HKSAR v. LEE KIN FAI

HCCC 81/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 81 OF 2014

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant pleads guilty to three drug-related offences. The first was possession and the other two were trafficking. The defendant admitted the Summary of Facts.

To put it simply, on 5 July last year, when the defendant boarded a taxi, that driver found the contents of his telephone conversation suspicious. He (the taxi driver) then informed the police and officers later located the defendant. The search on his person revealed he had a bag of drugs on him. That was the subject matter of the 1st charge.

The defendant was subsequently released on police bail with the requirement to report to the police later. But on 1 August, that was before the reporting date, the police officers caught the defendant having another bag of drugs on him and there were also drugs and paraphernalia inside his premises. That constituted the 2nd and 3rd charges respectively.

The defendant is now 17. He has a clear criminal record. He was around 16 at the time of the offences.

By agreement of both sides, the sentence was adjourned for expert reports on the pharmacological nature and effect of the so-called ‘ng chai’ (No. 5) also known as ‘TFMPP’ in short form. I have now before me two expert reports. The authors, Dr Tang and Professor Tomlinson, do not seem to disagree on the basic characteristics of TFMPP. In fact, it is basically a synthetic substance made for the treatment of worm infections in human bodies.

I have read the two reports and the related material. I do not think it necessary to go into all the details here. The main points seem to be that TFMPP, on its own, would not produce any euphoric effects and is less likely to induce addiction. However, when TFMPP is taken in combination with other drugs, such as BZP, then together they would produce an Ecstasy-like effect.

Dr Tang pointed out that, actually, TFMPP had been marketed as an alternative to Ecstasy and the popularity of it has grown in the past 10 years. He mentioned that the potency of TFMPP was only one-third to that of Ecstasy as demonstrated in an animal study. Professor Tomlinson also stated that studies had shown that this substance was at least three-fold less potent than Ecstasy.

Miss Corrine Remedios, counsel for the defendant, had submitted a written note as part of her mitigation for the defendant. I believe the note and her oral submissions had covered everything that could have been said on the defendant’s behalf. I am also grateful to her for a clear analysis of the authorities and the approach to sentencing. I have read and considered the relevant matters in the reports, the letters and the mitigation.

For the 1st charge involving 1.14 grammes of cocaine, as it was a charge of simple possession, I would adopt 9 months as the starting point. As to the 2nd charge, the trafficking in 5 grammes of cocaine, I would adopt 3 years as the starting point.

As to the 3rd charge, there were two types of drug involved, "Ice" and TFMPP. The amount of "Ice" was 300 grammes and TFMPP was about 1.23 kilogrammes. For the assessment of the appropriate starting point for this 3rd charge, I accepted counsel’s submission that the more significant drugs would be the "Ice" in terms of sentencing. I also accept that it would be appropriate to use the so-called adjustment approach in deciding on the overall starting point. Given the amount of 300 grammes of "Ice", in light of the authorities, I would adopt a starting point of 14 years.

Now the question is how much upward adjustment should be adopted to reflect the amount of TFMPP. On this matter, counsel for the prosecution suggested that the court could use the Ecstasy tariff as the basis, but apply 30 per cent only to reflect the lower potency of this substance. Counsel for the defence, however, disagreed. She thought that the court could not artificially apply the 30 per cent of the Ecstasy tariff. She argued that the nature of TFMPP was very different and it would only produce Ecstasy-like effect when it was mixed with some other substance. She suggested that this court could treat the substance as a low impact drug instead of treating it as Ecstasy.

Having considered the situation, I found it difficult to directly borrow the tariff from Ecstasy based on the information before me. But if I have to do so, I would have thought that one-quarter or one-fifth of the Ecstasy tariff may be applicable as a rule of thumb. But having said that, I have to remind myself that the upward adjustment, despite the significant quantity of TFMPP in this case, is not to be the sum of the two starting points.

For the present case, I believe an upward adjustment of 2 years would be appropriate. Hence the starting point for the 3rd charge is 16 years.

I shall give the one-third discount to all these starting points because of the defendant’s guilty pleas. Therefore, the terms would be reduced to 6 months, 2 years and 10 years 8 months respectively.

In her address to the court, Miss Remedios emphasised the defendant’s age as a mitigating factor, suggesting that the defendant could be considered as an extremely young defendant and therefore deserved special treatment. My view on this matter is, even if this defendant could be said to be extremely young, as a defendant facing such serious offences and a very lengthy sentence, I would not give much weight to the age factor.

The defendant was first arrested in July last year. Even if he was young, he should have realised the grave situation he was facing, yet he continued to participate in the drug trafficking activities. In the circumstances, the issue of age would not attract much sympathy from this court, and it may well send the wrong message to society if this court were to further reduce the sentence because of this factor.

In principle, the sentence of the 1st charge should be ordered to run consecutively as it was a separate and distinct offence but, having reflected on the whole circumstances, first, I would round up the 10 years 8 months’ term in the 3rd charge down to 10 years 6 months. And I have decided that all the terms are to run concurrently.

Therefore, the sentence I impose for all these three charges will be 10 years 6 months. All three terms are to run concurrently so the final sentence is 10 years 6 months.

This is a long sentence, especially for a young defendant like you. I have no pleasure in imposing that term of imprisonment on someone who is 16 or 17. In any event, I truly hope that the defendant has learned a lesson, and to return to his studies under the supervision of the Correctional Services. I strongly believe the defendant still has a good future if he starts to change now.