CAAR000007 2006 by HC12022419239

VIEWS: 11 PAGES: 44

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A                                                                       A
                                       CAAR 7/2006 & CACC 126/2007
B                                                                       B
                                                         CAAR 7/2006
C                                                                       C
                IN THE HIGH COURT OF THE
         HONG KONG SPECIAL ADMINISTRATIVE REGION
D                                                                       D
                     COURT OF APPEAL
E              APPLICATION FOR REVIEW NO. 7 OF 2006                     E
               (ON APPEAL FROM HCCC NO. 121 of 2005)
F                                                                       F
                       ____________________
     BETWEEN
G                                                                       G
                      SECRETARY FOR JUSTICE                 Applicant
H                                                                       H
                                and
I                                                                       I
                      HII SIEW CHENG (許守城)                 Respondent
                       ____________________
J                                                                       J
                                                       CACC 126/2007
K               IN THE HIGH COURT OF THE                                K
         HONG KONG SPECIAL ADMINISTRATIVE REGION
L                    COURT OF APPEAL                                    L

                 CRIMINAL APPEAL NO. 126 OF 2007
M                                                                       M
               (ON APPEAL FROM DCCC NO. 969 of 2006)
N                      ____________________                             N
     BETWEEN
O                                                                       O
                              HKSAR                        Respondent
P                                                                       P
                                and

Q                      WONG YAT SAN (黃日新)                   Applicant   Q

                       ____________________
R                                                                       R


S                                                                       S


T                                                                       T


U                                                                       U


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由此


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B                                                                                  B
     Before: Hon Ma CJHC, Stuart-Moore VP and Stock JA
C
     Dates of Hearing: 16 and 17 October 2007
                                                                                   C
     Date of Judgment: 6 June 2008
D                                                                                  D


E                                                                                  E
                                   JUDGMENT
F                                                                                  F


G                                                                                  G
     Stuart-Moore, VP (giving the judgment of the Court):
H                                                                                  H
     Introduction
I                                                                                  I

     1.             Hii Siew Cheng (Hii), the respondent in CAAR 7/2006,
J                                                                                  J
     appeared in the High Court on 12 June 2006 to be sentenced for trafficking
K    in ketamine. On that occasion, in the absence of specific guidelines for      K

     sentencing ketamine traffickers, Deputy Judge Barnes (as she then was)
L                                                                                  L
     followed the practice which had not infrequently been adopted by other
M    judges of using the sentencing guidelines in HKSAR v Lee Tak-kwan             M

     [1998]     2       HKC      371     at     378     for    trafficking    in
N                                                                                  N
     methylenedioxymethamphetamine (or MDMA) to which we shall refer
O    throughout as ‘ecstasy’, the name by which that drug is commonly known.       O

     Prior to this, the judge had heard evidence about ketamine and ecstasy from
P                                                                                  P
     a number of experts in the course of which comparisons as to the adverse
Q
     effects of each were inevitably drawn.                                        Q


R                                                                                  R
     2.             The judge concluded that ecstasy and ketamine were addictive
S    “in the sense that they both have psychological dependence potential”. So     S

     far as neurotoxicity was concerned, the judge accepted recent research that
T                                                                                  T
     ecstasy could have harmful effects on the brain whereas she felt that no
U    such “reliable conclusion” could be drawn in regard to ketamine. The          U


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由此


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B                                                                                    B
     judge also made the point, in regard to the principal aspects of the evidence
C    she had heard, that the courts do not look at “the prevalence of use, or its    C
     dependence potential, its toxicity or its manner/pattern of abuse” in
D                                                                                    D
     isolation when assessing the harm posed to society by the abuse of a
E    particular drug because it was the combined effect of these and other           E
     factors which had to be taken into account.
F                                                                                    F

     3.           In the absence of specific guidelines for ketamine and when
G                                                                                    G
     justifying her decision to adopt the sentencing guidelines for ecstasy in
H
     Hii’s case, the judge referred to a passage in Seabrook v HKSAR [1999] 2        H


I
     HKCFAR 184 at 192H which reads:
                                                                                     I
                        “If a new type of drug appears on the scene, sentencing
J                judges will tend to sentence in respect of them by reference to     J
                 existing guidelines for some other type of drug, making such
                 adjustments as seem appropriate. Over a period, more and more
K                                                                                    K
                 becomes known about the new drug and eventually, it receives a
                 set of guidelines of its own.”
L                                                                                    L

     4.           Mr Zervos SC, on behalf of the Secretary for Justice (the
M                                                                                    M
     applicant), submitted in relation to Hii’s review proceedings that the time
N    had now been reached, in the light of present medical knowledge about           N

     ketamine and its prevalence in Hong Kong, for sentencing guidelines to be
O                                                                                    O
     provided which dealt with ketamine in its own right. He further argued
P    that the ecstasy guidelines in Lee Tak-kwan (above), being applied in many      P

     ketamine trafficking cases, were themselves out of date as the Court of
Q                                                                                    Q
     Appeal’s observations in that case had now been overtaken by recent
R    medical research into ecstasy.      Mr Zervos particularly emphasised the       R

     comment of Mortimer V-P when giving the judgment of this court in Lee
S                                                                                    S
     Tak-kwan (at 377D), that: “Most important ‘ecstasy’ is not addictive. Even
T    psychological dependence is rare.” Mr Zervos submitted that if the judge        T

     in Hii’s case had correctly found that ecstasy and ketamine were both
U                                                                                    U
     addictive in the sense she had described, it was not appropriate for
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由此


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B                                                                                   B
     ketamine or ecstasy traffickers to be sentenced on the existing ecstasy
C    guidelines when these guidelines related to what was understood at that        C
     time to be a non-addictive drug.
D                                                                                   D

     5.           In these circumstances, Mr Zervos argued that just as
E                                                                                   E
     sentencing guidelines were needed for ketamine, so also the guidelines for
F    ecstasy needed to be updated so that they were kept in line with modern        F

     medical knowledge. It is for this reason, with an abundance of expert
G                                                                                   G
     evidence available to us about ecstasy as well as ketamine, that
H                                                                                   H
     arrangements were made for the consolidation of a case concerned with

I
     ecstasy so that it could be used as a means of revisiting, if necessary, the
                                                                                    I
     ecstasy guidelines.
J                                                                                   J

     6.           For this purpose, CACC 126/2007 was consolidated with the
K                                                                                   K
     review hearing. This took a considerable time to achieve but the applicant
L    in that case, Wong Yat-san (Wong), and Hii in the review proceedings,          L

     were each informed well in advance that they would not be adversely
M                                                                                   M
     affected if the court decided to make any upward revision of the existing
N    sentencing guidelines for trafficking in ecstasy or to issue guidelines for    N

     ketamine traffickers.
O                                                                                   O


P    Background to review of sentence in CAAR 7/2006                                P


Q    7.           On 20 May 2005, Hii pleaded guilty in the Magistrates’ Court      Q

     to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)
R                                                                                   R
     and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars of
S                                                                                   S
     the offence were that on 2 February 2005 at the Customs Arrival Hall,

T
     Hong Kong International Airport, he unlawfully trafficked in 1.97
                                                                                    T
     kilogrammes of a powder containing 1.64 kilogrammes of ketamine. On
U                                                                                   U
     12 June 2006, following a Newton hearing which had taken place in

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由此


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     January and May 2006 at the request of the prosecution, when prosecution
C    and defence expert witnesses testified, the judge sentenced Hii to 7 years      C
     and 4 months’ imprisonment.
D                                                                                    D

     8.           Ma CJHC granted leave to the applicant on 4 July 2006 to
E                                                                                    E
     apply to this court under section 81A of the Criminal Procedure Ordinance,
F    Cap. 221, for a review of the sentence imposed on Hii.                          F


G                                                                                    G
     9.           All that needs to be said about the factual background in Hii’s
H    case is that when Hii was intercepted at the airport, his travel bag was        H

     found to contain three separate bags which appeared to contain food items.
I                                                                                    I
     However, an ion-scan test on the contents gave a positive reading for the
J    presence of ketamine.                                                           J


K                                                                                    K
     10.          The ketamine, the subject of the charge, had a street value of

L    $679,650.    Hii, a twenty-eight-year-old Malaysian at the date of his          L
     conviction, later admitted that he had been promised a reward for taking
M                                                                                    M
     the items from Malaysia to someone in Hong Kong, an offer which he
N    thought it would be “silly” of him not to accept.                               N


O    11.          The judge received evidence from four expert witnesses called      O

     by the prosecution and two who were called by the defence but, although
P                                                                                    P
     satisfied that there was evidence of “tolerance and psychological
Q    dependence” arising from the abuse of both ketamine and ecstasy, she            Q

     nevertheless adopted a starting point after trial of 11 years’ imprisonment,
R                                                                                    R
     following the existing ecstasy guidelines in Lee Tak-kwan (above). This
S
     was reduced by a third to give effect to the respondent’s timely guilty plea.   S


T
     Furthermore, anticipating that the prosecution would wish to take the
                                                                                     T
     matter further, the judge correctly observed (para. 156 of the Reasons for
U                                                                                    U
     Sentence):

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B
                 “Whether the Court of Appeal will be asked to reconsider the          B
                 guidelines for ecstasy trafficking is not a matter for this court.”
C                                                                                      C

     12.          Mr Zervos submitted that, by following the guidelines laid
D                                                                                      D
     down in Lee Tak-kwan where expert opinion had described ecstasy as
E    being non-addictive, the judge had erred in principle by passing a sentence       E

     that failed to take into account the addictive nature of ketamine. This, in
F                                                                                      F
     turn, it was argued, had led to a sentence which was manifestly inadequate.
G                                                                                      G
     Background to application for leave in CACC 126/2007
H                                                                                      H

     13.          The evidence given by the experts about the effects of
I                                                                                      I
     ketamine in CAAR 7/2006 almost inevitably overlapped with evidence
J    about ecstasy, particularly in the context of a case where part of Mr             J

     Zervos’ argument was that the ecstasy guidelines should no longer be
K                                                                                      K
     regarded as adequate for trafficking in either ecstasy or ketamine. With
L
     this in mind, as we have indicated, the consolidation of CACC 126/2007            L


M
     with CAAR 7/2006 was arranged in order that the sentencing guidelines for
                                                                                       M
     trafficking in ecstasy could also be considered.
N                                                                                      N

     14.          The factual background in CACC 126/2007 is extremely brief.
O                                                                                      O
     Wong was on board a coach bound from the Mainland to Hong Kong.
P    When it reached the Lok Ma Chau Control Point at 7.07 am on 30 June               P

     2006, the passengers were asked to alight for the normal immigration
Q                                                                                      Q
     procedures to be carried out, and all did so. A few minutes later, a black
R    waist-bag was found lying on a row of seats at the back of the coach.             R


S                                                                                      S
     15.          As the passengers who had disembarked would not necessarily
T    be expected to resume their journey on the same coach once they had               T
     passed through immigration, the bag was handed to a customs officer and
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     an announcement was made over the public address system that a bag had
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由此


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B                                                                                  B
     been found. However, when the bag had still not been claimed by 1.05 pm,
C    it was opened and found to contain the drugs specified in the trafficking     C
     charge, namely, 1,510 blue tablets containing a total of 5.35 grammes of
D                                                                                  D
     methamphetamine (‘ice’) mixed with 85.11 grammes of ecstasy. The street
E    value of these drugs was $125,300.                                            E


F    16.             The presence of a number of other items in the bag which      F

     belonged to Wong, together with the fact that it was established that Wong
G                                                                                  G
     had crossed the border at the material time, enabled Deputy District Judge
H                                                                                  H
     Mierczak to draw an inference of guilt following a trial in which Wong had

I
     chosen not to testify.
                                                                                   I


J    17.             Wong was convicted on 29 March 2007 and sentenced on the      J

     same day to 5½ years’ imprisonment. Although Wong was subject also to
K                                                                                  K
     concurrent suspended sentences of 4 months’ imprisonment which the
L    judge activated, these were ordered to run concurrently with the sentence     L

     for trafficking.
M                                                                                  M


N    18.             The applicant sought leave to appeal against conviction and   N
     sentence, and it is convenient to deal straightaway with the first of these
O                                                                                  O
     applications.
P                                                                                  P
     19.             So far as conviction is concerned, Wong’s homemade ground
Q    of appeal merely referred to his conviction as being “unjustified” and he     Q

     added nothing in these proceedings which cast any doubt on the integrity of
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     the conviction. The inference of guilt which the judge had drawn was
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     based upon overwhelming circumstantial evidence.         Accordingly, this

T
     application is dismissed.
                                                                                   T


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由此


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B
     20.          We shall deal later with Wong’s application in regard to            B


C    sentence having first considered whether new guidelines for sentencing           C
     traffickers of ecstasy should be formulated.
D                                                                                     D

     The 1998 sentencing guidelines for trafficking in ecstasy
E                                                                                     E


F    21.          The sentencing guidelines in HKSAR v Lee Tak-kwan (above)           F

     for trafficking in ecstasy on which the judge in the present review of
G                                                                                     G
     sentence had relied when sentencing Hii for trafficking in ketamine, were
H    given by this court almost a decade ago, on 26 May 1998. In that case,           H

     Mortimer V-P stated (at page 376) that the guidelines would be formulated
I                                                                                     I
     from “first principles”, having regard to the “nature of the drug, its effects
J    and the threat it poses to life and society compared with some of the other      J

     common drugs of abuse”. Ecstasy was described as a psychotropic drug
K                                                                                     K
     normally associated with “marathon ‘rave’ dance sessions”. The normal
L    dose was said to be “one tablet with an average narcotic content of 114          L

     milligrammes”.
M                                                                                     M


N    22.          The judgment dealt (at page 377) with the reported effects of       N
     ecstasy, making the point that the “undesirable effects appear to increase
O                                                                                     O
     with successive doses” and that in isolated cases there had been
P    “idiosyncratic effects leading to serious medical complications and, in rare     P
     cases, death … almost entirely associated with either prolonged exertion
Q                                                                                     Q
     during ‘rave’ dancing or the additional effect of other drugs.” As to this
R    aspect, before turning to the scale of the abuse derived from Hong Kong          R

     statistics at that time, Mortimer V-P said:
S                                                                                     S
                  “… These deaths are not associated with overdosing as the drug
                  is not toxic. Professor Critchley’s report refers to a reported
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                  overdose of 42 tablets accompanied by no symptoms other than a
                  ‘hangover’ with tachycardia and hypertension.
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                       Most important ‘ecstasy’ is not addictive.               Even    B
                  psychological dependence is rare.” (Emphasis added)
C                                                                                       C

     23.          In formulating the ecstasy sentencing guidelines, the fact, as
D                                                                                       D
     then understood, that this drug was neither addictive nor toxic was
E    obviously regarded as an important factor which influenced the court in            E

     assessing appropriate levels of sentence. Other important considerations
F                                                                                       F
     were the statistics showing an increase in its abuse, its ready availability
G    and wide abuse in the West and the fact that the adverse consequences              G

     leading to isolated deaths were “idiosyncratic” which might occur when
H                                                                                       H
     any drug is taken. The judgment in Lee Tak-kwan (at page 378) continued:
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                  “Balancing these factors we consider that the appropriate
                  guidelines to adopt for sentencing after trial having regard to
J                 narcotic content are as follows:                                      J

                  Up to 25 g        - entirely within the discretion of the sentencer
K                                                                                       K
                  Over 25 to 400 g - two years to four years
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                  400 to 800 g      - four years to eight years

M                 Over 800 g        - eight years and upwards”
                                                                                        M


N    The present issues                                                                 N


O                                                                                       O
     24.          We shall turn shortly to the evidence we have been given

P
     about the harmful effects of ecstasy, together with recent statistics about its
                                                                                        P
     prevalence when considering whether the present ecstasy guidelines are
Q                                                                                       Q
     adequate. Similarly, we shall look at what is known about ketamine abuse
R    in Hong Kong in order to determine not only whether the guidelines for             R
     ecstasy in Lee Tak-kwan provide an appropriate level of sentence for
S                                                                                       S
     traffickers in ketamine but also whether or not there are grounds for the
T    formulation of separate sentencing guidelines for each of these drugs.             T
     Ketamine, like ecstasy, is described as a ‘psychotropic’ drug and although,
U                                                                                       U
     pharmacologically, the two drugs differ considerably, it is the alarming rise
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B                                                                                    B
     in the popularity of psychotropic drugs in Hong Kong, with ketamine and
C    ecstasy the most popular of them, which is a major factor giving rise to        C
     concern in these proceedings.
D                                                                                    D

     The expert evidence
E                                                                                    E


F    25.          In making our assessment about the relative harm caused by         F

     the abuse of ketamine and ecstasy, we have been greatly assisted by the
G                                                                                    G
     reports and the transcripts of evidence of five of the expert witnesses who
H    were called to give evidence in the court below, four of whom updated           H

     their reports in the light of the latest medical learning and/or relevant
I                                                                                    I
     statistics. In addition, fresh evidence consisting of further expert material
J    was admitted without objection under the provisions of section 83V of the       J

     Criminal Procedure Ordinance, Cap. 221. It was not considered necessary
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     that we should hear any oral testimony from any of the experts.
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     26.          Four of the experts heard by the judge in Hii’s case were
M                                                                                    M
     called by the prosecution. They were Detective Senior Inspector Paul
N    Lewis (DSI Lewis), Dr Ronald Chen Yuk-lun, Dr Ben Cheung Kin-leung              N
     and Dr Karen Laidler. Called on behalf of the defence was Professor Lee
O                                                                                    O
     Tak-shing.   We shall, in due course, deal with various aspects of the
P    evidence they have provided, making reference to other expert witness           P
     reports where these significantly contribute to the evidence of the experts
Q                                                                                    Q
     who were called in the court below. This being said, clearly our main
R    focus of attention in each of the cases now before us has been upon the         R

     prevalence of these drugs of abuse together with the harmful effects to
S                                                                                    S
     which they give rise. Having regard to the considerable overlap in the
T    evidence concerning these two drugs, when dealing with their prevalence it      T

     is convenient to deal with them together.
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由此


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B                                                                                  B
     Ketamine and ecstasy statistics
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     27.          Evidence was put before us from several quarters that
D    ketamine is presently the most popular drug of abuse in Hong Kong for         D

     those who are under twenty-one although, putting age aside, heroin
E                                                                                  E
     remains the most widely abused drug in terms of the overall number of
F    drug abusers.                                                                 F


G                                                                                  G
     28.          DSI Lewis, attached to the Intelligence Division of the
H    Narcotics Bureau, presented statistical data, gathered by law enforcement     H

     agencies and the Government Laboratory, to illustrate the prevalence of
I                                                                                  I
     ketamine when compared to other dangerous drugs. We shall first deal
J    with the statistics he has provided.                                          J


K                                                                                  K
     29.          In 2001, the amount of ketamine seized was 81.5

L    kilogrammes.     In 2002, the figure stood at 89.9 kilogrammes.      After    L
     dropping to 51 kilogrammes in 2003 and to 46.4 kilogrammes in 2004, the
M                                                                                  M
     figure rose to just over 296 kilogrammes in 2005. Then, in 2006, a steep
N    rise to 1,006.08 kilogrammes was recorded. In the first six months of         N
     2007, the figure recorded was 35.69 kilogrammes.
O                                                                                  O

     30.          DSI Lewis helpfully set the figures for ketamine seizures
P                                                                                  P
     alongside the seizures of ecstasy and other drugs, namely, heroin, cocaine,
Q    cannabis and methamphetamine (‘ice’) between the year 2001 and June           Q

     2007 (with an asterisk against the 2007 figures to denote that these were
R                                                                                  R
     provisional). Much of the ecstasy seized was in ‘tablet’ form as to which
S                                                                                  S
     we note in passing that, on the available evidence, there is no reason to

T
     depart from what was said in Lee Tak-kwan that “the normal dose [of
                                                                                   T
     ecstasy] is one tablet with an average narcotic content of 114
U
     milligrammes”.                                                                U


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由此


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B                                                                                                               B
       31.               DSI Lewis produced a schedule to illustrate the figures, as
C      follows: -                                                                                               C

                         1.      Seizures
D                                                                                                               D
                                                                                                    Metham-
                         Ketamine           Ecstasy            Heroin     Cocaine    Cannabis
                                                                                                   phetamine
E            2001             81.50 kg      170,243 tab      156.40 kg    29.70 kg 2,104.60 kg       63.10 kg   E
             2002             89.90 kg      48,840 tab       105.59 kg     8.30 kg    666.28 kg     71.56 kg
F                                          142,912 tab                                                          F
                                                     +
             2003             51.02 kg                        42.16 kg     6.63 kg    248.34 kg     38.64 kg
                                           31.17 kg of
G                                        MDMA powder                                                            G
             2004             46.44 kg     283,568 tab        35.74 kg    55.53 kg    182.66 kg     15.67 kg
H            2005         296.13 kg          47,694 tab       31.87 kg    11.61 kg    431.56 kg    228.11 kg    H
             2006       1,006.08 kg         104,296 tab       52.22 kg    14.88 kg    198.67 kg       6.74 kg
I            2007                                                                                               I
                              35.69 kg       42,759 tab       20.49 kg    29.37 kg    443.58 kg     49.67 kg
         (Jan– June)*

J                                                                                                               J
       32.               DSI Lewis also supplied us with a schedule relating to the
K      retail prices of ketamine and ecstasy, amongst other dangerous drugs, as                                 K

       shown below:
L                                                                                                               L
                         5.      Retail (Street) Prices
M                      Heroin         Ketamine          Ecstasy      Cocaine       Herbal          Metham-      M
                    (per gramme)    (per gramme)      (per tablet)      (per      Cannabis        phetamine
                                                                     gramme)    (per gramme)    (per gramme)
N       2001              $374              $325           $178        $1,113           $65             $300    N
        2002              $415              $259            $87        $1,261           $67             $374
        2003              $425              $194            $85        $1,152           $58             $374
O       2004              $359              $151            $79          $951           $71             $353    O
        2005              $354              $258            $83          $745           $57             $350
        2006              $440              $173            $83          $791           $69             $389
P                                                                                                               P
        2007              $429              $147            $64          $796           $64             $410
     (Jan – June)
Q                                                                                                               Q
       It is apparent that the retail prices for both ketamine and ecstasy have fallen
R      considerably since 2001.                                                                                 R


S                                                                                                               S
       33.               In another schedule, illustrating that while ketamine is the
T      principal drug of abuse for the young (under twenty-one), heroin remains                                 T

       the most widely abused drug of all amongst the population of Hong Kong
U                                                                                                               U


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由此


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B                                                                                           B
     as a whole, DSI Lewis set out the numbers of persons arrested by drug
C    type:                                                                                  C

                  2.     No. of Persons Arrested by Drug Type:
D                                                                                           D
                                                                              Metham-
                          Ketamine Ecstasy      Heroin   Cocaine     Cannabis
                                                                              phetamine
E     2001                2,229      1,142      3,583    42          1,079    595           E
      2002                2,357      646        3,303    43          929      321
F     2003                1,770      639        3,130    59          809      418
                                                                                            F
      2004                2,213      468        2,438    103         811      390
      2005                687        284        2,020    217         639      564
G     2006                1,612      283        1,713    296         567      509           G
      2007 (Jan– June)    1,416      154        849      272         257      320
H                                                                                           H
     34.           In a further refinement of this last schedule, DSI Lewis was
I    also able to illustrate the prevalence of ketamine amongst young people by             I

     reference to the number of persons who were under twenty-one at the time
J                                                                                           J
     of their arrest, as follows:
K                                                                                           K
                  3.     No of Persons Under-21 Arrested by Drug Type:
                                                                                Metham-
L                         Ketamine Ecstasy      Heroin   Cocaine     Cannabis               L
                                                                                phetamine
      2001                963        447        183      2           282        105
M     2002                919        165        121      5           216        41          M
      2003                611        145        83       4           185        56
      2004                818        135        74       7           158        41
N                                                                                           N
      2005                209        87         44       37          135        62
      2006                597        98         45       77          77         49
O     2007 (Jan– June)    520        51         25       59          40         45          O


P    It is noticeable from these figures that ketamine, followed by ecstasy, are            P

     the most widely abused drugs amongst the young.
Q                                                                                           Q


R
     35.           The figures given by DSI Lewis show that the number of
                                                                                            R
     persons arrested in relation to ketamine offences decreased in 2003 and
S                                                                                           S
     then further decreased in 2005 after a rise in 2004. DSI Lewis attributed

T    this in part to a change in the method of trafficking from “frequent but
                                                                                            T
     small consignments” coming from the Mainland to “multi-kilo
U
     consignments coming from South-East Asia”.                  Furthermore, the large     U


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由此


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B
     seizures of ketamine by the authorities had led to “disruption to the supply     B


C    locally”. He suggested also that the reduced number of arrests in relation       C
     to ketamine, (from 2,357 in 2002 to 687 in 2005) was unlikely to reflect a
D                                                                                     D
     diminishing number of ketamine users bearing in mind the increase in
E    volume of ketamine seized in 2006 over the preceding years.                      E


F    36.          Emerging from these schedules, it can readily be appreciated        F

     that in 2006 a greater quantity of ketamine than ecstasy was seized by drug
G                                                                                     G
     enforcement agencies and far more than heroin, cocaine, cannabis and ice.
H                                                                                     H
     The contrast was less marked in the first six months of 2007, when the

I
     provisional figures revealed that 35.69 kilogrammes of ketamine were
                                                                                      I
     seized compared to 42,759 tablets of ecstasy and 20.49 kilogrammes of
J                                                                                     J
     heroin. Furthermore, the fact that the arrests of those under twenty-one for

K    ketamine-related offences numbered 597 in 2006 and 520 in the first half
                                                                                      K
     of 2007, compared to 98 and 51 for ecstasy–related offences over the same
L                                                                                     L
     periods of time, adds powerfully to the proposition made by several of the
M    experts that ketamine is not only targeted at young people but is the most       M
     popular drug of abuse in Hong Kong by those under twenty-one and is
N                                                                                     N
     second only to heroin in overall terms of abuse.
O                                                                                     O
     37.          The final statistics produced by DSI Lewis which require
P    comment in the present context are those related to fatalities linked to the     P

     consumption of ketamine and ecstasy or a combination of both.
Q                                                                                     Q


R    38.          As other experts were to inform us, ketamine and ecstasy are        R

     frequently taken in combination with each other and/or with other drugs
S                                                                                     S
     including alcohol. It is not surprising to find, therefore, that ketamine is
T    usually associated with fatalities only where it has formed part of a cocktail   T

     of drugs. Ecstasy, on the other hand, has led to fatalities by itself.
U                                                                                     U


V                                                                                     V
由此


A                                           - 15 -                                           A


B                                                                                            B
     39.             The statistics produced by DSI Lewis for fatalities resulting
C    from the effects of ketamine and/or ecstasy since 1 January 2004, were as               C
     follows:
D                                                                                            D
            Certified Date   Sex   Age                   Cause of Death
                Death
E           9 March 2004     M     24    Adverse effects of morphine, ketamine & alcohol     E
           21 March 2004     F     24    Adverse effects of MDMA (Ecstasy)
            17 May 2004      F     26    Adverse effects of morphine & Ecstasy
F                                                                                            F
            21 June 2004     F     20    Adverse effects of Ecstasy & ketamine
           2 October 2004    F     38    Adverse effects of Ecstasy, methamphetamine &
G                                        estazolam                                           G
       30 January 2005       M     31    Overdose of cocaine & Ecstasy
       11 February 2005      M     48    Adverse effects of heroin mixture, ketamine &
H                                                                                            H
                                         alcohol
         10 April 2005       M     39    Overdose of Ecstasy
I        15 May 2005         M     33    Adverse effects of multiple drugs (Ecstasy,         I
           (approx.)                     Methamphetamine etc)
        6 August 2005        F     24    Pneumonia & overdose of ketamine
J                                                                                            J
      28 September 2005      F     21    Adverse effects of Ecstasy
       2 December 2005       F     15    Adverse effects of Ecstasy
K      13 January 2006       M     21    Cerebral oedema, raised intracranial pressure and   K
                                         adult respiratory distress syndrome & adverse
                                         effects of ketamine
L                                                                                            L
         5 April 2006        F     40    Adverse effects of Ecstasy & ketamine
         8 April 2006        M     19    Overdose of Ecstasy
M        8 May 2006          M     35    Adverse effects of carbon monoxide & ketamine       M
         26 July 2006        F     13    Adverse effects of Ecstasy
      10 December 2006       M     44    Adverse effects of heroin mixture, ketamine &
N                                                                                            N
                                         methamphetamine
           9 January 2007    M     27    Adverse effects of ketamine, cocaine &
O                                        nimetazepam                                         O


P    In short, out of these nineteen deaths relating to persons aged between 13              P
     and 48 in a period of 34 months, nine were associated with ketamine and
Q                                                                                            Q
     twelve with ecstasy, two involving a combination of both these drugs.
R    Although six cases appear to have been due to ecstasy alone, DSI Lewis’                 R
     schedule provides some illustration of how ketamine and ecstasy are often
S                                                                                            S
     mixed with other drugs by those who abuse them. This aspect is one to
T    which we shall return later when dealing with the evidence provided by                  T

     other experts.
U                                                                                            U


V                                                                                            V
由此


A                                          - 16 -                                     A


B                                                                                     B
     Trend towards psychotropic drugs
C                                                                                     C
     40.          Mr Ip Mun-kau, Senior Statistician of the Security Bureau,
D    provided us with further statistics to illustrate the trend in Hong Kong         D

     towards psychotropic drugs. He has been employed by the government as
E                                                                                     E
     a statistician since 1989 and has responsibility, amongst other things, for
F    overseeing the operation of the Central Registry of Drug Abuse (CRDA)            F

     which operates under the purview of the Security Bureau where statistics
G                                                                                     G
     on drug abuse are compiled. With these proceedings in mind, using the
H                                                                                     H
     data from the CRDA, and from other sources including the Hospital

I
     Authority, Mr Ip was able to analyse trends in drug abuse, collating a
                                                                                      I
     variety of drug-related statistics in his presentation of a 13-page report.
J                                                                                     J

     41.          Mr Ip’s report, entitled “Report on the drug situation in Hong
K                                                                                     K
     Kong”, laid emphasis on the fact that the CRDA is a “voluntary reporting
L    system which may only capture those abusers who had come into contact            L

     with and been reported by the reporting agencies”. It follows, therefore, as
M                                                                                     M
     Mr Ip noted, that it is obviously not possible to ascertain the exact size of
N    the population who abuse drugs and, as he expressed it, “the statistics          N

     should be taken as indicators of the trends in drug abuse over time rather
O                                                                                     O
     than a finite definition of the situation”.
P                                                                                     P
     42.          Mr Ip’s report [para. 2.1.3] stated that over the past few years,
Q                                                                                     Q
     the total number of drug abusers recorded by the CRDA was, at least until
R    recently, on the decrease. The figures showed a drop from a peak of              R

     18,513 in 2001 to 13,204 in 2006. Consistent with this, the number of
S                                                                                     S
     reported heroin abusers over the past decade showed a declining trend,
T    with 14,291 in 1997 down to 8,101 in 2006. However, Mr Ip said that with         T

     regard to the number of reported psychotropic substance abusers, the figure
U                                                                                     U
     was on a general rise, from 3,488 in 1997 to 7,364 in 2006. In regard to
V                                                                                     V
由此


A                                        - 17 -                                       A


B                                                                                     B
     young drug abusers (under twenty-one years of age), the number fell from
C    4,020 in 2000 to 2,186 in 2004 but then “picked up to 2,549 in 2006 (with        C
     an annual increase of 4% and 12%, respectively, in 2005 and 2006).
D                                                                                     D

     43.          More specifically, Mr Ip noted that ketamine abusers were
E                                                                                     E
     first reported to the CRDA in 1997 and that the proportion of drug abusers
F    who used ketamine increased from 0.2% of all those who abused drugs in           F

     1999 to 23.2% in 2006 with some fluctuations within the period. Ecstasy
G                                                                                     G
     abusers, on the other hand, were first reported to the CRDA in 1993.
H                                                                                     H
     Between 1996 and 1998, the proportion of ecstasy abusers was no more

I
     than 0.4% of all drug abusers but by 2006 the figure stood at 11.6%.
                                                                                      I


J    44.          Mr Ip was also able to say that, among young drug abusers,          J

     the abuse of psychotropic substances has shown an increasing trend over
K                                                                                     K
     the last decade with the proportion increasing from 44.4% in 1997 to
L    98.9% in 2006.                                                                   L


M                                                                                     M
     45.          Amongst recent drug abuse trends, Mr Ip noted that about
N    83.3% of reported drug abusers in the first half of 2007 were male and           N
     16.7% female, with heroin (the most popular drug of abuse) being
O                                                                                     O
     consumed by 58.8% of the reported drug abusers, a figure which was lower
P    in the first half of 2007 than for the same period in 2006. However, 54.1%       P
     of the reported drug abusers abused psychotropic substances in the first
Q                                                                                     Q
     half of 2007, a figure which was higher than for the same period in 2006.
R                                                                                     R
     46.          When Mr Ip examined the statistics (set out in ‘Table 5’ of his
S                                                                                     S
     report) in regard to those under twenty-one, he reported that in the first six

T
     months of 2007 they numbered 1,646 which was 10.7% higher than for the
                                                                                      T
     same period of 2006. 71.4% of these young abusers were males and 28.6%
U                                                                                     U


V                                                                                     V
由此


A                                          - 18 -                                    A


B                                                                                    B
     were females. He then stated, again comparing the first half of 2007 with
C    the same period in 2006:                                                        C

                 “2.3.4   Ketamine was the most commonly abused drug among
D                         young drug abusers. About 79.7% of the young drug          D
                          abusers had used ketamine. The figure was higher than
E                         that recorded in the same period of 2006 (66.8%).
                                                                                     E
                 2.3.5    Ecstasy was the second most commonly abused
F                         psychotropic substance. In the first half of 2007, about   F
                          22.7% of the young drug abusers used ecstasy. The
                          figure was much lower than that for the same period of
G                         2006 (49.8%).                                              G


H
                 2.3.6    The proportion of young drug abusers who used heroin
                                                                                     H
                          was rather low (1.7%).”

I                                                                                    I
     What is known about ketamine
J                                                                                    J
     47.         Having considered the prevalence in Hong Kong and the
K                                                                                    K
     obvious popularity of ketamine, particularly amongst the young, we turn
L    next to what is known about this drug.                                          L


M    48.         Dr Ronald Chen, Assistant Professor in the Department of            M

     Psychiatry at the University of Hong Kong and Psychiatrist-in-charge of
N                                                                                    N
     the Substance Abuse Clinic at Queen Mary Hospital, headed a research
O    team of six, including himself, in the production of a report entitled: ‘A      O

     Study on the Cognitive Impairment and other Harmful Effects Caused by
P                                                                                    P
     Ketamine Abuse’ published in February 2005 and commissioned by the
Q
     Narcotics Bureau. This study referred to ketamine as a psychotropic drug        Q


R
     which is commonly abused with other psychotropic drugs, especially
                                                                                     R
     ecstasy. There was, the study noted, an alarming upward trend in the abuse
S                                                                                    S
     of both these drugs and a major cause for concern was the prevailing view

T
     among youngsters that, because these drugs are different from heroin, they
                                                                                     T
     were not harmful to them and that the drugs merely enhanced their
U                                                                                    U
     enjoyment of music and dancing. He noted also that long-term users of

V                                                                                    V
由此


A                                        - 19 -                                      A


B
     both ketamine and ecstasy have been found to develop “tolerance and             B


C    psychological craving for the drugs although detailed physiological             C
     withdrawal symptoms had not been well documented”.
D                                                                                    D

     49.          Ketamine was described in Dr Chen’s study as a “dissociative
E                                                                                    E
     anaesthetic which produces unresponsiveness to external stimuli by
F    dissociating various components of the mind”. Users experience “amnesia,        F

     marked analgesia and a trance-like state dissociated from the environment
G                                                                                    G
     resulting in out-of-body or near death experience”. In his most recent
H
     report, attached to an affirmation dated 14 September 2007, Dr Chen’s           H


I
     conclusion from his own research as well as from overseas academic
                                                                                     I
     studies was that “ketamine has the potential for causing a wide range of
J                                                                                    J
     psychological and physiological harm on the abuser including dependence

K    and neurocognitive impairment”.
                                                                                     K


L    50.          Dr Ben Cheung Kin-leung, Assistant Professor of the                L

     Department of Psychiatry of the University of Hong Kong and a
M                                                                                    M
     psychiatrist in private practice who was, when he gave evidence in the
N    court below, the head of the Substance Abuse Clinic in Kwai Chung               N

     Hospital, referred to Dr Chen’s study in his updated report, attached to an
O                                                                                    O
     affirmation made on 15 October 2007, when commenting that “ketamine
P    dependence is clearly documented in drug treatment settings of Hong             P

     Kong”. Dr Cheung also made reference to an article in the well-known
Q                                                                                    Q
     medical journal The Lancet [Vol. 369 March 24, 2007] where, amongst
R
     other things, the pleasurable effects of a variety of drugs and their           R


S
     propensity to produce dependent behaviour were discussed by the authors,
                                                                                     S
     David Nutt, Leslie A King, William Saulsbury and Colin Blakemore. Dr
T                                                                                    T
     Cheung noted that heroin and cocaine were at the top of the list but that the

U
     “mean dependence score for ketamine was higher than cannabis, LSD,
                                                                                     U
     GHB [gamma-hydroxybutyric acid] and MDMA (ecstasy). Ketamine’s
V                                                                                    V
由此


A                                        - 20 -                                       A


B                                                                                     B
     effects to produce pleasure, psychological dependence and physical
C    dependence were all rated higher than those of MDMA”. Dr Cheung                  C
     illustrated this by means of a schedule, drawing on some of the figures
D                                                                                     D
     taken from the article in The Lancet, as follows:
E                              Mean       Pleasure       Psychological   Physical     E
                                                         dependence      Dependence
                 Ketamine      1.54       1.9            1.7             1.0
F                Cannabis      1.51       1.9            1.7             0.8          F
                 LSD           1.23       2.2            1.1             0.3
G                GHB           1.19       1.4            1.1             1.1
                                                                                      G
                 Ecstasy       1.13       1.5            1.2             0.7
                 (MDMA)
H                                                                                     H

     51.          In regard to the references to ‘dependence’ in this schedule,
I                                                                                     I
     Dr Cheung stated that it was relevant that there has been a shift from
J    emphasis on physical dependence and withdrawal symptoms to a set of              J

     “more comprehensive diagnostic criteria”.             He noted that while,
K                                                                                     K
     historically, dependence often used to refer to physical dependence, it is
L    now recognised that dependence “comprises both physical and                      L

     psychological elements”.     He explained that psychological dependence
M                                                                                     M
     referred to the experience of “impaired control over drug use, and is
N    characterised by repeated and excessive use of a drug”.                          N


O                                                                                     O
     52.          Dr Cheung described ketamine as having “… a multitude of
P    effects on different internal organs of the body, including cardiovascular,      P
     respiratory, neuromuscular, neuropsychiatric, gastrointestinal, reproductive
Q                                                                                     Q
     and immune system harms …”, concluding that this is a harmful drug
R    causing a multitude of problems over many organs and systems of the              R
     body”.   Dr Cheung stated in his testimony in the court below that
S                                                                                     S
     “ketamine dependence is a clinical diagnosis”. At his unit in “the past
T    year”, he said that 108 out of 185 new cases concerning the abuse of             T

     psychotropic substances by people under 21 fulfilled “the diagnostic
U                                                                                     U
     criteria of ketamine dependence” according to the Diagnostic and
V                                                                                     V
由此


A                                        - 21 -                                        A


B
     Statistical Manual of Mental Disorder, 4th edition, (DSM)”. Although he           B


C    had no doubt that ketamine caused dependence, he was not able to say that         C
     everyone who abused ketamine would eventually become dependent. One
D                                                                                      D
     of the problems in deciding this was the difficulty in finding “pure cases”
E    relating to those who solely abused ketamine.                                     E


F    53.          Dr Cheung considered that it was inappropriate to compare            F

     ketamine with ecstasy, explaining that it was “like comparing orange to
G                                                                                      G
     apple”. They were both, he said, illicit drugs giving rise to “different
H
     harmful effects on different parts of the body”.                                  H


I                                                                                      I
     54.          It is convenient at this stage to turn to the material provided in
J    an affirmation dated 12 September 2007 by Professor Kenneth Lee Kwing-            J

     chin (Professor K Lee) who, amongst other things, dealt with the harmful
K                                                                                      K
     effects of ketamine on the human body.
L                                                                                      L
     55.          Professor K Lee is Professor and Associate Director (External
M                                                                                      M
     Affairs) at the School of Pharmacy of the Chinese University of Hong
N    Kong. He has been a registered pharmacist since 1984 and has written              N
     over one hundred research papers. He has also taught and carried out
O                                                                                      O
     research in areas related to drug abuse and drug toxicities and has served
P    on various Government Advisory Committees including, for seven years,             P
     Action Committee Against Narcotics (ACAN) and is still serving on
Q                                                                                      Q
     related sub-committees.
R                                                                                      R
     56.          Professor K Lee described ketamine as a derivative of
S                                                                                      S
     phencyclidine which was introduced in 1957 as a general anaesthetic but

T
     was never approved for clinical use. These days, it is usually available as
                                                                                       T
     ketamine hydrochloride. Ketamine was first introduced in 1963 as an
U                                                                                      U
     anaesthetic agent but, with the introduction of safer and more effective

V                                                                                      V
由此


A                                          - 22 -                                               A


B                                                                                               B
     methods, Professor K Lee stated that its clinical use had diminished
C    although it is sometimes still used in procedures on humans.                      It is,   C
     however, widely used with animals by veterinary surgeons for sedation,
D                                                                                               D
     surgery, travel and euthanasia.
E                                                                                               E
     57.          Professor K Lee stated that ketamine became a drug of abuse
F    in the 1980s. Although manufactured as an “injectable liquid”, in illicit use              F

     it is generally evaporated to form a powder that is then snorted or
G                                                                                               G
     compressed into tablets. It is commonly known as “K” although other
H                                                                                               H
     slang terms provided by other experts included Special K, Keets, Green,

I
     Jet, Super Acid and Super C.
                                                                                                I


J    58.          The pharmacological aspects of ketamine were described by                     J

     Professor K Lee in his report as follows:
K                                                                                               K
                 “33. The pharmacology of ketamine in human[s] is believed to
L                be due to its blocking of a type of excitatory neuroreceptors
                                                                                                L
                 called N-methyl-d-aspartate (NMDA) receptors in the central
                 nervous system (CNS) leading to an impairment of the cognitive
M                functions and memory which are responsible for its therapeutic                 M
                 effects such as anaesthesia, sedation etc. (Morgan, 2004).
N                                                                                               N
                 34. Ketamine is characterized by its tendency to produce a state
                 called dissociative anaesthesia which is characterized by sedation,
O                amnesia, and analgesia but not necessarily complete loss of                    O
                 consciousness (Kohrs, 1998). Such effects are the results of the
                 higher centres in the brain being prevented from perceiving
P                auditory, visual or painful stimuli, leading to a ‘lack of                     P
                 responsive awareness’ (Wolff, 2006). This can therefore lead to
Q
                 hazardous situations outside clinical settings. There is a greater
                                                                                                Q
                 risk of injuries being masked and the risk of accidents increases.

R                35. Ketamine is also well known for its hallucinogenic side                    R
                 effects (emergence reaction), and sometimes delirium and
                 irrational behaviour during recovery and these can be highly
S                unpleasant. The hallucinogenic effect may be minimized by                      S
                 placing the patient in an area with reduced environmental stimuli
T                and the incidence may be reduced by the co-administration of
                                                                                                T
                 diazepam or midazolam which belong to a class of tranquilizing
                 agents called benzodiazepines (Smith, 2002).”
U                                                                                               U


V                                                                                               V
由此


A                                        - 23 -                                        A


B                                                                                      B
     59.          So far as non-medical use of ketamine is concerned, Professor
C    K Lee made reference to a number of authors in stating that users most            C
     often described a dramatic feeling of “dissociation from one’s self”. Other
D                                                                                      D
     reported experiences included distortion of space and time, a sense of
E    floating and hallucinations.    In other more extreme cases, there were           E
     reports of a “terrifying feeling of almost complete sensory detachment,
F                                                                                      F
     often described as a ‘near-death experience’ described sometimes as a ‘K-
G    hole’.                                                                            G


H                                                                                      H
     60.          Professor K Lee explained that the onset and duration of the

I
     effects of ketamine can vary according to the means of administration. The
                                                                                       I
     fastest effects, within 30 seconds, are obtained after intravenous
J                                                                                      J
     administration. Pausing here, Professor Lee Tak-shing, whose evidence in

K    the court below we need only touch upon briefly for reasons we shall come
                                                                                       K
     to shortly, stated that although intravenous usage is commonly reported in
L                                                                                      L
     Western literature, it is very rare in Hong Kong. In his extensive clinical
M    and research experience, he had never encountered an intravenous or               M
     intramuscular ketamine user. Whether this difference in usage in the West
N                                                                                      N
     has a bearing on the placement of ketamine at 6 th position out of the twenty
O    drugs listed in The Lancet’s article we have not been told although it is         O
     right to add that rapid effects, according to Professor K Lee, are also
P                                                                                      P
     obtained when ketamine is snorted. Oral administration, on the other hand,
Q    usually produces an effect after 30 to 40 minutes. The effects of ketamine        Q

     last for about 2 to 3 hours.
R                                                                                      R


S
     61.          The judge, in her Reasons for Sentence, commented on
                                                                                       S
     information given to doctors by users of ketamine and ecstasy that as the
T                                                                                      T
     stimulant effect of ecstasy generally takes 20 to 40 minutes before it is felt,

U
     the user may take “fast-acting” ketamine to fill the gap as the “commonest
                                                                                       U
     way to abuse ketamine is by snorting the fine powder through the nostril
V                                                                                      V
由此


A                                        - 24 -                                       A


B
     whereas ecstasy is usually in tablet form”. Some users, the judge noted,         B


C    also use ketamine when the effects of ecstasy begin to wear off.                 C


D    62.          Ketamine was described by Professor K Lee as “tasteless,            D

     odourless and colourless”. It induces, he said, amnesia so that it is possible
E                                                                                     E
     that ketamine could be added to beverages without being detected and
F    could, therefore, be used to facilitate a sexual assault although proven cases   F

     of this kind are very rare. Curiously, on this aspect, Dr Cheung to whom
G                                                                                     G
     we have referred already, stated that ketamine had a “bad taste” which
H                                                                                     H
     provided a reason for consumers not usually taking it by mouth although

I
     some would mask its taste in drinks such as orange juice.
                                                                                      I


J    63.          A frequently encountered feature in the abuse of ketamine           J

     when taken in tablet form is its use in combination with other drugs
K                                                                                     K
     including ecstasy, ephedrine or amphetamines. Professor K Lee pointed
L    out, in this regard, that combining psychoactive substances is the “most         L

     risk-producing behaviour of recreational drug users because they usually
M                                                                                     M
     consume alcohol as well. …”
N                                                                                     N
     64.          When dealing with the potential for addiction, Professor K
O                                                                                     O
     Lee indicated that tolerance appeared to develop after repeated use.
P    Experienced users who have developed tolerance can use up to a gramme            P
     or more of ketamine during the course of a single evening. However,
Q                                                                                     Q
     although dependence and tolerance to ketamine are “so far only established
R    in animal studies”, Professor K Lee said that:                                   R

                 “… anecdotal evidence is however present that ketamine is far
S                                                                                     S
                 more likely to be associated with compulsive use than other
                 psychedelic drugs (Jansen, 2001). Evidence is also present
T                showing persons who continue to abuse ketamine may develop           T
                 severe addiction and a withdrawal syndrome requiring
                 detoxification (Kamaya, 1987; Hurt, 1994).”
U                                                                                     U


V                                                                                     V
由此


A                                           - 25 -                                      A


B                                                                                       B
     It is not without interest in this regard that in the article from The Lancet to
C    which he had earlier referred, it was noted that: “For many drugs there is a       C
     good correlation between events that occur in human beings and those
D                                                                                       D
     observed in studies in animals”.
E                                                                                       E
     65.          Professor K Lee stated that the “short duration of effect and
F    the rapid onset of action when ketamine is consumed intranasally or                F

     intravenously often lead abusers to administer repeated doses in order to
G                                                                                       G
     maintain the desired effect”.
H                                                                                       H

     66.          Professor K Lee’s report dealt also with the major dangers
I                                                                                       I
     arising from the abuse of ketamine in these terms:
J                 “46. The major dangers of most non-medical usage of ketamine          J
                  arise from the setting or an interaction between the user and
K                 setting of use. This can result in falls from altitudes, drowning,    K
                  and traffic accidents. The user can also become a victim of crimes
                  or sexual assaults (Jansen, 1993). The amnesic effect of the drug
L                 will also make a victim’s statement unreliable.                       L

                  47. Clinical adverse effects of ketamine are mainly in 3 areas:
M                                                                                       M
                  cardiovascular, respiratory and CNS [central nervous system].

N                 48. Cardiovascular toxicity usually manifests as hypertension,
                                                                                        N
                  tachycardia, and palpitations. Respiratory toxicity may include
                  respiratory depression and apnea. CNS adverse effects may
O                 include confusion, hostility and delirium (Krystal, 1994).            O
                  Nonetheless, it is believed that these toxicities are more likely
P
                  due to the consequence of combining ketamine with other drugs
                                                                                        P
                  of abuse and alcohol rather than ketamine per se (Gill, 2000).

Q                 49. Recreational use of ketamine has been shown to result in an       Q
                  acute state that has features resembling those seen in
                  schizophrenia, and impairment of both episodic and semantic
R                 memory has also been previously demonstrated (Hansen, 1988).          R

                  50. Long-term effects of ketamine are quite diversified ranging
S                                                                                       S
                  from memory deficit, ‘flashbacks’, attentional dysfunction,
                  decreased sociability and anxiety to positive effects such as
T                 chronic elevation of mood, and deeper insights into self and          T
                  others (Wolff, 2006). Chronic abuse of ketamine can have
                  marked debilitating effects on semantic and episodic memory. It
U                                                                                       U
                  may also have the potential to induce a state resembling aspects
                  of schizophrenia (Morgan, 2004).
V                                                                                       V
由此


A                                           - 26 -                                     A


B                                                                                      B
                  5l. Nevertheless, despite the numerous case reports over the
                  years, there is, at least at present, no substantial evidence that
C                 permanent changes in intellectual function or personality can        C
                  occur as a result of regular ketamine use (Wolff, 2006).”
D                                                                                      D
     67.          A further adverse effect from ketamine was dealt with by Dr
E    Peggy Chu Sau-kwan, a specialist in urology who, in 1992, became a                E


F
     Fellow of the Royal College of Surgeons of Edinburgh and of the College
                                                                                       F
     of Surgeons of Hong Kong.            She is currently posted at the Surgical
G                                                                                      G
     Department of the Tuen Mun Hospital.

H                                                                                      H
     68.          In a report entitled “‘Street ketamine’ – associated bladder
I    dysfunction: a report of ten cases”, published in the Hong Kong Medical           I

     Journal Vol. 13 No. 4, August 2007, Dr Chu, together with other urologists
J                                                                                      J
     and toxicology specialists, set out their research in this regard. In the
K    patients she has treated, Dr Chu has found that physical dependence and           K

     tolerance can follow prolonged administration of ketamine. Her report
L                                                                                      L
     dealt with ten specific cases in Hong Kong of young ketamine abusers, all
M    of whom presented with severe lower urinary tract symptoms.                       M

     Investigations demonstrated contracted bladders (‘the shrunken bladder
N                                                                                      N
     effect’) and other urinary tract abnormalities which have not previously
O    been reported in ketamine users. Whilst the aetiology, or causation, of the       O

     disease is presently unknown, the possible reason for the shrinking bladder
P                                                                                      P
     effect was explained by Dr Chu in her affirmation in this way:
Q                                                                                      Q
                  “8. Ketamine is metabolized by hepatic microsomal enzymes.
                  The major pathway involves N-demethylation to form
R                 norketamine, which is then hydroxylated to form                      R
                  hydroxynorketamine. These products are conjugated to water-
                  soluble glucuronide derivatives and 90% are excreted in urine.
S                                                                                      S
                  The presence of ketamine metabolite in the urine may be a
                  contributing factor to the shrunken bladder effect, observed in
T                 street-ketamine abuse patients.”                                     T


U    She added:                                                                        U


V                                                                                      V
由此


A                                           - 27 -                                       A


B
                “10. Besides the shrunken bladder effect, some of the patients           B
                were also found to have damage to the kidneys as shown by
C               ultrasound and computerized images of the kidney. The shrinking          C
                of bladder results in the need to urinate with increased frequency
                and the wearing of napkins by adult patients. Moreover potential
D               harmful effects include renal damage causing renal failure, which        D
                can lead to future dialysis requiring significant health care
E               resources.
                                                                                         E
                11. Up until now, there are around 20 patients under care of
F               Tuen Mun Hospital, Department of Surgery, Division of Urology            F
                for urological problems arising from snorting street ketamine.
                There are also approximately 20 such patients in each of the
G                                                                                        G
                Princess Margaret Hospital and the United Christian Hospital. All
                these patients initially started to snort street ketamine as a leisure
H               drug in rave parties only. Gradually they increased the frequency        H
                of street ketamine abuse, from once per month to once every two
                weeks. Finally they become psychologically dependent on it and
I               needed to take the drug daily.                                           I

                12. From my research findings and clinical experience, I have
J                                                                                        J
                reasons to believe that ketamine has the potential to cause lasting
                danger to the health of these patients. Ketamine has therefore a
K               deleterious and distressing effect on abusers’ themselves and on         K
                the society.”
L                                                                                        L
     69.         Dr Karen Laidler is Professor and Associate Dean at the
M                                                                                        M
     University of Hong Kong and is based in the Department of Sociology.

N
     She works principally as a criminologist. Since 1995, her main research
                                                                                         N
     concerned the Hong Kong drug market.                From her research into the
O                                                                                        O
     changes in patterns of drug use and a number of associated issues, it

P    appeared that “ketamine use in Hong Kong is greater than in other places
                                                                                         P
     [in the world] where there is some use …” and was widely used by young
Q                                                                                        Q
     people in Hong Kong.
R                                                                                        R
     70.         Dr Laidler provided an interesting account concerned with
S    people’s motives for using more than one kind of drug. In the present               S

     context, she commented that people would tend to take ecstasy first and
T                                                                                        T
     then later, after the drug had taken effect “they would take ketamine to
U    shift the nature of the experience”. She explained that as ecstasy has a            U


V                                                                                        V
由此


A                                           - 28 -                                       A


B
     stimulant effect, it would make people feel that they wanted to “dance and          B


C    shake”. However, with ketamine, “the desired effect is one more of a                C
     transformative experience where they enjoy the sensation of … flying and
D                                                                                        D
     floating, having their body float …”. She went on to describe the feeling
E    of flying as being as if the body was “going through a tunnel and trying to         E
     reach some light at the other end”.
F                                                                                        F

     71.          Dr Laidler commented, in an updated report attached to her
G                                                                                        G
     affirmation made on 15 October 2007, that while, initially, ecstasy had
H
     been the “drug of choice among young people in Hong Kong, ketamine has              H


I
     surpassed [it] in popularity”. She attributed this in large part to the fact that
                                                                                         I
     “ketamine, unlike ecstasy, is being used in settings beyond the dance party
J                                                                                        J
     venue, with young people reporting use in other public and private

K    locales”.
                                                                                         K


L    72.          Finally, in regard to Dr Laidler, she found that the majority of       L

     ketamine users would only consume at weekends and that about 5 to 10 per
M                                                                                        M
     cent of users developed “high tolerance and psychological dependence”.
N                                                                                        N
     73.          We have not touched upon the evidence given for the defence
O                                                                                        O
     in the court below by Professor Lee Tak-shing as he was mainly concerned
P    with criticisms of Dr Chen’s methodology in the preparation of his study            P
     which was, he considered, based on a relatively small sample of drug
Q                                                                                        Q
     abusers. However, this is no longer an issue of fundamental importance as,
R    dealing with Professor Lee Tak-shing’s evidence, the judge said in her              R

     Reasons for Sentence:
S                                                                                        S
                  “87. Independent of the Study, however, Professor Lee [Tak-
                  shing] did say that repeated use of Ketamine can result in
T                                                                                        T
                  tolerance in humans, and that there have been sporadic reports of
                  dependence in the literature. Professor Lee [Tak-shing] is of the
U                 view that while ‘it is likely that ketamine can lead to dependence     U


V                                                                                        V
由此


A                                         - 29 -                                    A


B                                                                                   B
                 and addiction, it remains uncertain what proportion of users who
                 display tolerance would eventually progress to dependence’.”
C                                                                                   C

     Ecstasy
D                                                                                   D


E    74.          Professor K Lee’s affirmation, in addition to his observations
                                                                                    E
     about ketamine, dealt also with what is known about ecstasy (or MDMA).
F
     He described it as a “ring-substituted derivative of amphetamine” which,       F


G    after it was synthesized in Germany in 1914, was used as an appetite           G
     suppressant. Since the mid-1980s, it had become popular as a recreational
H                                                                                   H
     drug taken at ‘rave’ parties where participants often dance all night. It is
I    not only commonly referred to in Hong Kong as ‘ecstasy’ but also by other      I
     colloquial terms such as ‘Fing Tao’ or ‘E’ and provides “stimulation and
J                                                                                   J
     feelings of euphoria”.
K                                                                                   K
     75.          These days, as ecstasy is usually manufactured in clandestine
L
     laboratories, Professor K Lee explained that the purity and the doses will     L


M
     vary greatly although tablets have regularly been found to contain between
                                                                                    M
     80 and 150 milligrammes of MDMA.
N                                                                                   N

     76.          Aside from the tablet form, ecstasy is also available in
O                                                                                   O
     capsules or powder. Tablets or capsules are found in a variety of colours,
P    shapes and sizes.                                                              P


Q                                                                                   Q
     77.          Professor K Lee explained that the pharmacological effects of
R    ecstasy result mainly from “increased release and inhibition of the re-        R
     uptake of several neurotransmitters, namely, dopamine, serotonin and
S                                                                                   S
     noradrenaline at the neural junction”. The increase in serotonin at the
T    neural junction is the “major mechanism of action underlying the               T
     distinctive mental effects of MDMA”. The stimulation and feelings of
U                                                                                   U
     euphoria experienced by the user “appear to be due to the release and
V                                                                                   V
由此


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B                                                                                      B
     accumulation of dopamine in areas of the brain that regulate feelings of
C    pleasure” whereas the effects of increased heart rate and blood pressure          C
     “are   most     probably     mediated        by   MDMA-induced    release   of
D                                                                                      D
     noradrenaline”.
E                                                                                      E
     78.           Professor K Lee said that ecstasy begins to take effect 30 to 60
F    minutes after oral administration and to peak after 60 to 90 minutes, with a      F

     duration of action of about 4 to 6 hours after ingesting a single tablet
G                                                                                      G
     containing between 100 to 120 milligrammes of MDMA.                Ecstasy in
H                                                                                      H
     powder form may be snorted to achieve a more rapid effect. The desired

I
     effects were said to include euphoria, increased energy, a feeling of
                                                                                       I
     intimacy, enhanced libido and altered visual perception. Some of these
J                                                                                      J
     neurological effects self-evidently increase the risk of trauma resulting

K    from traffic accidents or falling. This being said, there had been overdose
                                                                                       K
     cases where between 18 and 40 tablets had apparently been ingested with
L
     “no serious consequences” being reported. In this regard, Professor K Lee         L


M    referred to a report about ecstasy-related fatalities made by the National        M
     Poisons Information Service in London which concluded that most of these
N                                                                                      N
     deaths were not associated with massive overdose.
O                                                                                      O
     79.           In another report to which Professor K Lee referred, in which,
P    all deaths related to the taking of ecstasy in England and Wales from 1996        P

     to 2002 were studied, it was found that 17% involved ecstasy on its own
Q                                                                                      Q
     while the remaining deaths were related to polydrug use. He said that it
R
     appears, therefore, that fatalities are more likely to occur as the result of a   R


S
     “combination of drug effects and environmental factors such as poor
                                                                                       S
     ventilation, sustained physical activity and dehydration” than from the
T                                                                                      T
     direct toxic effects of ecstasy by itself.

U                                                                                      U


V                                                                                      V
由此


A                                          - 31 -                                     A


B                                                                                     B
     80.          Recent findings have indicated that females are more sensitive
C    to the effects of ecstasy with one implication being that female users in        C
     rave parties may engage in unprotected sex with all the attendant risks this
D                                                                                     D
     may involve. Professor K Lee said that data on long-term toxicity due to
E    the ingestion of MDMA is mainly derived from animal studies and it is            E
     uncertain to what extent those results are applicable to the human body
F                                                                                     F
     when, for ethical reasons, such studies are difficult to conduct. He went on
G    to say:                                                                          G

                 “19. However, in recent years a wealth of clinical data from
H                                                                                     H
                 observational studies and case reports has been made available on
                 the long-term adverse effects in humans: the drug has led to
I                cognitive and memory impairment (Ricaurte, 2000); recurrent          I
                 paranoia, hallucinations, flashbacks and even psychotic episodes
                 some time after the individual has stopped using MDMA (Kalant,
J                2001); deficits in executive functioning (Zakzanis, 2001);           J
                 neuropharmacologic damage of MDMA may be permanent
K                (Parrott, 2001); effects not reversed by prolonged abstinence
                                                                                      K
                 (Morgan, 2002); users had significantly higher risk of mental
                 disorders than non-users (Lieb, 2002); repeated use was
L                associated with mental disturbances and may persist for up to 2      L
                 years after cessation (Montoya, 2002); memory problems were
                 more common with heavy users (Parrott, 2002); mental health
M                                                                                     M
                 impairment persisted for years after stopping using the drug
                 (Verheyden, 2003); and significant deficits in mental functions in
N                heavy users (Halpern, 2004).                                         N

                 20. These data are suggestive of some long-term toxicities due
O                to MDMA usage yet should not be regarded as solid evidence           O
                 because they are in majority from retrospective observational
P
                 studies or case reports.
                                                                                      P
                 21. To address the issue of whether MDMA can induce
Q                permanent neurotoxic effects on the human brain would require        Q
                 well-controlled prospective longitudinal studies and these are
                 difficult due obviously to ethical reasons.”
R                                                                                     R


S
     81.          Professor K Lee stated that after the user of ecstasy has
                                                                                      S
     achieved a ‘high’ and the effect dissipates, this may result in feelings of
T                                                                                     T
     depression, fatigue and irritability. The depression can last for many days.

U    Acute adverse physiological effects were described as elevated blood             U
     pressure and heart rate, nausea, chills, sweating, tremor, teeth grinding, jaw
V                                                                                     V
由此


A                                        - 32 -                                      A


B                                                                                    B
     rigidity, muscle ache or tension, hot and cold flushes, nystagmus and
C    insomnia, with abnormalities in blood coagulation also being reported.          C


D    82.          The typical recreational dose was said by Professor K Lee to       D

     be between 1 and 2 tablets. However, he pointed out that what may be
E                                                                                    E
     thought to be ‘ecstasy’ by the user may in fact contain a number of other
F    drugs including ice and cocaine.        As tolerance to the psychoactive        F

     properties of MDMA “appears to develop rapidly”, Professor K Lee stated
G                                                                                    G
     that the user would often increase the dose in order to maintain the desired
H                                                                                    H
     response from the drug but it does not appear to be as addictive as heroin or

I
     cocaine.   He observed that while the experimental data demonstrating
                                                                                     I
     “potential long-term brain damage after MDMA usage” comes mainly
J                                                                                    J
     from animal studies, nevertheless there is a wealth of observational data

K    and there are case reports on the long-term effects of this drug in humans
                                                                                     K
     which suggest “a range of long-term and, in some cases, irreversible
L
     toxicities after prolonged recreational use of the drug”.                       L


M                                                                                    M
     83.          With this background, Professor K Lee expressed the view
N    that, with an increase in ecstasy’s popularity among young people, this         N

     could present a major health problem and he thought the message to be
O                                                                                    O
     disseminated should be: “Although MDMA neurotoxicity for humans is
P    not yet proven, available evidence suggests that it is highly likely”. In       P

     regard to physical dependence on ecstasy, Professor K Lee said that while
Q                                                                                    Q
     there is no conclusive evidence of this, “it is believed that psychological
R
     dependence is common”.                                                          R


S                                                                                    S
     Discussion
T                                                                                    T
     84.          Mr Poots, on Hii’s behalf, in the course of his most helpful
U                                                                                    U
     submissions which he effectively approached from the standpoint of an

V                                                                                    V
由此


A                                        - 33 -                                      A


B                                                                                    B
     amicus, accepted that there were plainly harmful effects and risks involved
C    for those who abuse ketamine and ecstasy, although the level of their           C
     addictiveness was lower than that of heroin and cocaine. He submitted,
D                                                                                    D
     however, that there was insufficient evidence of a deterioration in the
E    situation as it existed at the time when the guidelines in Lee Tak-kwan were    E
     formulated to justify any change. He suggested also that the adoption by
F                                                                                    F
     the courts of the same levels of sentence for ecstasy and ketamine should
G    continue. Mr Poots cautioned against a rise in the tariff for trafficking       G

     these drugs having regard to a lack of positive evidence about the long-
H                                                                                    H
     term effects on those who abuse them and he suggested that the present
I    levels of sentencing were adequate to meet the dangers posed by these two       I

     prevalent drugs. He also submitted that it was necessary to keep a sense of
J                                                                                    J
     proportion bearing in mind the conclusions reached in The Lancet’s article
K    to which we have earlier referred that the adverse effects of alcohol in        K

     terms of dependence and social harm were rated to be worse than for
L                                                                                    L
     ketamine and ecstasy; and in addition, from the same article, that “smoking
M    tobacco beyond the age of 30 years reduces life expectancy by an average        M

     of up to 10 years, and it is the commonest cause of drug-related deaths,
N                                                                                    N
     placing a huge burden on health services”.
O                                                                                    O
     85.          In the court below, the deputy judge found that the difficulty
P                                                                                    P
     in locating consumers purely of ketamine, when the majority of those
Q    taking ketamine are polydrug users, led her to conclude that it had not been    Q

     proved that ketamine was more prevalent than ecstasy in spite of the
R                                                                                    R
     statistics produced by DSI Lewis. We have concluded, whichever of these
S    drugs is the more prevalent, that the most important features of the            S

     evidence are that both drugs are prevalent and both drugs are targeted at the
T                                                                                    T
     young, particularly those under twenty-one. We are satisfied also that each
U    drug has serious side-effects which impinge not just upon the consumers         U


V                                                                                    V
由此


A                                        - 34 -                                       A


B                                                                                     B
     but also on the community at large. It is plain, also, that ecstasy and
C    ketamine are frequently taken by the same users to fill a gap as, for            C
     example, when ketamine is snorted before an ecstasy tablet has had time to
D                                                                                     D
     take effect or when ketamine is taken after the effects of ecstasy have
E    begun to wane. Sometimes, they are taken simply to produce a new and             E
     different experience.
F                                                                                     F

     86.          In our view, therefore, it matters little which of these drugs is
G                                                                                     G
     the more prevalent. They are both, potentially at least, highly dangerous
H                                                                                     H
     and they are, as the judge found, addictive in the sense that they have the

I
     potential for psychological dependence. We also agree with a further
                                                                                      I
     conclusion reached by the judge that no good reason had been shown for
J                                                                                     J
     treating traffickers of ketamine differently from those who traffic in

K    ecstasy.
                                                                                      K


L    87.          For present purposes, the most significant change since Lee         L

     Tak-kwan’s case is the element of addictiveness which has been established
M                                                                                     M
     in regard to each drug. It is this which primarily distinguishes the evidence
N    before us from the evidence ten years ago in Lee Tak-kwan which led this         N

     court to say that ecstasy was not addictive and that psychological
O                                                                                     O
     dependence was rare.
P                                                                                     P
     88.          In our view, these two drugs, different in their own ways,
Q                                                                                     Q
     pharmacologically and in the harm they can do, are not to be distinguished
R    when it comes to dealing with those who are caught trafficking them.             R


S                                                                                     S
     89.          We have, as we have indicated already, had the benefit not

T
     only of the material which was before the judge but also a sizeable body of
                                                                                      T
     further reports bringing the statistical data up-to-date together with the
U                                                                                     U
     latest developments in medical opinion.          We are satisfied on the

V                                                                                     V
由此


A                                        - 35 -                                      A


B                                                                                    B
     information presently before us that ketamine and ecstasy have been rightly
C    described as the most popular and the second most popular psychotropic          C
     substances of abuse amongst young drug takers, respectively.             The
D                                                                                    D
     statistics produced by DSI Lewis and Mr Ip are a graphic illustration of
E    this, confirmed by the opinions of highly qualified medical practitioners. It   E
     is apparent, also, that these two types of drug are often taken in
F                                                                                    F
     combination to complement each other and that, with each, a tolerance to
G    them develops giving rise to psychological dependence and the adverse           G

     effects of toxicity. We have borne in mind that while there is no “solid
H                                                                                    H
     evidence” of long-term effects due to toxicity related to the abuse of
I    ecstasy, it is “highly likely” to be a factor. Relevant animal studies have     I

     shown this to be so and human studies of a similar kind are impossible for
J                                                                                    J
     obvious ethical reasons.
K                                                                                    K
     90.          In such circumstances, we consider that, subject only to the
L
     weight of the respective “doses” normally used for each drug so that parity     L


M    of treatment is achieved, there should be sentencing guidelines for both        M
     ketamine and ecstasy and that these should be the same. Moreover, having
N                                                                                    N
     regard to the addictive and toxic elements of both drugs, we are satisfied
O    that the sentencing guidelines should be higher than those outlined in Lee      O
     Tak-kwan.
P                                                                                    P

     Ketamine and ecstasy guideline sentencing tariffs
Q                                                                                    Q


R    91.          In our opinion, as we have indicated, sentencing guidelines are    R

     called for in regard to ketamine. This drug has been shown not only to be a
S                                                                                    S
     prevalent drug in Hong Kong but also, seemingly, the most popular of all
T    amongst those under twenty-one who abuse drugs.            As the statistics    T

     coupled with the medical evidence have revealed, ecstasy is closely
U                                                                                    U
     associated with ketamine. Furthermore, both drugs have been shown to be
V                                                                                    V
由此


A                                       - 36 -                                      A


B                                                                                   B
     addictive in the sense that they give rise to psychological dependence.
C    These are the prime factors we have taken into account in the formulation      C
     of guidelines which we consider should be the same for both types of drug.
D                                                                                   D

     92.         Importantly, in this context, we were provided with the
E                                                                                   E
     narcotic content (or active ingredient) in terms of the weight needed to
F    make a single “dose” in respect of each drug. For ketamine, we were told       F

     by Dr Laidler that a “packet” of ketamine with an average of 200
G                                                                                   G
     milligrammes could provide more than one dose, as a typical dose was
H                                                                                   H
     between 60 to 250 milligrammes. Professor K Lee described recreational

I
     doses as ranging from 10 to 250 milligrammes when taken nasally, 40 to
                                                                                    I
     450 milligrammes when consumed orally and 10 to 100 milligrammes
J                                                                                   J
     when used intramuscularly. When smoked, with users insufflating from

K    special devices, the usual dose is between 30 and 50 milligrammes.
                                                                                    K


L    93.         We can accept, that a single dose contained in a tablet of         L

     ecstasy has an average narcotic content of about 114 milligrammes, the
M                                                                                   M
     figure taken by this court in Lee Tak-kwan.        On Professor K Lee’s
N    evidence, ecstasy tablets regularly contain between 80 and 150                 N

     milligrammes. Accordingly, 1 gramme of ecstasy provides approximately
O                                                                                   O
     8.5 doses and we shall deal with ketamine on the same basis. As a rough
P    guide, therefore, the weight of the narcotic content or active ingredient in   P

     both ketamine and ecstasy can be regarded as about the same.
Q                                                                                   Q


R    94.         Under the present ecstasy guidelines in Lee Tak-kwan, we note      R

     that the three tariff bands of up to 25 grammes, up to 400 grammes and up
S                                                                                   S
     to 800 grammes relate, on the basis of about 8.5 doses to a single gramme,
T    to an equivalent of 212, 3,400 and 6,800 doses, respectively.           The    T

     sentencing bands for these amounts are 2 years, 4 years and 8 years’
U                                                                                   U
     imprisonment, respectively. Mr Zervos commented that these bands failed
V                                                                                   V
由此


A                                           - 37 -                                   A


B                                                                                    B
     to differentiate proportionately between the various quantities of ecstasy
C    having regard to the corresponding terms of imprisonment. By way of             C
     example, there is a 16-fold difference between the weight of the ecstasy in
D                                                                                    D
     the upper limits of the first and second bands yet the difference in sentence
E    is only 2 years. Mr Zervos suggested that there should be a sequence of         E
     penalties related to a graduated rising scale until the quantity was so large
F                                                                                    F
     that a mathematical progression was inappropriate and it should be left to
G    the discretion of the sentencer. We accept his criticism and we propose to      G

     set out new guidelines altogether.
H                                                                                    H


I
     95.          We indicate the following tariffs for sentence after trial for
                                                                                     I
     traffickers in ketamine and ecstasy:
J                                                                                    J

           (1)    up to 1 gramme – within the sentencer’s discretion;
K                                                                                    K
           (2)    over 1 gramme to 10 grammes – 2 to 4 years’
L                                                                                    L
                  imprisonment;
M          (3)    10 to 50 grammes – 4 to 6 years’ imprisonment;                     M


N          (4)    50 to 300 grammes – 6 to 9 years’ imprisonment;                    N

           (5)    300 to 600 grammes – 9 to 12 years’ imprisonment;
O                                                                                    O
           (6)    600 to 1000 grammes – 12 to 14 years’ imprisonment; and
P                                                                                    P
           (7)    over 1000 grammes – 14 years upwards.
Q                                                                                    Q

     96.          Finally, there are two other matters to which we must refer in
R                                                                                    R
     regard to these guidelines.
S                                                                                    S

     97.          First, we do not envisage the trafficker in ketamine or ecstasy
T                                                                                    T
     who visits a discotheque or similar premises being given a non-custodial
U    sentence under any circumstances save where these are exceptional in the        U


V                                                                                    V
由此


A                                           - 38 -                                       A


B                                                                                        B
     extreme. The guidelines are intended to deter traffickers who frequent
C    such premises where young people are likely to be.                   In very many   C
     instances, it is likely to be the small-time pushers of drugs, often with a
D                                                                                        D
     mere handful of tablets to supply to others, who shoulder the responsibility
E    for taking young people off the rails and starting them on a path of self-          E
     destruction through drugs.
F                                                                                        F

     98.          The second matter is closely related to the first. We should
G                                                                                        G
     perhaps repeat what was said in HKSAR v Wong Suet-hau and Anor [2002]
H                                                                                        H
     1 HKLRD 69 wherein this court dealt with the approach to be taken to

I
     “social trafficking”. The Court of Appeal in that case said:
                                                                                         I
                       “51.      In our opinion, while some of the ‘social’ or ‘non-
J                commercial’ trafficking cases involving small quantities of drugs       J
                 can properly be regarded, when all the circumstances are
                 examined, as falling into the lower end of the sentencing scale
K                                                                                        K
                 applicable to the dangerous drug in question, we are firmly of the
                 view that this factor should not, in itself, provide a general basis
L                for imposing a lighter sentence, than would have been imposed           L
                 for commercial trafficking. The ‘friend’ who starts off or
                 perpetuates another’s abuse of drugs, is as dangerous to the
M                community as the commercial supplier of small quantities, who           M
                 will generally traffic in drugs with those already addicted.”
N                                                                                        N
     99.          In the unlikely event that an habitual abuser of ketamine or
O                                                                                        O
     ecstasy or both, with no previous convictions for trafficking in dangerous
P    drugs, is caught in the act of supplying a close acquaintance such as a             P

     boyfriend or girlfriend who is also a regular consumer of drugs, we can
Q                                                                                        Q
     envisage that this might well give rise to circumstances where a non-
R    custodial sentence would be justified. However, care must be taken in               R

     regard to mitigation of this kind that regular traffickers, in order to avoid
S                                                                                        S
     what in practice will be an inevitable sentence of imprisonment, do not
T    succeed in availing themselves of mitigation along such lines.                      T


U                                                                                        U


V                                                                                        V
由此


A                                          - 39 -                                          A


B                                                                                          B
     100.        The new guidelines do not have retrospective effect so that the
C    tariff bands for trafficking in ketamine and ecstasy will only apply to               C
     offences committed after this judgment has been given. It follows, as we
D                                                                                          D
     have indicated earlier, that Hii and Wong are not affected by them.
E                                                                                          E
     101.        In CAAR 7/2006, the application for a review of sentence
F    succeeds to the extent that the sentencing guidelines we have outlined for            F

     trafficking in ketamine will henceforth result in the imposition of heavier
G                                                                                          G
     terms of imprisonment for such offences. However, pursuant to section
H                                                                                          H
     81B of the Criminal Procedure Ordinance, whilst we allow this application

I
     we make no alteration to Hii’s sentence.
                                                                                           I


J    Wong’s sentence application in CACC 126/2007                                          J


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     102.        We are grateful to Mr Cheung Kam-chuen for the able

L    assistance he gave us concerning Wong’s sentence application.                   His   L
     principal submission was that the Deputy District Judge had failed to give
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     effect to the judgment in HKSAR v Yip Wai-yin and Anor [2004] 3 HKC
N    367 in that the sentence of 3½ years’ imprisonment which he had adopted               N
     for the 5.35 grammes of ice was increased by a further 2 years to take into
O                                                                                          O
     account what he had rightly described as the “significant” quantity (85.11
P    grammes) of ecstasy. Mr Cheung argued that this increase of sentence was              P
     “closer to a separate sentence than an upward adjustment”.
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     103.        Ma CJHC, in HKSAR v Yip Wai-yin and Anor, said:
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                 “8. In terms of the starting point for sentencing, the judge
S                approached the matter by adding together what would be the                S
                 appropriate individual sentences for the quantities of Ice and
                 Ketamine as if there had been separate charges (being 10 years
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                 and three years using the established tariffs) and then adding
                 another year on account of the greater potency of the combined
U                product. In other words, the judge adopted an individual approach         U


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     in sentencing, looking at each drug and then sentencing on the
     basis of the individual quantities to arrive at an overall sentence.
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     9.     In a number of decisions of this court, various approaches
     have been adopted or approved in relation to the sentencing of
D    cocktail drugs or where a number of different quantities of drugs      D
     is the subject of a charge of trafficking in dangerous drugs:
E
           (1)   The ‘individual’ approach as outlined above of             E
                 looking at each component of the cocktail or the
F                batch, and then sentencing by adding up the different      F
                 sentences relevant to each individual drug: see for
                 example HKSAR v Lai Kwok Hung (CACC 564/2002,
G                23 April 2003, unreported) (CA).                           G

           (2)   The ‘combined’ approach whereby the court looks at
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                 the overall quantity of drugs rather than individual
                 parcels. In taking a global view, the court is then able
I                to assess, realistically and fairly, the appropriate       I
                 sentence. For example, sentencing on the basis of
                 individual drugs may lead to absurdity where the
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                 addition of the sentences for each individual drug
                 leads to a higher overall sentence than if the whole
K                quantity of the cocktail or batch merely contained the     K
                 more or most serious of the various drugs: see here
                 HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42; HKSAR
L                v Wong Kam Wo [2001] 2 HKC 647, [2001] 2                   L
                 HKLRD 290.
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           (3)   The methodology of this ‘combined’ approach is first
                 to calculate the applicable sentence for the more or
N                most serious drug, and then adjust the sentence            N
                 upwards to take into account significant quantities of
                 the other (less serious) drugs - see HKSAR v Cheung
O                Kwok Leung Lowence (CACC 539/2002, 22 April                O
                 2003, unreported) (CA). By ‘the more or most serious
P                drug’, we are not referring to quantities but to           P
                 seriousness in terms of the potency of the drug. Thus,
                 for example, where significant quantities of Ice and
Q                Ketamine are found in a cocktail, the more serious         Q
                 drug is taken to be Ice even [if] in terms of quantity,
R
                 it may be less than the Ketamine.
                                                                            R
           (4)   We have so far used the term ‘significant’ quantities
S                in a cocktail. This is in contrast to insignificant        S
                 amounts, in which case the court may choose to
                 ignore such small quantities for the purpose of
T                sentencing.                                                T


U
     10. Whichever approach is appropriate will depend on the
                                                                            U
     circumstances of the case, but we are of the view that the

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                    combined approach will often be the correct one to enable the
                    judge to sentence fairly, realistically and in a commonsense
C                   manner.” (Emphasis added)                                        C


D    In that case, no real criticism of the sentencing judge’s approach was made     D

     although the sentence was reduced to reflect a greater discount in regard to
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     one aspect of the mitigation.
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     104.           In the present case, whilst acknowledging that the judge had
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     the principles in Yip Wai-yin’s case in mind, Mr Cheung suggested that
H    although 2 years for trafficking in 85.11 grammes of ecstasy fell within the    H

     proper range suggested in the sentencing guidelines in HKSAR v Lee Tak-
I                                                                                    I
     kwan [1998] 2 HKC 371 at 372, namely the 2 to 4-year tariff band for 25 to
J    400 grammes of ecstasy, by the addition of a full 2 years to the sentence,      J

     the judge had offended the very principles he had expressed himself as
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     having adopted. Furthermore, it should not be overlooked that this was a
L    ‘cocktail’, or mixture, of ice and ecstasy which was being trafficked as a      L

     single drug.
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N    105.           We agree with Mr Cheung’s submission. If Wong had faced          N
     an allegation of trafficking in which the charge related to 85.11 grammes of
O                                                                                    O
     ecstasy, he would, in all probability, have received under the Lee Tak-kwan
P    guidelines a sentence of about 2 years or, at any rate, no more than 28         P
     months’ imprisonment. It has to be remembered that at the lower end of
Q                                                                                    Q
     the sentencing range for drug traffickers, as was the case here under the
R    Lee Tak-kwan guidelines, there is a large measure of deterrence built into      R
     the tariff.     Thus, a relatively small-scale trafficker will receive a
S                                                                                    S
     comparatively heavy sentence when the weight of the drugs in which he
T    has trafficked is set alongside the sentence of the trafficker in far greater   T

     amounts. In these circumstances, we consider that Mr Cheung’s argument
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     that the additional sentence of 2 years’ imprisonment was more in the
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     nature of a separate sentence than an upward adjustment was, in principle,
C    a sound one. In our view, a meaningful adjustment to take into account the     C
     quantity of ecstasy being trafficked by Wong would have been 18 months.
D                                                                                   D

     106.        There was a further dimension to this application. This related
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     to Wong’s mental condition which emerged from a ‘Medical Information’
F    sheet which was before the judge. A doctor at the North District Hospital      F

     had recorded that Wong was “fit for independent and group living” and
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     suffered from mild mental retardation.
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     107.        The judge did not adjourn sentencing for a fuller report to be
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     obtained about Wong’s mental condition. He stated that the offence was a
J    serious one involving over 1,500 tablets containing ice and ecstasy which      J

     Wong had deliberately imported from the Mainland. Furthermore, Wong
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     was no stranger to the courts. He had four previous convictions, including
L    one for the possession of dangerous drugs. His last conviction, on 3 March     L

     2005, related to offences of deception and the use of a false instrument for
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     which he received concurrent 4-month suspended sentences.
N                                                                                   N
     108.        We invited further written submissions about Wong’s medical
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     history which were received in November 2007 and we have taken these
P    into account. Mr Cheung made the point that Wong’s mental condition            P
     may have reduced his responsibility for taking part in the offence in the
Q                                                                                   Q
     sense that he was perhaps more susceptible to persuasion by the perpetrator
R    of the crime and could generally be more easily exploited. As such, if his     R

     mental condition had played a part in the commission of the offence, the
S                                                                                   S
     judge could properly have given a discount to the sentence he imposed
T    (see: HKSAR v Chiu Peng, Richard, CACC 287/2001, para. 16).                    T


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     109.         We are satisfied, however, that a prison sentence was
C    inevitable and that the judge had Wong’s mental condition well in mind.        C
     The judge specifically referred to this aspect when stating that he would
D                                                                                   D
     endorse the documentation which would accompany Wong to prison that
E    “all medical attention” should be given to him for his “mild schizophrenia     E
     as disclosed”.
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     110.         Furthermore, the judge would have been fully entitled to have
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     made consecutive prison orders as to the whole or a part of the suspended
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     sentences to which Wong was subject. That the judge chose not to make

I
     such an order might, in normal circumstances, be regarded as generous but,
                                                                                    I
     as he went on to say, he took not only totality into account but also Wong’s
J
     “long-term mild schizophrenia”.                                                J


K                                                                                   K
     111.         For the reasons we have given (at para. 105 above) on the
L    matter of principle, we shall allow Wong’s application in regard to            L

     sentence which was, of course, governed by the guidelines in Lee Tak-
M                                                                                   M
     kwan. Treating the hearing as the appeal, we allow the appeal.          His
N    sentence is reduced from 5½ years to 5 years’ imprisonment. There will be      N

     no alteration of the order made by the judge in regard to the suspended
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     sentences which were activated and ordered to run concurrently.
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T                                                                                   T
         (Geoffrey Ma)            (M. Stuart-Moore)           (Frank Stock)
     Chief Judge, High Court       Vice-President           Justice of Appeal
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B                                                                             B
     Mr Kevin P Zervos, SC, Ag DDPP and Ms Winsome Chan, SGC, of the
      Department of Justice, for the Applicant in CAAR 7/2006 and for the
C     Respondent in CACC 126/2007.                                            C


D    Mr Laurence J. Poots, instructed by Messrs Au Yeung, Cheng, Ho & Tin,    D
      assigned by Director of Legal Aid, for the Respondent in CAAR 7/2006.
E                                                                             E
     Mr Cheung Kam-chuen, instructed by Bar Free Legal Service Scheme,
      Hong Kong Bar Association, for the Applicant in CACC 126/2007 (re:
F                                                                             F
      sentence).

G    The Applicant in CACC 126/2007, in person (re: conviction).              G


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