R. v. SEAN DULLAGE and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 319 OF 1996

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J U D G M E N T

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1. The two Appellants Dullage and Way were jointly charged with trafficking in a dangerous drug. The dangerous drug involved was 0.10 grammes of methylenedioxy methamphetamine hydrochloride. ("A" charge on the charge sheet.) Dullage was in addition charged with possession of dangerous drugs. The drug involved was 1.04 grammes of methylenedioxy methamphetamine hydrochloride and 0.41 grammes of cannabis resin. ("B" charge on the charge sheet.) Way was also charged with possession of dangerous drugs. The drug involved was 4.87 grammes of cannabis ("C" charge on the charge sheet.)

2. They pleaded guilty to all charges and Dullage was sentenced to 16 months imprisonment on the "A" charge and one month imprisonment on the "B" charge, consecutive. Way was sentenced to 15 months imprisonment on the "A" charge and fined $1,000 on the "C" charge.

3. They now appealed against sentence.

4. The common main ground of appeal of the two Appellants was that the magistrate was wrong to find that methylenedioxy methamphetamine (MDMA in short form) for the purpose of sentencing was in the same category as Heroin and Cocaine and that he failed to reduce the sentence on the grounds that this was the first case of its kind and there were no sentencing guidelines in existence. The other grounds of appeal were that the magistrate did not sufficiently consider the particular mitigating circumstances of each of the Appellants.

5. The facts admitted were that an undercover police officer approached Way and asked if any "stuff" was available. Way then approached Dullage who gave Way a tablet. Way subsequently sold this tablet to the police officer for $300. This tablet was subsequently found to be MDMA the subject matter of the "A" charge. A search of the Appellants' homes was conducted. In Dullage's place 8 tablets and 2 tablets fragments of MDMA and cannabis, the subject matter of "B" charge were found. In Way's place, 4.87 grammes of cannabis were found.

6. The magistrate in his reasons for sentence noted that this was the first case of trafficking in MDMA otherwise known as Ecstasy, before the courts here in Hong Kong. The prosecution urged before him that for the purpose of assessing the sentence, the guidelines for Heroin (R. v. Lau Tak Ming (1990)2 HKLR 370) or for Ice (AG v. Ching Kwok Hung (1991)2 HKLR 125) should apply. The defence on the other hand submitted that the guidelines for "Mandrax" (Methaqualone) or Cannabis (AG v. Chan Chi Man (1987) HKLR 221) should apply. The magistrate asked for experts' evidence on the properties of MDMA. After hearing the evidence of Chief Inspector Hawkins, Head of the Research Section of the Narcotics Bureau of the RHKP and Dr Lo Chang Fan a chemist from the forensic science branch of the Government Laboratory, the magistrate concluded as follows :

"After some considerable deliberation, I concluded that whilst Methaqualone and MDMA shared some characteristics, it did not fall into the same category and in terms of danger to the community and the individual was more akin to Ice. My reasons were as follows :

(a) It was not just a drug for 'bar girls, hostesses and youths looking for a relatively quick and inexpensive high' (Chan Chi Man). It was aimed at a whole generation of otherwise healthy, law abiding and innocent youngsters seeking a night of fun and music;

(b) The risk of fatalities was high, figures from Scotland if extrapolated could result in at least ten fatalities a year in Hong Kong;

(c) The fatalities did not result through mixing with alcohol or overdoses. Fatalities resulted apparently randomly through the ingestion of one pill and nothing more exotic or unusual than dancing;

(d) The consumption of even 4 standard pills without any other action could be fatal;

(e) The ease and cheapness of manufacture, and the high selling price (up to 350 HKD for one single tablet) provide enormous incentives for criminal elements to produce and distribute the drug ... ;

(f) The potential for 'cutting' the tablets, by home manufacture, with other narcotic or chemical substances to increase its attraction, and thereby enhancing the personal risk and general danger of addiction was high and almost impossible to control ..."

7. The magistrate's opinion was that in view of the high price, the guidelines in Chan Chi Man were not intended by the Court of Appeal to apply to MDMA. He noted the observations in Chan Chi Man that the increasing or decreasing use of the dangerous drugs and public interest require stronger measures to be taken to suppress the growth of abuse of dangerous drugs are factors to consider. He referred to the remark of Cons JA in AG v. Leung Pang Chiu [1986] HKLR 611 that "it is better to eradicate a bad habit before rather than after it has taken a firm hold." He concluded that he found MDMA a hard drug in the category of Heroin or Cocaine but because of its lack of addictiveness, not in the category of Ice (Methamphetamine hydrochloride).

8. Mr Grounds for Dullage submitted that the magistrate's findings were not supported by the evidence of the experts. He submitted that the magistrate could not rely on the Chief Inspector's evidence to found his conclusion of the number of fatalities from such drug and there was no evidence to support his conclusion that fatalities from the drug did not result from mixing of alcohol or overdose. In any case, it was submitted that Dr Lo was not qualified to state any opinion on the physiological effects of the drug. Dr Lo was unable to disagree that in a comparison between Ice and Ecstasy their subjective effects and abuse patterns are totally dissimilar. It was also submitted that MDMA was close to Methaqualone and Chan Chi Man should be followed.

9. Mr King for Way submitted that addictiveness, if not the primary consideration, should be no less relevant than other considerations such as the ease of making it and availability. The magistrate made a fundamental error in equating Ecstasy with Heroin, Cocaine and Ice because there was no evidence that Ecstasy was addictive.

10. The Crown relied on Warren v. Beeley (Times Law Report July 1995) where the Court of Appeal in England held that MDMA, one form of Ecstasy, should be dealt with on the same basis as Heroin. However, Mr King submitted that although Ecstasy was included with Heroin, Cocaine and Ice in Class "A" controlled drugs in the U.K. legislation, it should be noted that "Opium" was also included in Class "A". But in Hong Kong, Opium was considered a less serious dangerous drug than Heroin and was put on a less serious scale of sentence. Thus, one could not apply the standard in UK to Hong Kong when considering the level of sentence for MDMA.

11. Dr Lo although not a medical doctor, was a chemist in forensic science. He was qualified to give opinion on the development of the drug, its properties and its effects. In any case, there was no expert opinion to the contrary before the magistrate. He gave the following evidence on the properties of MDMA. The drug was developed in 1912 initially it was used in medicine but later banned. It is hallucinogenic type drug with a chemical structure similar to methamphetamine and have many of the central nervous system stimulating properties of methamphetamine; it is not addictive but tolerance may result with extended abuse. It produces a relax and comfort effect but its hallucinogenic potential is low. It upsets the user's temperature control and causes overheating and may result in stroke if the user involves in physical exertion.

12. Dosage is commonly found in 100 milligrammes or 150 milligrammes and to produce the more serious effects, it takes 12-20 tablets. Serious effects are rigid muscle tremors, convulsions and even death. A small dose produces increased motor activity, increased sensory perception, euphoria or terror, hallucination, nausea, thirst, vomitting, increased blood pressure, dilation of pupils and problems with balance coordination.

13. A MDMA lethal dose lies roughly between the lethal dose of Ice which is 1 gramme and of MDA which is 0.5 grammes. This comparison is made possible because they are of similar chemical structure. Results could be fatal by simple ingestion of the lethal dose. The seized tablets of MDMA were 130 milligrammes per tablet and 4 of them would be sufficient to produce a lethal dose, according to Dr Lo. What exactly would be a lethal dose was not clear but it would appear that a very small quantity of it would suffice.

14. It can be made privately by a person with chemical knowledge from cheap starting materials and not necessarily by a pharmaceutical company.

15. Chief Inspector Hawkins told the magistrate that there was no evidence of syndicated supply of such drugs, seizures were in small quantity, in isolated incidents and found in dance halls. However, in 1995, there was a 400% increase in seizures. Seizures were often associated with dance scenes in U.K., Holland and U.S.A. and it was used as a partying drug. Manufacturing centres were in U.K., Holland and U.S.A. but were beginning to emerge in South East Asia. There was no evidence of death from such drug in Hong Kong from an official source but there has been newspaper report of at least one death from such drug.

16. It should be noted that the increase of 400% in seizure is based on seizures of 6 tablets in 1994 and 24 tablets in 1995. Thus the quantity seized is not substantial but in terms of percentage, it is an enormous increase. Be that as it may, it is a sign that use of this drug in Hong Kong is on the increase. The conclusion from Dr Lo's evidence is that MDMA, though similar in chemical structure to "Ice", is primarily different because of its non addictive nature; its other properties and effects are nevertheless close to Ice and as dangerous.

17. The dangerousness of this drug lies in the serious physiological effects it produces and its lethal effects from small quantity taken followed by physical exertion. Prevalence to take it during dancing parties where there is bound to be physical exertion makes it more dangerous to the younger generation. The ease of manufacture and the high price it could fetch from users and the probable profits from sales provide lucrative incentives for syndicated manufacture and operation. Although seizures in Hong Kong so far have been isolated and the quantity has been small, the percentage increase in seizure is a positive sign of increase in abuse of such drug which requires measures to be taken to eradicate it before it becomes prevalent. The fact that MDMA had originally been intended for and then used in medicine is not relevant. It is its danger to the community and individual that is the paramount consideration. MDMA must be more dangerous and expensive than Methaqualone. The Court of Appeal when setting down the guidelines in Chan Chi Man could not have contemplated that those guidelines should apply to a drug as dangerous and as high in its selling price as MDMA even though it shares some of the properties of Methaqualone.

18. In Ching Kwok Hung, Ice was considered more deleterious to its abusers and to society in general than Heroin. It is one of the most powerful stimulants known. It is highly addictive and ranks in the top three of hard drugs. MDMA is a derivative of methamphetamine but its lack of addictiveness ranks it differently from Ice.

19. In Warren and Beeley (Times Law Report July 1995), the Court of Appeal in England examined the properties of "Ecstasy" and said :

"From the evidence it emerged that Ecstasy was the named given to three different drugs, all being a complex including amphetamine and they broadly had similar effects of hallucinogenic stimulants. There was evidence that they could in some instances, cause fatalities and evidence stated in R. v. Slater (unreported February 2 1995, CA) showed that the drug was capable of causing convulsion, collapse, hyperpyrexia, discriminated intravascular coagulation and other very unpleasant consequences and was also capable of causing acute renal failure. Those physical effects might not be the only adverse effect of the drugs, which might well affect the behaviour of the consumer in relation to others. Ecstasy drugs had no clinical value and, therefore, all manufacture had to be illicit and offended against the legislation."

20. The Court of Appeal in England decided that the criterion for assessing the level of sentence for Ecstasy offences should be the same as for Heroin i.e. based on weight rather than on value. In applying that criterion the court considered that the tariff for offences for Ecstasy would be maintained in substantially the same level as in relation to other Class "A" drugs.

21. The legislature in England had seen fit to include Ecstasy in Class "A" dangerous drugs ranking it with Heroin, Cocaine and Ice. The attitude taken in England in relation to Ecstasy reflects the dangerousness of the drug and the need to eradicate it by imposing a penalty close to that on other hard drugs. The fact that Opium is treated in Hong Kong more leniently does not mean that Ecstasy is less dangerous in Hong Kong than in England. It may be that in England the size of seizures was far greater than the seizures of the drug in Hong Kong so far and the present case is first prosecution of its kind, the fact remains that this drug had now started to make its way in Hong Kong. It is a case, as Cons JA in Leung Pang Chiu had put it, where "appropriate sentences are necessary to nip the process at the bud". I see no reason why the attitude of the Court of Appeal in England should not be followed in Hong Kong regarding Ecstasy offences except that because it is non addictive, it should rank close to the hard end of the drug scale but nevertheless not strictly on par with Heroin.

22. The magistrate's conclusion that it should not fall into the same category of Methaqualone or Ice is supported by the evidence before him. However, the evidence does not support his conclusion that it was a hard drug in the same category of Heroin or Cocaine which are addictive. The lack of addictiveness takes MDMA away from Heroin or Cocaine and even further away from Ice.

23. The magistrate on the basis that MDMA was on par with Heroin applied the guidelines in Lau Tak Ming and adopted a starting point of 2 years for the "A" charge. As I have said, the evidence does not support that finding. The starting point of 2 years is, therefore, too high. In the circumstances of the present case, the starting point should be below that for trafficking in a similar quantity of Heroin or Cocaine. Having regard to its danger to the individual and the community, the starting point in both Appellants' case should be one of 18 months imprisonment.

24. In the case of Dullage, the magistrate gave him a 1/3 discount on the "A" charge after considering his plea of guilty and other mitigating factors. Dullage had a previous conviction for possession of dangerous drugs. The magistrate had considered fully his background and that he had not obtained financial benefit out of the transaction. The 1/3 discount was in recognition of his plea. The others he considered did not merit further discount in an offence of this nature. In an offence of actual trafficking in a dangerous drug, the fact that he derived little or no profit in the transaction counts little towards mitigation. The magistrate could not be said to be wrong when he only gave a discount of one third and no more from the starting point. In the circumstances, adopting as I said earlier, the starting point of 18 months imprisonment, and allowing him the same 1/3 discount, the appropriate sentence on "A" charge should be 12 months imprisonment. The "B" charge is also a drug offence but of a minor nature and could be said to be connected with the "A" charge. The magistrate had imposed one months imprisonment consecutive after making a substantial discount from the starting point on the ground of totality. But he did not indicate what was the starting point. He considered the total of the two sentences would sufficiently reflect the criminality of the two charges. In my opinion, the criminality of the two charges could be sufficiently reflected by a total sentence of 12 months imprisonment. The sentences should be therefore concurrent. The appeal against sentence by Dullage is allowed and the sentence on the "A" charge is substituted by a sentence of 12 months imprisonment. The sentence of 1 month imprisonment on the "B" charge is ordered to run concurrently with the sentence of 12 months.

25. In the case of Way, the magistrate gave a discount of 1/3 and a further discount for his clear record. As I said before, the starting point should be 18 months and the discount given the magistrate should equally apply. The appeal is allowed and the sentence of 15 months imprisonment set aside and a sentence of 11 months imprisonment substituted.