HKSAR v. CHENG KWOK CHEUNG AND OTHERS

HCCC 351/2017

[2018] HKCFI 595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 351 OF 2017

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

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COURT:

The defendants pleaded guilty before a magistrate to one charge of manufacture of a dangerous drug and were committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of the defendants and mitigation put forward on their behalf.

The facts which the defendants admitted may be summarised as follows. Police officers entered a residential flat when D2 was coming out. D1 and D3 were inside the living room sitting on a sofa. A substantial quantity of cocaine was found on a table inside the sitting room. On the table were also a small quantity of ketamine and various types of substance including sodium bicarbonate which is baking soda commonly used to produce crack cocaine.

There were also paraphernalia which could have been involved in making cocaine such as beakers with traces of cocaine, bottles of which one contained traces of cocaine and some others containing traces of phenacetin, a Part I poison, an electronic scale, a pair of scissors, two cutters, one thermometer, a metal sieve, a metal spoon, a glass container each containing traces of cocaine, a glass rod, an electric stove, a heat seal machine, 115 resealable plastic bags, a pair of gloves, a ruler, a syringe, a roll of plastic bags and three clamps. On a chair in the living room, the following items were found: some plastic wrappings containing traces of cocaine, a hot belt machine and nine plastic gloves. Inside the bedroom, a packing machine, a sealing machine, a vacuum packing machine and some transparent plastic bags were found.

Upon arrest, D1, who was the tenant of the flat, said under caution that he lent the flat to D2 to make dangerous drugs and he was responsible for buying soda powder and plastic bags. D2 admitted under caution manufacturing of the dangerous drug on a table with the assistance of others. D3 admitted under caution to have acted as a look-out and thrown rubbish for D2.

I was told that D1 is 37 years of age. He was educated up to Form 3 and had worked as a transportation worker. He was unemployed at the time of the offence. He is married and has a 7 years old son. He had been living with his wife and his son and they are now financially dependent on the defendant's mother who has inherited an estate from the deceased father of the defendant. D1 has on five previous occasions been convicted including having been convicted for three counts of trafficking in 2001 for which he was sentenced to a total of 8 years' imprisonment and for one charge of trafficking in 2007 for which a sentence of 6 months' imprisonment was imposed.

D2 is 38 years of age. He received education up to Form 1 and had run a garage which ceased operation in 2014. Thereafter, he engaged in odd jobs repairing cars. He is divorced and has a 9 years old son. He has a bad criminal record. On 11 previous occasions, he has been convicted, but the last one was in 2008. Apart from a conviction for possession of dangerous drugs back in 1994, he has no other record of committing drug-related offences. The offences he committed most often were theft-related offences and driving-related offences.

D3 is 25 years of age. He received education up to Form 1 and had worked as a transportation worker and a chef. He is single and as the single child of the family was living with his family in a public housing flat. He has been convicted twice for trafficking in dangerous drugs and twice for possession of dangerous drugs.

In mitigation, all counsel stressed that the defendants are remorseful and all of them had pleaded guilty at the earliest opportunity.

Learned counsel for D1, Mr Beel, informed the court that D1 kept the flat to store goods which he was to sell on the internet. When D2 asked him to use the flat for the present purpose and offered him ‘Ice’ to satisfy his drug need, he succumbed to temptation and agreed. Mr Beel also urged the court to accept by reference to available evidence which does not indicate how much quantity of cocaine could have been produced, that the operation was at most of a small to medium scale.

Learned counsel for D2, Mr Iu, informed the court that D2 is a filial son. He stressed that D2 has been frank to the police and is still ready to accept full responsibility showing his real remorse. D2 wrote a letter expressing his remorse and indicated his regret towards the other two defendants for having made them involved. Mr Iu asked the court to take into account that D2 has managed to keep out of trouble for 10 years since his last conviction which was for an offence of attempted theft in 2008.

Learned counsel for D3, Ms Lai, informed the court that D3 had started work since the age of 15. He has a very stable girlfriend who is still living with his parents. She told the court that the defendant had been consuming cocaine since the age of 16 and he committed the offence to feed his own consumption. She stressed that D3 had only played a minor role as a look-out and to throw rubbish and asked the court to impose a lower sentence. She said it was the first time D3 came to this operation and offered his assistance and he had only stayed in the flat for a short time before arrival of the police. The girlfriend of D3 wrote a letter pleading for leniency and said she would continue to support him.

Trafficking in dangerous drugs is an offence of serious nature. Manufacturing dangerous drugs is in most circumstances much more serious than trafficking in dangerous drugs. Despite most manufacturing cases take the form of refining process, trafficking activities depend on this refining process done between the grower of the drug and the consumer.

In sentencing, the quantity of drugs found is relevant to sentence, but this is not the only factor to be taken into consideration. The court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or was likely to produce a substantial quantity of drugs and the role of the defendants. In assessing the scale of the operation, the circumstances in which the dangerous drug was found, the quantity of the dangerous drug found and the paraphernalia found as well as other relevant evidence such as confession of the defendant should all be taken into account.

In the present case, evidence shows that three persons were involved, though it may have been the case that it was only D2 who had played the most direct role in manufacturing. As regards to capacity of the operation, the paraphernalia found and the drugs seized are useful indications. The narcotic content of the dangerous drugs found inside the flat was in the region of 200 grammes of cocaine. Taking into account the circumstances of the police entry into the flat, there was no indication that the defendant had discarded some of the dangerous drugs before those seized were found.

If it was a case of trafficking, applying the tariff in R v Lau Tak Ming [1990] 2 HKLR 370, just taking the quantity of a drug involved into account, a starting point of around 12 years should be considered. This is, however, a manufacturing case which is more serious in nature. In my assessment, the operation was not small and may be regarded as being at the lower end of a medium size operation. In my consideration, I have had regards to R v Cheung Wai Kwong [1997] HKLRD 344 and HKSAR v Wong Ping Kay [2002] 3 HKLRD 161.

It also defies common sense to think that this place would only be used for the purpose of manufacturing a quantity of dangerous drugs as seized.

In consideration of the sentence, I have had regard to all the cases referred to the court by counsel. D2 admitted to be the person who played the direct role of manufacturing. In my judgment, only a starting point of 18 years is sufficient to reflect his culpability. I have considered whether the starting point should be enhanced in the light of the previous trafficking record of D2.

Sorry, in this regard, did I mix up something? I think it should be D1 who has a previous record. I don't think it matters because I am not going to enhance the starting point anyway.

As regards to D1, without his letting the premises for this purpose, the manufacturing could not be put into operation. In my judgment, a starting point of 16 and a half years is appropriate. I have considered whether the starting point should be enhanced in the light of the previous trafficking record of D1. I am persuaded that it is not necessary as the conviction of the more serious trafficking case was in 2001, 17 years ago, and the last such conviction was for a much less serious case and it was in 2007, more than 10 years ago.

The culpability of D3 as shown by evidence is lesser. That said, he participated in a criminal operation which he must be aware was very serious in nature. Being a look-out is not an unimportant role for the operation. Besides, the court cannot ignore his previous record in trafficking for which I am of the view that an enhancement of about half a year is called for. I adopt a starting point of 15 years for D3.

The defendants pleaded guilty and for this each defendant is entitled to a one third discount for the charge. In all the circumstances having regard to submissions of learned defence counsel, I am of the view that this is the extent of discount each defendant is entitled to.

For the reasons I have said, D1, I sentence you to an imprisonment term of 11 years.

D2, I sentence you to an imprisonment term of 12 years.

D3, I sentence you to an imprisonment term of 10 years.