HKSAR v. YEUNG KWOK LUNG

HCCC 325/2017

[2018] HKCFI 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 325 OF 2017

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

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COURT:

The defendant had pleaded guilty in the magistrates’ court to one count of manufacturing of a dangerous drug, namely 383.37 grammes of a solid containing 362.29 grammes of cocaine and he had also pleaded guilty to one count of possession of a dangerous drug, namely 0.77 gramme of a crystalline solid containing 0.76 gramme of methamphetamine hydrochloride and 91 millilitres of a liquid which upon drying was found to contain 0.32 gramme of a solid containing 0.24 gramme of methamphetamine.

The facts are that on 1 November 2016, the defendant was intercepted by the police as he left a one-storey building in Kung Um Road, Yuen Long. The police escorted him back to the premises and executed a search warrant at No 293. The police used the key found in the defendant’s possession to gain access into the premises. Inside the premises, was also found the defendant’s girlfriend and inside the premises were found many plastic bags of cocaine, the methamphetamine hydrochloride which is the subject matter of the 2nd count and two inhaling devices for methamphetamine. A plastic bag containing 38.4 grammes of a powder containing sodium bicarbonate, a utensil containing traces of cocaine and a cotton swap containing traces of heroin.

Upon being arrested and cautioned, the defendant admitted that the ‘Ice’ was for his own consumption using the inhaling devices found by the police and that he cooked cocaine by using the baking soda. He was subsequently interviewed and he gave a detailed account of how he cooked the cocaine.

He said that he would pour the ‘Coke’ into a big bowl and add boiling water. Then double boil it for a few minutes and then add tap water and during this process, the sodium bicarbonate would be added and subsequently the ‘Coke’ would be solidified. He would stir it with his hand and after cooking, he would weigh the cooked ‘Coke’ and pack them into individual bags of 24 grammes each. And then he would wait for instructions as to where he would deliver them. He said that each bag of 24 grammes would sell for about $16,000. And the 16 bigger bags of cocaine seized in his room were the cooked ‘Coke’ he referred to. And he said that there were some seven smaller bags and he claimed that those were for his own consumption and that the ‘Ice’ found was also for his own consumption.

The defendant was also interviewed about the exhibits found and he identified those exhibits which he said belonged to him but he refused to disclose the passwords to his mobile phones.

The retail value of the cocaine was around $480,000 and for the ‘Ice’ would be around $365.

The defendant was aged 29 at the time. He came to Hong Kong in 1990. He has previous convictions since 2002 and his last conviction was in 2014 for common assault. This is the first time he has committed dangerous drugs offence.

In mitigation, as Mr Cheng fully recognised, the only real mitigation is his plea of guilty at an early date.

Upon assessing sentence, I realise that no forensic scientist had attended the scene. I made inquiries with counsel for the prosecution, Mr Wong, and I was informed that the investigating officer did at the time request the presence of the forensic chemist but they did not appear. So the police had to do the best they can and not being scientists themselves, they took many photographs of the exhibits. Mr Wong, counsel for the prosecution, told me that when he received the file, he did make enquiry with the Forensic Science Division and Dr Wong then made a statement which simply referred to the manufacturing process but which I found unhelpful because in determining the sentence to be given to a defendant, this court has to consider not only the quantity of drugs which was found but also factors, for example, like the manufacturing operation itself. Was it a large operation? Had a lot of manufacturing been going on or was it the first time or was it just a typical operation? So I had to adjourn sentencing in order for a forensic scientist to come to court to assist this court.

Dr Wong appeared today and gave useful evidence. Now Dr Wong, I must make it clear, was not the person on duty when the police requested the assistance of the forensic scientist. I have informed Dr Wong of my concern that there seems to be a lack of co-operation between the Forensic Chemist Division and the police when they are investigating manufacturing or suspected manufacturing offences.

Now, having said that, I come back to the sentencing. I am grateful to Mr Wong for submitting the case of The Queen v Cheung Wai Kwong and another – [1997] HKLRD 344 where the Court of Appeal had stated in relation to sentencing for manufacturing in Headnote 2 that:

“Manufacturing was undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserved a heavier sentence.”

In deciding the proper sentence for the offence of manufacturing dangerous drugs, 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. The Court of Appeal in that case had referred to an earlier decision in the case of Wong Chun Ping & Others v The Queen [1984] HKLR 247 and the Court of Appeal said in Cheung’s case at headnote 4 this:

“Since Wong Chun Ping v R decided in 1984 suggesting that a minimum of 10 years’ imprisonment for manufacturing dangerous drugs, courts had become much tougher with drug offenders. The basis had also changed from the quantity of mixture in Chan Chi Ming v The Queen [1979] HKLR 491 to the quantity of narcotics in The Queen v Lau Tak Ming and Yeung Wai Shing and Others [1990] 2 HKLR 370. The sentence of 10 years’ imprisonment when the old guidelines were adopted would easily have been over 20 years now. The sentence of 21 years imposed by the judge was neither wrong in principle nor manifestly excessive.”

Returning to the present case, I have to consider as I have said earlier, not only the quantity but the scale of operation, capacity of the equipment, substantial quantities likely to be produced or have been produced and the defendant’s role. But as I have said, the lack of a forensic scientist at the scene at the time of the arrest certainly was not helpful in these areas. Dr Wong could only observe from the photographs and the subsequent analysis of the equipment and the defendant’s admissions and he came to the conclusion that it was not a sizable operation, it was just a typical operation. And he explained the manufacturing process that was described by the defendant was that it was converting cocaine hydrochloride into cocaine base by adding sodium bicarbonate.

As I have said to Mr Cheng because of Dr Wong’s limited evidence, I would give the defendant the benefit of the doubt that this was a small size operation and just a typical home based operation. So it is not a medium size nor a sizable operation. So in the circumstances, I consider that a proper starting point sentence would be one of 20 years and giving the defendant the full one-third off would reduce the sentence to 13 years 4 months.

In relation to the 2nd count of possession, I would consider an appropriate starting point of 3 years, reduce to 2 years because of his plea.

Now I have to consider the totality principle. I consider in view of the fact that the defendant had admitted that he took the methamphetamine and the smoking of methamphetamine in the premises for self-consumption. But I do not accept that part of any of those cocaine were for his own consumption. Therefore, in the event, I consider that the sentence on the 2nd count should be concurrent to the 1st count.

So the defendant will go to prison for 13 years and 4 months.