HCCC144/2023 HKSAR v. WONG HO KEI AND ANOTHER - LawHero
HCCC144/2023
Court of First InstanceBarnes J28/1/2024[2024] HKCFI 484
HCCC144/2023
A HCCC 144/2023 A
[2024] HKCFI 484
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 144 OF 2023
D ----------------- D
HKSAR
E E
v
F F
Wong Ho-kei (A1)
Wong Man-wai (A2)
G G
-----------------
H Before: Hon Barnes J H
Date: 29 January 2024 at 10.17 am
I
Present: Miss Wong Yan-ning Angela, SPP of the Department of I
Justice, for HKSAR
Ms Wong Wing-man Vivian, instructed by Cheung & Liu,
J assigned by DLA, for the 1st accused J
Mr Yuen Wai-ming Anthony, instructed by Cheung, Yeung &
Lee, Solicitors, assigned by DLA, for the 2nd accused
K K
Offence: (1) Manufacturing a dangerous drug (製造危險藥物)
(2) & (3) Trafficking in a dangerous drug (販運危險藥物)
L L
---------------------------------
Transcript of the Audio Recording
M of the Sentence in the above Case M
---------------------------------
N N
COURT: The two defendants, Wong Ho-kei (D1) and Wong Man-wai (D2),
were jointly charged with three offences: Manufacturing a
O dangerous drug, contrary to section 6(1)(a) and (2) of the O
Dangerous Drugs Ordinance, Chapter 134, that is the 1st count;
trafficking in a dangerous drug, contrary to section 4(1)(a)
P and (3) of the same ordinance, that is the 2nd and the 3rd P
count. They both pleaded guilty to all three counts before
Q a magistrate and both were committed to the Court of First Q
Instance of the High Court for sentence.
R The Facts of the Case R
Police officers mounted an anti-narcotics operation on 4
S S
August 2021 outside a flat in Park Yoho, Yuen Long. Both D1
and D2 emerged from the flat and both tried to go back inside
T when they noticed the presence of the police. Both were T
intercepted.
U U
CRT22/29.1.2024/JC 1 HCCC 144/2023(1)/Sentence
V V
A Inside the rucksack carried by D1, 13 packets of 222 grammes A
of a solid containing 182 grammes of cocaine were found. D1
also possessed keys to the Park Yoho flat. The flat was
B searched on the strength of a search warrant. From the table B
and floor inside one of the rooms, the police found items and
drug manufacturing paraphernalia including bowls, pots,
C C
scissors, sieve, beakers, plastic bags, electronic scale,
portable gas cookers, electronic cooker, air purifier, vacuum
D sealing machine and solid containing phenacetin and D
paracetamol. A total of 1,001.56 grammes of cocaine was found
as well.
E E
A scientist from the government laboratory gave an opinion
that the manufacturing of cocaine base with the use of
F F
phenacetin and paracetamol as adulterants could have taken
place at the flat. The cocaine base so produced is in the
G form commonly known as ‘Crack’ and they would commonly be G
dried before packaging.
H D1 was arrested for trafficking in a dangerous drug and H
manufacturing a dangerous drug. Under caution, he admitted
I
trafficking and manufacturing dangerous drug to repay debt I
for his family. He knew that was wrong. In a subsequent
video-recorded interview, D1 admitted among other things that
J he met someone called Ah Keung and told the latter, Ah Keung, J
about his family financial problems. So Ah Keung told him
that he had a job opportunity to offer. So D1 gave his mobile
K number to Ah Keung. K
L Later, someone contacted D1 and offered him a job. He was L
told to collect raw cocaine which he did. Afterwards, he
purchased manufacturing equipment on the instruction of an
M unknown man via the mobile phone and also taught him how to M
mix the raw cocaine with the powder and how to heat, solidify,
dry, and grind the whole product.
N N
D1 understood that the manufacturing process was of a
O dangerous drug and D1 had known D2 for 6 to 7 years and he O
knew D2 also had financial difficulties. So he asked D2 to
take part in the operation. D1 also shared his reward with
P D2. D1 let D2 pack the cooked cocaine into plastic bags after P
he cooked the cocaine and was broken into smaller pieces.
Q Q
At the time of the arrest, he was instructed to leave the
flat to make a delivery but was arrested. He was supposed to
R earn 13,000 to 15,000 for the job but he had not received the R
money yet. He said all the cocaine found inside the flat
were manufactured by him, the flat was rented in his name.
S S
D2 was arrested for the offence of manufacturing dangerous
drug upon the discovery of the drug manufacturing equipment
T T
inside the flat. Under caution, D2 admitted committing the
offence for money. D2 was also arrested for conspiracy to
U traffic in a dangerous drug upon dangerous drug being found U
CRT22/29.1.2024/JC 2 HCCC 144/2023(1)/Sentence
V V
A on D1’s person and inside the flat. Under caution, D2 A
admitted trafficking in a dangerous drug with D1 as he was in
need of money.
B B
In a subsequent video-recorded interview, D2 said he became
unemployed during the pandemic and owed debts for around
C C
$100,000. D1 knew he was in need of money and asked him to
help out. D2 did not know what he had to do until he arrived
D at the flat. He then knew the job was drug related. D1 was D
responsible for manufacturing the dangerous drug and D2 the
packaging. He would weigh the cocaine and put them into bags
E with a weight of 24 grammes each. D2 admitted the cocaine E
found inside D1’s rucksack was packed by him. A total of
1,474.76 grammes of a solid containing 1,183.56 grammes of
F F
cocaine was seized from the flat and on D1.
G The estimated street value at the time was $1,693,024 in G
powder form, and HK$2,159,049 in crack form.
H Both D1 and D2 accepted and admitted that at all material H
times, they manufactured the cocaine found at the flat and
I
knowingly possessed all the cocaine seized for the purpose of I
unlawful trafficking.
J Background and Mitigation J
First, D1. According to the antecedent statement, D1 was
K born in 1994 so he is now 29 years of age. He has a clear K
record. He received tertiary education in the United States
L and worked as a storekeeper until he became unemployed in L
March 2021.
M The defendant is single, he has a father aged 65, a mother M
aged 57, and three brothers who all lived apart. And that,
of course, was when the antecedent statement was taken, they
N should be a bit older now. N
O In mitigation, Ms Vivian Wong for D1 submitted that the O
defendant studied psychology in Hong Kong and then went to
Maryland in the US to study mechanical engineering and
P business. D1 had to cut short his study due to family P
problems. D1’s parents were divorced and his father was said
to be a gambler, incurring debts of over a million dollars
Q Q
and had extramarital affairs. D1’s mother suffered from
serious depression and attempted to kill herself a few times.
R That was the reason why D1 returned to Hong Kong during his R
third year of study.
S There had been occasions when D1’s mother was hurting herself S
and D1 rushed home from work. As the sole breadwinner to
support his mother and three younger brothers who are all
T T
students, D1 worked full-time as a kitchen staff. He also
worked part time in a logistic company or in a karaoke at
U night. He earned a total monthly salary of $20,000 and gave U
CRT22/29.1.2024/JC 3 HCCC 144/2023(1)/Sentence
V V
A a significant portion of 15,000 to his family. D1 lost his A
job due to the pandemic and the economic downturn about six
months before these offences.
B B
Ms Wong submitted that in respect of the 1st count, that is
the manufacturing count, no quantity is specified and the
C C
basis of the charge was the cocaine found under Count 2 and
also the phenacetin and paracetamol found inside the flat.
D Ms Wong also submitted that since D1 admitted the cocaine D
found in his rucksack was part of the cocaine manufacturing
in the flat, the two quantities should be considered together
E in consideration of the overall gravity of the trafficking in E
a dangerous drug and the manufacturing dangerous drug charges.
F F
For the 1st count, Ms Wong referred this Court to the case of
R v Cheung Wai Kwong and Another and HKSAR v Kam Kwong Fai,
G regarding the factors to be taken into consideration for G
sentence. Ms Wong submitted that the manufacturing was done
in a “home setting”. Only two persons were involved and the
H number of each equipment ranged from one to three. The H
operation went on for about a week, that is from late July to
I
4 August. Ms Wong submitted that only 15 per cent of the I
cocaine manufactured by D1 was being trafficked by him and
D2, which was different from the case of HKSAR v Chan Wang
J Mei referred to by the prosecution. In that case, 85 per J
cent was being trafficked.
K Ms Wong submitted the six-step approach for trafficking in a K
dangerous drug set out by the Court of Appeal in the case of
L HKSAR v Herry Jane Yusuph is applicable here. With the L
combined quantity of 1,118.56 grammes, Ms Wong submitted a
starting point of 22 years and 11 months appropriate, having
M referred to the case of HKSAR v Lau Tak Ming and HKSAR v M
Abdallah.
N Now, as to the role of D1, Ms Wong submitted that as he was N
taking instructions from another unknown person, D1 did not
O take up a management role in the hierarchy. D1 was asked to O
rent a flat under his name in May 2021. It was only in July
2021 that he was instructed to deal with the drug. Whilst
P D1’s role was more than that of a courier, he acted under P
instructions and was not the one who took control of the
activities. D1 admitted he had asked D2 to work with him
Q Q
when he knew D2 was also in financial difficulty. D1 was
prepared to share his reward with D2. Ms Wong, in her written
R submission, submitted that both D1 and D2 were in the same R
rank in the hierarchy.
S Ms Wong submitted that D1 fully accepted his financial S
difficulty was not a valid reason to commit the offences. In
mitigation, Ms Wong stressed that the defendant pleaded guilty
T T
at the first practical opportunity, made full admission after
arrest, and is genuinely remorseful. Ms Wong also stressed
U that D1 had a clear record and planned to continue studying. U
CRT22/29.1.2024/JC 4 HCCC 144/2023(1)/Sentence
V V
A Ms Wong invited this court to consider a concurrent sentence A
for all three charges as the combined quantity of dangerous
drugs in the 2nd and the 3rd count had already been factored
B when considering the 1st count. B
Ms Wong also invited this Court to pass a sentence as lenient
C C
as possible so as not to crush the hope of D1 who was genuinely
remorseful and had a concrete plan to start anew.
D D
The defendant’s parents and maternal uncle had written to
this Court, asking for leniency on behalf of D1. D1 was
E described as a kind-hearted person who was willing to help E
others. When D1 was studying in the US and staying with his
maternal uncle who is a pastor, D1 cut short his study when
F F
he learned of the impending divorce of his parents, thinking
he could mediate and help change their minds. In the end,
G his parents were divorced, which was a blow to D1. D1 had G
learned a lesson. They all asked this Court to give D1 a
chance so that he can reunite with his family earlier.
H H
D1 also wrote to this Court explaining why he cut short his
I
study and came back to Hong Kong to help out. He explained I
that he felt as the oldest son, he needed to shoulder the
responsibility of taking care of the family. Due to financial
J difficulties, when his business failed, he resorted to commit J
the present crimes. He expressed his deep remorse and his
wish to further his studies while in gaol.
K K
D2
L L
According to the antecedent statement, D2 was born in 1997,
so he is now 26 years of age. He is not a first offender.
M He had four previous convictions, three are triad related. M
He admitted to be a member of the Sheung Shui Wo Shing Wo
triad society.
N N
D2 had one previous conviction of trafficking in a dangerous
O drug in 2020 and he was sentenced to 3 months’ imprisonment. O
D2 was educated up to Form 3 level and worked as a cook from
2013 to 2021 and then became unemployed. Defendant is single
P and lived with his parents and an elder brother prior to his P
arrest.
Q Q
In mitigation, Mr Anthony Yuen for D2 submitted, as disclosed
in D2’s video-recorded interview, that he was badly in need
R of money after he lost his kitchen job due to the pandemic. R
And he also borrowed money from loan sharks.
D1 decided to help D2 to solve the money problem. Mr Yuen
S submitted that the role of D2 was minor as he only helped in S
packaging the cocaine. Mr Yuen stressed that D2’s family
members who are very concerned about his situation and deeply
T T
regretted for not having given D2 suitable guidance.
U U
CRT22/29.1.2024/JC 5 HCCC 144/2023(1)/Sentence
V V
A Regarding the sentence, Mr Yuen referred this Court to the A
authorities for the trafficking of cocaine and submitted that
since the cocaine in the 2nd and 3rd count clearly came from
B the same source, the total amount should be taken to consider B
the appropriate starting point. Mr Yuen submitted that a
starting point of 23 years would be appropriate.
C C
As for the manufacturing count, Mr Yuen submitted this Court
D should take into account the quantity of dangerous drugs D
produced, the scale of the operation, capacity of the
equipment, output of drug at the manufacturing station, and
E the role played by the defendant. E
D2 and his sister wrote to this Court asking for leniency.
F F
D2 related to the financial problem he faced after he was
laid off. He said he dare not tell his family the true
G position so he went out each day pretending to go to work G
while seeking employment. He started borrowing money to make
ends meet and committed the present offences to earn quick
H money. D2 is remorseful and would use his time in gaol to H
study. He begged for leniency so that he could be released
I
earlier to take care of his parents. I
D2’s sister said she worked as a tour guide, so she was away
J from Hong Kong a lot. She said D2 was a well-behaved and J
hardworking person, helpful to others and loving to family.
D2’s sister said due to their mother’s ill health, D2’s older
K brother and herself engaged in their work, they failed to K
supervise D2 so D2 was influenced by bad elements and
L committed such serious offences. When the family visited D2, L
D2 showed deep remorse. The whole family begged this Court
to give D2 a chance and pass a lenient sentence on D2.
M M
Consideration and Reason for Sentence
N For the offence of manufacturing a dangerous drug and N
trafficking in a dangerous drug, the punishment is the same.
O A person convicted on indictment is liable to life O
imprisonment and a fine of $5 million. For the offence of
manufacturing, this Court had to bear in mind that
P manufacturing is much more serious than the trafficking or P
possession of dangerous drug. A person involved in the
manufacturing process was clearly nearer to the source of
Q Q
evil than a trafficker and deserve a heavier sentence (see
the cases of Wong Chun Ping, R v Cheung Wai Kwong and the
R case of HKSAR v Ip Yuet Ho). R
Factors to be taken into consideration include the quantity
S of dangerous drug, which is just one factor to be taken into S
consideration, the scale of the operation, the capacity of
the equipment, whether the manufacturing station had been
T T
producing or is likely to produce substantial quantities of
dangerous drug, and the role played by the defendant. The
U fact that a total of 1,183.58 grammes of cocaine had been U
CRT22/29.1.2024/JC 6 HCCC 144/2023(1)/Sentence
V V
A manufactured on the day of the offence showed that the A
manufacturing station with the equipment found was capable
and would be capable if the defendant had not been arrested
B in the manufacture of at least 1 kilogramme of cocaine in a B
weeks’ time.
C C
While D1 took instructions from others, he was nevertheless
the one who had rented the place and was responsible for the
D actual cooking of the cocaine. D
There was indeed no evidence that D1 was in the management
E rank of the hierarchy, but he was the main person who actually E
manufactured the dangerous drugs cocaine. His role, while
not that of a mastermind, still cannot be said to be
F F
insignificant. I take into account the fact that D1 recruited
D2 to assist in the manufacturing operation and promised to
G pay D2 from the reward he was going to get. No doubt, with G
another pair of hands doing the packaging, the manufacturing
process would be quickened. The offence is more serious when
H more persons are involved. H
I
I reject Ms Wong’s submission on differentiating the present I
case from that of Chan Wang Mei on the basis of percentage of
dangerous drugs being trafficked. Realistically and common
J sense would tell us that the ultimate purpose of manufacturing J
dangerous drug was for the purpose of trafficking. Therefore
all the cocaine found inside the flat was also for the purpose
K of trafficking. So the fact that it so happened they had not K
been delivered yet does not change this fact.
L L
So having considered all the factors I mentioned, I am of the
view that a starting point of 26 years appropriate for the
M 1st count. That is for D1. M
D2’s role was packaging the cooked cocaine and he was
N recruited by D1 to help. So D2’s role is slightly less N
serious than that of D1. I am of the view that a starting
O point of 25 years is appropriate. O
D2 had a previous conviction of trafficking in a dangerous
P drug but I bore in mind that the sentence was 3 months’ P
imprisonment which indicate the offence was not serious. I
will not enhance the starting point on D2 on account of this
Q Q
previous similar.
R So they both pleaded guilty at the earliest available R
opportunity and is entitled to a full one-third discount. So
with the discount, the sentence is one of 17 years and
S 4 months for D1 and 16 years and 8 months for D2. S
Now, in respect of the two trafficking charges, that is the
2nd and the 3rd count. Both offences were committed on the
T T
same day and the facts were closely linked. So the proper
approach was to have regard to the total amount of dangerous
U drug in these two counts to arrive at an overall starting U
CRT22/29.1.2024/JC 7 HCCC 144/2023(1)/Sentence
V V
A point. Cases supporting this is Chow Yu Chi, Cheung Kwok A
Leung, and Wong To.
B Now, adopting the six-step approach in Herry Jane Yusuph, B
one, the total quantity of cocaine was 1,183.56 grammes. So
according to the case of Abdallah, this quantity falls under
C C
the bracket of between 600 and 1,200 grammes with a starting
point between 20 to 23 years.
D D
Second point, both defendants were involved in the
trafficking. They both possessed the cocaine found inside
E the flat for the purpose of unlawful trafficking. D2 packed E
the cocaine found inside D1’s rucksack and then performed the
delivery job when they were both intercepted.
F F
While there was no evidence either D1 or D2 was the
G mastermind, their respective role was more important and more G
culpable than that of a courier. They in fact manufactured
the dangerous drug in question. So as far as trafficking in
H a dangerous drug is concerned, I do not think I should H
differentiate the role of D1 and D2.
I I
So the third point. Having considered the circumstances of
the offences and the defendant’s role, I am of the view that
J a notional after trial starting point of 23 years is J
appropriate for D1 and D2.
K The fourth point. There are no aggravating factors to enhance K
this starting point. I have already mentioned that I would
L not enhance the starting point with D2’s previous conviction. L
So the fifth point is both defendants pleaded guilty at the
M earliest available opportunity and so is therefore entitled M
to a full one-third discount.
N So the sixth point is with the discount, the sentence is one N
of 15 years and 4 months.
O O
The Totality
P Clearly, I need to look at the totality of sentence, having P
regard to their respective culpability to arrive a fair and
just sentence for all three offences. While I appreciate the
Q Q
quantity of cocaine trafficked by both defendants have already
been taken into account for the manufacturing offence, the
R offence of trafficking dangerous drug is clearly distinct R
from the manufacturing offence even though the dangerous drug
trafficked was a product of the manufacturing performed by
S both defendants. I do not agree that the sentences imposed S
for manufacturing and trafficking should all run
concurrently.
T T
So having considered the totality principle, I am of the view
U that an overall sentence of 18 years and 6 months is U
CRT22/29.1.2024/JC 8 HCCC 144/2023(1)/Sentence
V V
A appropriate for D1 and for D2 an overall sentence of 17 years A
and 8 months.
B So to achieve this, D1 will be sentenced as follows: B
1st count, the manufacturing dangerous drug count, 17 years
and 4 months; 2nd count, trafficking in a dangerous drug,
C C
15 years and 4 months; the 3rd count, trafficking in a
dangerous drug, 8 years. The sentence on the 2nd and 3rd to
D run concurrently, making a total of 15 years and 4 months. D
And then 1 year and 2 months of the sentence on the 2nd and
3rd count to run at the expiration of the 17 years and 4 months
E imposed on the 1st count, then making a total of 18 years and E
6 months.
F F
For D2, the 1st count, manufacturing dangerous drug, 16 years
and 8 months; 2nd count, 15 years and 4 months; 3rd count,
G also 8 years. And then the sentence on the 2nd and 3rd to G
run concurrently, making a total of 15 years and 4 months. 1
year of the sentence on the 2nd and 3rd count to run at the
H expiration of the 16 years and 8 months imposed on the 1st H
count, then making a total of 17 years and 8 months.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT22/29.1.2024/JC 9 HCCC 144/2023(1)/Sentence
V V
A HCCC 144/2023 A
[2024] HKCFI 484
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 144 OF 2023
D ----------------- D
HKSAR
E E
v
F F
Wong Ho-kei (A1)
Wong Man-wai (A2)
G G
-----------------
H Before: Hon Barnes J H
Date: 29 January 2024 at 10.17 am
I
Present: Miss Wong Yan-ning Angela, SPP of the Department of I
Justice, for HKSAR
Ms Wong Wing-man Vivian, instructed by Cheung & Liu,
J assigned by DLA, for the 1st accused J
Mr Yuen Wai-ming Anthony, instructed by Cheung, Yeung &
Lee, Solicitors, assigned by DLA, for the 2nd accused
K K
Offence: (1) Manufacturing a dangerous drug (製造危險藥物)
(2) & (3) Trafficking in a dangerous drug (販運危險藥物)
L L
---------------------------------
Transcript of the Audio Recording
M of the Sentence in the above Case M
---------------------------------
N N
COURT: The two defendants, Wong Ho-kei (D1) and Wong Man-wai (D2),
were jointly charged with three offences: Manufacturing a
O dangerous drug, contrary to section 6(1)(a) and (2) of the O
Dangerous Drugs Ordinance, Chapter 134, that is the 1st count;
trafficking in a dangerous drug, contrary to section 4(1)(a)
P and (3) of the same ordinance, that is the 2nd and the 3rd P
count. They both pleaded guilty to all three counts before
Q a magistrate and both were committed to the Court of First Q
Instance of the High Court for sentence.
R The Facts of the Case R
Police officers mounted an anti-narcotics operation on 4
S S
August 2021 outside a flat in Park Yoho, Yuen Long. Both D1
and D2 emerged from the flat and both tried to go back inside
T when they noticed the presence of the police. Both were T
intercepted.
U U
CRT22/29.1.2024/JC 1 HCCC 144/2023(1)/Sentence
V V
A Inside the rucksack carried by D1, 13 packets of 222 grammes A
of a solid containing 182 grammes of cocaine were found. D1
also possessed keys to the Park Yoho flat. The flat was
B searched on the strength of a search warrant. From the table B
and floor inside one of the rooms, the police found items and
drug manufacturing paraphernalia including bowls, pots,
C C
scissors, sieve, beakers, plastic bags, electronic scale,
portable gas cookers, electronic cooker, air purifier, vacuum
D sealing machine and solid containing phenacetin and D
paracetamol. A total of 1,001.56 grammes of cocaine was found
as well.
E E
A scientist from the government laboratory gave an opinion
that the manufacturing of cocaine base with the use of
F F
phenacetin and paracetamol as adulterants could have taken
place at the flat. The cocaine base so produced is in the
G form commonly known as ‘Crack’ and they would commonly be G
dried before packaging.
H D1 was arrested for trafficking in a dangerous drug and H
manufacturing a dangerous drug. Under caution, he admitted
I
trafficking and manufacturing dangerous drug to repay debt I
for his family. He knew that was wrong. In a subsequent
video-recorded interview, D1 admitted among other things that
J he met someone called Ah Keung and told the latter, Ah Keung, J
about his family financial problems. So Ah Keung told him
that he had a job opportunity to offer. So D1 gave his mobile
K number to Ah Keung. K
L Later, someone contacted D1 and offered him a job. He was L
told to collect raw cocaine which he did. Afterwards, he
purchased manufacturing equipment on the instruction of an
M unknown man via the mobile phone and also taught him how to M
mix the raw cocaine with the powder and how to heat, solidify,
dry, and grind the whole product.
N N
D1 understood that the manufacturing process was of a
O dangerous drug and D1 had known D2 for 6 to 7 years and he O
knew D2 also had financial difficulties. So he asked D2 to
take part in the operation. D1 also shared his reward with
P D2. D1 let D2 pack the cooked cocaine into plastic bags after P
he cooked the cocaine and was broken into smaller pieces.
Q Q
At the time of the arrest, he was instructed to leave the
flat to make a delivery but was arrested. He was supposed to
R earn 13,000 to 15,000 for the job but he had not received the R
money yet. He said all the cocaine found inside the flat
were manufactured by him, the flat was rented in his name.
S S
D2 was arrested for the offence of manufacturing dangerous
drug upon the discovery of the drug manufacturing equipment
T T
inside the flat. Under caution, D2 admitted committing the
offence for money. D2 was also arrested for conspiracy to
U traffic in a dangerous drug upon dangerous drug being found U
CRT22/29.1.2024/JC 2 HCCC 144/2023(1)/Sentence
V V
A on D1’s person and inside the flat. Under caution, D2 A
admitted trafficking in a dangerous drug with D1 as he was in
need of money.
B B
In a subsequent video-recorded interview, D2 said he became
unemployed during the pandemic and owed debts for around
C C
$100,000. D1 knew he was in need of money and asked him to
help out. D2 did not know what he had to do until he arrived
D at the flat. He then knew the job was drug related. D1 was D
responsible for manufacturing the dangerous drug and D2 the
packaging. He would weigh the cocaine and put them into bags
E with a weight of 24 grammes each. D2 admitted the cocaine E
found inside D1’s rucksack was packed by him. A total of
1,474.76 grammes of a solid containing 1,183.56 grammes of
F F
cocaine was seized from the flat and on D1.
G The estimated street value at the time was $1,693,024 in G
powder form, and HK$2,159,049 in crack form.
H Both D1 and D2 accepted and admitted that at all material H
times, they manufactured the cocaine found at the flat and
I
knowingly possessed all the cocaine seized for the purpose of I
unlawful trafficking.
J Background and Mitigation J
First, D1. According to the antecedent statement, D1 was
K born in 1994 so he is now 29 years of age. He has a clear K
record. He received tertiary education in the United States
L and worked as a storekeeper until he became unemployed in L
March 2021.
M The defendant is single, he has a father aged 65, a mother M
aged 57, and three brothers who all lived apart. And that,
of course, was when the antecedent statement was taken, they
N should be a bit older now. N
O In mitigation, Ms Vivian Wong for D1 submitted that the O
defendant studied psychology in Hong Kong and then went to
Maryland in the US to study mechanical engineering and
P business. D1 had to cut short his study due to family P
problems. D1’s parents were divorced and his father was said
to be a gambler, incurring debts of over a million dollars
Q Q
and had extramarital affairs. D1’s mother suffered from
serious depression and attempted to kill herself a few times.
R That was the reason why D1 returned to Hong Kong during his R
third year of study.
S There had been occasions when D1’s mother was hurting herself S
and D1 rushed home from work. As the sole breadwinner to
support his mother and three younger brothers who are all
T T
students, D1 worked full-time as a kitchen staff. He also
worked part time in a logistic company or in a karaoke at
U night. He earned a total monthly salary of $20,000 and gave U
CRT22/29.1.2024/JC 3 HCCC 144/2023(1)/Sentence
V V
A a significant portion of 15,000 to his family. D1 lost his A
job due to the pandemic and the economic downturn about six
months before these offences.
B B
Ms Wong submitted that in respect of the 1st count, that is
the manufacturing count, no quantity is specified and the
C C
basis of the charge was the cocaine found under Count 2 and
also the phenacetin and paracetamol found inside the flat.
D Ms Wong also submitted that since D1 admitted the cocaine D
found in his rucksack was part of the cocaine manufacturing
in the flat, the two quantities should be considered together
E in consideration of the overall gravity of the trafficking in E
a dangerous drug and the manufacturing dangerous drug charges.
F F
For the 1st count, Ms Wong referred this Court to the case of
R v Cheung Wai Kwong and Another and HKSAR v Kam Kwong Fai,
G regarding the factors to be taken into consideration for G
sentence. Ms Wong submitted that the manufacturing was done
in a “home setting”. Only two persons were involved and the
H number of each equipment ranged from one to three. The H
operation went on for about a week, that is from late July to
I
4 August. Ms Wong submitted that only 15 per cent of the I
cocaine manufactured by D1 was being trafficked by him and
D2, which was different from the case of HKSAR v Chan Wang
J Mei referred to by the prosecution. In that case, 85 per J
cent was being trafficked.
K Ms Wong submitted the six-step approach for trafficking in a K
dangerous drug set out by the Court of Appeal in the case of
L HKSAR v Herry Jane Yusuph is applicable here. With the L
combined quantity of 1,118.56 grammes, Ms Wong submitted a
starting point of 22 years and 11 months appropriate, having
M referred to the case of HKSAR v Lau Tak Ming and HKSAR v M
Abdallah.
N Now, as to the role of D1, Ms Wong submitted that as he was N
taking instructions from another unknown person, D1 did not
O take up a management role in the hierarchy. D1 was asked to O
rent a flat under his name in May 2021. It was only in July
2021 that he was instructed to deal with the drug. Whilst
P D1’s role was more than that of a courier, he acted under P
instructions and was not the one who took control of the
activities. D1 admitted he had asked D2 to work with him
Q Q
when he knew D2 was also in financial difficulty. D1 was
prepared to share his reward with D2. Ms Wong, in her written
R submission, submitted that both D1 and D2 were in the same R
rank in the hierarchy.
S Ms Wong submitted that D1 fully accepted his financial S
difficulty was not a valid reason to commit the offences. In
mitigation, Ms Wong stressed that the defendant pleaded guilty
T T
at the first practical opportunity, made full admission after
arrest, and is genuinely remorseful. Ms Wong also stressed
U that D1 had a clear record and planned to continue studying. U
CRT22/29.1.2024/JC 4 HCCC 144/2023(1)/Sentence
V V
A Ms Wong invited this court to consider a concurrent sentence A
for all three charges as the combined quantity of dangerous
drugs in the 2nd and the 3rd count had already been factored
B when considering the 1st count. B
Ms Wong also invited this Court to pass a sentence as lenient
C C
as possible so as not to crush the hope of D1 who was genuinely
remorseful and had a concrete plan to start anew.
D D
The defendant’s parents and maternal uncle had written to
this Court, asking for leniency on behalf of D1. D1 was
E described as a kind-hearted person who was willing to help E
others. When D1 was studying in the US and staying with his
maternal uncle who is a pastor, D1 cut short his study when
F F
he learned of the impending divorce of his parents, thinking
he could mediate and help change their minds. In the end,
G his parents were divorced, which was a blow to D1. D1 had G
learned a lesson. They all asked this Court to give D1 a
chance so that he can reunite with his family earlier.
H H
D1 also wrote to this Court explaining why he cut short his
I
study and came back to Hong Kong to help out. He explained I
that he felt as the oldest son, he needed to shoulder the
responsibility of taking care of the family. Due to financial
J difficulties, when his business failed, he resorted to commit J
the present crimes. He expressed his deep remorse and his
wish to further his studies while in gaol.
K K
D2
L L
According to the antecedent statement, D2 was born in 1997,
so he is now 26 years of age. He is not a first offender.
M He had four previous convictions, three are triad related. M
He admitted to be a member of the Sheung Shui Wo Shing Wo
triad society.
N N
D2 had one previous conviction of trafficking in a dangerous
O drug in 2020 and he was sentenced to 3 months’ imprisonment. O
D2 was educated up to Form 3 level and worked as a cook from
2013 to 2021 and then became unemployed. Defendant is single
P and lived with his parents and an elder brother prior to his P
arrest.
Q Q
In mitigation, Mr Anthony Yuen for D2 submitted, as disclosed
in D2’s video-recorded interview, that he was badly in need
R of money after he lost his kitchen job due to the pandemic. R
And he also borrowed money from loan sharks.
D1 decided to help D2 to solve the money problem. Mr Yuen
S submitted that the role of D2 was minor as he only helped in S
packaging the cocaine. Mr Yuen stressed that D2’s family
members who are very concerned about his situation and deeply
T T
regretted for not having given D2 suitable guidance.
U U
CRT22/29.1.2024/JC 5 HCCC 144/2023(1)/Sentence
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A Regarding the sentence, Mr Yuen referred this Court to the A
authorities for the trafficking of cocaine and submitted that
since the cocaine in the 2nd and 3rd count clearly came from
B the same source, the total amount should be taken to consider B
the appropriate starting point. Mr Yuen submitted that a
starting point of 23 years would be appropriate.
C C
As for the manufacturing count, Mr Yuen submitted this Court
D should take into account the quantity of dangerous drugs D
produced, the scale of the operation, capacity of the
equipment, output of drug at the manufacturing station, and
E the role played by the defendant. E
D2 and his sister wrote to this Court asking for leniency.
F F
D2 related to the financial problem he faced after he was
laid off. He said he dare not tell his family the true
G position so he went out each day pretending to go to work G
while seeking employment. He started borrowing money to make
ends meet and committed the present offences to earn quick
H money. D2 is remorseful and would use his time in gaol to H
study. He begged for leniency so that he could be released
I
earlier to take care of his parents. I
D2’s sister said she worked as a tour guide, so she was away
J from Hong Kong a lot. She said D2 was a well-behaved and J
hardworking person, helpful to others and loving to family.
D2’s sister said due to their mother’s ill health, D2’s older
K brother and herself engaged in their work, they failed to K
supervise D2 so D2 was influenced by bad elements and
L committed such serious offences. When the family visited D2, L
D2 showed deep remorse. The whole family begged this Court
to give D2 a chance and pass a lenient sentence on D2.
M M
Consideration and Reason for Sentence
N For the offence of manufacturing a dangerous drug and N
trafficking in a dangerous drug, the punishment is the same.
O A person convicted on indictment is liable to life O
imprisonment and a fine of $5 million. For the offence of
manufacturing, this Court had to bear in mind that
P manufacturing is much more serious than the trafficking or P
possession of dangerous drug. A person involved in the
manufacturing process was clearly nearer to the source of
Q Q
evil than a trafficker and deserve a heavier sentence (see
the cases of Wong Chun Ping, R v Cheung Wai Kwong and the
R case of HKSAR v Ip Yuet Ho). R
Factors to be taken into consideration include the quantity
S of dangerous drug, which is just one factor to be taken into S
consideration, the scale of the operation, the capacity of
the equipment, whether the manufacturing station had been
T T
producing or is likely to produce substantial quantities of
dangerous drug, and the role played by the defendant. The
U fact that a total of 1,183.58 grammes of cocaine had been U
CRT22/29.1.2024/JC 6 HCCC 144/2023(1)/Sentence
V V
A manufactured on the day of the offence showed that the A
manufacturing station with the equipment found was capable
and would be capable if the defendant had not been arrested
B in the manufacture of at least 1 kilogramme of cocaine in a B
weeks’ time.
C C
While D1 took instructions from others, he was nevertheless
the one who had rented the place and was responsible for the
D actual cooking of the cocaine. D
There was indeed no evidence that D1 was in the management
E rank of the hierarchy, but he was the main person who actually E
manufactured the dangerous drugs cocaine. His role, while
not that of a mastermind, still cannot be said to be
F F
insignificant. I take into account the fact that D1 recruited
D2 to assist in the manufacturing operation and promised to
G pay D2 from the reward he was going to get. No doubt, with G
another pair of hands doing the packaging, the manufacturing
process would be quickened. The offence is more serious when
H more persons are involved. H
I
I reject Ms Wong’s submission on differentiating the present I
case from that of Chan Wang Mei on the basis of percentage of
dangerous drugs being trafficked. Realistically and common
J sense would tell us that the ultimate purpose of manufacturing J
dangerous drug was for the purpose of trafficking. Therefore
all the cocaine found inside the flat was also for the purpose
K of trafficking. So the fact that it so happened they had not K
been delivered yet does not change this fact.
L L
So having considered all the factors I mentioned, I am of the
view that a starting point of 26 years appropriate for the
M 1st count. That is for D1. M
D2’s role was packaging the cooked cocaine and he was
N recruited by D1 to help. So D2’s role is slightly less N
serious than that of D1. I am of the view that a starting
O point of 25 years is appropriate. O
D2 had a previous conviction of trafficking in a dangerous
P drug but I bore in mind that the sentence was 3 months’ P
imprisonment which indicate the offence was not serious. I
will not enhance the starting point on D2 on account of this
Q Q
previous similar.
R So they both pleaded guilty at the earliest available R
opportunity and is entitled to a full one-third discount. So
with the discount, the sentence is one of 17 years and
S 4 months for D1 and 16 years and 8 months for D2. S
Now, in respect of the two trafficking charges, that is the
2nd and the 3rd count. Both offences were committed on the
T T
same day and the facts were closely linked. So the proper
approach was to have regard to the total amount of dangerous
U drug in these two counts to arrive at an overall starting U
CRT22/29.1.2024/JC 7 HCCC 144/2023(1)/Sentence
V V
A point. Cases supporting this is Chow Yu Chi, Cheung Kwok A
Leung, and Wong To.
B Now, adopting the six-step approach in Herry Jane Yusuph, B
one, the total quantity of cocaine was 1,183.56 grammes. So
according to the case of Abdallah, this quantity falls under
C C
the bracket of between 600 and 1,200 grammes with a starting
point between 20 to 23 years.
D D
Second point, both defendants were involved in the
trafficking. They both possessed the cocaine found inside
E the flat for the purpose of unlawful trafficking. D2 packed E
the cocaine found inside D1’s rucksack and then performed the
delivery job when they were both intercepted.
F F
While there was no evidence either D1 or D2 was the
G mastermind, their respective role was more important and more G
culpable than that of a courier. They in fact manufactured
the dangerous drug in question. So as far as trafficking in
H a dangerous drug is concerned, I do not think I should H
differentiate the role of D1 and D2.
I I
So the third point. Having considered the circumstances of
the offences and the defendant’s role, I am of the view that
J a notional after trial starting point of 23 years is J
appropriate for D1 and D2.
K The fourth point. There are no aggravating factors to enhance K
this starting point. I have already mentioned that I would
L not enhance the starting point with D2’s previous conviction. L
So the fifth point is both defendants pleaded guilty at the
M earliest available opportunity and so is therefore entitled M
to a full one-third discount.
N So the sixth point is with the discount, the sentence is one N
of 15 years and 4 months.
O O
The Totality
P Clearly, I need to look at the totality of sentence, having P
regard to their respective culpability to arrive a fair and
just sentence for all three offences. While I appreciate the
Q Q
quantity of cocaine trafficked by both defendants have already
been taken into account for the manufacturing offence, the
R offence of trafficking dangerous drug is clearly distinct R
from the manufacturing offence even though the dangerous drug
trafficked was a product of the manufacturing performed by
S both defendants. I do not agree that the sentences imposed S
for manufacturing and trafficking should all run
concurrently.
T T
So having considered the totality principle, I am of the view
U that an overall sentence of 18 years and 6 months is U
CRT22/29.1.2024/JC 8 HCCC 144/2023(1)/Sentence
V V
A appropriate for D1 and for D2 an overall sentence of 17 years A
and 8 months.
B So to achieve this, D1 will be sentenced as follows: B
1st count, the manufacturing dangerous drug count, 17 years
and 4 months; 2nd count, trafficking in a dangerous drug,
C C
15 years and 4 months; the 3rd count, trafficking in a
dangerous drug, 8 years. The sentence on the 2nd and 3rd to
D run concurrently, making a total of 15 years and 4 months. D
And then 1 year and 2 months of the sentence on the 2nd and
3rd count to run at the expiration of the 17 years and 4 months
E imposed on the 1st count, then making a total of 18 years and E
6 months.
F F
For D2, the 1st count, manufacturing dangerous drug, 16 years
and 8 months; 2nd count, 15 years and 4 months; 3rd count,
G also 8 years. And then the sentence on the 2nd and 3rd to G
run concurrently, making a total of 15 years and 4 months. 1
year of the sentence on the 2nd and 3rd count to run at the
H expiration of the 16 years and 8 months imposed on the 1st H
count, then making a total of 17 years and 8 months.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT22/29.1.2024/JC 9 HCCC 144/2023(1)/Sentence
V V