HKSAR v. LEE CHI HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

1998, MA NO. 21

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J U D G M E N T

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1. The Appellant was convicted on 12th December 1997 on four counts of trafficking in a dangerous drug. He appeals his conviction on each of the four counts and sought leave to appeal sentence out of time. At the time the appeals were filed, the Appellant acted in person and had not had the benefit of legal advice. He had intended, I am assured, to appeal sentence from the outset. I have granted leave to appeal against sentence and will consider both the appeal against conviction and the appeal against sentence.

2. The facts were simple. On four occasions - those occasions set out in the charges - the Appellant was said to have sold to an undercover plain clothes policeman a quantity of a drug known as midazolam maleate which is a dangerous drug. The evidence by the Police Office was accepted by the Magistrate who also considered the evidence given by the Appellant, that was to the effect that on each of the occasions specified in each charge, the Appellant was in the vicinity of Pak Tin Estate where the offences were alleged to have taken place, but that he was so under the influence of a drug that he was unable to recall what happened at the time of each incident. The Magistrate set out the fact of his inability to recall in his Statement of Findings. Mr Callaghan concedes at the end of the day that the appeal against conviction must fail as the Magistrate had in mind the nature of the evidence of the Appellant and whether or not that evidence was such as to create a doubt in respect of the case for the prosecution. The appeal against conviction in respect of each of the four counts is dismissed.

3. In respect of the appeal against sentence, Mr Callaghan takes no issue that these are four separate and distinct offences and that the consecutive nature of the sentence by the Magistrate was proper. The Magistrate sentenced the Appellant to five months on each charge, to run consecutively. InR. v. Gary Orton, M.A. No. 225 of 1997, I referred to the tariff that was set down in respect of the drug methaqualone in the case of Attorney General v. Chan Chi Man [1987] HKLR 221 where at p. 226 Roberts C.J. (as he then was) said :

" The scale of sentences for the possession of methaqualone for the purpose of the unlawful trafficking should therefore be the same as that set out for opium in R. v. Lau Yiu Nam, i.e. -

(a) under 500 grammes - as the court thinks fit;

(b) over 500 grammes - 6-12 months;

(c) over 1 000 grammes - 12-24 months;

............"

4. The present tariff set out for methaqualone is up to 2000 tablets, as the court thinks fit, and over 2000 tablets, six to twelve months' imprisonment. I held in R. v. Orton 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 2000 tablets of the drug. This matter is, of course, more serious in that trafficking is involved.

5. 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.

6. 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.