COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug and one charge of manufacturing a dangerous drug, and was committed before me for sentence. In sentencing, I have considered the whole of the circumstances, including the nature and facts of the case, the type and quantity of drug involved, personal background of the defendant, and mitigation put forward on his behalf. I have also had regard to the sentencing approach as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The facts of the case may be summarised as follows.
On 16 September 2021, police officers intercepted the defendant at the ground floor lobby of a building. Inside the tissue paper which the defendant was holding, cocaine was found wrapped in a resealable plastic bag. The quantity was 23.9 grammes of a solid containing 20.5 grammes of cocaine. The defendant was arrested. Under caution, he said as he wanted to earn money, he brought the drug for sale.
Officers escorted the defendant back to the flat from which he had just come out. With the passcode provided by the defendant, entry was gained. Officers entered Room A in which the defendant said he was living, also with the passcode provided by the defendant. Upon search of the room, more dangerous drug was found. There were 63.18 grammes of a solid containing 53.58 grammes of cocaine. Also found were paraphernalia like electronic scales containing traces of cocaine, sealing machine, resealable plastic bags, scissors, pot, spoons, sieve, and induction stove.
Under caution, the defendant said he wanted to earn more money, so he helped others to cook dangerous drug and that the drugs were cooked by him for sale to others to earn money. During subsequent video-recorded interviews, the defendant made statements under caution which included the followings:
(i) The dangerous drug was 24 grammes of cocaine and he had taken it out from the flat after he weighed it;
(ii) For each 24 grammes of cocaine, he would receive $20,000 and his reward would be $5,000;
(iii) The room in which dangerous drug was found was rented by him;
(iv) He was not a drug addict;
(v) By the expression “cooking dangerous drug”, he meant manufacturing crack cocaine;
(vi) An account of how he manufactured drug;
(vii) All the drugs found in Room A were cocaine manufactured by him for sale to his customers;
(viii) The $50,000 cash found in Room A was his profit from manufacturing and selling cocaine, whereas other money found was his salary or money from family members; and
(ix) He had performed acts to manufacture cocaine prior to his arrest.
I was told that the defendant is now 27 years old. He attained education up to Form 3 and had worked as an air-conditioning mechanic. He is single but was living with his girlfriend. He has criminal record. In 2019, for a charge of trafficking in dangerous drug and a charge of possession of dangerous drug, he was sentenced to a total of 16 months’ imprisonment.
In mitigation, learned counsel for the defence, Mr Adonis Cheung, stressed that the defendant pleaded guilty at the earliest opportunity. He informed the court that the defendant committed the offences for financial gains. He asked the court to take into account that the defendant is still young and be as lenient as possible. He also submitted that a concurrent sentence for the two types of offence is appropriate.
The defence produced a letter written by the defendant in which he expressed remorse. The defendant said he committed the offences as he was the main breadwinner of the family and his income was affected by the pandemic. He was in financial difficulties that he was lured into committing the offences. He said he will equip himself when serving the sentences and is determined to turn a new leaf.
The case concerns cocaine and the tariff set out in R v Lau Tak Ming [1990] 2 HKLRD 370 is applicable to the trafficking charges and is also of relevance to the sentence of the manufacturing charge. Charge 1 concerns trafficking in 20.5 grammes of cocaine. Applying the tariff, in my view, 5 years and 9 months is the appropriate starting point. Charge 2 concerns trafficking in 53.58 grammes of cocaine. Applying the tariff, in my view, 8 years is the appropriate starting point.
As far as the offence of manufacturing dangerous drug is concerned, it is in most circumstances much more serious than the offence of trafficking in dangerous drug. In R v Wong Chun Ping, CACC 493/1983, the Court of Appeal remarked that only in exceptional cases, for instances if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than 10 years’ imprisonment on a conviction for manufacturing dangerous drugs.
In sentencing, the quantity of drug 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 and productivity of the equipment, the length of time the manufacturing operation had been going on, whether the manufacturing station had been producing or was likely to produce a substantial quantity of drugs and the role of the defendant.
In assessing the scale of the operation, the circumstances in which the dangerous drug was found, the quantity of the dangerous drug, and the paraphernalia found, as well as other relevant evidence, such as confession of the defendant, should all be taken into account. In HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, the Court of Appeal remarked that: “if the drug manufacturing act is a continuous act spanning a period of time, and the drug manufacturing workshop is of considerable scale, and productivity involving a large amount of chemicals used for drug manufacturing as well as a not insignificant quantity of high standard drug manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial.”
Mr Cheung submitted that, in the light of said quantity of the drug and the equipment seized was not substantial, evidence does not show that this was a large scale manufacturing case. I note that the actual quantity of the drug seized was in the region of 70 grammes of cocaine. This is, however, a manufacturing case which in general is more serious in nature than trafficking. Besides, in the present case, taking the whole circumstances as revealed by evidence into account, it defies common sense to think that the manufacturing in this case confined to the dangerous drug actually seized.
It is my assessment that the operation was not small, but not as big as one which can be described as a medium-sized operation. In my judgment, the defendant played a major role in this manufacturing station. What he had done involved manufacturing crack cocaine. Taking into account the whole of the relevant circumstances, bearing in mind the date of offence as particularised in the charge, in my judgment, only a starting point of 11 years and 3 months is sufficient to reflect the culpability of the defendant in this manufacturing operation.
This was not the first time the defendant was convicted of a drug-related offence. He committed the present offences not long after he had been discharged after the serving of the sentence imposed on him for offences including trafficking in dangerous drug. In my judgment, the starting point for each charge should be enhanced by 3 months for this reason. Despite the previous conviction was for the offence of trafficking only, in my judgment, it is an aggravating factor to be taken into account when the person committed further offence relating to either trafficking or manufacturing a dangerous drug.
For the matters aforesaid, I adopt the following notional sentences after trial. Charge 1, 6 years. Charge 2, 8 years and 3 months. Charge 3, 11½ years.
The defendant pleaded guilty before a magistrate. For this, he is entitled to a one-third discount for each charge. Having considered the whole of the circumstances, including what Mr Cheung ably said on behalf of the defendant, in my judgment, one-third is the extent of discount the defendant is entitled to for each charge.
Charges 1 and 2 are for the offence of trafficking in a dangerous drug. In the circumstances of this case, I am of the view that it is appropriate to consider the aggregate sentence having regard to the total quantity of the drug seized, which was 74.08 grammes of cocaine. This attracts an overall starting point of 8 years and 7 months.
Taking into account the enhancement of 3 months, the aggregate notional sentence after trial for the two charges should be 8 years and 10 months. Giving one-third discount for the guilty pleas, the aggregate sentence for these two charges is 5 years and 10 months.
There is a sentence to be imposed on the manufacturing charge. Having regard to HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, taking into account the whole circumstances of the case and the basis of my consideration of the sentences relating to the trafficking charges, in my judgment, the sentences on the two categories of offence should not be concurrent.
In the present case, the basis which I adopt for consideration of the sentences for the trafficking charges is that the defendant was a mere courier. The gravamen to which the offence of trafficking and manufacturing respectively addresses is not the same. The role and conduct of an offender of the two offences are usually not the same. Besides, a courier does not necessarily involve in the manufacturing and vice versa, a manufacturer may not involve in delivery of the drug.
In the circumstances of the present case, I am of the view that the defendant incurred a distinct additional culpability in committing the two types of offence. Whilst I am of the view that the sentences on the two types of offence should not be concurrent, I have to take into account totality. I also take into account that all the drugs which the defendant trafficked in was from the same manufacturing operation and a product of himself.
In all the circumstances, I consider it fair and appropriate to order 7 months of the aggregate sentence for the trafficking charges to run consecutively to the sentence for the manufacturing charge. It means that the defendant is to serve a total sentence of 8 years and 3 months. To give effect to this and for convenience sake, I will order the sentence for Charges 1 and 2 to run concurrently, and 2 years and 9 months of the sentence for Charge 3 to run consecutively to the aggregate sentence for Charges 1 and 2.
Defendant, for the reasons I have said, I impose the following sentences on you.
Charge 1, an immediate imprisonment term of 4 years. Charge 2, an immediate imprisonment of 5½ years. Charge 3, an immediate imprisonment term of 7 years and 8 months.
I order the sentence for Charges 1 and 2 to run concurrently, and 2 years and 9 months of the sentence for Charge 3 to run consecutively to the aggregate sentence for Charge 1 and 2.
As a result, you are to serve a total sentence of 8 years and 3 months for the three charges.