COURT: The Defendant pleaded guilty to one charge of conspiracy to manufacture a dangerous drug and a second charge of possession of a dangerous drug. He admitted the Summary of Facts. He was committed to the Court of First Instance for sentence on 5 September 2022. He today confirms his plea and admission of the facts. He was the second defendant, the second of three and the only one to plead guilty.
Summary of Facts
On 30 November 2020, a fire broke out in a metal hut in a village in Tin Shui Wai, New Territories. After the fire was put out, it became clear that the premises had been used for manufacturing dangerous drugs. There was evidence of cooking paraphernalia found in the burnt out premises as well as 20 packets of brown coloured powder found to contain a total of 20.42 kilogrammes of a solid containing a total of 1.5114 kilogrammes of cocaine. The police also found 12 packets of purple coloured powder which did not contain any substances controlled under the Dangerous Drugs Ordinance.
There was a set of airway bills with the purple coloured powder. The police traced the documents and the purple coloured powder back to the consignee that was this defendant. On 16 October 2020, he was taken to the Cathay Pacific Cargo Terminal by the 3rd defendant in this case to collect boxes of purple coloured powder.
This defendant was arrested at home on 10 December 2020, some 10 days after the fire. His home was searched, and in his bedroom, the police found a glass pot, plastic bottle, plastic bag containing traces of a solid containing methamphetamine, as well as 3 plastic bags containing a total of 0.06 grammes of a crystalline solid containing methamphetamine. These are the particulars of the possession charge.
This defendant admitted under caution that he had possession of ‘Ice’ at home for his own consumption. He fully admitted under caution that he had been recruited by the third defendant for a small amount of money to collect raw materials for manufacturing cocaine imported from overseas. He was the consignee on the documents and responsible for collecting the cargo. He was accompanied to the airport by the 3rd defendant, a female, and a GoGoVan driver. He used his Hong Kong identity card to collect the necessary documents to collect the raw materials.
Customs and Excise officers examined the content and the goods were released to him. Whilst he did the paperwork and witnessed the examination by Customs and Excise officers, everybody else stayed in the vehicle some distance away. The goods were then taken by the GoGoVan to a village where they were unloaded and this defendant was then told he could leave. He had no idea where the goods were ultimately to be delivered, how they were to be used to manufacture dangerous drugs and what quantity would be produced.
During the course of the trial for the other two defendants, I heard evidence that supported this defendant’s mitigation that he only knew and his role was confined to collecting the raw materials. He was told he would be collecting raw materials for dangerous drugs but that the substances were not illegal and would be released by Customs and Excise after examination.
Mitigation
The defendant is now 33 years old, single, and educated up to Form 3 level. According to his family, he had some learning difficulties from primary school and was not a good student. His parents divorced when the defendant was still at school and he grew up feeling his father had abandoned him, his mother, as well as his sibling. His mother single-handedly raised them after the divorce. These tumultuous events led to him hanging with dubious peers, a wrong crowd. After leaving school, he fell in with triads which led to trouble with the law and numerous convictions from 2008.
He has been convicted of assault, theft, criminal intimidation, as well as several breaches of probation orders imposed. His last conviction was in 2013 when he was convicted of fraud and sentenced to a drug addiction treatment centre order. After he was discharged from that last treatment centre order, he did manage to stay gainfully employed and out of trouble.
However, during the COVID pandemic he did not have much work and his financial situation became problematic. He committed this offence and agreed to collect the raw material because he was in need of money and was manipulated with the promise that he was not collecting anything illegal in itself.
I have read a letter from the defendant, his elder brother as well as his mother. They carry little weight in light of the seriousness of these offences but I have taken the contents into account. Prior to today, I have also considered a psychological and psychiatric report after hearing from Ms Yip, defence counsel, that the defendant appeared to be unstable whilst in remand awaiting sentence.
I have read those reports and the psychologist is of the view that he has because of his past substance abuse experienced at some time some symptoms and cognitive impairments. The psychologist was of the view that the defendant did not consider himself suffering from many psychopathology at present, but the psychologist was of the view he may experience psychotic symptoms and cognitive impairment going forward because of his past abuse.
The psychiatrist interviewed the defendant and had no diagnosis of any present or formal psychiatric issue. He understood the charge and the facts as well as his position in these legal proceedings.
Sentencing
Charge 2 is an offence of possession of dangerous drugs, specifically 0.06 grammes of a crystalline solid containing methamphetamine hydrochloride. I have taken into account HKSAR v Mok Cho Tik 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’ imprisonment. This defendant may have no previous similar convictions but he has a documented drug problem with two previous drug addiction treatment centre orders imposed. I will take a starting point of 18 months’ imprisonment for Charge 2. After the full one-third discount is applied for his plea at the earliest opportunity, the defendant is sentenced to 1 years’ imprisonment for Charge 2.
I turn to the 1st charge, a conspiracy to manufacture dangerous drugs. Those who manufacture dangerous drugs should know it is a more serious offence than trafficking per se. After all, it can reasonably be inferred that more dangerous drugs had been or were to be in the future manufactured, packed, and delivered than those seized at the time, in this case the time of the fire.
The principle is that sentences for manufacturing offences are heavier than those for trafficking offences. The authorities I have been referred to by the prosecution include Wong Chun Ping and Others, R v Cheung Wai Kwong and Another, as well as HKSAR v Ip Yuet Ho.
Factors to be considered, the factors to be taken into consideration relevant for the purposes of sentencing includes the quantity of dangerous drugs. But this is only one factor to be taken into account. Others include the scale of the operation, the capacity, or nature of the equipment, whether the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs. How long it had been up and running as well as the role of the defendant in the conspiracy.
For the offence of conspiracy to manufacture a dangerous drug, the Court of Appeal has said in the case of HKSAR v Tsang Ka Wing with reference to the case of Chan Kam Loi the following:
“Where a conspiracy to traffic in an unspecified quantity of dangerous drugs is concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts in the case. Those facts, and the inferences and assumptions from which they arrive will vary from case to case. We would add that unless the facts which give rise to the inferences and assumptions are clear cut, they will inevitably lean in favour of the defence.”
In the burnt-out warehouse, the amount of cocaine found and vast amount of brown powder was 1.5114 kilogrammes of cocaine. According to the authorities R v Lau Tak Ming and Others and more recently, HKSAR v Abdallah Anwar Abbas, mathematically speaking this amount of cocaine for trafficking would attract a starting point 23 years and 4 months’ imprisonment after trial.
I have taken into account the fact the hut had only been rented a few weeks before the fire which means the length they were manufacturing dangerous drugs was not very long.
In mitigation, I have been urged to consider and give considerable weight to the defendant’s role. A minor role in the grand scheme of this conspiracy to manufacture operation. I have been asked to take into account not only the starting point of the amount of cocaine found but also overall circumstances. After all, each case should still depend on its own facts.
What is clear and I accept there is no evidence that the defendant had any other role to play in this enterprise other than collecting the raw materials imported into Hong Kong. It would appear from the packaging it was acai powder but there is no evidence what it actually was other than not any illegal substance.
Another defendant from the facts of his trial clearly took this defendant and ensured this defendant took any risk, ensured it was this defendant’s name on all documents and it was this defendant who personally claimed the goods from the Customs and Excise officers. That defendant accompanied him all the way and as soon as they successfully collected the goods and reached a delivery destination, not the hut where the fire broke out, this defendant’s role was over. To be clear, this defendant did not deliver the raw materials to that hut.
Ms Yip stressed there is no evidence this defendant knew where the raw materials were to be delivered, how they were to be used in the manufacturing process and how much dangerous drugs was to be produced, and any other aspect of the conspiracy after the collection of the raw materials.
Ms Yip for the defendant has urged me because of this clearly limited role in the conspiracy, urged me to adopt a starting point that does not strictly adhere to the mathematical starting point for the amount of cocaine found.
The prosecution has some sympathy for that submission and accepts that this defendant’s role was minimal.
I cannot ignore the amount of cocaine found and what the starting point for that quantity of cocaine would be if it was simply trafficking that amount. But I do agree and accept the submission that because of his limited role, and the overall circumstances of his part in this conspiracy, I can adopt a lower starting point. In particular, a lower starting point than 23 years and 4 months which would have been applicable for quantity alone.
Having given the facts my full consideration, the legal principles’ weight and taking all mitigation into account, for Charge 1, I will take a starting point of 20 years’ imprisonment.
The defendant is entitled to a full discount of one-third for his plea at the earliest opportunity which reduces the starting point to 13 years and 4 months’ imprisonment. I will order that the sentences for both Changes 1 and 2 to be served concurrently.
The defendant is therefore sentenced to a total of 13 years and 4 months’ imprisonment.