HKSAR v. So Shuk Yee

CACC 460/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 460 OF 2004

(ON APPEAL FROM HCCC 105 of 2004)

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BETWEEN

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Before: Hon Stuart-Moore VP and Yuen JA

Date of Hearing: 26 April 2005

Date of Judgment: 26 April 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 13 October 2004, Gall J sentenced the applicant to 5 years’ imprisonment on a single count of trafficking in dangerous drugs.  The drugs were particularised as:

“27.46 grammes of a powder containing 10.59 grammes of methamphetamine and 10.55 grammes of N, N-dimethylamphetamine and 6 tablets containing a total of 1 milligramme of triazolam.”

2.The general facts of the case are of no significance to this application for leave to appeal against sentence. 

3.It is conceded by Mr Robert Lee, on the respondent’s behalf, that the judge was inadvertently misled by trial counsel on both sides (neither of whom appear in these proceedings) when he was informed that N, N-dimethylamphetamine (NNDMA) should be treated for all practical purposes as being the same as methamphetamine (ice).  This occurred during the mitigation which defence counsel was advancing when the following dialogue occurred:

"	COURT:	But what is the difference between methamphetamine and N, N-dimethylamphetamine?
	(Defence counsel):	I am instructed that this is a derivative of the methamphetamine.
	COURT:	A derivative of “Ice,” so would it be your view that I should deal with the N, N-dimethylamphetamine on the same basis as the methamphetamine?
	(Defence counsel):	Yes …
	COURT:	So …
	(Defence counsel):	… I have, in fact, again a brief discussion with my learned friend for the prosecution.  I think the consensus is that your Lordship can sentence on the basis that this is the usual tariff for “Ice.”
	COURT:	So I now really look at that at about 21 grammes of the pure drug?
	(Defence counsel):	Yes.” (Appeal bundle at p.4)”

4.In the result, the judge adopted a 7 1/2 year starting point under the sentencing guidelines for trafficking in ice set out in Attorney General v Ching Kwok-hung (below).  The judge then gave a discount of one-third to reflect the plea of guilty.  In the normal course of events, if the basis on which the judge sentenced had been correct, the sentence of 5 years’ imprisonment would not have been open to justifiable criticism.

5.Although NNDMA is relatively new to the drug scene, it has been encountered before.  In all the earlier cases about which we have been told, an expert’s report was placed before the sentencing court.  We would have hoped it would not have been necessary to say that prosecuting counsel in particular ought to be fully conversant with the nature of the drug which is the subject of criminal proceedings so that the court is properly informed as to the appropriate sentencing guidelines for the case in hand.  It is apparent that both counsel in the court below made something in the order of a guess at the nature of NNDMA and, in the event, they could not have been more wrong. 

6.Unfortunately, the judge accepted what he was told without requesting an expert’s report about the qualities of NNDMA.  Had he done so, he would have been given a detailed report, of the kind with which we have now been supplied on the applicant’s behalf by Ms Corinne Remedios to whom we are extremely grateful for her excellent submission.  The report was introduced following an unopposed application to adduce fresh evidence, pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221. 

7.Bearing in mind that NNDMA is a relatively new drug and having regard to the expertise of Professor Lee Tak-shing whose report we have now had the advantage of considering, we propose to reproduce the relevant parts of his report dealing with the nature of this drug, as presently understood, in the hope that this may assist in future cases.  Professor Lee, who amongst other positions held by him has been in charge of the Substance Abuse Clinic at the Prince of Wales Hospital since 1996, stated that:

"	6.	N, N-dimethylamphetamine (NNDMA) is a central nervous system stimulant with no known medical use.  It is produced in clandestine laborator(ies) and sold on the street as fake “ice” in some parts of the world.  It is also found as an adulterant in methamphetamine (MA) or ecstasy.
	7.	NNDMA, as a single substance, is not a fashionable drug of abuse.  This is because NNDMA has much weaker stimulant effects, compared with MA or amphetamine.  Although NNDMA has a chemical structure similar to amphetamine or MA, previous animal studies by the US National Institute of Drug Abuse showed that NNDMA is 6 to 12 times less potent than MA in behavioural pharmacological effects.  NNDMA is also 3 times less potent than MA in its lethal effects in rats.  Another study by a Johns Hopkins School of Medicine research team showed that NNDMA is 5 to 10 fold weaker than MA in behavioural effects.
	8.	NNDMA also differs from MA in terms of its neurotoxic effects.  MA is well known for its neurotoxicity on the dopamine and serotonin systems.  This means that MA exerts toxic and lethal effects on the nerve cells that use dopamine or serotonin as chemical messengers (neurotransmitters).  Such damage may impair emotional regulation, and may explain the psychotic symptoms (such as hallucinations and delusions) experienced by chronic abusers of MA.  Research at Johns Hopkins School of Medicine USA, however, showed that NNDMA failed to produce signs of dopamine or serotonin neurotoxicity in rats.  Simply put, the available evidence does not suggest that NNDMA (has) the same toxic or lethal effects that MA can exert on the central nervous system.
	9.	There has thus far been no study of NNDMA addictiveness in human(s).  I could not identify any reports of human NNDMA addiction or dependence in my literature review. … human studies are particularly important if the addictive potential of NNDMA is to be ascertained.
	10.	In Hong Kong, NNDMA has, very occasionally, been encountered as an adulterant in ecstasy tablets.  NNDMA has also been found in mixture with methamphetamine.  I have not encountered, or heard of, local drug abusers knowingly seek(ing) NNDMA as a substance of abuse.
	11.	In summary, NNDMA is rarely abused as a single substance, is less potent than methamphetamine (the crystalline form commonly referred (to) as “ice”) in neurotoxic and lethal effects, and the stimulant effect of NNDMA in human(s) is doubtful.  There has thus far been no conclusive evidence on whether NNDMA is addictive or not."

8.Now that the position has been clarified, at least so far as current research can take the matter, it is apparent that the applicant should have been dealt with on the basis of trafficking in 10.59 grammes of ice rather than about 21 grammes as the judge was led to believe by counsel in the court below.  This is subject only to any slight upward adjustment to take into account the balance of the drugs in the applicant’s possession but, having regard to their quantity and nature, we do not propose to add to the sentence which would be appropriate for the 10.59 grammes of ice standing alone.  In saying this, we do not overlook the fact that the applicant may have been supplying heavily diluted ice when purporting to supply pure ice, but it seems to us that in these proceedings she stands simply to be sentenced as a drug trafficker for the quantity of ice actually in her possession.

9.The guidelines in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125 at 130 provide that the tariffs to be imposed after trial for the possession for unlawful trafficking or trafficking in methamphetamine hydrochloride (ice) should be:

"	(1)	up to 12 grammes – 3 to 7 years’ imprisonment;
	(2)	between 10 and 70 grammes – 7 to 10 years’ imprisonment;
	(3)	between 70 and 300 grammes – 10 to 14 years’ imprisonment;
	(4)	between 300 and 600 grammes – 14 to 18 years’ imprisonment;
	(5)	over 600 grammes – 18 years and upwards."

It can readily be seen that, with the exception of 12 grammes, which is also repeated in the headnote to that case, all the figures are given in round numbers.  This oddity was taken up in HKSAR v Capitania Edwin F, CACC 28/2004 (unreported).  In the Reasons for Judgment handed down on 11 August 2004 (at paragraph 28), this court expressed the view that the reference to “12” grammes in item(1) was a typographical mistake and that the figure should have been “10”.  This was accepted because item (2) was for a tariff band relating to between “10” and “70” grammes and because the overlap between bands (1) and (2) was otherwise inexplicable.

10.It follows that a starting point of 7 years’ imprisonment for the 10.59 grammes being trafficked by the applicant would have been appropriate, reduced by one third to reflect the applicant’s plea which the judge regarded as the “sole mitigation”.  In our opinion, therefore, it is apparent that the judge erred in principle by taking a starting point of 7½ years. 

11.Accordingly, we shall grant leave and, treating the hearing as the appeal, we shall allow the appeal to the extent of a reduction in sentence to 4 years and 8 months’ imprisonment.

Mr Robert K Y Lee, SGC, of the Department of Justice, for the Respondent.

Ms Corinne D’A Remedios, instructed by Director of Legal Aid, for the Applicant.