HKSAR v. So Wan Cheung

HCCC 364/2019

[2020] HKCFI 759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 364 OF 2019

-----------------

-----------------

---------------------------------

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

---------------------------------

COURT: Introduction

The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and is committed to this court for sentence. He confirms his plea and agreement to the Summary of Facts before me today.

The particulars of offence say that he, on 21 March 2019, outside the Ground Floor, No 62A Nathan Road, Tsim Sha Tsui, unlawfully trafficked in:

(1) 3.74 grammes of a solid containing 2.62 grammes of cocaine;

(2) 6.82 grammes of a powder containing 5.81 grammes of ketamine;

(3) 64.56 grammes of a crystalline solid containing 62.79 grammes of methamphetamine hydrochloride (‘Ice’); and

(4) 35.34 grammes of a powder containing 29.62 grammes of fluorodeschloroketamine.

Facts

This was a run-of-the-mill type of “stop and search” case. At around 9.47 pm on 21 March 2019, the defendant was seen acting furtively outside Ground Floor, No 62A Nathan Road in Tsim Sha Tsui. He was intercepted and searched by the police, and the dangerous drugs, which were the subject matter of the charge and contained in various transparent resealable plastic bags, were found from various pockets of his jacket. Under caution, the defendant admitted trafficking of the dangerous drugs for others as he was in debt.

The estimated street value of the dangerous drugs seized, (not including fluorodeschloroketamine) was about HK$44,181.

Antecedent

The defendant is now aged 31 and has no previous criminal record. He says he has completed Form 5 education and work as a casual worker in a restaurant as well as a construction worker. He is single and lives with his parents and a brother in a public housing estate.

Sentence

It is now well-established that sentencing starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and is to be calculated mathematically, HKSAR v Leung Kwai Ping and Another (No 2) and HKSAR v Kilima Abubakar Abbas. In the present case, I can see no good reasons for departing from the mathematical starting point and Mr So, counsel for the defendant, does not suggest the otherwise.

Since there are four types of dangerous drugs involved in the present case, I have asked the prosecution to calculate the respective mathematical starting points using the “absurdity test”, “conversion test” and “ratio test” as explained in HKSAR v Chan Yuk Leong.

The Court of Appeal has laid down tariffs for trafficking in cocaine, ‘Ice’ and ketamine respectively, all of which are well-known. As regards fluorodeschloroketamine, the Court of Appeal has yet to have occasion to lay down any sentencing tariff.

The prosecution, however, has put before me a report compiled by Dr Mak Wing-lai Tony dated 3 October 2019 regarding the nature and potency of this dangerous drug. Dr Mak is the Consultant Chemical Pathologist of the Hospital Authority Toxicology Reference Laboratory. He says detection of new psychoactive substance (NPS) is a special strength of his laboratory. According to Dr Mak, 2-fluorodeschloroketamine (which I will call fluorodeschloroketamine for short) is a NPS and the information of it in the medical literature is extremely limited. From January 2019 to May 2019, his laboratory has analytically confirmed 17 cases of using fluorodeschloroketamine by patients.

According to Dr Mak, fluorodeschloroketamine is a structural analogue of ketamine in that it is identical to ketamine except that the chloride ion in ketamine has been replaced by a fluoride ion. Like ketamine, fluorodeschloroketamine is a dissociative hallucinogen. Dissociative hallucinogens can elicit several psychedelic effects which include dissociation from the physical body, visual and auditory hallucinations, altered time and space, euphoria and empathy. Additionally, it can cause confusion, cognitive impairment, mood changes, impaired consciousness, psychosis-like symptoms, seizure and coma. From user-experience reports, the apparent potency of fluorodeschloroketamine is said to be similar to or slightly stronger than ketamine, and the effect of abusing this new drug is also said to be similar to that of abusing ketamine. There is no documented medical use of fluorodeschloroketamine. Dr Mak also says that from the 17 local cases his laboratory have analysed, abusing fluorodeschloroketamine alone or together with ketamine or other ketamine structure analogues give rise to a clinical pattern similar to, and often more severe than that of abusing ketamine.

To conclude, in Dr Mak’s opinion, fluorodeschloroketamine, being a structural analogue of ketamine, is a NPS. Its potency is similar to, or slightly higher than, ketamine with slower onset of actions. From the limited information, the physical, psychological and clinical effects of fluorodeschloroketamine are comparable to that of ketamine. It certainly has potential for being abused and has been used by local substance abusers since 2019.

I note that Mr So for the defence observed that Dr Mak’s opinion is based on a small pool of cases, that the expert opinion of Dr Mak’s appears to be more on the laboratory detection rather than clinical and that the user-experience reports, even Dr Mak admits, may not be reliable.

Nevertheless, Mr So does not seek to adduce any evidence contrary to the report of Dr Mak. In the circumstances, I accept the report of Dr Mak as regards the nature and potency of this new drug. I should also add that the defence is ready to accept that fluorodeschloroketamine can be taken as equivalent to ketamine on a same-weight basis for the purpose of sentencing.

In view of the defence concession and despite the limited amount of reliable clinical information about fluorodeschloroketamine and in the absence of evidence to the contrary as said again that for sentencing purpose, I am content to treat the new drug as equivalent to ketamine.

Absurdity Test

For the purpose of sentencing, I agree with Mr Chau of the prosecution that ‘Ice’ is the most potent dangerous drug among the four.

In this case, the total quantity of narcotics is 100.84 grammes. Assuming that all of these were ‘Ice’, then based on HKSAR v Tam Yi Chun, the mathematical starting point would be 11 years 6 months’ imprisonment.

Conversion Test

The sentence for trafficking in 2.62 grammes of cocaine, based on Attorney General v Pedro Nel Rojas and Lau Tak Ming and Another, is 2 years 9 months’ imprisonment. On the other hand, in Tam Yi Chun, the lowest band for trafficking in ‘Ice’ starts at 3 years. Therefore the sentence for the cocaine in this case is not directly convertible to that for ‘Ice’. I am aware that in HKSAR v Tsang Chi Wah, the Court of Appeal says for a first offence of trafficking in small amounts of ‘Ice’, the judge has a discretion to adopt a starting point lower than 3 years, depending on the amount of ‘Ice’ involved. That case involved 1.07 grammes of ‘Ice’ narcotic and the appellant had three previous records which were similar.

The Court of Appeal says the appropriate starting point in that case should be one of 3 years’ imprisonment. Presumably, if the appellant were a first offender like the defendant here, the starting point would have been lower than 3 years. However, even if one attempts a conversion here by using Tsang Chi Wah as a reference, the equivalent quantity of ‘Ice’ would not be significant. Therefore I agree that the quantity of cocaine can be ignored in this case for sentencing purpose.

As for the ketamine and fluorodeschloroketamine, their combined weight is 35.43 grammes based on Secretary for Justice v Hii Siew Cheng. Trafficking in that quantity of ketamine carries with it a mathematical starting point of 5 years and 3 months’ imprisonment which is equivalent to that of trafficking in 5.7 grammes of ‘Ice’. Adding these 5.7 grammes to the 62.79 grammes of ‘Ice’ narcotic seized yields 68.49 grammes. That, based on Tam Yi Chun, gives rise to a mathematical starting point of 10 years 11 months’ imprisonment.

Ratio Test

Assuming that all the dangerous drugs seized were cocaine, then the mathematical starting point for trafficking in 100.84 grammes of cocaine narcotic would be 9.4 years. As aforesaid, assuming that all the dangerous drugs seized were ‘Ice’, then the starting point would be 11.5 years. Assuming that all were ketamine, then the mathematical starting point would be 6.6 years. Taking into account the respective ratio of the dangerous drugs, namely cocaine 0.026, ‘Ice’ 0.623, and ketamine and fluorodeschloroketamine combined 0.351, the resultant overall starting point would be 9 years 9 months.

Finally, there are also two relevant considerations. First, it is now established that the ability of the trafficker to cater to a wider market by trafficking in a multiplicity of drugs should be considered (see for example the case authorities referred to in HKSAR v Yim Hung Lui, Ricky at paragraph 11 of that judgment). Secondly, as noted in Chan Yuk Leong’s case, there was the possible combined use of ‘Ice’ and ketamine which could pose greater harm to the abuser than either taken alone. However, I would not put too much weight on this second consideration and I would not put it higher than a possibility here.

Having applied the three cross-check tests, looking at the matter in the round, I consider that an overall starting point of 10 years would be appropriate in the present case.

Mr So, I trust, has said all that can be said on behalf of the defendant in mitigation, including the defendant’s timely plea, co-operation with the police, clear record and general and family background. However, apart from the defendant’s timely plea, there is no ground for further reducing his sentence.

After the customary one-third discount for plea, I sentence the defendant to 80 months’ imprisonment, that is -- 10 years is 120 months, is it not? So two-third discount ‑‑ sorry, one-third discount is 80 months’ imprisonment.

(Discussion re sentence calculation)

Defendant is sentenced to 80 months’ imprisonment.