HKSAR v. JIN BIN AND ANOTHER

HCCC 223/2018

[2019] HKCFI 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 223 OF 2018

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REASONS FOR SENTENCE

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A. CHARGE

1.  JIN Bin (“D1”) and LAM Ka-ho (“D2”) were jointly charged with one count of Trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  They pleaded guilty before a magistrate and were committed to the Court of First Instance of the High Court for sentence.

B. FACTS

2.  The admitted facts disclosed that on 31 July 2017, police officers on duty at the Hyatt Regency Hotel in Ma On Shan observed D1 arriving at the hotel and entered Room 817.  Shortly afterwards D2 also arrived and was intercepted by the police.  With an access card found on D2 the police gained entry to Room 817.  D1 was then inside the toilet.

3.  A preliminary check of the room found suspected ICE and 11 bottles of suspected gamma-butyrolactone (“GBL”), suspected Part I poison and apparatus for inhaling dangerous drug and packing paraphernalia on the bar table.  The door of the safe in the room was also open.

4.  When D1 was arrested and cautioned for Trafficking in Dangerous Drugs he said the stuff were used when he sold dangerous drug and there were more in the fridge and the safe.

5.  When D2 was arrested and cautioned for Trafficking in Dangerous Drugs he said he only helped D1 to pack the drugs and drove D1 to deliver the drugs to others when he was delivering luxury handbags to people.  

6.  A thorough check was conducted and the following were found:

On the bar table

(a) two plastic boxes containing seven plastic bags containing a total of 18.69 grammes of a crystalline solid containing 16.9 grammes of methamphetamine hydrochloride (“ICE”);

(b) two inhaling devices each containing liquid containing traces of methamphetamine;

(c) four bottles, only one of them contained 98 millilitres of a liquid containing 92.5 grammes of gamma-butyrolactone (“GBL”)[1] whereas the other three did not contain any illegal substance;

(d) 11 bottles containing a total of 71 millilitres of a liquid containing amyl nitrite which is a Part I poison;

(e) a syringe, a lighter, a large quantity of empty re-sealable plastic bags and a room access card written with the name of D2.

Inside the refrigerator

(f) three glass bottles containing a total of 815 millilitres of a liquid containing a total of 787 grammes of GBL;

Inside the safe

(g) a plastic box containing nine plastic bags containing 30 tablets, two tablet fragments and one capsule containing sildenafil, which is a listed Part I poison;

(h) an electronic scale; an inhaling device and a metal case containing apparatus for consuming drugs;

On the writing desk

(i) a plastic bottle containing 319 capsules containing sildenafil, which is a Part I poison;

(j) a heat sealing machine, three notebook computers, a yellow notebook a page of which is written with some numeric characters, a piece of memo paper written with some numeric characters, a metal case containing a brush, three pair of pliers and 12 metal spoons.

7.  A total of 18.69 grammes of a crystalline solid containing 16.9 grammes of ICE, 913 millilitres of a liquid containing a total of 879.5 grammes of GBL, 71 millilitres of a liquid containing amyl nitrite (a Part I poison) and 30 tablets, 320 capsules and two tablet fragments containing sildenafil (a Part I poison) were found in this case.

8.  Upon further caution D1 admitted that some of the stuff was for use in selling dangerous drugs.

9.  D2 said the dangerous drugs had been bought by D1 but he had consumed some.

10.  In respect of the Part I poisons and the pair of pliers etc found on the writing desk D1 claimed the capsules were for nourishing and treating the liver and he had bought the packaging paraphernalia “for fun”.  D2 claimed the items belonged to D1 and he knew nothing.

11.  Cash $3,010 and a mobile phone were found on D1.  D2 had cash HK$7,690 and two mobile phones.

12.  Nothing illegal was found in the private car which the Ds had used.  Nothing illegal was found in the Ds’ residences.

13.  The security manager of the Hotel confirmed that on 30 July 2017 D2, accompanied by D1, came to the front desk to book a room for three days from 30 July 2017 to 1 August 2017.

14.  WhatsApp messages exchanged with other people in July 2017 about suspected “ICE” transactions were found in D1 and D2’s mobile phones.

Video-recorded interviews

15.  D1 said the following among other things in the Video‑recorded interviews:

(a) the items in the room are dangerous drug “ICE” and “催情水” (ie the GBL);

(b) regarding the “ICE” found, he explained he bought 14 grammes of “ICE” at $8,000 from a male Ah Wah (whom he did not have the means to contact) on a day in mid-July 2017 at Kowloon City park;

(c) after the purchase he brought the “ICE” home and consumed a little bit with an “ICE” pot;

(d) he had also given some “ICE” to D2 to consume and sold to other people for money;

(e) he and D2 are in a relationship;

(f) the hotel room was reserved in his name but D2 paid the fees;

(g) the private car TW 4955 was owned by D2;

About the exhibits seized from the room

(h) the two “ICE” pots belonged to him but D2 had used one of them to consume “ICE”;

(i) the bags of “ICE” found were those he bought from Ah Wah previously;

(j) D1 also explained how he bought the Part I poisons;

(k) he had bought a bottle of “GBL” from Ah Choi at $5,000; the GBL liquid was shared with D2 when they had sex;

(l) the empty plastic bags were for containing “ICE” to be sold to other people;

(m) the electronic scale was to weigh the “ICE” to be sold to other people;

(n) the numeric characters on the yellow notebook and the pinks papers were written by him but he claimed that he forgot their meanings;

(o) the cash found on him were borrowed from D2;

About the WhatsApp messages

(p) D1 explained each message and confirmed they are about selling of “ICE” and (some messages) GBL liquid;

(q) he used to take taxies when he delivered “ICE” to customers;

(r) he would not use D2’s private car to deliver drugs, and

(s) D2 did not know that he would sell the “ICE” to other people.

16.  D2 said the following among other things in the interview:

(a) he claimed he did not know D1 was delivering drugs when he drove D1;

(b) he claimed he just “guessed” D1 had delivered drugs to other people when he was cautioned at the scene; that is why he gave the answer to the arresting officer;

(c) he claimed that he had no idea about the provenance of the “ICE” that D1 gave him to consume;

(d) he and D1 are in a relationship;

(e) he borrowed the car from his friend in March 2017;

(f) he confirmed he reserved the hotel room on 30 July 2017;

(g) he confirmed he had consumed “ICE” given by D1 but he did not know how D1 obtained the drugs;

(h) he sells luxury handbags on the internet for a living;

(i) he had used an “ICE” pot seized to consume the drug;

(j) he and D1 would smell the GBL liquid before sex to enhance the excitement;

(k) the liquid belonged to D1 and he had used it on 30 July 2017 when they had sex;

(l) he had no idea how D1 obtained the GBL liquid;

(m) he claimed that he had no idea about the presence of the large quantity of empty plastic bags;

(n) the syringe belonged to D1;

(o) each of them had a room access card;

(p) he claimed that he had no impression to other items but they all belonged to D1;

(q) he gave the yellow notebook to D1; D1 wrote the numeric character on it; the numeric character represents record of money he lent to D1;

(r) in respect of the messages of suspected drug transactions in his phone, D2 said he had no ideas about them.

17.  The estimated street value of the “ICE” found in this case as of July 2017 was HK$8,298.

C. BACKGROUND

D1

18.  D1 is now 27 years of age.  He was born in the Mainland and came to live in Hong Kong in 2002.  He studied up to Form 5.  At the time of his arrest he was unemployed and he had a clear record.  In January 2018, he was convicted of possession of equipment fit for consuming dangerous drug and Possession of Part I poison.  He was sentenced to a total of 3 months’ imprisonment.

19.  Mr Dick Lee, counsel for D1 submitted in mitigation that when D1 was studying Form 2, his mother was unable to work due to illness.  D1’s step-father died in 2013.  D1 thus gave up his studies and started to work.  He was the only breadwinner in the family and the family expenses amounted to over $20,000 per month at the time of his arrest.  D1 resided with his mother, his younger sister who was a student, and D2 who was his lover.

20.  I was provided with a number of mitigating letters, written by D1 himself and by others on his behalf.  There is no need to refer individually to these letters.  Suffice it to say they all paint a picture of D1 being under pressure to support his family and stupidly trafficked in dangerous drugs to make quick money, thus committing the present offence.  They all asked for leniency on behalf of D1.

21.  Mr Lee submitted that apart from having pleaded guilty at the earliest available opportunity, D1 also asked for a further discount on the basis that part of the dangerous drugs was for D1’s own use.

22.  Mr Lee referred to the factors mentioned in HKSAR v Wong Suet Hau[2]and submitted the following in support of D1’s claim that 6 grammes of the ICE (about ⅓) and 319 ml of GBL was for his own use: D1’s urine test report, transcript of the Video-recorded Interview, photographs of the scene taken by the police, chemist certificate, and witness statements of the two policemen.

23.  Mr Lee submitted that D1 and D2 were lovers and were living together with D1’s mother and younger sister.  At the material time, D2, who earned a stable income selling luxury items on the internet, paid for the hotel for the two of them to stay for 2 nights to celebrate their half-year anniversary.  D1 and D2 consumed GBL to enhance the sexual pleasure when they had sexual intercourse.  According to D1, 294 ml of GBL were intended to be used by D2.

24.  Mr Lee also informed me that D1 started to take ICE in January 2017 to escape from work and the economic pressure.  He was not earning enough to make ends meet so he stupidly engaged to drug trafficking to feed his drug need and to provide for his family.  As he planned to stay at the hotel with D2 for a few days, he moved all the dangerous drugs to the hotel so that he could consume the ICE and GBL with D2 and deliver the dangerous drugs when he received orders from his customers.

D2

25.  D2 is now 31 years of age.  He was educated to university level and at the time of the arrest he was self-employed in the business of online sales.  He has a clear record and a drug abuser.  He was living with D1 at the time of his arrest.

26.  I was provided with mitigation letters written on D2’s behalf.  Again there is no need to refer to them in detail.  Suffice it to say that D2 was described as a person of good nature who had done well in school.  He is a filial son and was raised in a single-parent family.  D2 had expressed his deep remorse to his friends and his friends all asked for leniency on his behalf.

27.  One of the letters was from a counsellor at the Tung Wah Group who certified that D2 attended 12 counselling sessions at the Integrated Centre on Addiction Prevention and Treatment (of dangerous drugs).  D2 reported having motivation to change.

28.  Mr Charles Chan, counsel for D2, submitted that D2 pleaded guilty at the early state and asked this Court to exercise discretion to grant further discount (over and above the ⅓ discount for plea) on the basis of matters pertaining to D2’a personal background, including his previous good character.

29.  Mr Chan submitted D2 played a minor role in the offence.  D2 admitted helping D1 package and deliver dangerous drug on a limited number of occasions.  D2 was not the mastermind and he did not own the dangerous drugs.  As D2 was in a relationship with D1, it would be natural for D2 to agree, albeit wrongly, to do as requested by D1.

30.  D2 also prayed in aid D1’s submission on self-consumption.  Depending on how this Court decide on the issue of self-consumption, it would only be fair if D2 is treated in the same fashion if the court accepts D1’s submission on self-consumption, as less dangerous drugs would then go into the market.

31.  Mr Chan also submitted that D2 is also a drug-abuser (urine report showing positive of amphetamine) so the claim of self-consumption was not a bare assertion.

D. EXPERT REPORT ON GBL

32.  For the purpose of this case, parties were provided with the information this Court received in the case of HCCC 76/2018.  Parties are content to incorporate Dr Chan’s reports and the statistics provided in that case here without the need to call Dr Chan or other witnesses.

33.  I will repeat the relevant information here.

34.  Dr Chan’s expert opinion was sought to comment on the drug GBL, with emphasis on its effect on humans, its addictiveness, its withdrawal symptoms and the comparison of it with other dangerous drugs such as ICE, cocaine, heroin, ketamine, ecstasy and cannabis.

35.  According to Dr Chan, GBL is colourless soluble liquid in room temperature.  It has a distinctive taste and odour, which could easily be masked by drinks like fruit juice or cola.

36.  It is used as a solvent and reagent in industrial chemistry and in cleaning products.

37.  GBL is a prodrug of gamma hydroxybutyric acid (GHB), an abusive drug commonly known as “date-rape drug”.  After oral ingestion, GBL is rapidly absorbed and completely converted to GHB.  Drug effect occurs within 15 minutes after ingestion and usually lasts for several hours.

38.  There being no published human GBL dose-effect data, Dr Chan used the available human GHB dose-effect data, which were from volunteer studies and case reports outside Hong Kong with the ethnicity of the studied subjects being either non-Chinese or unknown, to predict the dose effect of GBL.

39.  The effects, following the use of GBL dose from 0.7 gramme to over 2.4 grammes, go from confusion, euphoria, memory loss and drowsiness to coma.  Life threatening harmful effects including deep coma, respiratory depression, apnoea and cerebral hypoxia may occur.  Other reported clinical effects after GBL use include bradycardia, hypotension, hypothermia, small pupils size, salivation, vomiting and sometimes myoclonus.  Salivation and vomiting can complicate the respiratory depression leading to aspiration pneumonia in comatose patients.

40.  The confusion and euphoria associated with GBL use increased the chance of risky behaviour and accidental injuries.  Victims of GBL intoxication tend to suffer from anterograde amnesia, making it difficult to recall events that precipitated the recreational use or the alleged drug-facilitated sexual assault.

41.  Used as an abusive substance, GBL is a central nervous system depressant with clinical effects similar to that of acute alcohol intoxication and acute benzodiazepines intoxication.  Their degrees of addictiveness are considered to be similar.

42.  The dose used for recreational purpose is around 1 ml pure liquid containing 1.13 g GBL.  The dose can be added to beverages for consumption.  Recreational dose will create euphoria.  However, 2 ml of GBL can cause comatose, 3 ml would be fatal.  Whilst the effect and addictiveness of benzodiazepines (which is basically sleeping pills, with a therapeutic dosage of between 5-10 mg) are similar to GBL, the safety margin of benzodiazepines is much higher.  For benzodiazepines to cause death, one has to take 50-100 mg, meaning that accidental overdose is not likely.

43.  GBL is a dangerous drug in Hong Kong and its effects are identical to those of GHB.  Its addictiveness and abuse potential are also considered to be identical to that of GHB.  Chronic users of GBL develop physical dependence and tolerance.  Abrupt cessation produces a withdrawal syndrome often indistinguishable from alcohol withdrawal.

44.  Dr Chan is of the view that when compared with ketamine, heroin, ICE, cocaine and cannabis, GBL causes relatively less body harm in both acute and long-term use.  Dr Chan referred to a table (“Table 1”)[3] which made a comparison between GHB / GBL with other commonly known dangerous drugs in the United Kingdom (“UK”) as to their physical harmful effect.

45.  Relying on another table (“Table 2”)[4] prepared by experts in the UK Dr Chan made a comparison between GHB / GBL with other commonly known dangerous drugs as to physical harm, dependence and social harm.  Dr Chan is of the view that GHB / GBL are less harmful than all the dangerous drugs listed in Table 2.

46.  I would add here that during his oral testimony, Dr Chan also gave the figures for benzodiazepines (which were not in Table 2). The scores he gave were 1.63 for physical harm, 1.83 for dependency and 1.65 for social harm.

47.  Dr Chan said it is difficult to assess the prevalence of GBL use as most data are confounded by the inclusion of both GHB and GBL usage.  According to the World Health Organization 2014, the prevalence of GHB / GBL use is generally low in EU countries and in the US.

48.  There was no published data related to the prevalence of GBL use in Hong Kong, Dr Chan recommended the dose of 1.13 grammes of GBL as the average daily dose in a normal GBL user.  For chronic GBL users, tolerance will be developed and a much higher daily dose has been reported, citing a reported daily “round the clock” use of 13.6 g to 45.2 g in 19 patients.

49.  According to Dr Chan’s research, there is a higher usage of GHB / GBL as recreational drugs among homosexual men and among samples taken in “gay” bars in Amsterdam.

E. INFORMATION RE ARRESTS

50.  I was provided with a statement from WDSIP Chung Man‑ling, dated 12 December 2018.  She was asked to provide statistics in relation to GBL and GHB from January 2014 to November 2018, which she provided in the form of a table[5].

51.  I have also been provided with information from Yeung Ming‑ko, a Customs Inspector.  He has been asked to provide statistics in relation to both GBL and GHB seized by Customs and Excise Department from 2002 to 2018.  Again, Mr Yeung has provided me with a table[6], setting out the relevant information.

52.  It can be seen from the table provided by Mr Yeung that there were many cases involving a large quantity of GBL / GHB since 2015 with relatively few persons being arrested in connection with those cases.  I sought more information from the officer, who provided me with an updated table[7].

53.  I was informed that all the cases with person arrested were import cases”.

F. SUBMISSION ON GBL BY THE DEFENCE

54.  Mr Charles Chan (counsel for D2), with whom Mr Dick Lee (counsel for D1) agrees, pointed out the following points which are relevant to the issue:

(a) According to Dr Chan, GBL is similar to GHB, there is no point to distinguish the two in terms of clinical effects. The addictiveness and abuse potential of GBL are considered “to be identical to that of GHB and comparable to that of ethanol and benzodiazepines”;

(b) GBL has a distinctive taste and odour. Though Dr Chan said in evidence that if one mixed the GBL with some drinks such as coca cola or lemon tea, the taste will be much diluted and may not be detectable. Mr Chan submitted that it is still a fact that GBL has its distinctive and noticeable taste and odour, which would tend to deter offenders in using GBL in a criminal setting of drug-facilitated sexual abuse and that explains the high use of GHB / GBL among consenting homosexual men. This is a factor on prevalence and popularity of abuse in a criminal setting;

(c) Mr Chan submitted there is insufficient data to say that GBL is prevalent. There has been no published on the prevalence of GBL in Hong Kong. According to Dr Chan, even in Western countries, GHB / GBL is an uncommon drug, if not the least prevalent one. In any event, the surge in 2018 according to the statistics provided by the prosecution cannot be applied retrospectively to the defendants who committed the offence in 2017. There is also no clear figure on GBL so it would be undesirable to deduce any conclusion on prevalence based on the available material or data; and

(d) Using Table 2 in Dr Chan’s report, Mr Chan invited this Court to make reference to the sentencing tariffs for cannabis when the two drugs are of the closest potency and highest degree of resemblance.

55.  Mr Chan submitted that this Court has the discretion to adopt a slightly less starting point to reflect the weaker potency of GBL when it is compared to cannabis.  Mr Chan then referred this Court to the sentencing tariffs for cannabis resin laid down in AG v Tuen Shui Ming & Another[8] and submitted 879.5 grammes of GBL should attract a starting point of 7 months.

G. SENTENCE

56.  Trafficking dangerous drug is a serious offence.  A person convicted of this offence on Indictment is liable to be sentenced for life and to a fine of $5M.

57.  For the trafficking of more than one kind of drugs, there are two different approaches open to the sentencing judge (see HKSAR v Yip Wai Yin & Anor[9]):

(a) an “individual” approach where each component in a cocktail of drugs is looked at to establish the sentence relevant to each individual drug before an appropriate adjustment to the overall sentence was made; and

(b) a “combined” approach where a sentence for the most serious drug would be calculated before making an upward adjustment to take into account significant quantities of the other less serious drugs in terms of their potency.

58.  In the circumstances of the present case, as ICE and GBL are disparate in quantity and potency, the individual approach is more appropriate (see HKSAR v Ko Ka Hing[10]), though I will bear in mind that no matter which approach I adopt, it is the consideration of the overall starting point that is important.

Appropriate starting point for ICE

59.  The ICE involved in this case amounts to 16.9 grammes. According to the guidelines in Tam Yi Chun[11], the starting point after trial for trafficking 10-70 grammes of ICE is one between 7 - 11 years.  

60.  After considering the circumstances of this case and the amount of ICE involved, I am of the view that a starting point of 7½ years is appropriate.

Starting point for GBL

61.  I fully appreciate Mr Chan made reference to the table (Table 2) used by Dr Chan when submitting that the starting point for GBL should be comparable to cannabis in terms of physical harm, dependence and social harm.  Nevertheless, I must bear in mind that the table is prepared for the use in the UK by experts in the UK.  Whilst I can accept the physical harm and dependence of GBL on individuals, the social harm caused in the UK may not be the same that that caused in Hong Kong.  As Dr Chan said in his report, GBL is known in many names which suggested that it is used to facilitate sexual offences.  While GBL has its distinctive taste and odour, it could be masked by flavoured drinks and consumes by unsuspected victims.  When used for such a purpose, GBL has the potential to cause rather serious social harm.

62.  I must add here that there is no evidence before me that the use of GBL to facilitate sexual abuse is prevalent, or was prevalent at the time of the offence (July 2017).

63.  Even if one were to adopt Table 2, on Dr Chan’s evidence that GBL is comparable to benzodiazepines (which did not appear in Table 2), which physical harm, dependence and social harm are all slightly higher than GBL: 1.63/1.83/1.65 as compared to 0.86/1.19/1.3, I am of the view that it is appropriate for this Court to use the sentence on benzodiazepines as the basis and to adjust it upwards to take into account the potential social harm to be caused.  I reject Mr Chan’s suggestion to use cannabis as the basis.

64.  I am of the view that a starting point pitched at being 50% over the appropriate starting point for benzodiazepines would be appropriate.

65.  In the case of R v Gary Orton [12], Hon Gall J referred to the tariff for Methaqualone set down in AG v Chan Chi-man[13]and came to the conclusion that for the Diazapam (ie a form of benzodiazepines) the appropriate sentence should be about ⅔ of that appropriate for Methaqualone.  879.5 grammes of benzodiazhepines would attract a starting point of 8 months’ imprisonment.  Adjusting upwards of 50% to 8 months, the starting point for 879.5 grammes of GBL would therefore be 12 months’ imprisonment.

Self-consumption

66.  The facts relied on by D1 included the following:

(a) Urine test showing positive in amphetamine supports D1’s claim that he has consumed ICE at the time of arrest;

(b) 3 ICE bottles were found inside the hotel room;

(c) D1 was charged with possession of instrument fit for the consumption of dangerous drug;

(d) There were two different plastic boxes found inside th hotel room, one containing 3 bags and the other 4. D1 put the ICE he intended to consume (6.29 grammes) in one box (shown in photo 4, the box with 3 bags) and placed those he intended to sell in another plastic box (shown in photo 5, the box with 4 bags); and

(e) D1, in the Video-recorded Interview, admitted he used ICE bottle to consume ICE and he also explained his method of consumption.

Prosecution’s response on D1’s claim of self-consumption and on GBL

67.  Mr Gary Leung, Senior Public Prosecutor took issue with the defendants’ claim for self-use.  Mr Leung pointed to the extensive tools for packing dangerous drugs and the WhatsApp messages relating to dangerous drug trafficking on both D1 and D2’s mobile phones which indicated that D1 was ready to sell ICE whenever there were customers interested.

68.  Mr Leung also pointed out that D1 did not say, during the video-recorded interview, that the ICE placed in a plastic box was for his own consumption.  On the contrary, D1 said he would sell ICE from all 7 bags containing ICE found in the hotel room and he could not tell he would sell ICE from which bag.  Mr Leung submitted that the answers suggested D1 was ready to sell all and the 7 bags were indistinguishable.

69.  Concerning the GBL, Mr Leung also took issue with D1’s assertion that he and D2 could use “several tens of millilitres” in a single night and that 319 ml of GBL was for his own use.  Mr Leung submitted that this assertion has to be assessed in light of Dr Chan’s undisputed expert evidence that 2.4 g of GBL (with an almost 1:1 ratio if converted to millilitres) is potentially lethal.  Several tens of millilitres in one night is several ten times more than the recreational dosage of 1 ml and most likely could have killed both of them.

My consideration

70.  After considering the evidence before me, whilst I accept that both D1 and D2 would consume part of the ICE, I am not persuaded, however, that a significant proportion of the ICE seized were intended for self‑consumption to warrant any discount.  I cannot see any reason why D1 would have failed to point out the plastic box containing the ICE which he claimed to be for self-consumption to the police during the Video‑recorded Interview.

71.  On the other hand, it is quite clear that both D1 and D2 were in a relationship and I accept that they used GBL extensively to enhance their sexual pleasure.  I also bore in mind that they had abused GBL for sometimes and would have built up tolerance.  I accept that a significant proportion of the GBL were intended for their own use (even though I am unable to decide the exact amount).  I will give both defendants a discount of 20% on the GBL.

72.  So, the starting point for ICE is one of 7½ years, for GBL is 9½ months. 

73.  What then should be the combined starting point for the two dangerous drugs?

74.  If all the dangerous drugs were ICE, 896.4 grammes of ICE will attract a starting point of 21½ years.  If all were GBL, 896.4 grammes of GBL would still attract a starting point of 12 months.

75.  If one used the conversion method, and using the common point of 3 years, which will be triggered by 10 grammes of ICE or 2000 grammes of GBL, the ratio is 1:200.  16.9 grammes of ICE would be converted to 3380 grammes of GBL, together with 896.4 grammes will make 4,276.4 grammes.  Such an amount of GBL would attract a starting point of 4½ years.  If one converts 896.4 grammes of GBL into ICE (896.4/200 = 4.482).  The total amount of ICE will be 4.482+16.9 = 21.38 grammes.  Such an amount would attract a starting point of 8 years. 

76.  Bearing in mind that some discount has to be given for the self-consumption of GBL, I am of the view that a proper combined starting point for these two drugs is one of 7 years and 9 months.  

Discount for plea

77.  Both defendants pleaded guilty at the earliest available opportunity and are both entitled to the full ⅓ discount.

78.  For D1, a one-third discount from 7 years and 9 months will result in a sentence of 5 years and 2 months.  There are no other grounds for any further reduction.

79.  As for D2, although he was convicted of trafficking the same amount of ICE and GBL, I bear in mind the rather passive role he played and his compliance as a result of his relationship with D1, I will give him a further discount of 2 months.  The sentence for D2 is therefore one of 5 years.

Actual sentence

80.  (a)  D1 - 5 years and 2 months’ imprisonment

(b) D2 - 5 years’ imprisonment

Annex

Table 1: Comparison of GHB / GBL with other commonly known dangerous drug

Physical harm and their class in Misuse of Drugs Act

*Misuse of Drugs Act 1971 (United Kingdom). The Misuse of Drugs Act sets out three separate categories, Class A, Class B and Class C. Class A drugs represent those deemed most dangerous, and so carry the harshest punishments. Class C represents those thought to have the least capacity for harm, and so the Act demands more lenient punishment.

+ Table 1 extracted from Dr CHAN Chi-keung’s statement dated 30-11-2018.

Annex

Table 2: Comparison of GHB / GBL with other commonly known dangerous drug

Rational scale to assess the harm of abusive drugs

The scores were based on four-point scale, with 0 being no risk, 1 some, 2 moderate, and 3 extreme risk. The rating was performed in United Kingdom by psychiatrists and a wide range of experts in chemistry, pharmacology, forensic science, and other medical specialties.

+ Table 2 extracted from Dr CHAN Chi-keung’s statement dated 30-11-2018.

Annex

Table 3: Table concerning GBL and GHB cases

+ Table 3 extracted from statement of WDSIP CHUNG Man-ling dated 12/12/2018.

Annex

Table 4: Table concerning GBL and GHB cases

+Table 4 extracted from Customs Inspector YEUNG Ming-ko dated 11/12/2018.

Annex

Table 5: Updated table concerning GBL and GHB cases

+Table 5 extracted from statement of Customs Inspector YEUNG Ming-ko dated 1/2/2019.