HKSAR v. Ko Wai Shing

CACC 7/2020

[2021] HKCA 1803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 7 OF 2020

(ON APPEAL FROM DCCC NO 416 OF 2019)

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Before:  Hon Macrae VP, Zervos JA and M Poon JA in Court

Dates of Hearing:  11 August; 2 September and 19 November 2021

Dates of Judgment:  11 August (conviction)  and 19 November 2021 (sentence)

Date of Reasons for Judgment:  30 November 2021

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.The appellant (who was D1 at trial)  was jointly charged, together with D2, with four offences in the District Court. They were:

(a)  Trafficking in a dangerous drug, namely, 2,910 millilitres of a liquid containing 3.26 kilogrammes of gamma-butyrolactone (commonly referred to as “GBL”)  (Charge 1)[1];

(b)  Possession of dangerous drugs, namely, 34 millilitres of a liquid containing 36.6 grammes of GBL, and 34 millilitres of a liquid containing 0.08 gramme of methamphetamine (commonly known as “Ice”)  (Charge 2)[2];

(c)  Possession of apparatus, namely, 1 inhaling device, 7 tubes, 2 droppers, 3 straws and 2 syringes, fit for the inhalation of “Ice” (Charge 3)[3]; and

(d)  Possession of a poison included in Part 1 of the Poisons List, namely 20 tablets containing Sildenafil, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance (Charge 4)[4].

All of the offences took place on 1 June 2018 at the home of the appellant and D2 in Un Chau Street in Sham Shui Po, Kowloon, which the two men, who were in a relationship together, shared with each other.

2.The appellant and D2 stood trial before HH Judge Lin.  The appellant pleaded not guilty to Charges 1, 2 and 3 but guilty to Charge 4.  D2 pleaded not guilty to all four charges.

3.On 29 November 2019, after trial, the judge convicted the appellant of Charges 1, 2 and 3 but acquitted D2 of Charges 2, 3 and 4, having earlier dismissed Charge 1 against D2 after the prosecution had conceded, at the close of the prosecution case, there was insufficient evidence against him on that charge.

4.On 4 September 2020, leave was granted by a Single Judge[5] for the appellant to appeal against conviction on Charges 2 and 3, and against sentence on Charges 1, 2, 3 and 4.  An appeal aid certificate was duly granted to the appellant for that purpose.  On 30 March 2021, the appellant was further granted bail pending his appeal by the same Single Judge.

5.On 11 August 2021, having heard submissions from the parties, the Court allowed the appellant’s appeal against conviction on Charges 2 and 3, and adjourned the hearing in respect of sentence on Charges 1 and 4 to enable the appellant to file evidence in respect of the possible issue of his own consumption of GBL; and to invite both parties to make further submissions as to the appropriate sentence, in the event that this Court was minded to issue guidelines in respect of trafficking in GBL. 

6.When we resumed the hearing of the appeal on 2 September 2021, we considered that we required further evidence to be filed on the treatment of GBL by the courts in other kindred jurisdictions, and expert evidence to be called on the comparisons between GBL and other dangerous drugs.   On 19 November 2021, having received further evidence from both parties, and on hearing further submissions, we allowed the appeal to the extent of reducing the appellant’s sentence so as to permit his immediate release.  We said we would hand down the reasons for our decisions on conviction and sentence in writing in due course, which we now do.

The facts

7.Much of the case was not disputed and was adduced by way of Admitted Fact evidence.  On 31 May 2018, at the Air Mail Centre inside Hong Kong International Airport, Customs officers examined a parcel which had arrived from Lithuania, addressed to the appellant at his address in Un Chau Street.  Inside the parcel were three plastic bottles containing a liquid, which was subsequently confirmed by the Government Chemist to be 2.91 litres of a transparent liquid containing 3.26 kilogrammes of GBL.  This formed the subject-matter of Charge 1.  

8.On 1 June 2018, a controlled delivery operation was carried out at the appellant’s address.  The appellant acknowledged receipt of the parcel by signing on the delivery note, whereupon he was arrested and duly cautioned. In response to the caution, the appellant said that he had ordered the contents of the parcel on the Internet from a website called “Top Cleanser” for the purpose of cleaning the rims of his car wheels, at a cost of “about one thousand bucks”[6]. A printout from the Top Cleanser website subsequently adduced in evidence (Exhibit P32)  claimed that the product, which was of 99.99% GBL purity, was “for legal and industrial usage only, such as research and development, paint and rust remover or as and (sic)  additive for a paint stripper”.  The description further claimed, “We only want to serve clients, who use this harmful chemical in an appropriate way”[7].

9.D2, whom the appellant indicated to Customs officers was his boyfriend with whom he had lived for two years[8], was present at the time of the controlled delivery operation and was found to be in possession of keys to the iron gate and the main door of the premises.  Customs officers then searched the unit and found various items fit for inhaling a dangerous drug, as particularised in Charge 3.  One of those items contained some liquid, which was subsequently confirmed, upon drying, to contain 0.08 grammes of “Ice”.  In a drawer in the bedside cabinet, two bottles containing liquid were later found to contain 36.6 grammes of GBL.  The two liquids containing dangerous drugs formed the subject-matter of Charge 2.  In the same cabinet, the officers found two bottles containing 20 Sildenafil tablets, a listed Part 1 poison, which formed the subject-matter of Charge 4.

10.Under caution, the appellant said that the items particularised in Charge 3 were an “Ice kettle” and belonged to D2[9]. Of the two bottles of GBL in the drawer of the bedside cabinet, the appellant said they were “cleaning agent for me to wash vehicle”[10].  The appellant stated that the Sildenafil tablets were a sexual enhancement drug for men, which he and D2 took together[11].

11.In his cautioned statement, D2 told Customs officers that he believed the substance in the parcel was “popper(s)”, which he had asked the appellant to purchase for “snorting”[12].  He denied knowing the nature of the subject matters of Charges 2 to 4[13].

12.The prosecution called Dr Chan Chi-keung (“Dr Chan”), an expert in clinical toxicology, whose evidence was not disputed.  In summary, Dr Chan said that GBL was a solvent and reagent in industrial chemistry, as an intermediate in the manufacture of industrial chemicals and as a solvent in cleaning products.  He explained that GBL is a pro-drug[14] of gamma-hydroxybutyric acid (commonly referred to as “GHB”), which is known to be a “date rape” drug.  Upon human ingestion, GBL will be converted into GHB.  The drug would take effect within 15 minutes after ingestion and normally last several hours.  The clinical effects of GBL were identical to those of GBH, which, depending on the dosage and the metabolism of the individual, would cause confusion, euphoria, memory loss, drowsiness, deep coma, respiratory depression, apnoea and cerebral hypoxia.  Dr Chan said that victims of GBL intoxication tended to suffer from anterograde amnesia, making it difficult to recall events taking place before recreational use or a drug-facilitated sexual assault.  The normal dose for recreational use of GBL was 1.13 grammes per day for a normal abuser: accordingly, the quantity concerned in Charge 1 represented more than 2,900 days of usage[15].  There was currently no data as to the prevalence of GBL or GHB usage in Hong Kong.  Outside Hong Kong, GBL was reported to be used specifically in recreational settings such as bars, raves and nightclubs, and its usage was higher among homosexual men. 

13.Under cross-examination, Dr Chan said that “popper(s)” was an alkyl nitrite, which could be inhaled so as to relax the anal muscles and facilitate anal intercourse.  He said it was a totally different drug in its propensities and method of consumption from GBL.  It was accepted by the prosecution that alkyl nitrite was neither a dangerous drug, nor was it listed as a Part 1 poison[16].

14.Both the appellant and D2 elected not to give evidence, nor did they call any witnesses.  Both essentially relied upon what they had told Customs officers under caution.

Reasons for verdict

15.The judge found that the appellant had admitted to knowing the contents of the parcel and was instrumental in arranging the same to be shipped to Hong Kong.  Accordingly, the appellant had imported the drug into Hong Kong.  Although the appellant’s cautioned statement was a “mixed” statement, inasmuch as he admitted importing GBL but for the innocent purpose of cleaning his car, the judge rejected the appellant’s explanation.  He remarked that there was no satisfactory explanation as to why the appellant should have paid HK$1,000 to ship GBL from Lithuania for the purposes of cleaning his car, when there were other lawful cleaning agents available in local hardware stores in Hong Kong.  Furthermore, the judge asked why the appellant would have had two small bottles of GBL in a drawer of the bedside cabinet, if the substance was really for industrial use.  In the circumstances, the judge found that the only reasonable inference was that the appellant knew the substance was a dangerous drug, which he had imported into Hong Kong; and importing a dangerous drug into Hong Kong amounted to trafficking.

16.As for the two small bottles of GBL and the small amount of “Ice” (Charge 2), and the items fit for inhalation of a dangerous drug (Charge 3), it was necessary for the judge to determine whether the appellant was in possession of them.  According to the appellant’s cautioned statement, he knew of their presence in the premises, as well as their nature, but said the “Ice” and apparatus belonged to D2.  On that issue, the judge said[17]:

“42. Possession itself is not defined in the Ordinance, but a lot of case law had been evolved to explain this concept. In essence, possession involved custody and control, and ownership is not an essential element. Physical control was in the sense of the ability to use it, as may be desired, within the parameters of practicality and the law, and to exclude others, and of the intention to exercise such control.

43. Once possession is proved, the ability and intention to retain them can be readily inferred and, to explain it simply, a person is in possession of something if he has knowledge of its presence and has some control over it: see the discussion and summary of the law at paragraph 29 to 39 of Archbold Hong Kong 2019.

44.  The mere contention that the items were his boyfriend’s is neither here nor there, as ownership is not an essential element in possession.  Even if I were to accept D1’s contention that those items (i.e. the dangerous drugs, the apparatus, the Part I poisons)  did not belong to him, the facts are quite clear: he knew of their presence, he knew of their nature and he lived in the same small unit.  The only logical conclusion therefore is that he had the ability to control and use them as he desired.”

17.In relation to D2, since he had contended in his cautioned statement that he understood the substance in the parcel to be “popper(s)”, which was completely different in nature and usage from GBL, the judge found that there was no admissible evidence that D2 knew the substance which the appellant had ordered was a dangerous drug.  D2 was accordingly acquitted of Charge 1 at the close of the prosecution case.  Further, since there was no sufficient evidence that D2 knew of the existence of the items particularised in other charges either, so as to put him in legal possession of them, he was acquitted of Charges 2, 3, and 4.

Reasons for sentence

18.The judge called for a Drug Addiction Treatment Centre (“DATC”)  suitability report and a background report in respect of the appellant, who had previous convictions in March 2018 for possession of dangerous drugs, possession of a Part I Poison and possession of apparatus for ingesting dangerous drugs, for which he was sentenced to 2 months’ imprisonment suspended for 18 months[18]. As a result of the conviction for the present offences, which were committed in June 2018, the appellant was in breach of that suspended sentence. 

19.The judge found that the appellant had exhibited a total lack of remorse: not only had he claimed that the GBL was for cleaning his car, he had persisted with that claim when interviewed by those tasked with compiling the reports; moreover, his claim not to have taken dangerous drugs was shown to have been untrue when, upon admission to Lai Chi Kok Reception Centre, his urine test sample tested positive for “Ice”.  Although the DATC report made a recommendation for the appellant’s admission to DATC, the judge considered that Charge 1 was too serious for such a disposal, particularly since GBL could be used for illicit purposes, such as to prey on vulnerable people by slipping it into their drinks[19].

20.Although the judge noted that there were no sentencing guidelines for trafficking in GBL laid down by the Court of Appeal, he made reference to two first instance sentencing decisions of Barnes J in HKSAR v Lam Chi Tak[20] and HKSAR v Jin Bin & Anor[21].  Following the same approach in those decisions, the judge adopted a starting point of 3 years’ imprisonment as if the drug were diazepam, then reduced it by one-third to 2 years, before increasing it by 50% to arrive at a final figure of 3 years’ imprisonment.  The judge then enhanced the sentence by 6 months for the international element of importing the drug across the border into Hong Kong.  The sentence on Charge 1 thus became 3 years and 6 months’ imprisonment.

21.It should be noted that the judge did not consider the question of the appellant’s own consumption of GBL, since the appellant had never raised the issue at any stage of the trial or the sentencing proceedings, having always claimed that it was purchased for an innocuous purpose other than his own consumption.

22.In respect of Charges 2, 3 and 4, the appellant was sentenced to concurrent terms of 4 months’ imprisonment on each charge.   Bearing in mind the question of totality, the judge ordered 2 months of the concurrent term on Charges 2, 3 and 4 to run consecutively to the sentence on Charge 1.  Consequently, the resulting sentence for the present offences became 3 years and 8 months’ imprisonment.  There was then the question of the breach of the 2-month suspended sentence, which the judge activated in full, thus making a total sentence of 3 years and 10 months’ imprisonment.

Grounds of appeal against conviction

23.Mr Richard Donald and Ms Zoe McCoy, on behalf of the appellant, advanced grounds of appeal against conviction in respect of Charges 2 and 3 only.  It was submitted that the judge had misdirected himself on the issue of joint possession in circumstances where two people were living together as effectively spousal partners in the same household.  Relying upon the decision of this Court in HKSAR v Li Jin[22], it was argued that in the context of a couple living in the same household, something more than knowledge and acquiescence was required, and that an ability to control was different from the actual exercise of control.

24.Mr Donald argued that, since the appellant had been jointly charged with his partner, D2, with possession of the dangerous drugs and apparatus fit for inhalation of a dangerous drug, joint possession was a live issue.  Accordingly, the accused must be proved to have done something to advance, promote or encourage his partner’s possession in order to be found guilty of joint possession.   

25.Ms Samantha Chiu, for the respondent, conceded that the conviction in respect of the “Ice” component in Charge 2, and the inhaling apparatus in Charge 3, could be considered unsafe and unsatisfactory in light of the principle stated in Li Jin.  However, in respect of the two small bottles of GBL in Charge 2, the judge had rejected the appellant’s explanation in his cautioned statement that the GBL was for his own use as a cleaning agent[23]. Having rejected any innocent explanation, the appellant must be taken to have known the nature of the dangerous drug; accordingly, Ms Chiu maintained that a conviction on part of Charge 2 could thereby be justified.

Grounds of appeal against sentence

26.Mr Donald took no issue in respect of the starting point of 3 years’ imprisonment on Charge 1.  Nor did he seek to argue against the activation in full of the 2-month suspended sentence.  However, he did take issue with the 6 months’ increase for the international element, which amounted to a 16.67% enhancement of the starting point.  When compared with the increase for this factor in cases such as HKSAR v Lai Keung, William[24], a decision at first instance also involving GBL, such enhancement was disproportionate to the head sentence.  In Lai Keung, William, the defendant had pleaded guilty to trafficking in a consignment of 28.26 kilogrammes of GBL (as distinct from 3.26 kilogrammes of GBL in the present case), which had also been imported from Lithuania.  Although the judge increased the starting point by 6 months’ imprisonment for the international element, the rate of enhancement was only 7.14%.

27.Mr Donald further argued that the rate of enhancement for the international element in the present case was excessive when compared with similar enhancements for hard drugs such as heroin and ketamine, which were more serious in terms of the psychological and physiological dependence and social harm they caused.  According to the guidelines in HKSAR v Chung Ping Kun[25], trafficking in 250 grammes of heroin, meriting a starting point of 12 years and 9 months’ imprisonment, would attract an enhancement of 6 months for the international element, representing an increase of the starting point of 3.92%; while under the guidelines in HKSAR v Chan Ka Yiu & Ors[26], trafficking in 500 grammes of ketamine, meriting a starting point of 8 years and 4 months, would attract an enhancement of 4.55%.

28.Ms Chiu for the respondent conceded that an enhancement of the starting point for the international element of 16.67% appeared to be disproportionate to the head sentence.  She responsibly reminded us of the Court’s observations in HKSAR v Ali Qasim[27] that there was a difference in culpability between a person who carried dangerous drugs from a foreign country into Hong Kong, and one who, on another person’s instructions, collected a parcel from the Post Office, which he knew to contain dangerous drugs[28]. In considering the level of enhancement, she noted that the judge did not seem to have considered D2’s admission that it was he who asked the appellant to buy the drugs in Charge 1[29], without there being any elaborate or secretive arrangement involved.

29.By reference to the expert report of Dr Tony Lai Tai Sum (“Dr Lai”), Ms Chiu acknowledged that GBL caused relatively less bodily harm in both acute and long-term use when compared with heroin, cocaine, methamphetamine, ketamine and cannabis[30]. The rate of enhancement adopted in the present case, therefore, appeared to be out of line with the broad guidelines laid down by the Court of Appeal in Chung Ping Kun and Chan Ka Yiu & Ors.

30.Ms Chiu also adverted to the fact that the judge had been mistaken in giving a one-third discount when sentencing the appellant on Charge 2 (on the assumption he was correct to convict the appellant of possessing the two small bottles of GBL)  as though he had pleaded guilty to the charge, when in fact he had pleaded not guilty to the charge[31].  However, she submitted that the judge had been correct to activate the appellant’s suspended sentence in full.

Expert evidence and other information relating to GBL

31.There are no sentencing guidelines for trafficking in GBL (or GHB). At the direction of the Single Judge, updated information about the drug, as well as its prevalence and use, was adduced as evidence before this Court, to enable us to give guidance on the question of sentencing and, if it thought necessary, lay down guidelines for cases involving trafficking in GBL (and/or GHB).

32.The respondent initially put forward the expert report of Dr Lai, a specialist psychiatrist in private practice, as well as honorary psychiatric consultant to a number of organisations, with a particular specialty in psychiatric impairment assessment.  In a comprehensive report, he explained the prominent features of GBL, which may be summarised as follows:

(i)  GBL is the pro-drug of GHB.  After ingestion, GBL is rapidly converted into GHB, which causes the resulting pharmacological and behavioural effects in its user[32];

(ii)  GBL is usually supplied in a colourless, odourless, liquid form, while GHB may be supplied as a liquid, powder or capsule: both are taken orally.  Low doses of the drug produce feelings of euphoria and well-being, with sedation occurring at higher doses[33];

(iii)  GHB is rapidly absorbed from the body’s gastrointestinal tract with the onset of systematic effects within 15 minutes of ingestion; while GBL is more rapidly and completely absorbed when taken orally, with an absorption half-life of about 1 minute.  GBL thus has a faster onset in its effects on the human body than GHB, and the effects last longer[34];

(iv)  GBL is more potent than GHB on a volume basis, and small errors in dosage may lead to serious, untoward side effects[35];

(v)  For recreational purposes, doses of 1-2 grammes of GHB are sufficient to induce feelings of euphoria and well-being; Doses of 10 milligrammes per kilogramme may produce amnesia and hypotonia.  Doses above 100 milligrammes per kilogramme induce drowsiness and have a marked effect on speech and motor coordination.  Higher doses result in progressive respiratory depression, decreased cardiac output, seizure-like activity and/or coma[36];

(vi)  GHB and GBL are toxic substances and fatalities have been reported from both.  Mortality rates after use of GHB and GBL are potentially high because the safety margin between a recreational dose and a fatal dose, namely 5:1 to 8:1, is narrow.  Having said that, deaths related to GBL and GHB are not common.  There was only one reported fatality related to GBL ingestion in the UK, according to the Royal Society of Medicine in 2009; and only one reported case of GHB intoxication with alcohol use in Hong Kong, according to the Hong Kong Journal of Emergency Medicine in 2000[37];

(vii)  GBL and GHB have the potential for psychological dependence, since a low dose can produce a euphoric effect.  GBH withdrawal syndrome typically develops within the first 6 to 72 hours following the cessation of chronic GHB use.  The syndrome lasts between two and 15 days; with longer presentations mostly being psychiatric symptoms, such as delirium, psychosis or depression[38];

(viii)  GBL and GHB are both addictive drugs.  GBL can produce physical dependence manifested by a withdrawal syndrome when the substance is abruptly discontinued following chronic use.  The withdrawal syndrome appears similar to that of other sedative-hypnotic drugs such as ethanol and benzodiazepines[39];

(ix)  GBL causes relatively less bodily harm in both acute and long-term use when compared with heroin, cocaine, methamphetamine, ketamine and cannabis use.  However, there is currently no available published data comparing GBL potency/addiction with these other dangerous drugs[40].

33.The respondent further adduced a statement from Acting Customs Senior Inspector Wong Wai, dated 7 May 2021, detailing the statistics of the prevalence of cases involving GBL and GHB in Hong Kong.  The period covered January 2002 to March 2021, with cases being divided into Import, Export and Transhipment cases.  The number of persons arrested for importing both GBL and GHB are set out in the following table:

Period	Total no of cases	No of persons arrested	No of persons prosecuted	Quantity (Total gross weight)
Jan – Dec 2002	1	1	1	1.4 g
Jan 2003 – Dec 2011	0	0	0	0
Jan – Jun 2012	2	6	1	17.13 g and 808,000 ml
Jul – Dec 2012	0	0	0	0
Jan – Jun 2013	0	0	0	0
Jul – Dec 2013	2	2	1	1.8 g
Jan – Jun 2014	1	1	1	2 ml
Jul – Dec 2014	0	0	0	0
Jan – Jun 2015	31	1	1	96,215 ml
Jul – Dec 2015	21	0	0	45,063 ml
Jan – Jun 2016	84	0	0	229,050 ml
Jul – Dec 2016	44	0	0	1,000 g, 122,980 ml
Jan – Jun 2017	2	0	0	6,720 ml
Jul – Dec 2017	70	2	2	81.97 g, 116,821 ml
Jan – Jun 2018	91	10	8	73,747 g, 126,825 ml
Jul – Dec 2018	82	0	0	124,675 g, 25,305 ml
Jan – Jun 2019	68	3	0	15,100,982 ml
Jul – Dec 2019	29	0	0	3,030 g, 34,990 ml
Jan – Jun 2020	16	0	0	271,447g, 308,755 ml
Jul – Dec 2020	6	0	0	12,185 g
Jan – Mar 2021	10	0	0	16,151.5 g, 12,460 ml

34.The respondent also adduced the statement of Senior Inspector Ng Ka-lun, of the Intelligence Unit of the Narcotics Bureau of the Hong Kong Police Force, dated 23 June 2021, detailing the number of police arrests and seizures involving GBL and GHB since 2009.

Year	Total no of cases	No of arrests	Quantity of seizures
2009	3	3	GHB 2.7 ml
2010	4	4	Nil
2011	1	1	Nil
2012	8	8	Nil
2013	3	4	GHB 12 ml
2014	2	3	Nil
2015	4	3	GBL 1,230 ml
2016	7	7	GBL 430 ml
2017	8	9	GBL 11,670 ml
2018	5	5	GBL 960 ml
2019	3	3	GBL 1,162 ml
2020	3	3	(Pending Government Laboratory annual report)

35.It seems that there is no current information on the number of sexual assaults, which have been associated with, or facilitated by, the use of GBL or GHB.

Discussion

Appeal against conviction in respect of Charges 2 and 3

36.It is accepted by the respondent that the judge’s reasoning[41] in respect of the appellant’s possession of some of the drugs in Charge 2 and the apparatus in Charge 3 was not correct in the circumstances of two persons living in the same household, effectively as spousal partners.  In the English case of R v Kousar[42], the wife of a co-defendant, who had been charged with nine counts of the unauthorised use of a trademark, was convicted on five of the counts and sought to appeal against her convictions.  The case against the husband was that he was a market trader in counterfeit goods: the case against the appellant was that she was also in possession of the goods because she was aware of the counterfeit goods being stored in the matrimonial home.  Of her position, the Court held[43]:

“To say that she had the ability to control, or the right to control, the goods in the house is no more than to say that it was her house, she lived there, she knew the goods were there; thus she had the right to demand that they should be removed, she acquiesced in their presence in the house and that was sufficient to render her in possession of them.

In the course of argument some discussion was engendered about the normal domestic situation: is a husband or wife to be regarded as in joint possession of items in that house which are in fact the property of the other spouse? Is a husband to be regarded as in possession of clothing and cosmetics, for example, of which his wife is both the owner and the possessor? We venture to suggest that that concept is quite inappropriate. One is not in possession of one’s spouse’s personal property in that sense. The term “possession” has been used, that she permitted this property to be in the house. Permission may be something more than an acquiescence but even then is not in our judgment sufficient to render the permittor a person in possession of the goods. In the field of drugs offences, there is a specific offence of permitting premises to be used for certain activities but there is no equivalent in the legislation with which we are concerned. A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control.”

37.The judgment in Kousar was cited with approval by the Court in Li Jin, which held[44]:

“It followed that in our view it was incumbent on the Judge to make clear that something more than knowledge and acquiescence was required, that the necessary control to be proved was control of the drugs themselves and that an ability to control was to be distinguished from the actual exercise of control.

Taking the directions on possession as a whole we were of the view that the judge may well have been left with the impression that proof of the appellant’s knowledge of the presence of dangerous drugs and her permission or acquiescence in their storage inevitably put her in possession of the drugs.”

Later in its judgment, the Court said[45]:

“We would suggest that judges in cases where joint possession is an issue add to the standard directions that ability to control is not the same as exercising control and that proof of the exercise of control requires proof of more than knowledge and acquiescence. In practical terms it must be pointed out that someone in the position of, as in this case, a wife must be proved to have done something to advance or promote or encourage her husband’s possession if she is to be found in joint possession.”

38.This reasoning in relation to spouses is not new to the courts of this jurisdiction.  In R v Chan Chor-yam[46], the police carried out a raid on a small flat in Hong Kong, in which the appellant, a young woman, lived with her husband, the co-defendant.  He was seen to throw a packet out of the window and to be handling packets containing dangerous drugs, while the appellant was simply present holding a baby.  The judge was satisfied that her evidence that she did not know of the drugs in the flat was untrue.  From that, he went on to say that he was satisfied beyond a reasonable doubt that she was jointly in possession in the sense of custody and control, of the drugs with her husband.  The Court allowed her appeal, holding that “knowledge, although an element in possession, is certainly not to be equated with possession”[47].

39.In the present case, the judge found, as the basis of the appellant’s possession of the drugs and apparatus, that “he knew of their presence, he knew of their nature and he lived in the same small unit.  The only logical conclusion therefore is that he had the ability to control and use them as he desired”.  With respect, without more, that was not a sufficient basis in law for finding the appellant in possession of either the drugs in Charge 2, or the apparatus in Charge 3.

40.It is true that the appellant appeared to be saying in his cautioned statement, when the two bottles and their contents from the drawer of the bedside cabinet were shown to him by Customs officers, that he used them as car cleaning agents; however, that was not the basis upon which the judge convicted the appellant of the GBL component of Charge 2. Indeed, he did not believe the appellant’s alleged purpose of the bottles and, more importantly, seemed to accept that they may have belonged to D2[48].  In the absence of specific findings, we are not prepared to substitute a different basis for the conviction. For these reasons, the appeals against conviction on Charges 2 and 3 were allowed and the sentences set aside.

Appeal against sentence

41.Having allowed the appeals against conviction on Charges 2 and 3, the concurrent sentences of 4 months’ imprisonment in respect of each charge thereby fall away.  However, the sentence of 4 months’ imprisonment in respect of Charge 4 remains, although an adjustment may need to be made in respect of the concurrent term of 2 months’ imprisonment on Charges 2, 3 and 4 which was ordered to run consecutively to the sentence on Charge 1, since the appellant no longer stands convicted of Charges 2 and 3.  We shall address that matter when looking at the overall totality of the sentence in due course.

The international element

42.Mr Donald’s principal complaint concerns the judge’s enhancement of 6 months’ imprisonment for the so-called “international element” involved in importing almost 3 litres of a liquid containing 3.26 kilogrammes of GBL across the border into Hong Kong, when he placed an order on the Internet and caused it to be shipped from Lithuania to Hong Kong.  As we have said, the enhancement represented an increase of some 16.67% on the starting point.

43.Clearly, such an enhancement is disproportionate to the head sentence for the offence, as Ms Chiu properly concedes.  However, the more fundamental question is whether there should have been any enhancement at all for an “international element” in the circumstances presented in this case.  The sole basis of the conviction in this particular case was the appellant’s importation of the GBL into Hong Kong, having ordered the drug on the Internet, resulting in it being shipped to the territory by post.  This basis for the conviction was made clear by the judge, who having set out the definition of trafficking in the Ordinance, held[49]:

“There is no room for dispute that D1 had imported into Hong Kong the GBL, knowing its content, and therefore such act falls into the definition of trafficking in section 2 of the Dangerous Drugs Ordinance”. (Emphasis added)

44.There was, however, no suggestion that the appellant had bought the GBL for resale, or for dealing in or supplying it to others, nor was it a case of possession for the purpose of trafficking: the only basis of “trafficking” in this case was the appellant’s act of importing it. That is not to say that there is not an obvious latent risk of this volume of GBL finding its way into the hands of others, or being used by others in a social setting, but there was no actual evidence of any other form of trafficking, save for the act of importing the drug itself; nor did the judge so find.  All the evidence pointed to possession of the GBL for his own consumption and use by the appellant (and his partner).  Accordingly, we question whether in these particular circumstances the very element that converts the offence from one of simple possession into one of trafficking, namely 7importation, can of itself be used to then enhance the sentence further because the drug has been imported.

45.In Ali Qasim, we raised our concern about the way the international element may sometimes be misapplied in the sentencing of dangerous drugs cases[50]:

“… the danger of a label such as “international element” is that it can sometimes obscure the factual differences that exist between cases involving the importation (or, for that matter, exportation)  of dangerous drugs.  It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs.  The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s active importation; although, of course, the evidence may sometimes establish that he himself is the importer.  Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ.”

We continued[51]:

“In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a post office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong.  We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession.  Much will depend on the facts of the case and the extent of the involvement of the defendant.  However, we would caution sentencers that simply because the label of “international element” can be applied to a defendant’s trafficking of a kilogram of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of two years’ imprisonment.”

46.Ms Chiu rightly accepted that the GBL in this case had been imported without any elaborate or secretive arrangements being involved; and that the sole basis of conviction for trafficking had been that the appellant imported the GBL across the border into Hong Kong.  Accordingly, it seems to us that in circumstances where, as here, there was no attempt to disguise the fact or nature of the importation, which is the sole basis of conviction for trafficking, and where there is no suggestion that the drug is to be trafficked within Hong Kong, or possessed for that purpose, then there is no warrant for any enhancement of sentence for the international element.  That is not to say, however, that where a defendant brings drugs across the border, which by their quantity or circumstances, or by the degree of planning or the involvement of others in smuggling the drugs, are clearly intended for a purpose other than the defendant’s own consumption, an enhancement for the international element does not apply.

The need for guidelines

47.That brings us to the question of whether there should be any guidelines for GBL and GHB.  Although the judge was clearly doing his best, in the absence of guidelines, to forge a principled approach to sentence consistent with that considered by Barnes J in Lam Chi Tak and Jin Bin and Anor, the method of taking the appropriate starting point for methaqualone under Attorney General v Chan Chi-man[52], reducing it by one third, as in the case of benzodiazepines in R v Orton[53], and then increasing the resulting figure by 50% for GBL, seems to us somewhat convoluted and artificial and likely to lead to distortions; particularly where there are variations in the form, utility, toxicity and consumption rates of the different drugs concerned.  Methaqualone, for example, is generally taken in tablet form with the concentration of methaqualone being assumed in Chan Chi-man to be 10 milligrammes per tablet: there was, however, according to the World Health Organisation, Critical Review Report on GBL, by the Expert Committee on Drug Dependence in June 2014 (“the WHO report”), “no available published data related to the average daily dose of GBL”[54], which will presumably vary according to purpose, but since it is usually taken orally in liquid form, as in the present case, “doses are measured in the single millilitre range, either taken all at once or sipped over the course of a night”[55]. The WHO report noted that[56]:

“GBL is often used with other drugs, particularly cannabis, alcohol and ecstasy. Accurate estimates of the prevalence of the use of GBL for its intoxicating effects are not available, in part because of its rapid conversion to GHB, but also because it is not routinely tested during forensic examination. Best estimate of the prevalence of its use, while giving consideration that reports of GHB use may actually be attributable to the ingestion of GBL, is low in Europe and the United States, but possibly significantly higher in other pockets of the world such as Australasia”.

48.In terms of the nature and scale of public health concerns arising from the misuse, abuse and dependence of GBL, the WHO report concluded[57]:

“It is extremely difficult to accurately assess the magnitude of public health problems related to the abuse and dependence upon GBL, considering the near absence of data explicitly related to GBL.

……

Because of the limited direct data with GBL itself, expressions of the nature and magnitude of public health problems related to its abuse and dependence is speculative.  However, based upon the available data on GBL, and inferred from data with GHB, the use and abuse of GBL promotes serious health problems as discussed in the preceding sections above.  However, GBL’s use generally appears to be of a low prevalence to many other abused drugs, except in some isolated pockets of abuse, and the breadth of public health problems its abuse creates is comparatively likely limited.”

49.Despite the lack of specific data as to the scale of the problem in Hong Kong, we do know that GBL is a potent dangerous drug with the capacity to result in overdose, even death, with a slightly excessive quantity, to be used as a “date rape” drug and to be addictive, resulting in withdrawal symptoms.  We suspect that this particular drug has probably passed “under the radar” because, as a colourless, odourless liquid, it is not easily distinguishable from water and, therefore, not readily detectable in the way that other dangerous drugs are.  In any event, we agree with the response of Cons JA (as he then was)  in Attorney General v Leung Pang-chiu[58] to the submission that there was no need for the Court to lay down guidelines in relation to cocaine, because at that time (in 1986)  the drug was still comparatively unknown in Hong Kong[59]:

“With every respect we are unable to accept that submission in the present circumstances. It is better to eradicate a bad habit before rather than after it has taken a firm hold. Cocaine has made a start in this territory, appropriate sentences are necessary to nip the process in the bud.”

50.In our judgment, despite the lack of specific data concerning GBL, enough is known about its dangers, prevalence and use, to venture guidelines for the assistance of the courts.  And that we propose to do.

51.Since there were certain questions which arose from the way other jurisdictions are now treating GBL and where in the scale of seriousness GBL (and GHB)  comes, we adjourned the matter for further expert evidence and authorities to be adduced.  To that end, we were provided with further expert reports from Dr Lai for the respondent and Dr Tang Wai Kwong (“Dr Tang”)  for the appellant.  Among his other qualifications, Dr Tang is an Honorary Fellow of the Royal College of Psychiatrists and currently a Professor in the Department of Psychiatry at the Chinese University of Hong Kong.  He is also a member of the Clinical Division of Substance Abuse and Psychiatry of the Hong Kong College of Psychiatrists and in charge of the Substance Abuse Clinic at the Prince of Wales Hospital.

52.Both Dr Lai and Dr Tang also gave oral evidence before the Court.  Dr Tang did not take issue with anything that had been said by Dr Lai.  However, he pointed out that the WHO report had noted “there are numerous published reports of adverse reactions to GBL, including fatalities.  The general symptoms reported include: vomiting, urinary and fecal incontinence, agitation, convulsions, bradycardia (slow heart rate), loss of consciousness, respiratory depression, coma progressing to death”[60]. He considered that while the onset of action of GBL is faster, and the duration of effect longer than GHB, the abuse potential of GBL may be greater than GHB. He also noted that GBL is often used with other drugs, particularly cannabis, alcohol and ecstasy.

53.It may be noted that in the United Kingdom, the Advisory Council on the Misuse of Drugs report of November 2020 (“the ACMD report”)  declared[61]:

“In conclusion there is evidence of increasing deaths associated with GHB related substances (“GHBRS”)  since the Advisory Council on the Misuse of Drugs last considered the harms of GHB in 2003, and GBL and 1,4-butanediol in 2008.  Although overall mortality numbers are low, there has been a marked increase in deaths between 2008 and 2018.  Mortality figures are likely to be an underestimate due to the challenges in testing for and identifying GHBRS post-mortem.  When GHBRS mortality is compared with other new psychoactive substance drugs, there is evidence that they have a higher risk of fatality.”

54.The ACMD report also found there was “a strong base of new evidence about the mental health harms caused by GHBRS since the Advisory Council of Misuse of drugs last considered their harms”[62].  It concluded[63]:

“… there is strong new evidence of significant criminal harm from GHBRS, including murder, drug facilitated sexual assault and robbery. Other evidence of social harm is sparse, but the evidence available suggests a reduction or loss of an individual’s social and community networks, and a negative impact on personal relationships.”

The ACMD report noted three recent cases from the United Kingdom, which no doubt represent extreme examples of the use of GHB in serious crimes.  The first was the case of Stephen Port, who was convicted in 2016 of four counts of murder, ten counts of administering a substance with intent, four counts of rape and four counts of assault by penetration.  GHB had been administered in liquid form to his victims, all young men, with the aim of raping them in a comatose state.  Four of the victims died as a result of GHB administration.  

55.In the second case, that of Gerald Matovu, the defendant similarly drugged young men with GHB and stole from them after meeting for sex through dating applications.  There were seven victims of theft, five of whom he had drugged with GHB in order to steal from them.  One of the five men received a lethal overdose and died, for which Matovu was convicted in 2019 of murder.  Matovu had supplied GHB to Stephen Port.

56.In the third case, Reynhard Sinaga was convicted in 2020 of 159 sexual offences, including 136 rapes without using a condom.  He approached intoxicated young men and lured them back to his flat, where he spiked the victims’ drinks with sedatives, mainly GHBRS, in order to render them unconscious.  The Crown Prosecutor commented that the victims “have suffered severe and life-changing psychological trauma”[64]. The ACMD report said of the Sinaga case[65]:

“This case provides strong evidence that GHBRS can (be)  and is used as a weapon for sexual assault in the UK, and demonstrated the severe harm caused to victims.”

57.We recognise that the above three cases represent the extreme capability for abuse of GHBRS, of which GBL is one. Nevertheless, we are particularly concerned with three aspects of GHB and GBL, which is the specific substance we are dealing with in the present case. First, as Dr Tang pointed out, which is also supported by the ACMD report, GBL is more lipophilic (ie readily soluble in fats), and therefore more potent, than GHB[66]. Although the purity and concentration of GHB and GBL may vary, 1 millilitre of liquid typically contains 1 gramme of GHB[67] and 1.12 grammes of GBL[68]; accordingly, doses of GBL are correspondingly smaller and more frequent[69].  A dose of 1.5 grammes of GBL may typically be considered a single dose[70].  However, doses of both GHB and GBL are often measured by users in imprecise capfuls, teaspoons, vials or other makeshift containers and it is this very imprecision which is considered to be one of the main reasons for acute GHB/GBL-related harm, since users risk overdosing because of the drugs’ steep dose-response curve[71].

58.Secondly, as Dr Lai warned, there is a narrow safety margin with the use of GHB and GBL, as the Stephen Port and Gerald Matovu cases in the United Kingdom exemplify.  That margin may be expressed as 5:1 for a recreational dose of the drug, and 8:1 for a fatal dose. 

59.Thirdly, GHB and GBL both have the capacity for serious abuse as “date rape” drugs, with GBL having an even greater abuse potential than GHB, since the onset of action is longer, the potency is greater and the duration of activity is longer for GBL than GHB[72].

60.Both experts were, nevertheless, of the view that GHB and GBL could be regarded in a similar way to methaqualone, Dr Lai pointing out that they were all hypnotic drugs with similar actions and reactions. We note that in a research paper and table concerning the relative abuse liability of 19 hypnotic drugs[73] written and complied in 2005[74], methaqualone ranked second, and GHB sixth, in terms of the likelihood of abuse of the drug; while GHB ranked second, and methaqualone third, in terms of the toxicity of the drug.  Both drugs had a similar relative severity of withdrawal symptoms after abrupt termination of chronic dosing at high levels.

61.As will be clear from the WHO report and the ACMD report, as well as other literature, GHB and GBL are often regarded and spoken of together, although there are differences in onset, potency and duration of effect between the two.  We consider that we should provide guidelines for judges and magistrates, which cater for these differences, whilst aiming at consistency with other drugs of the same generic group.  Accordingly, we propose to set guidelines for GHB and then say something about the approach to GBL.

The guidelines for GHB

62.We have concluded, and this seems to have been the conclusion of both parties before us as well, that the approach most likely to promote consistency of sentence between GHB and other kindred dangerous drugs of the same group or type, is to use the guidelines already in existence for methaqualone powder, as set out in Chan Chi-man.  The guidelines, therefore, for trafficking in GHB by its weight in grammes are as follows:

(i)  Up to 500 grammes – as the court thinks fit;

(ii)  Over 500 grammes – 6 to 12 months’ imprisonment;

(iii)  Over 1,000 grammes – 12 to 24 months’ imprisonment;

(iv)  Over 2,000 grammes – 2-3 years’ imprisonment;

(v)  Over 3,000 grammes – 3 to 4½ years’ imprisonment;

(vi)  Over 6,000 grammes – 4½ to 6 years’ imprisonment;

(vii)  Over 9,000 grammes – 6 years’ imprisonment upwards.

The guidelines for GBL

63.As we have said, the above guidelines relate to GHB.  A sentencing court should make a slight upward adjustment on these proposed sentences where GBL is the drug identified and quantified in grammes, so as to give effect to the greater onset, potency and duration of effect of GBL, as against GHB.  By “slight upward adjustment”, we suggest, subject to other factors affecting the discretion of sentencing judges and magistrates, that the sentence for trafficking in GBL should be increased by one month for every year of sentence applicable under the above guidelines.  Thus, by way of illustration, for a starting point of 1 year’s imprisonment for trafficking in over 1,000 grammes of GHB, the starting point for the same quantity of GBL should be 1 year and 1 month’s imprisonment; for a starting point of 2 years’ imprisonment for trafficking in over 2,000 grammes of GHB, the starting point for the same quantity of GBL should be 2 years and 2 months’ imprisonment; for a starting point of 3 years’ imprisonment for trafficking in over 3,000 grammes of GHB, the starting point for GBL should be 3 years and 3 months’ imprisonment.  Quantities which are at the borderline threshold of a particular guideline can safely be left to the discretion of the sentencing court.  Moreover, if there is any evidence of either GHB or GBL being used to commit sexual assaults or other offences against the person or his/her property, such evidence would seriously aggravate any sentence under these guidelines.

64.We must emphasise, as the Court did in Chan Chi-man, that these guidelines are not immutable and may need to be adapted with greater knowledge and awareness of the problem associated with each drug. As both the WHO report and the ACMD report acknowledged, there are still areas for which further evidence in respect of the use and effects of both GHB and GBL may need to be obtained and examined in order to determine whether they should affect these guidelines.

The appellant’s sentence

65.We turn to the sentence in respect of the present appellant, who was convicted of trafficking in 2,910 millilitres of a liquid containing 3.26 kilogrammes of GBL.  If we were to apply the new guidelines to the quantity of GBL concerned, we would have adopted the same starting point after trial as the judge, as if the drug were GHB, namely 3 years’ imprisonment.  We would then have made a slight upward adjustment for the fact that we are dealing with GBL rather than GHB, and arrived at a starting point of 3 years and 3 months’ imprisonment.  We have already explained that we would not, in the circumstances of the appellant’s shipment of the drug from Lithuania to Hong Kong, for what seems to have been his own consumption and use (together with his partner), have enhanced the sentence for the international element. 

66.Having already allowed the appeals against conviction on Charges 2 and 3, it is necessary for us to reconsider the 4 months’ concurrent sentence of imprisonment passed on each of Charges 2, 3 and 4, of which 2 months was made consecutive to the sentence on Charge 1.  Since we are now only concerned with Charge 4, namely the possession of 20 tablets of Sildenafil, a Part I Poison, to which the appellant pleaded guilty, we consider that there should be a sentence of 1 month’s imprisonment on Charge 4, to run consecutively to the sentence on Charge 1.  It should be noted that the appellant pleaded guilty to Charge 4, whilst pleading not guilty to Charges 2 and 3.  That would make a total for the two charges of 3 years and 4 months’ imprisonment, were we sentencing under the new guidelines.

67.We agree with the judge that there is no reason not to activate in full the sentence of 2 months’ imprisonment suspended for 18 months, which was passed on the appellant on 19 March 2018, less than 3 months before the present offences were committed.  Accordingly, the appellant’s total sentence would have become 3 years and 6 months’ (or 42 months’)  imprisonment, were we sentencing under the new guidelines, which, with remission[75], would see the appellant serve an actual sentence of 2 years and 4 months’ (or 28 months’)  imprisonment.

68.Of course, the new guidelines for GHB and GBL cannot apply to the appellant.  If, therefore, we approach sentence on the basis of the judge’s starting point of 3 years’ imprisonment, disregard the 6 months’ enhancement for the international element, add on 1 month in respect of Charge 4 and activate the 2 months’ suspended sentence in full, we arrive at an overall sentence after trial of 3 years and 3 months’ (or 39 months’)  imprisonment, which, with remission, would result in the appellant serving an actual sentence of 2 years and 2 months’ (or 26 months’)  imprisonment.

Two further factors

69.In the normal course, the appellant, who was released from prison on bail after serving only 21 months and 5 days of his sentence, would be returned to prison to serve the remaining 4 months and 25 days of his 26 months’ sentence, assuming, of course, that he was to receive remission for good behaviour.  However, there are two factors which we feel we should address, given the unusual circumstances of this case. 

70.First, the appellant has been on bail pending his appeal since 30 March 2021.  Since then, there have been three hearings of this appeal, in August, September and November 2021, in the first two of which the appellant might have expected a resolution of his appeal.  Unfortunately, the Court required further information and evidence, which necessarily prevented a determination of the appeal until 19 November 2021, some 7½ months after he was granted bail pending appeal.  Had he not been granted bail pending appeal, he would in fact have completed the sentence which we now deem to have been appropriate.

71.Secondly, and more significantly, we viewed the appellant’s affirmation evidence that all of the GBL was for the purpose of cleaning his car as transparently untrue.  Not only does the appellant have previous convictions for possessing dangerous drugs and Part I Poisons, the judge himself did not accept that he had the GBL for cleaning his car, observing that some had been found in a drawer of his bedside cabinet.  We are of the view that the appellant imported the drug for his own (and his partner’s)  consumption or use, whatever he purported to say in his affirmation to this Court, which we resolutely reject.  Such importation, of course, amounts to trafficking and we have no doubt that there was a further significant risk of latent trafficking in this quantity of GBL.  Fortunately for the appellant, there is no evidence of the sort of misuse of the drug which might have warranted a significant increase in sentence.

72.We cannot, therefore, ignore our own conclusion that a significant proportion, if not most, of the GBL was for the appellant’s own consumption or use.  This situation in which the Court has been placed is not unknown.  It more usually occurs where a defendant with an obvious drugs problem has strenuously fought and lost a case of trafficking in dangerous drugs, in which he has alleged he never had possession of any of the drugs in question because they were planted on him by law enforcement officers.  The trial court has rejected the defence allegation and the appeal court has then upheld the trial judge’s verdict and dismissed his appeal against conviction. The fact nevertheless remains at the ensuing appeal against sentence that the court is dealing with a drug addict, who no doubt had some of the drugs for his own consumption. 

73.In those circumstances, the Court is left to decide whether it should dismiss the appeal against sentence, given its resolution of the appeal against conviction, or whether it should assume in the appellant’s favour on his appeal against sentence that a significant proportion of the drugs was, in fact, for his own consumption[76].  Sometimes, the Court has to conduct the exercise and make sure that justice is done without any assistance from the appellant or his lawyers on this issue.

74.The position in which we now find ourselves is not dissimilar.  Indeed, we think we should address the question of the appellant’s own consumption of GBL, since we are effectively sentencing him afresh, having overturned the sentences in respect of Charges 2 and 3 and removed the enhancement for the international element, whilst laying down new guidelines for future cases involving the trafficking of GHB and GBL; particularly where there is evidence, despite his claims otherwise, that the appellant was himself a consumer of GBL: see HKSAR v Tsoi Man Chun[77].

75.Fortunately for the appellant, we have concluded that a significant proportion of the drugs in question was for his own consumption or use, even though he had caused the drug to be imported across the border into Hong Kong, and there must be a significant latent risk of actual trafficking in the quantity concerned.  That being so, we are prepared to find, without any assistance from the defence itself on this issue, that we should give him some allowance for this factor.  Not without some hesitation, we have decided that the justice of the case demands that the appellant should not be returned to prison. 

76.We wish to make it clear, however, that had the first consideration, namely, that he has been on bail pending appeal for 7½ months, stood alone, we would not have been deterred from returning the appellant to prison to serve out his sentence.

Disposition

77.In the circumstances, we resolved that the resulting sentence of 3 years and 3 months’ imprisonment imposed by the judge, after removing the enhancement of 6 months, adjusting the consecutive sentence on Charge 4 to 1 month’s imprisonment following our overturning of his convictions on Charges 2 and 3, but retaining the activation of the 2 months’ suspended sentence of imprisonment, should be reduced to such term as will allow the appellant’s immediate release. 

78.Accordingly, we allowed the appeal against sentence to the extent indicated.

Ms Samantha Chiu SPP, of the Department of Justice, for the Respondent

Mr Richard D Donald and Ms Zoe M McCoy, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the Appellant