Secretary for Justice v. Hii Siew Cheng
Read the full judgment text of CAAR 7/2006 on BabelCite. This Court of Appeal judgment was delivered on 6 June 2008 before Ma CJHC, Stuart-Moore VP, Stock JA.
Criminal law – dangerous drugs – trafficking in ketamine and ecstasy – sentencing guidelines – review of sentence – cross-appeal – psychotropic drugs of abuse – drug trafficking – Cocktail Drugs (ketamine and ice mixture) – Sentencing Methodology – Application for leave to appeal against conviction – appeal against sentence – Drug Abuser's mental condition – guidelines updated – retrospectivity – section 81A and section 81B of the Criminal Procedure Ordinance (Cap. 221) – section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134) – Whether the Lee Tak-kwan ecstasy guidelines should be revised – Whether separate ketamine guidelines should be formulated – Whether the judge erred in applying ecstasy guidelines to a ketamine trafficker – Whether the additional 2 years for ecstasy in Wong's case was an appropriate adjustment or a separate sentence – Whether the conviction was safe – Whether the medical condition of an offender warrants a discount – Whether the new guidelines have retrospective effect – The court held that both ketamine and ecstasy are addictive in the sense that they give rise to psychological dependence and are toxic, distinguishing Lee Tak-kwan [1998] 2 HKC 371 – The court held that the existing Lee Tak-kwan guidelines should be updated and that unified guidelines for both drugs should be formulated since the weight of narcotic content per dose is comparable – New tariffs formulated with seven bands from within sentencer's discretion (up to 1 g) to 14 years and upwards (over 1,000 g) – The court held that under the combined approach in HKSAR v Yip Wai-yin, a meaningful adjustment for the ecstasy component in a cocktail of ice and ecstasy should be 18 months rather than 2 years – The court held that the conviction was safe based on overwhelming circumstantial evidence – The court held that the new guidelines are not retrospective and that Hii and Wong are not adversely affected – In CAAR 7/2006, application for review allowed but no alteration to Hii's sentence under s.81B – In CACC 126/2007, application for leave to appeal conviction dismissed; appeal against sentence allowed with sentence reduced from 5.5 years to 5 years' imprisonment – Sentencing guidance also given on 'social trafficking' and non-custodial sentences for traffickers in these drugs.
Legal issues: Whether the Lee Tak-kwan ecstasy guidelines should be revised and whether separate guidelines for ketamine should be issued · Whether the judge erred in sentencing Hii by applying the Lee Tak-kwan ecstasy guidelines to a ketamine trafficker · Appropriate methodology for sentencing cocktail drug trafficking under Yip Wai-yin · Whether Wong's application for leave to appeal conviction should be granted
Outcome: In CAAR 7/2006, the application for review of sentence succeeds to the extent that new guidelines are issued, but no alteration is made to Hii's sentence. In CACC 126/2007, the application for leave to appeal conviction is dismissed; the application regarding sentence is allowed and Wong's sentence is reduced from 5.5 years to 5 years' imprisonment.
Cited by 1772 cases · Cites 8 cases
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CAAR 7/2006 & CACC 126/2007 CAAR 7/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL APPLICATION FOR REVIEW NO. 7 OF 2006 (ON APPEAL FROM HCCC NO. 121 of 2005) ____________________ BETWEEN
____________________ CACC 126/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 126 OF 2007 (ON APPEAL FROM DCCC NO. 969 of 2006) ____________________ BETWEEN
____________________ Before: Hon Ma CJHC, Stuart-Moore VP and Stock JA Dates of Hearing: 16 and 17 October 2007 Date of Judgment: 6 June 2008 J U D G M E N T Stuart-Moore, VP (giving the judgment of the Court): Introduction 1.Hii Siew Cheng (Hii), the respondent in CAAR 7/2006, appeared in the High Court on 12 June 2006 to be sentenced for trafficking in ketamine. On that occasion, in the absence of specific guidelines for sentencing ketamine traffickers, Deputy Judge Barnes (as she then was) followed the practice which had not infrequently been adopted by other judges of using the sentencing guidelines in HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 378 for trafficking in methylenedioxymethamphetamine (or MDMA) to which we shall refer throughout as ‘ecstasy’, the name by which that drug is commonly known. Prior to this, the judge had heard evidence about ketamine and ecstasy from a number of experts in the course of which comparisons as to the adverse effects of each were inevitably drawn. 2.The judge concluded that ecstasy and ketamine were addictive “in the sense that they both have psychological dependence potential”. So far as neurotoxicity was concerned, the judge accepted recent research that ecstasy could have harmful effects on the brain whereas she felt that no such “reliable conclusion” could be drawn in regard to ketamine. The judge also made the point, in regard to the principal aspects of the evidence she had heard, that the courts do not look at “the prevalence of use, or its dependence potential, its toxicity or its manner/pattern of abuse” in isolation when assessing the harm posed to society by the abuse of a particular drug because it was the combined effect of these and other factors which had to be taken into account. 3.In the absence of specific guidelines for ketamine and when justifying her decision to adopt the sentencing guidelines for ecstasy in Hii’s case, the judge referred to a passage in Seabrook v HKSAR [1999] 2 HKCFAR 184 at 192H which reads:
4.Mr Zervos SC, on behalf of the Secretary for Justice (the applicant), submitted in relation to Hii’s review proceedings that the time had now been reached, in the light of present medical knowledge about ketamine and its prevalence in Hong Kong, for sentencing guidelines to be provided which dealt with ketamine in its own right. He further argued that the ecstasy guidelines in Lee Tak-kwan (above), being applied in many ketamine trafficking cases, were themselves out of date as the Court of Appeal’s observations in that case had now been overtaken by recent medical research into ecstasy. Mr Zervos particularly emphasised the comment of Mortimer V-P when giving the judgment of this court in Lee Tak-kwan (at 377D), that: “Most important ‘ecstasy’ is not addictive. Even psychological dependence is rare.” Mr Zervos submitted that if the judge in Hii’s case had correctly found that ecstasy and ketamine were both addictive in the sense she had described, it was not appropriate for ketamine or ecstasy traffickers to be sentenced on the existing ecstasy guidelines when these guidelines related to what was understood at that time to be a non-addictive drug. 5.In these circumstances, Mr Zervos argued that just as sentencing guidelines were needed for ketamine, so also the guidelines for ecstasy needed to be updated so that they were kept in line with modern medical knowledge. It is for this reason, with an abundance of expert evidence available to us about ecstasy as well as ketamine, that arrangements were made for the consolidation of a case concerned with ecstasy so that it could be used as a means of revisiting, if necessary, the ecstasy guidelines. 6.For this purpose, CACC 126/2007 was consolidated with the review hearing. This took a considerable time to achieve but the applicant in that case, Wong Yat-san (Wong), and Hii in the review proceedings, were each informed well in advance that they would not be adversely affected if the court decided to make any upward revision of the existing sentencing guidelines for trafficking in ecstasy or to issue guidelines for ketamine traffickers. Background to review of sentence in CAAR 7/2006 7.On 20 May 2005, Hii pleaded guilty in the Magistrates’ Court to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars of the offence were that on 2 February 2005 at the Customs Arrival Hall, Hong Kong International Airport, he unlawfully trafficked in 1.97 kilogrammes of a powder containing 1.64 kilogrammes of ketamine. On 12 June 2006, following a Newton hearing which had taken place in January and May 2006 at the request of the prosecution, when prosecution and defence expert witnesses testified, the judge sentenced Hii to 7 years and 4 months’ imprisonment. 8.Ma CJHC granted leave to the applicant on 4 July 2006 to apply to this court under section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of the sentence imposed on Hii. 9.All that needs to be said about the factual background in Hii’s case is that when Hii was intercepted at the airport, his travel bag was found to contain three separate bags which appeared to contain food items. However, an ion-scan test on the contents gave a positive reading for the presence of ketamine. 10.The ketamine, the subject of the charge, had a street value of $679,650. Hii, a twenty-eight-year-old Malaysian at the date of his conviction, later admitted that he had been promised a reward for taking the items from Malaysia to someone in Hong Kong, an offer which he thought it would be “silly” of him not to accept. 11.The judge received evidence from four expert witnesses called by the prosecution and two who were called by the defence but, although satisfied that there was evidence of “tolerance and psychological dependence” arising from the abuse of both ketamine and ecstasy, she nevertheless adopted a starting point after trial of 11 years’ imprisonment, following the existing ecstasy guidelines in Lee Tak-kwan (above). This was reduced by a third to give effect to the respondent’s timely guilty plea. Furthermore, anticipating that the prosecution would wish to take the matter further, the judge correctly observed (para. 156 of the Reasons for Sentence):
12.Mr Zervos submitted that, by following the guidelines laid down in Lee Tak-kwan where expert opinion had described ecstasy as being non-addictive, the judge had erred in principle by passing a sentence that failed to take into account the addictive nature of ketamine. This, in turn, it was argued, had led to a sentence which was manifestly inadequate. Background to application for leave in CACC 126/2007 13.The evidence given by the experts about the effects of ketamine in CAAR 7/2006 almost inevitably overlapped with evidence about ecstasy, particularly in the context of a case where part of Mr Zervos’ argument was that the ecstasy guidelines should no longer be regarded as adequate for trafficking in either ecstasy or ketamine. With this in mind, as we have indicated, the consolidation of CACC 126/2007 with CAAR 7/2006 was arranged in order that the sentencing guidelines for trafficking in ecstasy could also be considered. 14.The factual background in CACC 126/2007 is extremely brief. Wong was on board a coach bound from the Mainland to Hong Kong. When it reached the Lok Ma Chau Control Point at 7.07 am on 30 June 2006, the passengers were asked to alight for the normal immigration procedures to be carried out, and all did so. A few minutes later, a black waist-bag was found lying on a row of seats at the back of the coach. 15.As the passengers who had disembarked would not necessarily be expected to resume their journey on the same coach once they had passed through immigration, the bag was handed to a customs officer and an announcement was made over the public address system that a bag had been found. However, when the bag had still not been claimed by 1.05 pm, it was opened and found to contain the drugs specified in the trafficking charge, namely, 1,510 blue tablets containing a total of 5.35 grammes of methamphetamine (‘ice’) mixed with 85.11 grammes of ecstasy. The street value of these drugs was $125,300. 16.The presence of a number of other items in the bag which belonged to Wong, together with the fact that it was established that Wong had crossed the border at the material time, enabled Deputy District Judge Mierczak to draw an inference of guilt following a trial in which Wong had chosen not to testify. 17.Wong was convicted on 29 March 2007 and sentenced on the same day to 5½ years’ imprisonment. Although Wong was subject also to concurrent suspended sentences of 4 months’ imprisonment which the judge activated, these were ordered to run concurrently with the sentence for trafficking. 18.The applicant sought leave to appeal against conviction and sentence, and it is convenient to deal straightaway with the first of these applications. 19.So far as conviction is concerned, Wong’s homemade ground of appeal merely referred to his conviction as being “unjustified” and he added nothing in these proceedings which cast any doubt on the integrity of the conviction. The inference of guilt which the judge had drawn was based upon overwhelming circumstantial evidence. Accordingly, this application is dismissed. 20.We shall deal later with Wong’s application in regard to sentence having first considered whether new guidelines for sentencing traffickers of ecstasy should be formulated. The 1998 sentencing guidelines for trafficking in ecstasy 21.The sentencing guidelines in HKSAR v Lee Tak-kwan (above) for trafficking in ecstasy on which the judge in the present review of sentence had relied when sentencing Hii for trafficking in ketamine, were given by this court almost a decade ago, on 26 May 1998. In that case, Mortimer V-P stated (at page 376) that the guidelines would be formulated from “first principles”, having regard to the “nature of the drug, its effects and the threat it poses to life and society compared with some of the other common drugs of abuse”. Ecstasy was described as a psychotropic drug normally associated with “marathon ‘rave’ dance sessions”. The normal dose was said to be “one tablet with an average narcotic content of 114 milligrammes”. 22.The judgment dealt (at page 377) with the reported effects of ecstasy, making the point that the “undesirable effects appear to increase with successive doses” and that in isolated cases there had been “idiosyncratic effects leading to serious medical complications and, in rare cases, death … almost entirely associated with either prolonged exertion during ‘rave’ dancing or the additional effect of other drugs.” As to this aspect, before turning to the scale of the abuse derived from Hong Kong statistics at that time, Mortimer V-P said:
23.In formulating the ecstasy sentencing guidelines, the fact, as then understood, that this drug was neither addictive nor toxic was obviously regarded as an important factor which influenced the court in assessing appropriate levels of sentence. Other important considerations were the statistics showing an increase in its abuse, its ready availability and wide abuse in the West and the fact that the adverse consequences leading to isolated deaths were “idiosyncratic” which might occur when any drug is taken. The judgment in Lee Tak-kwan (at page 378) continued:
The present issues 24.We shall turn shortly to the evidence we have been given about the harmful effects of ecstasy, together with recent statistics about its prevalence when considering whether the present ecstasy guidelines are adequate. Similarly, we shall look at what is known about ketamine abuse in Hong Kong in order to determine not only whether the guidelines for ecstasy in Lee Tak-kwan provide an appropriate level of sentence for traffickers in ketamine but also whether or not there are grounds for the formulation of separate sentencing guidelines for each of these drugs. Ketamine, like ecstasy, is described as a ‘psychotropic’ drug and although, pharmacologically, the two drugs differ considerably, it is the alarming rise in the popularity of psychotropic drugs in Hong Kong, with ketamine and ecstasy the most popular of them, which is a major factor giving rise to concern in these proceedings. The expert evidence 25.In making our assessment about the relative harm caused by the abuse of ketamine and ecstasy, we have been greatly assisted by the reports and the transcripts of evidence of five of the expert witnesses who were called to give evidence in the court below, four of whom updated their reports in the light of the latest medical learning and/or relevant statistics. In addition, fresh evidence consisting of further expert material was admitted without objection under the provisions of section 83V of the Criminal Procedure Ordinance, Cap. 221. It was not considered necessary that we should hear any oral testimony from any of the experts. 26.Four of the experts heard by the judge in Hii’s case were called by the prosecution. They were Detective Senior Inspector Paul Lewis (DSI Lewis), Dr Ronald Chen Yuk-lun, Dr Ben Cheung Kin-leung and Dr Karen Laidler. Called on behalf of the defence was Professor Lee Tak-shing. We shall, in due course, deal with various aspects of the evidence they have provided, making reference to other expert witness reports where these significantly contribute to the evidence of the experts who were called in the court below. This being said, clearly our main focus of attention in each of the cases now before us has been upon the prevalence of these drugs of abuse together with the harmful effects to which they give rise. Having regard to the considerable overlap in the evidence concerning these two drugs, when dealing with their prevalence it is convenient to deal with them together. Ketamine and ecstasy statistics 27.Evidence was put before us from several quarters that ketamine is presently the most popular drug of abuse in Hong Kong for those who are under twenty-one although, putting age aside, heroin remains the most widely abused drug in terms of the overall number of drug abusers. 28.DSI Lewis, attached to the Intelligence Division of the Narcotics Bureau, presented statistical data, gathered by law enforcement agencies and the Government Laboratory, to illustrate the prevalence of ketamine when compared to other dangerous drugs. We shall first deal with the statistics he has provided. 29.In 2001, the amount of ketamine seized was 81.5 kilogrammes. In 2002, the figure stood at 89.9 kilogrammes. After dropping to 51 kilogrammes in 2003 and to 46.4 kilogrammes in 2004, the figure rose to just over 296 kilogrammes in 2005. Then, in 2006, a steep rise to 1,006.08 kilogrammes was recorded. In the first six months of 2007, the figure recorded was 35.69 kilogrammes. 30.DSI Lewis helpfully set the figures for ketamine seizures alongside the seizures of ecstasy and other drugs, namely, heroin, cocaine, cannabis and methamphetamine (‘ice’) between the year 2001 and June 2007 (with an asterisk against the 2007 figures to denote that these were provisional). Much of the ecstasy seized was in ‘tablet’ form as to which we note in passing that, on the available evidence, there is no reason to depart from what was said in Lee Tak-kwan that “the normal dose [of ecstasy] is one tablet with an average narcotic content of 114 milligrammes”. 31.DSI Lewis produced a schedule to illustrate the figures, as follows: -
32.DSI Lewis also supplied us with a schedule relating to the retail prices of ketamine and ecstasy, amongst other dangerous drugs, as shown below:
It is apparent that the retail prices for both ketamine and ecstasy have fallen considerably since 2001. 33.In another schedule, illustrating that while ketamine is the principal drug of abuse for the young (under twenty-one), heroin remains the most widely abused drug of all amongst the population of Hong Kong as a whole, DSI Lewis set out the numbers of persons arrested by drug type:
34.In a further refinement of this last schedule, DSI Lewis was also able to illustrate the prevalence of ketamine amongst young people by reference to the number of persons who were under twenty-one at the time of their arrest, as follows:
It is noticeable from these figures that ketamine, followed by ecstasy, are the most widely abused drugs amongst the young. 35.The figures given by DSI Lewis show that the number of persons arrested in relation to ketamine offences decreased in 2003 and then further decreased in 2005 after a rise in 2004. DSI Lewis attributed this in part to a change in the method of trafficking from “frequent but small consignments” coming from the Mainland to “multi-kilo consignments coming from South-East Asia”. Furthermore, the large seizures of ketamine by the authorities had led to “disruption to the supply locally”. He suggested also that the reduced number of arrests in relation to ketamine, (from 2,357 in 2002 to 687 in 2005) was unlikely to reflect a diminishing number of ketamine users bearing in mind the increase in volume of ketamine seized in 2006 over the preceding years. 36.Emerging from these schedules, it can readily be appreciated that in 2006 a greater quantity of ketamine than ecstasy was seized by drug enforcement agencies and far more than heroin, cocaine, cannabis and ice. The contrast was less marked in the first six months of 2007, when the provisional figures revealed that 35.69 kilogrammes of ketamine were seized compared to 42,759 tablets of ecstasy and 20.49 kilogrammes of heroin. Furthermore, the fact that the arrests of those under twenty-one for ketamine-related offences numbered 597 in 2006 and 520 in the first half of 2007, compared to 98 and 51 for ecstasy–related offences over the same periods of time, adds powerfully to the proposition made by several of the experts that ketamine is not only targeted at young people but is the most popular drug of abuse in Hong Kong by those under twenty-one and is second only to heroin in overall terms of abuse. 37.The final statistics produced by DSI Lewis which require comment in the present context are those related to fatalities linked to the consumption of ketamine and ecstasy or a combination of both. 38.As other experts were to inform us, ketamine and ecstasy are frequently taken in combination with each other and/or with other drugs including alcohol. It is not surprising to find, therefore, that ketamine is usually associated with fatalities only where it has formed part of a cocktail of drugs. Ecstasy, on the other hand, has led to fatalities by itself. 39.The statistics produced by DSI Lewis for fatalities resulting from the effects of ketamine and/or ecstasy since 1 January 2004, were as follows:
In short, out of these nineteen deaths relating to persons aged between 13 and 48 in a period of 34 months, nine were associated with ketamine and twelve with ecstasy, two involving a combination of both these drugs. Although six cases appear to have been due to ecstasy alone, DSI Lewis’ schedule provides some illustration of how ketamine and ecstasy are often mixed with other drugs by those who abuse them. This aspect is one to which we shall return later when dealing with the evidence provided by other experts. Trend towards psychotropic drugs 40.Mr Ip Mun-kau, Senior Statistician of the Security Bureau, provided us with further statistics to illustrate the trend in Hong Kong towards psychotropic drugs. He has been employed by the government as a statistician since 1989 and has responsibility, amongst other things, for overseeing the operation of the Central Registry of Drug Abuse (CRDA) which operates under the purview of the Security Bureau where statistics on drug abuse are compiled. With these proceedings in mind, using the data from the CRDA, and from other sources including the Hospital Authority, Mr Ip was able to analyse trends in drug abuse, collating a variety of drug-related statistics in his presentation of a 13-page report. 41.Mr Ip’s report, entitled “Report on the drug situation in Hong Kong”, laid emphasis on the fact that the CRDA is a “voluntary reporting system which may only capture those abusers who had come into contact with and been reported by the reporting agencies”. It follows, therefore, as Mr Ip noted, that it is obviously not possible to ascertain the exact size of the population who abuse drugs and, as he expressed it, “the statistics should be taken as indicators of the trends in drug abuse over time rather than a finite definition of the situation”. 42.Mr Ip’s report [para. 2.1.3] stated that over the past few years, the total number of drug abusers recorded by the CRDA was, at least until recently, on the decrease. The figures showed a drop from a peak of 18,513 in 2001 to 13,204 in 2006. Consistent with this, the number of reported heroin abusers over the past decade showed a declining trend, with 14,291 in 1997 down to 8,101 in 2006. However, Mr Ip said that with regard to the number of reported psychotropic substance abusers, the figure was on a general rise, from 3,488 in 1997 to 7,364 in 2006. In regard to young drug abusers (under twenty-one years of age), the number fell from 4,020 in 2000 to 2,186 in 2004 but then “picked up to 2,549 in 2006 (with an annual increase of 4% and 12%, respectively, in 2005 and 2006). 43.More specifically, Mr Ip noted that ketamine abusers were first reported to the CRDA in 1997 and that the proportion of drug abusers who used ketamine increased from 0.2% of all those who abused drugs in 1999 to 23.2% in 2006 with some fluctuations within the period. Ecstasy abusers, on the other hand, were first reported to the CRDA in 1993. Between 1996 and 1998, the proportion of ecstasy abusers was no more than 0.4% of all drug abusers but by 2006 the figure stood at 11.6%. 44.Mr Ip was also able to say that, among young drug abusers, the abuse of psychotropic substances has shown an increasing trend over the last decade with the proportion increasing from 44.4% in 1997 to 98.9% in 2006. 45.Amongst recent drug abuse trends, Mr Ip noted that about 83.3% of reported drug abusers in the first half of 2007 were male and 16.7% female, with heroin (the most popular drug of abuse) being consumed by 58.8% of the reported drug abusers, a figure which was lower in the first half of 2007 than for the same period in 2006. However, 54.1% of the reported drug abusers abused psychotropic substances in the first half of 2007, a figure which was higher than for the same period in 2006. 46.When Mr Ip examined the statistics (set out in ‘Table 5’ of his report) in regard to those under twenty-one, he reported that in the first six months of 2007 they numbered 1,646 which was 10.7% higher than for the same period of 2006. 71.4% of these young abusers were males and 28.6% were females. He then stated, again comparing the first half of 2007 with the same period in 2006:
What is known about ketamine 47.Having considered the prevalence in Hong Kong and the obvious popularity of ketamine, particularly amongst the young, we turn next to what is known about this drug. 48.Dr Ronald Chen, Assistant Professor in the Department of Psychiatry at the University of Hong Kong and Psychiatrist-in-charge of the Substance Abuse Clinic at Queen Mary Hospital, headed a research team of six, including himself, in the production of a report entitled: ‘A Study on the Cognitive Impairment and other Harmful Effects Caused by Ketamine Abuse’ published in February 2005 and commissioned by the Narcotics Bureau. This study referred to ketamine as a psychotropic drug which is commonly abused with other psychotropic drugs, especially ecstasy. There was, the study noted, an alarming upward trend in the abuse of both these drugs and a major cause for concern was the prevailing view among youngsters that, because these drugs are different from heroin, they were not harmful to them and that the drugs merely enhanced their enjoyment of music and dancing. He noted also that long-term users of both ketamine and ecstasy have been found to develop “tolerance and psychological craving for the drugs although detailed physiological withdrawal symptoms had not been well documented”. 49.Ketamine was described in Dr Chen’s study as a “dissociative anaesthetic which produces unresponsiveness to external stimuli by dissociating various components of the mind”. Users experience “amnesia, marked analgesia and a trance-like state dissociated from the environment resulting in out-of-body or near death experience”. In his most recent report, attached to an affirmation dated 14 September 2007, Dr Chen’s conclusion from his own research as well as from overseas academic studies was that “ketamine has the potential for causing a wide range of psychological and physiological harm on the abuser including dependence and neurocognitive impairment”. 50.Dr Ben Cheung Kin-leung, Assistant Professor of the Department of Psychiatry of the University of Hong Kong and a psychiatrist in private practice who was, when he gave evidence in the court below, the head of the Substance Abuse Clinic in Kwai Chung Hospital, referred to Dr Chen’s study in his updated report, attached to an affirmation made on 15 October 2007, when commenting that “ketamine dependence is clearly documented in drug treatment settings of Hong Kong”. Dr Cheung also made reference to an article in the well-known medical journal The Lancet [Vol. 369 March 24, 2007] where, amongst other things, the pleasurable effects of a variety of drugs and their propensity to produce dependent behaviour were discussed by the authors, David Nutt, Leslie A King, William Saulsbury and Colin Blakemore. Dr Cheung noted that heroin and cocaine were at the top of the list but that the “mean dependence score for ketamine was higher than cannabis, LSD, GHB [gamma-hydroxybutyric acid] and MDMA (ecstasy). Ketamine’s effects to produce pleasure, psychological dependence and physical dependence were all rated higher than those of MDMA”. Dr Cheung illustrated this by means of a schedule, drawing on some of the figures taken from the article in The Lancet, as follows:
51.In regard to the references to ‘dependence’ in this schedule, Dr Cheung stated that it was relevant that there has been a shift from emphasis on physical dependence and withdrawal symptoms to a set of “more comprehensive diagnostic criteria”. He noted that while, historically, dependence often used to refer to physical dependence, it is now recognised that dependence “comprises both physical and psychological elements”. He explained that psychological dependence referred to the experience of “impaired control over drug use, and is characterised by repeated and excessive use of a drug”. 52.Dr Cheung described ketamine as having “… a multitude of effects on different internal organs of the body, including cardiovascular, respiratory, neuromuscular, neuropsychiatric, gastrointestinal, reproductive and immune system harms …”, concluding that this is a harmful drug causing a multitude of problems over many organs and systems of the body”. Dr Cheung stated in his testimony in the court below that “ketamine dependence is a clinical diagnosis”. At his unit in “the past year”, he said that 108 out of 185 new cases concerning the abuse of psychotropic substances by people under 21 fulfilled “the diagnostic criteria of ketamine dependence” according to the Diagnostic and Statistical Manual of Mental Disorder, 4th edition, (DSM)”. Although he had no doubt that ketamine caused dependence, he was not able to say that everyone who abused ketamine would eventually become dependent. One of the problems in deciding this was the difficulty in finding “pure cases” relating to those who solely abused ketamine. 53.Dr Cheung considered that it was inappropriate to compare ketamine with ecstasy, explaining that it was “like comparing orange to apple”. They were both, he said, illicit drugs giving rise to “different harmful effects on different parts of the body”. 54.It is convenient at this stage to turn to the material provided in an affirmation dated 12 September 2007 by Professor Kenneth Lee Kwing-chin (Professor K Lee) who, amongst other things, dealt with the harmful effects of ketamine on the human body. 55.Professor K Lee is Professor and Associate Director (External Affairs) at the School of Pharmacy of the Chinese University of Hong Kong. He has been a registered pharmacist since 1984 and has written over one hundred research papers. He has also taught and carried out research in areas related to drug abuse and drug toxicities and has served on various Government Advisory Committees including, for seven years, Action Committee Against Narcotics (ACAN) and is still serving on related sub-committees. 56.Professor K Lee described ketamine as a derivative of phencyclidine which was introduced in 1957 as a general anaesthetic but was never approved for clinical use. These days, it is usually available as ketamine hydrochloride. Ketamine was first introduced in 1963 as an anaesthetic agent but, with the introduction of safer and more effective methods, Professor K Lee stated that its clinical use had diminished although it is sometimes still used in procedures on humans. It is, however, widely used with animals by veterinary surgeons for sedation, surgery, travel and euthanasia. 57.Professor K Lee stated that ketamine became a drug of abuse in the 1980s. Although manufactured as an “injectable liquid”, in illicit use it is generally evaporated to form a powder that is then snorted or compressed into tablets. It is commonly known as “K” although other slang terms provided by other experts included Special K, Keets, Green, Jet, Super Acid and Super C. 58.The pharmacological aspects of ketamine were described by Professor K Lee in his report as follows:
59.So far as non-medical use of ketamine is concerned, Professor K Lee made reference to a number of authors in stating that users most often described a dramatic feeling of “dissociation from one’s self”. Other reported experiences included distortion of space and time, a sense of floating and hallucinations. In other more extreme cases, there were reports of a “terrifying feeling of almost complete sensory detachment, often described as a ‘near-death experience’ described sometimes as a ‘K-hole’. 60.Professor K Lee explained that the onset and duration of the effects of ketamine can vary according to the means of administration. The fastest effects, within 30 seconds, are obtained after intravenous administration. Pausing here, Professor Lee Tak-shing, whose evidence in the court below we need only touch upon briefly for reasons we shall come to shortly, stated that although intravenous usage is commonly reported in Western literature, it is very rare in Hong Kong. In his extensive clinical and research experience, he had never encountered an intravenous or intramuscular ketamine user. Whether this difference in usage in the West has a bearing on the placement of ketamine at 6th position out of the twenty drugs listed in The Lancet’s article we have not been told although it is right to add that rapid effects, according to Professor K Lee, are also obtained when ketamine is snorted. Oral administration, on the other hand, usually produces an effect after 30 to 40 minutes. The effects of ketamine last for about 2 to 3 hours. 61.The judge, in her Reasons for Sentence, commented on information given to doctors by users of ketamine and ecstasy that as the stimulant effect of ecstasy generally takes 20 to 40 minutes before it is felt, the user may take “fast-acting” ketamine to fill the gap as the “commonest way to abuse ketamine is by snorting the fine powder through the nostril whereas ecstasy is usually in tablet form”. Some users, the judge noted, also use ketamine when the effects of ecstasy begin to wear off. 62.Ketamine was described by Professor K Lee as “tasteless, odourless and colourless”. It induces, he said, amnesia so that it is possible that ketamine could be added to beverages without being detected and could, therefore, be used to facilitate a sexual assault although proven cases of this kind are very rare. Curiously, on this aspect, Dr Cheung to whom we have referred already, stated that ketamine had a “bad taste” which provided a reason for consumers not usually taking it by mouth although some would mask its taste in drinks such as orange juice. 63.A frequently encountered feature in the abuse of ketamine when taken in tablet form is its use in combination with other drugs including ecstasy, ephedrine or amphetamines. Professor K Lee pointed out, in this regard, that combining psychoactive substances is the “most risk-producing behaviour of recreational drug users because they usually consume alcohol as well. …” 64.When dealing with the potential for addiction, Professor K Lee indicated that tolerance appeared to develop after repeated use. Experienced users who have developed tolerance can use up to a gramme or more of ketamine during the course of a single evening. However, although dependence and tolerance to ketamine are “so far only established in animal studies”, Professor K Lee said that:
It is not without interest in this regard that in the article from The Lancet to which he had earlier referred, it was noted that: “For many drugs there is a good correlation between events that occur in human beings and those observed in studies in animals”. 65.Professor K Lee stated that the “short duration of effect and the rapid onset of action when ketamine is consumed intranasally or intravenously often lead abusers to administer repeated doses in order to maintain the desired effect”. 66.Professor K Lee’s report dealt also with the major dangers arising from the abuse of ketamine in these terms:
67.A further adverse effect from ketamine was dealt with by Dr Peggy Chu Sau-kwan, a specialist in urology who, in 1992, became a Fellow of the Royal College of Surgeons of Edinburgh and of the College of Surgeons of Hong Kong. She is currently posted at the Surgical Department of the Tuen Mun Hospital. 68.In a report entitled “‘Street ketamine’ – associated bladder dysfunction: a report of ten cases”, published in the Hong Kong Medical Journal Vol. 13 No. 4, August 2007, Dr Chu, together with other urologists and toxicology specialists, set out their research in this regard. In the patients she has treated, Dr Chu has found that physical dependence and tolerance can follow prolonged administration of ketamine. Her report dealt with ten specific cases in Hong Kong of young ketamine abusers, all of whom presented with severe lower urinary tract symptoms. Investigations demonstrated contracted bladders (‘the shrunken bladder effect’) and other urinary tract abnormalities which have not previously been reported in ketamine users. Whilst the aetiology, or causation, of the disease is presently unknown, the possible reason for the shrinking bladder effect was explained by Dr Chu in her affirmation in this way:
She added:
69.Dr Karen Laidler is Professor and Associate Dean at the University of Hong Kong and is based in the Department of Sociology. She works principally as a criminologist. Since 1995, her main research concerned the Hong Kong drug market. From her research into the changes in patterns of drug use and a number of associated issues, it appeared that “ketamine use in Hong Kong is greater than in other places [in the world] where there is some use …” and was widely used by young people in Hong Kong. 70.Dr Laidler provided an interesting account concerned with people’s motives for using more than one kind of drug. In the present context, she commented that people would tend to take ecstasy first and then later, after the drug had taken effect “they would take ketamine to shift the nature of the experience”. She explained that as ecstasy has a stimulant effect, it would make people feel that they wanted to “dance and shake”. However, with ketamine, “the desired effect is one more of a transformative experience where they enjoy the sensation of … flying and floating, having their body float …”. She went on to describe the feeling of flying as being as if the body was “going through a tunnel and trying to reach some light at the other end”. 71.Dr Laidler commented, in an updated report attached to her affirmation made on 15 October 2007, that while, initially, ecstasy had been the “drug of choice among young people in Hong Kong, ketamine has surpassed [it] in popularity”. She attributed this in large part to the fact that “ketamine, unlike ecstasy, is being used in settings beyond the dance party venue, with young people reporting use in other public and private locales”. 72.Finally, in regard to Dr Laidler, she found that the majority of ketamine users would only consume at weekends and that about 5 to 10 per cent of users developed “high tolerance and psychological dependence”. 73.We have not touched upon the evidence given for the defence in the court below by Professor Lee Tak-shing as he was mainly concerned with criticisms of Dr Chen’s methodology in the preparation of his study which was, he considered, based on a relatively small sample of drug abusers. However, this is no longer an issue of fundamental importance as, dealing with Professor Lee Tak-shing’s evidence, the judge said in her Reasons for Sentence:
Ecstasy 74.Professor K Lee’s affirmation, in addition to his observations about ketamine, dealt also with what is known about ecstasy (or MDMA). He described it as a “ring-substituted derivative of amphetamine” which, after it was synthesized in Germany in 1914, was used as an appetite suppressant. Since the mid-1980s, it had become popular as a recreational drug taken at ‘rave’ parties where participants often dance all night. It is not only commonly referred to in Hong Kong as ‘ecstasy’ but also by other colloquial terms such as ‘Fing Tao’ or ‘E’ and provides “stimulation and feelings of euphoria”. 75.These days, as ecstasy is usually manufactured in clandestine laboratories, Professor K Lee explained that the purity and the doses will vary greatly although tablets have regularly been found to contain between 80 and 150 milligrammes of MDMA. 76.Aside from the tablet form, ecstasy is also available in capsules or powder. Tablets or capsules are found in a variety of colours, shapes and sizes. 77.Professor K Lee explained that the pharmacological effects of ecstasy result mainly from “increased release and inhibition of the re-uptake of several neurotransmitters, namely, dopamine, serotonin and noradrenaline at the neural junction”. The increase in serotonin at the neural junction is the “major mechanism of action underlying the distinctive mental effects of MDMA”. The stimulation and feelings of euphoria experienced by the user “appear to be due to the release and accumulation of dopamine in areas of the brain that regulate feelings of pleasure” whereas the effects of increased heart rate and blood pressure “are most probably mediated by MDMA-induced release of noradrenaline”. 78.Professor K Lee said that ecstasy begins to take effect 30 to 60 minutes after oral administration and to peak after 60 to 90 minutes, with a duration of action of about 4 to 6 hours after ingesting a single tablet containing between 100 to 120 milligrammes of MDMA. Ecstasy in powder form may be snorted to achieve a more rapid effect. The desired effects were said to include euphoria, increased energy, a feeling of intimacy, enhanced libido and altered visual perception. Some of these neurological effects self-evidently increase the risk of trauma resulting from traffic accidents or falling. This being said, there had been overdose cases where between 18 and 40 tablets had apparently been ingested with “no serious consequences” being reported. In this regard, Professor K Lee referred to a report about ecstasy-related fatalities made by the National Poisons Information Service in London which concluded that most of these deaths were not associated with massive overdose. 79.In another report to which Professor K Lee referred, in which, all deaths related to the taking of ecstasy in England and Wales from 1996 to 2002 were studied, it was found that 17% involved ecstasy on its own while the remaining deaths were related to polydrug use. He said that it appears, therefore, that fatalities are more likely to occur as the result of a “combination of drug effects and environmental factors such as poor ventilation, sustained physical activity and dehydration” than from the direct toxic effects of ecstasy by itself. 80.Recent findings have indicated that females are more sensitive to the effects of ecstasy with one implication being that female users in rave parties may engage in unprotected sex with all the attendant risks this may involve. Professor K Lee said that data on long-term toxicity due to the ingestion of MDMA is mainly derived from animal studies and it is uncertain to what extent those results are applicable to the human body when, for ethical reasons, such studies are difficult to conduct. He went on to say:
81.Professor K Lee stated that after the user of ecstasy has achieved a ‘high’ and the effect dissipates, this may result in feelings of depression, fatigue and irritability. The depression can last for many days. Acute adverse physiological effects were described as elevated blood pressure and heart rate, nausea, chills, sweating, tremor, teeth grinding, jaw rigidity, muscle ache or tension, hot and cold flushes, nystagmus and insomnia, with abnormalities in blood coagulation also being reported. 82.The typical recreational dose was said by Professor K Lee to be between 1 and 2 tablets. However, he pointed out that what may be thought to be ‘ecstasy’ by the user may in fact contain a number of other drugs including ice and cocaine. As tolerance to the psychoactive properties of MDMA “appears to develop rapidly”, Professor K Lee stated that the user would often increase the dose in order to maintain the desired response from the drug but it does not appear to be as addictive as heroin or cocaine. He observed that while the experimental data demonstrating “potential long-term brain damage after MDMA usage” comes mainly from animal studies, nevertheless there is a wealth of observational data and there are case reports on the long-term effects of this drug in humans which suggest “a range of long-term and, in some cases, irreversible toxicities after prolonged recreational use of the drug”. 83.With this background, Professor K Lee expressed the view that, with an increase in ecstasy’s popularity among young people, this could present a major health problem and he thought the message to be disseminated should be: “Although MDMA neurotoxicity for humans is not yet proven, available evidence suggests that it is highly likely”. In regard to physical dependence on ecstasy, Professor K Lee said that while there is no conclusive evidence of this, “it is believed that psychological dependence is common”. Discussion 84.Mr Poots, on Hii’s behalf, in the course of his most helpful submissions which he effectively approached from the standpoint of an amicus, accepted that there were plainly harmful effects and risks involved for those who abuse ketamine and ecstasy, although the level of their addictiveness was lower than that of heroin and cocaine. He submitted, however, that there was insufficient evidence of a deterioration in the situation as it existed at the time when the guidelines in Lee Tak-kwan were formulated to justify any change. He suggested also that the adoption by the courts of the same levels of sentence for ecstasy and ketamine should continue. Mr Poots cautioned against a rise in the tariff for trafficking these drugs having regard to a lack of positive evidence about the long-term effects on those who abuse them and he suggested that the present levels of sentencing were adequate to meet the dangers posed by these two prevalent drugs. He also submitted that it was necessary to keep a sense of proportion bearing in mind the conclusions reached in The Lancet’s article to which we have earlier referred that the adverse effects of alcohol in terms of dependence and social harm were rated to be worse than for ketamine and ecstasy; and in addition, from the same article, that “smoking tobacco beyond the age of 30 years reduces life expectancy by an average of up to 10 years, and it is the commonest cause of drug-related deaths, placing a huge burden on health services”. 85.In the court below, the deputy judge found that the difficulty in locating consumers purely of ketamine, when the majority of those taking ketamine are polydrug users, led her to conclude that it had not been proved that ketamine was more prevalent than ecstasy in spite of the statistics produced by DSI Lewis. We have concluded, whichever of these drugs is the more prevalent, that the most important features of the evidence are that both drugs are prevalent and both drugs are targeted at the young, particularly those under twenty-one. We are satisfied also that each drug has serious side-effects which impinge not just upon the consumers but also on the community at large. It is plain, also, that ecstasy and ketamine are frequently taken by the same users to fill a gap as, for example, when ketamine is snorted before an ecstasy tablet has had time to take effect or when ketamine is taken after the effects of ecstasy have begun to wane. Sometimes, they are taken simply to produce a new and different experience. 86.In our view, therefore, it matters little which of these drugs is the more prevalent. They are both, potentially at least, highly dangerous and they are, as the judge found, addictive in the sense that they have the potential for psychological dependence. We also agree with a further conclusion reached by the judge that no good reason had been shown for treating traffickers of ketamine differently from those who traffic in ecstasy. 87.For present purposes, the most significant change since Lee Tak-kwan’s case is the element of addictiveness which has been established in regard to each drug. It is this which primarily distinguishes the evidence before us from the evidence ten years ago in Lee Tak-kwan which led this court to say that ecstasy was not addictive and that psychological dependence was rare. 88.In our view, these two drugs, different in their own ways, pharmacologically and in the harm they can do, are not to be distinguished when it comes to dealing with those who are caught trafficking them. 89.We have, as we have indicated already, had the benefit not only of the material which was before the judge but also a sizeable body of further reports bringing the statistical data up-to-date together with the latest developments in medical opinion. We are satisfied on the information presently before us that ketamine and ecstasy have been rightly described as the most popular and the second most popular psychotropic substances of abuse amongst young drug takers, respectively. The statistics produced by DSI Lewis and Mr Ip are a graphic illustration of this, confirmed by the opinions of highly qualified medical practitioners. It is apparent, also, that these two types of drug are often taken in combination to complement each other and that, with each, a tolerance to them develops giving rise to psychological dependence and the adverse effects of toxicity. We have borne in mind that while there is no “solid evidence” of long-term effects due to toxicity related to the abuse of ecstasy, it is “highly likely” to be a factor. Relevant animal studies have shown this to be so and human studies of a similar kind are impossible for obvious ethical reasons. 90.In such circumstances, we consider that, subject only to the weight of the respective “doses” normally used for each drug so that parity of treatment is achieved, there should be sentencing guidelines for both ketamine and ecstasy and that these should be the same. Moreover, having regard to the addictive and toxic elements of both drugs, we are satisfied that the sentencing guidelines should be higher than those outlined in Lee Tak-kwan. Ketamine and ecstasy guideline sentencing tariffs 91.In our opinion, as we have indicated, sentencing guidelines are called for in regard to ketamine. This drug has been shown not only to be a prevalent drug in Hong Kong but also, seemingly, the most popular of all amongst those under twenty-one who abuse drugs. As the statistics coupled with the medical evidence have revealed, ecstasy is closely associated with ketamine. Furthermore, both drugs have been shown to be addictive in the sense that they give rise to psychological dependence. These are the prime factors we have taken into account in the formulation of guidelines which we consider should be the same for both types of drug. 92.Importantly, in this context, we were provided with the narcotic content (or active ingredient) in terms of the weight needed to make a single “dose” in respect of each drug. For ketamine, we were told by Dr Laidler that a “packet” of ketamine with an average of 200 milligrammes could provide more than one dose, as a typical dose was between 60 to 250 milligrammes. Professor K Lee described recreational doses as ranging from 10 to 250 milligrammes when taken nasally, 40 to 450 milligrammes when consumed orally and 10 to 100 milligrammes when used intramuscularly. When smoked, with users insufflating from special devices, the usual dose is between 30 and 50 milligrammes. 93.We can accept, that a single dose contained in a tablet of ecstasy has an average narcotic content of about 114 milligrammes, the figure taken by this court in Lee Tak-kwan. On Professor K Lee’s evidence, ecstasy tablets regularly contain between 80 and 150 milligrammes. Accordingly, 1 gramme of ecstasy provides approximately 8.5 doses and we shall deal with ketamine on the same basis. As a rough guide, therefore, the weight of the narcotic content or active ingredient in both ketamine and ecstasy can be regarded as about the same. 94.Under the present ecstasy guidelines in Lee Tak-kwan, we note that the three tariff bands of up to 25 grammes, up to 400 grammes and up to 800 grammes relate, on the basis of about 8.5 doses to a single gramme, to an equivalent of 212, 3,400 and 6,800 doses, respectively. The sentencing bands for these amounts are 2 years, 4 years and 8 years’ imprisonment, respectively. Mr Zervos commented that these bands failed to differentiate proportionately between the various quantities of ecstasy having regard to the corresponding terms of imprisonment. By way of example, there is a 16-fold difference between the weight of the ecstasy in the upper limits of the first and second bands yet the difference in sentence is only 2 years. Mr Zervos suggested that there should be a sequence of penalties related to a graduated rising scale until the quantity was so large that a mathematical progression was inappropriate and it should be left to the discretion of the sentencer. We accept his criticism and we propose to set out new guidelines altogether. 95.We indicate the following tariffs for sentence after trial for traffickers in ketamine and ecstasy:
96.Finally, there are two other matters to which we must refer in regard to these guidelines. 97.First, we do not envisage the trafficker in ketamine or ecstasy who visits a discotheque or similar premises being given a non-custodial sentence under any circumstances save where these are exceptional in the extreme. The guidelines are intended to deter traffickers who frequent such premises where young people are likely to be. In very many instances, it is likely to be the small-time pushers of drugs, often with a mere handful of tablets to supply to others, who shoulder the responsibility for taking young people off the rails and starting them on a path of self-destruction through drugs. 98.The second matter is closely related to the first. We should perhaps repeat what was said in HKSAR v Wong Suet-hau and Anor [2002] 1 HKLRD 69 wherein this court dealt with the approach to be taken to “social trafficking”. The Court of Appeal in that case said:
99.In the unlikely event that an habitual abuser of ketamine or ecstasy or both, with no previous convictions for trafficking in dangerous drugs, is caught in the act of supplying a close acquaintance such as a boyfriend or girlfriend who is also a regular consumer of drugs, we can envisage that this might well give rise to circumstances where a non-custodial sentence would be justified. However, care must be taken in regard to mitigation of this kind that regular traffickers, in order to avoid what in practice will be an inevitable sentence of imprisonment, do not succeed in availing themselves of mitigation along such lines. 100.The new guidelines do not have retrospective effect so that the tariff bands for trafficking in ketamine and ecstasy will only apply to offences committed after this judgment has been given. It follows, as we have indicated earlier, that Hii and Wong are not affected by them. 101.In CAAR 7/2006, the application for a review of sentence succeeds to the extent that the sentencing guidelines we have outlined for trafficking in ketamine will henceforth result in the imposition of heavier terms of imprisonment for such offences. However, pursuant to section 81B of the Criminal Procedure Ordinance, whilst we allow this application we make no alteration to Hii’s sentence. Wong’s sentence application in CACC 126/2007 102.We are grateful to Mr Cheung Kam-chuen for the able assistance he gave us concerning Wong’s sentence application. His principal submission was that the Deputy District Judge had failed to give effect to the judgment in HKSAR v Yip Wai-yin and Anor [2004] 3 HKC 367 in that the sentence of 3½ years’ imprisonment which he had adopted for the 5.35 grammes of ice was increased by a further 2 years to take into account what he had rightly described as the “significant” quantity (85.11 grammes) of ecstasy. Mr Cheung argued that this increase of sentence was “closer to a separate sentence than an upward adjustment”. 103.Ma CJHC, in HKSAR v Yip Wai-yin and Anor, said:
In that case, no real criticism of the sentencing judge’s approach was made although the sentence was reduced to reflect a greater discount in regard to one aspect of the mitigation. 104.In the present case, whilst acknowledging that the judge had the principles in Yip Wai-yin’s case in mind, Mr Cheung suggested that although 2 years for trafficking in 85.11 grammes of ecstasy fell within the proper range suggested in the sentencing guidelines in HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 372, namely the 2 to 4-year tariff band for 25 to 400 grammes of ecstasy, by the addition of a full 2 years to the sentence, the judge had offended the very principles he had expressed himself as having adopted. Furthermore, it should not be overlooked that this was a ‘cocktail’, or mixture, of ice and ecstasy which was being trafficked as a single drug. 105.We agree with Mr Cheung’s submission. If Wong had faced an allegation of trafficking in which the charge related to 85.11 grammes of ecstasy, he would, in all probability, have received under the Lee Tak-kwan guidelines a sentence of about 2 years or, at any rate, no more than 28 months’ imprisonment. It has to be remembered that at the lower end of the sentencing range for drug traffickers, as was the case here under the Lee Tak-kwan guidelines, there is a large measure of deterrence built into the tariff. Thus, a relatively small-scale trafficker will receive a comparatively heavy sentence when the weight of the drugs in which he has trafficked is set alongside the sentence of the trafficker in far greater amounts. In these circumstances, we consider that Mr Cheung’s argument that the additional sentence of 2 years’ imprisonment was more in the nature of a separate sentence than an upward adjustment was, in principle, a sound one. In our view, a meaningful adjustment to take into account the quantity of ecstasy being trafficked by Wong would have been 18 months. 106.There was a further dimension to this application. This related to Wong’s mental condition which emerged from a ‘Medical Information’ sheet which was before the judge. A doctor at the North District Hospital had recorded that Wong was “fit for independent and group living” and suffered from mild mental retardation. 107.The judge did not adjourn sentencing for a fuller report to be obtained about Wong’s mental condition. He stated that the offence was a serious one involving over 1,500 tablets containing ice and ecstasy which Wong had deliberately imported from the Mainland. Furthermore, Wong was no stranger to the courts. He had four previous convictions, including one for the possession of dangerous drugs. His last conviction, on 3 March 2005, related to offences of deception and the use of a false instrument for which he received concurrent 4-month suspended sentences. 108.We invited further written submissions about Wong’s medical history which were received in November 2007 and we have taken these into account. Mr Cheung made the point that Wong’s mental condition may have reduced his responsibility for taking part in the offence in the sense that he was perhaps more susceptible to persuasion by the perpetrator of the crime and could generally be more easily exploited. As such, if his mental condition had played a part in the commission of the offence, the judge could properly have given a discount to the sentence he imposed (see: HKSAR v Chiu Peng, Richard, CACC 287/2001, para. 16). 109.We are satisfied, however, that a prison sentence was inevitable and that the judge had Wong’s mental condition well in mind. The judge specifically referred to this aspect when stating that he would endorse the documentation which would accompany Wong to prison that “all medical attention” should be given to him for his “mild schizophrenia as disclosed”. 110.Furthermore, the judge would have been fully entitled to have made consecutive prison orders as to the whole or a part of the suspended sentences to which Wong was subject. That the judge chose not to make such an order might, in normal circumstances, be regarded as generous but, as he went on to say, he took not only totality into account but also Wong’s “long-term mild schizophrenia”. 111.For the reasons we have given (at para. 105 above) on the matter of principle, we shall allow Wong’s application in regard to sentence which was, of course, governed by the guidelines in Lee Tak-kwan. Treating the hearing as the appeal, we allow the appeal. His sentence is reduced from 5½ years to 5 years’ imprisonment. There will be no alteration of the order made by the judge in regard to the suspended sentences which were activated and ordered to run concurrently.
Mr Kevin P Zervos, SC, Ag DDPP and Ms Winsome Chan, SGC, of the Department of Justice, for the Applicant in CAAR 7/2006 and for the Respondent in CACC 126/2007. Mr Laurence J. Poots, instructed by Messrs Au Yeung, Cheng, Ho & Tin, assigned by Director of Legal Aid, for the Respondent in CAAR 7/2006. Mr Cheung Kam-chuen, instructed by Bar Free Legal Service Scheme, Hong Kong Bar Association, for the Applicant in CACC 126/2007 (re: sentence). The Applicant in CACC 126/2007, in person (re: conviction). |
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