HKSAR v. NGAN KA CHUN AND ANOTHER

[English Translation – 英譯本]
CACC 12/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 12 OF 2008

(ON APPEAL FROM HCCC NO. 183 OF 2007)

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JUDGMENT

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Hon Yeung JA (giving the Judgment of the Court):

Background facts

1. In the morning of 14 March 2007, customs officers began their surveillance operation near the Regal Oriental Hotel in Kowloon City. At around 1 p.m. on the same day, the officers found the 1^st applicant, Ngan Ka-chun (“Ngan”) and the 2^nd applicant, Tsui Wai-sing (“Tsui”) appearing outside the hotel one after another and leaving the hotel together at about 1:30 p.m. for an eatery nearby (“Wong Ming Kee”). Later, the two of them returned to the hotel and went upstairs by lift. About 10 minutes later, the two left the hotel and went to Wong Ming Kee again. They left Wong Ming Kee after staying there for about 10 minutes, and boarded a taxi to go to Festival Walk. They were intercepted by customs officers when they alighted from the taxi at Festival Walk. They put up resistance and struggled with the officers in a bid to flee but were eventually subdued and arrested by the officers. Throughout the course of the surveillance and during the arrest, Ngan was carrying a backpack on his back. After the two applicants were arrested, the officers found six black plastic bags in the backpack, containing a total of 5,844.25 grammes of crystalline solid containing a total of 4,680.2 grammes of N,N-dimethylamphetamine (NNDMA).

2. When the customs officers searched Ngan’s residence subsequently, they found 166 millilitres of liquid containing 0.08 gramme of methamphetamine, two tablets containing 9 milligrammes of NNDMA, 7 milligrammes of ketamine and 0.14 gramme of 3,4-methylenedioxymethamphetamine.

3. As a result of the above incident, the two applicants were jointly charged with the first charge of trafficking in a dangerous drug, namely the 4,680.2 grammes of NNDMA seized from the backpack that Ngan carried. Ngan was additionally charged with the second charge of possession of dangerous drugs, namely the small quantity of dangerous drugs found in his residence.

4. The two applicants pleaded not guilty to the first charge of trafficking in a dangerous drug while Ngan pleaded guilty to the second charge of possession of dangerous drugs.

5. The case was tried before Deputy High Court Judge M. Poon (as she then was) sitting with a jury. In the end, both applicants were found guilty of the first charge of trafficking in a dangerous drug and both of them were sentenced to a term of 18 years’ imprisonment for that charge. On the second charge of possession of dangerous drugs, Ngan was sentenced to 6 months’ imprisonment, to run concurrently with the 18 years’ imprisonment imposed on the first charge.

6. Both applicants applied for leave to appeal against the conviction on the first charge and the sentences. As the application made by Tsui in respect of his conviction was out of time, he sought an extension of time from the court.

7. In their applications for leave to appeal against sentence, Ngan and Tsui are represented by Mr. Andrew Kan of Counsel and Mr. Andy Hung of Counsel respectively. Both of them are unrepresented and act in person in respect of their applications against conviction. At the first hearing of the applications on 16 December 2008, Ngan abandoned his application against conviction and the application was dismissed accordingly. As a result, we need only to deal with Tsui’s application against conviction and both applicants’ applications against sentence.

Prosecution's allegations and evidence

8. The prosecution alleged that the two applicants jointly trafficked in the dangerous drug referred to in the first charge. Apart from the undisputed background facts set out above, both the prosecution and the defence agreed that the two applicants each carried a mobile phone at the material times. Between the 1^st and 14^th of March 2007, the two applicants had communicated with each other via their mobile phones a total of 15 times, 8 of which were conducted between 1501 hours on 13 March 2007 and 1306 hours on 14 March 2007.

9. At the time of the arrest and at the subsequent interviews, both applicants had offered explanations to the allegations of the prosecution. Ngan stated that Tsui had asked him to carry the backpack and had told him that the backpack contained “ga shan” (equipment). But he did not know what the backpack actually contained.

10. Tsui admitted that the backpack was given to him by “Fat Kai”. Tsui stated that he “carried stuff for Fat Kai” in order to earn a remuneration. In his subsequent interview with the police, Tsui further explained how he had obtained the backpack, how he had delivered the backpack to the hotel according to instructions and given it to a person called Ah B. Tsui stated that Ah B helped Fat Kai to “get stuff for someone”. Not only did Tsui admit that he gave the backpack to Ngan, but he also admitted that he earned $10,000 in the incident, of which $4,000 was given to Ngan. However, Tsui stressed that he had never opened the backpack and therefore, he did not know what the backpack contained. But he also stated that he “knew it was not something good”, knew it was “illegal” and knew it was “dangerous goods”. But he did not know what kind of dangerous goods it was. Tsui stated that Fat Kai had told him, “Don’t open it, they measured up”, and he had also said “I thought I got nailed, for everybody knew that we were doing that kind of thing.”

The defence

11. At trial, both Ngan and Tsui gave evidence for their own defence but neither called any witness. Both of them tried to shift the blame onto the other in their evidence.

12. Ngan stated that Tsui had asked him to carry the said backpack and he did not know that the backpack contained dangerous drugs.

13. On the other hand, Tsui stated that Ngan had left the backpack with him in his house in the small hours of the day in question, and he subsequently handed the backpack back to Ngan. Tsui stated that he did not know what was contained in the backpack.

14. Tsui stated that he went to the Regal Hotel in order to ask a friend to repay a debt, and since Ngan had told him that he wanted to go to somewhere near the hotel, they arranged to meet somewhere near the hotel. Inside the hotel, he took the lift trying to find the toilet but in vain. So he went to Wong Ming Kee to find the toilet and something to eat. Later, he got a call from his friend asking him to wait outside the hotel, but as his friend did not turn up, he returned to Wong Ming Kee. As Ngan stated that he wanted to go to Shatin to inspect certain decoration, he boarded a taxi with him to go to Festival Walk. No sooner had they alighted from the taxi than they were arrested.

15. Tsui stated that he was assaulted after being arrested and he denied having made any confession. He said that he signed his name on some documents that were to his prejudice only because he had been threatened and assaulted. He stated that he had no idea at all of the contents of the documents and had not said what were written in the documents as said by him.

16. The prosecution and defence agreed that Tsui received medical examination at Ruttonjee Hospital around 10:20 p.m. on the night in question. The doctor found that he had injury marks on his body, which included redness on his forehead, nose and the right side of his neck, abrasion on his lower lip, slight redness and tenderness on his left lower leg, and part of his right upper incisors were chipped and fractured. Tsui stated that the injuries were resulted from the assault by the customs officers but as he had been threatened by them, he did not tell the doctor the truth.

Grounds of appeal against conviction

17. Tsui did not set out his grounds of appeal in detail in his application for leave to appeal. He complained, “the judge placed emphasis on the prosecution’s evidence in the summing-up and neglected the challenge made by defence lawyer of the prosecution’s evidence, thereby making the jury forming a wrong impression that the judge held the same view, and as a result, the jury believed that I was guilty”. He repeated the course of events as alleged by him in his written submission. He insisted that he had been threatened by customs officers with violence, and he was forced to sign his name on the documents to show that he admitted the allegations of the prosecution against him. Tsui stressed that the directions of the trial judge to the jury failed to do him justice and he did not understand why the jury preferred the evidence of the customs officers to his evidence.

18. The convictions in the present case are wholly founded on the views of the jury on the facts. The jury were conscious of the allegations of the applicant against the customs officers and the jury must have also taken into account the defence raised by the applicant. The jury were entitled to reject Tsui’s version of events and, based on the prosecution’s evidence that were accepted by them, to convict him. He alleged that he had been assaulted and injured by the police. But his injuries were wholly inconsistent with his allegation. We have also carefully considered the directions of the trial judge to the jury. We do not agree with Tsui’s assertions. The directions of the trial judge to the jury were reasonable, sufficient, full and fair. The trial judge had not neglected the version put forward by the defence. We do not find the conviction of Tsui on the first charge unsafe in any way. The evidence against him was ample and had been found established. Tsui’s application for leave to appeal against conviction is dismissed.

The trial judge’s reasons for sentence

19. The trial judge pointed out that the Court of Appeal has not laid down sentencing guidelines for trafficking in the dangerous drug involved in the present case, namely N,N-dimethylamphetamine (NNDMA). She also pointed out that according to the case HKSAR v So Shuk Yee CACC460/2004 and the expert report prepared by Professor Tang Wai Kwong for the present case, the potency of NNDMA is different from that of ‘Ice’ for the reasons that (1) NNDMA is less potent than ‘Ice’ in terms of its neurotoxic effects; (2) animal studies have shown that ‘Ice’ is 3 times more potent than NNDMA in its lethal effects; (3) in terms of its stimulant effects on the human central nervous system, NNDMA is 5 to 12 times less potent than ‘Ice’; (4) NNDMA is rarely abused as a single substance but is more often found in mixture with MDMA (“Ecstasy”) or ‘Ice’. The trial judge agreed that the sentencing guidelines for trafficking in ‘Ice’ are not applicable to trafficking in NNDMA.

20. The trial judge said that there was a consensus between trial counsel on both sides that the sentence for trafficking in NNDMA should be somewhere between that for trafficking in the same quantity of ‘Ice’ and that of ‘Ecstasy’.

21. The trial judge pointed out that under the relevant authorities, the starting point for the trafficking of 4,680 grammes of ‘Ice’ should be 24 to 25 years while that for the trafficking of 4,680 grammes of ‘Ecstasy’ should be 12 years.

22. In particular, the judge pointed out that in HKSAR v Tsang Wai-kei CACC 452/2002 where it involved the trafficking of 4.2 kg of ketamine, the Court of Appeal held that the starting point of 12 years could be described as lenient. Given the principle that trafficking in ketamine and that in ‘Ecstasy’ would lead to similar terms of imprisonment, the trial judge took the view that the appropriate starting point to be adopted in the present case which involved the trafficking of 4,680 grammes of NNDMA should be somewhere between 12 and 25 years.

23. In the result, the trial judge adopted a starting point of 18 years’ imprisonment, being the median figure between 12 and 25 years, for the first charge in respect of both applicants.

Grounds of appeal

24. Mr. Kan of Counsel and Mr. Hung of Counsel both complained that the starting point of 18 years adopted by the trial judge was too high.

25. Mr. Kan stressed the point strongly that as the starting point adopted by the judge in HKSAR v Tsang Wai-kei CACC 452/2002 for the trafficking of 4.2 kg of ketamine was 12 years, and while the Court of Appeal also approved the starting point of 18 years for the trafficking of 7.11 kg of ‘Ecstasy’ in HKSAR v Leung Ka-yin CACC 145/2005, the starting point for the present case should be below 18 years.

26. Mr. Hung pointed out that NNDMA is not a kind of dangerous drug that is commonly seen and is far less potent than ‘Ice’. He stressed that as no studies of its potency have been conducted on humans, its effect in human is unknown, and the animal studies have shown that the lethal effect of NNDMA is only one-third of that of ‘Ice’.

27. Mr. Hung said that according to Professor Tang’s report, in mice studies, the effect of depleting the substance dopamine, a neurotransmitter in the central nervous system, of NNDMA is only approximately one-eighth of that of ‘Ice’. And in mice and monkeys studies comparing NNDMA and ‘Ice’ in terms of the stimulant effect, NNDMA is 5 to 12 times less potent than ‘Ice’ while ‘Ecstasy’ is 7 times less potent than ‘Ice’. The median figure of the former is not far from the latter.

28. Mr. Hung’s stance is that not only is NNDMA less potent than ‘Ice’, but it is also less potent than ketamine and even ‘Ecstasy’, so its applicable starting point should also be lower than the starting points applicable to those types of dangerous drugs. Mr Hung also emphasized that NNDMA is far less commonly abused than other types of drugs.

29. Mr. Hung submitted that the starting point of 18 years adopted by the trial judge is manifestly excessive.

The respondent’s stance

30. Mr. Robert Lee, SC, for the respondent, agreed that NNDMA is less potent than ‘Ice’. He pointed out that in animal studies comparing NNDMA and ‘Ice’, the former is 3 times less potent than the latter and the stimulant effect of the former on the central nervous system is 5 to 12 times less potent than the latter.

31. Mr. Lee SC pointed out that the above finding is similar to the findings of the ad hoc report cited in HKSAR v So Shuk-yee CACC 460/2004, namely according to a study by a Johns Hopkins School of Medicine research team, the behavioural effects that NNDMA can exert are only 10% to 20% of those that ‘Ice’ can exert. But Mr. Lee SC stressed that the lethal dosage of NNDMA is 3 times that of ‘Ice’ while that of ‘Ecstasy’ is 16 times, it shows that NNDMA is much more potent than ‘Ecstasy’.

32. Mr. Lee SC submitted that it is more reliable and rational to use the sentencing guidelines for trafficking in ‘Ice’ as the sentencing basis for trafficking in NNDMA.

33. At the same time, Mr Lee SC submitted that the court should take the following factors into account when it considers the offence of illegal trafficking of the dangerous drug NNDMA:

(1) There has been a trend of NNDMA being widely used recently. According to the ad hoc report:

(i)   This type of dangerous drug appeared in Asian countries in the past 10 years, and for example, there has been a rising trend of abuse of it in Taiwan;

(ii)  This type of drug has been found as an adulterant in ‘Ecstasy’ in Hong Kong in the past;

(iii) According to the relevant statistics for the years 2001 to 2003, there has been a steady increase in cases and amount of seizures of this type of drug in Hong Kong.

(2) According to the figures of the Narcotics Bureau, there are 11 cases of trafficking in NNDMA in the first 10 months of 2007 and the amount of seizures are 4,690 grammes which are nearly 10 times the amount of seizures in 2006.

(3) The known use of NNDMA can make ‘Ice’ even more extensively abused.

(4) The amount of drug involved in the present case is enormous.

34. Mr. Lee SC submitted that given the amount of NNDMA in the present case and taking into consideration the factors listed above, the starting point of 18 years adopted by the trial judge on the first charge cannot be described as excessive.

Discussion

35. Although the potency of NNDMA and ‘Ice’ (methamphetamine) are different, they are of the same category of drug and both are produced by synthesizing various chemicals in laboratories. We agree with the stance of Mr. Lee SC that the more reliable and rational approach would be to deal with the sentencing for trafficking in NNDMA on the basis of the sentencing for trafficking in ‘Ice’ and to make appropriate adjustment on account of their difference in potency.

36. Mr. Hung emphasized that in considering the potency of NNDMA, one should bear in mind that there has been no study of NNDMA’s effects in humans.

37. Although the potency of NNDMA has not been ascertained by means of human studies, we are of the view that the findings of the animal studies conducted in mice and monkeys are sufficient to reflect the potency of the drug and are also applicable to humans. This approach is approved by the Court of Appeal in HKSAR v Hii Siew-cheng, Wong Yat-san [2009] 1 HKLRD 1. (See paragraph 64 of the Judgment)

38. The undisputed literature and expert’s reports show that the potency of NNDMA is approximately one-third of that of ‘Ice’ and its stimulant effect on the central nervous system is approximately 5 to 12 times less effective than that of ‘Ice’. The depleting effect of NNDMA to the substance dopamine, a neurotransmitter, is about one-eighth of that of ‘Ice’.

39. Although the potency of NNDMA is only about one-third of that of ‘Ice’, it does not mean that the starting point of sentencing for trafficking in NNDMA should also only be one-third of that for trafficking in ‘Ice’.

40. Apart from the potency of the drugs in question, the court must also give regard to the public abhorrence of the offence of trafficking in dangerous drugs and to the resolve of the community to prevent young people from abusing drugs as well as to combat the crime of drug trafficking. The court should also take the use of the drug and the prevalence of its abuse into consideration.

41. The court certainly cannot lose sight of the fact that the maximum sentence for illegal trafficking in NNDMA is life imprisonment.

42. The available data show that NNDMA has no known medical use, and is rarely abused as a single substance but is often found in mixture with other drugs, including ‘Ecstasy’ and ‘Ice’, for the use of drug addicts. To stop the wide abuse of NNDMA can also stop the wide abuse of dangerous drugs like ‘Ecstasy’ and ‘Ice’.

43. Even if there is no sign of serious abuse of NNDMA, the court still has the duty to nip the trafficking of such drugs in the bud. Where there are data showing serious abuse of NNDMA, the court should all the more deal with the situation by heavy sentences in the hope of deterring such type of crime from continuing to develop.

44. Of course, it is necessary to strike an appropriate balance between the consideration of the above factors and the potency of NNDMA. Having considered all the factors, we are of the view that the starting point of sentence for the trafficking of NNDMA should be 60% of that for trafficking in the same quantity of ‘Ice’. 

45. On the basis of the above approach, the appropriate starting point of sentence for illegal trafficking of about 4,680 grammes of ‘Ice’ should be 25 years and that for illegal trafficking of about 4,680 grammes of NNDMA should then be 15 years.

46. The potency of NNDMA and that of ‘Ecstasy’ are alike. As said above, the median figure of the comparison between NNDMA and ‘Ice’ in terms of the stimulant effect is not far from the figure in respect of the comparison between ‘Ice’ and ‘Ecstasy’. And the lethal effect of NNDMA is even 5 times more than that of ‘Ecstasy’.

47. According to HKSAR v Lee Tak-kwan [1998] HKLRD 46, the appropriate starting point of sentence for illegal trafficking of over 800 grammes of ‘Ecstasy’ is already 8 years upwards. If the quantity of ‘Ecstasy’ is 4,600 grammes, the appropriate starting point should not be below 15 years. In fact, the Court of Appeal held in HKSAR v Chui Chi-wai [2000] 1 HKLRD 704 that the starting point for trafficking in the region of 4,400 grammes of ‘Ecstasy’ should be 15 years. We cannot lose sight of the fact that the tariffs for sentence for illegal trafficking of ‘Ecstasy’ have been greatly increased by the Court of Appeal in June 2008. In Hii Siew-cheng, Wong Yat-san mentioned above, the Court of Appeal set the starting point for trafficking exceeding 1,000 grammes of ‘Ecstasy’ at 14 years upwards. If applying the starting point in Hii Siew-cheng, Wong Yat-san to the present case where the quantity is over 4,600 grammes, the appropriate starting point would certainly be exceeding 20 years.

48. As the offences in the present case were committed in March 2007 prior to the date of judgment of Hii Siew-cheng, Wong Yat-san, it might result in injustice to the two applicants in the instant case if the starting point of sentence in that case were to apply to them. We are of the view that, in taking the approach which is more favourable to the two applicants, the starting point for trafficking illegally in 4,680 grammes of NNDMA should be 15 years’ imprisonment instead of 18 years. As a result, the starting point of 18 years taken by the trial judge is manifestly excessive.

49. But we must emphasize that should the situation of the abuse of NNDMA become more serious, the court may be required to increase the relevant starting point so as to reflect the resolve of the courts to combat the crime of drug trafficking.

50. We grant leave to the two applicants to appeal against sentence and, treating the applications as the appeal proper, we allow their appeals. On the first charge, the sentence of both applicants of 18 years is reduced to 15 years. The 6 months’ imprisonment imposed on Ngan for the second charge is also ordered to run concurrently with the 15 years imposed for the first charge.

Conclusion

51. We dismiss Tsui’s application for leave to appeal against conviction out of time but we grant leave to Ngan and Tsui to appeal against sentence and treat their applications as the appeal proper. We allow their appeals and substitute their sentences as set out above.