The accused was searched and a cigarette box containing 14 cigarettes containing a total of 1.24 grammes of a solid containing 0.89 gramme of cocaine was found inside the left back pocket of the accused’s trousers. He was arrested and cautioned. In answer to the caution, he said that the cocaine was for his own consumption.
The police seized a key from the trousers pocket of the accused and they used it to gain access to the house. On entry, and in the presence of the accused, a house search was conducted. In the house, in various locations, the officers found a large quantity of dangerous drugs and other paraphernalia. Two of the forms of dangerous drugs found at the premises are known as Fluorodeschloroketamine and Deschloro-N-ethyl-ketamine. For convenience and brevity, those are referred to as F-Ketamine and N-Ketamine.
What was found was as follows:
(1) A plastic box containing two plastic bags with a total of 28.4 grammes of a solid containing 21.5 grammes of cocaine and two plastic bags containing a total of 1.93 grammes of a powder containing 1.67 grammes of ketamine;
(2) A plastic spoon, a colander and four electric scales;
(3) 5,031 resealable plastic bags of various sizes;
(4) A silver bag containing a plastic bag in which a further plastic bag containing 991 grammes of a powder containing 831 grammes of F-Ketamine;
(5) A silver bag containing a plastic bag in which a further plastic bag containing 989 grammes of a powder containing 842 grammes of F-Ketamine;
(6) A silver bag containing a plastic bag in which a further plastic bag was found containing 995 grammes of a powder containing 824 grammes of F-Ketamine;
(7) A white plastic bag containing five plastic bags containing a total of 2,429 grammes of a solid containing 1,590 grammes of N-Ketamine and a plastic bag containing 157 grammes of a solid containing 121 grammes of ketamine;
(8) The black plastic bag containing nine plastic bags containing a total of 235 grammes of a solid containing 85.8 grammes of N-Ketamine and a plastic bag containing 3.72 grammes of a solid containing 3.16 grammes of cocaine;
(9) A black plastic bag containing a piece of paper and 17 grammes of a solid containing 10.2 grammes of N-Ketamine;
(10) The black plastic bag containing 43.8 grammes of a solid containing 6.61 grammes of N-Ketamine;
(11) The black plastic bag containing a plastic bag and 13 plastic bags therein containing a total of 5.26 grammes of a solid containing 2.36 grammes of N-Ketamine;
(12) And also 13 plastic bags as follows:
(a) Two of the plastic bags containing a total of 493 grammes of a powder containing 159 grammes of ketamine and 118 grammes of N-Ketamine;
(b) A plastic bag containing 49.8 grammes of a solid containing 16.1 grammes of ketamine and 0.71 gramme of N-Ketamine;
(c) A plastic bag containing 30.2 grammes of a solid containing 10.2 grammes of N-Ketamine;
(d) A plastic bag containing 19.7 grammes of a solid containing 16.9 grammes of N-Ketamine;
(e) A plastic bag containing 41.4 grammes of a solid of amantadine, which is a Part I Poison;
(f) A plastic bag containing 26.8 grammes of a solid containing 23.2 grammes of ketamine;
(g) A plastic bag containing 13.2 grammes of a solid containing 7.09 grammes of ketamine and 0.96 gramme of N-Ketamine;
(h) Two plastic bags containing a total of 6.39 grammes of a solid containing traces of N-Ketamine;
(i) Three plastic bags containing a total of 1.54 grammes of a powder containing 0.23 gramme of N-Ketamine; and finally
(j) Three plastic bags containing a total of 1.52 grammes of a powder containing 1.29 grammes of F-Ketamine.
The aggregate narcotic content of the different substances:
(1) Cocaine: 24.66 grammes
(2) Ketamine: 328.06 grammes
(3) N-Ketamine: 1,841.97 grammes
(4) F-Ketamine: 2,498.29 grammes
The accused was arrested again and under caution admitted that the dangerous drugs found belonged to him and had nothing to do with others.
In addition, a further search revealed the accused was in possession of HK$18,211 and RMB845.
On the premise that the three forms of ketamine are the same, the street value of that would have been $88,222. The cocaine, a street value of between HK$39,798 and HK$54,744. The estimate does not include a value for F-Ketamine and N-Ketamine because there is no evidence as to the street value of those two substances because they are relatively unknown to the authorities in Hong Kong. In any event, the value of those drugs is of limited value for sentencing purposes.
Expert opinion
An expert opinion was given by Dr Mak Wing-lai Tony, a consultant chemical pathologist of the Hospital Authority Toxicology Reference Laboratory and the Chief of Service of the Department of Pathology and Deputy Hospital Chief Executive of Princess Margaret Hospital. It was included in the bundle of papers with the committal papers. It was not referred to in the Admitted Facts, it was admitted under section 65B of the Criminal Procedure Ordinance.
Dr Mak, is a highly qualified and experienced medical practitioner practicing as a pathologist. He provided a report dated 23 July 2019. In that report, he commented that F-Ketamine and N-Ketamine are now new psychoactive substances that the public use as “legal highs” or “designer drugs”. He expressed the view that these drugs are both structural analogues of ketamine. They are dissociative hallucinogens which produce psychedelic effects, such as hallucinations, dissociation and out-of-body experiences. They also cause confusion, cognitive impairment, mood changes and impaired consciousness.
He also gave his opinion on the potency of F-Ketamine and N-Ketamine respectively. In this context, potency is understood to mean the effect on a person who ingested the substances. Dr Mak observed that the former shares a comparable potency to that of ketamine while the latter is approximately five times more potent than ketamine.
Counsel for the accused, Mr David Boyton, made submissions which in effect challenged an aspect of the basis on which Dr Mak has relied for his conclusion that N-Ketamine is approximately five times more potent than ketamine. Mr Boyton based his criticism on the fact that Dr Mak used an article in Wikipedia as his source. However, Dr Mak made his conclusion based on not just that source, but also his clinical experience, his own observations and on a literature review. In particular, he gave his opinions based on a clinical study in which he participated and that N-Ketamine had a remarkably higher instance (84%) of impaired consciousness level, when compared to the ingestion of ketamine. Neurological symptoms like confusion (60%) and abnormal behaviour (44%), were frequently documented. Significant contrast between the statistics of patients developing convulsions from N-Ketamine (16%) and that of ketamine (0.9%) was observed. This, in my judgment, powerfully supports the conclusion of Dr Mak as to the comparative degree of potency of N-Ketamine compared to ketamine. Whether or not it is five times more potent is, in many respect, not a perfect measure of the impact of N-Ketamine. The point is that it is plain that it has a substantially greater effect than ketamine and all of those effects are dangerous effects.
Background of the accused and mitigation
The accused is 22 years of age. He has previous criminal convictions for possession of dangerous drugs in 2013 and sentenced to probation for 12 months; one count of claiming to be a member of a triad society and was sentenced to probation for 27 months concurrent to another and one count of wounding or inflicting grievous bodily harm that was also in 2013 and none of those convictions involved a sentence of imprisonment.
At the time of the arrest, the accused was in full-time employment as a vehicle technician with a monthly income of $15,000. He received education to secondary school level 3. He has divorced parents and is living with his father. He and his father are close. His father was in court for the hearings of this case and is desperately anxious about the fate of his son. I have a mitigation letter from him in which he details his son’s filial piety. He also outlines his own personal situation in which he describes himself as an old person with work injuries and in need of long-term insulin injections and other treatment. He relies upon his son for these.
Sentencing consideration for N-Ketamine and F-Ketamine
There are limited authorities on how F-Ketamine and N-Ketamine should be treated for sentencing purposes. Given the greater potency, impact and danger to individuals ingesting N-Ketamine, the issue of whether it should be treated the same way as ketamine or whether some form of upward adjustment is warranted for N-Ketamine.
In HKSAR v Ng Tsz Ching [2020] HKCFI 257, Barnes J dealt with a case which involved, amongst other drugs, N-Ketamine. The case involved the charge of trafficking in dangerous drugs which had been committed to the Court of First Instance for sentence. Barnes J considered the expert opinion of Dr Mak and in her reasons for sentence, Barnes J raised the issue of whether or not an upward adjustment to sentences for N-Ketamine should be made on the bases that N-Ketamine has a greater potency than ketamine. In the result, in imposing sentence, Barnes J did not make such an adjustment. It appears the reason for this was connected to the large quantities of the various forms of ketamine which were the subject of the charge for which she had to impose sentence.
I readily accept that the expert opinion justifies the view that N-Ketamine has substantially greater potency than ketamine and the clinical impact on a person who ingests N-Ketamine is at least potentially substantially greater. The increased dangers to such a person are substantial. It has been argued by counsel for the accused that there is only one reference in the First Schedule of the Dangerous Drugs Ordinance to ketamine and there is no reference to the two chemical analogues and accordingly they should be treated the same for sentencing purposes. Counsel argues that the prevailing approach for sentencing over the range of dangerous drugs found in the First Schedule is to sentence by reference to the weight of the narcotic content. That is correct as far as it goes but I reject that submission as artificial. In my judgment, if different forms of the same dangerous drug have different clinical effects, then the difference in those clinical effects is a greater adverse effect on those who ingest the different form of the dangerous drug, then there is no reason in principle why that should not receive a higher sentence. In the sentencing regime applicable to Hong Kong, very different views are taken for sentencing purposes as between different drugs. Perhaps the most extreme example of that is the difference for sentencing purposes between equal quantities of cannabis in one of its various form and ‘Ice’. I see no reason why the difference as between different forms of the same drug should not be treated differently for sentencing purposes the way that is justified in terms of the effect on a person who ingests the drug.
What remains to be determined is whether this is the right case to impose an upward adjustment of sentence for the N-Ketamine. Counsel for the prosecution specifically asked as to what the position of the Secretary for Justice was with respect to whether there should be such an enhancement. Her response was the prosecution was not making any submissions to that effect. Counsel for the accused argues that his client should not be the recipient of a change for sentencing policy. In my view, this is not a potential change of sentencing policy but a response to an analogue of ketamine which is capable of having substantially greater clinical effect and consequently is of a greater danger. In the result, I have chosen not to enhance the sentence for N-Ketamine in the present case, not because I do not think it is merited, but because the quantities involved in the present case, even if I were simply to treat both analogues as ketamine without enhancement, the sentence is already quite substantial. That I apprehend to be the underlying reason the sentence approach of Barnes J in HKSAR v Ng Tsz Ching (above).
Sentencing principles
Trafficking in ketamine - starting point
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as ketamine, regardless of which analogue is under consideration. It is easy to see why. This drug has real consequences for the individual. (It is capable of being addictive. Dr Mak’s report detail some of the clinical consequences of the ingestion of the drug and these are potentially quite serious. It is to be noted that Dr Mak, in discussing the clinical implications of the new analogues of ketamine, has also dealt with the clinical effect of ketamine as it is currently known. It is a very helpful reminder of the dangers to our community.) However, there are serious consequences for the community itself. One of those consequences involves the deployment of medical and health facilities to help people who ingested these drugs.
The view of the community is reflected in the maximum sentence provided by section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs which are the subject of the charge in this case.
In relation to ketamine, the guidelines for trafficking in ketamine were outlined in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. That case laid down guidelines for up to 1,000 grammes of ketamine. In HKSAR v Chan Ka Yiu [2018] HKCA 410, the court adopted the approach in HKSAR v Sin Chung Kin [2013]1 HKLRD 627 where in paragraph 23 of that judgment, it said:
“23. Where large quantities of ketamine are involved, although it is not possible to enhance the starting points proportionally, a reasonable and logical approach must be that, the larger the quantity of the drug is, the more severe the sentence will be.”
Accordingly, the court decided that for trafficking in 2,000 grammes of ketamine, the narcotic in ketamine, the starting point should be no less than 18 years’ imprisonment, while for trafficking in 3,000 grammes, the starting point should be no less than 20 years’ imprisonment. At paragraph 28 of the judgment, it was said:
“...if more than 3,000g of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.”
Trafficking in cocaine - starting point
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming and Ors [1990] 2 HKLRD 370. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guidelines provide for a sentence for quantities of between 10 and 50 grammes of a sentence of between 5 and 8 years’ imprisonment.
Possession of cocaine - starting point
The Dangerous Drugs Ordinance provides for a maximum of sentence for possession of dangerous drugs is a million dollar fine and, subject to 54A of that ordinance, to imprisonment for 7 years. Section 54A does not have any impact on this case. There is and can be no tariff for the possession of dangerous drugs. In HKSAR v Mok Cho Tik [2001] 1 HKC 261, after a careful review of the decisions in Hong Kong courts, on the appropriate level for sentencing for possession of drugs in the nature of heroin or ‘Ice’ and thus cocaine. The court indicated that for possession of 15.7 grammes of ‘Ice’, the normal starting point would be in the region of 12 to 18 months.
Approach for trafficking in more than one kind of drug
In HKSAR v Islam Azharul [2020] 1 HKLRD 644, [2020] HKCA 29, at paragraph 14, the Court of Appeal said that where a courier (or storer) is also “heavily involved in the packaging and dissemination of dangerous drugs”, that would be an aggravating factor. In this case, the accused has stored substantial quantities of dangerous drugs at the premises; the drugs packaged at the premises were packaged in various quantities and police found in those premises over 5,000 pieces of resealable transparent bags together with four set of scales.
In the same case, that is Islam Azharul, the Court of Appeal adopted the same approach as appears in HKSAR v Wan Lau Mei CACC 389/2013, where at paragraph 40, it was held that the multiplicity of drugs is a factor which might justify an enhanced sentence “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”
Application of sentencing principles
Trafficking in ketamine
Aggregating the various analogues of ketamine and ketamine itself, the court is faced with sentencing for 4,668 grammes of ketamine. Plainly, the starting point must be greater than 20 years’ imprisonment but as the cases demonstrate, the curve flattened somewhat of the higher levels of trafficking in this dangerous drug. This is also true for the guidelines for other drugs as well. Further, the most recent example I could find of the treatment by a court of more than 3,000 grammes of ketamine is to be seen in HKSAR v Y [2020] 1 HKC 303, where a quantity of ketamine of just over 4 kilogrammes attracted a starting point of 20 years and 6 months. In fairness, in that case, the Court of Appeal was concerned with other issues other than the starting point and I do not take the judgment of the Court of Appeal as an endorsement of the correctness of that starting point. Further, given the court in that case was concerned with other issues, there is no information as to whether there were special circumstances which might have militated in favour of the starting point found in that case. Instinct tells me that it is perhaps, at least, a merciful starting point.
I consider a starting point of 21 years and 3 months’ imprisonment to be appropriate in this case.
Trafficking in cocaine
Sentencing guidelines for trafficking in cocaine between 10 grammes and 50 grammes is a sentence of between 5 and 8 years. I fix a starting point of 6 years’ imprisonment in this case.
Possession of cocaine
I fix a starting point for the possession of this relatively small amount of cocaine at 6 months’ imprisonment.
Enhancement for trafficking in a multiplicity of drugs
The enhancement which could be justified on this approach would be at least an enhancement of 6 months or possibly more. However, given the circumstances of this case, including the fact that a young man who has a minor criminal record and has never been involved in going to prison is about to go to prison for a very long time. This case perhaps demands a less onerous enhancement. Further, given this man is employed as a motor mechanic on a salary of $15,000 a month, I find it difficult to believe that the accumulation of drugs is his and his alone. I find the more likely explanation is that he is the keeper of drugs for others. While there is no street value of the estimate for N-Ketamine and F-Ketamine, I am sure that this is of substantial and reinforces my view that it is likely that the accused in this case is the keeper of the drugs for others.
There is the additional problem of trying to find a proportion way of sentencing given that there are two separate drugs for the purpose of sentencing. Plainly, if the appropriate starting point for ketamine was simply added to the appropriate starting point for cocaine and the sentence is served consecutively, this would produce a disproportionate outcome.
If you calculate this using the combined approach, the appropriate thing to do would be to treat the combined weight of the ketamine and the cocaine and sentence on the basis of the more serious of the two drugs. Clearly, cocaine is that drug. Again, this would produce a disproportionate outcome not least because the vast majority of drugs by weight is ketamine. In my judgment, if the combined approach were to be adopted, this would produce a disproportionate and inappropriate sentence.
The conversion test seems to me to produce something approximating a just result.
As for the “conversion test”, the court compares the guidelines applicable to different drugs to arrive at the conversion rate, so that a single guideline for one drug could then be applied for the entire quantity seized. As the quantity of cocaine is much smaller compared to the quantity of ketamine in this case, I would convert the amount of cocaine to ketamine. On that premise, 24.66 grammes of cocaine under the sentencing guidelines identified earlier in these reasons will attract a starting point of 6 years’ imprisonment. According to the authorities identified earlier in these reasons, the equivalent amount of ketamine justifying a 6-year imprisonment is 50 grammes of ketamine. So taking the aggregate amount of 4,668.32 grammes and 50 grammes of leetamine, that equals 4,718.32 grammes. This still produces a starting point in the region of 21 years and 3 months.
Resolution
It is a distressing thing to sentence one so young for trafficking in this very large amount of ketamine and a substantial amount of cocaine. While the accused is not of perfect previous character, the convictions are minor and speak of another time and another place. That the first time that a young man goes to prison is facing the kind of prison sentence that this young man is facing is indeed a depressing thing. It is far more depressing when one realizes the relationship between the accused and his father and how as his father gets older and needs the support of his son, he will be doing prison visits instead. Against that, the quantity of ketamine has been taken off the streets as a result of police action and other fathers may not have to face the worry arising from their children being in the casualty wards of our hospitals suffering the effects of ingestion of ketamine or cocaine. The stupidity of the accused in getting involved is utterly monumental. I am sure the accused appreciates that he is about to start a long sentence. I venture this suggestion that he owes it to his father and he owes it to himself to take advantage of each and every education and rehabilitative opportunity offered within the prison system.
For the trafficking count, the result of the conversion test is the accused faces a starting point of 21 years and 3 months. I have already indicated that I propose to enhance that by 3 months to take account of the range of drugs available and the fact that the premises are plainly devoted to being a packing and distribution centre. That takes us to 21 years and 6 months. The accused is entitled to a discount of 33 per cent for pleading guilty at the earliest practicable opportunity. On my calculation on Count 2 of the charge sheet, that sentence is 14 years and 4 months.
There remains the issue of the possession of cocaine in Count 1. For that, I fix the starting point of 6 months. Again, the sentence on that count must be reduced by 33 per cent which produces a sentence of 4 months.
What I propose to do is order that the 2 months of the sentence on Count 1 be served consecutively to the sentence on Count 2. The balance to be served concurrently. That makes an overall sentence for both counts of 14 years and 6 months and that is the order of the court.
But let me finish by thanking counsel for both parties. The accused can go to prison knowing his counsel made a substantial difference to the sentence I might otherwise have imposed.