A A
HCCC 351/2023
[2024] HKCFI 2106
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C COURT OF FIRST INSTANCE C
CRIMINAL CASE NO 351 OF 2023
D D
-----------------
E HKSAR E
v
F F
Wu Kin-yip
G G
-----------------
H Before: Hon D’Almada Remedios J H
Date: 26 June 2024 at 10.36 am
Present: Mr Kevin Tang, SPP of the Department of Justice, for
I HKSAR I
Ms Wong Kam-hing Fanny, instructed by H Y Leung &
J Co LLP, for the accused J
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Wilfully obstructing a police officer in the due
K execution of duty (故意阻撓在正當執行職務的任何警務人員) K
(3) Manufacturing a dangerous drug (製造危險藥物)
L (4) Trafficking in dangerous drugs (販運危險藥物) L
M --------------------------------- M
Transcript of the Audio Recording
of the Sentence in the above Case
N --------------------------------- N
O COURT: Defendant, on 6 November 2023, you pleaded guilty to four O
charges before a magistrate at the Eastern Magistracy. As a
result of your pleas of guilty, you were committed here to
P P
the Court of First Instance for sentence. All charges were
committed on 2 September 2021 and were committed at or
Q outside Room 3 of Flat D, 1st Floor, No. 108D Boundary Q
Street, Kowloon City, Kowloon.
R Defendant, you admitted, in relation to the 1st count, R
trafficking in dangerous drugs outside No. 108D Boundary
Street 8 grammes of a solid containing 7.14 grammes of
S S
cocaine.
T In respect of Count 2, you admitted to wilfully obstructing T
a police officer in his due execution of duty, contrary to
section 36(b) of the Offences against the Person Ordinance,
U Chapter 212, and outside Flat D of which the address I have U
CRT26/26.6.2024/AB 1 HCCC 351/2023(1)/Sentence
V V
A A
just mentioned. And the police officer concerned was Police
Constable 14767 Lo Chung-lai.
B In relation to Count 3, you admitted to manufacturing B
cocaine inside Room 3 of Flat D.
C In relation to Count 4, you admitted that inside Room 3, C
Flat D, you unlawfully trafficked in 1,410 grammes of a
D
solid containing 1,210 grammes of heroin hydrochloride, D
567.7 grammes of a solid containing 516.7 grammes of cocaine
hydrochloride, 195.26 grammes of a solid containing 165.26
E grammes of cocaine, and 7.05 grammes of a solid containing E
6.20 grammes of ketamine.
F You admitted the Summary of Facts which were dated 29 August F
2023. The facts in support of these charges are set out as
G follows. G
On 2 September 2021, police officers had mounted an anti-
H narcotics operation in the vicinity of the premises at H
Boundary Street. At about 10 pm, they observed you to be
leaving the premises at Boundary Street. You were
I intercepted. A body search was conducted on you and found I
from your right trousers pocket was the drugs as quantified
J in Count 1, which were contained in 50 plastic bags. Also J
found upon you were keys and an access card. You were
arrested and cautioned. You remained silent.
K K
The officers then escorted you to Flat D. Upon arrival at
the flat, you suddenly became emotional and kept struggling.
L L
You used your body to prevent the officers from opening the
door of the flat. Despite warnings given to you by the
M officers that you would be arrested for obstructing a police M
officer if you did not stop struggling, you continued to
struggle. You were eventually subdued. You were then led
N into the flat and again suddenly rushed forward and were N
subdued again.
O O
Upon the strength of a search warrant, the flat was
searched. The drugs as quantified in Charge 4 were found in
P a carton box next to the desk, on the desk and inside the P
drawer of the desk in the bedroom. Also found were three
electronic scales and a bag containing other resealable
Q plastic bags. Found in the kitchen were utensils, such as a Q
metal pot, bowls, liquid, chopsticks, sieves and other
paraphernalia with traces of cocaine. This founded the
R R
subject matter of Count 3 of manufacturing dangerous drugs.
S You were arrested and cautioned for trafficking in dangerous S
drugs and manufacturing dangerous drugs and obstructing the
police officer you remained silent. The estimated street
T value of all the dangerous drugs found in this case was in T
the range of HK$1,886,684 and HK$1,953,150 depending on
U
whether the cocaine was in powder form or in crack form U
respectively.
CRT26/26.6.2024/AB 2 HCCC 351/2023(1)/Sentence
V V
A A
I turn now to the background and mitigation submitted on
B your behalf by your counsel, Ms Fanny Wong Kam-hing. B
Defendant, you were born in the mainland and came to Hong
Kong when you were eight years old. You are now 27 years of
C age. You are single and previously lived with your parents C
and elder sister in Sham Shui Po. You have been educated up
D
to Form 1. You worked as a casual kitchen worker and earned D
between $12,000 to $17,000 per month depending on the
availability of work. At the time of your arrest, you were
E unemployed. I am informed you had been an addict of cocaine E
and ketamine for about five to six years at the time you
were arrested.
F F
Defendant, you have two previous convictions. One is
G related to possession of dangerous drugs to which you were G
sentenced to 8 months’ imprisonment in 2019.
H Through your counsel, Ms Fanny Wong, it is admitted that the H
drugs in Count 1, that is, 7.14 grammes and the 165.26
grammes of cocaine in Count 4 were drugs actually
I manufactured by you. The 516.7 grammes of cocaine I
hydrochloride from Count 4 would have been manufactured by
J you to make cocaine or what is known as “crack cocaine”. J
I am informed that shortly before the commission of the
K incident charges, you had become so increasingly addicted to K
cocaine and ketamine that you had to rent a room to live
away from your parents and elder sister in order to hide
L L
your addictions from them. Unfortunately, this newfound
freedom, as Ms Wong says, in living away from your family
M actually exacerbated your addictions in no time and you soon M
resorted to trafficking and manufacturing in cocaine as you
found yourself in financial difficulties feeding your
N addictions with your small wages as a kitchen worker. N
I am informed that you succumbed to trafficking and
O O
manufacturing due to your friends’ persuasion to earn quick
money. You were given instructions by a person higher up in
P the chain whereby you were told to manufacture and deliver P
these drugs and after doing so, you would get paid. There
was nobody else under you but only one person whom you
Q received instructions from. Once you had got the job done, Q
that is, had all the drugs delivered and manufactured, you
would be paid about $15,000 to $20,000.
R R
I have received two letters, one from yourself and one joint
S letter by your parents and sister. I am informed that your S
family are very supportive of you. They find that you were
a filial son, a trusting person, but not having enough
T experience, have been misguided by your obviously dubious T
peers. I am informed that you advised them not to come to
U
court today, that you did not want them to hear what you U
know will be a lengthy sentence handed to you.
CRT26/26.6.2024/AB 3 HCCC 351/2023(1)/Sentence
V V
A A
In your own letter, you have realised your very wrongdoing
B and certainly are regretful for your misdeeds. Being a B
young man that you are, 27 years of age, I am informed by Ms
Wong that you intend to make the best opportunity whilst you
C are incarcerated and attend courses to improve yourself. C
D
I turn now to sentence. I turn first to deal with Charges 1 D
and 4, that is, the trafficking in dangerous drugs. The
sentence approach to sentencing in drug trafficking cases
E are the cases laid down in HKSAR v Herry Jane Yusuph [2021] E
1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024]
HKCA 150. The application of the principles and steps are
F as follows. F
G The first step is to assess the gravity of the offence and G
identify the relevant guideline band applicable to the
quantity of drugs concerned. The tariff case for the drug
H cocaine and/or heroin is set out in the case of Lau Tak Ming H
[1990] 2 HKLR 370. But for large amounts, the tariff case
authority is that of Abdullah [2009] 2 HKLRD 437. The
I tariff case for the drug ketamine is set out in the I
authority of the Secretary of Justice v Hii Siew Cheng
J [2009] 1 HKLRD 1. J
The total amount of ketamine in this case in Charge 4 is
K 6.20 grammes. In the tariff case of Hii Siew Cheng, an K
amount of between 1 gramme to 10 grammes of ketamine would
attract a term of 2 to 4 years’ imprisonment. The total
L L
cocaine and heroin in Counts 1 and 4 are as follows: 7.14
grammes of cocaine in Count 1, 516.7 grammes of cocaine
M hydrochloride and 165.26 grammes of cocaine in Count 4, M
which equals 689.1 grammes of cocaine and also 1,210 grammes
of heroin hydrochloride. Cocaine and heroin have the same
N guidelines. Therefore, I shall add the cocaine and heroin N
together and the total amounts to 1,899.1 grammes of cocaine
and heroin.
O O
In this case, there were three types of drugs involved in
P the trafficking: Cocaine, heroin and ketamine. The most P
appropriate test in sentencing the defendant is to convert
all the drugs to cocaine or heroin, which are the most
Q potent drugs and also command the same sentence. The least Q
potent drug is ketamine. The total amount of ketamine is
6.2 grammes, which would attract a sentence of about 3
R R
years’ imprisonment after trial. Converting ketamine to
that of heroin would amount to about 4 grammes. The total
S amount of heroin therefore is 1,899.1 plus 4 grammes, which S
equals 1,903.1 grammes of heroin. The arithmetical starting
point of that amount of drugs and following the tariff
T guidelines is 23 years and 9 months’ imprisonment. T
U
The second step is to assess the role and culpability of the U
defendant based on the evidence. In this case, the
CRT26/26.6.2024/AB 4 HCCC 351/2023(1)/Sentence
V V
A A
defendant was the manufacturer of the drug cocaine in his
flat, which was rented in his name. On the day in question,
B he was walking out of the premises with 50 packets of drugs B
in his pocket. It was extremely likely that at that time he
was going to deliver them to a buyer. He had a large amount
C of drugs in the flat, intending to deal with the drugs to C
others in the sense that he was directly trafficking. I am
D
told by Ms Wong that he was not the operator or financial D
controller who would make the substantial gains. He was
given instructions by a person above and he would be paid
E $15,000 to $20,000 when all of the drugs had been E
manufactured and delivered.
F I should have said earlier that the band of 1,903.1 grammes F
of heroin falls within the band of 1,200 to 4,000 grammes,
G which attracts a sentence of 23 to 26 years’ imprisonment. G
In regards to the third step, to identify where in the
H relevant band the defendant comes, given the circumstances H
of the offence and the role of the defendant, I consider
that an appropriate starting point should be one of 23 years
I and 11 months’ imprisonment. I
J The fourth step is to consider whether there are any J
aggravating features. There are a multiplicity of drugs
involved in this case, that is, cocaine, heroin
K hydrochloride and ketamine. A trafficker may be able to K
cater to a far wider market than a trafficker in only one
kind of drug and as such an enhancement of sentence of 1
L L
month’s imprisonment is warranted, making the notional
starting point 24 years’ imprisonment.
M M
The fifth step is to consider any mitigating factors. In
this very serious offence of trafficking, personal
N circumstances generally count for little and there are none N
in this case. The only significant mitigating factor is the
defendant’s plea of guilty. The defendant has pleaded
O O
guilty at the earliest opportunity and will benefit from a
one-third discount to his sentence. The notional starting
P point of 24 years’ imprisonment will therefore be reduced by P
one-third to that of 16 years’ imprisonment.
Q The defendant is charged with four offences and I must Q
sentence him separately for all four offences. I turn now
to deal with the charges.
R R
I turn now to Charge 1. Defendant had unlawfully trafficked
S in 7.14 grammes of cocaine. That amount falls in the band S
of up to 10 grammes, which warrants a sentence of between 2
to 5 years’ imprisonment. For that amount of cocaine, I
T would accordingly take 4 years’ imprisonment as the T
appropriate starting point. And after a one-third discount,
U
reduce that term to 2 years and 8 months’ imprisonment. U
CRT26/26.6.2024/AB 5 HCCC 351/2023(1)/Sentence
V V
A A
In Count 2 of wilfully obstructing a police officer, I will
take a starting point of 3 months’ imprisonment after trial.
B And giving him the one-third discount, that term should be B
reduced to 2 months’ imprisonment.
C I turn to Count 3. In that count, the defendant pleaded C
guilty to manufacturing cocaine. The leading case for
D
sentencing in manufacturing dangerous drugs and principles D
in sentencing are set out in the R v Cheung Wai Kwong and
Another [1997] HKLRD 344 and HKSAR v Cheng Chi Wai [2022] 3
E HKLRD 408. It is well-settled law and goes back to the E
decision in R v Cheung Wai Kwong and adopted in Cheng Chi
Wai that the offence of drug manufacturing is much more
F serious than trafficking in drugs and warrants a heavier F
sentence.
G G
I turn to the factors to be taken into consideration when
sentencing for manufacturing dangerous drugs. One of the
H factors is the quantity seized at a manufacturing workshop H
as that showed to some extent its size and productivity and
reflected the seriousness of the offence. In this case, the
I quantity seized was 7.14 grammes in Count 1 and 516.7 plus I
165.26 grammes in Count 4, making a total of 689.1 grammes
J of cocaine, either trafficked or to be trafficked. J
The second factor is the length of time the workshop had
K operated. It is the defendant’s case that this is the first K
and only occasion that cocaine was manufactured. There is
no evidence to show otherwise and I accept that. In the
L L
circumstances, this manufacturing was not continuous. The
charge is only on one date and I shall base the sentence
M that manufacturing was a one-off occasion. M
The third factor is to have regard to its scale and
N productivity. The manufacturing could have produced a large N
amount of drugs given the quantity found.
O O
The fourth factor is the quantity and standard of
manufacturing paraphernalia. The manufacturing
P paraphernalia was simple and basic items, but that was all P
that was needed for converting cocaine hydrochloride to
crack cocaine as is set out in the admitted Summary of
Q Facts. Q
The fifth factor is the role the defendant played. The
R R
defendant himself manufactured the drugs. He used his flat
rented in his name as the workshop or station to store and
S then manufacture the dangerous drugs ready for trafficking. S
His participation was therefore significant and had a
leading role, only role, in the manufacturing process.
T T
In the present case, the defendant had manufactured 689.1
U
grammes of cocaine. If the defendant had been trafficking U
in that amount of cocaine, the starting point after trial
CRT26/26.6.2024/AB 6 HCCC 351/2023(1)/Sentence
V V
A A
would on a mathematical calculation be 20 years and 3
months’ imprisonment. At paragraph 33 in Cheng Chi Wai, the
B Court of Appeal said and I quote: B
“Should there be information which shows the drug-
C manufacturing act is a one-off rather than a continuous C
act, a starting point slightly higher than the sentence
D
for trafficking in the same quantity of drugs may be D
appropriate.”
E Taking into account the above factors and that this offence E
is more serious than that of trafficking and a heavier
sentence is warranted, I consider a notional starting point
F of 22 years’ imprisonment to be appropriate. Giving the F
defendant a discount of one-third for his early plea of
G guilty, I reduce that term to one of 14 years and 8 months’ G
imprisonment in Count 3.
H I turn to Count 4. In relation to Count 4, it is a H
trafficking in dangerous drugs. The drugs involved are
681.96 grammes of cocaine plus the converted amount of
I ketamine, which is 4 grammes, which equals a total of 685.96 I
grammes of cocaine, plus the 1,210 grammes of heroin
J hydrochloride, amounts to a total amount trafficked of J
1,895.96 grammes of cocaine and/or heroin. The amount falls
in the band of between 1,200 to 4,000 grammes, which
K warrants a sentence of between 23 to 26 years’ imprisonment. K
For this amount, as I have calculated earlier and taking
into consideration the factors, I will take 24 years as the
L L
appropriate starting point. And after a one-third discount,
reduce that term to 16 years’ imprisonment.
M M
As stated in Cheng Chi Wai at paragraphs 53 and 55, I quote,
where that case involved trafficking in dangerous drugs and
N manufacturing in dangerous drugs: N
Charge 1 is of a different nature than the other
O O
charges. The facts show that the appellant was going
to sell the drugs after manufacturing them and it was
P extremely likely that at the time of his arrest, the P
applicant was delivering the drugs to the buyer
according to the sales arrangement. It was evident
Q that the applicant had played different roles in the Q
matter, thereby enhancing the gravity of the
appellant’s criminal acts.”
R R
At paragraph 55, the court went on to say:
S S
“Overall, it was appropriate for the trial judge to
order 1 year and 8 months after 9 years’ sentence for
T Charge 1 to be served consecutively to the remaining T
charges. It did not constitute unfairness to the
U
applicant.” U
CRT26/26.6.2024/AB 7 HCCC 351/2023(1)/Sentence
V V
A A
In sentencing, I have regard to the principle of totality.
Charge 1 and 4 of trafficking are of a different nature than
B Charge 3, manufacturing dangerous drugs. You have played B
different roles and this enhanced the gravity of your
criminal acts. In the circumstances, I order 1 year of
C Charge 3 to run consecutive to Charge 4 and the remainder of C
the terms in all charges to run concurrent to each other.
D D
The total term of imprisonment which you shall serve will
therefore be 17 years’ imprisonment.
E E
Having regard to the overall sentence I have passed as
stated in Herry Jane Yusuph and step six, I consider it
F fair, just and balanced in all the circumstances of the F
offences and you, the offender.
G G
H H
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
CRT26/26.6.2024/AB 8 HCCC 351/2023(1)/Sentence
V V
A A
HCCC 351/2023
[2024] HKCFI 2106
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C COURT OF FIRST INSTANCE C
CRIMINAL CASE NO 351 OF 2023
D D
-----------------
E HKSAR E
v
F F
Wu Kin-yip
G G
-----------------
H Before: Hon D’Almada Remedios J H
Date: 26 June 2024 at 10.36 am
Present: Mr Kevin Tang, SPP of the Department of Justice, for
I HKSAR I
Ms Wong Kam-hing Fanny, instructed by H Y Leung &
J Co LLP, for the accused J
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Wilfully obstructing a police officer in the due
K execution of duty (故意阻撓在正當執行職務的任何警務人員) K
(3) Manufacturing a dangerous drug (製造危險藥物)
L (4) Trafficking in dangerous drugs (販運危險藥物) L
M --------------------------------- M
Transcript of the Audio Recording
of the Sentence in the above Case
N --------------------------------- N
O COURT: Defendant, on 6 November 2023, you pleaded guilty to four O
charges before a magistrate at the Eastern Magistracy. As a
result of your pleas of guilty, you were committed here to
P P
the Court of First Instance for sentence. All charges were
committed on 2 September 2021 and were committed at or
Q outside Room 3 of Flat D, 1st Floor, No. 108D Boundary Q
Street, Kowloon City, Kowloon.
R Defendant, you admitted, in relation to the 1st count, R
trafficking in dangerous drugs outside No. 108D Boundary
Street 8 grammes of a solid containing 7.14 grammes of
S S
cocaine.
T In respect of Count 2, you admitted to wilfully obstructing T
a police officer in his due execution of duty, contrary to
section 36(b) of the Offences against the Person Ordinance,
U Chapter 212, and outside Flat D of which the address I have U
CRT26/26.6.2024/AB 1 HCCC 351/2023(1)/Sentence
V V
A A
just mentioned. And the police officer concerned was Police
Constable 14767 Lo Chung-lai.
B In relation to Count 3, you admitted to manufacturing B
cocaine inside Room 3 of Flat D.
C In relation to Count 4, you admitted that inside Room 3, C
Flat D, you unlawfully trafficked in 1,410 grammes of a
D
solid containing 1,210 grammes of heroin hydrochloride, D
567.7 grammes of a solid containing 516.7 grammes of cocaine
hydrochloride, 195.26 grammes of a solid containing 165.26
E grammes of cocaine, and 7.05 grammes of a solid containing E
6.20 grammes of ketamine.
F You admitted the Summary of Facts which were dated 29 August F
2023. The facts in support of these charges are set out as
G follows. G
On 2 September 2021, police officers had mounted an anti-
H narcotics operation in the vicinity of the premises at H
Boundary Street. At about 10 pm, they observed you to be
leaving the premises at Boundary Street. You were
I intercepted. A body search was conducted on you and found I
from your right trousers pocket was the drugs as quantified
J in Count 1, which were contained in 50 plastic bags. Also J
found upon you were keys and an access card. You were
arrested and cautioned. You remained silent.
K K
The officers then escorted you to Flat D. Upon arrival at
the flat, you suddenly became emotional and kept struggling.
L L
You used your body to prevent the officers from opening the
door of the flat. Despite warnings given to you by the
M officers that you would be arrested for obstructing a police M
officer if you did not stop struggling, you continued to
struggle. You were eventually subdued. You were then led
N into the flat and again suddenly rushed forward and were N
subdued again.
O O
Upon the strength of a search warrant, the flat was
searched. The drugs as quantified in Charge 4 were found in
P a carton box next to the desk, on the desk and inside the P
drawer of the desk in the bedroom. Also found were three
electronic scales and a bag containing other resealable
Q plastic bags. Found in the kitchen were utensils, such as a Q
metal pot, bowls, liquid, chopsticks, sieves and other
paraphernalia with traces of cocaine. This founded the
R R
subject matter of Count 3 of manufacturing dangerous drugs.
S You were arrested and cautioned for trafficking in dangerous S
drugs and manufacturing dangerous drugs and obstructing the
police officer you remained silent. The estimated street
T value of all the dangerous drugs found in this case was in T
the range of HK$1,886,684 and HK$1,953,150 depending on
U
whether the cocaine was in powder form or in crack form U
respectively.
CRT26/26.6.2024/AB 2 HCCC 351/2023(1)/Sentence
V V
A A
I turn now to the background and mitigation submitted on
B your behalf by your counsel, Ms Fanny Wong Kam-hing. B
Defendant, you were born in the mainland and came to Hong
Kong when you were eight years old. You are now 27 years of
C age. You are single and previously lived with your parents C
and elder sister in Sham Shui Po. You have been educated up
D
to Form 1. You worked as a casual kitchen worker and earned D
between $12,000 to $17,000 per month depending on the
availability of work. At the time of your arrest, you were
E unemployed. I am informed you had been an addict of cocaine E
and ketamine for about five to six years at the time you
were arrested.
F F
Defendant, you have two previous convictions. One is
G related to possession of dangerous drugs to which you were G
sentenced to 8 months’ imprisonment in 2019.
H Through your counsel, Ms Fanny Wong, it is admitted that the H
drugs in Count 1, that is, 7.14 grammes and the 165.26
grammes of cocaine in Count 4 were drugs actually
I manufactured by you. The 516.7 grammes of cocaine I
hydrochloride from Count 4 would have been manufactured by
J you to make cocaine or what is known as “crack cocaine”. J
I am informed that shortly before the commission of the
K incident charges, you had become so increasingly addicted to K
cocaine and ketamine that you had to rent a room to live
away from your parents and elder sister in order to hide
L L
your addictions from them. Unfortunately, this newfound
freedom, as Ms Wong says, in living away from your family
M actually exacerbated your addictions in no time and you soon M
resorted to trafficking and manufacturing in cocaine as you
found yourself in financial difficulties feeding your
N addictions with your small wages as a kitchen worker. N
I am informed that you succumbed to trafficking and
O O
manufacturing due to your friends’ persuasion to earn quick
money. You were given instructions by a person higher up in
P the chain whereby you were told to manufacture and deliver P
these drugs and after doing so, you would get paid. There
was nobody else under you but only one person whom you
Q received instructions from. Once you had got the job done, Q
that is, had all the drugs delivered and manufactured, you
would be paid about $15,000 to $20,000.
R R
I have received two letters, one from yourself and one joint
S letter by your parents and sister. I am informed that your S
family are very supportive of you. They find that you were
a filial son, a trusting person, but not having enough
T experience, have been misguided by your obviously dubious T
peers. I am informed that you advised them not to come to
U
court today, that you did not want them to hear what you U
know will be a lengthy sentence handed to you.
CRT26/26.6.2024/AB 3 HCCC 351/2023(1)/Sentence
V V
A A
In your own letter, you have realised your very wrongdoing
B and certainly are regretful for your misdeeds. Being a B
young man that you are, 27 years of age, I am informed by Ms
Wong that you intend to make the best opportunity whilst you
C are incarcerated and attend courses to improve yourself. C
D
I turn now to sentence. I turn first to deal with Charges 1 D
and 4, that is, the trafficking in dangerous drugs. The
sentence approach to sentencing in drug trafficking cases
E are the cases laid down in HKSAR v Herry Jane Yusuph [2021] E
1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024]
HKCA 150. The application of the principles and steps are
F as follows. F
G The first step is to assess the gravity of the offence and G
identify the relevant guideline band applicable to the
quantity of drugs concerned. The tariff case for the drug
H cocaine and/or heroin is set out in the case of Lau Tak Ming H
[1990] 2 HKLR 370. But for large amounts, the tariff case
authority is that of Abdullah [2009] 2 HKLRD 437. The
I tariff case for the drug ketamine is set out in the I
authority of the Secretary of Justice v Hii Siew Cheng
J [2009] 1 HKLRD 1. J
The total amount of ketamine in this case in Charge 4 is
K 6.20 grammes. In the tariff case of Hii Siew Cheng, an K
amount of between 1 gramme to 10 grammes of ketamine would
attract a term of 2 to 4 years’ imprisonment. The total
L L
cocaine and heroin in Counts 1 and 4 are as follows: 7.14
grammes of cocaine in Count 1, 516.7 grammes of cocaine
M hydrochloride and 165.26 grammes of cocaine in Count 4, M
which equals 689.1 grammes of cocaine and also 1,210 grammes
of heroin hydrochloride. Cocaine and heroin have the same
N guidelines. Therefore, I shall add the cocaine and heroin N
together and the total amounts to 1,899.1 grammes of cocaine
and heroin.
O O
In this case, there were three types of drugs involved in
P the trafficking: Cocaine, heroin and ketamine. The most P
appropriate test in sentencing the defendant is to convert
all the drugs to cocaine or heroin, which are the most
Q potent drugs and also command the same sentence. The least Q
potent drug is ketamine. The total amount of ketamine is
6.2 grammes, which would attract a sentence of about 3
R R
years’ imprisonment after trial. Converting ketamine to
that of heroin would amount to about 4 grammes. The total
S amount of heroin therefore is 1,899.1 plus 4 grammes, which S
equals 1,903.1 grammes of heroin. The arithmetical starting
point of that amount of drugs and following the tariff
T guidelines is 23 years and 9 months’ imprisonment. T
U
The second step is to assess the role and culpability of the U
defendant based on the evidence. In this case, the
CRT26/26.6.2024/AB 4 HCCC 351/2023(1)/Sentence
V V
A A
defendant was the manufacturer of the drug cocaine in his
flat, which was rented in his name. On the day in question,
B he was walking out of the premises with 50 packets of drugs B
in his pocket. It was extremely likely that at that time he
was going to deliver them to a buyer. He had a large amount
C of drugs in the flat, intending to deal with the drugs to C
others in the sense that he was directly trafficking. I am
D
told by Ms Wong that he was not the operator or financial D
controller who would make the substantial gains. He was
given instructions by a person above and he would be paid
E $15,000 to $20,000 when all of the drugs had been E
manufactured and delivered.
F I should have said earlier that the band of 1,903.1 grammes F
of heroin falls within the band of 1,200 to 4,000 grammes,
G which attracts a sentence of 23 to 26 years’ imprisonment. G
In regards to the third step, to identify where in the
H relevant band the defendant comes, given the circumstances H
of the offence and the role of the defendant, I consider
that an appropriate starting point should be one of 23 years
I and 11 months’ imprisonment. I
J The fourth step is to consider whether there are any J
aggravating features. There are a multiplicity of drugs
involved in this case, that is, cocaine, heroin
K hydrochloride and ketamine. A trafficker may be able to K
cater to a far wider market than a trafficker in only one
kind of drug and as such an enhancement of sentence of 1
L L
month’s imprisonment is warranted, making the notional
starting point 24 years’ imprisonment.
M M
The fifth step is to consider any mitigating factors. In
this very serious offence of trafficking, personal
N circumstances generally count for little and there are none N
in this case. The only significant mitigating factor is the
defendant’s plea of guilty. The defendant has pleaded
O O
guilty at the earliest opportunity and will benefit from a
one-third discount to his sentence. The notional starting
P point of 24 years’ imprisonment will therefore be reduced by P
one-third to that of 16 years’ imprisonment.
Q The defendant is charged with four offences and I must Q
sentence him separately for all four offences. I turn now
to deal with the charges.
R R
I turn now to Charge 1. Defendant had unlawfully trafficked
S in 7.14 grammes of cocaine. That amount falls in the band S
of up to 10 grammes, which warrants a sentence of between 2
to 5 years’ imprisonment. For that amount of cocaine, I
T would accordingly take 4 years’ imprisonment as the T
appropriate starting point. And after a one-third discount,
U
reduce that term to 2 years and 8 months’ imprisonment. U
CRT26/26.6.2024/AB 5 HCCC 351/2023(1)/Sentence
V V
A A
In Count 2 of wilfully obstructing a police officer, I will
take a starting point of 3 months’ imprisonment after trial.
B And giving him the one-third discount, that term should be B
reduced to 2 months’ imprisonment.
C I turn to Count 3. In that count, the defendant pleaded C
guilty to manufacturing cocaine. The leading case for
D
sentencing in manufacturing dangerous drugs and principles D
in sentencing are set out in the R v Cheung Wai Kwong and
Another [1997] HKLRD 344 and HKSAR v Cheng Chi Wai [2022] 3
E HKLRD 408. It is well-settled law and goes back to the E
decision in R v Cheung Wai Kwong and adopted in Cheng Chi
Wai that the offence of drug manufacturing is much more
F serious than trafficking in drugs and warrants a heavier F
sentence.
G G
I turn to the factors to be taken into consideration when
sentencing for manufacturing dangerous drugs. One of the
H factors is the quantity seized at a manufacturing workshop H
as that showed to some extent its size and productivity and
reflected the seriousness of the offence. In this case, the
I quantity seized was 7.14 grammes in Count 1 and 516.7 plus I
165.26 grammes in Count 4, making a total of 689.1 grammes
J of cocaine, either trafficked or to be trafficked. J
The second factor is the length of time the workshop had
K operated. It is the defendant’s case that this is the first K
and only occasion that cocaine was manufactured. There is
no evidence to show otherwise and I accept that. In the
L L
circumstances, this manufacturing was not continuous. The
charge is only on one date and I shall base the sentence
M that manufacturing was a one-off occasion. M
The third factor is to have regard to its scale and
N productivity. The manufacturing could have produced a large N
amount of drugs given the quantity found.
O O
The fourth factor is the quantity and standard of
manufacturing paraphernalia. The manufacturing
P paraphernalia was simple and basic items, but that was all P
that was needed for converting cocaine hydrochloride to
crack cocaine as is set out in the admitted Summary of
Q Facts. Q
The fifth factor is the role the defendant played. The
R R
defendant himself manufactured the drugs. He used his flat
rented in his name as the workshop or station to store and
S then manufacture the dangerous drugs ready for trafficking. S
His participation was therefore significant and had a
leading role, only role, in the manufacturing process.
T T
In the present case, the defendant had manufactured 689.1
U
grammes of cocaine. If the defendant had been trafficking U
in that amount of cocaine, the starting point after trial
CRT26/26.6.2024/AB 6 HCCC 351/2023(1)/Sentence
V V
A A
would on a mathematical calculation be 20 years and 3
months’ imprisonment. At paragraph 33 in Cheng Chi Wai, the
B Court of Appeal said and I quote: B
“Should there be information which shows the drug-
C manufacturing act is a one-off rather than a continuous C
act, a starting point slightly higher than the sentence
D
for trafficking in the same quantity of drugs may be D
appropriate.”
E Taking into account the above factors and that this offence E
is more serious than that of trafficking and a heavier
sentence is warranted, I consider a notional starting point
F of 22 years’ imprisonment to be appropriate. Giving the F
defendant a discount of one-third for his early plea of
G guilty, I reduce that term to one of 14 years and 8 months’ G
imprisonment in Count 3.
H I turn to Count 4. In relation to Count 4, it is a H
trafficking in dangerous drugs. The drugs involved are
681.96 grammes of cocaine plus the converted amount of
I ketamine, which is 4 grammes, which equals a total of 685.96 I
grammes of cocaine, plus the 1,210 grammes of heroin
J hydrochloride, amounts to a total amount trafficked of J
1,895.96 grammes of cocaine and/or heroin. The amount falls
in the band of between 1,200 to 4,000 grammes, which
K warrants a sentence of between 23 to 26 years’ imprisonment. K
For this amount, as I have calculated earlier and taking
into consideration the factors, I will take 24 years as the
L L
appropriate starting point. And after a one-third discount,
reduce that term to 16 years’ imprisonment.
M M
As stated in Cheng Chi Wai at paragraphs 53 and 55, I quote,
where that case involved trafficking in dangerous drugs and
N manufacturing in dangerous drugs: N
Charge 1 is of a different nature than the other
O O
charges. The facts show that the appellant was going
to sell the drugs after manufacturing them and it was
P extremely likely that at the time of his arrest, the P
applicant was delivering the drugs to the buyer
according to the sales arrangement. It was evident
Q that the applicant had played different roles in the Q
matter, thereby enhancing the gravity of the
appellant’s criminal acts.”
R R
At paragraph 55, the court went on to say:
S S
“Overall, it was appropriate for the trial judge to
order 1 year and 8 months after 9 years’ sentence for
T Charge 1 to be served consecutively to the remaining T
charges. It did not constitute unfairness to the
U
applicant.” U
CRT26/26.6.2024/AB 7 HCCC 351/2023(1)/Sentence
V V
A A
In sentencing, I have regard to the principle of totality.
Charge 1 and 4 of trafficking are of a different nature than
B Charge 3, manufacturing dangerous drugs. You have played B
different roles and this enhanced the gravity of your
criminal acts. In the circumstances, I order 1 year of
C Charge 3 to run consecutive to Charge 4 and the remainder of C
the terms in all charges to run concurrent to each other.
D D
The total term of imprisonment which you shall serve will
therefore be 17 years’ imprisonment.
E E
Having regard to the overall sentence I have passed as
stated in Herry Jane Yusuph and step six, I consider it
F fair, just and balanced in all the circumstances of the F
offences and you, the offender.
G G
H H
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
CRT26/26.6.2024/AB 8 HCCC 351/2023(1)/Sentence
V V