CRIMINAL CASE NO. 103 OF 2011
COURT: Chung Mo Su-mei, you have been committed to this court for sentence following your pleas of guilty to two charges of trafficking in dangerous drugs in the Magistrates’ Court.
Both offences occurred on 25 August last year. In the late afternoon of that day, police officers saw you enter Tai Fong Building, the building in which you lived, in Ivy Street in Mongkok. They kept observation on the building, and three minutes later you walked out again. You were carrying a handbag, which they searched. It contained a sealed packet which contained the drugs to which the 1st charge relates, namely 27.23 grammes of a powder containing 22.05 grammes of ketamine.
You admitted that you knew it was ketamine, and said that you were carrying it for someone in order to make a living for yourself.
The police then took you to your flat on the 2nd floor. In the bedroom area they found the drugs that are the subject of the 2nd charge. There were 10 plastic packets which contained a total of 207.93 grammes of a powder containing 153.36 grammes of ketamine, and 13,860 foil packs containing 13,860 tablets containing 88.01 grammes of nimetazepam. The police also found two digital scales and a plastic bag sealing machine.
The street value of the nimetazepam tablets was $679,140. The estimated street value of the ketamine to which both charges relate was $27,984.
As far as the drugs found in your home are concerned, you admitted that you would sell them to others.
Trafficking in dangerous drugs is a very serious offence. You can have been in no doubt that very serious consequences would follow if you were caught. You decided to take that risk, and must now bear the consequences.
Insofar as Charge 1 is concerned, I am satisfied that the appropriate starting point is 4 years’ imprisonment. Insofar as Charge 2 is concerned, if the charge had related to ketamine alone, I would have adopted a starting point of 7 years’ imprisonment. However, it does not. It involves the 13,860 nimetazepam tablets, with a very large street value, namely $679,140. This quantity of tablets containing nimetazepam clearly is a significant matter of aggravation.
The courts do not appear to have taken a common view in relation to sentencing of cases involving nimetazepam. In the case of HKSAR v Wong Kin Kau, having been referred to a report by Dr Ben Cheung of the Substance Abuse Assessment Unit of Kwai Chung Hospital, dated 3 January 2005, in which he stated that nimetazepam was as dangerous as “Ecstasy” and ketamine, Judge Toh took the view that the sentencing guidelines for ketamine and “Ecstasy” should apply.
This was an approach with which counsel appearing for that defendant on appeal, (CA269 of 2009), did not disagree, and with which the Court of Appeal went along.
In the same report, however, Dr Cheung expressed the view that nimetazepam was comparable to other benzodiazepines, for example diazepam, and that their effects and side‑effects are in many ways similar. The Court of Appeal in HKSAR v Lai Kwok Hung, CACC564 of 2002, equated diazepam with methaqualone for the purpose of sentence. Consistent with that approach, Madam Justice Beeson in HKSAR v Wong Wing On, HCCC365 of 2009, appeared to take the view that for cases involving nimetazepam, the sentencing tariff for cases involving methaqualone was appropriate.
Mr Boey Chung has submitted to me that the court should infer from a report of Dr Lam Ming of the Tuen Mun Substance Abuse Clinic dated 25 March 2011 that medical opinion has shifted as to the harmfulness of nimetazepam, and that it is now regarded as being less harmful than it was in 2005. He submits that nimetazepam should not be equated with ketamine, and that if the court was to take the view that nimetazepam should be equated with methaqualone, then the court should look solely at the weight of the drug content, 88.01 grammes, rather than the number of tablets.
If I understand him correctly, he submits that the court should disregard the tariff in Attorney-General v Chan Chi Man [1987] HKLR 221, insofar as it provides a separate tariff in respect of the number of tablets involved, on the basis that courts are now solely concerned with the drug content. On that basis, he submits that the court should view the nimetazepam as coming within the lowest tariff band provided for methaqualone powder.
Without further evidence, I cannot say whether there has been any general shift in medical opinion regarding the harmful effects of nimetazepam. On the facts of this case, it does not appear to me to make any significant difference whether nimetazepam should be equated with ketamine and “Ecstasy” or with methaqualone or diazepam. Even if the nimetazepam is to be equated with methaqualone or diazepam, this court should not disregard the huge number of tablets involved and their very substantial street value. The resale value of $679,140 was based on a street value of $49 per tablet.
Dr Lam Ming’s report states that nimetazepam is a long‑acting benzodiazepine which is a sedative hypnotic drug. He goes on to say that:
“Benzodiazepines resemble the other sedative hypnotics except that they do not produce surgical anaesthesia, coma or death, even at high doses, unless they are co‑administered with other central nervous suppressants such as alcohol.”
Because the nimetazepam in this case is in tablet form, there is a real danger, if not likelihood, that it would be sold in places where alcohol was being consumed. It clearly possesses a significant risk to at least some of those who might buy it.
In the circumstances, I am satisfied that it is appropriate to increase the starting point on the 2nd charge by 1 year to reflect the 13,860 tablets containing nimetazepam, making a starting point of 8 years.
I have borne in mind your age and the fact that this is your first conviction for dangerous drugs. I also have taken into account the letters that have been sent to the court by you and your son.
However, the only real mitigation in your case are your pleas of guilty at an early stage. For those pleas, you are entitled to the usual discount of one-third.
On Charge 1, I pass a sentence of 32 months’ imprisonment; that is, 2 years 8 months.
On Charge 2, I pass a sentence of 64 months’ imprisonment; that is, 5 years 4 months.
Both sentences are to run concurrently. The total sentence is therefore 5 years 4 months’ imprisonment.