COURT: The defendant pleaded guilty to two charges of trafficking in a dangerous drug and one charge of manufacturing a dangerous drug in committal, and he was committed to the High Court for sentence.
According to the 1st charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, on 24 August 2021, he trafficked in 162.1 grammes of cocaine narcotic at the ground floor of Tower 1, Emerald Bay Phase 1, No. 8 Kwun Chiu Road, Tuen Mun.
According to the 2nd charge of manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, between the period of 16 July 2021 and 24 August 2021, he unlawfully manufactured cocaine at the flat of Flat J, 21st Floor, Tower 1, Emerald Bay Phase 1, No. 8 Kwun Chui Road, Tuen Mun.
In respect of the 3rd charge of trafficking in a dangerous drug, he unlawfully trafficked in 257.12 grammes of cocaine narcotic on 24 August 2021 at the same flat.
According to the Summary of Facts to which he agreed at the time when he pleaded guilty to those three charges, on the evening of 24 August 2021, a team of police officers mounted an anti-narcotics operation against the premises at Flat J on 21st Floor of Tower 1, Emerald Bay Phase 1 in Tuen Mun. Thereafter, I should refer that as “the flat”.
The defendant was the sole tenant of the flat since 16 July 2021, that is about more than a month ago. On that evening at about 9 pm, he was seen taking a lift to the ground floor of the building, and he was intercepted by the police at the ground floor lobby of the building.
A body search of him revealed a total of 10 resealable plastic bags of cocaine in his trouser pockets and cash of $1,380. The 10 resealable plastic bags of cocaine found in his trouser pockets, they are the subject matter of Charge 1, trafficking in a dangerous drug. He was arrested for the offence of trafficking in a dangerous drug and stated under caution that he trafficked in dangerous drugs because he owed other people money.
Later that evening, shortly after 9 pm, he was brought back to the flat by the police for a search. During the search, a large number of chemicals and paraphernalia were found by the police. Also a government chemist attended the flat for inspection. According to the inspection result of the government chemist, a total of 257 grammes of cocaine together with 0.12 gramme of cocaine were found in the flat. Those are the subject matter of the 3rd charge.
In addition, there was 1.794 kilogrammes of a solid containing sodium bicarbonate, 1,647.66 grammes of a solid containing phenacetin, which is a listed Part I poison. Also, according to the opinion of the government chemist, a number of solid being found in the flat were cocaine base, which could be the final product of the conversion process of cocaine hydrochloride to cocaine base.
In his expert opinion, some of the solid found in the flat contained sodium bicarbonate, which could be used as an alkaline chemical to convert the cocaine hydrochloride to cocaine base.
In respect of the paraphernalia found in the premises (they included electronic scales, an electric cooker, the air-conditioner and the metallic filters), on all those items they were found to contain cocaine and phenacetin. According to the expert opinion of the chemist, the electronic scales found in the flat were used to weigh the dangerous drugs and chemicals. The electric cooker was found to be used as a heating source for the conversion process. Some of the other paraphernalia found also contained cocaine and phenacetin. They could be used in the handling of the dangerous drugs. The air-conditioner filters and the metallic filter found at the scene were also found to contain cocaine and phenacetin, indicating that dangerous drugs have been handled at the scene. In addition, other items including metallic utensil, empty resealable plastic bags, scissors, sealing machine and trays were being found at the scene.
The defendant was cautioned for the offence of manufacturing dangerous drugs. He stated under caution that he manufactured the drugs in order to obtain money and to repay his debts.
In a subsequent video-recorded interview conducted by the police, he stated under caution that some of the items in the flat contained crack cocaine (which is the cocaine base) and he possessed those dangerous drugs for selling to others. He said he trafficked in the dangerous drugs because he was in need of money to repay his debts. He also said that he resided at the flat alone, and he manufactured the dangerous drugs cocaine at the flat in order to make money to repay his debts.
By his plea of guilty and the admission of the facts, he now admits and accepts that between 16 July and 24 August 2021, he manufactured cocaine at the flat. Also, at the material time, he possessed all the cocaine the subject matters of Charge 1 and Charge 3 for the purpose of unlawful trafficking.
In respect of the total street value of the dangerous drugs seized on 24 August 2021, it was estimated to be HK$793,195.
The defendant was 23 years old at the time of the arrest, and he is now 25 years old. He has a clear record and he has received education until Form 6. He is single.
According to defence counsel, Ms Lorinda Lau, in her mitigation she informed this court that the defendant used to run a decoration company with a partner, but because of COVID 19 the business failed, and he owed a large number of debt amounting to around $400,000. So he attempted to consume drugs to ease his pressure. Later he was exploited to traffic the drugs, in return he can consume drugs for free and some monetary rewards, which he had yet been paid. He was provided free accommodation and about $20,000 a month as a reward for committing the offences in this case.
Counsel submitted that he is single, and during the period of his detention for the present case, his mother passed away. He did not get a chance to pay any last respect to her.
According to the guidelines, for the total quantity of cocaine seized in respect of Charges 1 and 3, that is 419.22 grammes of cocaine narcotic, the starting point would be around 15½ years’ imprisonment.
Counsel submitted that in respect of the 2nd count of manufacturing, the operation was a rather simple and non-sophisticated one involving one electric cooker, electronic scales, metallic trays, one sealing machine and two metallic trays.
Counsel submitted that even though the charge period was from 16 July 2021 to 24 August 2021, indeed 24 August was the very first day that he learned and practiced the manufacture of the drug and started to wait for order from his boss. Counsel urged this court to consider that that was the only day he engaged in manufacturing activities. This is contrary to the Summary of Facts to which he admitted, and I state again, at paragraph 14:
“(He) now accepts and admits that between 16 July 2021 and 24 August 2021 (both days inclusive), D manufactured a dangerous drug, namely cocaine, at the Flat.”
So, according to his admission, the manufacturing activities had gone on for about a month or slightly over a month’s period.
Counsel urged this court to take into account his young age, his clear record, his early plea of guilty to all the offences, the fact that he lost a chance to pay last respect to his mother when being detained, that he committed the offences because of financial burden, only one kind of drug was involved, the street value was not a large sum, he is remorseful and his family background, so this court should impose a concurrent sentence in respect of the 2nd charge of the manufacturing offence and be as lenient as possible after taking into account the principle of totality.
I should point out at this stage that both trafficking and manufacturing dangerous drugs are very serious offences. According to the well-established principle, matters such as a clear record, relatively young age and family background, all those matters do not deserve any further discount for sentencing. In the circumstances of this defendant, I do not see from his family and personal background any matter other than his plea of guilty that can entitle him to a meaningful discount. In respect of the fact that he committed the offences because of financial difficulty, again, I disagree with counsel that it should be a matter that goes to mitigation.
In sentencing the defendant, I bear in mind the approach stated by the Court of Appeal for trafficking in dangerous drugs in the case of Herry Jane Yusuph [2021] 1 HKLRD 290 and the principle stated in the case of Lee Ming Ho [2024] 1 HKLRD 1186.
But before I come to the sentence for the trafficking charges, that is Charges 1 and 3, I must state one matter. In respect of the 2nd charge of manufacturing a dangerous drug, no doubt it is a much more serious offence than the trafficking of a dangerous drug. I bear in mind the principle stated by the Court of Appeal in respect of the sentencing of manufacturing dangerous drug in the case of Wong Ping Kay [2002] 3 HKLRD 161. In particular, in sentencing, the sentencing court should bear in mind or take into account 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, the role played by the defendant and the quantity of the paraphernalia found.
In respect of the present offence, for the charge of manufacturing, I accept counsel’s submission that the defendant did not operate on a very large or very sophisticated scale, and one single type of drug was involved. However, he had been engaged in the manufacturing activity for about one month according to the facts that he agreed, and that indeed the flat was being rented in particular for the purpose of manufacturing and storage of the dangerous drug after it was manufactured.
I also take into account the scale of the manufacturing process including the quantity of the paraphernalia found, the traces of Part I poison and cocaine being found on a number of those paraphernalia, and sodium bicarbonate being found at the premises.
Before I come to the sentence of the individual charges, I should state that it is more fair to take a global view of this matter before coming to the individual sentences. Bearing in mind that the manufacture of dangerous drug is a much more serious offence, when it is viewed in the light of the trafficking offences it should be seen as a very important aggravating feature.
In my view, after taking into account all the circumstances including the total quantity of the cocaine found on his person at the time when he was leaving the building, the quantity of cocaine found in the flat and the scale of the manufacturing operation, I think the overall starting point for all the three charges should be one of 20 years’ imprisonment.
From that global overall starting point, the only mitigating feature is his early plea of guilty which entitles him to a one-third discount. So the ultimate sentence after the one-third discount is one of 13 years and 4 months’ imprisonment. 13 years and 4 months.
I shall now come to the sentence for the individual charges. Given that I have come to a global view of the matter, I will not go through the individual steps as stipulated in the case of Yusuph step by step - each one of the six approaches.
Suffice to say that in respect of the 1st charge which involves the trafficking of 162.1 grammes of cocaine narcotic, I consider that the appropriate starting point, having taken into account his role as a courier, the appropriate starting point should be one of 11 years. From that he is given a one-third discount because of his early plea of guilty, and the sentence for the 1st charge is reduced to that of 7 years and 4 months’ imprisonment. So that is the sentence to be imposed for the 1st count, 7 years and 4 months. That is equivalent to 88 months’ imprisonment.
In respect of the 3rd count of trafficking which involves 257.12 grammes of cocaine narcotic, taking into account his role as a storekeeper, that he had been keeping the premises and looking after all the manufacturing paraphernalia, his overall role, and he was there waiting for instruction from his boss, I consider that the appropriate starting point after trial should be one of 13 years. Again he is entitled to a full one-third discount for his early plea of guilty. So the sentence to be imposed for the 3rd charge is one of 8 years and 8 months’ imprisonment. That is equivalent to 104 months.
In respect of these two counts, that is Charge 1 and Charge 3, I bear in mind the principle of totality. Looking at the whole quantity of drugs involved, I consider that it would be fair to order 3 years of the sentence in the 3rd charge to be consecutive to the sentence of the 1st charge. So the ultimate sentence for Charge 1 and Charge 3 altogether would be 10 years and 4 months’ imprisonment.
I shall now come back to Charge 2, the manufacturing count. As I said, I adopt a global view that for all the three counts, the overall starting point should be one of 20 years. 20 years is also the starting point I adopt for Charge 2 after considering the scale of the operation, his role in the matter, the period of manufacturing, the type of drug found, and also the quantity of the paraphernalia. So 20 years is the starting point for the 2nd count. After the full one-third discount for his plea of guilty, it is reduced to 13 years and 4 months’ imprisonment, which is equivalent to 160 months.
As I said, this global view has already taken into account the quantity of the drug seized on 24 August, the scale of the manufacturing operation, his role and his involvement. So I order that the sentence in the 2nd count to run concurrently to the sentences in Charges 1 and 3.
The overall sentence for all three charges would be one of 13 years and 4 months’ imprisonment. So that is the sentence imposed for all those three charges.