HKSAR v. Leung Tsun-ho and Another

HCCC 189/2020

[2021] HKCFI 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 189 OF 2020

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

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COURT: Introduction

In the Magistrates’ Court the 1st defendant, Mr Leung, D1, pleaded guilty to two charges of trafficking in a dangerous drug, Charge 1 and 2, and the 2nd defendant, Mr Shek, D2, pleaded guilty to one charge of possession of dangerous drugs, Charge 3. As a result, they are committed to this court for sentence.

On 28 January 2021, they confirmed before me their respective pleas to the charges and their agreement to the Summary of Facts provided by the prosecution. The sentence was then adjourned pending the DATC report of D2.

The subject matter of Charge 1 is 1.03 grammes of a crystalline solid containing 1.01 grammes of methamphetamine hydrochloride, which is commonly known as ‘Ice’.

The subject matters of Charge 2 are 1,019 millimetres of a liquid containing 1,131.3 grammes of gamma-butyrolactone (GBL) and 49.81 grammes of a crystalline solid containing 35.2 grammes of ‘Ice’.

The subject matters of Charge 3 are 1.3 grammes of a crystalline solid containing 1.27 grammes of ‘Ice’ and 53 millilitres of a liquid containing 58.3 grammes of GBL.

Summary of Facts

Charge 1

Briefly stated, at about 10.50 pm on 8 April 2019, D1 was intercepted by the police at the junction of Canton Road and Mongkok Road shortly after he had left the guest room of Lodgewood by L’hotel, Mongkok (“the Hotel”). Upon a body search, D1 was found to be in possession of three small yellow packets (which later found to be containing the subject matter of Charge 1) in his handbag. He told the police that he just wanted to earn some money and asked to be given a chance. At the time, D1 had on him a mobile phone and cash in the total amount of HK$15,740.

Charge 3

The police entered the guest room of the Hotel where D1 had been shortly before his arrest. In the guest room, there were D2 and a male, X. X has previously been seen entering the guest room with D1.

On the table of the room, the police found three small glass bottles which contained GBL and a black metal box which contained three transparent resealable plastic bags of ‘Ice’. Both the aforesaid GBL and ‘Ice’ were the subject matters of Charge 3. Also on the table was the electronic scale, a lighter, an invoice issued by the hotel, and two key cards to the room.

Under caution, D2 told the police that he was not selling but buying. At the time, D2 had on him two mobile phones and cash in the total amount of HK$17,090.

Charge 2

The following night, the police conducted a house search at D1’s residence. On two tables near the bed, they found two large brown glass bottles and one small brown glass bottle and three transparent resealable plastic bags. The aforesaid bottles and transparent resealable plastic bags contained the GBL and the ‘Ice’ as particularised in Charge 2. There were also three empty small brown bottles, one bunch of resealable plastic bags, one bunch of packaging papers, one lighter, and one electronic scale.

D1 now admits that he was in knowing possession of the aforesaid dangerous drugs respectively found on his person and in his residence for the purpose of trafficking.

D2 now admits that he was in knowing possession of the dangerous drugs found in Room 1505 of the Hotel.

Antecedents

D1 was born in Hong Kong and is now aged 32. He was educated up to university level in UK. He is single. He is said to be a designer. He has one previous court appearance in 2014 on which occasion he was convicted for one charge of possession of a dangerous drug, one charge of possession of equipment fit and intended for smoking dangerous drug and one charge of possession of Part I poison.

As regards D1’s medical condition, Mr Leung adduces one medical report and one psychologist’s report. The medical report shows that D1’s HIV viral load was fully suppressed and his other medical issues are either treated or being attended to.

D2 is also born in Hong Kong and is now aged 33. He was educated up to Form 5. He is single. He worked in a hotel. He has one previous of trafficking in 2015 for which he was sentenced to 32 months’ imprisonment and was discharged from prison on 2 April 2016.

Sentencing

D1

As regards Charge 1, in accordance with sentencing tariff for trafficking in ‘Ice’ as laid down in HKSAR v Tam Yi Chun, based on the quantity of the ‘Ice’ concerned, I adopt 3 years 3 months as the starting point which is reduced to 2 years 2 months for the timely plea.

As regards Charge 2, apart from ‘Ice’, there is also GBL. As noted by the Court of Appeal in HKSAR v Wan Lau Mei, trafficking in a variety of different drugs is an aggravating factor.

There is yet to be any sentencing tariff for trafficking in GBL. By consent of the parties, I have regard to the expert evidence of Dr Chan Chi-keung, a specialist in clinical toxicology on the nature and effect of GBL.

According to Dr Chan, the usage pattern of GBL is similar to that of alcohol and benzodiazepine. GBL users typically ingested GBL in an episodic manner to achieve the desirable effects of euphoria and decreased consciousness. As the effect of GBL can last for several hours, repeated consumption of the drug within a day is unlikely for a normal user. GBL may cause life-threatening toxicity and a dose greater than 2.4 grammes can be considered as potentially lethal without medical care in a 50-kilogramme man.

It is said that the drug has been used in criminal setting as the drug facilitated sexual assault, in that small volume, in its colourless liquid form, can be put into a person’s drink when not aware, making the person vulnerable to sexual assault or rape. However, I bear firmly in mind that there is no evidence in this case that the drug was in fact intended for that use.

According to Dr Chan, the physical harm score, dependence score and social harm score of GBL (respectively at 0.86, 1.19, and 1.3) are all lower than those of cannabis, (respectively at 0.99, 1.51, and 1.5).

I note that Dr Chan’s opinion has also been referred to by Barnes J in HKSAR v Jin Bin and Another. Barnes J is of the view that it would be appropriate to pitch the starting point at being 50 per cent over the appropriate starting point for benzodiazepine.

On the other hand, according to R v Gary Orton, the sentence of trafficking in diazepam, (which is a form of benzodiazepine) should be two-third of that for methaqualone, the sentencing tariff for which is laid down in AG v Chan Chi Man. Therefore, by the combined operation of Jin Bin and Gary Orton, it would appear that the sentencing tariff for trafficking in cannabis is also applicable to trafficking in GBL.

I also bear in mind that the present offence was committed before Barnes J’s judgment in Jin Bin was handed down. However, that does not affect the validity of Dr Chan’s opinion. I note also that the Court of Appeal allowed the sentence appeal from the judgment of Barnes J in Jin Bin but that was on the ground which has nothing to do with the starting points adopted by the learned judge. However, my attention has also been drawn by Miss Fung for the prosecution that the appropriateness of adopting the Chan Chi Man tariff to GBL will be discussed by the Court of Appeal in HKSAR v Ko Wai Shing, the hearing day of which is yet to be fixed.

I note that in accordance with Tam Yi Chun, trafficking in that quantity of ‘Ice’ as stated in Charge 2 in itself would call for a starting point at 8 years 8 months’ imprisonment. On the other hand, if one were to apply the Chan Chi Man tariff to GBL, then trafficking in a quantity of GBL as stated in that charge would in itself call for a starting point of about 13.6 months’ imprisonment.

In the absence of any sentencing tariff for trafficking GBL, in my view, the preferred sentencing approach for Charge 2 is the “combined approach” as explained by Ma CJHC (as he then was) in HKSAR v Yip Wai Yin and Another. For the present purpose, the more serious drug (in terms of potency) is ‘Ice’. Based on the starting point of 8 years and 8 months for the ‘Ice’ concerned in that charge and adjusting it upward for the presence of the GBL, and also for the aggravating factor that more than one type of dangerous drug was involved, I adopt 9 years’ imprisonment as the starting point of Charge 2, which is reduced to 6 years’ imprisonment after plea.

I have considered D1’s medical and psychological conditions. I have read all the mitigating letters for D1. I have also considered Mr Leung’s submission that D1 committed the present offence to finance his drug addiction. However, apart from his timely plea, I can see no reasons to reduce D1’s sentence.

However, bearing in mind the totality and having regard to the total quantity and nature of all the dangerous drug found in relation to Charge 1 and Charge 2, I order that the sentences of the two charges are to run concurrently, making a total sentence of 6 years.

D2

Since D2 is only convicted of Charge 3 which is one of simple possession, a DATC report was ordered: see section 54A of the Dangerous Drugs Ordinance, Cap 134. It is now confirmed that D2 is drug dependent. It is noted in the report that the defendant was brought up in a broken family. He started to abuse ketamine and cannabis in 2014. He was at his worst when he resorted to make fast money which landed him with the conviction of trafficking in January 2015. After his discharge from prison in April 2016, D2 had for a period adopted a law-abiding, drug-free life and engaged in gainful employment as a hotel attendant. Regretfully, D2 was unable to sustain his progress. He mixed with former friends again and started to abuse ‘Ice’ in 2019 in order to be recognised by his peers.

In view of D2’s weak willpower, the availability of a place and the Drug Addiction Treatment Centre and taking into account that drug abuse is his imminent problem, it is said that a period of compulsory drug addiction treatment coupled with intensive counselling and statutory supervision would still be beneficial to him. The Correctional Services Department therefore considers that D2 is suitable for admission to DATC.

Mr Cheung has prepared a very helpful written mitigation on behalf of D2. In his oral mitigation, Mr Cheung adds that D2 is not interested in being admitted to DATC and would rather go to prison. I trust that Mr Cheung has said all he could for D2 in mitigation.

I am alive to D2’s previous conviction for trafficking. I have taken into account that two different kinds of drugs were involved. The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession would be in the range of 12 to 18 months after trial: HKSAR v Mok Cho Tik. As regard to the latent risk factor as explained in HKSAR v Minney, in my assessment the attendant risk in this case was about medium low.

On the other hand, I note that D2 has not been sentenced to DATC before. It is said in the DATC report that D2 has not developed any insight into his problems. I note also that the treatment programme in DATC is between 2 and 12 months’ duration as the commissioner may determine.

Having looked at D2’s case in the round, I am of the view that it is neither too serious nor too trivial to regard the object of rehabilitation in a DATC for a term of up to 12 months as being inappropriate. Giving full weight to what is said in the DATC report, I am of the view that both D2 and the society will benefit in the long run if he is cured and I am also satisfied in all the circumstances of the case, having regard to D2’s character and previous conduct, it is in his interest and the public interest that he should undergo a period of care and rehabilitation in a DATC. See the Sentencing in Hong Kong, Ninth Edition by Cross and Cheung at paragraph 20-6 to 20-15.

I conclude that D2 should be sentenced to a DATC and I so order. However, in view of his previous criminal record for his more serious offence of trafficking, I order that this present conviction of possession is to be recorded.