HKSAR v. Ho Lee Nam

CACC000331/1998

HEADNOTE

Sentencing ----- Trafficking in dangerous drugs ------ MBDB ----- same group of compounds as ecstasy (MDMA) but with indications of similarity and dissimilarity in relevant factors.

Held: insufficient evidence to set sentencing guidelines or to adopt ecstasy tariff.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Hon Nazareth V-P, Mayo and Stuart Moore JJA in Court

Date of Hearing: 23 February 1999

Date of delivery of Judgment: 9 March 1999

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JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

Introduction

1. The applicant, Ho Lee Nam, appeared before Deputy Judge Lugar-Mawson in the Court of First Instance on 16 January 1998 on five counts of trafficking in dangerous drugs. The drugs were as follows: 6th count, 1 tablet containing 43 milligrammes of MDMA (i.e. 3,4-methylenedioxymethamphetamine); 7th count, 2 tablets containing 42 milligrammes of MDMA; 8th count, 1 tablet containing 127 milligrammes of MDMA; 10th count, 8,838 tablets containing 1,338.83 grammes of MBDB; and 12th count, 6.60 grammes of cannabis.

2. He was originally also charged on a 9th count, i.e. conspiracy to traffick in MBDB. He pleaded guilty to the five counts and the prosecution offered no evidence on that 9th count. He was sentenced to a term of three months imprisonment in respect of each of the 6th, 7th and 8th counts, two months in respect of the 12th count and 8 years in respect of the 10th count. All the sentences were ordered to run concurrently. The applicant now seeks leave to appeal against sentence.

Also charged with the applicant was the 1st accused, one Sung, who was charged on the first five counts.

Facts

3. The facts can be stated in the following way. Between 4 October and 12 October, police officers made several undercover visits to the Catwalk Disco in the New World Hotel in Kowloon. In the course of the visits, they made individual purchases of two to four tablets of MDMA on each occasion from Sung. Most of these were obtained by two female officers known as Yvonne and Sue. In the course of those visits they exchanged telephone numbers with Sung.

4. During such a visit on 12 November, in chatting to Sung, Sue mentioned not having money, thinking about a trip to Europe, and that she and Yvonne were thinking of taking parallel goods but it was difficult to take them to Europe. On 14 November 1996, after a telephone conversation, Yvonne and Sue returned to the Disco. Sung introduced them to the applicant, saying "This is Raymond and he is my boss." Sue and the applicant had a conversation in a quiet corner of the Disco. The applicant told Sue about importing tablets from Holland saying that for bringing back 3,000 to 4,000 tablets she would receive $30,000. Sue suggested Yvonne go with her and the applicant agreed. She gave him a telephone number and they left.

5. On 26 November they returned to the Disco and met the applicant at 1.25 a.m. in the lobby of the New World Hotel. The applicant informed Yvonne and Sue that he would arrange for their air-tickets to Amsterdam and instructed them that on arrival at the hotel they were to telephone him and he would arrange for the delivery of the pills. He told them that there would be about 3,000 for each. Their remuneration would be $30,000 net of their expenses and airtickets.

6. On 10 December 1996 Yvonne and Sue met the applicant at Kowloon Hotel at 7.45 pm. The applicant told them that time was not yet ripe for them to go. They arranged to meet later and did so at 11.20 pm later that evening at Bar City. He said he would let them try something and showed them a yellow pill. He went off and returned having split it into two parts giving one to each, which they pretended to consume. Later, the applicant gave Yvonne one further pill. This supply of the pills is the subject of the 6th, 7th and 8th counts.

7. Between 30 December 1996 and 9 January 1997 further telephone conversations and meetings took place between the two officers and the applicant. During these, arrangements were made for the officers to go to Amsterdam and they purchased the tickets for a flight on 10 January 1997. It was arranged that once in Holland they would telephone the applicant and he would arrange for some one called "Fei Chai", whom the officers had met with the applicant, to come to their hotel and help them pack the pills. he paid them both a total of $37,600 being the price of the air-tickets and 410,000 for expenses. The officers flew to Amsterdam. They were subsequently contacted by Fei Chai as arranged who provided them with 23 bags of pills, and underwear and knee packs for concealing them. They returned to Hong Kong on 16 January 1997 and checked into the airport hotel. They telephoned the applicant. he arrived and after checking the pills, he gave the officers $48,00. He left with the pills and was arrested by officers waiting outside. his residence was searched and the cannabis, the subject of the 12th count was found.

Expert evidence

8. Some expert evidence was led on the nature of MDBD. For the prosecution, it came from Dr Poon Nai-leung, a chemist in the Government Laboratory, and for the defence it came from Dr Barry Connell, a chemist in the Government Laboratory, and for the defence it came from Dr Barry Connell, a psychiatrist who has specialised in the effect of drugs. We pause here to mention that the subject of four of the five counts was described first in the 6th, 7th and 8th counts in the following terms:

"methylenedioxymethamphetamine hydrochloride which is a salt of compound structurally derived from N-alkyl-a - methylphenethylamine by substitution in the ring with an alky-lenedioxy substituent."

Count 10 specified the MDBD in the following way:

"N-methyl-1-(3,4-methylenedioxyphenyl)-2-butanamine hydrochloride (a salt of a compound structurally derived from N-alkyl-a-ethylphenethylamine by substitution in the ring with an alkylenedioxy substituent)."

Dr Poon's evidence was to the following effect:

9. Dr Poon was shown Dr Connell's written statement and stated that he generally agreed with what Dr Connell had said. He added" as far as I am aware, there is not much published literature reporting the effects of MBDB in humans. However, in one report, it was said that MBDB was similar to MDMA (a synthetic amphetamine derivative) but was less in potency."

10. Dr Connell's report was to the following effect:

Opinion:

Submissions on tariff

11. In sentencing the applicant, the judge after careful consideration adopted the guidelines in HKSAR v Lee Tak Kwan [1998] 2 HKLR D46 for the drug ecstasy and took a starting point of 12 years for count 10. He then reduced it by one-third, giving the applicant the full usual one-third discount for his plea of guilty and imposed a term of 8 years imprisonment.

12. The main point taken by Mr Wong Po Wing for the applicant, is that while the Lee Tak Kwan tariff would have been entirely in order had it been applied to an "ecstasy" offence MBDB, he submits, is a far milder and less potent drug than ecstasy. Upon the guidelines in Lee Tak Kwan, he submits that a lower starting point should have been adopted.

13. For the respondent, Mr A.A, Bruce, SC, disputes those contentions. He submits that MBDB belongs to the same class of compounds termed phenethylamines as MDMA. There are, he says, over a thousand compounds within this group. MBDB is only one such compound. Both MDMA and MBDB are at the milder end of the spectrum of potency within the group while the others are very much stronger. It is necessary therefore to consider counsel's submission in some detail; only the main broad submissions having been mentioned.

Analysis

14. What is immediately conspicuous about MBDB is that there appears to be so little known about its effects. It can be seen from p.47 C-E of Lee Tak Kwan that the court there regarded the following factors as influential in setting the sentencing guidelines for ecstasy:

15. There was no evidence presented to this Court that those factors obtained with reference to MBDB, no evidence of recent increased abuse of the drug in either the West or in Hong Kong, nor of wide abuse or ready availability or of any associated deaths. There is also the difference that MBDB does not appear to be hallucinogenic. And insofar as the effect of enhanced empathy and interaction may be similar, it appears to be milder in MBDB. At the end of the day, we were left with Mr Brace's submission that MBDB belongs to the same class of compounds termed phenethylamines as ecstasy (MDMA), that there are over a thousand compounds within this group and that MBDB is one such compound Both ecstasy and MBDB are at the bottom end of the spectrum of potency within the group while the others are very much stronger. That seems to us to be a questionable basis for treating the two drugs as the same given the general paucity of information particularly as to the effects of MBDB, which are suggested to be different. We accept in principle that it is undesirable to have a multiplicity of tariffs and sub-tariffs for different drugs. But here we have no difficulty in reaching the conclusion that there really is insufficient material upon which to adopt in relation to MBDB the ecstasy guidelines or to formulate new guidelines.

16. Accordingly, we conclude that the complaint as to the severity of the sentence has to be addressed in terms of the usual criterion, i.e. whether it is manifestly excessive. Having regard to the relatively large quantity of the drugs imported, the applicant's willingness to use young adults, the relative sophistication and organisation involved, we think that while the sentence of 8 years on the 10th count is severe, it cannot be said to be manifestly excessive or wrong in principle. Likewise, we do not regard the sentences on the other counts as being open to objection.

Entrapment

17. Mr Wong also relied upon a second ground, i.e. entrapment. Before us, as below, he cited a number of authorities. It is not necessary to go into the detail of those since Mr Bruce does not dispute them; he simply submits that the police did not encourage the applicant. Thus, in Birtles (1969) 53 CrAppR 469 it was held that the police should never use an informer to encourage another to commit an offence which he would not otherwise commit. If a court takes the view that an offence would not have been committed but for the activities of an informer, it may, if it thinks right to do so mitigate the penalty (see Archbold 1998 paragraph 5-164).

18. In submitting that the police encouraged the applicant, Mr Wong contended that that question had to be addressed in the context of the entire background to the matter. Drugs were available at the disco. Indeed, the police officers concerned bought some from Sung. Against that background the two female officers made it known that they were short of money, were available for assignments or tasks that might earn money; travel abroad was particularly mentioned. An indication was given that they might not be too concerned about what was involved since they themselves contemplated taking parallel goods to Europe although that was difficult.

19. However all of that may be, and notwithstanding the particular circumstances of some in the authorities to which Mr Wong referred, we cannot accept that there was actual encouragement by the police officers concerned. In no way did they suggest any transaction involving drugs in particular the importation of drugs. Mr Wong made particular reference to the facts in Mackey v Shaw (1993) 14 CrAppR(S) 53 in which the Court of Appeal accepted that the circumstances were such as to be capable of affording material for mitigating the sentence from seven years to six years. However there, the defendant whose sentence was reduced had met an undercover police officer posing as a possible heroin purchaser; there is no parallel in this case. We reject the ground of entrapment.

20. Leave to appeal against sentence is accordingly refused.

Representation:

Mr Wong Po Wing (DLA) for the Applicant

Mr A. A. Bruce, SC, SADPP and Miss A. Pang, SGC (DPP) for the Respondent