HKSAR v. Kan Kong Fai

[English translation – 英譯本]
CACC 298/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 298 OF 2008

(ON APPEAL FROM DCCC NO. 260 of 2008)

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BETWEEN

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Before: Hon Cheung and Yeung JJA in Court

Date of Hearing: 14 January 2009

Date of Judgment:  14 January 2009

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JUDGMENT

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.On 14 August 2008, the Applicant Kan Kong Fai pleaded guilty before District Judge Andrew Chan to one count of manufacturing dangerous drugs and was sentenced to 4 years’ imprisonment. He now applies for leave to appeal against sentence.

Brief facts

2.The offence took place in Room 914, Metropark Hotel Mongkok, 22 Lai Chi Kok Road, Kowloon. At about 9:30 p.m. on 14 January 2008, police officers entered and searched the room, in which the Applicant and two other persons were present. The officers seized from the room cocaine weighing 4.39 grammes in total as well as other drug manufacturing paraphernalia including an electronic scale, lighters, spoons, glass beakers, plastic cups, knives, plastic bowls, plastic bags containing soda powder, lighter refills and a wad of transparent resealable plastic bags. Traces of cocaine were found on the aforesaid paraphernalia.

3.The Applicant admitted that, having obtained cocaine from others, he would mix the drug with soda powder in a glass beaker and heat the mixture for 10 to 15 minutes. Upon cooling down, the mixture would become ‘crack cocaine’. The Applicant further said that he would package the ‘crack cocaine’ and distribute it to customers.

4.The Government Chemist opined that the manufacturing method admittedly used by the Applicant was a common way of making ‘crack cocaine’ in Hong Kong, and that the paraphernalia seized had also been used to process cocaine.

The Applicant’s background

5.The Applicant, aged 29, has 8 previous convictions, 3 of which relate to dangerous drugs, namely, conspiracy to traffic in dangerous drugs, trafficking in dangerous drugs and possessing dangerous drugs, and the others are mainly in respect of offences involving dishonesty.

The trial judge’s basis for sentence

6.The trial judge pointed out the present case involved an insignificant quantity of drugs and that, given the small scale of the manufacturing operation, the quantity of drugs produced would be limited. The judge referred to the case of HKSAR v Wong Ping Kay (CACC 495/2001) in which the Court of Appeal adopted a starting point of 10 years’ imprisonment for manufacturing 14.88 grammes of heroin, which was roughly 1.8 times of the starting point for trafficking in the same quantity of drugs.

7.The trial judge pointed out that trafficking in 4.39 grammes of cocaine should attract a starting point of 40 months’ imprisonment. The judge multiplied this by the aforesaid figure of 1.8 and arrived at a starting point of 72 months (i.e. 6 years) for the Applicant’s drug manufacturing offence. The term was reduced by one-third discount to 4 years on account of the Applicant’s guilty plea. The judge considered the starting point of 6 years appropriate after taking into account the quantity of drugs involved, the scale of operation, the Applicant’s role and his previous convictions.

Grounds of appeal

8.Ms Chow, Counsel for the Applicant, agrees that the sentence for manufacturing of dangerous drugs should be more severe than that of trafficking in the same quantity of drugs, but argues that the former should not be as much as 1.8 times of the latter. Ms Chow stresses that the defendant in Wong Ping Kay was charged with both manufacturing and trafficking and 14.88 grammes of drugs were involved. Furthermore, as the defendant had been residing at the address in question for almost one year, he had probably been involved in drug manufacturing for a longer period of time. Ms Chow emphasizes that, compared with those of the defendant in Wong Ping Kay, the Applicant’s previous convictions are not serious.

9.Ms Chow points out there are other decided cases which indicate that the starting point for drug manufacturing is only 1.6 times that for trafficking in the same quantity of drugs. She further submits that the Applicant should not be subject to a starting point which exceeds 5 years.

10.In her written submission, Ms Chow also cites the case of HKSAR v Chan Fai [2004] 3 HKLRD 465 and points out that the defendant in that case, who admitted that he would manufacture 20 kilogrammes of ketamine, was eventually sentenced to 8 years’ imprisonment, which was the same as the starting point applicable at that time to trafficking in 20 kilogrammes of ketamine.

Discussion

11.In the aforesaid case of Chan Fai, although the defendant admitted that he would manufacture 20 kilogrammes of ketamine, the police were in fact unable to find any manufactured drug. All they found were large quantities of paraphernalia and raw materials for making drugs.

12.The starting point for drug trafficking is mainly a reflection of the quantity of drugs involved. In drug manufacturing cases, the quantity of drugs seized may give an idea of the scale of the manufacturing operation but is not the sole or dominant consideration in determining the starting point.

13.In the present case, although the police seized only 4.39 grammes of cocaine, the paraphernalia and raw materials in question could be used for producing a large quantity of ‘crack cocaine’. The facts of the case showed that the process of manufacturing ‘crack cocaine’ was simple and fast.

14.Drug manufacturing comprises certain processes by which raw materials are converted into drugs ready for consumption, which are then supplied to drug addicts. Therefore, the offence of drug manufacturing is the most serious of all drug-related offences.  

15.In R v Cheung Wai Kwong & Another [1997] HKLRD 344, Chan J (as he then was) rightly pointed out that the offence of drug manufacturing was much more serious than trafficking in or possessing drugs and warranted a heavier sentence. He also emphasized that in determining the proper sentence for the offence of drug manufacturing, the factors to be considered included the quantity of drugs produced, the scale of operation, the capacity of equipment, the output of drugs at the manufacturing station, and the role played by the accused.

16.We agree that the scale of production in the present case was small and the output of drugs was not necessarily very large. However, in view of the manufacturing process involved and the quantity of soda powder found, the Applicant would have been able to manufacture a substantial quantity of drugs. Furthermore, the Applicant had played a major role in the manufacturing process and had confessed to the police officer that the manufacturing process was basically conducted by him from beginning to end.

17.Ms Chow emphasizes that when the Applicant was arrested, the room in question had been hired for only 2½ hours. However, it should not be overlooked that the use of the hotel room by the Applicant to manufacture the drugs showed that the offence was planned and that its purpose must have been to make it more difficult for the police to detect the offence. On the Applicant’s description of the drug manufacturing process, he could have repeatedly manufactured ‘crack cocaine’ in a span of 2½ hours.

18.The Applicant is not a first offender. He has many previous convictions, some of which are in respect of serious offences such as conspiracy to traffic in dangerous drugs, trafficking in dangerous drugs and possessing dangerous drugs.

19.In any event, as far as the offence of drug manufacturing is concerned, an appropriate minimum starting point is 6 years’ imprisonment irrespective of the quantity of drugs seized, in order to reflect the gravity of the offence. 

20.We reiterate what Roberts CJ expressly stated in The Queen v Wong Chun Ping & Others [1984] HKLR 247, at 257H.

We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of DD.

21.Taking into account the scale of the manufacturing operation, the quantity of drugs seized, the role played by the Applicant and his previous convictions, the starting point of 6 years adopted by the trial judge and the ultimate sentence of 4 years passed by him are not manifestly excessive. There is no room for reduction of sentence.  We dismiss the Applicant’s application for leave to appeal against sentence.

Ms Olivia Tsang, Senior Public Prosecutor, for the Respondent.

Ms Monica Chow, instructed by Wong & Co. on assignment by the Legal Aid Department, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.