HKSAR v. LUK KUONG CHON

CACC 268/2021

[2022] HKCA 1432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 268 OF 2021

(ON APPEAL FROM HCCC NO 302 OF 2020)

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J U D G M E N T

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1.  The applicant was charged with two offences of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having pleaded guilty to both charges before a magistrate, he was committed to the High Court, where he duly appeared before Barnes J (“the judge”) for sentence.

The facts

2.  On 25 July 2019, the police conducted an anti‑narcotics operation and laid ambush in the vicinity of the 19^th floor of Wang Yiu House, Wang Tau Hom Estate, Kowloon.  The applicant was seen leaving a Room on the floor in question and was intercepted by police officers for inquiries and search.  However, he ignored the officers and proceeded to enter the lift.  When the officers repeated their request, the applicant put up a struggle inside the lift.

3.  Subsequently, the applicant was subdued and upon being searched, a black plastic bag containing what was later found to be 30.1 grammes of a solid containing 23.8 grammes of fluorodeschloroketamine (“FDCK”) was found inside the applicant’s trouser pocket (Charge 1).  Having been arrested and cautioned, the applicant persisted in struggling, asking the police to let him go.

4.  The applicant was then taken back to the Room from which he had emerged, where the applicant’s wife and three daughters were found.  After officers had produced a search warrant and explained that they would conduct a search of the premises, the applicant became emotional and began to struggle again.  Accordingly, it became necessary to subdue him again.

5.  It was noticed that the door to one of the rooms inside the premises was locked.  When police officers asked that the door be opened, they were ignored by both the applicant and his wife; accordingly, officers entered the room by force.  Inside the room, the following items were found:

(1)  four plastic bags containing what was later confirmed to be 182.2 grammes of a solid containing 140.3 grammes of FDCK and a spoon;

(2)  two sets of electronic scales;

(3)  a bundle of transparent re-sealable plastic bags in different sizes;

(4)  a vacuum sealer;

(5)  one cigarette butt;

(6)  two keys; and

(7)  a pair of scissors.

6.  The applicant was again arrested for the offence of trafficking in a dangerous drug and cautioned.  The applicant said that only he had the keys to the bedroom and maintained that all of the drugs belonged to him and were nothing to do with his wife.  He later signed on a police notebook to confirm the accuracy and voluntariness of his statement made under caution (Charge 2). 

7.  During two subsequent video-recorded interviews, the applicant said, among other things, that he had received the drugs concerned from a friend known as Ming Chai or Siu Ming in the morning of 25 July 2019.  This person had called him on his mobile telephone and asked him to deliver the drugs to another person for a reward of $3,000.  He had not yet received this reward. 

8.  He admitted that he knew the packet found on his person was a dangerous drug, but maintained that he did not know the type of drug.  At the time of the arrest, he said he was on his way to Kowloon City ferry pier as his friend had instructed him to return the packet. 

9.  The applicant admitted knowledge of all the dangerous drugs seized and that he was in possession of them for the purpose of unlawful trafficking.

10.  In the course of mitigation, the judge specifically confirmed with defence counsel that the electronic scales and other equipment seized had been used to package the dangerous drugs^[1].

Mitigation

11.  On the date of sentencing, the applicant and his wife had three daughters aged 3, 5 and 7.  He had been educated up to Form 3 level and was a tattoo artist earning around $20,000 per month^[2].

12.  The applicant was not a first offender.  He had appeared in court on five occasions and had a total of seven previous convictions. In 2015, he was convicted of possession of dangerous drugs and sent to a drug addiction treatment centre^[3]. However, he had no previous conviction for trafficking in dangerous drugs.  In mitigation, it was accepted on the applicant’s behalf by his counsel that the applicant was a drug abuser^[4].

Reasons for sentence

13.  The judge considered that since both offences were committed on the same day and were otherwise closely linked, it was appropriate to consider the total amount of dangerous drugs in both counts in order to arrive at an overall starting point.  The total amount of FDCK was 164.1 grammes.

14.  In the absence of sentencing guidelines on FDCK, an expert report of Dr Chong Yeow-kuan^[5], an associate Consultant at the Hospital Authority Toxicology Reference Laboratory, was placed before the judge in respect of the properties and toxicity of the drug in question.  Of this evidence, the judge said[6]:

“… I accept that Dr Chong can give his expert opinion on FDCK.

Without going into detail of his report, suffice it to say that in his opinion, FDCK is similar to ketamine. Its potency is similar to or slightly higher than ketamine. The reported consumption ranged from 30 to 330 mg per session. The clinical toxicity profile of FDCK is similar to ketamine. There were no reported deaths due to FDCK consumption in the literature. FDCK is often detected concurrently with other drugs of abuse, most commonly with ketamine and in its other analogues. FDCK certainly has the potential of being addictive and the abuse potential is likely to be similar to ketamine.

One particular aspect of the abuse of FDCK is of concern to me. According to Dr Chong, reports from literature show that the dose used for FDCK that is 30 to 330 mg per session is slightly lower than the dose of ketamine with 250 to 500 mg in one-third of the users and another one-third using more than 1 gramme in a single session.

Patients locally reported that they believe the substance they consumed to be ketamine rather than a ketamine analogue. So Dr Chong and his team postulated that substitution of street ketamine with FDCK likely contributed to the consumption of FDCK in a significant portion of drug abusers in Hong Kong and it is likely that the user used the usual amount of street ketamine without realising that it had been substituted by FDCK and other ketamine analogues.

So while I treat FDCK the same as ketamine when considering the starting point with the quantity in question, I will adjust the starting point to take into account this particular aspect of the FDCK.” (Emphasis supplied)

15.  The judge then referred to the sentencing guidelines set out in Secretary for Justice v Hii Siew Cheng[7]in respect of the trafficking in ketamine.  Since the quantity of FDCK was 164.1 grammes, for which the relevant sentencing range after trial under those guidelines should be between 6 and 9 years’ imprisonment for between 50 and 300 grammes, the judge arrived at an arithmetical starting point of 7 years 4 months’ imprisonment.  She then enhanced the starting point by 2 months to take into account the greater potency of FDCK and the real possibility that users would take a higher amount of FDCK believing the substance to be ketamine.

16.  The judge also determined that the applicant was not simply a courier but was also involved in packaging the dangerous drug at his home.  For this, she enhanced the sentence by a further 3 months’ imprisonment.  However, she did not enhance the starting point by virtue of the applicant’s previous convictions or for the fact that he resisted arrest.  Accordingly, the notional sentence after trial became 7 years and 9 months’ imprisonment.

17.  Given the applicant’s early guilty plea, the sentence for each charge was reduced to 62 months’ (or 5 years and 2 months’) imprisonment. Both sentences were ordered to run concurrently with each other.

The applicant’s submissions

18.  The applicant did not provide any grounds of appeal in his Form XI filed on 26 November 2021; nor did he advance any submissions in writing.  However, before me this morning, he has argued that if the expert evidence of Dr Chong placed the potency and toxicity of FDCK at the same level or slightly higher than ketamine, then the judge should have erred in his favour by equating FDCK with ketamine, as indeed the judges at first instance in the cases referred to by the respondent had done.

The respondent’s submissions

19.  Mr Dominic Ngai, on behalf of the respondent, has helpfully noted that FDCK had been treated in the same way as ketamine, and the sentencing guidelines for ketamine had been applied to FDCK, in the following four cases at first instance: HKSAR v So Wan-cheung^[8]; HKSAR v Lam Choi-kit^[9]; HKSAR v Cheung Ho-nam^[10]; HKSAR v Chung Ka-yan^[11].

20.  The respondent submitted that the judge had considered all the relevant factors and circumstances before sentence and the starting point and its adjustments could not be criticised.  Effectively, the applicant was no mere courier of dangerous drugs but was running his own business.  Accordingly, the sentence was neither manifestly excessive nor wrong in principle.

Discussion

21.  I note that in only three of the four first instance cases referred to by Mr Ngai did the sentencing court have the benefit of expert evidence concerning the properties of FDCK.  However, those reports were all written by another expert in either 2019 or 2020.  The report of Dr Chong was written in 2021, by which time one might reasonably assume more was known about the drug and those who abuse it.

22.  In any event, the judge had evidence before her in Dr Chong’s report of abusers indicating that they believed the substance they were abusing was ketamine when it was in fact a ketamine analogue; from which it was a reasonable assumption that they would be unwittingly using a more potent amount of the drug, believing it to be ketamine.  The judge described this, as I have noted, as a “particular aspect of the abuse of FDCK” that was of concern to her.  For that reason, she decided to adjust the starting point to reflect the greater potency and toxicity, as well as danger of abuse, of FDCK.

23.  I do not think the judge’s reasoning can be faulted, whatever may have been decided at first instance in other cases.  Her reasoning is on the face of it sound and there is an evidential basis for the position she took.  In any event, the adjustment to the starting point is a mere 2 months’ imprisonment.  As Mr Ngai noted, the judge did not enhance the starting point for the way the applicant had resisted his arrest.

24.  Accordingly, I do not consider there are reasonably arguable grounds of appeal against sentence in this case and the application must be refused.

25.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time he has spent in custody pending his appeal, if it were to conclude that there was no justification for renewing the application.

[1]  AB, p 22I-J.

[2]  AB, p 27C-G.

[3]  AB, p32.

[4]  AB, p27G-I.

[5]  AB, pp37-47.

[6]  AB, pp 23R-24J.

[7]  Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[8]  HKSAR v So Wan-cheung [2020] HKCFI 759.

[9]  HKSAR v Lam Choi-kit [2021] HKCFI 2074.

[10]  HKSAR v Cheung Ho-nam [2020] HKCFI 2183.

[11]  HKSAR v Chung Ka-yan [2020] HKCFI 2095.