R. v. SIT CHI KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.135 of 1996

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J U D G M E N T

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1. The appellant pleaded guilty to three charges of trafficking in dangerous drugs and one charge of failing to store first schedule poisons properly. He was sentenced to six months imprisonment for each of the three charges of trafficking, all sentences to run concurrently, plus a fine of $10,000 for each offence. He now appeals against sentence.

2. The appellant was the employee of a Wing Fat Dispensary. At the material time, police officers acting on information went to the Dispensary. They conducted a search and found these drugs, that its, over 5,000 tablets and also other Part 1 Poisons, some in the counter and some in the cupboard. The counter and cupboard were not locked.

3. The 1st defendant in the case before the Magistrate was the owner or a part owner of the Dispensary. It is not disputed that he obtained these drugs and the Part 1 Poisons from sources and in a manner which unfortunately were not clearly canvassed before the Court. Anyway, he knew that this appellant who was the 2nd defendant below, had sold these drugs to customers. In fact, the appellant, the owner (D1) and the other partners shared the profits for the sale of these drugs.

4. In the Reasons for Sentence, the learned Magistrate said this case was a difficult one. He, however, did his best and considered all the mitigating circumstances of the appellant. On pp.35 to 37, he had taken into account the quantity of tablets, the fact that the premises were registered to sell these drugs upon prescription by doctors, the unknown sources of these drugs and the fact that there was no evidence as to who these customers were. The learned Magistrate also considered the clear record of the appellant, his plea, that he was not the main culprit, that undercover agents had been refused the sale of these drugs, that the offences were more akin to the previous offence of possession of dangerous drugs for the purpose of unlawful trafficking and that the appellant had offered to pay a substantial fine.

5. The learned Magistrate referred to the case of Chan Chi Man as being the only guideline available. He seemed to suggest that the case fell within the tariff of 12 to 24 months. He adopted the starting point of 15 months after trial for the main culprit and 12 months for an assistant as in the present case. He then reduced the sentence substantially by giving consideration to the mitigating factors and arrived at the sentence of six months imprisonment.

6. In my view, if it had been a case of Methaqualone, I think the reasoning of the learned Magistrate cannot be faulted. He had taken into consideration all the relevant factors and mitigation and had given substantial reduction for them. However, as Mr Forrest submitted, this is not a case of Methaqualone. Counsel for the prosecution very fairly and properly conceded that very arguably, the case of Chan Chi Man did not apply to the present case.

7. There is before me a report from an expert, a forensic science consultant, Miss Sheilah Hamilton. She had dealt with the nature of Methaqualone and also that of the drugs found in the Dispensary, which were the subject matter of these charges. It does appear from the expert's report that there are at least two main differences between Methaqualone and the drugs in question. First, Methaqualone was a drug which was no longer used as a medicine and not available in the open market. Second, there is ample evidence that that drug has been abused and widely abused.

8. As the Court of Appeal in Chan Chi Man remarked at p.226 :-

"In a Court, given what we hope is appropriate weight to these factors be concluded that the preference at potential dangerous of Methaqualone as such that it should be regarded by the Courts as being in the same sale of seriousness as opium."

Hence, the Court of Appeal in that case set down the guidelines regarding these type of offences.

9. Regarding the drugs in this case, it is quite clear that they can be sold and purchased upon prescription by medical practitioners. Furthermore, there is no evidence to say that these drugs have been widely abused. In fact, according to Miss Hamilton, although this type of drugs may be abused it is rarely abused. Under these circumstances, I have no alternative but to say that the Chan Chi Man guidelines do not apply to the present case.

10. Mr Forrest, on behalf of the appellant, had dealt with all the mitigating factors which had been canvassed by the learned Magistrate. I do not think I need to repeat them. I only want to deal with two matters. First, the owner of the shop, i.e., the 1st defendant, was not punished in the sense that he was charged with the same offences but the Crown had offered no evidence against him. The learned Magistrate had in fact in his Reasons for Sentence referred to him as the main culprit. Mr Forrest therefore submitted that the way in which the appellant was dealt with so drastically different from the main culprit gave rise to a burning sense of grievance.

11. If the Crown chose not to proceed against the 1st defendant, that is a matter entirely within its prerogative. That another co-defendant in the case had been treated lightly or discharged is not a matter of which the sentencing court should take very much consideration.

12. The second matter raised by counsel which I think may have some substance is that there is no evidence of the type of customers to whom the appellant sold the drugs. It appears that he only sold drugs to customers who had previously obtained these drugs upon prescription. In fact, he did not sell to undercover agents. There could of course be many reasons for that but I think I should draw an inference more favourable to the appellant and that is, the appellant did not sell these drugs indiscriminately.

13. For the reasons given above, I think that the sentence imposed upon the appellant cannot stand. However, I do not think this is a proper place or time to deal with any guideline regarding this type of drugs. As Counsel for the Crown submitted, these cases are of course very serious and the Court should not look at them lightly. If the appellant had been convicted of possession of the ordinary type of dangerous drugs, e.g. heroin, I would have no hesitation in imposing a custodial sentence. But in view of the circumstances of this case, the lack of guideline, and the fact that for this type of offence, i.e. trafficking in dangerous drugs, the Court has no jurisdiction to suspend any such sentence, I would make an order as follows.

14. The imprisonment sentence be set aside; the appellant be fined $20,000 for each of the three trafficking offences, the sentence in respect of the other charge will stand.