COURT: Both defendants pleaded guilty to and were convicted of one count of manufacturing a dangerous drug. Both admitted that they together, on 24 June 2020 at House 308, Eden Villa, Castle Peak Road, New Territories, unlawfully manufactured a dangerous drug, namely, ketamine.
Summary of Facts
A short summary of the facts relating to this charge will suffice. Both defendants admitted they were arrested after a team of police officers broke into House 308 of Eden Villa at about 12.30 pm on 24 June 2020. They were found in the living room area and the kitchen of the premises were equipped with manufacturing equipment such as tools, chemicals, and ketamine for the purposes of manufacturing or solidifying ketamine powder.
There were many plastic bags, pots, trays, bowls, cups, and beakers containing ketamine or fluorodeschloroketamine. There were 21 jerry cans containing a liquid containing methanol or ethanol, which upon evaporation was found to contain ketamine. It was agreed that the aggregate amount of dangerous drugs found at the premises was a total of 35,494.46 grammes of a solid containing 29,337.43 of ketamine and 341.11 grammes of fluorodeschloroketamine.
The 1st defendant admitted he was offered a large amount of money, $300,000, to manufacture drugs, essentially turning ketamine powder into ketamine solids. He offered his friend, the 2nd defendant, $150,000 to help him complete the task. He was given keys to the premises and when he entered, he found all the paraphernalia required to manufacture ketamine solids already inside. The day before their arrest, they had collected a nylon bag from a bush nearby as directed which contained about 30 kilogrammes of ketamine.
They were to pour the ketamine in powdered form into a cooking pot with methanol and heat up the mixture. Once the mixture had melted, they were then to cool down the mixture which would turn into ketamine solids. Between arriving at the premises and being arrested, they had processed about 15 kilogrammes. Neither defendant had met the man who set up the operation and offered to pay the large reward to the 1st defendant.
Under caution, both defendants made full admissions and admitted they were at the premises to produce solid ketamine from powdered ketamine for a reward. Both agreed that in June 2020, the estimated street value of the ketamine seized was about HK$15,448,685.
1st Defendant’s Mitigation
I will say from the outset that the best mitigation for both defendants is their pleas at the earliest opportunity. I have had full mitigation from both counsel and both endeavour to mitigate as best as they can on behalf of each defendant. Both counsel have said all that they can say on behalf of each defendant.
The 1st defendant is now 32 years old, was born in Hong Kong and was working part-time at the time of his arrest. He is married with three young daughters. He is not a man with a clear record. He has six convictions from three court appearances that relate mainly to triad society offences. This is his first drug-related conviction.
Ms Wong has stressed his family background, in particular the fact his youngest daughter was only 3 months old when he was arrested. He was in financial difficulty at the time as his income working as a part-time delivery worker was insufficient to support his whole family. He was tempted by the huge reward offered and is now very remorseful. He is sad facing the prospect of being an absent father throughout his children’s formative years and sorry he has burdened his wife of being, what in reality is, a single parent.
I have read a letter from a worker of the Christian Prison Pastoral Association who has visited and provided counselling service to the 1st defendant. This pastor voluntarily wrote a mitigation letter to explain the 1st defendant’s remorse is genuine and he is determined to contribute to society after he has served his sentence. Today, I have a letter from his mother asking for leniency.
2nd Defendant’s Mitigation
Mr Lee has also highlighted the 2nd defendant’s background and family situation. She was married and is now divorced. She does have a young son who is now aged 8 who resides with her ex-boyfriend. Her parents are elderly. Prior to her arrest, she lived with her younger sister but was unemployed at the time. In fact, at the time of her arrest, she had been released from drug addiction treatment centre some five weeks earlier and was desperate to be financially independent. She was unable to find a job. I won’t hold it against her and treat that recent release as an aggravating factor.
The 1st defendant is a friend and he offered her the opportunity to make some money with him, this is the reason she committed this offence. Like the 1st defendant, it was purely financial. She too is now remorseful and regrets her greed. The 2nd defendant is now 46 years old and at the time of her arrest, she had six previous convictions obtained over four court appearances, with four relating to possession of dangerous drugs.
Sentencing
Manufacturing a dangerous drug is much more serious than trafficking the same. A person involved in manufacturing does deserve a heavier sentence.
In this case, a specific amount of ketamine was found. I will say here for the purposes of the quantity of drugs, I will add the 341.11 grammes of fluorodeschloroketamine to the 29,337.43 grammes of ketamine found. Therefore the quantity involved here is 29,678.54 grammes.
I have been more than ably assisted by counsel’s written mitigation by way of authorities relevant to sentencing those who manufacture dangerous drugs. In particular, I have been referred to HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408 where the Court of Appeal has laid down some guidelines.
Clearly, the quantity of drugs seized at a drug manufacturing premises must be one of the relevant factors affecting sentencing as the quantity of drugs seized shows to some extent, the size and productivity of the drug manufacturing workshop and it also reflects the seriousness of the offence.
Other factors identified by the Court of Appeal include, if known, the length of time the drug manufacturing workshop has existed and operated. This would include its scale and productivity, the quantity and standard of drug manufacturing paraphernalia. Each defendant’s individual role they played in the manufacturing process are also important factors. Clearly, there is no differentiating between the 1st and 2nd defendant’s roles in this case.
Since we have a quantifiable amount of ketamine in this case, the guidelines for trafficking ketamine is most relevant and I have been referred to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 as well as HKSAR v Sin Chung Kin and Another [2013] 1 HKLRD 627. In that case, the Court of Appeal held that the appropriate starting points for those that traffic in 2 to 3 kilogrammes of ketamine should be no less than 18 to 20 years’ imprisonment. If more than 3 kilogrammes of ketamine is involved, the starting point will exceed 20 years. Although the increase in sentence is not or should not be proportional to the increase in the quantity of drugs.
I have been urged by both counsel to consider the scale of the operation was not large or extensive. The manufacturing process was not sophisticated and that they had only been in the premises which were not rented by them or set up by them for less than a day. As I have said, I do not differentiate their roles as far as criminality is concerned. Clearly, they are not the masterminds. I accept and agree with those submissions.
I have also taken into account the fact that the ketamine powder found was already in a form that could be consumed, but the plan was to process that ketamine in such a manner to make it a solid as opposed to a powder for the purposes of resale. I accept that neither were masterminds but tempted by a reward to manufacture the drugs they were given in premises set up for that purpose by others.
Here, trafficking in this much ketamine, 29.68 kilogrammes, would mathematically attract at least a starting point of 22 years’ imprisonment, depending on other factors in every individual case. For both defendants here, I would have considered a starting point of 22 years’ imprisonment appropriate if they were only charged with trafficking this amount of dangerous drugs.
As I have said above, those that manufacture dangerous drugs will receive a heavier sentence. I have considered mitigation put forward, the facts of the case, the scale of the operation and the quantity of drugs found as well as the fact that the manufacturing process was an alteration to ketamine powder provided.
I find it appropriate to adopt a starting point of 24 years’ imprisonment for this count. Both defendants have pleaded guilty at the earliest opportunity and are entitled to a full one-third discount. This means a discount of 8 years.
Accordingly, after applying that discount, I sentence both the 1st and 2nd defendant to 16 years’ imprisonment.