HKSAR v. Ko Wai Shing

DCCC 416/2019

[2020] HKDC 57

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 416 OF 2019

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REASONS FOR SENTENCE

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1.In this case, the defendant, Ko Wai Shing, his convicted after trial of the following three counts:-

(i) “Trafficking in a dangerous drug”, this involved 3.26 kilogrammes of gamma-butyrolactone;

(ii) “Possession of dangerous drug”, this count involved 36.6 grammes of gamma-butyrolactone and 0.08 grammes of methamphetamine;

(iii) “Possession of apparatus intended for the inhalation or injection of dangerous drug”, this involved an inhaling device, seven tubes, two droppers, three straws, and two syringes. They were fit and intended for the inhalation or injection of methamphetamine;

2.My findings and the reasons for the same have been set out in my Statement of Findings and they have been read out in court. I would not repeat them.

3.Of the three, the most serious one is the first count.  The drugs in question were in liquid form, contained in three plastic vessels imported from Lithuania under the defendant’s order by post.

4.The characteristics, prevalence and effect on humans of the drugs in question had been explained by Dr Chan Chi Keung of the Hong Kong Poison Information Centre. 

5.GBL is used both as an industrial pre-agent or solvent, or as a central nervous system depressant which could be used as a recreational drug.  GBL is a product to gamma hydroxybutyric acid GHB which is interchangeably known as “date rape drug”.  Its effect, which could be manifest in 15 minutes after ingestion, can range from confusion, euphoria, memory loss, drowsiness, to life-threatening symptoms such as deep coma, respiratory depression and cerebral hypoxia.

6.In liquid form, it is colourless and its taste could be masked by other drinks.  Those who took GBL suffered from anterograde amnesia, rendering them unable to recall events that preceded its intentional or unintentional use.

7.The drug therefore has been used to facilitate sexual assaults or rape and the perpetrators could evade criminal liability by reason of the victim’s inability to recall events preceding its ingestion.

8.Chronic use of GBL can develop physical dependence and tolerance.  Its usage pattern is similar to that of alcohol and benzodiazepine.  The drug has also a narrow safety margin between recreational use and poisoning dosage.  In short, the drug is by itself dangerous to health, addictive and easy to overdose.  Those could be easily used by the unscrupulous to facilitate sexual offences.

9.There is no clear guideline for the offence of trafficking in GBL.  I have been referred to a rather thorough discussion of the effect and the proper sentence of trafficking in the same in the judgments of Barnes J in HKSAR v Lam Chi Tak, HCCC 76/2018, and HKSAR v Jin Bin and Lam Kam Ho, HCCC 223/2018.  In her typical meticulous manner, Barnes J considered the evidence and all the statistics available to Hong Kong and took the view that the appropriate starting point for trafficking in GBL should be 50 per cent above that for trafficking in benzodiazepine. 

10.I have studied both cases.  I found myself unable to improve on the learned Judge’s findings, logic and reasoning.  I urge anyone who is interested to find out more to read her judgments.

11.The learned judge concluded that trafficking in diazepam, a form of benzodiazepine, should be two-third of that appropriate for trafficking in methaqualone: see Gary Orton, HCMA 225/1997.  Trafficking methaqualone to the like amount falls into the “over the 3,000 grammes” bracket and attracts a term of imprisonment of 3 to 4½ years or upwards; see AG v Chan Chi Man [1987] HKLR 221.

12.Adopting the reasoning of Barnes J, I will therefore use 3 years as a starting point and treat the same if they were diazepam.  I will then reduce it by one third down to 2 years and then increase it by 50 per cent.  I arrive at a final figure of 3 years.

13.Since the case also involved international element, I would add a further 6 months, making the total of 3 years and 6 months.

14.For the other three offences, there are no clear sentencing guidelines.  Sentencing for possession could range from a fine to a term of imprisonment of up to 12 months: see the discussions at paragraph 5/532 of Archbold Hong Kong 2019.

15.In view of the seriousness and the sentence of Charge 1, I will adopt to a 6 months’ imprisonment for each of the charges, they are reduced to 4 months to take into consideration of the guilty pleas.

16.All three charges took place in close proximity, I would consider it appropriate to order all the sentence orders for the 3rd to the 4th charge to run concurrently.

Mitigation

17.I called for a DATC report and background report in order to have a better understanding of the defendant’s background, and I will not repeat the particulars therein.  I can point out that, despite the rather valiant effort of defence counsel, not much can be said in the defendant’s favour. 

18.The defendant is aged 41.  He did not have the benefit of having a clear record: he had a drug-related previous conviction on 19 March 2018.  For which he was sentenced to 2 months’ imprisonment.  The present convictions means that he is in breach of the suspension order. 

19.The defendant showed a total lack of remorse. He insisted that he bought the GBL as a cleaning agent for his car, which he used as an Uber driver.  He also lied to the probation officer by insisting that he had not taken any dangerous drugs, when it was found positive for ‘Ice’ in his urine sample taken on 30 November 2019 upon his admission to Lai Chi Kok Reception Centre.

20.As he was an addict and he lacked the will to get rid of the baneful indulgence on his own, the Commissioner of Correctional Services recommended him to be admitted to the mandatory programme of DATC.

21.In view of the seriousness of the 1st charge and the sentence that it attracted and, in view of his singular lack of remorse, I do not consider a DATC order appropriate in the circumstances.

22.I have also take into consideration of the background information as revealed in the reports. 

23.There is one thing that can be said of him. Despite his personal and health issues, he had remained in gainful employment throughout the years. 

24.However, his personal circumstances paled in significance in view of the sentencing principle to be adopted by this court. Trafficking in dangerous drugs is a serious offence.  Trafficking in GBL also could enable has serious implication on those who are minded to prey on the uninformed and the ignorant by slipping the same into their drinks. 

25.Therefore, in all, I do not see any mitigating factors in the present case. 

26.For the 1st charge, the defendant is sentenced to 3 years and 6 months. 

27.For Charge 2 to 4, he is sentenced to 4 months each count, all to run concurrently. 

28.After taking into account the totality principle, I order 2 months to run consecutive to the 1st count. 

29.As the defendant is in breach of the suspension order, I found that I had no reason not to activate the same.  Since it is related to a different matter, I would order these two 2 months are to run consecutive to the other sentence orders.

30.Therefore, in all, the defendant has to serve a total term of imprisonment of 3 years and 10 months.