HKSAR v. LEE TAK KWAN

Criminal Appeal No. 177 of 1997

Headnote

Comparison between Hong Kong and UK drugs legislation and guideline cases on heroin and ecstasy.

UK guidelines should not be followed.

Properties of ecstasy considered.

Guidelines for sentencing for trafficking in ecstasy:

For very small quantities immediate custodial sentence for first offenders may not be necessary.

For more than 800 grammes, arithmetic progression to be avoided.

Increase of sentence is justified for importation, manufacture or other aggravating circumstances.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 177
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. On 11 March 1997 the appellant pleaded guilty before Stuart Moore J (as he then was) in the Supreme Court to an offence of trafficking in tablets and tablet fragments containing about 733 grammes of 3,4-methylenedioxy-methamphetamine hydrochloride. There were 11,050 whole tablets and a quantity of fragments. These drugs are known as MDMA and colloquially as ecstasy.

2. The judge took 20 years as his starting point which he reduced to 12 years after taking into account the plea of guilty and other mitigating factors. The appellant appeals against that sentence with leave.

The facts

3. On the day of the offence the appellant arrived at Kai Tak Airport from the Netherlands. After passing Immigration, he was stopped at the Luggage Inspection Counter in the Customs Hall. He and his luggage were searched. The drugs in the indictment were found.

4. In answer to the customs officer, he said Ah Chong made arrangements for him to go to the Netherlands on 9 August 1996. In the Netherlands he met Mike who asked him to bring the drugs back to Hong Kong for a reward of HK$30,000. Mike made arrangements for the appellant to stay in a Hilton Hotel in the Netherlands and the dangerous drugs were delivered to him there. The arrangement in Hong Kong was for the appellant to await a phone call from Ah Chong. No payment had been made to the appellant before his arrest.

The sentence

5. When sentencing the judge said about the drug

6. The judge sentenced on the basis that:

On this basis the judge took as a starting point 20 years and reduced it to 12 for the plea of guilty and other matters of mitigation.

The issues

7. There are two questions for our consideration:

Guidelines for "ecstasy"

8. The prosecution has invited the court to consider making sentencing guidelines for the offence of trafficking in MDMA/MDEA or "ecstasy".

9. We accede to this suggestion in the hope that guidelines will encourage judges to pass sentences sufficient to discourage the abuse of this drug but taking into account its properties and its effect on society. Also, guidelines may assist in achieving a greater consistency in sentencing for offences involving this drug.

The first issue - was the judge wrong in principle to adopt the guidelines for heroin laid down by this Court in R v Lau Tak-ming?

10. The guidelines laid down in R v Lau Tak-ming for heroin are well recognised and have been followed without criticism since 1990. There has been no suggestion in this case that they should be varied or revised.

11. In applying the guidelines in Lau Tak-ming to "ecstasy" the judge adopted the reasoning of the English Court of Appeal in Warren and Beeley. This decision is only persuasive but it is necessary to examine the reasons carefully to ensure that they are appropriate to Hong Kong having regard to the UK drugs legislation and the guidelines laid down by the English Court for heroin and other Class A drugs.

12. The necessary comparisons demonstrate at once that the statutory schemes and sentencing guidelines are different in the two jurisdictions. The United Kingdom Misuse of Drugs Act 1971 divides controlled drugs into three classes - A, B and C - depending upon the degree or type of harm involved. "Ecstasy" is not specifically mentioned in any of the classes but is a Class A drug consequent upon the definition in the "compounds" specified in Schedule II paragraph 1(c).

13. Heroin and opium are both Class A drugs. Cannabis, cannabis resin and methaqualone are Class B drugs.

14. The statutory scheme in Hong Kong is quite different. The Dangerous Drugs Ordinance (Cap 134) specifies "dangerous drugs" in Part I of the First Schedule but these drugs are not further categorised. (Parts III and IV contain some modifications not relevant to the present enquiry)

15. In the United Kingdom the broad approach to sentencing has been much influenced by statutory categorisation of the drugs. See Warren and Beeley. The relevant guideline authority is R v Arunguren and others (1995) 16 CrAppR(S) 211 in which the English Court laid down the sentencing guidelines for heroin. These differ widely from those in Lau Tak-ming. For example, for importation of 500 grammes of heroin of 100% purity, Arunguren suggests that the sentence should start at 10 years and upwards. For five kilogrammes or more, the level is 14 years and upwards. The contrast with the Hong Kong guidelines is marked. The uppermost range considered in Lau Tak-ming is for 400-600 grammes suggesting between 15 and 20 years imprisonment. For 500 grammes, therefore, the starting point is 17 or 18 years. Five kilogrammes lie outside the Lau Tak-ming guidelines and would attract about 25 years imprisonment.

16. The decision in Warren and Beeley is based on the premise that the same criteria should apply to "ecstasy" as to heroin on the classification in the Misuse of Drugs Act 1971. See Taylor LCJ at 236 to 237:

17. In Arunguren's case the same approach was assumed - that all Class A drugs should be dealt with at substantially the same level. The same principle is applied to Class B drugs:

When considering English cases, it must be borne in mind also that the maximum sentences for the different classes of drugs vary.

18. The absence of classification in the Hong Kong Ordinance has made it necessary for this Court to consider the properties and harmful effects of individual drugs in fixing the appropriate sentence and recommending guidelines. See, for example, the enormous differences in the level of sentence suggested in R v Lau Yiu-nam [1986] HKLR 954 for opium and in R v Lau Tak-ming [1990]2 HKLR 370 for heroin, both of which are Class A drugs in the United Kingdom Ordinance.

19. In view of the disparity in the sentencing guidelines and the differences in the statutory framework between the two jurisdictions, there is no sound basis upon which the Hong Kong courts can regard the approach in Warren and Beeley as appropriate in Hong Kong.

20. The approach of this Court has been to consider the degree or type of harm involved in the misuse of particular drugs. Our approach does not have the merit of simplicity but we have little alternative but to consider the proper level of sentencing for "ecstasy" from first principles. It is necessary to have regard the nature of the drug, its effects and the threat it poses to life and society compared with some of the other common drugs of abuse.

"Ecstasy" - a general description

21. We have been assisted by a number of experts. There is no material dispute between them. "Ecstasy" is a psychotrophic drug which no longer has any medical use permitted by law. Its abuse is normally associated with marathon "rave" dance sessions staged at venues which can accommodate large numbers of people with loud repetitive music and psychedelic light shows. The normal dose is one tablet (average 114 mg of narcotic content). Initial effects occur after 30 to 60 minutes. They peak at about 90 minutes and may persist for many hours. Frequent abuse leads to tolerance with increased undesirable effects.

22. The reported effects - both desirable and undesirable - vary but the most common is sensory enhancement involving a feeling of "closeness" to others and a relaxed positive loving state of mood. Undesirable effects appear to increase with successive doses. These include anxiety, depression, mood swings, paranoia, panic attacks and loss of appetite. Visual hallucination, muscle aching and fatigue are also reported.

23. In isolated cases the drug has idiosyncratic effects leading to serious medical complications and, in rare cases, death. Deaths are almost entirely associated with either prolonged exertion during "rave" dancing or the additional effect of other drugs. These deaths are not associated with overdosing as the drug is not toxic. Professor Critchley's report refers to a reported overdose of 42 tablets accompanied by no symptoms other than a "hangover" with tachycardia and hypertension.

24. Most important "ecstasy" is not addictive. Even psychological dependence is rare.

25. Turning to the scale of abuse derived from the Hong Kong statistics, these indicate that prior to 1996 the seizures were wholly insignificant. In 1996, however, there was a marked increase. 14,295 tablets were seized in 39 cases. This increase escalated in 1997. 49,613 tablets were seized and 67 cases were involved. The Government Laboratory analyses show that the average quantity of drug in each tablet is 114 mg and 90% of the tablets fall within the range of 100 to 130 mg of narcotic content. This indicates that the total seizures during 1997 amounted to about 5.5 kilogrammes of the drug. This is a serious situation but the amount is much less than some other drugs of abuse.

26. With this in mind, it is useful to set out the comparison chart for 1996 which was put before us by Mr Lee Chau-wing, the Senior Chemist at the Hong Kong Government Laboratory.

Comparison of MDMA or MDEA with Other Common Drugs of Abuse

27. As to the value of the illegal trade, there is little evidence before us save that the street price for one tablet is said to be $250 or more. The street value of the seizures in 1997 therefore was over $12m. We bear in mind that the street value may be very much higher than that paid in larger transactions.

The guidelines

28. Against this background the most important factors which influence us in assessing sentence are as follows:

Conclusion

29. The aim must be to achieve a scale of sentencing for trafficking which will deter those who seek to profit out of the abuse of the drug which has no lawful medical use. Those who must principally be deterred are those who import or manufacture the drug or who indulge in its syndicated supply.

30. At the same time a balanced approach is required. As a drug which is not addictive and has at most a very low level of toxicity, it does not represent a major threat to society when compared with drugs of high toxicity and addiction such as heroin. But this is not to say that it represents no threat. Idiosyncratic effects are known which can, when combined with prolonged exertion or other drugs, lead in isolated cases to serious medical complications and even death. On the other hand such idiosyncratic effects can arise from almost any other drug which is taken.

31. There is some suggestion that young people may regard "ecstasy" as a "safe" drug and that they may think that the authorities are "relaxed" about its control. If so, these impressions must be corrected.

32. Balancing these factors we consider that the appropriate guidelines to adopt for sentencing after trial having regard to narcotic content are as follows:

At the lower levels, it will be necessary for the sentencer to make a careful assessment of the real criminality involved. For trafficking in very small quantities, immediate custodial sentences for first offenders may not always be necessary.

33. An arithmetic progression for trafficking in much higher quantities than 800 grammes should be avoided. The sentence in such cases must be entirely within the discretion of the judge depending upon the circumstances.

34. Some increase of the levels will be justified, for example, where there is evidence of importation or manufacture or other aggravating circumstances for which the accused is responsible.

Other guideline cases

35. We note that the sentencing guidelines in AG v Chu Chi-man [1987] HKLR 221 for methaqualone (Mandrax) may be thought to be inconsistent with the guidelines we recommend in this case. "Mandrax" is not at present a prevalent drug of abuse in Hong Kong. If its abuse should ever become prevalent again, it may be necessary for this Court to review the "Mandrax" guidelines.

The instant appeal

36. We turn to the instant appeal. As we have indicated earlier, the sentence passed by the judge was in our opinion wrong in principle when he applied the guidelines for heroin in Lau Tak-ming. In consequence the sentence was also manifestly excessive. Nevertheless, this is a serious case of importation. Some increase in the scale which we suggest is entirely justified.

37. On this basis the appropriate scale for the 733 grammes of narcotic is within the band "400 to 800 grammes" which involves a starting point of about 7 years. But taking into account the importation, we consider the proper starting point to be 8 years. The appellant is entitled to a one-third reduction for his plea of guilty and the judge considered a small further reduction was appropriate for other matters of mitigation. We reflect that and reduce the sentence to one of 5 years imprisonment.

38. We allow the appeal and substitute a sentence of 5 years imprisonment.

Representation: