HKSAR v. NG TAT LUNG

[English Translation – 英譯本]
HCMA 761/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 761 OF 2007

(ON APPEAL FROM KCCC NO. 3350 OF 2007)

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REASONS FOR JUDGMENT

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1. The Appellant pleaded guilty before the Principal Magistrate to one count of “trafficking in dangerous drugs”, namely 40 packets of a total of 60 tablets containing 0.85 grammes of midazolam, and 26 packets of a total of 42 tablets containing 0.56 grammes of midazolam (i.e. a total of 102 tablets containing 1.41 grammes of midazolam), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.  The Principal Magistrate convicted him and sentenced him to 8 months’ imprisonment.  The Appellant now appeals against sentence.

2. After the hearing, I allowed the appeal, set aside the sentence and replaced it with one of 4 months’ imprisonment.  I now set out the reasons for my judgment.

Admitted facts

3. The admitted facts revealed that, on 27 May 2007, a group of plainclothes police officers was patrolling in Mongkok.  At around 1.05 a.m., they reached the junction of Sai Yee Street and Shan Tung Street.  They noticed the Appellant walking towards Sai Yee Street Park.  The Appellant subsequently sat on a bench inside the park, turned round and took something from the flower bush at the back, and then left.  On seeing this, the police officers stopped and searched the Appellant.  He was found holding a cigarette box with his right hand.  After search, the dangerous drugs involved in the present case were seized.

Reasons for Sentence

4. In sentencing, the Principal Magistrate pointed out that although there is an abundance of case law on the abuse of and illegal trafficking in the particular type of drugs involved in the present case, the Court of Appeal has to date not laid down clear sentencing guidelines for trafficking in that type of drugs.  The normal practice in the Kowloon City Magistracy has been to sentence the defendants to immediate imprisonment for 4 to 6 months, depending mainly on the quantity of drugs involved.

5. In the present case, the Principal Magistrate considered that the drugs took the form of a large number of tablets, and the most important factor was that the Appellant was a persistent offender with 25 previous convictions.  Most of the convictions were related to drugs, and 7 of them were for the same type of offence as that in the present case.  The most recent conviction was on 10 January 2006 when he was sentenced to 16 months’ imprisonment for trafficking in dangerous drugs.  The Prinicipal Magistrate noticed that the present offence was committed in May of this year; in other words, the Appellant committed the same type of offence shortly after he was released from prison.  Counsel for the Appellant was also unable to put forward any valid mitigating factor.  The Principal Magistrate ruled that there were no reasons for passing a lenient sentence and adopted 12 months as a starting point.  As the Appellant pleaded guilty, a 4-month reduction was given, as a result of which the Appellant was sentenced to 8 months’ imprisonment.

Ground of appeal

6. Ms Wong, Counsel for the Appellant, contended that the starting point adopted by the Principal Magistrate was manifestly excessive.

7. The Appellant cited a number of High Court cases[1] and submitted that the Court of Appeal has considered trafficking in midazolam the same as trafficking in methaqualone for sentencing purposes, and according to the sentencing guidelines in R v. Chan Chi Man [1987] HKLR 221, for trafficking in less than 500 grammes of methaqualone, the term of imprisonment is as the court considers appropriate, and for trafficking in more than 500 grammes, the term ranges from 6 to 12 months.  It was submitted that the 8 months’ imprisonment imposed by the Principal Magistrate in the present case was manifestly excessive.

Respondent’s reply

8. Mr Tso, Counsel for the Respondent, replied that in the case of HKSAR v. Luk Yun Shing, CACC 357/1998, the Court of Appeal held that there was no difference between methaqualone and midazolam.  The Respondent agreed that the sentencing guidelines in Chan Chi Man should be followed.

Judgment

9. No sentencing guidelines have been laid down by the Court of Appeal in respect of midazolam.  I have consulted the cases submitted by Counsel for both parties and notice that the court has put midazolam and methaqualone on an equal footing.  The Principal Magistrate also stated that the usual sentencing approach taken by the Kowloon City Magistracy was to impose 4 to 6 months’ immediate custodial sentence.

10. It is true that the Appellant is a persistent offender and that the present case involves a large number of tablets containing dangerous drugs.  However, the starting point of 12 months adopted by the Principal Magistrate is in my judgment manifestly excessive.

11. I summarize the cases cited by Ms Wong as follows:

(1) Ma Yuen Man

Two charges: Charge (1), trafficking in 44 tablets and 17 fragments, with a total of 0.71 grammes; Charge (2), trafficking in 83 tablets and one fragment, with a total of 1.25 grammes.  The Appellant pleaded guilty.  He had 17 previous convictions, 5 of which were for “trafficking in dangerous drugs”.  He was sentenced to 12 months for each of the offences, to be served concurrently.  On appeal, the sentences were reduced to 4 months each, to be served concurrently.

(2) Hung Mei Kwan

Trafficking in 160 tablets, with a total of 2.26 grammes.  The Appellant pleaded guilty.  He had 39 previous convictions, 20 of which were related to drugs and two of which were for trafficking in drugs.  He was sentenced to 8 months’ imprisonment.  The term was reduced to 2 months on appeal.

(3) Kee Kin Chuen

Trafficking in 100 tablets, with a total of 1.4 grammes.  The Appellant pleaded guilty.  He had 7 previous convictions for offences including possession of drugs for the purpose of trafficking.  He was sentenced to 8 months’ imprisonment.  The term was reduced to 2 months on appeal.

(4) Wong Kap Si

Trafficking in 297 tablets, with a total of 4.08 grammes.  The Appellant pleaded guilty.  He had 6 previous convictions for possessing drugs and 4 for trafficking in drugs.  He was sentenced to 12 months’ imprisonment.  The term was reduced to 9 months on appeal.

(5) So Chai

Trafficking in 197 tablets and 0.4 grammes fragment, with a total of 2.89 grammes.  The Appellant pleaded guilty.  He had 12 previous convictions, most of which were related to drugs.  He was sentenced to 16 months’ imprisonment.  The term was reduced to 2 months on appeal.

(6) Wong Wai Man

Trafficking in 80 tablets, with a total of 1.11 grammes.  The Appellant pleaded not guilty.  He had no fewer than 30 previous convictions.  He was sentenced to 18 months’ imprisonment.  The term was reduced to 6 months on appeal.

12. The quantity involved in the present case was similar tothat in Kee Kin Chuen.  In that case, however, the Court of Appeal accepted that the Appellant was “technically trafficking in” dangerous drugs as he was bringing the drugs back to Hong Kong for self-consumption.  The Appellant in the present case was not “technically trafficking in” the drugs.

13. Having considered the Appellant’s previous convictions, the quantity of drugs involved and the above cited cases, I hold that the starting point adopted by the Principal Magistrate was manifestly excessive.  The appropriate starting point should be 6 months.  After a one-third reduction for the Appellant’s guilty plea, the sentence should be 4 months.

14. For the above reasons, the appeal is allowed.  The sentence of 8 months’ imprisonment is set aside and replaced with one of 4 months’ imprisonment.