HKSAR v. James David Sanborn

DCCC 351/2019

[2020] HKDC 51

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 351 OF 2019

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REASONS FOR SENTENCE

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1.Defendant is convicted of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (1^st charge) and possession of dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (2^nd charge) on his own plea and agreement to summary of facts.

Facts

2.At around 8.30 am on 1 June 2018, Custom officer conducted examination of an inbound parcel from Lithuania, shipping number R3063F8XP3P (“the parcel”).

3.In relation to the parcel, the receiver was “James Sanborn”, with an address of 369 Lockhart Road, 15^th Floor, Apartment D, Wanchai, Hong Kong (“the premises”) and a telephone number of “85253956044”.

4.After opening the parcel, the officers found six plastic bottles wrapped by plastic bubble sheets, containing a total of 5.09 litres of a liquid containing 5.54 kilogrammes of gamma-butyrolactone (“GBL”).  The parcel was seized by the officer. 

5.Later on the same day, a controlled delivery operation was mounted.  An officer attended the premises.  Upon ringing the bell, defendant answered the door from inside and defendant was shown the parcel and confirmed the detail shown thereon.  After signing on the receipt, defendant was arrested and cautioned.

6.The flat was then searched and on a table in the living room, a glass bottle, a plastic straw and a resealable plastic bag all containing traces of methamphetamine were found.

7.Upon further search, inside a black box found in a drawer in the kitchen, two keys and a resealable plastic bag containing 0.79 grammes of a crystalline solid containing 0.72 grammes of methamphetamine hydrochloride were found. 

8.Also, on another table in the living room, a label with the words “GBL Europe 1,000 ml”, “gamma butyrolactone” and “www.gbl-europe.com” written on was found.

9.A tenancy agreement in respect of the premises expiring on 20 November 2018 was also found.

10.In the subsequent cautioned video recorded interview, defendant admitted, inter alia, under caution that:-

(a) he came to Hong Kong on 31 October 2016 to work on the strength of a two-year working visa. He worked at a retail company earning $75,000 per month.

(b) he confirmed that the information shown on the waybill of the parcel was his name, his phone number and his address.

(c) when asked what was inside the parcel, he knew that the bottles contained a chemical called “GBL” and it has got the full chemical breakdown on the bottle.

(d) he placed an order to the online store at the request of somebody locally. That somebody claimed to him that they were having shipping concerns to their house and asked if he could assist. Moreover, that somebody did not have a credit card. Therefore, he placed an order knowing what that was.

(e) the company selling GBL lists it as various different cleaners and he believed, according to the company, that it was cleaning solution because the manufacturing notes and clearance certification stated as such.

(f) as to the seized label found in the flat showing “GBL Europe 1,000 ml”, a friend showed him the label of GBL and he went online to the website shown on the label to place the order for the GBL about three days ago. The parcel came on express shipment.

(g) as to the seized glass bottle containing liquid, he confirmed that it was a water pipe that is used specifically for smoking crystal meth or “Ice”.

(h) as to the seized straw, he use it to place the crystal meth into the pipe. As to the empty plastic bag, it might have stored things such as crystal meth.

(i) as to the bag of “Ice” found in the kitchen, it was crystal meth that he had hidden in the kitchen before to hide it from someone.

(j) that the seized items of drugs and drug paraphernalia belong to him.

11.At the material times, the defendant possessed 5.54 kilogrammes of GBL for the purpose of trafficking.

Criminal record

12.Defendant has a clear record in Hong Kong.

Mitigation

13.Defendant is now aged 48.  He is single and is a degree holder.  He arrived Hong Kong in October 2016 on a two-year working visa. At the time of the arrest, he worked for Apple earning $75,000 per month.  He has a clear record in Hong Kong. 

14.Defence counsel submitted that, due to the commission of the present offences, defendant has lost his job, he has pleaded guilty at the first available opportunity and he asks this court to give defendant full one-third sentencing discount.  He also urges this court to consider totality principle when considering the sentence for the two offences.

15.Mitigation letters from defendant himself, defendant’s family, friends and colleagues as well as a fellow inmate were presented to this court for consideration.

16.In his letter to this court, defendant stated that he started taking drugs whilst he was on sick leave recuperating from spinal cord surgery.  He said “Ice” helped him to alleviate the pain and GBL helped him to sleep, he bought the vast quantity of GBL because the vendor company had a promotional sale and that buying in bulk would be very cheap.  He said he had no intention to redistribute or repackage the GBL.  He would discard them on his planned departure from Hong Kong in few months’ time. 

17.He also said during his remand, he had reflected on himself and planned to rebuild his career and to start afresh on release from prison. 

18.He also said whilst in remand, he had been helping others to learn English and edit documents, etc.

19.The other letters say basically defendant is a good man with a kind heart, always willing to help.  They say he is trustworthy, dependable and a man of high moral character.

20.They say that defendant had been doing volunteer work.  They also say that defendant was studious in his work and has received commendations from his various employers.

21.Medical reports of the defendant dated 8 November 2017 from Asia Medical Specialists, 4 January 2018 from Orthopaedic and Spine Centre, an operation record dated 27 February 2018 from Hong Kong Adventist Hospital were presented to this court.  These say respectively that defendant had been suffering from right wrist mid-carpal joint effusion, bilateral lower motor neurone lesion, and that defendant received a C6-C7 anterior cervical fusion and plating operation in February 2018 due to cord compression.

22.In relation to the sentencing in the 2^nd charge, defence counsel conceded that, as there would in fact inevitably be a custodial sentence for the 1^st charge, there is no need for this court to order a DATC report before sentencing. 

23.It was argued that two drugs were found on the premises at the same time.  The sentence for the two charges should be concurrent in all circumstances. 

24.This court is referred to the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261, where it was held that the starting point for mere possession of quantity of dangerous drug which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment.  It is said that the quantity would be the main governing concern or factor which would determine where the starting point should lie. 

25.It was also said that, on apprehension, defendant has admitted that the “Ice” and drug paraphernalia were his and it was said that defendant was a casual user of “Ice”, that he took “Ice” to relax himself and escape from his daily work and other pressures, as well as to alleviate his pain and suffering, which had been affecting him for over a year prior to his surgery in February 2018 relating to cord compression.

26.The case of HKSAR v Wan Choi Fai, HCMA 250/1998 were mentioned, where the appeal against sentence of 6 months’ imprisonment was dismissed.  The defendant in that case possessed 0.683 grammes of “Ice”. 

27.This court is asked to impose a sentence of 6 months’ imprisonment or less in this case.

Charge 1

28.Defence counsel conceded that 5.54 kilogrammes of GBL was a substantial quantity of dangerous drug.

29.It was submitted that defendant had it solely for his own consumption and would discard it on his departure from Hong Kong and that use of this drug was to counteract the effect of “Ice”, which though used to alleviate his pain, had the effect of causing insomnia.  Defendant says that he controlled the amount of sleep that he required by taking GBL.  It is said that he bought the bulk as it would be cheaper.

30.On the air waybill, the cost of the goods was said to be €314.01 and the shipping charges was said to be €94.46.  It is said that the dangerous drug in its liquid form is sold very cheap as a commercial cleaner and that the defendant did not have the intention of importing the GBL for either commercial trafficking or social trafficking.  It was also said that defendant did not intend to use it to earn a profit by trafficking.

31.Defence counsel stressed that defendant pleaded guilty to the charges on the basis that he had imported the goods but not on the basis of trafficking, and that all goods imported was for his own consumption, and before returning to the States he would discard it all.

32.It is conceded by defence counsel that, in view of the very large quantity of GBL, the court needs to consider the latent risk that GBL could be made available to other drug-users.  He submitted, however, that, as GBL was cheap, it was not much of a loss to defendant if he should elect to discard that. It was said that they are of small commercial value.

33.This court is asked to adopt the sentencing tariff for the sentencing GBL in the case of HCCC 223/2018 in the trafficking of the 5.54 kilogrammes of GBL.  It was said that, for this amount of GBL, the sentencing starting point is between 4 years and 4 years and 3 months. 

34.It was submitted by defence counsel that despite what was submitted earlier, the defence is not seeking a further discount of sentence to account for his claim that a substantial part of the overall quantity of GBL was for his own consumption, as he knew that when he purchased the drugs online that he would not be able to consume a substantial portion of GBL before his departure back to USA.

Discussion

Charge 1

35.Trafficking in dangerous drugs is a very serious offence and on conviction upon indictment, a person is liable to a fine of 5 million and to life imprisonment.

36.Personal background of defendant is generally not a valid mitigating factor. 

37.The drugs in question is 5.09 litres of a liquid containing 5.54 kilogrammes of GBL.  This court adopts the sentencing tariff for GBL laid down in the cited case of HKSAR v Lam Chi Tak, HCCC 76/2018, where Barnes J laid down the sentencing starting point for GBL at 50 per cent higher than that of trafficking benzodiazepine.  Had this amount of drugs been that of the benzodiazepine, the sentencing starting point would be 34.16 months of imprisonment[1].

38.Accordingly, the sentencing starting point here is 51.24 months’ imprisonment, ie 51 months and 7 days’ imprisonment.

39.This court finds it difficult to accept that the stated reason for defendant taking “Ice” is for pain relief and taking GBL to counteract the insomnia effect.  The defendant had been consulting physicians and he would have been legally and lawfully prescribed medication to deal with any problem of his, like pain problem or insomnia problem. 

40.In fact, there was no evidence before this court showing the defendant had been seeking medical assistance after his operation in February 2018 or making complaints of ongoing pain or insomnia.  This court does not accept that he had the drugs for the above purposes.

41.In fact, according to the expert statement of Dr Chan Chi Keung, it does not say that the drug can cure insomnia.  Further, as there is only a narrow safety margin between recreational dose and poisoning dose, the use of GBL to solve insomnia is not something believable or practical.

42.Again, despite the allegations of buying cheap in bulk, based on the expert statement of Dr Chan Chi Keung, the average daily dose per person is 1.13 grammes and, considering the amount in question, it is incomprehensible that defendant would choose to buy 5.54 kilogrammes of GBL for his own use, which, according to Dr Chan’s statement, would be sufficient for 4,902 days’ use.  This court again does not find this explanation believable. 

43.Moreover, defendant saying that he intends to discard the unused GBL on his departure to the States just few months later is again difficult to accept.  If defendant finds them to be very cheap commercially in Hong Kong, he would not have taken all this trouble to resort to buy from overseas, especially if the dosage per person as said is just something a little bit over 1 gramme per person and it would not be anything more than 200 grammes for the few months prior to his departure from Hong Kong in October 2018.

44.This court might also point out that the stated value of goods on the parcel is unreliable, as they are supposed to be just for a value said to be for something called “wood stripper”, when the goods actually was not wood stripper. 

45.In fact, during the hearing, this court has clearly indicated to the defence that the court has reservation to accept that the GBL are for defendant’s own consumption and that a Newton hearing would be necessary to clarify the issue.  Upon taking instructions, defence counsel have confirmed to this court that the defendant is not willing to proceed with a Newton hearing.

46.This court has considered all mitigation submitted by defence counsel, including the mitigation letters submitted.  The most valid mitigating factor is his timely plea, of which he is entitled to full one-third sentencing discount.  Accordingly, he is sentenced to 34 months 2 days’ imprisonment.

47.Defendant used to be a person of positive good character and, for this reason, this court is willing further to reduce the sentence to 31 months for this charge.

2^nd charge

48.For this offence, on conviction upon indictment, the maximum sentence is a fine of 1 million and to imprisonment for 7 years. 

49.Since this court has imposed a custodial sentence for the 1st charge, there is no need for this court to consider calling a DATC report for this charge. 

50.The drug for this charge is 0.72 grammes of methamphetamine hydrochloride.  The appropriate sentencing starting point for this charge is 12 months’ imprisonment.  In fact, the court in the case of HKSAR v Wan Choi Fai, HCMA 250/1998, adopted the same starting sentencing point for defendant possessing 0.683 grammes of similar drug. 

51.As said earlier, considering the guilty plea of defendant, the sentence is discounted to 8 months’ imprisonment and again defendant used to be a man of positive good character;  this court is willing further to reduce the sentence to 6 months’ imprisonment.

52.Although Charge 1 and Charge 2 both relate to dangerous drugs, the drugs involved are different.  The commission of the 2^nd charged offence by the defendant obviously adds to the culpability of the defendant in committing just the 1^st charged offence.  This court therefore does not accept the submission by defence counsel that sentence in both charges should be made wholly concurrent. 

53.However, considering the totality principle and having regard to the overall culpability of the defendant and the circumstances of this case, this court finds that 34 months’ imprisonment is a just and proportionate sentence on the defendant.

54.Accordingly, 3 months of the sentence of the 2^nd charge is to run consecutive to the charge in the 1^st charge and 3 months of the sentence in the 2^nd charge is to run concurrent to the sentence in the 1^st charge. 

55.The total sentence on the defendant is therefore 34 months’ imprisonment.