HKSAR v. Lai Keung, William

HCCC 339/2018

[2019] HKCFI 2108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 339 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Defendant pleaded not guilty to three charges and was committed to the Court of First Instance for trial on 29 October 2018 by Eastern Magistracy. On 12 December 2018, the defendant was given trial dates of 17 July to 26 July 2019. On 4 July 2019, days before trial, the defendant indicated he intended to plead guilty to all three charges. There was a possibility of a Newton inquiry.

The defendant faces three charges. Charge 1 is attempting to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. That is on 27 April 2018, at Room 16, 1st Floor, Kowloon Bay Industrial Centre, 15 Wang Hoi Road, Kowloon Bay. The defendant attempted to unlawfully traffic in a dangerous drug, namely, 24.9 litres of a liquid containing 27.2 kilogrammes of Gamma-butyrolactone, known as “GBL”.

Charge 2 is trafficking in a dangerous drug, contrary to the same section on the same day at the same address. He unlawfully trafficked in a dangerous drug, namely, 970 millilitres of a liquid containing 1.06 kilogrammes of GBL.

Charge 3 is possession of a dangerous drug where at the same address on the same day, the defendant had in his possession a dangerous drug, namely, 3.57 grammes of a crystalline solid containing 3.48 grammes of methamphetamine hydrochloride and 23 millilitres of a liquid containing 0.09 grammes of a solid of methamphetamine.

The facts are straightforward. On 27 April 2018, acting on information, Customs officers examined an inbound consignment from Lithuania at the DHL Cheung Sha Wan Service Centre. It was declared to contain goods. They examined it on the premises and discovered a box containing one large plastic bottle containing the GBL of Charge 1. The consignment was seized and on the same day, a controlled delivery operation was arranged to locate the consignee, the defendant, at the consignee address at Room 16, 1st Floor, Kowloon Bay Industrial Centre. Two Customs officers delivered the consignment to Room 16 and it was signed for by the defendant. After his identity was confirmed, he was arrested and cautioned at the entrance of the premises.

Under caution, he admitted that the consignment belonged to him and that he had ordered the GBL, which was a cleaning agent, and had paid €1,311.65 for it. His premises were searched and Customs officers found the drugs of Charge 2 in a 1-litre plastic bottle which contained almost 1 litre of GBL. They also found an “Ice-bomb” or “Pipe” and four plastic ziplock bags containing the “Ice” of Charge 3.

The premises consisted of a studio with a small kitchen, bathroom and an open room with a sofa and bed. According to the observations of a Customs officer, there were many sex toys, some masks and a television mounted on the ceiling playing adult pornography. The Customs officers also found a packet of 50 small glass bottles, a bundle of ziplock bags and an electronic scale.

Defendant was arrested and cautioned again. Under caution, the defendant admitted that the bundle of plastic ziplock bags and the very small glass bottles were to be used to contain small amounts of cleaning agents as samples. The 1-litre plastic bottle of GBL had been ordered by him earlier and the four plastic ziplock bags containing “Ice” were for his own consumption. The defendant was the tenant of Room 16 and had signed a tenancy agreement from 1 April 2018.

On the first day of trial, defendant pleaded guilty. But Mr Cheng, defence counsel, anticipated a Newton hearing would be required because the defendant’s stance was that none of the GBL in question - the GBL of Charges 1 and 2 - were intended by the defendant for human consumption. He also did not agree that the Customs officer found in the only room in the flat hanging from the ceiling a metal chain with a leather belt and a TV which was screening adult pornography. He also did not agree that some personal lubricant was found in the premises.

It was clear that the facts disputing the Customs officers’ observations and findings would not affect sentence. Therefore, a Newton hearing was not required. Those facts were subsequently admitted when the Summary of Facts were read to the defendant. He confirmed that he understood and agreed the facts. He was convicted as charged on his own plea.

What the defendant intended to use the GBL for was a matter for mitigation and the defendant elected to give evidence during his mitigation. The defendant gave evidence that he had a background in commercial cleaning and wanted to start his own business offering specialised cleaning services. He had come across GBL previously and imported it with the intention of testing it as a cleaning agent for his purposes. GBL is an industrial solvent but it is also a dangerous drug in Hong Kong. The defendant knew he was importing GBL but had no idea it was a dangerous drug. He was not importing it to consume it as a dangerous drug.

After hearing the defendant’s evidence and submissions from both counsel, I found the defendant’s plea on Charges 1 and 2 equivocal. I did not accept his plea of guilty on those two charges. The defendant has had time to consider his mitigation and ultimately has now confirmed he did know GBL was a dangerous drug and withdrawn certain parts of his mitigation. Today, he has pleaded again to all three charges and agreed and amended the Summary of Facts. He admits he knowingly imported a dangerous drug for the purposes of trafficking.

The Defendant’s Background

The defendant is now 49 years old, single, a university graduate who, between 1994 and 2016, has worked for establishments such as Mandarin Oriental, Hong Kong Jockey Club, Hong Kong Disneyland, Discovery Bay Recreation Club Limited and Kai Shing Management Services Limited, to name a few. His duty in many of these establishments included cleaning operations on a large commercial scale. He was unemployed from mid-August 2016 and had an idea to set up his own cleaning services business.

The defendant’s parents are elderly and he has three siblings. He has a very supportive family; they have been in court to support him. The defendant has one previous conviction. In October 2012, he pleaded guilty to five charges of criminal damage and one charge of arson.

I have had an opportunity to read the reasons for sentence in DCCC 656/2012 and understand that the offences stemmed from a state of emotional distress when a long-term relationship ended. His partner of 10 years moved out from their home. A friend gave him some methamphetamine hydrochloride, “Ice”, to dull the pain of the trauma and he took too much, which led to a psychotic turn and those charges. Mr Cheng has said all he can say on behalf of the defendant in mitigation. I have seen many reference letters from previous employers.

Charges 1 and 2 and Expert Evidence

I have had the opportunity to read a report submitted by the prosecution for the purposes of the trial, a report by Dr Chan Chi‑keung from the Hong Kong Poison Information Centre. The defendant does not challenge his report or object to his expertise. There have only been a few cases involving GBL in the Hong Kong courts and there are no guidelines for sentencing those who traffic in GBL.

This doctor’s report sheds light on how the drug is normally consumed, its effect on humans, its addictiveness, and compares it to other dangerous drugs such as cocaine, ketamine, heroin, “Ice” and Ecstasy. He also gives his expert opinion on the daily consumption of GBL and the amount of GBL seized in this case.

According to Dr Chan, GBL is a solvent and reagent used in industrial chemistry or chemicals. It is also a solvent in cleaning products. It is a colourless, soluble liquid when put in water. It has a distinctive taste and odour but it can be masked by drinks such as soft drinks, ale or juice. GBL is a prodrug of gamma-hydroxybutyric acid, an abusive drug commonly known as “GHB” or the “date-rape drug”. After oral ingestion, GBL is rapidly absorbed and converted to GHB by the body. The effect of the drug occurs within 15 minutes of ingestion and lasts several hours.

There is no published human GBL dose effect data, so Dr Chan used the available human GHB dose effect data from volunteer studies and case reports published outside of Hong Kong. The effects following the use of GBL dose from 0.7 grammes to over 2.4 grammes in a 50-kilogramme man range from confusion, euphoria, memory loss and drowsiness to life-threatening harmful effects, including deep coma, respiratory depression, cerebral hypoxia. Other reported clinical effects from GBL use include bradycardia, hypertension, hypothermia, vomiting and respiratory depression. Salivation and vomiting can complicate the respiratory depression leading to aspiration pneumonia in comatose patients.

Dr Chan writes that the confusion and euphoria associated with GBL use increases the chance of risky behaviour and accidental injuries. The clinical effects at this dose is comparable to the euphoric and disinhibited effects of alcohol intoxication. Victims of GBL intoxication tend to suffer from anterograde amnesia, making it difficult to recall events that precipitated the recreational use and that the alleged drug has facilitated sexual assaults.

At paragraph 27 of his report, Dr Chan says when used as an abusive substance, GBL is a central nervous system depressant with clinical effects similar to that of acute alcohol intoxication and acute benzodiazepine intoxication. The clinical effects of GBL is indistinguishable from that of the “date-rape drug”. There have been reports of GBL being sold as GHB in London. Both drugs have been used in criminal settings to commit drug-facilitated sexual assaults. Both drugs can be used as the liquid form of the “date-rape drug” and because it is colourless and only a small amount is necessary to drop in a person’s drink - an unaware person - then that person is vulnerable to sexual assault or rape.

GBL can be added to drinks and a recreational dosage of around 1.13 grammes of GBL or 1 millilitre of pure liquid will create euphoria. However, an ingestion of more than 2.4 grammes will result in a deep coma and could be fatal without medical intervention. The addictiveness and abuse potential of GBL is comparable to benzodiazepine. For benzodiazepine to cause death, one has to take 50 to 100 milligrammes, meaning that an accidental overdose is not likely with that drug. Therefore, the safety margin of benzodiazepine is much higher than the safety margin of GBL.

The method of use is by oral ingestion and adding a dose to beverages for consumption. It is either taken in a single dose or in separate portions over a period of time. According to overseas reports, GBL is used specifically in recreational settings such as bars, raves and nightclubs. There is a high use of GBL or GHB amongst homosexual men. Among respondents sampled in gay or homosexual bars in Amsterdam, the prevalence for GHB or GBL use rose to 17.5 percent compared to less than 5 percent among respondents in the more mainstream or student pubs or bars.

Chronic users of GBL can develop physical dependence and tolerance. There will be withdrawal symptoms if there is an abrupt cessation of GBL usage, often indistinguishable from alcohol withdrawal. It is a dangerous drug in Hong Kong but its use is considered uncommon here for the time being.

In Dr Chan’s opinion, the usage pattern of GBL is similar to that of alcohol and benzodiazepine. From what he says in his report, it is clear that GBL has a narrow safety margin between a recreational dose and a poisoning dose. Moreover, it is a drug that can potentially facilitate offenders to commit sexual offences against unsuspecting victims. If an offender uses too much to incapacitate a victim, then it could be potentially lethal or fatal without medical care. However, there is no evidence before me that the use of GBL to facilitate sexual abuse is prevalent in Hong Kong at present, or that the defendant had such an intention or predilection.

Based on the average daily dose of 1.13 gramme in a normal GBL user, Dr Chan calculated that the 28.26 kilogrammes of GBL seized in this case represents a dose for 25,008 days’ usage. Therefore, I have no doubt it was either for sale or for sharing with others, not just self-use only.

I have been referred to two cases for my reference: HKSAR v Lam Chi Tak, HCCC 76/2018 and HKSAR v Jin Bin and Lam Ka Ho, HCCC 223/2018 where Madam Justice Barnes, in great detail, considered appropriate sentencing guidelines for trafficking in GBL. She considered the same or similar report by Dr Chan and submissions from counsel in her cases. She ultimately considered the appropriate starting point for GBL to be 50 percent over the appropriate starting point for benzodiazepine.

She gave full and cogent reasons for her decisions. She considered the potential harm GBL can cause; serious social harm. GBL can be used easily to facilitate sexual offences. Victims could be easy prey because GBL has no distinctive taste or odour; moreover, only a small amount added to a drink will be enough. Counsel in her case suggested the starting point for cannabis would be appropriate for GBL, but she took the view that its physical harm, dependence and social harm made it almost comparable to benzodiazepine but more serious; hence, her starting point for GBL to be 50 percent over the appropriate starting point for benzodiazepine.

Madam Justice Barnes considered the case of R v Gary Orton, HCMA 225/1997 where Gall J considered the tariff for Methaqualone set down in AG v Chan Chi Man [1987] HKLR 221 and he held that for Diazepam, which is a form of benzodiazepine, the appropriate starting point should be about two-thirds of that appropriate for Methaqualone. I quote him; he said:

“I would have thought that a sentence of about two‑thirds of that appropriate for a quantity of Methaqualone would be right in the circumstances, for the same amount of Diazepam.”

In Chan Chi Man, the last sentence guidelines for Methaqualone was: if over 9,000 grammes trafficked, a 6‑year imprisonment and upwards would be appropriate. Here, the quantity is well over 9,000 grammes. If one were to adopt the approach of both judges I have referred to, then I would need to first consider what starting point, what would be appropriate, where we have 28.2 kilogrammes, or 28,260 grammes. That is triple the last amount considered in the guidelines of Chan Chi Man. I should consider whether to adjust the sentence upwards mathematically, proportionately increased in quantity. However, I suspect that would lead an excessive starting point. In fact, when the Court of Appeal in HKSAR v Abdallah Anwar Abbas, CACC 304/2008 dealt with heroin traffickers who trafficked in amounts above 600 grammes, that is amounts above those considered in the R v Lau Tak Ming, they did not include a sentence upwards mathematically, proportionately increased in quantity.

Mr Cheng urges me to consider the sentence imposed in Chan Chi Man. The defendant in that appeal was convicted of possession of 33,576.5 grammes of Methaqualone for the purposes of unlawful trafficking. He was sentenced to 2 years’ imprisonment, which was a sentence the attorney general sought to review on the ground that is was manifestly inadequate. The Court of Appeal agreed. The Court of Appeal did consider that the guidelines then only referred to a tariff for 9,000 grammes and above. They did note that at that time in 1987, there were few cases involving Methaqualone but there had been a sharp increase in the import and consumption of that drug. They held a proper sentence for possession of 33 kilogrammes of that drug, in part or whole, would be 7 to 10 years. They would have considered a 7-year term of imprisonment if there had not been a review. Mr Cheng urges me to consider a starting point between 6 and 7 years for the amount of GBL here.

I have considered the facts, and having read the authorities referred to, considered submissions, and Dr Chan’s report, I find a starting point of 7 years appropriate here. If the starting point in the region of 7 years is appropriate for over 27,000 grammes and if I were to follow the approach of Madam Justice Barnes, then I would reduce 7 years’ starting point by one-third, as if it were benzodiazepine, but increased it by 50 percent to reflect possible harm of GBL, this particular drug. This would be a sentence of 50 percent higher than that for trafficking benzodiazepine. Any starting point will be subject to enhancement for any aggravating factors such as, when an international element is involved, as it is here.

Mr Cheng, for the defendant, has addressed me on this factor, in that he pointed out how easy it was to buy GBL on the Internet and have it shipped to Hong Kong. I will increase the ultimate starting point by 6 months to reflect the aggravating factor of an international element. The starting point of 7 years will be increased to 7 years and 6 months with that aggravating factor taken into account. The defendant is not entitled to a full discount because he did not plead guilty at the earliest opportunity.

According to the Court of Appeal in HKSAR v Ngo Van Nam, CACC 418/2014, at paragraph 214, the Court of Appeal suggests that where there is an indication of a plea of guilty after the fixing of trial dates but before the first day of trial, the court can consider a discount of between 20 to 25 percent. The judge should have regard to the time at which the indication was given and/or other relevant circumstances.

I have considered all mitigation put forward, the facts of the case, and in particular, defendant’s background. I have taken into account there is no evidence that he intended to use this drug for criminal purposes, such as targeting unsuspecting victims and committing sexually‑related offences. I have taken into account when the defendant indicated the plea. I will reduce the starting point of 7 years and 6 months by 22 months, which is just slightly under 25 percent, and sentence the defendant to 5 years and 8 months for charges 1 and 2. Having considered the facts of charges 1 and 2, and since the drugs of charges 1 and 2 are the same, I have added them together and taken a global approach to the sentence for both charges. Therefore, both sentences will be served concurrently.

The possession of dangerous drugs charge, charge 3: There is no tariff for possession of drugs but probably the best starting point in this regard is HKSAR v Mok Cho Tik [2001] 1 HKC 261. In that case, Court of Appeal was asked to consider a case of possession of 15.7 grammes of “Ice”. In that case, Stock J observed, I quote:

“Starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. But that is not the be all and end all of the appropriate starting point.”

He added, and I quote:

“Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

The court adopted the starting point of 18 months’ imprisonment which was to be enhanced by 12 months for the risk factor inherent in the possession of such a quantity of dangerous drugs. In HKSAR v Singh, CACC 96/2006, the Court of Appeal was faced with sentencing an addict in possession of 6.82 grammes of “Ice”. The court considered that a starting point of 15 months was appropriate and enhanced the sentence by 12 months for the latent risk factor.

The court have recognised that in the context of possession of dangerous drugs, there is a risk of those drugs being disseminated beyond the user. There is this latent risk. This enhancement is not made for a significant quantity of drugs; it is also not to be employed as a form of disguise to sentence the defendant for trafficking in the drug, subject of the charge. I have referred myself to HKSAR v Minney [2011] 3 HKLRD 556. In that authority, there was a challenge to the validity of the latent risk factor as a sentencing consideration; but it was rejected by the Court of Final Appeal.

In HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, the Court of Appeal held there should be a three-step approach adopted when determining an appropriate sentence for an offender who was a bona fide user and convicted of the simple possession of a dangerous drug. The first step is to identify the starting point appropriate for the offence between 1 year and 18 months’ imprisonment. The second stage of that process is the assessment of the latent risk to arrive at a total sentence. The last step is to adjust the total sentence taking into account mitigating factors such as a guilty plea. This plea did not come until days before the commencement of trial. Therefore, as I have said, the defendant should only be entitled to a discount of between 20 to 25 percent.

For this amount of “Ice”, I find a 12-month term of imprisonment an appropriate starting point. I do find there to be a latent risk and I would enhance that by 6 months to take into account that latent risk. Therefore, the starting point for charge 3 is 18 months’ imprisonment. I would apply a discount of just under 25 percent to that starting point of 18 months for charge 3 which will reduce the sentence to one of 14 months - 1 year and 2 months.

Mr Lai, please stand up. I do take into account the totality principle and the fact that the drugs for charge 3 were found in the premises at the same time as the drugs for charge 2, and for the delivery of the drugs of charge 1. I will order that this sentence for charge 3 be served concurrently to the sentences for charges 1 and 2. Therefore, the total sentence for charges 1, 2 and 3 is 5 years and 8 months’ imprisonment. Can I ask if you understand?

ACCUSED: Yes, I understand.