HKSAR v. Chan Wai Keung, Danny
Read the full judgment text of HCCC 267/2001 on BabelCite. This High Court CFI judgment was delivered on 10 November 2001.
1. The Accused Chan Wai Keung Danny was arrested on 8 May 2001 at the Lo Wu Customs Control Point at about 5:15 p.m. by a Customs Officer. After being taken to a Customs Examination Room, he was asked whether he had anything to declare. After the Accused indicated that he had not, a body search was conducted during which three packets containing suspected dangerous drugs were found inside his underpants.
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HCCC000267/2001 HCCC267/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO.267 OF 2001 --------------------------
-------------------------- Coram : Deputy High Court Judge McCoy S.C. in Court Dates of Hearing : 28 September, 30 October and 10 November 2001 Date of Judgment : 10 November 2001 --------------------------- J U D G M E N T --------------------------- 1.The Accused Chan Wai Keung Danny was arrested on 8 May 2001 at the Lo Wu Customs Control Point at about 5:15 p.m. by a Customs Officer. After being taken to a Customs Examination Room, he was asked whether he had anything to declare. After the Accused indicated that he had not, a body search was conducted during which three packets containing suspected dangerous drugs were found inside his underpants. 2.The Accused was immediately arrested and cautioned after which he was asked "What are these?" to which he replied "I guess they may be K Tsai". When further asked to whom the drugs belonged the Accused replied "I carried them for someone". When further asked "Where he intended to carry" the drugs, he replied "I intended to carry them to Mongkok KCR Station then someone would contact me there". During a subsequent interview, he declined to say anything further. 3.The suspected dangerous drugs were examined by the Government Chemist and found to be dangerous drugs, namely 454 grammes or the powder containing 446.60 grammes of ketamine hydrochloride being a salt of ketamine. Ketamine it must be noticed was only added to the Schedule to the Dangerous Drugs Ordinance on 15 December 2000. 4.On 10 August 2001, the Accused pleaded guilty to the charge of trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance before Allan Wyeth, Permanent Magistrate, sitting at the Eastern Magistracy. The Accused admitted the facts to which I have just referred and was accordingly committed to the Court of First Instance for sentence. 5.On 28 September 2001, the Accused appeared before me, he confirmed his plea of guilty and readmitted the summary of facts. He was there upon formally convicted of the count of drug trafficking. 6.The Accused has been admirably represented in this court by Mr Steve Chui instructed by the Director of Legal Aid and I specifically commend the Director for the care and attention which he has obviously bestowed on this case for before me has taken place a Newton hearing, a hearing where certain facts and the degree of criminality are contested, to be resolved on the ordinary criminal law principles, to see what facts can be established beyond reasonable doubt. And the facts in issue in this case are as to the dangerousness of ketamine as a drug generally and when compared with other dangerous drugs, more familiar to the criminal justice system. 7.In the decision of the English Court of Appeal, R. v. Sabeddu (unreported) 24 October 2000, the Court of Appeal (Mantell LJ, Holman J and Judge David Clarke QC, Recorder of Liverpool) also were asked to deal with a case of ketamine trafficking. The Court of Appeal stressed that they were not fully informed as to the actual degree of dangerousness of that particular drug and, accordingly, the decision there could not be regarded as any kind of precedent or indication in another case as more evidence and information should have been available to the sentencing court. In that case, the English Court of Appeal in the same way criticized the prosecution for not bringing sufficient evidence of the nature of ketamine to their attention. HKSAR v. Yau Wai Hang : CACC 80/2001, 7 August 2001 8.The first case in the superior courts involving ketamine is a judgment of the Court of the Appeal in HKSAR v. Yau Wai Hang CACC 80/2001 delivered on 7 August 2001. There, the applicant aged 21 pleaded guilty to three charges. The first charge was for possession of only 1.64 grammes of a solid containing ketamine hydrochloride, this offence took place on 10 December 2000, that is before ketamine was a dangerous drug under the Schedule. He was charged in relation to that under the Poisons Ordinance. The second charge was for trafficking in dangerous drugs consisting of two tablets containing 95 milligrammes of ice and 53 milligrammes of ketamine, very small amounts. This offence took place on 16 December 2000, therefore it occurred on the second day that this drug was prohibited contrary to the Dangerous Drugs Ordinance. 9.The final charge in the case of Yau Wai Hang was also of trafficking in dangerous drugs. It involved 200 tablets containing 6.15 grammes of ketamine and 38.97 grammes of ecstasy. In relation to the first and second charges, the Court of Appeal disagreed with the respective starting points of two years on the first count and three years on the second count, adopted by the trial judge. The Court of Appeal took the view that the starting points should have been respectively 15 months and two years. The Court of Appeal, however, agreed with the starting point of two and a half years adopted by the trial judge on the third charge which was, I repeat, one of 6.15 grammes of ketamine and 38.97 grammes of ecstasy. HKSAR v. Lee Wai Man : HCCC 214/2001, 10 September 2001 10.The next case to come before the superior courts was a decision of Recorder Ronny Wong SC in HKSAR v. Lee Wai Man HCCC 214/2001delivered on 10 September 2001. In that case, the learned Recorder had for sentencing an Accused who had pleaded guilty in the Magistracy of one count of trafficking in dangerous drugs. The drugs consisted of 1,619 tablets which contained 27.94 grammes of ecstasy and 187.83 grammes of ketamine. The Accused had been arrested on 24 February 2001 when he was intercepted by a Customs Officer at Lo Wu Control Point. There the drugs had been strapped around the Accused's right and left legs and hidden near the toecap of the Accused's left sneaker. 11.In that case, the learned Recorder also heard evidence as to the nature of ketamine. He heard evidence from Dr Chen Char Nie ("Dr Chen"), a specialist in psychiatry who was the Chairman of the Hong Kong Action Committee Against Narcotics between 1993 to 1998. According to Dr Chen, ketamine abuse in Hong Kong was only reported in 1999, but it rapidly became popular among young abusers in the year 2000. During the first six months in 2000, a quarter of the newly reported abusers below the age of 21 abused ketamine. Because it is odourless and tasteless, ketamine can be added to beverages without being detected. It is often used in rave parties and therefore as a date-rape drug on some occasions. 12.In that case, Dr Chen offered a comparison between ketamine and other abusing substances. The important passage in the decision of Recorder Ronny Wong SC is at page 4 where he said this :
13.The correctness of that finding has been put in issue in evidence before me, because on the evidence of Dr Chen, in round general terms ketamine is more dangerous than ecstasy. However, the matter does not rest there. HKSAR v. Luk Ho Fat : HCCC 209/2000, 8 October 2001 14.On 8 October 2001, Mr Justice Jackson in HKSAR v. Luk Ho Fat HCCC 209/2000 had for sentencing a case in which a 21-year old defendant had pleaded guilty at Eastern Magistracy to an offence of trafficking in dangerous drugs and was also committed to sentence to the Court of First Instance. That case revealed that at about 10:30 p.m. on 8 February 2001, the defendant was sitting in the front passenger seat of a private car which was stopped by Customs officers at Tai Lam Tunnel. The car was searched and underneath the rear passenger seat two packets were found which contained 1,775 tablets. Subsequent analysis of those tablets revealed that they contained 28.33 grammes of ecstasy; 185.73 grammes of ketamine and 3.23 grammes of diazapam (which is more commonly known as valium). In that case, the defendant told the officers under caution that the tablets belonged to him, that they were Fing Tau pills, that they were for sale for $35 per tablet and the driver of the car had nothing to do with those drugs. 15.The Judge heard evidence again as to the seriousness of ketamine. He accepted that this drug produces dissociate anesthesia characterised by a trance like state, amnesia and marked analgesia. In other words, the person who takes this drug is conscious, immobile, unresponsive to pain and is disassociate from the environment and that is apparently its attraction to drug users. The drug, which because the user of it loses awareness of things going on about him, together with loss of co-ordination and pronounced analgesia, can put the user at great risk. Some users experience a state in which they are unconcerned about whether they live or die, and ketamine has the potential for compulsive repeated use. 16.Mr Justice Jackson heard evidence from a Dr Lee Kwing Chin for the defence and Dr Chen Char Nie for the prosecution (the latter of course who had given evidence also before Recorder Ronny Wong SC). Mr Justice Jackson stated that the compelling evidence which he had received was not made available as perhaps it might have been to Mr Recorder Wong. In that case, Dr Lee dealt with four questions as follows :
17.I will turn to the answers given by those experts in that case in a minute. But in the case presently before me, I sought and was helpfully provided by the prosecution with evidence about different questions. For me, it appeared with respect, to be more important to understand the dangerousness of ketamine as a free-standing dangerous drug and also to then compare it with ecstasy, as opposed to a comparison with ice. In the case before him, the experts were able to give answers and in a sense, Mr Justice Jackson concluded at paragraph 27 of his judgment by saying this :
18.Now it must be remembered there that the 1,775 pills seized were a compound of ecstasy and ketamine and valium, all three drugs blended in compound form into that significant number of tablets. Mr Justice Jackson described it accurately in my respectful view as a cocktail of drugs. He adopted a starting point, in that case, of nine years' imprisonment and because of the plea of guilty reduced the sentence of imprisonment by one-third to six years. HKSAR v. Chu Ching Tak : HCCC 164/2001, 15 October 2001 19.The next decision of the superior courts is a decision of Mrs Justice Verina Bokhary given on 15 October 2001 in HKSAR v. Chu Ching Tak HCCC 164/2001. Like me, that learned judge has held a Newton hearing to understand and see whether the prosecution is able to prove the true nature and seriousness of ketamine on a comparative basis. 20.The earlier case law was reviewed and in the case before the learned judge the evidence disclosed that the Accused Chu Ching Tak on 6 January 2001 outside an address in Tuen Mun had trafficked in dangerous drugs, namely 992.21 grammes of a powder containing 969.89 grammes of ketamine hydrochloride, 23.95 grammes of cannabis and 30 tablets containing a total of 1.26 grammes of ecstasy and 0.56 grammes of valium. It was clear that the bulk of the dangerous drugs in that case was ketamine hydrochloride and in round terms the amount was basically twice the amount in the case presently before me. 21.In that case the defence was not prepared to accept that trafficking in ketamine was more serious than trafficking in ecstasy, which had been in the conclusion reached by Recorder Ronny Wong SC, on the evidence of the prosecution expert before him. Therefore the case was adjourned for a hearing on the extent to which ketamine was abused and the extent of the harm that results from such abuse. 22.At the adjourned hearing, Madam Justice Bokhary had a report from the prosecution from Dr Chen Char Nie, who it must be noted had given evidence in the three Court of First Instance cases prior to the case before me today. Dr Chen is a highly qualified and highly experienced psychiatrist. He was the Chairman of the Action Committee Against Narcotics and Foundation Director of the Drug Addiction Unit established at the Prince of Wales Hospital. On the strength of the reports and the evidence in the cross-examination, Madam Justice Bokhary made a number of findings. The important ones are listed at paragraphs 19 and 20, she held :
23.Having directed herself on the evidence, Madam Justice Bokhary then proceeded to sentence the Accused. For 969.89 grammes of ketamine under charge 1, she took a starting point of nine and a half years' imprisonment because she had equipirated this with the ecstasy tariff set out by the Court of Appeal in Lee Tak Kwan. However, taking into account the mitigation available to the Accused there, principally the fact that he pleaded guilty in the Magistrate's court at the earliest stage, she discounted the nine and a half years' imprisonment under charge 1 to six years. The other sentences were also dealt with the small amount of valium and cannabis an ultimate sentence imposed for all of the drugs was six and a half years' imprisonment. The present case : prosecution expert : Dr Chen Yuk Lun, Ronald 24.In the case before me today, there are no other drugs except ketamine hydrochloride. In all the other cases, the learned judges have had to deal with dangerous drugs in combination - which is perhaps an aggravating feature. I have heard evidence from two experts who have not given evidence before in this series of cases. Mr Ozorio for the prosecution called Dr Chen Yuk Lun, Ronald who is an Assistant Professor in the Department of Psychiatry at the University of Hong Kong. He has a Bachelor of Science degree in Bio Medicine, he has a Bachelor of Medicine and Surgery degrees, from 1990 has been a Member of the Royal College of Psychiatrists in United Kingdom. He is a Fellow of the Hong Kong College of Psychiatrists and is a Fellow of the Hong Kong Academy of Medicine with a specialization in Psychiatrity. He has been involved in general adult psychiatry since 1990 (which includes as a significant feature, clinical service for patients with drug abuse). Prosecution evidence - proved beyond reasonable doubt 25.His evidence which I accept as being proved beyond reasonable doubt is to the following effect. Ketamine is classified as a dissociative anaesthetic, a class of anaesthetics which produces unresponsiveness to external stimuli by dissociating various components of the mind. In pharmacological terms, the action of ketamine is mainly contributed by its non-competitive blockade of the N-methyl-D-aspartate receptor in the brain. He told me that ketamine can be given by oral, nasal, intramuscular and intravenous routes. The effects begin approximately 10 to 30 minutes after oral administration, approximately five to 10 minutes after nasal administration, approximately two to four minutes after intramuscular administration and after only 30 seconds following intravenous administration. One of the physical side effects of the drug is that it is metabolized in the liver to form norketamine which is a chemical with the anesthetic potency of about one-third that of ketamine itself. The duration of the drug effects is from ten minutes, if taken intravenously, to an hour if taken intramuscularly, and to four hours if taken orally - which is by far the most common way of taking ketamine in Hong Kong and by drug users all around the world. 26.Dr Chen told me that the dissociative anesthesia is characterized by a trance-like state, amnesia, and marked analgesia. In another words, the patient is still conscious, immobile, cannot move, unresponsive, does not feel pain and is dissociated (or distanced in the mind) from the environment around him or her. It produces a state of psychological hallucination and the drug taker is likely to experience and out-of-body or near-death experience. It can induce a state of helplessness in which the user loses awareness of the environment, severe loss of co-ordination of the body and because of the pronounced analgesia, the fact that he cannot experience or feel pain, the drug taker is at great risk of accident whilst the effects of the drug continue. He told me that some users experienced a state in which they are simply unconcerned whether they live or die whilst they are under the status of this dangerous drug. 27.The physical effects and the main concerns of ketamine include imbalance gaits, an inability to stand up or walk straight or be able to keep an able balance which results in the drug users often falling, being numb, slurred and hoarse speech, experiencing blurred or doubled vision, roving movement of the eyes, raised pressure from within and behind the eyes, dizziness, vertigo which is a fear of falling down and a sensational of falling down, nausea, a feeling of wanting to be uncontrollably sick, vomiting, headaches, sweating, fever, muscle spasms, twitches, tremor and sudden jerky movements. 28.His evidence was that rapid intravenous injection of ketamine, which is very uncommon, will suppress breathing and that snorting ketamine powder in the style of cocaine users, can damage the nasal linings. Dr Chen's evidence was that there have been reports of fatal ketamine overdoses, where the blood concentration has been of 1.8 to 27.4 milligrammes of ketamine per litre, while the blood concentration range for the surgical use of anasthesia has been found to be one to 6.3 milligrammes per litre. It is accepted in a review of the world literature, that most of the reported fatal cases involving ketamine were due to associated accidents from someone hurting himself while under its influence, or by multi-drug intoxication, taking ketamine together with other recreational drugs. The synergism, the effect of one drug on other drugs, is the reported basis for fatality. Dr Chen said there is clear evidence showing that ketamine has a high potential to develop rapid pharmacological tolerance, so that the drug user needs to take higher and higher doses over time in order to achieve the previous drug effects. 29.The fading of the psychological experience urges people to carry on with compulsive binges of ketamine, resulting in psychological dependence. However Dr Chen said quite clearly there is little evidence of physical dependence. This seems to be a need of the mind to gain the psychological effect of the drug. There is no consistent evidence for a physical withdrawal syndrome resembling that of alcohol or opiates or heroin. Adverse effects of overdose 30.At a high dose, ketamine will cause confusion, respiratory depression, spasm of the larynx with apnoea, vomiting, abnormal heart rate, raised blood pressure, raised intra-cranial pressure, raised intra-ocular pressure, seizures, polyneuropathy, acute dystonic reactions and cardiac arrest, which is a heart attack in layman's terms. Adverse effects of abuse 31.Dr Chen said people abusing ketamine by prolonged repeated use will experience vivid unpleasant dreams, irrational behaviour, alterations in perception, impaired cognitive function, impaired mental vigilance, verbal fluency and delayed word recall, and a broad range of symptoms and behaviour that resemble aspects of endogenous psychosis, particularly schizophrenia. 32.I was informed that ketamine is a chemical structure variant of Phencyclidine which is commonly known as angel dust. But ketamine is only about one-tenth as active as angel dust. Dr Chen concluded his evidence for the prosecution by saying that according to the statistics from the Central Registry of Drug Abuse, ketamine abuse in Hong Kong was first formally reported in 1997. I note that this contrasts with the evidence of Dr Chen in earlier cases that the first formal reports in Hong Kong were in 1999. In the year of 1999, there was 3,134 newly reported abusers of various kinds of drugs and substances and 0.2% of them was found to abuse ketamine. However, in the year 2000, 9.7% of the total of the total of 5,362 newly reported drug abusers abused ketamine. In the first three months of this year, January, February and March, the percentage of ketamine abusers, new abusers, has increased to 15% among the total of first time drug abusers of whom 1,636 had reported to the Central Registry of Drug Abuse. 33.According to a recent local study conducted by Dr Ben Cheung, senior medical officer, Kwai Chung Hospital, among 123 persons with active substance abuse, 70% abused ketamine. The mean duration of ketamine use was around 15 months, so they had been using ketamine for 15 months and about 1% of the abusers initially started with ketamine. Dr Chen said that other psychedelic drugs such as Lysergic Acid Diethylamide ("LSD") and Psilocybin had become far less popular because they usually leave the drug taker too exhausted and are potentially unpleasant to be consumed frequently. He said people find ketamine easier to take because it can produce a state of emotionally "high indifference". Owing to its rapid development of tolerance, people will be driven to experience such an emotional state by compulsive, frequent and high dose consumption. Thus, he stressed ketamine has a high potential to develop dependence. The effects of ketamine are similar to other commonly abused drugs. Ketamine has a risk to produce symptoms of psychoses and he stressed that people who have a genetic pre-disposition to schizophrenia, (and schizophrenia is a genetic disease), have a very special vulnerability, because world literature proves beyond doubt that people with a genetic predisposition for schizophrenia who take ketamine, had a high risk to develop the real psychosis and get full schizophrenia; whereas without ketamine that would not have happened. Defence expert : Dr Lee Tak Shing MD 34.I now turn to the evidence called by the defence. Dr Lee Tak Shing gave evidence. He graduated from the Chinese University of Hong Kong with the prestigious degree of Bachelor of Medicine and Bachelor of Surgery with Honours, in 1991. He underwent psychiatric training at Cambridge University and he joined the Department of Psychiatry at Chinese University as an Assistant Professor and Clinical Lecturer. He was promoted to Associate Professor in 1998. He received the Freeman Fellowship of the Harvard Medical School in 1999 and 2000. He was appointed a Lecturer of the Department of Social Medicine at Harvard Medical School in 2001. 35.He is not just a Doctor by carrying the popular appellation of "Doctor" that all people who graduate with the degree of Bachelor of Medicine and Bachelor of Surgery obtain. He has a Doctorate in Medicine. He is a Member of the Royal Society of Psychiatrists, a Fellow of Hong Kong Academy of Medicine and a Fellow of the Hong Kong College of Psychiatrists. He too has never given evidence in any of the previous cases in relation to ketamine. Defence evidence : proved beyond reasonable doubt although no onus of proof on accused at all 36.Dr Lee has been in-charge of the Substance Abuse Clinic of the Prince of Wales Hospital since its establishment in 1996, the second clinic of its kind in Hong Kong. This clinic provide services to all kinds of drug abusers : from hard-core heroin mainliners to party drug users. He works collaboratively with drug abuse treatment agencies, including gospel teaching treatment centers, inpatient drug abuse treatment centers, psychotropic substances outpatient counseling centers, outreach social workers, drug education agency, and other drug abuse counseling services. Clinical work and contacts with these agencies have enabled him to keep abreast of the latest developments of the drug scene in the different segments and the regions of Hong Kong. He is familiar with drugs right across the drug abuse spectrum, from public estate youth, to expatriate in all different parts of Hong Kong. 37.He is a front-line drug abuse specialist, an active trainer and researcher of addiction medicine. Over the past five years, he has been responsible for training psychiatrists in Macau, Vietnam and Mainland China through the World Health Organization regional office. He has been repeatedly invited to give lectures to social workers, drug abuse workers, and medical specialists on psychotropic drug abuse and the latest drug abuse trends. 38.In the last 12 months, he has conducted an in-depth study of party drug abuse in Hong Kong. His aim has been to understand the latest developments in the local drug scene, particularly the popularization of ecstasy, ketamine, and other drugs in local discos, parties, and clubs. In order to acquire first-hand knowledge about the drug use pattern and culture, he has participated in numerous rave parties, visited discos, clubs, mega-dance parties, over the past 12 months. He has carried out both informal and in-depth interviews with party- and disco-goers to understand how and why they use drugs. He has talked to and interviewed key players in the local party drug scene, including drug pushers, traffickers, rave DJs, rave party organizers, the Government Chemist, and front-line drug abuse social workers. He has studied and collected the rich data on the local drug scene. General introduction to ketamine 39.At my request he gave evidence and, again, I am particularly grateful to the Director of Legal Aid for the assistance in this regard. 40.I was informed that ketamine was first clinically synthesized by an American pharmacist, Dr Calvin Stevens, in 1962. Ketamine is an arylcyclohexylamine, which shares a chemical structure similar to phencyclidine, a psychedelic compound commonly as PCP or "angel dust". Subsequent experiments in early 1960s established the usefulness of ketamine as a general anesthetic agent. In 1966, ketamine was patented by Parke-Davis Pharmaceutics one of the world's largest drug companies for use as an anesthetic for both humans and animals. 41.The Federal Drug Agency of the United State of America has approved ketamine as a general anesthetic for use on humans, especially with delicate patients such as children and the elderly. Ketamine is still commonly used in many clinical contexts, such as pediatric bone marrow sampling, outpatient plastic surgery, minor operations, and minor dental procedures, because it has hypnotic, analgesic and amnesic effects. Dr Lee told me, no other drug, used in a proper clinical medical setting, produces this combination of effects and has these three important features. Ketamine is also useful in such contexts because it is relatively safe compared with other anesthetics. It does not usually cause suppression of cough and gag reflex and respiratory depression at anesthetic dose and hence no support respiration is usually needed. It is quick-acting, and patients recover from the anesthesia very promptly. 42.Ketamine was first documented to be used recreationally by drug takers in 1965. Although recreational use of ketamine only spread worldwide in the 1970s, it was not until 1995 that the American DEA added ketamine to the "emerging drugs list". The DEA issued warnings in 1997 about the increase in ketamine abuse, and in 1999, ketamine was for the first time scheduled by the United States Federal Government as a Schedule III drug, rendering non-prescription possession and use of ketamine illegal. 43.In Hong Kong and many other parts of the world, ketamine is predominantly consumed in mega-dance parties, rave parties, discos, and clubs. The drug is used in such contexts because it helps the users to better engage in the party experience. There are occasional reports of ketamine use in private parties, karaokes, and even schools in Hong Kong. Dr Lee told me that some Hong Kong youth are socially phobic, they are shy, and ketamine taken helps them overcome their initial shyness and allows them to make contacts with the other sex. 44.In Hong Kong, he told me, ketamine is mostly used in conjunction with ecstasy in rave parties and discos. Ketamine is used with ecstasy because ecstasy, by itself, has two major shortcomings that seriously compromise the party experience. Firstly, ecstasy takes 20 to 40 minutes to begin its action. Hence, in the first half hour after ecstasy is taken, the users will commonly use ketamine, which is very rapid acting, to fill the gap. Otherwise, the users will feel "too alert" for the party. Secondly, ecstasy drug effects last for about four hours. As ecstasy users usually take their ecstasy about 1 a.m., by 5 a.m. the drug effects begin to wear off. To overcome this period, some users will cover the period from 5 a.m. to 7 a.m. when the party or disco finishes with ketamine. Ketamine is also used with ecstasy for synergistic effects. The effect of two different drugs can be different from the individual use, when they have been taken together. He told me that a small proportion of the local party- and disco-goers use ketamine solely. They tend to be young people who cannot afford ecstasy, which is several times more expensive than ketamine. (A point to which I later return). 45.In Hong Kong, ketamine is mostly sold in powder form, wrapped in paper packets. The weights of the individual packets vary, but generally they are about 200 milligrammes, a fifth of a gramme per packet. That is, he tells me, the standard local Hong Kong amount. In most instances, ketamine is shared among a group of peers or friends in a party or in a disco. The powder is sometimes spread on a flat surface, e.g. a name card or an identity card, is passed around the group and snorted. This may happen in the chill area, the recovery area of a mega-dance party, or in the dance venue. Because of this "ritual" practice, both the total dose and the cost per packet of ketamine are commonly shared among the group. The ketamine sold in Hong Kong is mostly of high purity. Adulterant as a mixer is extremely rare locally; samples sometimes are adulterated with paracetamol (which we more commonly known as Panadol) and/or caffeine, have been encountered very occasionally in Hong Kong. 46.He told me ketamine is also available locally in tablets. Most of these ketamine tablets are sold as fake ecstasy tablets in parties and disco scenes. In clinical and research encounters, he, who is very experienced, has not met a single person in Hong Kong who has sought the tablet form of ketamine, knowingly and deliberately. 47.He told me just as Dr Chen Yuk Lun, Ronald had told me, that ketamine abuse was first captured by the Government drug surveillance system, the Central Registry of Drug Abuse ("CRDA") in 1997. The CRDA, however, relies only on voluntary reporting from the law enforcing agents, Correctional Services, methadone clinics, social workers, and medical practitioners in order to monitor the fluctuation of drug abuse trends in Hong Kong. He said, in 1999, 0.2% of all reported individuals abused ketamine, a very low number indeed. He said in the year 2000, this increased to 9.7% compared with 8.7% for cannabis, 14.1% for ecstasy, 18.7% for methadone, and 74.3% for heroin in the year 2000. 48.Among the newly-reported individuals (i.e. newly identified drug users) in the year 2000 in Hong Kong, 30.7% used ketamine, 42.2% used ecstasy, 27.6% of new users used heroin, and 19.7% used cannabis. In the same year, among the under 21-year olds newly reported drug taking individuals, 44.3% used ketamine, 62.7% used ecstasy, 10.6% used heroin, and 19.9% used cannabis. It is clear from those figures that many of the users must be using both ketamine and ecstasy as first time users. 49.Dr Lee told me that when ketamine is administered nasally, ketamine has an average onset of five to 15 minutes before the drug kicks in. The drug effects last between 10 to 30 minutes and most users return to the baseline within 90 minutes. He said it is reported that about 0.3 milligrammes of drug per killogramme of person produces a light drug effect. A dose of 1 to 1.5 milligrammes per killogramme person produces a strong effect. 50.He told me about the "K-hole effect" (which I describe later), which he said that is usually experienced when the drug reaches 2 milligrammes per killogramme. The intravenous anesthetic dose is between 1 to 4.5 milligrammes per killogramme. The average amount required to produce five to 10 minutes of surgical anesthesia has between 2 milligrammes per killogramme. The lethal dose is around 77 milligrammes per killogramme for intravenous administration. As local ketamine packets are about 200 milligrammes in weight, he says it would take 22 packets to produce a lethal dose, assuming the packets are injected and not shared. He says such dosage is extremely unlikely in recreational use. 51.Although intravenous usage is commonly reported in western literature, it is very rare in Hong Kong. In clinical and research experience, in all his experience he has not yet encountered a single case of intravenous or intramuscular ketamine abuse. 52.His evidence was that at a low dose, ketamine produces a drunken state, in which the users may feel weightless and uninhibited (commonly referred to as "drifting" or "free" by the local users). Such effects help the ketamine users to better engage in the atmosphere of the party. 53.At higher doses, ketamine users can experience psychedelic effects, but few local users deliberately seek these psychedelic effects. Local drug users labeled the psychedelic state as "OD", a short form for overdose. This represents, he says, a lay person's misconception on the psychedelic effects as users who are engaged with their psychedelic experience tend to dissociate from reality, they are often misconstrued as "overdosed" by those around them. This misconception, however, he said inadvertently deters local drug users from using ketamine excessively. Another reason for the rarity of deliberate psychedelic trips is that such experiences are incompatible with the party and disco contexts, where most of ketamine consumption takes place. K-hole or K-tunnel 54.Nevertheless, ketamine users may enter the psychedelic state inadvertently. The psychedelic state includes two major experiences : the near death experience and the out-of-body experience. In the near death experience, the individual feels that he or she enters a tunnel that leads to a black hole. As the drug wears off, the individual will feel that he or she leaves the tunnel and re-enters consciousness. The exact experience (e.g the appearance of the tunnel) varies with individuals, and may be affected by the daytime experience. This black hole or tunnel is commonly referred to K-hole or K-tunnel. 55.Apart from near death experience, experienced ketamine users may also enter a state whereby they feel that they leave their body and can witness their own body from the outside. This out-of-body state is also commonly referred to as a hallucinatory or dissociate experience, in the written literature. Again, such psychedelic effects tend to vary with individuals and may be affected by a variety of factors, such as mood state and daytime experience. More importantly, not all ketamine users experience the out-of-body dissociation. 56.He told me that inexperienced users who encountered the near death experience or the out-of-body experience can become panicky and dangerous behaviour can follow, according to western literature. In Hong Kong, because ketamine is mostly used in groups and indoor venues, even when inexperienced users become panicky, they are usually taken care of by those around them. Many local party and disco goers are familiar with ways that can shorten the psychedelic experiences. 57.Common adverse effects of ketamine include dry mouth, nervousness, and a racing heart. Many people also experience nausea and/or vomiting when the effects of ketamine wear off. Dr Lee said vomiting can be very dangerous if the user becomes unconscious, as the vomitus, if aspirated, can cause life threatening pneumonia. Occasionally severe vomiting may also lead to oesophageal tear and even peptic ulcer. 58.Other adverse effects include : hypertension, increased heart rate, mild gastrointestinal distress, double vision, increased intra-ocular pressure and muscle movement resembling seizures. There is no evidence of damage occurring from elevated blood pressure experienced during anesthesia. 59.He told me that ketamine can cause psychomotor impairment, which may in turn increase the risk of accident. Inexperienced users, who have access to large amounts of ketamine, may unknowingly overdose themselves. 60.Paranoia and egocentrism have been reported for those who use ketamine regularly. There are many reports of regular users starting to see patterns and coincidences, synchronicities, in the world around them, which seem to indicate that they are somehow more important or integral to the world than others. This same sense of the world focusing on the user can also feed into a sense of paranoia. However, such psychological problems are rare among local users who use ketamine by the nasal route. Ketamine is also reported to be associated with psychosis. 61.In animal studies, ketamine has been shown to have the potential to reinforce repeated use. Animals who are given an unlimited supply of ketamine tend to consume an increasing amount. This is generally regarded as a sign of dependence. 62.In human studies, repeated usage of ketamine can cause tolerance (i.e. a larger dosage is needed to produce the same desired effects). However, unlike other addictive substances such as heroin, ecstasy, benzodiazepines, alcohol and nicotine, ketamine, even when used repeatedly, does not lead to distinctive withdrawal symptoms or syndromes. For that reason, ketamine, like ecstasy, is not generally regarded as a substance that can cause physical dependence. 63.Dr Lee told me that in terms of the narcotic nature of ketamine, it is comparable to ecstasy, as there is evidence of tolerance, but not withdrawal syndromes or physical dependence, for both ketamine and ecstasy. In terms of dangerousness, both ecstasy and ketamine, used in recreational dosage, have a wide margin of safety. 64.The ketamine dosage used in a recreational setting is lower than that used in a clinical setting, given the safety record of ketamine in clinical use, it is unlikely that the recreational dosage, which is lower than anesthetic dosage, would cause substantial or long-term physical harm. However, ketamine abuse in a party or disco is associated with contextual danger. The loss of consciousness and psychomotor impairment within crowded disco or parties can lead to accidents and physical injuries. Lastly, it should be noted that most drug related overdoses in Hong Kong are related to heroin and methadone. Accidental overdoses of ecstasy or ketamine, leading to mortality, are rare in Hong Kong. 65.Dr Lee gave evidence, which I also accept, on the data obtained from the local drug surveillance system. The figures from the system showed that there have been a dramatic increase of ecstasy and ketamine use in Hong Kong. However, Dr Lee said when applying these figures, three issues need to be taken into consideration. Firstly, it is now generally recognized that the surveillance system only captures part of the drug abuse population, as an unknown proportion of drug abusers may not come into contact with the reporting agencies. Secondly, there was a change of the reporting method during the period when the rise of ketamine and ecstasy was recorded. Specifically, the system relaxed its requirement on personal identification, allowing reporting agencies to report drug users without identificatory data, like name and HKID number. Hence, there is a risk of multiple reporting as the same individual can be reported by different agencies within the same reporting period. Thirdly, the surveillance system is useful for drugs that caused well-defined caseness, like heroin and ecstasy. For those drugs, it is essentially the physically addicted that is reported. For drugs like ecstasy and ketamine, because there is no well-defined caseness (e.g. withdrawal syndrome), a reported individual can range from a person with very occasional use to one with heavy daily use. For this reason, the data and trends for ketamine and ecstasy, as captured by the local surveillance system, are therefore not entirely comparable with the data of heroin and methamphetamine. Customs and Excise evidence 66.I also heard evidence from two other witnesses, from the Customs and Excise Department, which it may be noted has not been received in the other ketamine sentencing cases in the Court of First Instance. 67.The first witness from Customs was Senior Inspector Lee Tak Shun from the Drug Investigation, Raiding and Support Division of the Customs Drug Investigation Bureau. He is the Unit Commander for Drug Investigation, Raiding Operations and Logistic Support of the Customs Drug Investigation Bureau. His evidence was based on the monthly statistics provided by the Government Chemist and the total seizure of ketamine for both the Police and the Customs Department from 1 December 2000 to 31 August 2001. From 1 December 2000 to 31 December 2000, and bear in mind, it was 15 December 2000 that the drug became placed on the Schedule of the Dangerous Drugs Ordinance, there were only seven seizures of ketamine and then of only a total of 3.2 grammes in Hong Kong. There were 218 seizures of ketamine hydrochoride during that period being only 361 grammes. (I am going to round all the numbers). 68.We now move to this year. From 1 January 2001 to 31 August 2001, for both ketamine and ketamine hydrochoride, there were exactly 2,400 cases, 676 of ketamine and 1,724 of ketamine hydrochoride. The total quantity of ketamine seized by the Customs and the Police from 1 January to 31 August was 20.9 killogrammes. There was also some 830 millilitres, clearly ketamine in solution, 120 tablets and some other fragments. There was also 55.28 killogrammes of ketamine hydrochoride and 1.2 litres of ketamine hydrochoride in solution. When those numbers are added up from 1 January 2001 to 31 August 2001, ketamine and ketamine hydrochoride, (one of its derivatives), the total seizure in Hong Kong for the first eight months is 76.2 killogrammes. That is the total seizure of the drug in all its forms, by both the Police and the Customs. 69.The Customs Department's seizures from 15 December 2000 to 31 August 2001. They had had 22 cases involving 24 arrests and the relevance of that may well be that these cases are at the borders, of course, the places of importation. The total seized is 47.2 killogrammes, but the apparent significance of the total seizure by the Customs of 47.2 killogrammes is distorted because one of the cases involved 40 killogrammes and unhappily no arrest was made in that case. Therefore, removing that case from the statistics, the average seizure by the Customs (and principally at border crossings) is of approximately 350 grammes. 70.I also heard evidence from Inspector Au Wai Yin who serves in the intelligence research division of the Customs Intelligence and Liaison Bureau and she is responsible for appearing the monthly survey on the street level illicit drug prices in Hong Kong. Her data is drawn from cases from both the Customs and the Police. The purpose of her evidence was to provide evidence to me about the retail value for ketamine in this case and in general. Her evidence was that between April and May 2001 in Hong Kong, the retail price of 1 gramme of ketamine varied from HK$80 to HK$350. Her evidence to me was that the average retail price of ketamine per gramme in Hong Kong is HK$215 per gramme. It is easy to see how that every price is reached, if you add the extremes HK$80 plus HK$350 and divide the total by two the average comes to HK$215. But in the course of his cross-examination, Mr Steve Chui, for the Accused cross-examined Inspector Au as to whether one or two figures of sales at a particularly high price may have distorted the average price, because what is important is not the average of the extremes if there are only insignificant numbers of retail sales at the extremes, but the average weighted price of all sales in Hong Kong. Inspector Au's evidence was that in this case today, the total value of the drugs trafficked by Chan Wai Keung, Danny was HK$97,610. This is on the basis that 454 grammes were sold at the price of HK$215. But of course, she has given her evidence in relation to the total weight of the seizure, not the slightly lesser weight of narcotic in the seizure. Also on all of the evidence and because of the cross-examination by Mr Steve Chui, I am not able to find beyond reasonable doubt that the average retail street price of ketamine was HK$215. It would appear that the only satisfactory figure that I can operate on, beyond reasonable doubt, in all the circumstances, is a figure of average weighted price of HK$180 per gramme of ketamine in Hong Kong. 71.For the purposes of any sentencing exercise like this, the precise figure is really not significant. There can be no doubt, however, on all of the evidence that the retail value of the drugs trafficked this case was in the order of HK$90,000 and I so find. 72.In the course of the evidence, I asked a number of questions to ascertain the comparative prices of recreational drugs in Hong Kong. The evidence given was informative and valuable and, hopefully, will be of assistance to the Court of Appeal, as sooner or later one of these ketamine cases must inevitably make its way there. Ecstasy-price-weight-comparison 73.In relation to ecstasy, I accept that the average retail price of that drug in Hong Kong depends on from where the drug originates. If the origin of ecstasy was from China or Asia, I accept that the average retail price in Hong Kong is HK$80 to HK$140 per pill. If the origin of the ecstasy is from Europe, or not from China or Asia, then the average retail price is much higher. The average retail price of a single pill is from HK$300 to HK$350. 74.In the tariff case for ecstasy, HKSAR v. Lee Tak Kwan [1998] 2 HKC 371, decided on 26 May 1998, the Court of Appeal set out a sentencing tariff for ecstasy. It was stated there at pages 376I-377A, that the average ecstasy pill in Hong Kong contains or comprises 0.114 grammes of the narcotic. In evidence before me, that figure as to be average weight content of the narcotic of an ecstasy pill was not disputed, and I am sure it is still currently correct. Therefore in round terms, nine ecstasy pills equals one gramme of narcotic, and the evidence before me, which I accept from the experienced Customs and Excise officers, was that the retail price of nine ecstasy tablets is HK$1,000. Let us now make an informed comparison. Ice v. ecstasy v. ketamine : price 75.On the evidence before me which I accept, one gramme of ice has a current retail price of between HK$250 and HK$450; one gramme of ecstasy, which would be nine pills, has a current retail price of HK$1,000; one gramme of ketamine has a retail price of between HK$80 and HK$350 per gramme, and I found that the average weighted retail price of ketamine in Hong Kong is HK$180. It is easy, therefore, to see the price attraction of ketamine for consumers. Senior Inspector Lee from the Customs Office demonstrated by his evidence that approximately 300 seizures of ketamine a month occur in Hong Kong, since the addition of the drug to the Schedule to the Dangerous Drugs Ordinance. 76.Clearly that volume of seizures is very concerning. It is a huge number and that must be a relevant consideration. I have no doubt that there has been and continues to be a dramatic exponential rise in the consumption of the drug. Mr Ozorio for the prosecution correctly commented that as ketamine is a soluble, colourless and tasteless drug, for that reason, it is especially insidious, as it may be added to drinks with real ease. That is, it is clearly capable of being a significant "date-rape" drug. This suggests that this feature means that the overall dangerousness of ketamine is elevated. 77.I now return to the evidence of the experts to reach conclusions as to the comparative nature of the drugs. Dr Lee presented to the court a comparison table of the effects and toxicity of ketamine, ecstasy, ice and heroin. Highlights of this table are that whereas there is growing evidence of the neurotoxicity of ecstasy, there is no evidence that ketamine has any neurotoxicity. Neurotoxicity is the harmful effect of a drug on the central nervous system. There is therefore no doubt that ketamine is less neurotoxic than ecstasy. Disputed evidence of the experts 78.When the comparison is done of all of these features, Dr Lee reached the view that ketamine is not an addictive substance. Dr Chan for the prosecution reached the conclusion that ketamine is an addictive substance. This issue to me really was the only one on which they differed, and the difference is explicable as to whether one takes a true technical medical view of addiction or a view of addiction that ordinary people understand. There is no doubt that ketamine, as ordinary people understand, is addictive. The reason why the doctors were not unanimous on this issue is, although they both accept there is complete evidence of the psychological dependence caused by ketamine, because there is no evidence of physical dependence, they differed as to whether on some classification basis, that made ketamine addictive. I reach the view that ketamine is, as we understand it, addictive, because of its psychological dependence. It is a robustly psychologically dependent drug. 79.In the earlier judgments of this court, the conclusion reached in the round has been that ketamine is certainly less dangerous than ice but similar to if not more dangerous than ecstasy. I have heard two extremely well-qualified experts. I have reviewed their conclusions with care because of the significance of the matters in dispute. I am unable to conclude that in the round that ketamine is more dangerous than ecstasy. I am certainly unable to conclude that beyond reasonable doubt. 80.On all of the evidence, in my judgment, whilst ketamine is in the round similar to ecstasy, it is less toxic than ecstasy. However, that conclusion in itself may not be of considerable materiality, for this reason, as the Dangerous Drugs Ordinance Schedule lists three or four hundred specific drugs. As new drugs are invented, they may be added. The courts cannot always keep abreast of every single development by having 300-400 individualized tariffs for drugs. For that reason, the Court of Appeal, very helpfully for the lower courts, has devised a number of tariff cases. In relation to ecstasy, a broad band approach has been taken. So the tariff for ecstasy set out by the Court of Appeal in 26 May 1998 is in these terms. "For up to 25 grammes of ecstasy is entirely within the discretion of the court. If the quantity of the narcotic of ecstasy is over 25 grammes but less than 400 grammes, the correct term of imprisonment is between two years' and four years' imprisonment. For 400 to 800 grammes, is four years' to eight years' imprisonment and over 800 grammes is eight years and upwards". The court did identify a particular aggravating feature which is present in today's case. That feature is found at 378I, that evidence of importation is an aggravating circumstance, and I therefore must take that into account. 81.It is extremely difficult for any court, even with the best evidence, to reach a definitive analysis of the true nature of the evil an individual dangerous drug poses. All that can really be achieved is some index-linkage between types of drugs - some broad categorization. One can only really assess their evil by consideration of their nature, their neurotoxicity and their tolerance features, their addictiveness both physically and psychologically and other features such as how that drug is taken, how popular it has become and methods of that nature. Comparative dangerousness can only be a general conclusion as precision is inherently unachievable; as the overall conclusion can only be an informed impression. Like cannot be compared with like. Common criteria between dangerous drugs can provide a checklist of effects but effects of dangerousness are not capable of a precise qualitative and comparative resolution. The comparative overview must be almost as visceral as cerebral. 82.In many ways, all the court can realistically achieve is a broad categorisation of evil. All that the court can do is compare a constellation of criteria and reach an informed principled overview based on all of that evidence. But as ketamine is often taken with other drugs an examination of ketamine's dangerousness itself may be slightly unreal. Doing the best that I can, in all the circumstances, as I have said I am not able to conclude that ketamine is more dangerous than ecstasy, it must be seen as being similar to ecstasy if not less toxic than ecstasy. This conclusion is not inconsistent with that reached by Mrs Justice Bokhary in HKSAR v. Chu Ching Tak and I respectfully follow it, but it is incompatible with that reached by Recorder Ronny Wong SC in HKSAR v. Lee Wai Man, a decision I respectfully decline to follow. I also accept and respectfully follow the decision of Jackson J in HKSAR v. Luk Ho Fat on the issue that a combination of ketamine and other recreational drugs (such as ecstasy) greatly increase the dangerousness of ketamine and the synergistic dangerousness of any drug combination is also so proved. It would become an infinite expedition for the Court of Appeal to set individual tariffs for all of the many drugs that prevail in Hong Kong. This court can only group the drugs, doing the best it can, and at the end of the day, it appears to me on the evidence that the recreational drugs ketamine and ecstasy in the round must be seen as being so not dissimilar that the sentencing approach for one is generally applicable to the other. Whether the current tariff for ecstasy is unsatisfactory is not within my jurisdiction. I apply that tariff here. This Accused - activation of suspended sentence 83.In this particular case that the Accused has been previously convicted of another offence. He was convicted of an offence of deception and sentenced to a term of eight months' imprisonment suspended for two years. A suspended sentence is by definition a chance, the sword of Damocles is suspended above you. If you do not take that chance, you do not deserve a further chance from the courts, unless, if in the course of your suspended sentence, your further crime is so minor or some other exceptional circumstances pertain that it would be just demonstrably unfair to activate the suspended sentence. 84.Mr Chui has asked me to note that this current offence of drug trafficking occurred some one year into the two-year period of suspension which had been imposed on 14 April 2000 for deception and therefore the full sentence should not be activated. A similar argument was unsuccessfully made by counsel to the Court of Appeal in 1990 in R. v. Lee Yuk Ching [1990] 2 HKLR 132. There the Court of Appeal held that there is no principle that a suspended sentence should be reduced, when activated in respect of an offence committed towards the end of the period of suspension. The court there further disavowed any discount as a matter of discretion as well, as such a discretion should it said be exercised only in exceptional circumstances. In Lee Yuk Ching, the applicant there was 90% through the term of the suspended sentence before the next crime was committed. The Court of Appeal declined to give any reduction for that fact. There is no principle of accrued credit for substantial compliance. 85.I need to and I do apply the Lee Yuk Ching principle and approach and I am unable to reduce the length of the suspended sentence. So the suspended sentence of eight months' imprisonment imposed in April 2000 is activated in full and it is to be consecutive to the sentence or trafficking in dangerous drugs which I am about to pronounce. The amount of ketamine hydrochloride in this case was 446.6 grammes. The trafficking took place at a border between one part of China and another, namely at Lo Wu. The plain intention was to bring the drugs into Hong Kong for their subsequent consumption by others. In HKSAR v. Lee Tak Kwan, Mortimer VP delivering the judgment of the Court of Appeal said that importation is an aggravating feature. On the ecstasy tariff for between 400 to 800 grammes, the sentence band is from four years to eight years. In all of the circumstances of this case, (including, obviously the quantity of ketamine - 446.60 grammes) I take a starting point of four years and six months' imprisonment. However, because of the plea of guilty, I reduce that by one-third. I therefore impose on you, Chan Wai Keung Danny, a sentence of three years' imprisonment for the present case of trafficking in dangerous drugs. I activate the sentence which had been suspended for deception; that is to run consecutively. You therefore will serve an effective term of three years and eight months. 86.Take him down.
Representation: Mr Daniel Ozorio, SGC, of the Department of Justice, for the Prosecution Mr Steve Chui, instructed by DLA, for the Accused |
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