school with Boys’ Brigade, how he would help out the younger members, and taking on challenges.  He finds the defendant deeply remorseful, and has made remarkable progress as a person, setting clear goals including to make use of his time in custody productively by studying, and to take care of his mother upon his release.  

SENTENCING CONSIDERATIONS

23.  The maximum sentence for the trafficking in or manufacture of dangerous drugs is life imprisonment and a fine of $5 million, whereas that for the possession of dangerous drug is a fine of $1 million and imprisonment for 7 years.  

COUNT 1 AND 3

24.  The dangerous drugs found on the defendant’s person upon interception were taken from the Flat.  I find that the drugs in the two counts should be considered together.

25.  For trafficking in dangerous drugs, the sentencing steps in HKSAR v Herry Jane Yusuph[1]are applied as follows.

Step 1: The applicable guideline tariff bands

26.  The combined quantity of drugs is (17.8+635+221.74)  874.54g of cocaine and 1,597.7g of ketamine.

27.  The respective guideline tariff band for the cocaine and ketamine is 20 to 23 years, and 14 to 18 years.

Step 2: The defendant’s role and culpability

28.  In relation to the drugs of count 1, which were found on the defendant’s person, the defendant claimed that he was on his way to distribute them to others.  He said he got the cocaine from the Flat.  Based on the quantity of the cocaine hydrochloride, cocaine and ketamine found in the Flat, and the defendant’s above confession, together with the paraphernalia found in the Flat, the only reasonable inference must be that the defendant was manufacturing the cocaine and storing them in the Flat before distributing them to others.  

29.  Since the defendant is being charged with a separate count of manufacturing dangerous drugs, I will not enhance his notional starting point for his role as storekeeper and courier, otherwise he will be doubly punished.  

30.  I will, therefore, apply the tariff on the basis of his role being a storekeeper and courier.

Step 3: The relevant band within the guidelines

31.  For 874.54g of cocaine and 1,597.7g of ketamine, an arithmetical application of the tariff would result in starting points of 21 years 4 months, and 16 years 5 months.

32.  Since two different types of drugs were trafficked, I adopt the combined approach as set out in HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367 and HKSAR v Islam S M Majharul [2020] HKCA 300.

33.  Although less in quantity, cocaine is regarded by the court as the more potent drug and I adopt it as the base drug when applying the combined approach.  The results of the 3 tests are as follows.

ABSURDITY TEST

34.  If all 2,472.24g of narcotics were cocaine, the arithmetical notional starting point would be 24 years 4 months.

CONVERSION TEST

35.  For 874.54g of cocaine and 1,597.7g of ketamine, the respective notional starting point is 21 years 4 months, and 16 years 5 months.

36.  455g of cocaine would attract a sentence of 16 years 5 months.  Adding this converted 455g to the original 874.54g results in 1,329.54g of cocaine, suggesting a notional starting point of 23 years 2 months.

RATIO TEST

37.  Based on the proportion of the two drugs, the sentence would approximately be 20 years 10 months.

38.  Having considered the quantity of drugs involved and the test results, I adopt a starting point of 23 years 2 months for the combined quantity of drugs.

Step 4: Aggravating factors

39.  It is trite law that trafficking in multiple types of dangerous drugs is an aggravating factor.  Given the large quantity of both cocaine and ketamine, I will enhance his sentence by 7 months, bringing the sentence to 23 years 9 months.

Step 5: Mitigating factors

40.  The defendant was of previously clear record.  There is also evidence of his positive good character.  He had received quite a few awards for his participation in the school basketball team, and for being a mentor to younger students.  It is clear that he can potentially be a very good student.  As a recognition of his previous positive good character, as well as motivation to his rediscovering and applying his skills and abilities through enrolling in courses while in custody, I will grant him a reduction of 6 months’ imprisonment.

41.  The reduced sentence is 23 years 3 months’ imprisonment.  

Step 6: Totality

42.  Taking a step back, I find that, in the circumstances, the combined sentence of 23 years 3 months’ imprisonment for count 1 and 3 is a fair, just and balanced sentence.

43.  Granting the defendant a one-third discount for his guilty pleas, the combined sentence for the two counts becomes 186 months, or 15 years 6 months.

44.  To achieve this combined sentence, I sentence the defendant on count 1 to (67x2/3)  45 months’ imprisonment; on count 3 to 166 months after plea.  20 months of count 1 to be served consecutively, the balance concurrently, resulting in a sentence of 186 months.  

SENTENCING COUNT 2: MANUFACTURING DANGEROUS DRUGS

45.  Although having the same maximum sentence upon conviction, as Ms. So correctly pointed out in her submissions, manufacturing of dangerous drugs is a more serious offence than trafficking in dangerous drugs.

46.  Ms. So, however, submits that the defendant’s manufacturing operation was not sophisticated, nor on a large scale.  It was basic and simple, and had not been going on for a long time based on the Flat had only been rented for about 5 months at the time of the arrest.

47.  In R v Wong Chun Ping [1984] HKLR 247, CACC 493/1983, the Court of Appeal suggested that only in exceptional circumstances, for instance if the capacity of the equipment is very small, should a court consider a sentence for manufacturing dangerous drugs of less than 10 years’ imprisonment.  Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs.

48.  In the case of HKSAR v Wong Ping Kay [2002] 2 HKLRD 161, the Applicant diluted heroin by mixing it with caffeine in a blender and then package and sell them to drugs addicts.  One ounce of undiluted heroin would allow him to produce 120 straws of diluted heroin.  He had rented the room where the drugs and paraphernalia were found for about 2 months at a monthly rental of $3,000.  A total of 38.46g of a mixture containing 14.88g of heroin hydrochloride in plastic bags and plastic straws packets were found, together with about 111g of caffeine, a blender, brush and betting slips which all had traces of heroin on them.

49.  The trial judge, having considered the scale of the operation and the background of the applicant adopted a starting point of 18 years’ imprisonment.

50.  On appeal, the Court first of all confirmed the relevancy of what a differently constituted Court of Appeal had stated in R v Cheung Wai-kwong and another [1997] 3 HKC 496:

“It is clear that for the offence of manufacturing of dangerous drugs, the quantity of drugs found is of course relevant but this is not the only factor to be taken into consideration. In deciding the proper sentence for such offence, the court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused.”

51.  The Court in Wong Ping Kay then considered that the applicant’s operation was a comparatively small role for a manufacturer, and the starting point of 18 years was manifestly excessive in the circumstances, and that a proper starting point should be in the region of 10 years’ imprisonment.

52.  In HKSAR v Cheng Chi Wai [2021] HKCA 181; CACC 50/2019, the sentencing judge adopted starting points of 38 and 34 years each for two counts of manufacture of cocaine.  There the appellant had manufactured cocaine at two different locations, with 1,747g and 914g of cocaine found at each of the locations.

53.  Having referred to the above mentioned cases of Cheung Wai Kwong and Wong Chun Ping and the relevant sentencing principles laid down in those cases, and confirmed that the starting point should not be less than 10 years unless the manufacturing was just nominal, say, a one-off mixing and diluting of small quantity of drugs without sophisticated paraphernalia or large amount of chemicals, the Court in Cheng Chi Wai added that the starting point for drug manufacturing offences must be based on the overall circumstances of individual cases:

“32. However, apart from the quantity of drugs seized, the length of time for which the drug-manufacturing workshop has existed and operated, its scale and productivity, the quantity and standard of drug-manufacturing paraphernalia, the extent to which the defendant participated in the drug-manufacturing and the role he played in the matter are all important factors to be taken into account in sentencing.”

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

55.  After taking into consideration all the circumstances, the Court was of the view that the combined starting point for the 2 manufacturing counts should be 34 years’ imprisonment.

56.  Turning to our present case, I find that the defendant was operating a medium sized drug manufacturing operation at the Flat.  The equipment used were normal household items that can be easily purchased at any local stores.  The evidence suggest that the defendant had been engaging in the operation for about a few months.  Based on the condition of the Flat and the state that the various paraphernalia and raw materials found, the defendant would have carried on had the police not intervened.  Based on the drugs found in the Flat, the manufacturing must have gone on for some time.  The defendant played a significant role as the sole manufacturer there.  

57.  I find that a proper starting point is that of 18 years’ imprisonment in the circumstances.  In adopting this starting point, I must stress that, in the way that the manufacturing charge is particularized and the summary of facts as set out, the prosecution is not suggesting that the cocaine found in the Flat were all manufactured by the defendant.  The prosecution had chosen to charge the defendant with trafficking in them, rather than alleging that they were products of his manufacturing.  

58.  As the facts now stand, the findings as to the scale of the operation can only be gauged from the equipment and raw material present, rather than the amount of the end products since we do not know if the cocaine found in the Flat were in fact the end products.  This could possibly have been done but the expert forensic report only concluded that drug manufacturing could have taken place at the Flat, without commenting on the scale of the manufacturing, which I surmise could be within the expertise of the forensic scientist.  

59.  It is within the above factual matrix that I have concluded that the operation was of a medium size, and adopted the starting point above.  

60.  For the same reason, I will grant the defendant a reduction in sentence of 6 months for his previous positive good character, taking the sentence down to 17 years 6 months.  The defendant is granted the full one-third discount for his guilty plea and sentenced to 11 years 8 months’ imprisonment on count 2.

COUNT 4: POSSESSION OF DANGEROUS DRUGS

61.  For the 3.34g of cocaine and 3.79g of cannabis in herbal form found in the defendant’s home, I will adopt a starting point of 18 months’ imprisonment, reducing it by 3 months for his previous good character, resulting in a sentence of 10 months’ imprisonment after plea.

TOTALITY

62.  To recap, the defendant is sentenced to 15 years 6 months on counts 1 and 3; 11 years 8 months on count 2; and 10 months on count 4.

63.  The defendant was 20 years old when he committed the offences.  He had a clear record.  Despite his parent’s divorce, he managed to do reasonably well at school and had applied himself diligently, engaging in extra-curricular activities.  He appeared to have wanted to help out his mother when he decided to take up the offer to manufacture drugs.  His family support is strong after the incident, and he intends to continue with his studies when serving his sentence.  

64.  Taking a step back, reminding myself that the manufacturing of dangerous drugs is an offence more serious than that of trafficking in dangerous drugs, but bearing in mind the trafficking sentences are already very lengthy sentences, I find that the appropriate final global sentence should be 18 years’ imprisonment after plea.  

65.  To achieve this sentence, I order 2 years 6 months of count 2 to be served consecutively to the sentence of counts 1 and 3, the balance concurrently.  The sentence in count 4 to be served concurrently with the sentences in counts 1, 2 and 3.  

66.  The defendant is sentenced to 18 years’ imprisonment for all 4 counts after plea, representing an overall starting point of 27 years.