COURT: The defendant pleaded guilty in the Magistrates’ Court on 30 November 2023 to two charges. He pleaded guilty to one count of possession of a dangerous drug, namely, 0.79 grammes of a solid containing 0.62 grammes of cocaine, Charge 1. He also pleaded guilty to one count of manufacturing a dangerous drug, he unlawfully manufactured cocaine, Charge 2. He was committed for sentence and today confirms his pleas and agreement to the Summary of Facts.
Summary of Facts
On 30 January 2021, the defendant was arrested as a result of an anti-narcotics operation conducted outside Block B, Lot 885, DD46, Ma Mei Ha, Sha Tau Kok Road, New Territories. He was intercepted by the police coming out of Block B. He was searched, and the cocaine of Charge 1 was found in his pocket. He was arrested and admitted under caution that he possessed that crack cocaine for his own consumption.
He was led upstairs to the 2nd floor, which was his home, in order for a home search to be conducted. There the police found two plastic bags containing 42.5 grammes of a solid containing 32.8 grammes of crack cocaine. They also found a plastic box containing 980 grammes of a solid in the form of a block containing 939 grammes of cocaine hydrochloride.
Crack cocaine or cocaine base is normally converted from cocaine hydrochloride by heating it with sodium bicarbonate or baking soda to make it suitable for smoking, more potent and more profitable for drug traffickers.
The defendant was cooking the cocaine hydrochloride to make crack cocaine with utensils found in his home, including a cooking pot, a metal sieve, chopsticks, electronic scales, a sealing machine, spoons, and lastly boxes containing 1,679 kilogrammes of sodium bicarbonate. The process is relatively simple and only requires water, heat and sodium bicarbonate.
He was arrested for the offence of manufacturing, and under caution he admitted that he was acting upon instructions to cook the cocaine hydrochloride to make crack cocaine to sell to others in order to repay a debt he owed. The defendant has signed a tenancy for the premises on 31 October 2020 for a term of two years from 11 November 2020. He had been in the premises 2½ months.
Mitigation
The defendant is now 46 years old and was born in the mainland. He was educated up to secondary level in Hong Kong. At the time of his arrest, he was unemployed. He is a divorced man.
He is not a man with a clear record. He has five previous convictions but none relating to dangerous drugs. His best mitigation is his plea of guilty and Ms So has said all she can say on his behalf. I have seen his medical report, a letter from the defendant, from his family and a letter relating to his charity work. He got into debt, football gambling, and to repay debts he committed these offences.
Sentencing
Charge 1 is an offence of possessing dangerous drugs, specifically 0.79 grammes of a solid containing 0.62 grammes of cocaine. I have taken into account HKSAR v Mok Cho Tik [2001] 1 HKC 261 and the Court of Appeal’s view that the starting point for mere possession of a quantity of dangerous drugs, which a bona fide user would normally have in his possession, should be in the range of 12 to 18 months.
There is also the latent risk factor to consider, that is the latent risk to society when drugs are at large. In this case, the defendant is already associated with manufacturing crack cocaine. A latent risk factor can justify an enhancement to a starting point. For this charge of possession of dangerous drugs, I will take a starting point of 18 months’ imprisonment. After the full one-third discount is applied, the defendant is sentenced to 1 year’s imprisonment for the 1st charge.
Charge 2
I turn to the 2nd charge, manufacturing crack cocaine. Those who manufacture dangerous drugs play a more significant role than a courier or storekeeper. It is a more serious offence than trafficking per se. After all, it can reasonably be inferred that more dangerous drugs that more dangerous drugs had been or were to be manufactured, packed, and delivered than those seized at the time of the house search.
It is a well-known principle that sentences for manufacturing offences are often far heavier than those of trafficking offences. I have referred to R v Cheung Wai Kwong and Another [1997] HKLRD 344. In manufacturing cases, the quantity of drugs seized is not the sole consideration in determining a starting point, although it does give an idea of the scale of the operation. Other factors include the capacity of the equipment found, the output of drugs at the manufacturing premises, as well as the role played by the defendant. I have also referred to HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, where the Court of Appeal has laid some guidelines for, in particular, the scale of the operation concerned.
I have been urged to consider this operation here unsophisticated and of a small scale. In addition, the premises were rented in the defendant’s name for a period of two years, just over two months prior to his arrest. Therefore this operation at most was up and running for that amount of time.
Since we have a quantifiable amount of cocaine in this case, the guidelines for trafficking cocaine is relevant. The tariff for the drug cocaine, which applies equally to trafficking in heroin, is set out in the authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370, and where between 600 and 1,200 grammes of cocaine is trafficked, the starting point after trial should be between 20 to 23 years’ imprisonment. Here we have 971.8 grammes of cocaine. Therefore mathematically speaking, trafficking that amount of cocaine would attract a starting point of 21 years and 10 months’ imprisonment.
I take into account premises had been rented and the manufacturing process would have been continuous if not interrupted. There was a lot of cocaine in the premises to be manufactured by the defendant. This was not a case of renting a hotel room for one night to cook crack cocaine. However, I accept it was not a particularly large scale operation nor is there evidence that the defendant was the mastermind or sole operator.
Considering those relevant factors, the amount of cocaine found and the starting point if that amount of cocaine had been possessed for the purposes of trafficking, I will take a starting point of 23 years and 10 months’ imprisonment.
Defendant pleaded guilty at the earliest opportunity and is entitled to a full one-third discount. After that discount is applied, for manufacturing dangerous drugs, the defendant is sentenced to 15 years and 10 months’ imprisonment.
I have considered the facts of this case and the totality principle. I will order that the sentences for Charges 1 and 2 to be served concurrently.
I repeat for Charge 1, the defendant is sentenced to 1 year’s imprisonment.
For Charge 2 the defendant is sentenced to 15 years and 10 months’ imprisonment.
With an order that the sentences be served concurrently, the defendant is sentenced to a total of 15 years and 10 months’ imprisonment.