R. v. LEUNG Nai-hong

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 432, 433,434 and 435 OF 1994

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J U D G M E N T

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1. On 29th March 1994 the appellant was sentenced to a total of 15 months' imprisonment on five charges of possession of midazolam maleate, contrary to s.8(1)(a) of the Dangerous Drugs Ordinance and on one charge of Attempted Theft, contrary to s.9 of the Theft Ordinance.

2. The appellant had pleaded guilty to three of the drug charges, including that in WSC 2889/94. He was convicted after trial in the other two cases. He has not appealed against the six months' sentence in WSC 2889/94. Three of the drug offences were committed while the appellant was on bail in respect of the first offence, which was committed on 18th May 1993. A fourth was committed on 5th March 1994, the day after he had been fined on conviction in the latter case; on 29th March he was sentenced to three months' concurrent imprisonment in default of payment of the fine.

3. A total of 54 tablets of midazolam maleate were proved to have been in the appellant's possession. Of those 54 tablets, 15 were in WSC 2889/94, in respect of which there is no appeal.

4. The magistrate does not indicate his starting point for sentence or indicate how he reached the total of 15 months (not 12 months as he states in his Reasons for Sentence). He rightly took into account the aggravating factor that some of the offences had been committed while on bail. He had regard to the appellant's appalling record of 26 previous convictions, including 11 for drug offences. He decided that consecutive sentences for the drug offences were necessary, as they had been committed on widely separate dates, but he also had regard to the total sentence.

5. Mr Chan, for the appellant, submits that the sentence is too severe in the light of R. v. Chan Chi-man [1987] HKLR 221, which the magistrate did not consider. He can scarcely be blamed for that, since the case concerned cannabis and methaqualone. There is apparently no Court of Appeal or High Court authority indicating the proper sentence for midazolam.

6. Mr Chan however points out that both midazolam and methaqualone appear in the long list of drugs appearing in Part I of the First Schedule to Cap. 134 and says they should therefore be treated on a similar basis. That on its own, however, is not enough; it is only necessary to point out that cocaine is also in the schedule.

7. Mr Bailey, for the Crown, says that he is instructed by the Narcotics Bureau that the latter considers the two drugs to be of similar seriousness, the one being a tranquilizer and the other a stimulant. But there is no evidence on the matter and, in its absence, I do not think it right to indicate what I think should be a proper sentence for this offence.

8. In Chan Chi-man the Court of Appeal held that "The prevalence and potential dangers of methaqualone were such that it should be regarded by the courts as being on the same scale of seriousness as opium." It also held the proper sentence for possession of between 2000 - 4000 methaqualone tablets for the purpose of unlawful trafficking was 6-12 months. For less than 2000 tablets, the sentence should be as the court thinks fit.

9. Having regard to Mr Bailey's concession and the fact that there is no suggestion that the appellant had these tablets for trafficking, I would dispose of this appeal by holding that it would, in my judgment, be wrong, in the absence of evidence as to the relative seriousness of midazolam and methaqualone, to uphold a heavier sentence than that approved in R. v. Chan Chi-man.

10. As noted above, there is no appeal against the six months' sentence in WSC 2889/94. - All the sentences on the drug charges appealed against are therefore ordered to run concurrently with that sentence.

11. The attempted theft charge is on a different footing. The magistrate did not say why the sentence on this charge was not made consecutive, but I assume it was on the totality principle. This being an entirely different offence, the sentence should be consecutive to those for the drug offences.

12. The appeal is allowed to the extent that the total sentence is reduced to nine months.