CRIMINAL CASE NO. 258 OF 2009
COURT: The two defendants, who I will refer to as “D1” and “D2”, pleaded guilty before me to a joint charge of manufacturing cocaine base - that is, “crack” cocaine - contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, being Count 1. A further joint charge of trafficking in 206.26 grammes of cocaine hydrochloride and 49.04 grammes of cocaine, contrary to section 4(1)(a) and (3) of the same Ordinance, being Count 2, to which each pleaded not guilty, was ordered to remain on the court file not to be proceeded with without the leave of this court or the Court of Appeal.
The facts of the case were that a team of police officers in possession of a search warrant went to premises in Sha Tin. They saw the 1st defendant go into the flat the subject of the warrant carrying a plastic bag containing a large quantity of baking soda, which is an ingredient used in the manufacture of cocaine base from cocaine hydrochloride.
The 1st defendant was intercepted as he entered the flat, and police found the 2nd defendant sitting by the main door. The flat was searched, and various items and substances used in the manufacture of cocaine base were found in the premises. The substances and equipment were in optimal condition capable of making about 180 grammes of cocaine base, though the real amount manufactured was likely to have been substantially less.
Both defendants, after their arrest, admitted they were manufacturing “crack” cocaine.
In my view, having seen the photographs of the premises, including photographs of the equipment used, this manufacturing operation could be described as being of a small or domestic scale and complexity.
There is no distinguishing between the roles of the two defendants, and, in my view, their culpability is equal. Nor do I distinguish between cocaine and cocaine hydrochloride so far as sentence is concerned. See R v Chang Chen Liu Sa in conjunction with The Attorney-General v Rojas.
Of course, this is a manufacturing offence, and not one of trafficking in those drugs, but I take into account that the amount of drug found in the premises is one factor to consider. I bear in mind also that manufacturing dangerous drugs is a more serious offence than trafficking in a like amount of the narcotic. See R v Wong Chun Ping and R v Cheung Wai Kwong.
In respect of each defendant, I take a starting point of sentence of 14 years’ imprisonment.
The only mitigation of any substance advanced by either defendant is his plea of guilty. Mr So, on behalf of D1, sought to rely also upon D1’s medical problem, which concerns an infection of his urinary tract stemming from long-term ketamine abuse, but in my view, without evidence to the contrary, that matter would appear to be one treatable by the staff of the Correctional Services Department, and so is not of substantive mitigation.
Mr Leung, on behalf of D2, also relies upon the tragic family history of the 2nd defendant. His father was apparently executed in China for drug-related offences and his mother was sentenced to 30 years’ imprisonment in Hong Kong for similar offences when the 2nd defendant was a teenager. Nevertheless, sad though those matters are, I do not regard those circumstances as amounting to substantive mitigation.
Accordingly, the starting point of sentence for each defendant is reduced by his plea to a sentence of 9 years 4 months’ imprisonment.