HKSAR v. TSANG MAN HOI

HCMA98/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.98 OF 1999

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J U D G M E N T

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1. The Appellant pleaded guilty to possession of a dangerous drug, namely two tablets containing a total of 37 milligrammes of midazolam meleate. After receiving an unfavourable report from DATC, the Magistrate sentenced the Appellant to six months' imprisonment. The Magistrate adopted the starting point of nine months which was reduced by one-third for the guilty plea.

2. Mr Lee, for HKSAR, has been very helpful to the Court in providing two authorities on the same drug. In HKSAR v. Lee Chi Ho, HCMA21/98 (13 March 1998, unreported), Gall J held that an appropriate level for sentencing in respect of a drug similar to midazolam meleate was two-thirds of the sentence appropriate for methaqualone. In a latter case, HKSAR v. Luk Yun Shing, CACC357/98 (7 October 1998, unreported), the Court of Appeal held that methaqualone was no different from midazolam. For simple possession of 160 midazolam meleate tablets weighing 3.17 grammes in that case, the Court of Appeal regarded one month's imprisonment as appropriate. Regarding methaqualone, inR. v. Chan Chi Man [1987] HKLR 221, the tariff for possession of methaqualone, tablet form, in a PNG case is "as the Court thinks fit" up to 2,000 tablets.

3. While it is proper for the Magistrate to take into account the long history of the Appellant's drug abuse in passing sentence, the nine months' imprisonment as a starting point adopted by him is manifestly excessive. I am of the view that for the small quantity of the drug admitted by the Appellant to be in his possession, a proper starting point should have been three months. Taking into account all the surrounding circumstances, the three months should be reduced by one-third for his guilty plea.

4. I therefore allow the appeal to the extent of substituting the sentence passed by the Magistrate with a sentence of two months' imprisonment.