Attorney General v. Ching Kwok Hung

CAAR000015/1990

IN THE COURT OF APPEAL

1990, No. 15

Application for Review

BETWEEN

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Coram: Silke, V.-P., Macdougall, J.A. & Bewley, J.

Date of Hearing: 5 March 1991

Date of Judgment: 7 May 1991

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JUDGMENT

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Silke, V.-P.:

1. On 24th September 1990 two persons appeared separately before Sears, J. for trial. We are presently concerned with one of them, Ching Kwok Hung. He had been indicted, together with a Lai Shuk Yin, on a single count of possession of dangerous drugs for the purpose of unlawful trafficking. The particulars of the offence alleged that on 23rd September 1989 inside Flat H, 13/F., Block 7, Tuen Mun Town Plaza, Tuen Mun, New Territories they had in their possession dangerous drugs namely 5,989 grammes of damp solid containing 5,941 grammes of methamphetamine hydrochloride for the purpose of unlawful trafficking. We shall refer to the substance by its colloquial name "ICE" from now on.

2. Upon Ching's plea of guilty to that count no evidence was offered against Lai and she was discharged. Upon his plea Ching was sentenced to a period of 7 years' imprisonment.

3. By leave granted on 11th October 1990, the Attorney General seeks, under the provisions of s.81A of the Criminal Procedure Ordinance Cap. 221, the Review by this court of that sentence on the basis that it is manifestly inadequate or wrong in principle or both. The further reason why the Attorney General has sought a Review is that this substance is an unusual one and heretofore there have been no sentencing guidelines directly related to it.

4. The facts, as far as they are relevant, are, briefly, that on 22nd December 1989 at about 7:00 p.m. the police laid an ambush outside the premises particularised. At about 11:37 p.m. Ching and Lai, who were husband and wife, were seen approaching the front door of the flat. Ching had a bunch of keys in his hand. They were stopped by the police. Ching admitted he lived in the premises and the police seized his keys and with them opened the iron grille and the wooden door to the premises. Upon entry they searched it and in a wardrobe inside the baby's bedroom they discovered a concealed compartment covered by three bags, those bags contained 7 transparent bags which in turned contained the drugs.

5. The trial judge was very conscious of the fact that this was one of the few cases relating to ICE to come before the courts. Evidence was called before him as to the nature of the drug, its use and its prevalence. The only previous large seizure in Hong Kong had been in 1983. That case concerned 8,000 grammes and a sentence of 7 years had been imposed. Having heard evidence from Chief Inspector Kruger Young, from Dr. Leung Sai Leung, a Government Chemist attached to the Forensic Division of the Government Laboratory of the Hong Kong Government, and having considered the submissions in mitigation - which included submissions that the applicant had given assistance to the police - made on behalf of Ching by Mr. Peter Nguyen and the similar mitigation by Mr. Hampton on behalf of the other separate accused with whom we are not concerned, the judge passed the sentence he did. In so doing he expressed the view that his task in a case such as this was to protect the public; that he thought sentencing for ICE should be equated or "closely equated" with that of heroin; and that any sentence passed should be such as to deter people from trafficking in ICE. He was further of the view that it would be inappropriate for a judge at first instance to set down sentencing guidelines for this drug but that those who trafficked in it should receive very substantial sentences of imprisonment. He considered the general heroin guidelines, the distinction between heroin and amphetamines and the previous methamphetamine sentences. He thought that it might well be a matter for the Court of Appeal to decide what the tariff for trafficking in ICE should be.

6. He considered that a period of 10 years' imprisonment would have been an appropriate starting point but, given that this was the first time detailed evidence had been produced to a court in relation to ICE, that it would be unfair for him to pass a sentence of that quantum. He thought 8 years would be a proper starting point before making allowance for the plea of guilty and the possible assistance Ching had given to the police.

7. In addition to the transcript of the evidence which was called before Sears, J. we have had the benefit of submissions to us based first: upon a document, supplied by the American Drugs Enforcement Agency, entitled "ICE: Crystal Methamphetamine" dated September 1989, second: on a special report on ICE prepared by the United States Drugs Enforcement, Administration Office of Intelligence, Strategic Section, Domestic Unit in October 1989, and, third, on an article in the news magazine "Newsweek" of 27th November 1989. Mr. Macrae who, on the instructions of the Director of Legal Aid, appeared for Ching, does not seek to challenge a great deal of that which has been drawn to our attention by Mr. Cross who, with Mr. Saw, appeared for the Attorney General. Indeed he confessed that there were times when he found his role a somewhat difficult one taking on the appearance of that of an amicus curiae. His main concern, and Mr. Cross acknowledged this had substance, was to ensure that this court, if it did see fit to lay down guidelines regarding possession of ICE for trafficking, should not inflict upon the respondent these new sentencing guidelines. He cites in support of this the line taken by this court in The Queen v. Cheng Yeung [1989] 2 HKLR 258. We would say at the outset that we are minded to adopt that course.

8. As regards existing sentences relating to ICE there was little, if any, assistance coming from them. In addition to the 7 years' imprisonment imposed in High Court Criminal Case No. 87 of 1983, there was also one case, in that same year, in the District Court which concerned 6,000 grammes of the drugs and in which a sentence of 21 months was imposed.

9. Because there is an affinity between ICE and ephedrine our attention has been drawn to a decision of this court in Application Review No. 21 of 1976, The Attorney General v. Lee Chung Leung. There, where the respondent had pleaded guilty to one charge in the magistrates court of being in possession of a Part I poison - ephedrine hydrochloride - and had been sentenced to a fine of $1,000 or 6 months' imprisonment in default, the court on Review felt that the trial magistrate had not been placed in the position of knowing the full use of ephedrine. Little or none was made in Hong Kong and very little was used legitimately in Hong Kong, but there was a substantial illegal market, it being used as a stimulant. It went on that, had he been aware of all this, an immediate custodial sentence would - and should - have been passed.

10. We refer to this simply because the evidence and submissions before us show that ICE is made from ephedrine as a manufactured synthetic drug. It is either 98% or 100% pure or it is fake. Ephedrine is far more readily available in Mainland China than it is in Hong Kong. This allows the manufacture of ICE to take place there.

11. Chief Inspector Kruger Young, who is known to these courts as an officer attached to the Narcotics Bureau and who has been called on occasions to give evidence generally in relation to drugs, their use and abuse was disinclined, because of the then lack of a market in Hong Kong for ICE, to give any indication of value. It is however a drug which is causing considerable problems in other countries, in particular in the United States of America. The fact that there is little or no evidence of its general use in Hong Kong, evidence which normally stems from the number of seizures made, does not mean that this court should not at least attempt, by stressing its serious nature, to provide guidelines to deter those who would seek to deal in it. We respectfully adopt and follow the line taken by Cons, J.A. (as he then was) in The Attorney General v. Leung Pang Chiu [1986] HKLR 608 where he said:

"It is better to eradicate a bad habit before rather than after it has taken a firm hold."

12. ICE has made a start in this Territory. We should attempt to nip that process in the bud.

13. What evidence there is shows that in 1989 there were two seizures of the drug, this case and one other. It was the Chief Inspector's opinion that these drugs were destined for outside Hong Kong. In 1990, there had been 16 seizures, all of relatively small amounts and thought to be for personal consumption.

14. The name "ICE" stems from the crystalline form of the drug which is one easily dissolved in liquid and, on reconstitution, will revert to its almost pure form. This, of course, makes its detection difficult. ICE can be abused by taking it orally, diluting in liquid and drinking it, by smoking it and by sniffing it in powder form. It has a similarity to crack-cocaine, which is the chief form of cocaine in rock form used in the United States. Informed opinion is that the prevalent habit of smoking crack-cocaine induced more people to use ICE. One smokes ICE by heating the crystal and inhaling its fumes. This is done usually through a glass tube or through a form of "hookah" inhaling the drug through the liquid to cool down the smoke. If the "hookah" method is used the liquid in the "hookah" can be flavoured so that the drug itself becomes flavoured.

15. One-tenth of a gramme of ICE without reuse would be sufficient for three to four of what in the vernacular are called "hits". An ICE addict needs far less of the substance than does a heroin addict. ICE can be used and reused. Its effect lasts between 2 to 12 hours with the average being somewhere in the middle of that period. This contrasted with the "high" obtained from crack-cocaine which would last for about 20 to 40 minutes.

16. Methamphetamine is an analogue of amphetamine, a stimulant which effects the central nervous system by accelerating its activities. It is perhaps the most strongly charged of the amphetamine group. Its effect is very rapid, because it is extremely volatile and is believed to be even more intense than that of crack-cocaine - (the Special Report; United States Department of Justice Drug Enforcement Administration; Office of Intelligence October 1989.)

17. Methamphetamine exists in two isomeric forms, the d-form and the 1-form, with the d-form, the more virulent, forming the normal seizure as here. Dr. Leung was of the view that, on the basis of use and reuse, 10 to 15 "hits" could be obtained from one gramme. It was also his view - and this is echoed in the American publications to which we have been referred - that ICE is more addictive than heroin, a user can be "hooked" by a first time try.

18. It is difficult to draw parallels between heroin and ICE, but ICE is one of the most powerful stimulants known. Dr. Leung rated it as "one of the most potent stimulants that is available and highly addictive as well". Using the layman's terminology of soft, hard or semi-hard drugs - terminology which has been used in these courts in the process of laying down sentencing guidelines applicable to the differing kinds of drugs (see The Attorney General v. Leung Pang Chiu [1986] HKLR 608) - Dr. Leung was of the view that if heroin is rated as the No.1 hard drug then methamphetamine would be in the top three. He called it a semi-hard drug.

19. Addicts - and again there is reference to this in the American publications - achieve anti-social behaviour which includes violence. Users feel an intense wave of physical and psychological exhilaration - (the American Drug Enforcement Agency: ICE: Crystal Methamphetamine September 1989). It tends to keep the user awake and alert and provides temporary mood elevation. Its continued use causes the body to deplete its stored energy. This lack of sleep or rest prevents the replenishment of reserves. Insomnia is usually followed by sleeping for long periods of time. The drug overtaxes the body and causes the body to, in effect, burn itself up. Users commonly have vitamin and mineral deficiencies. There is lowered resistance to disease and prolonged use will cause damage to the organs particularly the lungs, the liver and the kidneys. Continued use causes a heavy degree of psychological dependence which in turn can lead to a psychotic state, insomnia, anxiety, depression and fatigue. Toxic psychosis, similar to paranoid schizophrenia and delusional states, can result from long term, or heavy short term, use. The paranoid disorders associated with it, unlike those associated with the use of cocaine, may persist for days or weeks and at times even longer. Prolonged use can create tolerance resulting in the abuser having to resort to heavier dosages. While there is no physical discomfort in withdrawal, nevertheless withdrawal can involve acute depression and fatigue with the depression reaching critical proportions. The progressive toxic effects of amphetamine abuse may lead to death or there can be a rapid deterioration of physical and psychological health. It is cheaper to produce than cocaine but, in the United States, sells for more. It is, of course, easier to produce because it is entirely synthetic.

20. It was first synthesized by a Japanese chemist in 1919 and became prevalent in Japan in post world War II. It is thought that, today, there are in the region of 400,000 addicts in Japan, more users than for any other hard or semi-hard drug. It is in use in Korea, Taiwan and the Philippines. It has spread to Hawaii since the mid-80's and from there to the continental United States.

21. As we have indicated, Mr. Macrae takes little issue with anything that we have above set out. We are persuaded that ICE is a drug to be taken very seriously indeed. In ways it is more deleterious to its abusers, and to society in general, than is heroin. In our judgment guidelines should emerge now before ICE becomes prevalent in Hong Kong in order to deter both those who would seek to use it and those who would seek to exploit the abuser.

22. We also accept, as Cons, J.A. said in Leung Pang Chiu:

"If there is a scientific or medical criterion for defining drugs as either hard or soft our attention has not been drawn to it. Possibly there is in fact no strict division as such, but something more in the nature of a sliding scale."

23. In our judgment, in that sliding scale, because of its highly addictive nature, its ease of manufacture and its intense effect, ICE comes in at the same level, if not slightly above, heroin.

24. There are difficulties, as Mr. Cross has said, in applying the Chan Chi Ming: [1979] HKLR 491: or the Lau Tak Ming: [1990] 2 HKLR 370: tariffs to ICE. The obvious one is that ICE is pure at all times, it is not cut or reduced in potency for sale. We think the best course for us to adopt is to consider the guidelines in Lau Tak Ming and to adapt them to the quantum of sentence which we think appropriate for ICE, bearing in mind Dr. Leung's evidence that one gramme, used and reused as it can be, could provide "10 to 15 hits". Mr. Cross suggests that we apply a multiplier of three to the Lau Tak Ming guidelines. It is always difficult to apply a strict mathematical approach in this type of guideline. We think that we should take a more global view. We would therefore indicate the following tariffs, to be imposed after trial, for the possession for unlawful trafficking or trafficking in methamphetamine hydrochloride:

25. By upwards we mean, as was indicated in Lau Tak Ming, beyond any cut off sentence, but bearing in mind the dangers of a mathematical progression causing injustice. In coming to this tariff we have in mind the maximum penalty is life imprisonment.

26. In considering the appropriate sentence, a sentencing judge can justifiably give allowance for a plea of guilty, assistance to the police, co-operation with them, the giving of evidence against other drug traffickers whether for this drug or otherwise, clear records and any matters personal to a prisoner.

27. Generally it would be proper for trial courts to bear in mind that the amounts required by the personal abuser, as opposed to the trafficker, are considerably smaller in the case of ICE than they are in the case of heroin.

28. As we indicated at the start of this judgment Mr. Macrae's main argument was that since this is a new approach to sentencing it should not operate to the disadvantage of the respondent - a proposition which Mr. Cross quite rightly accepts: (see Cheng Yeung). While in the light of the fuller information now available to us - in contrast with that available to the trial judge - in our judgment the sentence was manifestly inadequate. Nevertheless, bearing in mind what that which we have just said and that which was decided in The Attorney General v. Chan Tak Ming and Another [1989] 2 HKLR 428 we do not think that an Order is required in this case. This will have the effect of, yet again, preventing Mr. Cross advancing his very interesting submissions, which we have seen in draft, as to the principles applicable to the giving of discount upon review. As we have said before, and may well say again, there will be opportunities in the future for those arguments to be presented to us.

Representation:

I.G. Cross, Esq., Q.C. & D.G. Saw, Esq. for Crown/Applicant Andrew Macrae (D.L.A.) for Respondent