HKSAR v. Kan Ka Long

DCCC 901/2020

[2021] HKDC 1230

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 901 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in 19.6 grammes of a solid containing 14.9 grammes of cocaine and 1.37 grammes of a crystalline solid containing 1.36 grammes of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in the amended summary of facts admitted by the defendant today.  In summary at around 10:43 p.m. on 6 March 2020 police officers entered Room 710 of the Silka Tsuen Wan Hotel. 

3.The defendant and a female Ms Lo were found inside the room which had been booked in the defendant’s name. 

4.The police searched the room and found the cocaine inside a safe together with two electronic scales, four transparent re-sealable plastic bags containing a total of nine hundred and sixty-seven re-sealable plastic bags, one brown recycle bag containing three transparent re-sealable plastic bags, a glass tube, a plastic straw, two pieces of metal gauze and a box containing three lighters and five batteries. 

5.On the table the police found the ice in a grey messenger bag and two glass tubes, three lighters, an ashtray and a key card[2]. In the left drawer under the table the police found another electronic scale.

6.Under caution and in a video recorded interview the defendant claimed the cocaine and the ice were for his own consumption.

7.The estimated street value of the dangerous drugs was around $26,850.

Mitigation

8.In passing sentence, I have carefully considered the written and oral submissions of Mr Sadhwani, including that the defendant is 29, single and has his own pest control business[3].

9.I take into account the defendant has no criminal record. 

10.The defendant says that all the ice was for his own consumption[4].  The proper plea to have entered should therefore have been not guilty to trafficking in ice[5]. 

11.Taking into account the quantity of ice; that the ice was found together with apparatus suitable for taking ice and found to have traces of ice and that the urine sample collected four days after arrest on admission to Lai Chi Kok Reception Centre was positive for amphetamine, I am prepared to accept that the ice may have been for the defendant’s own consumption.

Guidelines

12.The courts have equated for sentencing purposes cocaine with heroin[6].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[7].  The starting point after trial where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years.  On a purely arithmetical approach a starting point of just over 5 years and 4 months’ imprisonment is appropriate for trafficking in 14.9 grammes of cocaine.

Own use

13.The defendant also claims that part of the cocaine was for his own consumption.  Mr Sadhwani is instructed that 2-3 grammes of the cocaine was for self-consumption, the defendant being an occasional consumer of cocaine[8].  In court Mr Sadhwani informs the court that the traces of cocaine found in the room were as a result of someone else taking cocaine and that he only intended to take some of the cocaine. 

14.The urine test taken four days after the defendant’s arrest on his admission to Lai Chi Kok Reception Centre being negative for cocaine, as indicated in court, I do not accept the assertion that part of the cocaine was for the defendant’s own consumption.  Mr Sadhwani having taken instructions from the defendant confirms that the defendant does not wish to give evidence in support of this claim.

Ice

15.Where one of the drugs is wholly for own use the approach to be taken is that found in HKSAR v To Chu Kong [9].  Had a charge of possession of ice been preferred, absent a recommendation for treatment in the DATC, a starting point of not less than 12 months would have been appropriate for possession of 1.36 grammes of ice[10].

16.To enhance the starting point for the trafficking by 12 months would however in my view be excessive.   Adopting a starting point of 5 years and 4 months’ imprisonment for trafficking in the cocaine, I am satisfied that 2 months is to be added making a starting point of 5 years and 6 months’ imprisonment. 

17.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 8 months’ imprisonment.