ATTORNEY GENERAL v. LEUNG PANG CHIU

Headnote

                Cocaine is a hard drug. For sentence in respect of possession for the purpose of unlawful trafficking the guidelines in R. v. Chan Chi Ming [1979] H.K.L.R. 491 should be adopted.

BETWEEN

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JUDGMENT

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Cons, J.A. delivered the judgment of the Court:

1. This is an application for review of sentences imposed upon two charges of unlawful possession of dangerous drugs for the purpose of unlawful trafficking therein, contrary to Section 7(1) of the Dangerous Drugs Ordinance, Cap. 134.

2. The Respondent is, or at least was on the relevant date, that is the 3rd June last year, the tenant of a 4th floor flat in Jaffe Road. When the police arrived there, and presumably announced their presence from outside the door, the Respondent threw out of the window something that was later found to contain 4 dangerous drugs, namely 883 tablets of methaqualone - which we understand to be a depressant -, 34.57 grammes of cannabis, 1.08 grammes of tetrahydro-cannabinol and 65.84 grammes of cocaine hydrochloride, which last for convenience we shall simply call "cocaine". The amounts of the first three drugs are not great, but are nevertheless well in excess of what is required in each case to raise the presumption that any person in possession thereof is in possession for the purposes of trafficking therein (Section 46). There is no presumption with regard to cocaine. These drugs were the subject of the first charge.

3. Further drugs, the subject of the second charge, were found in the pockets of clothing hanging in the flat, namely 83½ tablets of methaqualone, 0.87 grammes of cannabis (sic) tetrahydro-cannabinol and 1.87 grammes of cocaine. These amounts, although lesser, are still sufficient to raise a presumption of trafficking.

4. The Respondent was convicted after trial upon both charges. He is single, aged 35 and has in effect a clear record.

5. The sentence imposed for the larger group of drugs was a fine of $200,000 and three years' imprisonment, suspended for a period of three years; that imposed for the smaller group was a fine of $50,000. In addition the Respondent was ordered to pay $5,000 by way of costs.

6. The fine of $200,000 was not assessed by relation to the value of the drugs or to the profit which he might be expected to have made from trafficking therein, but with regard to his means, being the estimated capital value of a business in which the Respondent held a one-third share. However, we understand that he was in the event not able to realize the value of that share and is currently serving a term of one year's imprisonment in default of payment. The other two sums have been paid.

7. Counsel for the Attorney submits that in his approach to the sentences the learned ,judge went astray in principle, and furthermore that suspension of the term of imprisonment is not authorized by law. The latter raises no difficulty and Mr. Niamatullah for the Respondent does not seek to uphold that part of the sentence. Section 109(B) of the Criminal Procedure Ordinance Cap. 221, which provides for the suspension of terms of imprisonment, is limited to sentences of not more than two years. The real question for this Court is whether offences in relation to cocaine should, as a general rule, be dealt with in the same way as offences relating to what are commonly called hard drugs, such as heroin or morphine, or whether instead, as in the present instance, they should be accorded the more lenient treatment so far extended to soft drugs such as cannabis and opium.

8. If there is a scientific or medical criterion for defining drugs as either hard or soft our attention has not been drawn to it. Possibly there is in fact no strict division as such, but something more in the nature of a sliding scale. The expressions however are convenient, in that they reflect the potential of particular drugs to debilitate those who use them. Hard drugs are vicious and addictive, soft drugs can be lived with more easily.

9. As to the nature of cocaine we are indebted to an article which appeared in the May issue of the 1985 Criminal Law Review ⁽¹⁾:

"    Cocaine is usually used in the form of cocaine hydrochloride, a natural alkaloid extracted from leaves of the coca shrub grown in Bolivia, Peru and Columbia, taking the form of a white powder looking like fresh snow. Cultivation and manufacture has increased dramatically in the last decade. The Indians living and working at high altitudes traditionally chewed the leaves to enable them to work for longer periods without food or rest. In 1858 a process was discovered for extracting the alkaloid. There is no known instance of manufacture in the United Kingdom.

 

        The drug may be sniffed like snuff ('snorted'), inhaled, injected or rubbed on the gums. 'Freebasing' is a method of inhaling the drug. Cocaine is treated with sodium hydroxide and ether. One gram of cocaine produces half a gram of precipitate. It is used by heating the precipitate in a glass water pipe over a cigarette lighter or matches and inhaling through a glass tube. This gives an immediate high.

 

        Effect - potentiates adrenaline; a small quantity induces happiness and an abundance of energy. The appetite is depressed. It is said to act as a sexual stimulant. Large doses induce excessive self-confidence and hallucinations. The effect lasts one to two hours and is followed by depression. It causes psychic dependence but does not lead to withdrawal symptoms. (Cocaine can be used as a surface anaesthetic). Cocaine acts by preventing the removal of adrenalin from its site of action. Blood pressure is raised and the action of the heart may become irregular - which is why injections and 'freebasing' can be fatal.

 

        Prolonged ingestion by sniffing is said to damage the nasal tissues. Abuse has been said to lead to sleeplessness, mental disturbance, stomach disorder and emaciation. Regular users complain of a feeling as if insects were creeping below their skin.

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        Cocaine is occasionally mixed with heroin to produce a 'speedball' for intravenous injection in which the subject enjoys the euphoria induced by heroin without the narcotic effect."

10. Lord Lane, the Lord Chief Justice has also referred to the effects of cocaine ⁽²⁾. He said that

"         Some of the different ways of taking cocaine were more dangerous than others. They could result in an enormous craving for the drug and the addict tended to become compulsive and less able to control the amounts of the drug used. In addition to the psychological dependency resulting from the drug there was no doubt that its abuse resulted in a very serious physical addiction.

 

        Withdrawal symptoms were commonplace. It could also cause psychosis in the shape of a feeling of persecution, which might have extremely dangerous consequences. One expert had stated 'the bad or dangerous effects make cocaine potentially the most lethal drug of the 1980s'."

11. In the light of these characteristics we have no hesitation in assigning cocaine to the upper or hard end of the scale. Our view is confirmed by the attitude taken in England. In 1981 cocaine was twice expressly referred to as "a hard drug": R. v. Atkins⁽³⁾ and R. v. Ross⁽⁴⁾. In the first of those cases the Court of Appeal upheld a sentence of three years' imprisonment for possession "with intent to supply" of an amount less than one-third of that we are concerned with. Later the same court confirmed a sentence of 15 months imposed upon a plea of guilty to a mere 6.5 grammes⁽⁵⁾ .

12. Mr. Niamatullah has urged us not to follow the English lead. There is here, he says, no "upward spiral" of abuse which caused such anxiety to the English Court of Appeal in Martinez ⁽²⁾ and which was indicated by the increasing number of seizures. Here cocaine is comparatively unknown. Indeed this is, so far as Counsel are aware, the first prosecution that has been brought. It is therefore not necessary to impose a deterrent sentence at this stage.

13. With every respect we are unable to accept that submission in the present circumstances. It is better to eradicate a bad habit before rather than after it has taken a firm hold. Cocaine has made a start in this territory, appropriate sentences are necessary to nip the process in the bud. We would suggest for the present the adoption of guidelines similar to those recommended, in The Queen v. Chan Chi-ming⁽⁶⁾. We do so by analogy to the amount of heroin necessary to trigger the presumption of trafficking i.e. ½ gramme. In the absence of any similar presumptive figure with regard to cocaine we feel that some guidance may be obtained from a further comment in the article we have already mentioned, that "a teaspoonful (about 1 gramme) will suffice for two people to sniff for several hours". We note also that apparently in England "there seems to be a tendency to equate cocaine with heroin for sentencing purposes, although the drug itself is less addictive". If in the future amendment to include cocaine in Sec. 46 should show our approach to have been based on a false assumption then naturally further consideration will have to be given.

14. Applying that principle to the present charges an immediate sentence in the region of four years overall would have been appropriate. We have to bear in mind however that these proceedings are by way of review and it would perhaps not be improper to take also into account that this is the first prosecution of its kind.

15. For these reasons we allow the application for review and set aside the sentence passed on the first charge, imposing in its stead an immediate sentence of two years' imprisonment. In the particular circumstances we propose no change in the other orders made below.

(1)     "Notes on Some Controlled Drugs" by Patrick Bucknell, Barrister, at p.260

(2)    The Queen v. Martinez (The Times, 24th November 1984)

(3)    [1981] 3 Cr.App.R. (Sentencing) at p.257

(4)    Ibid. at p.291

(5)    (1983) R. v. Davies Crim.L.R. at p.46

(6)   [1979] H.K.L.R. 491