HKSAR v. LAU LOK HIN, JOHNSON

HCCC 67/2020

[2021] HKCFI 1391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 67 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of trafficking in dangerous drugs and one of manufacture of a dangerous drug before Magistrate Mr Ho Chun-yiu and was committed on 9 April 2020 to the Court of First Instance for sentence.

SUMMARY OF FACTS

Count 1: Trafficking in dangerous drugs

2.  The defendant was intercepted by Police officers at Prince Edward Road West, Kowloon Tong at about 7:30pm on 29 January 2019.

3.  From a manila envelope that the defendant was holding, and which he dropped while struggling with the officers, 20 plastic bags of suspected dangerous drugs were found.  The contents were later confirmed to be a total of 455 grammes of a solid containing 368.4 grammes of cocaine.

4.  A body search was conducted on the defendant and another plastic bag was found on his person.  The contents were later confirmed to be 11.7 grammes of a solid containing 9.13 grammes of cocaine.

5.  Together they are the subject matter of count 1, being a total of 377.53 grammes of cocaine.

6.  The defendant was arrested and he stated under caution that he was instructed to traffic the cocaine in the envelope for a reward of $500 per packet, while the plastic bag found on his person was to be given to someone as a gift.

Counts 2 and 3: Manufacture of a dangerous drug and trafficking in dangerous drugs

7.  The defendant was later brought to Room D, 2^nd Floor, 126 Waterloo Road, Kowloon Tong, the door of which were able to be opened with keys found on the defendant.

8.  The following items were found in the house search:

On the mattress:

(1)  5 paper towels containing a total of 512.6 grammes of a solid containing 349 grammes of cocaine

(2)  2 plastic bags containing a total of 47.2 grammes of a solid containing 38.2 grammes of cocaine.

(3)  2 boxes of baking soda and a plastic bag containing 217 grammes of powder

Inside the drawer of the bed:

(1)  20 plastic bags containing a total of 451.46 grammes of a solid containing 366.84 grammes of cocaine.

(2)  4 plastic bags containing a total of 5.88 grammes of a solid containing 5.1 grammes of ketamine.

(3)  1 plastic bag containing 134 grammes of powder.

(4)  1 plastic bag containing 1.04 kilogrammes of a powder containing phenacetin, a listed Part I poison.

On the floor:

(1)  1 plastic bag containing 73.8 grammes of a powder containing phenacetin, a listed Part I poison, which is on top of an electronic scale containing 0.04 grammes of a powder containing cocaine.

(2)  An electronic scale containing 0.04 grammes of a powder containing cocaine and ketamine.

(3)  A glass beaker containing 0.05 grammes of a powder containing cocaine.

(4)  A blender containing 0.61 grammes of a powder containing 0.53 grammes of cocaine.

(5)  A metal pot containing 0.01 gramme of a powder containing cocaine.

(6)  A gas stove containing 0.52 grammes of a powder containing 0.14 grammes of cocaine.

(7)  A metal bowl, a colander, a pair of chopsticks and a metal spoon containing a total of 0.61 grammes of a powder containing 0.26 grammes of cocaine.

(8)  Two pairs of scissors containing a total of 0.03 grammes of a powder containing cocaine.

(9)  A box of opened baking soda.

On the counter near the door:

(10)  A Project Service Acknowledgement receipt bearing the defendant’s surname, his phone number and flat address.

9.  The defendant was arrested and cautioned again.  Under caution, he stated that he used the equipment to cook the drug seized for selling.

10.  In all, a total of 1,013.13 grammes of solid and powder containing 754.97 grammes of cocaine; 5.88 grammes of a solid containing 5.1 grammes of ketamine; and 0.04 grammes of a powder containing cocaine and ketamine were found in the room.  They form the subject matter of count 3.

11.  Based on the above paraphernalia, the dangerous drugs found inside the room, and the defendant’s confession, he was also charged with the manufacturing of dangerous drugs.

VIDEO RECORDED INTERVIEWS

12.  In the subsequent video recorded interviews, the defendant stated that he manufactured and trafficked in crack cocaine for a male known as ‘Yiu Jai’ for a reward of $500 per packet.  The defendant learned how to manufacture crack cocaine from a fellow inmate.

13.  Yiu Jai arranged for the defendant to pick up a batch of cocaine powder at a rubbish bin near Yau Oi Market in Tuen Mun a few days before the arrest, which the defendant brought to the room for manufacturing crack cocaine.

14.  The defendant would mix the cocaine powder, baking soda and water in the pot, cook the mixture until it thickens, then cool it with cold water and aired, using the equipment the Police found in the room in the process.

15.  On the day of his arrest on 29 January 2019, the defendant packed the crack cocaine and was on his way to deliver them to Yiu Jai outside Funful Kindergarten on Prince Edward Road when he was intercepted by Police officers.

16.  Investigations revealed that the defendant’s rental of the room for $8,000 per month started on 1 January 2019.  According to the defendant, he was the only person with the keys to the room.

17.  Telephone records indicate that the defendant had had phone contacts with Yiu Jai between 9 and 29 January 2019.

18.  The defendant’s DNA was found on one plastic bottle and some of the plastic bags, which contained dangerous drugs, found inside the room.

19.  According to the Government Chemist, the chemicals and paraphernalia found inside the room are items commonly associated with the process of making of cocaine base and could have been used in the handling of cocaine.

20.  The street value of all the cocaine seized is estimated at $1,849,788, whereas the ketamine seized has a street value of $2,887.

PREVIOUS CONVICTIONS

21.  The defendant was sentenced on 1 March 2012 for one charge of criminal intimidation to 18 months’ probation.  This probation order was discharged on 19 March 2013 upon the defendant being ordered to be detained in the Rehabilitation Centre after the submission of his progress report.  This is a spent conviction under section 2 of the Rehabilitation of Offenders Ordinance, Cap 297 and will not be taken into consideration when deciding on the appropriate sentence.

22.  The defendant was next sentenced on 23 January 2017 for two counts of trafficking in dangerous drugs in the Court of First Instance.  The total sentence was 5 years and 2 months’ imprisonment, which the defendant finished serving on 27 October 2018, being 3 months and 2 days prior to his arrest in the present case.

THE DEFENDANT’S BACKGROUND AND MITIGATION

23.  The defendant is 22 years old[1]. He was educated up to Form 3 level and was working as a part-time waiter earning about $13,000 per month.  The defendant would contribute around $2,000 of his income to his mother every month.

24.  As at July 2020, the defendant’s father is 60 and living apart.  The defendant’s 52-year-old mother is a housewife.  The defendant has two elder sisters aged 23 and 24.  The defendant was living alone prior to his arrest for the present offences.

25.  According to the written mitigation of Mr Victor Cheung, the defendant committed the offences due to his financial difficulties and his desire to earn some quick money.  He foolishly agreed with a man to take part in the manufacturing of the dangerous drugs, as well as delivering the drugs in count 1 for a reward of $10,000.

26.  Mr Cheung mentioned that the defendant had led the Police to the premises after he was arrested on the street and that the defendant should be granted some discount on this basis.  I do not agree.

27.  According to the summary of facts, the defendant was intercepted while on his way delivering drugs.  The prosecution informed the court that at that time the Police was already in possession of information that a room on the second floor of the building where the drugs were later found was involved with drugs related activity.  I agree with Mr Cheung for the prosecution that it was inevitable that the premises were located and the drugs inside found, regardless of whether the defendant brought the Police there or not. As such, there is to be no discount based on the fact that the defendant did bring the Police officers to the premises after his interception on the street.

SENTENCE

28.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs and manufacture of dangerous drug is the same, being a fine of $5,000,000 and imprisonment for life.

29.  The sentencing tariffs for trafficking in heroin in the case of R v Lau Tak-ming and Others [1990] 2 HKLR 370 are found to be applicable to the trafficking of cocaine in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342.  The tariffs were later supplemented in the case of HKSAR v Abdallah Anwar Abbas[2009] 2 HKLRD 437; CACC 304/2008 to deal with the sentencing of larger quantities of narcotic contents.

Counts 1 and 3: On street and in premises

30.  The drugs found on the defendant’s person and in the flat are to be considered together.  The total narcotic contents that the defendant had trafficked in under counts 1 and 3 are 1,132.5 grammes of cocaine.

31.  An arithmetical application of the tariffs to this amount of cocaine would lead to a sentence of 271 months’ (or 22 years and 7 months) imprisonment after trial.  This is the combined starting point I adopt for the two counts.  On this combined starting point basis, the sentences for counts 1 and 3 are to be served concurrently.

Count 2: Manufacturing

32.  In the case of R v Wong Chun Ping [1984] HKLR 247, at 257H, the Court of Appeal stated as follows:

“We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. 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].”

33.  The said paragraph was reiterated in the case of HKSAR v Kan Kong Fai (簡光輝), CACC 298/2008, and the Court of Appeal held at para 19 of the judgment that,

“19. In any event, as far as the offence of drug manufacturing is concerned, an appropriate minimum starting point is 6 years’ imprisonment irrespective of the quantity of drugs seized, in order to reflect the gravity of the offence.”

34.  Both the above cited paragraphs were considered and relied on in the case of HKSAR v Pei Yuk Kam (畢玉錦) CACC 213/2010.

35.  In the case of R v Cheung Wai Kwong and Anor [1997] 3 HKC 496, the Court of Appeal observed at 501F:

“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.”

36.  These observations were held to “remain as relevant today as they were then” in the case of HKSAR v Wong Ping-kay, CACC 495/2001, “but it is important to observe the context in which they were spoken.”  There the Court of Appeal adopted a starting point of 10 years’ imprisonment for manufacturing 14.88 grammes of heroin, which was roughly 1.8 times of the starting point for trafficking in the same quantity of drugs.

The present case

Scale of manufacturing

37.  Even if we only take into consideration the 20 plastic bags of cocaine product found in the envelope that the defendant was holding when he was stopped and, therefore, were to be delivered to Yiu Jai, the narcotic contents would still be 368.4 grammes of cocaine.  It must be inferred from the defendant’s video recorded interviews that these 20 bags of drugs were the product of his manufacturing process, for which he will be receiving $500 per packet from Yiu Jai.

38.  If the manufacturing of 14.88 grammes of heroin attracted a sentence of 10 years’ imprisonment, being 1.8 times the sentence for trafficking in that same amount, then the manufacturing of 368.4 grammes of cocaine ought to be attracting a sentence of around 313 months, or 26 years and 1 month’s imprisonment.

39.  However, the multiplication by 1.8 of the equivalent sentence for trafficking in the same amount of narcotic contents is not a set formula and the quantity of drugs produced is not the only factor to be considered.  Other factors to be considered include the defendant’s role in the process and whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs.

The defendant’s role in the manufacturing

40.  According to the video recorded interviews, the defendant was the technician in the trafficking process, charging a fee of $500 per packet of crack cocaine he manufactured.  He received the cocaine from Yiu Jai and brought them to the room for processing.  The defendant was responsible for the whole manufacturing process from the mixing of ingredients to the packaging and delivery of the finished products to Yiu Jai.  In other words, the defendant played a significant role in the manufacturing process.

41.  I find that based on the information disclosed by the defendant himself in the video recorded interviews, the only reasonable inference must be that the crack cocaine found on his person were products of his manufacturing process and ingredients for further production.

42.  While more elaborate operations can be imagined, the defendant’s production process cannot be said to be of a small scale.  I find that it can properly be referred to as at least a medium sized one-person manufacturing operation.

43.  Bearing in mind the quantity of end product found from the envelope, I find that a proper starting point for this manufacturing count is that of 23 years’ imprisonment.

The Ketamine and trace amount of cocaine

44.  I find that the ketamine and cocaine found on the equipment is of such a small quantity when compared to the quantity of cocaine that the defendant will be sentenced on they can be ignored when arriving at the final sentence.

Totality

45.  Taking a step back and applying the principle of totality, and bearing in mind the view of Mr Cheung for the prosecution that the court could consider a mostly or wholly concurrent sentence for the three counts, I find that 30 months of the sentence in counts 1 and 3 should be served consecutively to the sentence in count 2, with the balance to be served concurrently, bringing the total to 306 months’ imprisonment.

Aggravating factor

46.  The defendant committed the present offences just three months after his last release from prison, having served a sentence of 5 years and 2 months’ imprisonment for trafficking in dangerous drugs.  I find that the defendant is a persistent offender and that this aggravating factor should be reflected in his sentence by way of an enhancement of 6 months, bringing the overall sentence to 312 months’ imprisonment before plea.

47.  The defendant is granted the full one-third discount for his timely pleas of guilty and is sentenced to a total of 208 months’ imprisonment, or 17 years and 4 months’ imprisonment.