HKSAR v. CHAN KOR YEUNG

HCMA No. 550/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL No HCMA 550 OF 1999

(On Appeal from NKCC 2383 of 1999)

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REASONS FOR JUDGMENT

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Background

1. On 19th May 1999, the Appellant was convicted by a Magistrate sitting at the North Kowloon Magistracy of, inter alia, one charge of 'Possession of Dangerous Drugs' contrary to S.8(1)(a) and (2) of the Dangerous Drugs Ordinance Cap.134 upon his plea of 'Guilty' and admission of the facts. The dangerous drug in question was midazolam maleate and the quantity involved was 3 tablets with the total weight of 0.055 grammes of the midazolam salt. On 2nd June 1999, having obtained a Drug Addiction Treatment Centre report on him, the learned Magistrate sentenced the Appellant to a term of 9 months' imprisonment for this conviction.

2. For the sake of convenience, I shall refer to the offence under S.8 of the Dangerous Drugs Ordinance Cap.134 as 'simple possession'.

Tariff

3. In AG v CHAN Chi-man [1987] HKLR 221 CA, the Court of Appeal held, inter alia, that for the offence of possession of methaqualone powder or tablets for the purpose of unlawful trafficking, the tariff was, up to 500 grammes of powder or 2,000 tablets, "as the court thinks fit". Roberts CJ in giving the judgment of the Court of Appeal said (at p.227 E to F) in respect of tablets,

"Rough and ready though this may be, we think that the right course is to assume that any tablet found to contain any proportion of methaqualone shall be deemed, for the purposes of sentence, to contain the dosage that would be present in a proper Mandrax pill, that is to say, 250 milligrammes per tablet."

The importance of this passage is that for methaqualone tablets, the tariff was set with the assumption that each tablet contained 0.25 grammes of methaqualone whereas for midazolam tablets, as will be seen, the quantity of midazolam maleate is normally 0.015 grammes per tablet. This means that although a sentence may be based upon the number of tablets involved, the quantity of narcotic represented by the same number of tablets is much greater for methaqualone than midazolam. Be that as it may, I am of the view that the 'rough and ready' method adopted by Roberts CJ is, with respect, the only manner in which tariffs in respect of possession of tablets of both methaqualone and midazolam may be realistically dealt with.

4. During the hearing of this appeal, my attention was drawn to three Hong Kong cases which considered the sentence to be imposed in respect of midazolam.

5. In HKSAR v YIU Chi-wai HCMA 624 of 1997, Deputy High Court Judge Lugar-Mawson (as he then was) considered the sentence to be imposed on an appellant who had been convicted after trial of possessing 0.0038 gramme of midazolam. The appellant was a man of 45 with 15 previous convictions 6 of which were drug related. The learned Judge heard evidence on the nature of midazolam, the quantity of midazolam maleate being 15 milligrammes per tablet, the prevalence of its abuse in Hong Kong and the different sentence imposed on persons convicted of possessing it. Before that case, the sentence imposed (between October 1995 to December 1996) varied from a fine of $400 to a custodial sentence of 1 month for the possession of 1 tablet, a custodial sentence of 1 to 3 months for possession of 1 to 3 tablets, 4 months for 10 tablets, 6 months for 22 tablets and a fine of $3,000 for possession of 8,500 tablets [vide: table annexed to judgment of YIU Chi-wai]. In his judgment, the learned Judge said,

"for sentencing purposes, no useful distinction can be drawn between midazolam and methaqualone. Although methaqualone's deleterious effects are somewhat stronger than those of midazolam, both are substances which have genuine therapeutic uses, although both can be - and often are - abused." (p.8 S to p.9 B).

"The CHAN Chi-man tariff was set out for the guidance of judges and magistrates who had to sentence traffickers, or deemed traffickers, in methaqualone, not for those who had to sentence mere possessors of methaqualone." (p.10 A to C).

"I cannot accept that guidelines on sentence levels for imposition on traffickers, those who move dangerous drugs about or supply them to others, can be made applicable to the wretched persons who are the users of dangerous drugs." (p.11 B to D).

Having equated midazolam with methaqualone and having drawn the distinction between those convicted of simple possession of dangerous drugs from those who trafficked in them, the learned Judge then said,

"For those convicted merely of possession of a few tablets or a small quantity of midazolam not in tablet form - and I don't think I can define the words "few" or "small", other than to say that the narcotic weight of what is possessed will be under 500 grammes and in many cases far less than 500 grammes - the sentence should not exceed six month's imprisonment. I take that figure by reference to the starting point of the second sentencing band in CHAN Chi-man." (p.12 G to K).

"the amount of midazolam had (sic) in the syringe found on him [the appellant] was only 3.8 milligrams, as I have said, one quarter of a therapeutic dose or a quarter of a standard tablet. Indeed, one wonders what effect, if any, that solution, if injected, could have had on him. Nevertheless, he was found in possession of a dangerous drug and was convicted of that offence. For a man with his bad record, my view is that the learned magistrate should have imposed a sentence of three months' imprisonment. The appellant's appeal is allowed to that extent, his sentence of nine months' imprisonment is reduced to one of three months' imprisonment." (p.13 S to p.14 F).

So, the learned Judge was of the view that the tariff for simple possession should be set by reference to the starting point of the second band in CHAN Chi-man. This was in effect adopting the first band of the tariffs in CHAN Chi-man in respect of the possession of methaqualone for the purpose of unlawful trafficking. The learned Judge was further of the view that for simple possession of 3.8 milligrammes (a quantity which was less than 0.001 percent of 500 grammes or, as observed, a quarter of a standard therapeutic dose and with minimal effect), the proper sentence to be imposed upon the appellant, whom he noted had a bad drug record, was 3 months' imprisonment.

6. In HKSAR v LEE Chi-ho HCMA 21 of 1998, Gall J. allowed the appeal against sentence on 4 charges of trafficking in midazolam tablets and substituted a sentence of one and a half months for the original 5 months on each charge. In his judgment, the learned Judge said,

"The present tariff set out for methaqualone is up to 2,000 tablets, as the court thinks fit, and over 2,000 tablets, six to twelve months' imprisonment. I held in R v Orton MA 225 of 1997 that an appropriate level for sentencing in respect of a drug similar to midazolam maleate should be two-third of the sentence set out for methaqualone. That would give, in respect of the drug trafficked by the Appellant, and in the circumstances of possession, up to four months' imprisonment for up to 2,000 tablets of the drug. This matter is, of course, more serious in that trafficking is involved.

Mr. Callaghan argues that not only is the sentence too severe in respect of each charge, but the totality of sentence of being 20 months for a total of 12 tablets trafficked is manifestly excessive. I must agree with him.

Given the nature of the trafficking, which was a serious offence and must be dealt with seriously, and given the totality of the drugs trafficked, I allow the appeal against sentence in respect of each charge, set aside the sentence and substitute for the sentence passed by the learned Magistrate a sentence of 1 1/2 months' imprisonment in respect of each charge, to be consecutive, being a total of six months' imprisonment."

7. In HKSAR v WONG Sik-hung HCMA 853 of 1998, Nguyen J. allowed an appeal against the sentence of six months passed upon the appellant (who had pleaded 'Guilty') for simple possession of 4 tablets with a total quantity of 0.07 gramme of midazolam maleate and substituted a sentence of 3 months. The appellant had 13 previous convictions, 6 of which were drug related and had been sent to a Drug Addiction Treatment Centre on two occasions. The learned Judge in his judgment said,

"Mr. Hung ... has relied on the case of HKSAR v YIU Chi-wai to submit that the sentence was manifestly excessive ... the appellant in that case was convicted of the offence of possession of 25 grammes of a mixture containing 3.8 milligrammes of midazolam maleate. Deputy Judge Lugar-Mawson heard evidence of a pharmacist of the Department of Health, who gave evidence about the drug midazolam ... The Judge concluded that for those convicted merely of possession of a few tablets, or a small quantity of midazolam, not in tablet form, and the narcotic weight of what is possessed is 500 grammes or less, then the sentence should not exceed six months' imprisonment ... The appeal was allowed to the extent that the sentence of nine months' imprisonment was reduced to one of three months. For the sake of consistency in sentencing ... I would be happy to associate myself with what the learned Judge said about the level of sentences for this drug.

The only other case... involving the drug midazolam is HKSAR v LEE Chi-ho... In that case, the appellant was convicted of four counts of trafficking in a dangerous drug... involving a fairly substantial amount of 12 tablets of midazolam. In that appeal, Gall J. allowed the appeal against sentence... and substituted therefor a sentence of 1 1/2 months' imprisonment in respect of each charge...

In my judgement, a sentencing court should not involve itself too much in mathematical calculations like how many milligrammes or how many tablets should attract how many weeks or how many months, and working out the sentence accordingly. I have already endorsed the range of sentences set down by Deputy Judge Lugar-Mawson, which is a maximum of six months for anything up to 500 grammes of the drug. And adopting a sentence which would be consistent with that and also be consistent with what Gall J. must have had in mind in terms of sentences for the drug midazolam, I think that an appropriate sentence for this case would be one of three months' imprisonment."

8. It is apparent from the above cases (which may not be the only cases on point), that the tariff for the simple possession of a small quantity of midazolam is still by no means clear: in YIU Chi-wai, the maximum sentence for simple possession of up to 500 grammes (or 2,000 tablets) was held to be the same as that for possession of up to 500 grammes (or 2,000 tablets) of methaqualone for the purpose of trafficking, that is, 6 months; in LEE Chi-to, the maximum sentence for simple possession of up to 2,000 tablets was held to be 4 months; and in WONG Sik-hung, where both YIU Chi-wai and LEE Chi-ho were followed, a sentence of 3 months was held to be appropriate for simple possession of 4 tablets with a total weight of 0.07 grammes.

9. In CHAN Chi-man, the Court of Appeal in deciding upon the guidelines and tariffs in respect of the possession of methaqualone for the purpose of trafficking took into consideration the tariffs for other drugs; whether those other drugs were of more, equivalent or less deleterious effect than methaqualone; the statistics of seizures in Hong Kong; the nature of methaqualone and its psychological and physiological effects; the prevalence of abuse; and the common form in which it was available in Hong Kong. Such factors about midazolam were considered by the learned Judge in YIU Chi-wai and it was concluded that midazolam, so far as sentencing was concerned, ought to be treated as the same as methaqualone. On the other hand, the learned Judge in LEE Chi-ho, referring to a previous decision of his in the case of Orton in which he had considered expert evidence on diazepam, concluded that the sentencing level in respect of midazolam should be two-thirds that of methaqualone.

10. Faced with the above cases, it is not easy to find a path that could be said to be in every way consistent with the widely differing views taken in respect of the sentencing for the simple possession of midazolam tablets. Since both the learned Judges in YIU Chi-wai and LEE Chi-ho had accepted that midazolam was somewhat less deleterious than methaqualone, I take the view that what was held in LEE Chi-ho is the correct way of assessing the level of sentencing; that is, the level for midazolam should be two-thirds that of methaqualone. In consequence, the tariff set in YIU Chi-wai of 6 months maximum for up to 500 grammes (or 2,000 tablets) is, with respect, in my view too severe; it being the tariff set by the Court of Appeal in CHAN Chi-man for possessing 500 grammes (or 2,000 tablets) of methaqualone for the purposes of trafficking. Further, bearing in mind that when deciding upon sentence for dangerous drugs offence (be it simple possession or for the purpose of trafficking), the quantity involved is and always has been the main deciding factor, and referring to the tariffs in CHAN Chi-man in respect of possession of methaqualone for trafficking as a guide, the maximum sentence for possession of up to 500 grammes (or 2,000 tablets) of midazolam for the purpose of trafficking ought to be 4 months. Since it is well recognised that possession for the purpose of trafficking is more serious than simple possession, the maximum sentence for simple possession of up to 500 grammes (or 2,000 tablets) of midazolam must be less than 4 months (not that it is likely that a person would be charged with simple possession of such a large quantity). However, for the sentence to be of some realistic deterrent effect, the maximum sentence, even for simple possession of such a quantity, cannot to be any less than 3 months. It serves no purpose to consider what a likely sentence would be for the simple possession of minute or small amounts because each case must necessarily be determined on its own facts and the relevant personal circumstances. It may well be that different individuals convicted of simple possession of a minute or small quantity of midazolam will receive sentences varying from a fine to a short term of imprisonment.

The Present Appeal

11. The Appellant is 25 and has 10 previous convictions two of which are drug related. He has also been to the Drug Addiction Treatment Centre on two occasions. One of the grounds of the present appeal is that the sentence of 9 months was manifestly excessive. Upon my above reasons, I agreed.

12. I exercised my powers under S.119(1)(d) of the Magistrates Ordinance Cap.227 and allowed the appeal against sentence to the extent that the order of 9 months' imprisonment was varied to an order of one month's imprisonment. I further ordered that the sentence of one month was to be concurrent with the 6 months imposed for the Appellant's other conviction.