HKSAR v. CHU CHING TAK

HCCC 164/2001

HEADNOTE

Taking expert evidence on the extent to which a dangerous drug which has newly arrived on the scene is abused and on the extent of the harm caused by abusing such drug.

Until new guidelines are laid down by the Court of Appeal, sentencing for trafficking in ketamine should be done according to the existing sentencing guidelines for ecstasy trafficking.

HCCC 164/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. HCCC 164 OF 2001

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R U L I N G

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1. This is my ruling in a hearing which I held on the extent to which the relatively new dangerous drug ketamine is abused in Hong Kong and on the extent of the harm that results from abusing this drug. Such a hearing resembles a Newton hearing but is not exactly the same. In R v Newton (1982) 77 Crim. App. R. 13 the Court of Appeal (Criminal Division) in England laid down the procedure to be followed by sentencing judges for the purpose of resolving the conflict which arises when the prosecution and the defence put forward conflicting versions of the facts of the offence or offences involved. Here the issue to be resolved does not go to what the accused actually did, but goes instead to the extent of the harm being done to society by the sort of thing that he did: in particular by one of the dangerous drugs, ketamine, in which he unlawfully trafficked.

2. There are sentencing guidelines for many types of dangerous drugs, but so far not for ketamine. As to the ways in which sentencing guidelines come about, this is what was said by the Court of Final Appeal in Seabrook v HKSAR (1999) 2 HKCFAR 184 at p. 192D-H:

" Sentencing guidelines come about in a number of ways. No useful purpose would be served by attempting to identify all of them. But it is appropriate to consider some of them.

In the course of hearing appeals against sentence and review of sentence, the Court of Appeal will, over a period, detect a general level of sentence in respect of a particular offence. There will however be a number of strays - some on the high side and some on the low side. In such circumstances, the Court of Appeal will very properly consider it appropriate to assist sentencing judges by laying down a set of guidelines for that offence. If the offence is one such as robbery, the scale of seriousness will be calibrated according to circumstances of aggravation. These would be in the nature of factors such as - the involvement of a number of robbers rather than a lone robber; the use of weapons; the gagging or tying up of victims; the invasion of domestic premises; and so on.

If the offence is trafficking in a dangerous drug, then the guidelines will naturally lend themselves to something in the nature of a table with each band defined by quantity. And different types of drugs will attract different sets of guidelines appropriate to the harm which they do.

If a new type of drug appears on the scene, sentencing judges will tend to sentence in respect of them by reference to existing guidelines for some other type of drug, making such adjustments as seem appropriate. Over a period, more and more becomes known about the new drug and eventually, it receives a set of guidelines of its own."

3. Taking evidence about a new drug is something that has been done both by the Court of Appeal and by sentencing judges. As noted by the Court of Final Appeal in Seabrook v HKSAR at p. 193A, the Court of Appeal had been assisted by the evidence of a number of experts in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46, the case in which the sentencing guidelines for the dangerous drug commonly called "ecstasy" were laid down. In HKSAR v Lee Wai Man, High Court Criminal Case No. 214 of 2001 (10 September 2001) Mr Recorder R Wong SC received evidence on ketamine itself. Unfortunately the sentence passed in HKSAR v Lee Wai Man sheds relatively little light on how to sentence on a charge in which ketamine is the only drug involved or substantially involved. This is because the dangerous drugs in the single charge in that case contained not only ketamine but also a substantial quantity of the dangerous drug commonly called "ice". That was also the position in an even more recent case before Jackson J, HKSAR v Luk Ho Fat, High Court Criminal Case No. 209 of 2001 (8 October 2001). Jackson J said that he was dealing with a "cocktail" of drugs. Accordingly, I can derive little assistance from those cases when sentencing on a charge like Charge 1 in the present case in which the vast bulk of the dangerous drugs involved consisted of ketamine.

4. For much the same reason, I can derive relatively little guidance for present purposes from the Court of Appeal's judgment in HKSAR v Yau Wai Hang, Criminal Appeal No. 80 of 2001 (7 August 2001). That was an appeal against sentence and ketamine was involved, but the charge which involved ketamine alone was only of simple possession, and the other two charges each involved a substantial quantity of another dangerous drug, ice in one instance and ecstasy in the other, as well as ketamine.

5. In the case before me, the accused has pleaded guilty in the Magistrate's Court to two charges of trafficking in dangerous drugs, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, and has been committed to the High Court for sentence. The bulk of the dangerous drugs in Charge 1 consists of ketamine, this charge being partiuclarised as follows:

" CHU Ching-tak, on the 6th day of January, 2001 outside No. 147, Yeung Siu Hang Tsuen, Tuen Mun, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 992.21 grammes of a powder containing 969.89 grammes of ketamine hydrochloride, 23.59 grammes of cannabis and 30 tablets containing a total of 1.26 grammes of methamphetamine and 0.56 gramme of diazepam."

6. The bulk of the dangerous drugs in Charge 2 consists of ecstacy, this charge being particularised as follows:

" CHU Ching-tak, on the 6th day of January, 2001 near lamppost No. H3022-7, Yeung Tsing Road, Yeung Siu Hang Tsuen, Tuen Mun, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 230 tablets containing a total of 32.22 grammes of 3, 4-methylenedioxymethamphetamine, being a compound structurally derived from N-alkyl-α-methylphenethylamine by substitution in the ring with alkyl-enedioxy substituent, and 40 tablets containing a total of 1.72 grammes of methamphetamine, 0.71 gramme of diazepam and 0.08 gramme of ketamine."

7. It appears that, in accordance with the tendency noted in HKSAR v Seabrook at p. 192H (for which see the passage quoted above), magistrates have been sentencing in respect of ketamine by reference to the guidelines for ecstasy, and none of such sentences have been brought by the prosecution to the Court of Appeal for a review of sentence. Nevertheless the prosecution initially put before me documents which appeared to suggest that trafficking in ketamine was more serious than trafficking in ecstasy. These documents were a paper dated 22 November 2000 prepared by the Security Bureau for the Legislative Council, a memorandum dated 10 May 2001 from a forensic pathologist to the police and a statement dated 6 July 2001 by a pharmacist.

8. The defence was not prepared to accept that trafficking in ketamine was more serious than trafficking in ecstasy. Therefore when this matter first came before me on 20 July 2001, I adjourned it for a hearing on the extent to which ketamine is abused and the extent of the harm that results from such abuse. At the adjourned hearing the evidence on those matters came from a report dated 1 October 2001 prepared by Dr Char-Nie CHEN which both the prosecution and the defence accepted as accurate. Dr Chen is a highly qualified and highly experienced psychiatrist. He was the Chairman of the Action Committee Against Narcotics from 1993 to 1998, and the Foundation Director from 1996 to 1998 of the Drug Addiction Unit which he established at the Prince of Wales Hospital. It is to be noted that in HKSAR v Lee Wai Man a report by Dr Chen was acted upon by Mr Recorder Wong and that Dr Chen gave evidence before Jackson J in HKSAR v Luk Ho Fat. I am fully satisfied that Dr Chen has the necessary expertise in the matters with which I am concerned.

9. On the strength of his report, I find the following facts.

10. Ketamine was synthesized in 1962. Its medical use began in 1970 as an anaesthetic in animal and human surgery. That is its medical use. I am concerned with its abuse. Among abusers ketamine is known by various nicknames, including: K(K仔), Ket, Special K, Vitamin K, Vit K, Kit Kat, Keller, Kelly's day, Green, Blind squid, Cat valium, Purple, Special la coke, Super acid, and Super C.

11. Overseas ketamine abuse began as early as the 1970s. Ketamine's popularity among drug-abusers overseas underwent a temporary decline, and then went up again in 1990s, especially at rave parties.

12. Ketamine comes in liquid, tablet and powder form. It can be injected, smoked or "snorted".

13. The sensations which ketamine abusers seek and get from abusing this drug include "out of body" experiences and illusions including that of floating.

14. Ketamine abuse can result in vomiting, hypertension, nystagmus, muscle rigidity, delirium, convulsions, respiratory depression, loss of pharyngeal reflexes, aspiration preumonia, apnoea and accidental death.

15. In liquid form ketamine is tasteless and colourless. This has led to it being used as a "date-rape" drug.

16. As to the possibility of addiction to ketamine, the data is inconclusive at present. Only isolated cases of ketamine dependence have been reported so far, notable among the persons who have become ketamine dependant are those working in operating rooms.

17. Ketamine abuse in Hong Kong has been reported at the Central Registry of Drug Abuse here since 1997, and rapidly became popular among young abusers here in 2000. In that year 44.3% of all newly-reported Hong Kong drug abusers below the age of 21 took ketamine. That percentage is lower than the percentage for ecstasy (which was 62.7%) but well above drugs such as ice (at 9.6%), heroin (at 10.6%) and cannabis (at 19.9%).

18. In December 2000 ketamine became a dangerous drug within the meaning of the Dangerous Drugs Ordinance when Part 1 of the First Schedule to the Ordinance was amended to include ketamine.

19. On the available data at present, Dr Chen reports that ketamine is less dangerous than ice but similar to, if not more dangerous than, ecstasy. I so find. The expression "similar to, if not more dangerous than" is the one used by Dr Chen in his report. Dr Chen has his suspicions that ketamine is more dangerous than ecstasy but has not felt able to so conclude. I am in the same position. Since the benefit of any reasonable doubt must be given to an accused at the sentencing stage as well as the innocence or guilt stage, I must proceed on the basis that ketamine is as dangerous, but not more dangerous than, ecstasy.

20. Until more data on ketamine becomes available or some new sentencing guidelines are laid down by the Court of Appeal, I take the view that sentencing for ketamine trafficking should proceed on the basis of the sentencing guidelines laid down by the Court of Appeal in HKSAR v Lee Tak Kwan for ecstasy trafficking. I will sentence this accused on that basis, after hearing mitigation on matters particular to the present charges.

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S E N T E N C E

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21. On Charge 1, the bulk of the dangerous drugs in which you trafficked consists of ketamine. In sentencing you, I will not add anything for the other dangerous drugs particularised in Charge 1.

22. On Charge 2, the bulk of the dangerous drugs in which you trafficked consists of ecstasy. In sentencing you, I will not add anything for the other dangerous drugs particularised in Charge 2.

23. As I ruled earlier today, in sentencing you for ketamine trafficking under Charge 1, I will proceed on the basis of the sentencing guidelines laid down by the Court of Appeal for ecstasy trafficking. In sentencing you for ecstasy trafficking under Chapter 2, I will of course also sentence you in accordance with those guidelines.

24. 969.89 grammes of ketamine are involved under Charge 1. 32.22 grammes of ecstasy are involved under Charge 2.

25. I have taken into account everything urged on your behalf.

26. On Charge 1, I take a starting point of 91/2 years' imprisonment.

27. On Charge 2, I take a starting point of 2 years' imprisonment.

28. Taking into account all the mitigation available to you, principally your guilty pleas tendered at the earliest stage i.e. when you appeared before the Magistrate and your co-operation with the police, I will do as follows. I will discount the 91/2 years under Charge 1 to 6 years, and discount the 2 years under Charge 2 to 1 year and 2 months. To give effect to the totality principle I will order that 6 months of your sentence on Charge 2 be consecutive to your sentence on Charge 1 while the rest of your sentence on Charge 2 be concurrent with your sentence on Charge 1. That means a total sentence of 61/2 years' imprisonment. You will go to prison for a total of 61/2 years.