THE QUEEN v. WONG TING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 859 OF 1989

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BETWEEN

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REASONS FOR JUDGMENT

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1. This is an appeal against the sentence imposed by the magistrate in respect to a charge of possession of dangerous drugs (methadone). The appellant had pleaded guilty before the Magistrate of being in possession of one plastic bag containing one plastic bottle containing 13 ml of a solution containing 25 milligrammes of methadone hydrochloride (a salt of methadone).

2. The brief facts of the case which were admitted by the appellant are as follows :

"At 0255 hrs. on 12.5.89 when PW1-2 patrolled to Wang Cheong Street junction of Pau Chung Street they saw a Chinese male (later known as the defendant) acting furtively and peering around.

On seeing this PW1-2 felt suspicion of the defendant. So PW1-2 walked towards the defendant to intercept him. When PW2 questioned the defendant the defendant was flustered and spoke ambiguously. PW2 conducted a search upon the defendant while PW1 was keeping watch. In the left trousers pocket of the defendant. PW2 found exh. (1). PW2 asked the defendant what the thing contained in the bottle was and the defendant replied that it was methadone. After the defendant had been arrested and cautioned verbally he was brought to KC Police Station.

At 0430 hrs. the same day exh. (1) was handed over to PW3 for chemical analysis in the presence of DO KC and the defendant. Defendant was formally charged and will appear in San Po Kong Court for hearing."

3. The appellant has ten previous convictions all in respect of dangerous drugs.

4. Mr John M.Y. Yan, Barrister of the duty lawyers scheme, represented the appellant at the trial and in mitigation told the Court that the appellant was 70 years of age, lives on public assistance of $670 per month. The offence was in respect of methadone and on that date he went to the methadone clinic, took a dose, kept half in his month and put the rest into a bottle. He felt he needed to split the dosage. One dose was not enough. This is a usual practice. The appellant lives a miserable existence, not very coherent. And the counsel asked for leniency.

5. The learned magistrate adjourned the matter for a Drug Addiction Treatment Centre report.

6. At the renewed hearing, the appellant's counsel pointed out again that the appellant is very old, on public assistance, in poor health and that the report did not recommend drug addiction treatment. He urged the court to consider the appellant's health and the small quantity involved.

7. In her reasons for sentence, the learned magistrate states :-

"Appellant was not considered suitable for the DATC programme because of his poor physical condition. He was confirmed to be drug dependant. I consider that this offence was a serious one. The methadone programme plays a very important part in the fight against heroin addicton. Once those registered there start cheating the programme and deciding for themselves what dosages should be taken and when, the efficacy of the methadone is weakened greatly. Splitting doses in the manner appellant claimed he had done means too that liquid methadone can be sold on the street illicitly by addicts hoping to raise money for heroin doses. For that reason I did not consider a fine an appropriate penalty. Any penalty had to be sufficiently high to deter appellant and to serve as an example to those addicts adopting this 'usual practice' that the only way methadone can be administered is under proper supervision and within the confines of a methadone clinic. Once methadone becomes street currency, or if addicts start deciding their own programmes the government may as well close the whole programme down. No one has the right to prescribe liquid methadone - that can be administered only under the methadone programme. For this reason I impose a sentence of 4 months imprisonment. This sentence was lower than would have been passed for a simple possession of a dangerous drug such as heroin, but I took into account appellant's plea of guilty, his age and his drug history."

8. Mr Forrest who appears for the appellant complains that any suggestion that the appellant might have wanted to use the drugs for trafficking for a harder drug is not relevant. Furthermore, he argues that it is not for the magistrate to assume whether the programme would be in jeopardy as a result of this sort of practice, it is a matter for the doctors in charge of these establishments. He argues it is wrong to punish the defendant for cheating the programme, and that he should be punished for the nature and quantity of the dangerous drugs he had in his possession. He refers to a judgment of Barnes, J. in Magistracy Criminal Appeal No, 838/1989 The Queen v. CHAN Kam-wah delivered on the 27th October 1988. In that case the appellant had nearly twice the quantity of drugs than the appellant in the present case. In that case he had also been sentenced to 4 months' imprisonment, but the learned judge allowed the appeal and put him on probation.

9. In view of the appellant's plea of guilty and history of drug addiction and the fact that he had been voluntarily attending a methadone clinic and in view of the period already spent in custody as a result of this offence, I do not think that any purpose would be served by keeping him in custody any longer. And I order that the appeal be allowed and his sentence reduced to such length as would enable his immediate release.