COURT: Defendant, on 3 July 2023, you have pleaded guilty to a charge of doing an act for the purpose of trafficking in a substance you believed to be a dangerous drug, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance before a magistrate sitting at the Eastern Magistracy. On the same day, you admitted a Summary of Facts. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.
At this sentence hearing today, the Summary of Facts has been amended and the amendments to the facts have been read to you and you have admitted those facts to be correct.
Defendant, you have admitted that on 24 August 2021, at your home, in Po Hei Court, No. 255 Po On Road, Cheung Sha Wan, you did an act for the purpose of trafficking in a substance you believed to be a dangerous drug, namely, 142.5 grammes of a solid, which did not contain substances controlled under the Dangerous Drugs Ordinance.
The Amended Summary of Facts, as was read to you today, states that the substances found were not controlled dangerous drugs nor were they part one of the Poisons List Regulations of the Pharmacy and Poisons Ordinance, Chapter 138. However, the government chemist found that the substance contained N-isopropylbenzylamine. I shall turn to what that drug is later in my reasons.
The facts of you being found in possession of these drugs and trafficking are as follows.
On 24 August 2021, police officers conducted an anti-narcotics operation at Po Hei Court. At around 1748 hours, when your younger brother was leaving your home, the police entered your flat. Upon entering the flat, you were seen lying on the upper bunk bed in the bedroom.
Upon search of the flat, the substance as stated in the charge were found under your pillow in the upper bunk. One plastic bag contained 73.1 grammes of crystalline solid. Another plastic bag contained 69.4 grammes of solid, which the total is that as stated in the charge of 142.5 grammes of a solid which did not contain substances controlled under the Dangerous Drugs Ordinance or the part one poisons. Also, an electronic scale and an iPhone were found under your pillow. On top of the iron gate at the entrance door, a black plastic bag containing a number of small empty resealable plastic bags were found.
You were arrested and cautioned for trafficking in a dangerous drug. Under caution, you said that you slept on the upper bunk bed in the bedroom and the two packs of pork found underneath the pillow were for your own consumption. In a video-recorded interview, under caution, you stated that the pork, which meant ‘Ice’, the dangerous drug ‘Ice’, would be consumed using an inhaling device, a pipe and a drinking straw. They were given to you by a friend nicknamed “Ho Jai” in Tsim Sha Tsui for your own consumption.
You admitted that you had been consuming ‘Ice’, the dangerous drug, for half a month at a dosage of 1 to 5 grammes every day. You were afraid that your drug addiction would be found out by your family, so you would not consume the dangerous drug ‘Ice’ at home. To restrict your own dosage, you would weigh a small amount of the dangerous drug with an electronic scale and bring it to a hotel for consumption.
Having told the officers under caution that these drugs were for your own consumption, you, however, now admit and accept at all times you did an act for the purpose of trafficking in the substance you believed to be a dangerous drug, namely, methamphetamine.
Defendant, your counsel, Ms Barbara Wong, has written full, very detailed written mitigation on your behalf. She has properly referred to the cases in regard to trafficking in the dangerous drugs ‘Ice’ and to the case of trafficking in the case where the substance is not drugs of Cheng Ling Ling [2019] 3 HKLRD 797. For this offence, it carries the same maximum penalty of life imprisonment for the substantive offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.
You are now aged 22, born in Hong Kong and have been educated up to Form 4. You have one previous conviction, a similar conviction of trafficking in dangerous drugs to which you were sentenced to a training centre on 13 November 2019. You were discharged from Pik Uk on 26 February 2021 and approximately six months after your release from the training centre, you committed a similar and same offence of trafficking. You were recalled back to the training centre between 25 August 2021 and 28 January 2022 as a sentence imposed for your breach of the supervision order from Pik Uk.
The reason for you committing this offence some six months after your release from the training centre, as is explained by Ms Wong, is due to the fact, first of all, that you had lost your job. You could not find a job and despite much effort, you felt demoralised by not finding a job. And as a result of your network of friends who one was Ho Jai, he told you that he could help you find gainful employment soon. However, during this time, supposedly to uplift your spirits and give you energy to search for a job, he gave you these goodies which you thought were ‘Ice’. You therefore could not resist this temptation and took these from him.
I am informed by Ms Wong and in your video-recorded interview that you started to take what you thought was ‘Ice’ half a month before you were arrested. It is your initial submission that you took at least 1 gramme and increased that to 5 grammes as you took more and more quantity as the time went by so that you could get the same effect as your friends, such as excitement, less depressed, pleasure, energy.
However, you did not have the pleasure, energetic effect as claimed, but you were told that the effects differ from person to person. You only later found out after, I believe, your arrest, that these goodies supposedly being ‘Ice’ turned out to be counterfeit ‘Ice’.
Turning now to this counterfeit ‘Ice’, the Amended Summary of Facts, now refers to the expert report compiled by Dr Chong Yiu-kwan who is an expert on detection of new psychoactive substances or emerging drugs of abuse. In his report, he concentrates on the drug as stated, N-isopropylbenzylamine.
Referring to his report, isopropylbenzylamine is a secondary amine. It is a chemical used in manufacturing of industrial compounds and drugs. It has the same molecular formula, C10H15N, as methamphetamine, but the structural formula is different. He then provides a figure in his report showing the chemical structure at paragraph 4.1. He states that isopropylbenzylamine is not known to be psychoactive. It was found as an adulterant of methamphetamine in the past two decades. It has a similar physical appearance and is accepted in the literature that isopropylbenzylamine has been used as an adulterant or sold as methamphetamine.
In a report by the UNODC, it was stated that isopropylbenzylamine has been increasingly used as a substitute of methamphetamine due to decreases in domestic supply of methamphetamine. He states that the Drug Enforcement Administration of the United States states that the high purity of isopropylbenzylamine and related substances suggests that the compounds were industrially rather than clandestinely produced. However, they stated that the large crystal forms indicates that the clandestine operators are recrystallizing them in order to better mimic large ‘Ice’ methamphetamine crystals. He states that there is no medical use for isopropylbenzylamine.
Regarding the method of consumption, as it is not a drug of abuse but rather a mimic adulterant of crystal methamphetamine, the method of consumption is expected to be the same as crystal methamphetamine, ie by inhalation. Regarding the consumption pattern and daily dosages, as isopropylbenzylamine is not a drug of abuse but rather a mimic adulterant of methamphetamine, the consumption pattern is expected to be the same as methamphetamine. The daily dose of isopropylbenzylamine could not be determined.
Turning then now to the daily consumption, Ms Wong, counsel for the defendant, had initially urged the court to take into account that a significant proportion of the substance was used for the defendant’s own consumption and that is, in fact, what he told the police immediately upon arrest and under caution. It is stated by Ms Wong that the consumption was between 1 to 5 grammes increased as he did not feel the effects of the substance.
I indicated to Ms Wong that given, firstly, the fact that the expert, Dr Chong, noted in his opinion and report that the daily dosages were expected to be the same as methamphetamine that I was unable to accept that the defendant would consume 1 or 5 grammes a day.
I informed Ms Wong about the dosages as stated in Tam Yi Chun on the consumption of ‘Ice’ at paragraphs 26 and 27 whereby the average abuse dosage for new or infrequent uses of the drug methamphetamine, ‘Ice’, was in the range of 0.05 to 0.01 grammes per day whereas, as stated in paragraph 27, for regular users of ‘Ice’, the average daily consumption is in the range of 0.1 to 0.5 grammes. I therefore found it hard to accept that as high as 1 to 5 grammes of dosage for isopropylbenzylamine for the defendant’s consumption was correct.
Further, I informed Ms Wong that the defendant himself admitted that he would package the drugs, not smoke or inhale these at home, and take them to a hotel whereby he would smoke and share them with friends. In that instance, one could regard that as social trafficking. In any event, even if I were to allow or permit the defendant to say he was inhaling 2 grammes a day, that would not be a significant or large proportion of the quantity of substance found.
Ms Wong informed the court that the defendant did not require a Newton hearing to determine his consumption amount per day and would accept the court’s finding that a very small amount of these drugs would have been for his own consumption. I indicated that I would not be giving the defendant any discount on the basis of his own consumption.
Turning to sentence, the sentencing principles for trafficking in a substance believed to be a dangerous drug was set out in the case of HKSAR v Cheng Ling Ling, as I referred to earlier, [2019] 3 HKLRD 797. In following the principles laid therein, the court should deal first with the factor of the typical or usual strength of the drug that the defendant believed he was trafficking in.
Turning then to that factor, in regard to the quantity of substance in this case, there was 142.5 grammes of substance which the defendant believed to be ‘Ice’ or methamphetamine. However, in this case, it is agreed and admitted between the parties that the percentage purity of ‘Ice’ in August 2021 would have been approximately 95 per cent and that is referred to in a statement by Detective Senior Inspector Leung Wing-yi Pinky.
In the circumstances, 142 grammes would not be the quantity taken as a starting point, but 95 per cent of that would be taken as the quantity of substance. So 95 per cent of 142.5 grammes is equal to 135.37 grammes. That would be the notional weight had this substance been ‘Ice’ or methamphetamine.
Taking that notional weight and turning to the guidelines for trafficking in the drug ‘Ice’ as stated in Tam Yi Chun, that would fall within the bracket of 70 to 300 grammes, which would attract a sentence of between 11 and 15 years’ imprisonment. For that quantity of ‘Ice’, had the defendant been convicted after trial, a starting point, in my view, of 12 years would be appropriate.
The next step to be taken is the fact that the defendant pleaded guilty for this offence at the very first and earliest opportunity, and for that he shall be awarded the full one-third discount, which will reduce the sentence to 8 years’ imprisonment.
The fourth step to look at would be the no or little harm factor if there should be any further reduction. For this, I am guided by the expert report whereby at paragraph 4.7, he refers to the biological effects and toxicity. He mentions there is a scarcity of toxicological information for the drug isopropylbenzylamine in the literature. As an industrially-used chemical, states that it causes skin irritation, causes serious eye irritation, and may cause respiratory irritation. It further states cough, shortness of breath, headache, nausea and vomiting as possible effects.
In the Chinese literature, it was mentioned the comments of this drug produced large amounts of smoke but no stimulant effects, irritation to the throat. In concluding his report at 4.71, on the online forums regarding frequent drug abusers of this drug, most reports indicate no stimulant effects, however effects such as anxiety, listlessness, difficulty in concentration, and paranoia have been reported by abusers. But the effects following the use of this occur only rarely and/or are generally mild.
It does not appear to me at least from this report that there are harmful effects of this drug. There does not appear to me to be any dependency. As the report states, there are no stimulant effects and it is unlikely to be psychoactive. In those circumstances, given the no or little harmful effect of this drug, I am prepared to give the defendant a further discount.
Defendant, giving you a further discount, I consider a sentence of 6 years and 6 months’ imprisonment to be appropriate after your plea of guilty and taking into consideration the little or no harm effect of this drug, and you are sentenced to that term.