HKSAR v. Chan Leslie

DCCC 462/2019

[2019] HKDC 1530

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 462 OF 2019

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 4 charges as follows:

(1) Charge 1: Attempting to traffic in a dangerous drug, i.e., 5,055 ml of a liquid containing 5,587 grammes of gamma-butyrolactone (“GBL”);

(2) Charge 3: Possession of Part I Poison, i.e., 60 tablets, containing sildenafil;

(3) Charge 4: Trafficking in a dangerous drug, i.e., 2,150 ml of a liquid containing 2,310.9 grammes of GBL;

(4) Charge 5: Possession of Part I Poison, i.e., 349 tablets containing sildenafil and 161 grammes of a liquid containing sildenafil.

Facts for Charge 1 : Attempted Trafficking in a Dangerous Drug

2.On 30 May 2018, the Customs and Excise officers intercepted at HK International Airport an inbound parcel from Lithuania.  The parcel purportedly contained “wood stripper”.  The parcel was opened for examination.  C&E officers found in the parcel a total of 6 bottles containing a total of 5,055ml of a liquid containing 5,587 grammes of gamma-butyrolactone (“GBL”).  The Defendant was the named consignee of the parcel.

3.On the same day, a C&E officer then disguised as an UPS deliveryman, and delivered the parcel to Ground Floor, Hang Seng 113 Building, No.113 Argyle Street, Mongkok, Kowloon, in Hong Kong (“the Lobby”). The Defendant showed up at the Lobby and produced his HKID card for verification.  He confirmed that he was the consignee of the parcel.  As soon as he signed on the receipt, he was arrested by the C&E officers.  Under caution, he admitted that the parcel contained “G water” that he ordered, and he intended to sell the “G water” little by little at HK$800 per 100ml.

Facts for Charge 3 : Possession of Part I Poison

4.Later on the same day, the officers escorted the Defendant to his office at 15^th Floor, Hang Seng 113 Building, No.113 Argyle Street, Mongkok, Kowloon, in Hong Kong (“the Office”), and that was the consignee address of the parcel.  Upon search, the following items were found :-

i. 6 foilpacks containing a total of 60 tablets containing sildenafil; and

ii. 13 empty plastic bottles.

5.The Defendant was arrested and cautioned.  Under caution, the Defendant had, inter-alia, admitted the following :-

i. The tablets (sildenafil) were something similar to Viagra. He obtained the tablets by way of pre-order; and

ii. The empty plastic bottles were for containing “G water”.

Facts for Charge 4 : Trafficking in a Dangerous Drug

Together with Facts for Charge 5 : Possession of Part I Poison

6.The Defendant was then escorted to his home at Greenery Plaza, No.3 Chui Yi Street, Tai Po, New Territories, in Hong Kong (“the Residence”).  Upon search, the C&E officers had found the following :-

i. 6 plastic bottles containing a total of 2,150 ml of a liquid containing 2,310.9 grammes of GBL;

ii. 1 inhaling device containing 0.06 grammes of a solid containing methamphetamine;

iii. 39 foilpacks containing a total of 349 tablets containing sildenafil;

iv. 35 packets containing a total of 161 grammes of a liquid containing sildenafil;

v. An electronic scale; and

vi. Some empty plastic bottles.

7.The Defendant was further cautioned.  Under caution, he said, inter-alia, the following :-

i. The bottles contained “G water”, and the empty bottles were used to containing “G water”;

ii. The “ice bottles” belonged to him, he used it to consume “ice”;

iii. The tablets (sildenafil) were similar to Viagra.

iv. The electronic scale was used for weighing things.

8.In a subsequent cautioned video-recorded interview.  The Defendant had, inter-alia, admitted the following :-

i. He was divorced, and an employee of Hang Seng Bank and earned a monthly salary of HK$41,000. He lived at the Residence.

ii. He was homosexual. About a year ago, he joined a party in a friend’s home where he learnt about “G water”. One would get more sexually excited after consuming “G water”. He did not quite enjoy using it but he sometimes bought some (“G water”) for social gatherings. He bought it from his friend at HK$1,000 per 50 ml.

iii. One day he learnt from others that “G water” could be purchased online at a much lower price. He purchased a bottle of “G water” online and found that it was much cheaper than buying the same from his friend. It cost him about HK$800 to buy one litre. The online shop was a company named “Clean and Solve”.

iv. His body weight was less than 60kg, therefore he would consume 1.5 ml of “G water” each time. Overdosing the same would lead to vomiting, unconsciousness or even death. Consuming too less, for example, 1 ml, would have little excitement effect. The dosage had to be precise.

v. He sold to his friends the “G water” that he had purchased online. He sold it at HK$800 per 100 ml or, HK$500 per 50 ml.

vi. He knew that “G water” was a kind of industrial cleaning liquid.

vii. The sildenafil found in the Office was similar to Viagra. Many people who consumed “G water” would also consume sildenafil so to enable erection of the penis, because they might encounter erection issues after consuming “G water” and “ice”.

Examination of the seized exhibits

9.The Government Chemist Dr. WONG Wing-cheong confirmed that (i) GBL was controlled under the Dangerous Drugs Ordinance, First Schedule Part I, and (ii) the seized sildenafil is a listed poison included in Part I of the Poisons List.

Conclusion

10.At all material times, the Defendant had :-

(i) attempted to traffic in a dangerous drug, i.e., 5,055 ml of a liquid containing 5,587 grammes of GBL (Charge 1);

(ii) in his possession a Part I Poison, i.e., 60 tablets containing sildenafil (Charge 3);

(iii) unlawfully trafficked in a dangerous drug, i.e., 2,150 ml of a liquid containing 2,310.9 grammes of GBL (Charge 4); and

(iv) in his possession a Part I Poison, i.e., 349 tablets containing sildenafil and 161 grammes of a liquid containing sildenafil (Charge 5).

Mitigation

11.The Defendant is 52 years of age.  He has a clear record.  After F. 5, he continued his studies in Hang Seng School of Commerce.  After 30 years of service in Hang Seng Bank, he resigned from his post as Assistant Finance Projects Manager after arrest.  His monthly salary was $41,000. 

12.His parents divorced when he was a little child.  He is their only child.  His mother is suffering from early dementia and mostly wheelchair-bound due to chest and calf pain.  The domestic helper, who has been with the family for 10 years, is taking care of her daily living in his absence.  The family finance is sustainable though tight pending completion of his sentence.  

13.There is some suggestion of self-use of part of the GBL seized.  I regard that, given that even the Defendant’s claim amounted to only about 1 gramme per day, too minute to be reckoned for the purpose of reduction in sentence, among the 7,897.9 grammes (i.e., 5,587 grammes + 2,310.9 grammes) of GBL seized. 

14.There are mitigating letters from his ex-colleagues, friends, group activities organizers, cell-mates, and chaplain.  They speak to his friendly, helpful, and responsible character.

Sentencing considerations

15.In HKSAR v Lam Chi Tak [2019] HKCFI 919 (at paras. 61 – 63), Barnes J regards that GBL trafficking shall warrant a sentence about two-thirds of that appropriate for Methaqualone (Powder Form), or 50% higher than that of Diazapam. 

16.It is appropriate, where two or more counts of drug trafficking are charged and the offences occur on the same day and at the same time, where the reason for there being two or more charges as opposed to one is primarily that the drugs are located in different places, for the sentencer to add the total of the active ingredient of the drugs together to arrive at a notional starting point (HKSAR v Lam Chi Wa CACC 94/2008).

17.In our present case, there were 7,897.9 grammes of GBL in total.  That would come to an overall starting point of about 5 years 5 months for Charges 1 and 4 together. 

18.Ms. Lo has constructed a table setting out the sentences imposed in previous cases of possession of sildenafil.  It indicates a fine or short term of imprisonment for several tens of such tablets.  In our present case, there were 409 tablets containing sildenafil and 161 grammes of a liquid containing sildenafil in total.  That suggests about 3 months should be an appropriate starting point. 

Sentencing the Defendant

19.Two batches of GBL were found in different places.  The need for two charges (i.e., Charges 1 and 4) instead of one charge, is apparently due to technicality rather than substance.  On each of Charges 1 and 4, I take a starting point of 5 years 3 months (i.e., 63 months).  After a one-third discount for the plea of guilty, the sentence is 3 years 6 months (i.e., 42 months) for each of Charges 1 and 4. The sentences shall be concurrent.

20.Two batches of sildenafil were found in different places.  The need for two charges (i.e., Charges 3 and 5) instead of one charge, is apparently due to technicality rather than substance.  On each of Charges 3 and 5, I take a starting point of 3 months.  After a one-third discount for the plea of guilty, the sentence is 2 months for each of Charges 3 and 5.  The sentences shall be concurrent. 

21.On totality principle, I order all sentences to be concurrent.  The overall sentence is 3 years 6 months (i.e., 42 months).