HKSAR v. LAU SHUI KWAN

HCMA 9/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 9 OF 2003

(ON APPEAL FROM TMCC 3688/2002)

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J U D G M E N T

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1. This Appellant was sentenced to two months' imprisonment consequent on his conviction for "Trafficking in Dangerous Drugs". He now appeals against that conviction.

2. The Appellant was an employee at a dispensary who was approached by a female undercover police officer who asked to buy 'Duromine', a drug used for achieving weight loss. Its pharmaceutical name is "Phentermine" and it is classified as a dangerous drug under the First Schedule, Part I of the Dangerous Drugs Ordinance, Cap. 134.

3. The Appellant made a phone call and shortly thereafter a male arrived and handed 10 capsules to the Appellant. The officer handed over $200 in marked notes and received the capsules and change of $60 from the Appellant.

4. Another officer then arrested the Appellant who admitted he was responsible for selling the capsules but said he did not know about other matters. A search of the dispensary revealed no other irregularity and the person in charge denied knowledge of the Appellant selling the capsules in that manner.

5. Analysis by the Government Chemist confirmed the 10 capsules contained 0.23 grammes of Phentermine.

6. In mitigation, counsel for the Appellant relied on the Appellant's clear record, his age of 25 and his good employment record as mitigating factors. He relied too on the small quantity of narcotic and the fact that this was not, as he put it, "a psychotropic drug".

7. He confirmed to the Magistrate that the drug was a prescription-only drug and agreed that it had the potential to cause heart problems in persons with weak hearts, or otherwise in ill-health.

8. The Magistrate took a starting point of 6 months and sentenced the Appellant to 4 month's imprisonment after giving full discount for his plea of guilty. Subsequently, he acceded to counsel's request for a review of sentence and reduced it to 2 months from a starting point of 3 months.

9. In his Reasons for Sentence, he confirmed that he took into account the Appellant's readiness to sell the drugs to anyone who came to the dispensary; the evidence of a system of sale which was existing; the dangers to persons using such drugs without a doctor's prescription being ignored by the Appellant; the fact that the Appellant was prepared to risk the health of others for small profit and the fact that as an employee in a dispensary, he must be aware of the dangers of selling drugs in this manner.

10. On review, the same factors were considered by the Magistrate but he decided, having heard submissions, that he may not have differentiated sufficiently between the drug sold on this occasion and those drugs more usually trafficked and for that reason, he adjusted the sentence.

11. The grounds of appeal were put forward by counsel on the basis that unsupported assumptions were made by the Magistrate; the first being that the Appellant must have been aware of the risks because of his employment as a dispensary assistant and the second that a system existed. It was argued that an immediate custodial sentence was wrong because this was a small quantity; the Appellant was a first offender; there was no evidence before the Magistrate of abusive use of the drug by the public and it did not constitute a major threat to society like other dangerous drugs. The third ground was that a Community Service Order was not considered by the Magistrate. The fourth ground was that two months was excessive when compared with sentences in other cases involving more serious drugs.

12. Counsel referred me to a number of cases which were not particularly apposite and their only relevance was to set out principles which were not in dispute and which had not been disputed by the Magistrate.

13. Having considered the matter I would point out that this is a very serious offence which involved the sale, without benefit of prescription, of an amphetamine-type appetite suppressant drug which is classified as a Schedule 1 dangerous drug because of the risks attaching to its unsupervised use.

14. The Magistrate was able, both because of his general knowledge and because of submissions by counsel at the hearing, to note the dangers inherent in the unprescripted use of the drug in question and was entitled to take that into account when he sentenced.

15. There was sufficient evidence before him in the Admitted Facts to enable him to infer that a system of sale was operating. The Appellant's immediate response to the undercover officer's request for the drug was to relay the order by telephone and complete the transaction for cash shortly after, when the drugs were delivered. There appears to have been no questioning, no hesitation and the only conclusion to be drawn, and the Magistrate drew it, was that this was a routine transaction. Appellant did not confer with anyone else before arranging the sale.

16. In deciding whether an immediate custodial sentence was justified the Magistrate was entitled to note the serious nature of the offence, the system of supply and sale and the fact the Appellant was ignoring the health risks to others which might be occasioned by the supply of the drug.

17. Given the nature of this offence it is clear that a Community Service Order did not meet the gravity of the mischief caused by its commission. The legislature has taken pains in both the Dangerous Drugs Ordinance, Cap. 134 and the Pharmacy and Poisons Ordinance, Cap. 138 to ensure that the public is protected as far as possible from the ill-effects of various drugs, or poisonous substances. Part of that system of protection is the licensing, supervision and inspection of dispensaries. Where, as here, the very basis of that system is breached, or ignored, the consequences can be very serious and the court has a duty to ensure that such breaches are dealt with adequately.

18. Accordingly an element of general deterrence is required in any penalty for such breach.

19. In a case such as this the small quantity of the drug can only be a minor factor in considering sentence; it is the ignoring of the particular requirements governing the dispensing of dangerous drugs that is a greater factor. In sentencing, the Magistrate did note these drugs are not drugs as are commonly before the court in trafficking charges and adjusted his original sentence to take that into greater account.

20. The act of dealing with the dangerous drugs, which is the basis of the offence of trafficking, can be regarded as being exacerbated because of its occurrence within the confines of a licensed dispensary - a place in which the personnel are trusted to deal with prescription-only dangerous drugs according to the law.

21. This case is a trafficking case, but is analogous to cases under the Pharmacy and Poisons Ordinance. In The Queen v. Siu Yuen Fong and Tam Kwok-kin HCMA 582 of 1996, Stock J (as he then was) dealt with a case of unlawful sale of drugs and Part I poisons. He said:

"It is a most significant aggravating factor in this case that those selling were doing so on a regular basis, and much more seriously, were doing so in the course of running, or helping to run, a pharmacy business. It was particularly serious because pharmacies are trusted, as must be obvious to all proprietors and their employees, to conduct their business with the most scrupulous care when it comes to the dispensing of drugs and the sale of poisons. It is a very serious offence for those running or employed in a pharmacy knowingly to supply drugs and poisons in breach of the law, and to do so as a matter of course, and without any regard to the identity of the purchaser, the purpose of the purchase, the fact that the same purchaser came back time and again and at short intervals for the same drug or poison, and to the possible onward sale by that purchaser to others. To do it where the drugs or poisons were potentially addictive and are being sought on a regular basis, is particularly heinous. Offenders must expect immediate and effective custodial sentences. Almost invariably, they will be people with no previous convictions, and in such cases as the present this factor will attract limited weight in mitigation.

Similarly, the discounts given for previous good character were significantly too generous."

22. I accept that was a different type of case but here, we have a case of trafficking of dangerous drugs within the confines of a licensed dispensary and the same considerations apply.

23. For that reason, I am of the view that the Magistrate dealt entirely properly with this case. There is no basis for saying that the sentence is wrong in principle and the period of two months is not excessive in these circumstances. Indeed in my view, this type of offence is so serious that a longer sentence could well have been justified.

24. This appeal is dismissed.