HKSAR v. MOK KWOK HUNG

1997, No.353
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Stuart Moore, J.A. (giving the judgment of the Court):

1. On 28th May 1997, the Applicant pleaded guilty in the District Court to three charges. In brief, these were as follows. Firstly, trafficking in a mixture containing 2.28 grammes of heroin hydrochloride; secondly, trafficking in a mixture containing 14.41 grammes of heroin hydrochloride and 702 tablets containing 12.964 grammes of Midazolam; thirdly, possession of a crystalline solid containing 6.67 grammes of a drug commonly referred to as ice, 2.04 grammes of cannabis, 12 tablets containing 26 milligrammes of Diazepam and 12 tablets containing 74 milligrammes of Clonazepam.

2. The Applicant was sentenced by Deputy Judge Wright to concurrent sentences of 16 months and 52 months on charges 1 and 2, and to eight months on charge 3, of which only four months was to be served consecutively to the other sentences, making 56 months' imprisonment in total.

3. The judge, when sentencing, said:

"Although I would be justified in reducing the quantum of any discount he receives for his plea, it seems to me that as recognition for his previous background, I would be justified in allowing overall a discount of one-third of the sentences.

With a starting point of 2 years on the 1st charge, the sentence falls to be reduced to one of 16 months' imprisonment. With a sentence of 61/2 years on the 2nd charge, the sentence falls to be reduced after discount of one-third to 52 months' imprisonment. Those two sentences are to be served concurrently with one another. Allowing the same reduction on the 3rd charge reduces that sentence to 8 months imprisonment but in my view, applying the principle of totality, a period of 4 months of that sentence should be served consecutively to the other sentences.

The aggregate sentence therefore is a period of 56 months' imprisonment."

4. The facts were entirely straightforward. The Applicant was seen leaving a building a short time before midnight on 24th September 1996. He was stopped and searched. The drugs relating to the first charge were found in his underpants. The Applicant admitted that this was No.4 heroin and said that he committed the offence because he was unable to make a living. He was then escorted to his home address in the building that he had just been seen to leave. Inside his flat, he showed police where the remainder of his drugs were to be found. The Applicant told police that some were for his own consumption and some were for sale. Other items found in the flat included a weighing scale and 122 small plastic bags that were empty.

5. The prosecution invited the Deputy Judge to approach the drugs in the two trafficking charges as being, to the extent of one-fifth, attributable to possession by the Applicant for his own consumption. This approach was duly taken by the judge.

6. With that background, Mr. William Allen advances on behalf of the Applicant two grounds of appeal. His first ground is that the learned trial judge failed to give proper weight to a variety of factors including the Applicant's guilty plea, the cooperation that the Applicant had given towards this inquiry from the outset, including his full and frank admissions, and also the fact that there had only been one previous conviction which was unrelated to drugs for which the Applicant had been bound over.

7. All of those matters were covered by the learned Deputy Judge in his detailed Reasons for Sentence and all that we need to say is that that ground of appeal is without the slightest substance. In fact it ignores everything that the judge said he had taken into account.

8. In his second and final ground of appeal, Mr. Allen submits that the judge was wrongly influenced by the quantity of Midazolam in charge 2 so that in the result he increased the sentence substantially.

9. The trial judge did say (at page 3 line R) of his Reasons for Sentence

"... the additional quantity of Midazolam substantially increases any sentence that should be imposed. Allowing a one-fifth reduction in respect of the Midazolam as well, one is left with an aggregate quantity of narcotic comprised both of heroin hydrochloride and Midazolam of approximately 21 grammes. In my view, this would properly attract a starting point of 61/2 years imprisonment."

10. It is clear that the judge equated the drug Midazolam with heroin because earlier in the Reasons for Verdict he had indicated that for the heroin alone in charge 2 he would have taken a starting point of five years' imprisonment.

11. There is little authority available relating to Midazolam. This is a drug which is listed in the First Schedule to the Dangerous Drugs Ordinance, Cap.134.

12. We have been referred to the case of R. v. Yiu Chi-wai, Magistracy Appeal 624 of 1997 (unreported), where it was decided, in the light of expert evidence that was called, that it would be wrong to equate Midazolam with heroin. Deputy Judge Lugar-Mawson, in a long and carefully reasoned judgment, said that at page 3D:

"As to the nature of midazolam, I learnt from Mr. Yeung Chi-kee, a pharmacist attached to the Inspection and Licensing Section of the Forensic Pharmacy Division of the Department of Health, that midazolam is a benzodiazepine. Benzodiazepines are used as hypnotics and sedatives. They can be divided into long-acting and short-acting benzodiazepines. Common side effects of benzodiazepine usage include drowsiness, confusion, impaired co-ordination and dependence. Dependence may develop after regular use of benzodiazepines. The dependence is characterised by strong desire to take the drug and a tendency to increase the dose. This is due to a development of tolerance. Midazolam is a short-acting benzodiazepine, usually used as a tranquilliser. It can be used as a pre-medicant and sedative in surgical and other procedures and for the induction of anaesthesia. It can also be used to treat severe insomnia. Dependence, with withdrawal symptoms, will develop after regular uses and drug abuse may result from excessive use. This kind of abuse is commonly associated with adolescents and young adults who take benzodiazepines to get 'high'. Long term users may suffer side effects, such as headaches, memory impairment, irritability, insomnia, drowsiness, confusion, dizziness, anxiety and sedation. Its use may impair the user's judgment and increase his reaction time, and so effect the user's ability to operate machinery. Midazolam may also increase the effects of alcohol, and the hang-over effects of a night dose may impair driving ability on the following day.

Midazolam is usually taken by mouth. The choice of taking it together with another dangerous drug is up to the individual user. Taking midazolam with other dangerous drugs may prolong the period of sleep, or increase respiratory depression, and generally increase the side effects of midazolam. There are reports of drug addicts taking midazolam and heroin to get high. This may be due to the effects of the augmentation of the side effects of midazolam. However, there is no forensic material available to establish precisely what results from this mixture.

The therapeutic dose of midazolam is 15 milligrammes, usually taken at night. It is usually obtainable in 15 milligramme tablets, or in ampoule form as a pre-operative sedative. Its most well-known product name in Hong Kong is Dormicum. It is not available on prescription in Hong Kong."

13. Deputy judge Lugar-Mawson went on to quote the figures that he had been given which indicate the number of cases relating to the seizure of midazolam have risen from 165 in 1991 to 1,193 in 1996. In a reference to the expert pharmacist's evidence, Deputy Judge Lugar-Mawson said:

"In the opinion of Mr. Yeung, the addictive effects of methaqualone are likely to be greater than those of benzodiazepines, such as midazolam. However, users can develop both physical and psychological dependence after prolonged use of either of these two drugs."

14. In due course, the conclusion reached by Deputy Judge Lugar-Mawson was that heroin was a dangerous drug of a wholly different and more dangerous character than midazolam. As we indicated earlier in this hearing, it may be that in time a suitable case will present itself for guidelines on sentence related to this drug but we do not consider that this is such a case.

15. Having regard to the matters we have set out, we consider that the learned judge, in the case presently before us, did fall into error when he equated midazolam with heroin and thereby increased the starting point on charge 2 from five years' imprisonment to 6 1/2 years in order to take the 12.964 grammes of midazolam into account. The midazolam did aggravate the offence but not to the same extent as if it had been heroin. In our opinion, the correct starting point would have been 5 1/2 years' imprisonment. On this, the Applicant would have been entitled to the same full one-third discount which was correctly given to him by the trial judge in the court below.

16. Accordingly, we shall grant leave to appeal and, treating this hearing as the appeal, we replace the starting point for sentence of 6 1/2 years on charge 2 with one of 5 1/2 years. After discount of one third, this produces a sentence of 44 months. The other sentences are not affected so that, in the result, the Applicant will now serve a reduced total sentence amounting to 48 months.

17. The appeal is allowed to that extent.