HKSAR v. WONG SIK HUNG

HCMA853/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 853 OF 1998

(On appeal from KTC 1598 of 1998)

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J U D G M E N T

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1. The Appellant, pleaded guilty to possession of a dangerous drug, and the particulars of the charge are that on 12th June 1998, he had in his possession a dangerous drug, namely, four tablets containing a total of 0.07 gramme of midazolam maleate, which is a sort of midazolam. He pleaded guilty before Miss Cecilia Liang, sitting at Kwun Tong Magistracy.

2. The facts of the case are that on 12th June 1998, two police officers in plain clothes were on an anti-narcotic patrol in a park in Ngau Tau Kok, when they saw the Appellant handing one hundred dollars to a female, who gave to the Appellant something wrapped in a piece of tissue. The female was intercepted and dealt with separately. The Appellant was seen to drop the piece of tissue onto the ground, which on subsequent retrieval was found to contain four tablets containing a total of 0.07 gramme of midazolam.

3. The Appellant has 13 previous convictions, six of which are for drugs-related offences. He had been sent, or sentenced to a drug addiction treatment centre on two occasions. On this occasion, the learned Magistrate used a starting point of 12 months because on the previous occasion, the Appellant was sentenced to six months. On this occasion she was sentencing him to nine months. But then she took into account the fact that this was midazolam and not heroin, and that the quantity was not large, therefore she reduced it to six months. The Appellant appeals against that sentence.

4. Mr Hung, appearing on his behalf, has relied on the case of HKSAR v YIU Chi-wai, Magistracy Appeal No. 624 of 1997, to submit that the sentence was manifestly excessive. That appeal was heard on 29th August 1997 by Deputy Judge Lugar-Mawson, and 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 the evidence of a pharmacist of the Department of Health, who gave evidence about the drug midazolam.

5. The Judge also had statistics provided to him which showed the cases which came before the courts up to that time, and which involved the drug midazolam. In the event, the Judge concluded that no useful distinction should be drawn for sentencing purposes between midazolam and another dangerous drug, methaqualone, but he did conclude that midazolam should be distinguished, insofar as sentences are concerned, from heroin. 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.

6. In that particular appeal the sentence which was passed was one of nine months' imprisonment, and the amount of midazolam involved was 3.8 milligrammes. That 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, and having regard to the fact that Deputy Judge Lugar-Mawson carefully analysed the ramifications of possessing this particular drug and consuming this drug, 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 which Counsel have been able to find involving the drug midazolam is HKSAR v LEE Chi-ho, Magistracy Appeal No. 21 of 1998. In that case, the appellant was convicted of four counts of trafficking in a dangerous drug, and in that case, the appellant sold to an undercover plainclothes policeman a quantity of the drug midazolam, and there were four different counts of trafficking that the appellant was convicted of involving a fairly insubstantial amount of 12 tablets of midazolam. In that appeal, Gall J allowed the appeal against sentence and set aside the sentences originally imposed, and substituted therefor a sentence of 11/2 months' imprisonment in respect of each charge, to be served consecutively, making a total of six months' imprisonment.

7. In my judgment, 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. So the appeal is allowed to that extent.