HKSAR v. KONG YUEN PING

HCCC 153/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 153 OF 2017

_______________

_______________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleaded guilty in the Magistracy to two drug offences, one of trafficking in a dangerous drug, and the other of manufacturing a dangerous drug. He was accordingly committed to the Court of First Instance for sentence.

2.  On 20 September 2016 in the early afternoon, customs officers stopped the defendant outside Block 6 of Forum Court, Fanling Tower Centre, and searched his shoulder bag.  They found three keys inside which he indicated was for the premises at Room D on the 3^rd floor of Block 6.  The officers produced a search warrant for the premises to the defendant who then led them to Room D.  The defendant was the tenant of the premises.  The officers gained entry to Room D by using two of the keys found on the defendant.  Inside one of the bedrooms, they found on several tables the following items:

(1) 1 electronic scale containing 0.01 gramme of a solid containing cocaine.

(2) 1 measuring cylinder containing 0.01 gramme of a solid containing cocaine.

(3) 5 beakers and 2 spoons containing a total of 1.23 grammes of a solid containing 0.29 gramme of cocaine.

(4) 1 plastic container containing 784 grammes of a powder containing sodium bicarbonate, which is not a dangerous drug.

(5) 1 metal sieve containing 0.18 gramme of a solid containing 0.14 gramme of cocaine.

(6) 1 metal pot with a lid, 1 metal rack and 1 dish containing a total of 4.92 litres of a liquid containing traces of caffeine.

(7) 1 induction cooker containing traces of cocaine.

3.  Upon this discovery, the defendant was arrested and cautioned, and when asked about the items inside the bedroom he said “for cooking stuff”.  When he was asked what he meant by “cooking stuff”, he said “cook the coke, from raw to done.”  The officers also seized and examined the air conditioning filter in the room and it was subsequently established that it contained traces of cocaine. 

4.  The defendant indicated that he had “coke” in a cabinet which the officers opened and found the following items:

(1) 1 plastic bag containing 492 grammes of a solid containing 338 grammes of cocaine hydrochloride.

(2) 1 plastic bag containing 7.64 grammes of a solid containing 5.14 grammes of cocaine.

(3) 1 plastic bag containing 1 plastic bag inside which was 1 plastic bag containing 191 grammes of a solid containing 118 grammes of cocaine.

(4) 1 plastic box containing 165 grammes of a solid containing caffeine.

5.  The defendant was again cautioned and asked about the plastic bags that had been found.  He said “the bag white in colour is raw cocaine.  The small bag and the bag black in colour are cooked cocaine. The bag dark brown in colour is magu.”  When asked how he cooked the raw cocaine, he said “add water into raw cocaine.  Add baking powder and heat it.” He admitted that he would distribute the “cooked stuff” and for each delivery he would get $300. 

6.  Dr Chan Tai-wai, a forensic scientist, explained that the manufacture of cocaine involves the following process.  Cocaine, also referred to as cocaine base, is the main psychoactive substance extracted from coca leaves.  It is generally in the form of hydrochloride salt.  Cocaine base can be made from cocaine hydrochloride through a conversion process to make it suitable for smoking.  Typically, cocaine hydrochloride and sodium bicarbonate (baking soda), in a suitable proportion, are mixed in a container.  Water is added to dissolve the mixture which is then heated to speed up the chemical reaction between the two substances, producing cocaine base.  The cocaine base is in the form of lumps which is commonly referred to as “crack”.  Cocaine hydrochloride is usually taken by snorting or by injection while cocaine base or crack is smoked. 

7.  Dr Chan has examined the items seized from Room D and is of the opinion that:

“(1) The cocaine hydrochloride and sodium bicarbonate seized from Room D could be the starting materials for the preparation of cocaine base.

(2) The cocaine seized from Room D could be the product of the abovementioned drug manufacturing process.

(3) Paraphernalia found at Room D including the electronic scale, the measuring cylinder, the beakers, the spoons, the metal sieve and the induction cooker were found to contain traces of cocaine. These findings were consistent with them having been used in handling cocaine.

(4) The air conditioner filter was also found to contain traces of cocaine, which suggested that cocaine could have been handled at Room D.

(5) The chemicals and paraphernalia seized from Room D were items commonly associated with the process of making cocaine base (i.e. crack) as mentioned above and such process had taken place at Room D.”

8.  The total quantity of dangerous drugs seized was 200.07 grammes of a solid containing 123.57 grammes of cocaine and 492 grammes of a solid containing 338 grammes of cocaine hydrochloride.  The estimated retail value of the drugs at the time of the offence was HK$768,889.77.

9.  The defendant is 53 years of age.  He was born in mainland China and completed lower secondary school education there.  He came to Hong Kong in 1977 and worked as a construction worker until 1999 when he became unemployed.  Since then, it appears he spends some time in mainland China.  He has written to the Court and has expressed his remorse and regret for what he has done.  He has also indicated to me that he has registered as an organ donor in the hope of helping others in the future.  He asked that he be treated leniently.  

10.  Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 apply to cocaine.  This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342.  For the purpose of sentencing, I will treat cocaine and cocaine hydrochloride as the same narcotic when applying the relevant sentencing tariff.  The combined narcotic content was 462 grammes.  I will deal with the trafficking offence first. 

11.  According to the sentencing guidelines for the quantity of narcotic content involved of 462 grammes, the defendant is in the band of 400 to 600 grammes where the guideline starting point for traffickers after trial, subject to any enhancement, is 15 to 20 years’ imprisonment.  I will therefore adopt a starting point of 16 years and 6 months’ imprisonment. The defendant has pleaded guilty at the earliest opportunity and is therefore entitled to a full one third discount which will therefore reduce his sentence to 11 years’ imprisonment.

12.  I now turn to deal with the manufacturing offence.  The manufacturing of dangerous drugs is a very grievous offence and deserving of severe punishment.  It is considered, rightly so, more serious than trafficking in dangerous drugs.  Factors to be taken into account when determining an appropriate sentence for manufacturing of dangerous drugs include the nature of the drug being manufactured, the scale and output of the operation, the capacity of the equipment to manufacture the drug and the role played by the defendant in the manufacturing operation.  See R v Cheung Wai Kwong & Anor [1997] HKLRD 344.  Clearly any drugs that have been manufactured and found at the time of discovery of the manufacturing operation are intended for supply and distribution, and so they therefore will normally be dealt with by way of a trafficking offence.  See HKSAR v Kan Kong Fai [2009] 3 HKLRD 582.

13.  Mr Bernard Yuen, counsel for the defendant, has urged me to sentence the defendant in relation to the two counts to which he has pleaded guilty by ordering that the sentences on each be served concurrently.  He has drawn my attention to three cases, HKSAR v Ip Yuet Ho, CACC 455/2007, 4 July 2008, unreported; HKSAR v Lo Kwong Yin, CACC 223/2008, 5 October 2012, unreported; and HKSAR v X, CACC 109/2011, 8 February 2012, unreported.  In each case, the sentences imposed on manufacturing and trafficking offences were ordered to be served concurrently. None of the cases provides any statement of principle, and clearly the sentences that were imposed turned on the particular facts of the case.  Each case will be different and the question of sentence will be a matter of applying the relevant principles to the particular facts of the case in question.

14.  From the nature and scale of the operation in the present case, the defendant had been manufacturing crack cocaine in considerable quantities and capable of being done on a regular basis.  This is evident from the range of paraphernalia and materials that were uncovered at the defendant’s premises as well as traces of cocaine that was found in various items, including the air conditioning unit.  Whilst it was not a sophisticated operation, the scale of production was significant and was capable of manufacturing drugs on a constant basis.  It appears this manufacturing station was controlled and operated by the defendant and his culpability is therefore high.  I will adopt a starting point of 15 years’ imprisonment which I will reduced by one third for the defendant’s guilty plea to 10 years’ imprisonment.

15.  Taking into account the totality principle, I would order that 3 years of the sentence on the manufacturing offence run consecutively to the sentence on the trafficking offence, thus resulting in a sentence that the defendant is to serve of 14 years’ imprisonment.