上訴庭改指引 判刑大加 2008年6月7日
【明報專訊】律政司早前向上訴庭指出，青年濫用精神科藥物氯胺酮(俗稱K仔)及「搖頭丸」的情嚴重，要求上訴庭就兩種毒品訂下新判刑指引。上訴庭昨頒下判辭，同意K仔已成為年輕人「頭號」濫用藥物，亦有醫學證據顯示濫用上述兩種毒品會令人上癮及損害健康，故訂下新的量刑指引，大幅加重販運兩毒品的判刑，只要販運1克至10克便可判囚2至4年，相比舊指引販運25克至 400克才判刑2至4年大大提高(詳見表)。
上訴庭副庭長司徒冕更在判辭中重申，不能想像經常出入的士高販運K仔或搖頭丸的毒販可以不用入獄。他指新指引是要阻嚇經常出入這些場所，並將毒品售予年輕 人的毒販，因為往往是他們先將小量K仔或搖頭丸交到年輕人手中，繼而將他們帶上自眦之路；同樣地即使友儕間將K仔或搖頭丸介紹給他人服用，不涉金錢交易， 下場亦只會是入獄。
K仔成主要毒品
據了解，今次向上訴庭尋求新的量刑指引，是由律政司黃仁龍提出。律政司發言人對上訴庭的裁決表示歡迎，又指上訴庭認為吸食K仔和搖頭丸的情日趨普遍，並 會導致吸食者上癮，危害健康，裁決發出了清晰的信息，糾正很多人對K仔、E仔等毒品的誤解，很多人以為跟傳統毒品如海洛英比較，這些毒品屬「軟性」，不會 上癮，且對健康無害。
上訴庭在判辭中指出，根據律政司一方呈堂的數據顯示，21歲以下的吸毒者中，濫用精神科藥物的人士，由1997年的44.4％，增至2006年的 98.9％，即近乎所有21歲以下的吸毒者，均濫用精神科藥物。去年上半年的數據更顯示，21歲以下吸毒者中，有79.7％濫用K仔，比2006年同期上 升了12.9％，顯示K仔已成為年輕吸毒者中主要的濫用藥物。
上訴庭亦關注到年輕人濫用上述兩種精神科藥物數字急升，是由於他們對兩種藥物所帶來的影響有誤解，青少年一般認為K仔及搖頭丸有別於海洛英等毒品，不會對身體造成傷害。
3年內致19人死
但在呈交上訴庭的多份專家報告顯示，長期濫用此兩藥者會出現「抗藥性」，這只會令使用者不斷增加服用的劑量。另一方面，亦有研究發現濫用K仔者無論身體機 能或是心理狀態，均會對K仔上癮。在2004至2007年期間，更有19人因濫用K仔或搖頭丸，或是「混合兩者」而死亡。上訴庭法官指出，現時對販運K仔 沒有量刑指引，即使根據現行販運搖頭丸的指引，亦已是近20年前訂下，故接納律政司提出的證據，訂下新的量刑指引。
【案件編號﹕CAAR7/06 & CACC126/07】
社工﹕有助阻嚇青年濫藥 2008年6月7日
【明報專訊】氯胺酮(俗稱K仔)近年成為青年人濫用軟性毒品的「新寵」，有社工指出，因K仔方便攜帶食用，不法者更愛招攬濫藥青年作「小拆家」，把小量毒品售予同學朋友。上訴庭日前提高量刑指引，社工認為有助阻嚇這些青年。
黃仁龍率領毒品組 下半年展調查
由律政司長黃仁龍領導的青少年毒品問題專責小組本月會開展全港青少年禁毒運動；該小組亦會在下半年展開學生服用藥物情調查，調查涵蓋範圍包括全日制的小四至專上院校學生，未來展開的調查也會加密至每3年一次。
香港青年會荃灣及葵青外展社會工作隊單位主任陳文浩指出，今次提高藏有K仔和搖頭丸的量刑指引，向濫藥人士起了警惕作用。尤其近年最常濫用的K仔，有不少 青年濫藥的同時成為「小拆家」，會攜帶小量毒品售予朋友和同學，這種銷售模式近年愈趨普遍，滲入年輕人網絡之中，因此上訴庭同時提高分量較少的K仔及搖頭 丸案件的刑罰，起警惕作用。
上訴庭的判辭亦提及非監禁式的刑罰，如警司警誡、社會服務令和感化令等，並不適用於涉及毒品的案件。陳文浩則認為，若犯事者年紀太輕，部分13、14歲的青年人並非存心藏毒，望法庭能以輔導代替監禁。
年紀太輕者 盼輔導代監禁
陳文浩續指出，青年人近年較普遍北上深圳濫藥；由於香港的的士高已愈來愈少，上樓的私人派對亦成為濫藥者的溫脇。至於年紀較輕的濫藥者，則會在屋鸷暗角或商場等地點濫藥。「香港Disco已經減少，沒有音樂助興，青年人不會食Fing頭丸，而改服K仔代替。」
K仔易上癮 服大量可致命 2008年6月7日
【明報專訊】氯胺酮(俗稱K仔)是近年青少年最常濫用的藥物，其本身是一種麻醉劑，服用大量可導致昏迷不醒，隨時致命。有醫學報告指出，服用K仔容易上 癮，後遺症不少，短期服食可導致神志不清、產生幻覺、妄想及記憶力衰退；長期服食則會令腦部細胞受損。由於氯胺酮有麻醉作用，長期服用會影響身體對外來刺 激的反應，嚴重的會對內部器官、心臟，呼吸、神經及免疫系統等均有壞影響。
搖頭丸可致脫水抽搐
至於濫服搖頭丸後果亦十分嚴重，濫用者會出現脫水、筋疲力盡、肌肉衰弱、 身體過熱、抽搐等情。上訴庭亦引述醫學報告指出，搖頭丸及K仔兩者均會令人上癮，其中K仔上癮程度，比起大麻、狂喜等藥物更甚。
K仔成主要毒品
據了解，今次向上訴庭尋求新的量刑指引，是由律政司黃仁龍提出。律政司發言人對上訴庭的裁決表示歡迎，又指上訴庭認為吸食K仔和搖頭丸的情日趨普遍，並 會導致吸食者上癮，危害健康，裁決發出了清晰的信息，糾正很多人對K仔、E仔等毒品的誤解，很多人以為跟傳統毒品如海洛英比較，這些毒品屬「軟性」，不會 上癮，且對健康無害。
上訴庭在判辭中指出，根據律政司一方呈堂的數據顯示，21歲以下的吸毒者中，濫用精神科藥物的人士，由1997年的44.4％，增至2006年的 98.9％，即近乎所有21歲以下的吸毒者，均濫用精神科藥物。去年上半年的數據更顯示，21歲以下吸毒者中，有79.7％濫用K仔，比2006年同期上 升了12.9％，顯示K仔已成為年輕吸毒者中主要的濫用藥物。
上訴庭亦關注到年輕人濫用上述兩種精神科藥物數字急升，是由於他們對兩種藥物所帶來的影響有誤解，青少年一般認為K仔及搖頭丸有別於海洛英等毒品，不會對身體造成傷害。
3年內致19人死
但在呈交上訴庭的多份專家報告顯示，長期濫用此兩藥者會出現「抗藥性」，這只會令使用者不斷增加服用的劑量。另一方面，亦有研究發現濫用K仔者無論身體機 能或是心理狀態，均會對K仔上癮。在2004至2007年期間，更有19人因濫用K仔或搖頭丸，或是「混合兩者」而死亡。上訴庭法官指出，現時對販運K仔 沒有量刑指引，即使根據現行販運搖頭丸的指引，亦已是近20年前訂下，故接納律政司提出的證據，訂下新的量刑指引。
【案件編號﹕CAAR7/06 & CACC126/07】
社工﹕有助阻嚇青年濫藥 2008年6月7日
【明報專訊】氯胺酮(俗稱K仔)近年成為青年人濫用軟性毒品的「新寵」，有社工指出，因K仔方便攜帶食用，不法者更愛招攬濫藥青年作「小拆家」，把小量毒品售予同學朋友。上訴庭日前提高量刑指引，社工認為有助阻嚇這些青年。
黃仁龍率領毒品組 下半年展調查
由律政司長黃仁龍領導的青少年毒品問題專責小組本月會開展全港青少年禁毒運動；該小組亦會在下半年展開學生服用藥物情調查，調查涵蓋範圍包括全日制的小四至專上院校學生，未來展開的調查也會加密至每3年一次。
香港青年會荃灣及葵青外展社會工作隊單位主任陳文浩指出，今次提高藏有K仔和搖頭丸的量刑指引，向濫藥人士起了警惕作用。尤其近年最常濫用的K仔，有不少 青年濫藥的同時成為「小拆家」，會攜帶小量毒品售予朋友和同學，這種銷售模式近年愈趨普遍，滲入年輕人網絡之中，因此上訴庭同時提高分量較少的K仔及搖頭 丸案件的刑罰，起警惕作用。
上訴庭的判辭亦提及非監禁式的刑罰，如警司警誡、社會服務令和感化令等，並不適用於涉及毒品的案件。陳文浩則認為，若犯事者年紀太輕，部分13、14歲的青年人並非存心藏毒，望法庭能以輔導代替監禁。
年紀太輕者 盼輔導代監禁
陳文浩續指出，青年人近年較普遍北上深圳濫藥；由於香港的的士高已愈來愈少，上樓的私人派對亦成為濫藥者的溫脇。至於年紀較輕的濫藥者，則會在屋鸷暗角或商場等地點濫藥。「香港Disco已經減少，沒有音樂助興，青年人不會食Fing頭丸，而改服K仔代替。」
K仔易上癮 服大量可致命 2008年6月7日
【明報專訊】氯胺酮(俗稱K仔)是近年青少年最常濫用的藥物，其本身是一種麻醉劑，服用大量可導致昏迷不醒，隨時致命。有醫學報告指出，服用K仔容易上 癮，後遺症不少，短期服食可導致神志不清、產生幻覺、妄想及記憶力衰退；長期服食則會令腦部細胞受損。由於氯胺酮有麻醉作用，長期服用會影響身體對外來刺 激的反應，嚴重的會對內部器官、心臟，呼吸、神經及免疫系統等均有壞影響。
搖頭丸可致脫水抽搐
至於濫服搖頭丸後果亦十分嚴重，濫用者會出現脫水、筋疲力盡、肌肉衰弱、 身體過熱、抽搐等情。上訴庭亦引述醫學報告指出，搖頭丸及K仔兩者均會令人上癮，其中K仔上癮程度，比起大麻、狂喜等藥物更甚。
CAAR 7/2006 & CACC 126/2007
CAAR 7/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
APPLICATION FOR REVIEW NO. 7 OF 2006
(ON APPEAL FROM HCCC NO. 121 of 2005)
____________________
BETWEEN
| SECRETARY FOR JUSTICE | Applicant | |
| and | ||
| HII SIEW CHENG (許守城) | Respondent |
____________________
CACC 126/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 126 OF 2007
(ON APPEAL FROM DCCC NO. 969 of 2006)
____________________
BETWEEN
| HKSAR | Respondent | |
| and | ||
| WONG YAT SAN (黃日新) | Applicant |
____________________
Before: Hon Ma CJHC, Stuart-Moore VP and Stock JA
Dates of Hearing: 16 and 17 October 2007
Date of Judgment: 6 June 2008
J U D G M E N T
Stuart-Moore, VP (giving the judgment of the Court):
Introduction
1. Hii Siew Cheng (Hii), the respondent in CAAR 7/2006, appeared in the High Court on 12 June 2006 to be sentenced for trafficking in ketamine. On that occasion, in the absence of specific guidelines for sentencing ketamine traffickers, Deputy Judge Barnes (as she then was) followed the practice which had not infrequently been adopted by other judges of using the sentencing guidelines inHKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 378 for trafficking in methylenedioxymethamphetamine (or MDMA) to which we shall refer throughout as ‘ecstasy’, the name by which that drug is commonly known. Prior to this, the judge had heard evidence about ketamine and ecstasy from a number of experts in the course of which comparisons as to the adverse effects of each were inevitably drawn.
2. The judge concluded that ecstasy and ketamine were addictive “in the sense that they both have psychological dependence potential”. So far as neurotoxicity was concerned, the judge accepted recent research that ecstasy could have harmful effects on the brain whereas she felt that no such “reliable conclusion” could be drawn in regard to ketamine. The judge also made the point, in regard to the principal aspects of the evidence she had heard, that the courts do not look at “the prevalence of use, or its dependence potential, its toxicity or its manner/pattern of abuse” in isolation when assessing the harm posed to society by the abuse of a particular drug because it was the combined effect of these and other factors which had to be taken into account.
3. In the absence of specific guidelines for ketamine and when justifying her decision to adopt the sentencing guidelines for ecstasy in Hii’s case, the judge referred to a passage in Seabrook v HKSAR [1999] 2 HKCFAR 184 at 192H which reads:
“If a new type of drug appears on the scene, sentencing judges will tend to sentence in respect of them by reference to existing guidelines for some other type of drug, making such adjustments as seem appropriate. Over a period, more and more becomes known about the new drug and eventually, it receives a set of guidelines of its own.”
4. Mr Zervos SC, on behalf of the Secretary for Justice (the applicant), submitted in relation to Hii’s review proceedings that the time had now been reached, in the light of present medical knowledge about ketamine and its prevalence in Hong Kong, for sentencing guidelines to be provided which dealt with ketamine in its own right. He further argued that the ecstasy guidelines in Lee Tak-kwan (above), being applied in many ketamine trafficking cases, were themselves out of date as the Court of Appeal’s observations in that case had now been overtaken by recent medical research into ecstasy. Mr Zervos particularly emphasised the comment of Mortimer V-P when giving the judgment of this court in Lee Tak-kwan (at 377D), that: “Most important ‘ecstasy’ is not addictive. Even psychological dependence is rare.” Mr Zervos submitted that if the judge in Hii’s case had correctly found that ecstasy and ketamine were both addictive in the sense she had described, it was not appropriate for ketamine or ecstasy traffickers to be sentenced on the existing ecstasy guidelines when these guidelines related to what was understood at that time to be a non-addictive drug.
5. In these circumstances, Mr Zervos argued that just as sentencing guidelines were needed for ketamine, so also the guidelines for ecstasy needed to be updated so that they were kept in line with modern medical knowledge. It is for this reason, with an abundance of expert evidence available to us about ecstasy as well as ketamine, that arrangements were made for the consolidation of a case concerned with ecstasy so that it could be used as a means of revisiting, if necessary, the ecstasy guidelines.
6. For this purpose, CACC 126/2007 was consolidated with the review hearing. This took a considerable time to achieve but the applicant in that case, Wong Yat-san (Wong), and Hii in the review proceedings, were each informed well in advance that they would not be adversely affected if the court decided to make any upward revision of the existing sentencing guidelines for trafficking in ecstasy or to issue guidelines for ketamine traffickers.
Background to review of sentence in CAAR 7/2006
7. On 20 May 2005, Hii pleaded guilty in the Magistrates’ Court to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars of the offence were that on 2 February 2005 at the Customs Arrival Hall, Hong Kong International Airport, he unlawfully trafficked in 1.97 kilogrammes of a powder containing 1.64 kilogrammes of ketamine. On 12 June 2006, following a Newton hearing which had taken place in January and May 2006 at the request of the prosecution, when prosecution and defence expert witnesses testified, the judge sentenced Hii to 7 years and 4 months’ imprisonment.
8. Ma CJHC granted leave to the applicant on 4 July 2006 to apply to this court under section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of the sentence imposed on Hii.
9. All that needs to be said about the factual background in Hii’s case is that when Hii was intercepted at the airport, his travel bag was found to contain three separate bags which appeared to contain food items. However, an ion-scan test on the contents gave a positive reading for the presence of ketamine.
10. The ketamine, the subject of the charge, had a street value of $679,650. Hii, a twenty-eight-year-old Malaysian at the date of his conviction, later admitted that he had been promised a reward for taking the items from Malaysia to someone in Hong Kong, an offer which he thought it would be “silly” of him not to accept.
11. The judge received evidence from four expert witnesses called by the prosecution and two who were called by the defence but, although satisfied that there was evidence of “tolerance and psychological dependence” arising from the abuse of both ketamine and ecstasy, she nevertheless adopted a starting point after trial of 11 years’ imprisonment, following the existing ecstasy guidelines inLee Tak-kwan (above). This was reduced by a third to give effect to the respondent’s timely guilty plea. Furthermore, anticipating that the prosecution would wish to take the matter further, the judge correctly observed (para. 156 of the Reasons for Sentence):
“Whether the Court of Appeal will be asked to reconsider the guidelines for ecstasy trafficking is not a matter for this court.”
12. Mr Zervos submitted that, by following the guidelines laid down in Lee Tak-kwan where expert opinion had described ecstasy as being non-addictive, the judge had erred in principle by passing a sentence that failed to take into account the addictive nature of ketamine. This, in turn, it was argued, had led to a sentence which was manifestly inadequate.
Background to application for leave in CACC 126/2007
13. The evidence given by the experts about the effects of ketamine in CAAR 7/2006 almost inevitably overlapped with evidence about ecstasy, particularly in the context of a case where part of Mr Zervos’ argument was that the ecstasy guidelines should no longer be regarded as adequate for trafficking in either ecstasy or ketamine. With this in mind, as we have indicated, the consolidation of CACC 126/2007 with CAAR 7/2006 was arranged in order that the sentencing guidelines for trafficking in ecstasy could also be considered.
14. The factual background in CACC 126/2007 is extremely brief. Wong was on board a coach bound from the Mainland to Hong Kong. When it reached the Lok Ma Chau Control Point at 7.07 am on 30 June 2006, the passengers were asked to alight for the normal immigration procedures to be carried out, and all did so. A few minutes later, a black waist-bag was found lying on a row of seats at the back of the coach.
15. As the passengers who had disembarked would not necessarily be expected to resume their journey on the same coach once they had passed through immigration, the bag was handed to a customs officer and an announcement was made over the public address system that a bag had been found. However, when the bag had still not been claimed by 1.05 pm, it was opened and found to contain the drugs specified in the trafficking charge, namely, 1,510 blue tablets containing a total of 5.35 grammes of methamphetamine (‘ice’) mixed with 85.11 grammes of ecstasy. The street value of these drugs was $125,300.
16. The presence of a number of other items in the bag which belonged to Wong, together with the fact that it was established that Wong had crossed the border at the material time, enabled Deputy District Judge Mierczak to draw an inference of guilt following a trial in which Wong had chosen not to testify.
17. Wong was convicted on 29 March 2007 and sentenced on the same day to 5½ years’ imprisonment. Although Wong was subject also to concurrent suspended sentences of 4 months’ imprisonment which the judge activated, these were ordered to run concurrently with the sentence for trafficking.
18. The applicant sought leave to appeal against conviction and sentence, and it is convenient to deal straightaway with the first of these applications.
19. So far as conviction is concerned, Wong’s homemade ground of appeal merely referred to his conviction as being “unjustified” and he added nothing in these proceedings which cast any doubt on the integrity of the conviction. The inference of guilt which the judge had drawn was based upon overwhelming circumstantial evidence. Accordingly, this application is dismissed.
20. We shall deal later with Wong’s application in regard to sentence having first considered whether new guidelines for sentencing traffickers of ecstasy should be formulated.
The 1998 sentencing guidelines for trafficking in ecstasy
21. The sentencing guidelines in HKSAR v Lee Tak-kwan (above) for trafficking in ecstasy on which the judge in the present review of sentence had relied when sentencing Hii for trafficking in ketamine, were given by this court almost a decade ago, on 26 May 1998. In that case, Mortimer V-P stated (at page 376) that the guidelines would be formulated from “first principles”, having regard to the “nature of the drug, its effects and the threat it poses to life and society compared with some of the other common drugs of abuse”. Ecstasy was described as a psychotropic drug normally associated with “marathon ‘rave’ dance sessions”. The normal dose was said to be “one tablet with an average narcotic content of 114 milligrammes”.
22. The judgment dealt (at page 377) with the reported effects of ecstasy, making the point that the “undesirable effects appear to increase with successive doses” and that in isolated cases there had been “idiosyncratic effects leading to serious medical complications and, in rare cases, death … almost entirely associated with either prolonged exertion during ‘rave’ dancing or the additional effect of other drugs.” As to this aspect, before turning to the scale of the abuse derived from Hong Kong statistics at that time, Mortimer V-P said:
“… These deaths are not associated with overdosing as the drug is not toxic. Professor Critchley’s report refers to a reported overdose of 42 tablets accompanied by no symptoms other than a ‘hangover’ with tachycardia and hypertension.
Most important ‘ecstasy’ is not addictive. Even psychological dependence is rare.” (Emphasis added)
23. In formulating the ecstasy sentencing guidelines, the fact, as then understood, that this drug was neither addictive nor toxic was obviously regarded as an important factor which influenced the court in assessing appropriate levels of sentence. Other important considerations were the statistics showing an increase in its abuse, its ready availability and wide abuse in the West and the fact that the adverse consequences leading to isolated deaths were “idiosyncratic” which might occur when any drug is taken. The judgment in Lee Tak-kwan (at page 378) continued:
“Balancing these factors we consider that the appropriate guidelines to adopt for sentencing after trial having regard to narcotic content are as follows:
Up to 25 g - entirely within the discretion of the sentencer
Over 25 to 400 g - two years to four years
400 to 800 g - four years to eight years
Over 800 g - eight years and upwards”
The present issues
24. We shall turn shortly to the evidence we have been given about the harmful effects of ecstasy, together with recent statistics about its prevalence when considering whether the present ecstasy guidelines are adequate. Similarly, we shall look at what is known about ketamine abuse in Hong Kong in order to determine not only whether the guidelines for ecstasy in Lee Tak-kwan provide an appropriate level of sentence for traffickers in ketamine but also whether or not there are grounds for the formulation of separate sentencing guidelines for each of these drugs. Ketamine, like ecstasy, is described as a ‘psychotropic’ drug and although, pharmacologically, the two drugs differ considerably, it is the alarming rise in the popularity of psychotropic drugs in Hong Kong, with ketamine and ecstasy the most popular of them, which is a major factor giving rise to concern in these proceedings.
The expert evidence
25. In making our assessment about the relative harm caused by the abuse of ketamine and ecstasy, we have been greatly assisted by the reports and the transcripts of evidence of five of the expert witnesses who were called to give evidence in the court below, four of whom updated their reports in the light of the latest medical learning and/or relevant statistics. In addition, fresh evidence consisting of further expert material was admitted without objection under the provisions of section 83V of the Criminal Procedure Ordinance, Cap. 221. It was not considered necessary that we should hear any oral testimony from any of the experts.
26. Four of the experts heard by the judge in Hii’s case were called by the prosecution. They were Detective Senior Inspector Paul Lewis (DSI Lewis), Dr Ronald Chen Yuk-lun, Dr Ben Cheung Kin-leung and Dr Karen Laidler. Called on behalf of the defence was Professor Lee Tak-shing. We shall, in due course, deal with various aspects of the evidence they have provided, making reference to other expert witness reports where these significantly contribute to the evidence of the experts who were called in the court below. This being said, clearly our main focus of attention in each of the cases now before us has been upon the prevalence of these drugs of abuse together with the harmful effects to which they give rise. Having regard to the considerable overlap in the evidence concerning these two drugs, when dealing with their prevalence it is convenient to deal with them together.
Ketamine and ecstasy statistics
27. Evidence was put before us from several quarters that ketamine is presently the most popular drug of abuse in Hong Kong for those who are under twenty-one although, putting age aside, heroin remains the most widely abused drug in terms of the overall number of drug abusers.
28. DSI Lewis, attached to the Intelligence Division of the Narcotics Bureau, presented statistical data, gathered by law enforcement agencies and the Government Laboratory, to illustrate the prevalence of ketamine when compared to other dangerous drugs. We shall first deal with the statistics he has provided.
29. In 2001, the amount of ketamine seized was 81.5 kilogrammes. In 2002, the figure stood at 89.9 kilogrammes. After dropping to 51 kilogrammes in 2003 and to 46.4 kilogrammes in 2004, the figure rose to just over 296 kilogrammes in 2005. Then, in 2006, a steep rise to 1,006.08 kilogrammes was recorded. In the first six months of 2007, the figure recorded was 35.69 kilogrammes.
30. DSI Lewis helpfully set the figures for ketamine seizures alongside the seizures of ecstasy and other drugs, namely, heroin, cocaine, cannabis and methamphetamine (‘ice’) between the year 2001 and June 2007 (with an asterisk against the 2007 figures to denote that these were provisional). Much of the ecstasy seized was in ‘tablet’ form as to which we note in passing that, on the available evidence, there is no reason to depart from what was said in Lee Tak-kwan that “the normal dose [of ecstasy] is one tablet with an average narcotic content of 114 milligrammes”.
31. DSI Lewis produced a schedule to illustrate the figures, as follows: -
1. Seizures
Ketamine Ecstasy Heroin Cocaine Cannabis Metham-
phetamine2001 81.50 kg 170,243 tab 156.40 kg 29.70 kg 2,104.60 kg 63.10 kg 2002 89.90 kg 48,840 tab 105.59 kg 8.30 kg 666.28 kg 71.56 kg 2003 51.02 kg 142,912 tab
+
31.17 kg of
MDMA powder42.16 kg 6.63 kg 248.34 kg 38.64 kg 2004 46.44 kg 283,568 tab 35.74 kg 55.53 kg 182.66 kg 15.67 kg 2005 296.13 kg 47,694 tab 31.87 kg 11.61 kg 431.56 kg 228.11 kg 2006 1,006.08 kg 104,296 tab 52.22 kg 14.88 kg 198.67 kg 6.74 kg 2007 (Jan– June) 35.69 kg 42,759 tab 20.49 kg 29.37 kg 443.58 kg 49.67 kg
32. DSI Lewis also supplied us with a schedule relating to the retail prices of ketamine and ecstasy, amongst other dangerous drugs, as shown below:
5. Retail (Street) Prices
Heroin
(per gramme)Ketamine
(per gramme)Ecstasy
(per tablet)Cocaine
(per gramme)Herbal Cannabis
(per gramme)Metham-phetamine
(per gramme)2001 $374 $325 $178 $1,113 $65 $300 2002 $415 $259 $87 $1,261 $67 $374 2003 $425 $194 $85 $1,152 $58 $374 2004 $359 $151 $79 $951 $71 $353 2005 $354 $258 $83 $745 $57 $350 2006 $440 $173 $83 $791 $69 $389 2007 (Jan– June) $429 $147 $64 $796 $64 $410
It is apparent that the retail prices for both ketamine and ecstasy have fallen considerably since 2001.
33. In another schedule, illustrating that while ketamine is the principal drug of abuse for the young (under twenty-one), heroin remains the most widely abused drug of all amongst the population of Hong Kong as a whole, DSI Lewis set out the numbers of persons arrested by drug type:
2. No. of Persons Arrested by Drug Type:
Ketamine Ecstasy Heroin Cocaine Cannabis Metham-
phetamine2001 2,229 1,142 3,583 42 1,079 595 2002 2,357 646 3,303 43 929 321 2003 1,770 639 3,130 59 809 418 2004 2,213 468 2,438 103 811 390 2005 687 284 2,020 217 639 564 2006 1,612 283 1,713 296 567 509 2007 (Jan– June) 1,416 154 849 272 257 320
34. In a further refinement of this last schedule, DSI Lewis was also able to illustrate the prevalence of ketamine amongst young people by reference to the number of persons who were under twenty-one at the time of their arrest, as follows:
3. No of Persons Under-21 Arrested by Drug Type:
Ketamine Ecstasy Heroin Cocaine Cannabis Metham-
phetamine2001 963 447 183 2 282 105 2002 919 165 121 5 216 41 2003 611 145 83 4 185 56 2004 818 135 74 7 158 41 2005 209 87 44 37 135 62 2006 597 98 45 77 77 49 2007 (Jan– June) 520 51 25 59 40 45
It is noticeable from these figures that ketamine, followed by ecstasy, are the most widely abused drugs amongst the young.
35. The figures given by DSI Lewis show that the number of persons arrested in relation to ketamine offences decreased in 2003 and then further decreased in 2005 after a rise in 2004. DSI Lewis attributed this in part to a change in the method of trafficking from “frequent but small consignments” coming from the Mainland to “multi-kilo consignments coming from South-East Asia”. Furthermore, the large seizures of ketamine by the authorities had led to “disruption to the supply locally”. He suggested also that the reduced number of arrests in relation to ketamine, (from 2,357 in 2002 to 687 in 2005) was unlikely to reflect a diminishing number of ketamine users bearing in mind the increase in volume of ketamine seized in 2006 over the preceding years.
36. Emerging from these schedules, it can readily be appreciated that in 2006 a greater quantity of ketamine than ecstasy was seized by drug enforcement agencies and far more than heroin, cocaine, cannabis and ice. The contrast was less marked in the first six months of 2007, when the provisional figures revealed that 35.69 kilogrammes of ketamine were seized compared to 42,759 tablets of ecstasy and 20.49 kilogrammes of heroin. Furthermore, the fact that the arrests of those under twenty-one for ketamine-related offences numbered 597 in 2006 and 520 in the first half of 2007, compared to 98 and 51 for ecstasy–related offences over the same periods of time, adds powerfully to the proposition made by several of the experts that ketamine is not only targeted at young people but is the most popular drug of abuse in Hong Kong by those under twenty-one and is second only to heroin in overall terms of abuse.
37. The final statistics produced by DSI Lewis which require comment in the present context are those related to fatalities linked to the consumption of ketamine and ecstasy or a combination of both.
38. As other experts were to inform us, ketamine and ecstasy are frequently taken in combination with each other and/or with other drugs including alcohol. It is not surprising to find, therefore, that ketamine is usually associated with fatalities only where it has formed part of a cocktail of drugs. Ecstasy, on the other hand, has led to fatalities by itself.
39. The statistics produced by DSI Lewis for fatalities resulting from the effects of ketamine and/or ecstasy since 1 January 2004, were as follows:
Certified DateDeath Sex Age Cause of Death 9 March 2004 M 24 Adverse effects of morphine, ketamine & alcohol 21 March 2004 F 24 Adverse effects of MDMA (Ecstasy) 17 May 2004 F 26 Adverse effects of morphine & Ecstasy 21 June 2004 F 20 Adverse effects of Ecstasy & ketamine 2 October 2004 F 38 Adverse effects of Ecstasy, methamphetamine & estazolam 30 January 2005 M 31 Overdose of cocaine & Ecstasy 11 February 2005 M 48 Adverse effects of heroin mixture, ketamine & alcohol 10 April 2005 M 39 Overdose of Ecstasy 15 May 2005 (approx.) M 33 Adverse effects of multiple drugs (Ecstasy, Methamphetamine etc) 6 August 2005 F 24 Pneumonia & overdose of ketamine 28 September 2005 F 21 Adverse effects of Ecstasy 2 December 2005 F 15 Adverse effects of Ecstasy 13 January 2006 M 21 Cerebral oedema, raised intracranial pressure and adult respiratory distress syndrome & adverse effects of ketamine 5 April 2006 F 40 Adverse effects of Ecstasy & ketamine 8 April 2006 M 19 Overdose of Ecstasy 8 May 2006 M 35 Adverse effects of carbon monoxide & ketamine 26 July 2006 F 13 Adverse effects of Ecstasy 10 December 2006 M 44 Adverse effects of heroin mixture, ketamine & methamphetamine 9 January 2007 M 27 Adverse effects of ketamine, cocaine & nimetazepam
In short, out of these nineteen deaths relating to persons aged between 13 and 48 in a period of 34 months, nine were associated with ketamine and twelve with ecstasy, two involving a combination of both these drugs. Although six cases appear to have been due to ecstasy alone, DSI Lewis’ schedule provides some illustration of how ketamine and ecstasy are often mixed with other drugs by those who abuse them. This aspect is one to which we shall return later when dealing with the evidence provided by other experts.
Trend towards psychotropic drugs
40. Mr Ip Mun-kau, Senior Statistician of the Security Bureau, provided us with further statistics to illustrate the trend in Hong Kong towards psychotropic drugs. He has been employed by the government as a statistician since 1989 and has responsibility, amongst other things, for overseeing the operation of the Central Registry of Drug Abuse (CRDA) which operates under the purview of the Security Bureau where statistics on drug abuse are compiled. With these proceedings in mind, using the data from the CRDA, and from other sources including the Hospital Authority, Mr Ip was able to analyse trends in drug abuse, collating a variety of drug-related statistics in his presentation of a 13-page report.
41. Mr Ip’s report, entitled “Report on the drug situation in Hong Kong”, laid emphasis on the fact that the CRDA is a “voluntary reporting system which may only capture those abusers who had come into contact with and been reported by the reporting agencies”. It follows, therefore, as Mr Ip noted, that it is obviously not possible to ascertain the exact size of the population who abuse drugs and, as he expressed it, “the statistics should be taken as indicators of the trends in drug abuse over time rather than a finite definition of the situation”.
42. Mr Ip’s report [para. 2.1.3] stated that over the past few years, the total number of drug abusers recorded by the CRDA was, at least until recently, on the decrease. The figures showed a drop from a peak of 18,513 in 2001 to 13,204 in 2006. Consistent with this, the number of reported heroin abusers over the past decade showed a declining trend, with 14,291 in 1997 down to 8,101 in 2006. However, Mr Ip said that with regard to the number of reported psychotropic substance abusers, the figure was on a general rise, from 3,488 in 1997 to 7,364 in 2006. In regard to young drug abusers (under twenty-one years of age), the number fell from 4,020 in 2000 to 2,186 in 2004 but then “picked up to 2,549 in 2006 (with an annual increase of 4% and 12%, respectively, in 2005 and 2006).
43. More specifically, Mr Ip noted that ketamine abusers were first reported to the CRDA in 1997 and that the proportion of drug abusers who used ketamine increased from 0.2% of all those who abused drugs in 1999 to 23.2% in 2006 with some fluctuations within the period. Ecstasy abusers, on the other hand, were first reported to the CRDA in 1993. Between 1996 and 1998, the proportion of ecstasy abusers was no more than 0.4% of all drug abusers but by 2006 the figure stood at 11.6%.
44. Mr Ip was also able to say that, among young drug abusers, the abuse of psychotropic substances has shown an increasing trend over the last decade with the proportion increasing from 44.4% in 1997 to 98.9% in 2006.
45. Amongst recent drug abuse trends, Mr Ip noted that about 83.3% of reported drug abusers in the first half of 2007 were male and 16.7% female, with heroin (the most popular drug of abuse) being consumed by 58.8% of the reported drug abusers, a figure which was lower in the first half of 2007 than for the same period in 2006. However, 54.1% of the reported drug abusers abused psychotropic substances in the first half of 2007, a figure which was higher than for the same period in 2006.
46. When Mr Ip examined the statistics (set out in ‘Table 5’ of his report) in regard to those under twenty-one, he reported that in the first six months of 2007 they numbered 1,646 which was 10.7% higher than for the same period of 2006. 71.4% of these young abusers were males and 28.6% were females. He then stated, again comparing the first half of 2007 with the same period in 2006:
“2.3.4 Ketamine was the most commonly abused drug among young drug abusers. About 79.7% of the young drug abusers had used ketamine. The figure was higher than that recorded in the same period of 2006 (66.8%).
2.3.5 Ecstasy was the second most commonly abused psychotropic substance. In the first half of 2007, about 22.7% of the young drug abusers used ecstasy. The figure was much lower than that for the same period of 2006 (49.8%).
2.3.6 The proportion of young drug abusers who used heroin was rather low (1.7%).”
What is known about ketamine
47. Having considered the prevalence in Hong Kong and the obvious popularity of ketamine, particularly amongst the young, we turn next to what is known about this drug.
48. Dr Ronald Chen, Assistant Professor in the Department of Psychiatry at the University of Hong Kong and Psychiatrist-in-charge of the Substance Abuse Clinic at Queen Mary Hospital, headed a research team of six, including himself, in the production of a report entitled: ‘A Study on the Cognitive Impairment and other Harmful Effects Caused by Ketamine Abuse’ published in February 2005 and commissioned by the Narcotics Bureau. This study referred to ketamine as a psychotropic drug which is commonly abused with other psychotropic drugs, especially ecstasy. There was, the study noted, an alarming upward trend in the abuse of both these drugs and a major cause for concern was the prevailing view among youngsters that, because these drugs are different from heroin, they were not harmful to them and that the drugs merely enhanced their enjoyment of music and dancing. He noted also that long-term users of both ketami
