HKSAR v. YIU CHI WAI

HCMA624/1997

IN THE HIGH COURT Of

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 624 OF 1997

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J U D G M E N T

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1. The appellant, YIU Chi-wai, faced a charge of an offence contrary to section 8 of the Dangerous Drugs Ordinance, the particulars of which were that he, on 20 February of this year, at the staircase between the 11th and 12th floors at Block 11, Pak Tin Estate, Shek Kip Mei, Kowloon had in his possession a dangerous drug, namely .25 grammes of a mixture containing 3.8 milligrammes of midazolam maleate.

2. He pleaded not guilty to the charge, and was convicted after trial by Mr M.C. Jenkins, Principal Magistrate, sitting at North Kowloon Magistracy on 16 May of this year. Following receipt of a Drug Addiction Treatment Centre suitability report, on 2 June Mr Jenkins sentenced the appellant to nine months' imprisonment. The intake officer of the Correctional Services Department had not recommended Drug Addiction Treatment Centre treatment for the appellant.

3. The appellant is 45. His date of birth is 17 August 1953.

He has a bad criminal record. He has 15 previous convictions of which six are drug related. The appellant does not appeal against his conviction by Mr Jenkins, but he appeals against his sentence.

4. The facts of the case are simple, and are these: Two

police officers patrolling a block of flats found the appellant on the stairs injecting himself with a syringe. The appellant was searched, and in his trousers pocket was found another syringe containing a liquid. This liquid was subsequently analysed, and found to contain 3.8 milligrammes of midazolam in a solution which had a total weight of .25 grammes. The other syringe, the one which the appellant was using to inject himself, was not examined at the Government Laboratory. Midazolam is a danagerous drug listed in Part I of the First Schedule to the Dangerous Drugs Ordinance.

5. In his written reasons for sentence, Mr Jenkins said this:

"The Court of Appeal has suggested a prison term of six to nine months following a guilty plea for a persistent drug offender who is not suitable for treatment. That must envisage a sentence of between nine and twelve months assuming no discount for a plea of guilty. Here, the Appellant could not claim the benefit of a plea of guilty. I sentenced the Appellant to a sentence at the lower end of the range, namely nine months."

6. In a footnote, Mr Jenkins referred to A.G. v CHAN Tak King and Anor. [1989] 2 HKLR 428.

7. At the hearing of the appeal on 29 August, both Mr W. S. CHEUNG for the prosecution and Mr Andy HUNG for the appellant asked me to consider and admit evidence relating to the nature of midazolam, the dangerous drug which the appellant possessed and also evidence relating to its prevalence in Hong Kong and recent levels of sentencing passed on offenders convicted of possessing it. I agreed to that request and received that evidence, as I am permitted to do by section 83V of the Criminal Procedure Ordinance when read with section 118(1) (b) of the Magistrates Ordinance.

8. None of this evidence was challenged by Mr HUNG on behalf of the appellant.

9. As to the nature of midazolam, I learnt from Mr YEUNG Chi-kee, a pharmacist attached to the Inspection and Licensing Section of the Forensic Pharmacy Division of the Department of Health, that midazolam is a benzodiazepine. Benzodiazepines are used as hypnotics and sedatives. They can be divided into long acting and short acting benzodiazepines. Common side effects of benzodiazepine usage include drowsiness, confusion, impaired co-ordination and dependence. Dependence may develop after regular use of benzodiazepines. The dependence is characterised by strong desire to take the drug and a tendency to increase the dose. This is due to a development of tolerance. 

10. Midazolam is a short acting benzodiazepine, usually used as a tranquilliser. It can be used as a pre-medicant and sedative in surgical and other procedures and for the induction of anaesthesia. It can also be used to treat severe

insomnia. Dependence, with withdrawal symptoms, will develop after regular uses and drug abuse may result from excessive use. This kind of abuse is commonly associated with adolescents and young adults who take benzodiazepines to get "high". Long term users may suffer side effects, such as headaches, memory impairment, irritability, insomnia, drowsiness, confusion, dizziness, anxiety and sedation. Its use may impair the user's judgment and increase his reaction time, and so effect the user's ability to operate machinery. Midazolam may also increase the effects of alcohol, and the hang-over effects of a night dose may impair driving ability on the following day.

11. Midazolam is usually taken by mouth. The choice of taking it together with another dangerous drug is up to the individual user. Taking midazalom with other dangerous drugs may prolong the period of sleep, or increase respiratory depression, and generally increase the side effects of midazalom. There are reports of drug addicts taking midazalom and heroin to get high. This may be due to the effects of the augmentation of the side effects of midazalom. However, there is no forensic material available to establish precisely what results from this mixture.

12. The therapeutic dose of midazalom is 15 milligrammes, usually taken at night. It is usually obtainable in 15 milligramme tablets, or in ampoule form as a pre-operative sedative. Its most well-known product name in Hong Kong is Dormicum.  It is not available on prescription in Hong Kong.  My own limited mathematical knowledge tells me that 15 milligrammes is not a great weight. One milligramme is .001 of a gramme.

13. Continuing with the pharmacist's evidence: when compared it with methaqualone, there are the following noticeable differences. Methaqualone is a depressant.  It has hypnotic and sedative properties.  It has been withdrawn from the market because of problems of abuse. In the opinion of Mr YEUNG, the addictive effects of methaqualone are likely to be greater than those of benzodiazepines, such as midazalom. However, users can develop both physical and psychological dependence after prolonged use of either of these two drugs. 

14. As to midazalom's prevalence in Hong Kong, I learnt that the total number of seizures since and including 1991 has been as follows:

In 1991 - 165;
in 1992 - 304;
in 1993 - 434;
in 1994 - 590;
in 1995 – 1,205;
in 1996 – 1,193;
- and in the four months January to April of 1997 – 449.

15. The total number of people arrested in the period 1995 to 1997 for possession of midazolam – and that’s 1997, January to March – are as follows:

In 1995 - 299;
in 1996 - 581;
and in 1997, January to March, the first three months - 192

16. As to the level of penalties imposed on those possessing midazolam, in the period 1995 through to January to March 1997, financial penalties have ranged from a fine of $30,000 imposed on an offender in possession of a vast quantity of prohibited tablets, including midazolam, down to $250 imposed on an offender possessing one tablet. Custodial penalties, disregarding Drug Addiction Treatment Centre treatment orders, have varied from 42 months' imprisonment, passed on an offender in possession of a vast quantity of tablets, including midazolam, down to one month's imprisonment for possession of between four to one tablets of midazolam. The schedule of those penalties put before me and taken from the statement of Mr CHAN Pik-heung, a statistician of the Customs and Excise Department, to support his findings, will be annexed to the written copy of this judgment.

17. In relation to the appellant, Mr HUNG's argument is that Mr Jenkins erred in equating midazolam with heroin. This may be seen from his reference to A.G. v CHAN Tak-king and Another, in the footnote to his reasons for sentence. That case, Mr HUNG says, concerned the appeals of two persistent drug offenders who possessed heroin - in the report heroin is referred to salts of esters of morphine - and, continues Mr HUNG, although the appellant is clearly a persistent offender, as may be seen from his criminal record, a sentence of nine months' imprisonment for possession of 3.8 milligrams of midazolam was both wrong in principle and manifestly excessive.

18. Mr CHEUNG did not seek to counter Mr HUNG's argument. He accepts his premise that the appellant's sentence is both contrary to principle and manifestly excessive. Mr CHEUNG's concern is that there is no Court of Appeal or Court of First Instance authority setting tariff sentences for possession of midazolam. He seeks guidance from this court as to the proper tariff which should be applied in future cases where defendants are found in possession of midazolam. Neither Mr CHEUNG nor Mr HUNG asked that I refer this matter to the Court of Appeal under Section 118(1) (d) of the Magistrates Ordinance.

19. Mr CHEUNG accepts that there should be a distinction between midazolam and heroin for the purposes of sentencing.  A.G. v Chan Chi-man, (1987) HKLR 221, decided that sentences for possession of methaqualone for the possession of unlawful trafficking should be on the same scale as those for possession of opium for unlawful trafficking, not for heroin, the sentences for both possession and trafficking of heroin being considerably heavier.

20. That case, CHAN Chi-man, also laid down a tariff for sentences for the offence of possession of methaqualone, both in powder and tablet form, for unlawful trafficking. It is useful, I think, at this juncture to read out that tariff in relation to methaqualone powder. I take it from the headnote: 

"The tariff for possession of methaqualone powder for the purpose of unlawful trafficking was:

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

(b) over 500 grammes, 6 to 12 months;

(c) over 1,000 grammes, 12 to 24 months;

(d) over 2,000 grammes, two to three years;

(e) over 3,000 grammes, four to four and a half years;

(f) over 6,000 grammes, four and a half to six years; and

(g) over 9,000 grammes, six years upwards."

21. Mr CHEUNG submits that midazolam is very similar to methaqualone, but a little bit less damaging in its effects. He submits that recent authorities have treated midazolam as being of a similar nature to methaqualone. In support of that proposition he cites the cases of R v LEUNG Nai-hong, MA 432/1994, (unreported); R v CHEUNG Fook-li, MA 624/1996, (unreported); and R v LI Ming-Yiu, MA 834/1996, (unreported). He says that for the sake of consistency the approach taken in those cases should be followed.

22. Mr CHEUNG accepts Mr HUNG's submission that Mr Jenkins erred in appearing to equate midazolam with heroin. He accepts that in this case there was no latent risk of dissipation to the public, there being only 3.8 milligrams of midazolam in the syringe which the appellant possessed. In crude terms, that is about a quarter of the active ingredient of one tablet of midazolam. Mr CHEUNG submits that the evidence before me shows that the number of cases involving midazolam is on the increase and that general deterrent sentences are called for.

23. I certainly agree with Mr CHEUNG that the number of cases is on the increase. Seizures have escalated from 165 cases in 1991 to 1,193 in 1996. In the first four months of this year there have been 449 cases, if that figure is projected forward for the rest of the year, it will result in there being 1,347 seizures.

24. Mr CHEUNG suggests that the A.G. v CHAN Chi-man tariff for possession for the purposes of unlawful trafficking of methaqualone be adopted for the offence of possession of midazolam. He accepts that the tariff is not directly applicable because there is now no such offence as Possession of Dangerous Drugs for the Purposes of Unlawful Trafficking. On the other hand, he argues, this tariff may be said to be out of date because by legislative amendment in 1992 the penalties for possession, that is simple possession of dangerous drugs, were increased and the courts now feel bound to visit offences of simple possession of dangerous drugs with penalties significantly more severe than was the case before the amendment.

25. He reminds me that now the maximum sentence for Possession of a Dangerous Drug is a fine of $1 million and imprisonment for seven years, on conviction on indictment, and a fine of $100,000 and imprisonment for three years, on summary conviction. This is provided for in Section 8 of the Dangerous Drugs Ordinance. Before amendment on 26 June 1992 the maximum sentence for possession of dangerous drugs was a fine of $10,000 and imprisonment for three years, either on conviction on indictment or on summary conviction.

26. He suggests that the two factors balance each other out and that the CHAN Chi-man tariff should be applied to possessors, not traffickers, of midazolam.

27. As I have already said, the Court of Appeal in CHAN Chi-man set out a separate tariff for sentences for offenders found guilty of possessing methaqualone tablets for the purposes of unlawful trafficking. Although midazolam is often encountered in tablet form, Mr CHEUNG did not ask for a separate tariff in respect of midazolam tablets as the weight of the active ingredient of the drug in tablet form can readily be ascertained by scientific analysis.

28. On considering these arguments, I agree with Mr CHEUNG, firstly, that guidance on sentence levels for those convicted of possessing midazolam is required. Secondly, sentences for possession of midazolam should not follow those passed for possession of heroin, which is a dangerous drug of a wholly different and far more dangerous and evil character. Thirdly, that 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. And both are far less damaging in their effect on the abuser than synthesised narcotics such as heroin.

29. Fourthly, I agree with him that, if any tariff or general guidance is to be set, it be based on the narcotic weight of the midazolam in whatever form it takes, tablet or ampoule, and that there be no separate tariff or guideline set by reference to the number of tablets the offender possesses. I accept Mr CHEUNG's argument that the weight of midazolam in a tablet can easily be ascertained on analysis at the Government Laboratory.

30. At first blush I was attracted to Mr CHEUNG's argument and the reasons for it, that a tariff for sentencing offenders convicted of possessing midazolam should be set by reference to the tariff set in CHAN Chi-man for offenders convicted of possessing methaqualone for the purposes of unlawful trafficking. On reflection, and in saying this I intend no disrespect to Mr CHEUNG, I find the argument to be fallacious.

31. Although the legislative amendments in 1992 abolished the offence of Possession of Dangerous Drugs for the Purposes of Unlawful Trafficking, formerly Section 7 of the Dangerous Drugs Ordinance, the offence of Trafficking in a Dangerous Drug remains. It is Section 4 of the Dangerous Drugs Ordinance. The definition of "trafficking" in sub-section 2(1) of the Ordinance was amended in 1992 to include the words "or possessing the dangerous drug for the purposes of 'trafficking'. The new definition reads in full:

"'Trafficking' in relation to a dangerous drug includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug or possessing the dangerous drug for the purposes of trafficking and "traffic in a dangerous drug" shall be construed accordingly".

32. 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. That tariff sentences for those guilty of possession of a dangerous drug for the purposes of unlawful trafficking are as equally applicable to those guilty of trafficking in a dangerous drug may be seen from Silke VP's words in R v LAU Tak-ming and Another (1990) 2 HKLR 370, where he said at page 384 of the report at lines, D to E:

" ... the Ordinance provides for two offences, both with the same penalty. Section 4 provides that no person shall, without a licence, on his own behalf or on behalf of any other person: a) traffic in a dangerous drug; b) offer to traffic in a dangerous drug; c) do or offer to do any act preparatory to or for the purpose of trafficking in a dangerous drug ...

Section 7 provides that "no person shall have a dangerous drug in his possession for the purposes of unlawful trafficking therein, whether by himself or some other person."

Given the definition of "trafficking" as contained in Section 2 and the comprehensive wording of Section 4, it has always been a little difficult to understand why the Legislature should have created two offences."

33. And he continued at lines H to I of the same page of the report:

"The. sooner there is but one offence, even if it entails an amendment of the definition of "trafficking" the better. The guidelines we suggest make no distinction between the two offences.

The Ordinance provides for proof of guilt by way of rebuttable presumptions concerning possession of dangerous drugs for the purposes of trafficking therein. If there is direct evidence of trafficking it is highly unlikely that the person charged has not had, at some time during the course of the offence, possession of the drug itself. The presumptions are simply an aid of proof."

34. Even though the Legislature in 1992 greatly increased the penalties for possession of dangerous drugs simpliciter, 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.

35. All persons involved in the administration of criminal justice - counsel, judges, policeman - know that in many cases it is the quantity of dangerous drugs possessed by the offender which alone determines whether or not he faces a charge of trafficking in dangerous drugs or a charge of possession of dangerous drugs. Fixing the level at which the decision to prosecute for trafficking in dangerous drugs is never easy and will depend on many factors, for example, the type of drug, the circumstances in which the offender was found in possession of it, how it is packed, whether it is readily usable or if it requires further treatment to make it consumable, whether or not paraphernalia indicative of trafficking activity are found in the offender's possession or under his control.

36. In CHAN Chi-man, the first tariff band is for a quantity of methaqualone powder weighing under 500 grammes. 500 grammes is half a kilogram or 50,000 milligrams. Given that Mr YEUNG Chi-kit, the pharmacist, told me that the standard therapeutic dose of midazolam is 15 milligrams and that it is usually obtainable in 15-milligram tablets, a possessor of 5OO grammes of midazolam would have 3,333 tablets on him. Given - again from Mr YEUNG's evidence - that midazolam is not available on prescription in Hong Kong and that therefore the source of supply of any tablet of midazolam must be highly illicit - there can, for example, be no question of a young person stealing a few of his parent's lawfully prescribed tablets of midazolam - I, myself, would have little difficulty in drawing an irresistible inference that the possessor of 500 grammes of midazolam, or 3,333 tablets of it, possessed it for the purposes of trafficking. Although in this appeal I am not called upon to decide the issue, I see no reason, given both what I have been told about the nature of midazolam and my view - a view urged on me by the Government's counsel for sentencing purposes it should be equated with methaqualone, why the CHAN Chi-man sentence tariffs should not be applied against offenders convicted of trafficking in   midazolam.

37. 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.

38. As I can conceive of no case where a person found in possession of more than 500 grammes of midazolam could realistically be charged and convicted of any offence other than trafficking in it, I do not see that there is any purpose in determining a higher figure for the length of sentence to be imposed on the possessor of more than 500 grammes of midazolam, other than to say that if that unusual case should occur, a period of imprisonment higher than six months should be considered.

39. Where, subject to that six months upper limit, a magistrate draws the line, will depend upon the circumstances of each case. The character and antecedents of each defendant will be a major factor in the magistrate's determination, as will the quantity of midazolam involved. A first offender in possession of a moderately high quantity of midazolam may be entitled to a lower sentence than that given to a persistent offender who is in possession of only a small amount. These are matters which can be left to the discretion of the magistrate and obviously before a sentence of imprisonment can be considered, the magistrate will have to comply with the requirements of Section 54A of the Dangerous Drugs Ordinance and call for and consider a report on the offender's suitability for compulsory Drug Addiction Treatment Centre treatment. Only if the magistrate is of the opinion that a non-custodial sentence is justified can he disregard the provisions of Section 54A.

40. I was not addressed on, neither have I considered, the levels of fine for possession of midazolam. Obviously a fine is a possibility. The figures cited to me in evidence show that fines are often imposed on offenders. A fine can only be imposed if the offender has the means to pay and again it is common knowledge amongst criminal practitioners that many persistent drug offenders do not have these means.

41. As this appeal did not involve an appellant who was found in possession of midazolam along with another more damaging dangerous drug such as heroin, I have not addressed the question of whether sentences for possession of midazolam in those circumstances should be any different. I was not addressed on this and this matter may have to be considered in another appeal.

42.Applying my decision to this particular appellant, I am of the view that the sentence of nine months' imprisonment was far too high. The appellant is a persistent offender. The Drug Addiction Treatment Centre Intake Officer was of the view that, because of his repeated failure in previous treatments, his poor attitude towards compulsory treatment and his long addiction history, he was unsuitable for Drug Addiction Treatment Centre treatment. Set against that, the amount of midazolam had in the syringe found on him was only 3.8 milligrams, as I have said, one quarter of a therapeutic dose or one 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.

Representation: