On 1 August 2017 at around 10.30 in the evening, the defendant was stopped by the police at Po Lam MTR Station. Upon search, 10 resealable plastic bags containing a total of 95.3 grammes of methamphetamine hydrochloride and five foil packs containing 50 tablets containing 0.09 grammes of phenazepam were found inside the defendant’s backpack.
The residence of the defendant at King Lam Estate was searched the next day where one plastic bag containing 338 grammes of a crystalline solid containing 337 grammes of methamphetamine hydrochloride, two plastic bags containing a total of 51.8 grammes of a crystalline solid containing 51.8 grammes of methamphetamine hydrochloride, five plastic bags containing a total of 58.8 grammes of a powder containing 22.8 grammes of ketamine and one plastic bag containing 10.4 grammes of a crystalline solid containing N-isopropylbenzylamine, which is not a controlled substance, were found.
In a subsequent video-recorded interview, the defendant said the drugs were given to him by one Ah Shing. He kept the drugs in his residence and waited for Ah Shing’s instruction to deal with the drugs. On the particular day, around 15 minutes before he was arrested at the MTR station, Ah Shing called him and instructed him to deliver the drugs found in his backpack.
The estimated street value of the ‘Ice’ involved is HK$197,996 and the ketamine involved is HK$23,284.
Although the quantity of phenazepam involved is apparently insignificant as no legal authorities can be found regarding the proper sentence for trafficking in phenazepam, I directed the Department of Justice to obtain a toxicologist report to assist me. According to the report of Dr Raymond Wong, phenazepam is a potent benzodiazepam. Benzodiazepams are often taken in combination with other drugs to enhance euphoric effects or alleviate withdrawal symptoms. Phenazepam is potent at one-tenth of the recommended dose for diazepam. In other words, it is 10 times more potent than diazepam in terms of toxicity.
The defendant is now 32 years old. According to Ms Yap, counsel for the defendant, defendant got married in 2015 and his wife is now in mainland China. He has one previous record of possession of dangerous drugs which happened in 2011 for which he was sentenced for a 12-month probation order. However, his performance was unsatisfactory and the probation order was first extended and in the end discharged by substitution of an order to the drug treatment centre.
According to Ms Yap, the defendant studied up to Year 2 at the Institute of Vocational Training. Before arrest he was a construction worker earning 14,000 per month. Out of his salary, he contributed $6,000 to his family.
According to Ms Yap, in the period between 2010 and 2012, the defendant had donated regularly $1,000 per month to MSF which is Doctors Without Borders and Greenpeace. At that time he was a retailer, earning around 14,000 per month. And apart from this, the defendant had also performed voluntary works like paying visits to people in need. Ms Yap also said the defendant was a drug addict for some years and as he owed Ah Shing money, he had to repay Ah Shing by trafficking in dangerous drugs for him.
Trafficking in dangerous drugs is a very serious offence. A person committed this offence will inevitably receive a long custodial sentence. The length of the sentence will depend on what kind of drugs and the quantity involved. For different kinds of drugs, the Court of Appeal has laid down different tariffs for sentence. For trafficking in ‘Ice’, the Court of Appeal has laid down the tariff in the case of Tam Yi Chun. In the tariff, for trafficking in a quantity of 300 to 600 grammes of ‘Ice’, the starting point for sentence should be in the range of 15 to 20 years’ imprisonment.
For trafficking in ketamine, the Court of Appeal has laid down the tariff in the case Hii Siew Cheng. For trafficking in a quantity of 10 to 50 grammes of ketamine, the starting point for sentence should be in the range of 4 to 6 years’ imprisonment.
For phenazepam, as I said, there is at present no authorities to follow. In the R v Orton, HCMA 22/1997 unreported dated 26 May 1997, Gall J held that as diazepam is a much less potent drug than methaqualone, the sentence for trafficking in diazepam should attract a sentence two-third to that of methaqualone for trafficking in the same quantity.
In R v Sin Shing Cheong [1987] HKLR 1123, after referring to R v Chan Chi Man, the Honourable Mrs Justice Barnes adopted the scale of sentences for trafficking in opium to trafficking in methaqualone. For trafficking in a quantity of over 500 grammes of opium, the range of sentence should be 6 to 12 months’ imprisonment, and for trafficking in under 500 grammes of opium, it would be as the court thinks fit. Although phenazepam is 10 times more potent than diazepam, I do not think it is right to do the superior arithmetic exercise to multiply the sentence for trafficking in diazepam by 10 for trafficking in the same quantity of phenazepam.
With the assistance of Dr Raymond Wong’s report for the purpose of the present case, it would be sufficient for me to form a view that the quantity of phenazepam involved in this case is insignificant to affect the overall sentence to be imposed to the defendant in view of the other two drugs and their quantities involved. I would accordingly disregard the phenazepam when I consider sentence.
Ms Yap has kindly prepared a table to show me the results of the overall sentence after applying the absurdity test, the conversion test and the ratio test. And also in the present case, although there are two different charges involving drugs found in different places, the drugs were in fact originated from a single lot. It is therefore right to take a holistic approach in considering the proper sentence.
The total quantity of ‘Ice’ involved is 484.1 grammes. The total quantity of ketamine involved is 22.8 grammes. In my view, taking into account all the circumstances of this case, including the calculation given by Ms Yap and the mitigation advanced by her on the defendant’s behalf, the proper overall starting point is, in my view, 18 years’ imprisonment.
Taking into account the defendant’s guilty plea, the sentence should be reduced to 12 years’ imprisonment. For Charge 1, the defendant is sentenced to 12 years’ imprisonment. For Charge 2, the defendant is also sentenced to 12 years’ imprisonment, and I order that the sentence of the two charges shall run wholly concurrently.