SCMP Saturday, November 10, 2001
The agony over Ecstasy
When an Indonesian woman received a record 19-1/2 years imprisonment last month for her part in a major smuggling operation involving the rave party drug Ecstasy, it hardly seemed to demonstrate a need for higher sentences in such cases.
But during the hearing, evidence was put before the judge which suggested radical changes to Hong Kong's drug scene in recent years may require the courts to take a fresh look at the problem.
The Department of Justice is giving careful consideration to whether the Court of Appeal should be asked to reconsider guidelines for the sentencing of Ecstasy traffickers laid down in 1998.
Prosecutor Michael Blanchflower, SC, provided the judge in last month's case with details of what was described as an "explosion" in the use of Ecstasy since those guidelines were set. It has become the drug of choice for Hong Kong's youth.
Changes in the type of drugs available at nightclubs and bars are also causing concern. New drugs, such as ketamine, developed as a horse tranquiliser, have emerged and perhaps most worrying is the increase in seizures of pills containing various "cocktails" of drugs, where the potential dangers are unclear.
The problem for the courts is not simply whether they should impose higher sentences in a bid to create more of a deterrent for drug dealers. As last month's case showed, long terms can still be imposed for top-end traffickers. Deeper questions concern the system used in Hong Kong for determining how dangerous a particular drug may be and, accordingly, how severe sentences should be for those dealing in it.
Once a drug has been classified as "dangerous" by the Government, it is left to the courts to work out how much of a threat it poses and, accordingly, how severely those caught dealing in it should be punished. Some experts suggest it would be better if decisions of this kind are made by the administration - perhaps by a panel of experts - and put into place in the form of legislation, rather than being left to judges.
In Britain, drugs are graded by legislation in accordance with the danger they are seen to pose. The judges then sentence accordingly. A debate has recently been underway over whether Ecstasy should be downgraded from its current designation as "Class A", the most serious class.
The different approaches taken by the Hong Kong courts to Ecstasy perhaps suggest a need for more consistency. In 1996, when two British finance brokers became the first dealers in Ecstasy to go before the Hong Kong courts they were left in no doubt about the serious view taken of their crime. Although they had only supplied a single Ecstasy tablet to an undercover policeman at a bar, one was jailed for 16 months and the other for 15 months. The sentences were later reduced by four months on appeal.
At that time, the drug was seen as a killer which had swept the West and was beginning to make inroads into Hong Kong. Tough sentences, similar to those given to heroin traffickers, were needed to stop it getting a grip, judges said.
But two years later, the approach changed. The Court of Appeal was asked to lay down the first guidelines for Ecstasy traffickers. Judges heard medical evidence about the nature of the drug and concluded it was not addictive and hardly, if at all, toxic. Only in rare cases did it lead to death, they said.
Mr Justice Barry Mortimer, delivering the judgment, said: "It does not represent a major threat to society when compared with drugs of high toxicity and addiction such as heroin. But that is not to say that it represents no threat."
The result of the guidelines the court imposed was that, in many cases, Ecstasy traffickers would receive significantly lower sentences than before. Those dealing in less than 25 grams of the drug could be given non-custodial sentences.
At the time, there were warnings from the police that the softer approach could lead to a flood of Ecstasy hitting Hong Kong. Those fears seem to have been realised, although the reasons may well be unconnected with lighter sentences.
As the rave culture has become more popular in the SAR, so has the demand for the drugs associated with it. Ecstasy pills are relatively cheap and easy to obtain. They are particularly popular with the young. Among those arrested with rave drugs have been a judge's son and a tycoon's son.
When the court imposed the guidelines, the amount of Ecstasy seized in Hong Kong was on the increase. But it was still relatively low compared with other drugs. Since the 1998 ruling, however, there has been a dramatic surge, although this may now have peaked as police step up efforts to stop the drug getting into Hong Kong. A government chemist, in a report prepared for last month's case, said that in 1997, 40,588 Ecstasy tablets were seized. By last year, this had jumped to 378,417. The number of cases involving Ecstasy increased 28 times during the same period, from 42 to 1,189.
Concerns are growing about tablets sold as Ecstasy that comprise a cocktail of different drugs. The chemist reported that this began to occur last year, when 2,277 of the tablets seized contained a mixture of Ecstasy and either ketamine or caffeine. In the first nine months of this year, 12,513 out of 124,590 tablets seized were found to be in this category. Ecstasy has also been known to be combined with methamphetamine, a derivative of the drug known as "ice".
Concerns were raised in Canada last month about adulterated forms of Ecstasy following the death of two people at a rave party in Vancouver.
The new types of drug becoming available pose particular problems for the courts. The guidelines currently only apply to pure Ecstasy.
Ketamine, which was only classified as a dangerous drug in December last year, is currently treated by the courts as being on the same level as Ecstasy. But the Government argues it is more serious, and the extent to which ketamine poses a danger has not yet been considered by the Court of Appeal.
Particular difficulties will arise, it is believed, when the courts have to try to establish sentencing guidelines for drug cocktails. Mr Justice Mortimer touched upon the problem of decisions of this kind being left to the courts in his 1998 judgment.
He said: "The approach of this court has been to consider the degree or type of harm involved in the misuse of particular drugs. Our approach does not have the merit of simplicity but we have little alternative but to consider the proper level of sentencing for Ecstasy from first principles. It is necessary to have regard 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."
Simon Young, an assistant professor of law at the University of Hong Kong, suggested it might be better to establish a panel of experts to classify drugs according to their level of danger and put that into effect through legislation. "Statutory guidelines would be a good start. As more and more different drugs become available, you cannot expect the prosecution to call expert evidence in every case. It would be unworkable."
Mr Young said any body established to classify the drugs should include medical experts, police officers, and lawyers. They would deal with the scientific question of how dangerous a drug is, consider its prevalence in society and translate this into sentencing guidelines.
"You would then have greater certainty in sentencing. You would have a general standard that all judges could apply," Mr Young said.
Michael Lunn, SC, a vice-chairman of the Bar Association, said the Judiciary would probably be delighted if this job was taken off its hands. But he added that the current system was flexible and any move towards statutory classification of drugs would have to be capable of keeping up with societal trends.
Mr Lunn said any review of the guidelines for Ecstasy would probably focus on the surge in its use in Hong Kong - the view of any danger it posed was likely to remain unchanged. But he questioned whether longer sentences would really make a difference. "One of the real problems with drugs is that increases in sentences, even at the savage end of the scale such as 30-year jail terms for heroin, still do not stop people trafficking."
Superintendent Chau Ping-sun, of the Narcotics Bureau, said he did not think the current guidelines were inadequate, but added there was concern about community-service orders being given to traffickers at the lower end of the scale. He said such sentences were currently being challenged, with some success, by the Department of Justice.
The growing use of cocktail drugs was also a major worry, he said. "It is very dangerous to the abuser, because they will not know what they have taken."
Cliff Buddle (
) is the Deputy Editor of the Post's Editorial Pages.