R. v. SIU YUEN FONG and Another

MA No.582 of 1996

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H E A D N O T E

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Sentence - Trafficking in dangerous drugs and supply of Part I poisons - summary convictions - midazolam maleate and flunitrazepam - unlawful sales by a pharmacy employee to the knowledge of the employer -

1. The fact that an unauthorised supply of drugs and poison is by a pharmacy is a significant aggravating factor.

2. Agent provocateur - whether a mitigating factor - principles summarised.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.582 OF 1996

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J U D G M E N T

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1. These are appeals against sentences. I shall refer to the appellants as they were referred to at the trial, namely, as the 2nd and 3rd defendants.

2. The 3rd defendant was the proprietor of a registered pharmacy in Jordan Road, which he opened in 1994, and which he closed after his arrest arising out of this case.

3. The 2nd defendant was employed by him at that pharmacy from February 1995 as a cashier. The 3rd defendant is aged 28, the 2nd defendant 33. Neither has any previous convictions.

4. Also employed at the pharmacy was a school leaver aged 17 or 18 years. In the proceedings before the magistrate he was the 1st defendant, but he is not before me on this appeal.

5. The appeals arise from offences revealed by an undercover operation mounted by the police in June 1995. In the course of that operation a police woman aged about 20 years visited the pharmacy frequently between late June and the end of July, posing as a customer. It was contended that on each or almost each occasion, she asked the 2nd defendant or the 1st defendant for two or three items; first, a cough syrup, which she identified by the name "coke", which was a liquid containing codeine phosphate, which is a poison included in Part 1 of the Poisons List prescribed by regulations made pursuant to the provisions of the Pharmacy and Poisons Ordinance. As such, it is an offence to sell it unless sold on registered premises by or in the presence or under the supervision of a registered pharmacist. She would also ask on each occasion for "white" or "blue"; which was and is jargon for dangerous drugs of two kinds, namely, flunitrazepam ("white") and midazolam maleate ("blue"). On all these occasions, the 2nd defendant would supply her with the syrup and the tablets, or would authorise the 1st defendant to do so, or would otherwise be party to their supply. It was also contended that on some of these occasions the 3rd defendant was present and remained silent in the face of the transactions. The defendants were arrested on 31st July 1995.

6. These events gave rise to many charges. The 2nd defendant faced a lengthy series of charges alleging offences from 21st June 1995 to 31st July 1995. There were 28 charges against him in all, some of which asserted that he sold a Part 1 poison, that is, the cough syrup, on premises not duly registered as premises of an authorised seller of poisons, and the remainder of which, bar two, contended that he unlawfully trafficked in a dangerous drug, namely, either midazolam or flunitrazepam. There was one charge of possession of dangerous drugs and one of possession of Part 1 poisons. In relation to the Part 1 poisons offences, Mr Tam who appeared for the Crown upon the hearing of this appeal, very properly drew to my attention that in truth the allegation was that the syrup was sold other than by or in the presence of or under the supervision of a registered pharmacist, and not that the premises were not those of an authorised seller. Counsel for both appellants say that they take no point in relation to this inaccuracy in the charges to which the appellants on advice pleaded guilty and I understand them to wish me to proceed without amendment. I shall, however, as did the magistrate, address the question of sentence on the accurate factual footing that the essence of the poisons offences was to sell the offending substance otherwise than by or under the supervision of a registered pharmacist.

7. In due course the 2nd defendant pleaded guilty to 13 of the charges and not guilty to the remainder, and no evidence was offered as to the balance, and they were therefore dismissed. Those that remained alleged offences from 4th July to 31st July 1995 and with one exception they came in pairs, each pair relating to the sale on a particular day of the Part 1 poison and of the drug midazolam or flunitrazepam, whichever was supplied on the date of the offence. The facts put forward and admitted in relation to these offences were in accordance with those I have summarised save of course that the frequency and duration of the offences admitted were limited by the number and dates of those to which pleas of guilty were entered. It is significant to note that it was admitted that on two occasions the 2nd defendant went further than merely responding to the request for the drugs. On one occasion he suggested that the customer purchase "white" instead of "blue", because white provided, as he put it, more fun. On another occasion, he encouraged further sales by telling the buyer that in a few days, "white" would cost less.

8. As far as the 3rd defendant is concerned, the allegation was that he was present on three separate occasions when the officer customer asked for and was supplied with the syrup and with the drugs, but said nothing. Indeed he was even present when the 2nd defendant told the customer that in a few days the "white" would be cheaper. These facts are part of the facts put to the 3rd defendant at the trial and which he admitted. Whilst the 3rd defendant was charged with a number of offences covering the supply of drugs as well as of the Part 1 poison, he pleaded guilty only to those which alleged sale of the Part 1 poison on the three occasions to which I have made reference.

9. In his reasons for sentence the magistrate has summarised the charges to which the 2nd defendant and 3rd defendant have pleaded guilty, and the sentences imposed in relation to each offence. I cannot improve on that summary and respectfully adopt it for this judgment :

" THE OFFENCES

The Second Accused pleaded guilty to and was convicted of seven charges of trafficking in a dangerous drug contrary to sec.4 of the Dangerous Drugs Ordinance. These are summarised as follows:

CHARGE	DATE (1995)	SUBSTANCE	QUANTITY
J	4 July	Flunitrazepam	4 tablets/7.5 milligrammes
L	5 July	Midazolam maleate	6 tablets/116 milligrammes
O	7 July	Midazolam maleate	3 tablets/54 milligrammes
Q	8 July	Midazolam maleate	10 tablets/191 milligrammes
S	10 July	Flunitrazepam	3 tablets/5.6 milligrammes
AA	29 July	Flunitrazepam	6 tablets/12 milligrammes
AE	31 July	Flunitrazepam	10 tablets/19 milligrammes

He also pleaded guilty to and was convicted of six charges of unlawful sale of a Part 1 poison contrary to sec.21 of the Pharmacy and Poisons Ordinance, Cap.138. These are summarised as follows :

CHARGE	DATE (1995)	SUBSTANCE	QUANTITY
I	4 July	}	1 bottle/106 millilitres
K	5 July	}	1 bottle/110 millilitres
N	7 July	} Codeine phosphate	1 bottle/105 millilitres
P	8 July	}	1 bottle/108 millilitres
R	10 July	}	1 bottle/107 millilitres
AD	31 July	}	1 bottle/102 millilitres

The Third Accused pleaded guilty to and was convicted of three charges of unlawful sale of a Part 1 poison contrary to sec.21 of the Pharmacy and Poisons Ordinance, Cap.138. These are summarised as follows:

CHARGE	DATE (1995)	SUBSTANCE	QUANTITY
N	7 July	}	1 bottle/105 millilitres
P	8 July	} Codeine phosphate	1 bottle/108 millilitres
R	10 July	}	1 bottle/107 millilitres"

10. In addressing the factual basis for sentence in the case of both appellants, and in particular in addressing the appeal of the 3rd defendant, I am bound first to consider an important issue which arose at the hearing of this appeal in relation to the factual basis for the sentence imposed upon him. It appeared to me that in the course of his submissions, Mr Chui for the 3rd defendant was hinting that his client had at all material times been entirely unaware that the 2nd and 1st defendants were selling or had sold Part 1 poisons to the customer. It took me some considerable time and patience to draw from Mr Chui in the course of his address to me last week that this was in fact what the 3rd defendant was contending. In due course the suggestion was pressed in terms. It was said that the offence to which the 3rd defendant pleaded guilty was an absolute offence, and I was referred to the provisions of section 33 of the Pharmacy and Poisons Ordinance which stipulates that it is not a defence in proceedings for the sale of a poison effected by an employee that the employee acted without the authority of the employer, and it was said that it was in the light of that provision alone that the 3rd defendant felt constrained to plead guilty. That was, according to Mr Chui, the basis upon which the plea had been tendered, or at least intended to be tendered.

11. The magistrate had clearly proceeded on the footing that the 3rd defendant knew full well what was going on. Furthermore, it goes almost without saying that if a proprietor of a pharmacy has no idea that his employee has behaved unlawfully in the dispensing of drugs or poisons, and has acted without authority, still worse has acted contrary to instructions, the appropriate sentence to be imposed on the proprietor will be altogether different from that imposed on a proprietor who has knowingly permitted or even encouraged his employees to breach the law. So Mr Chui's suggestion was highly material to this appeal. It was also a surprising suggestion, and it was he who represented the 3rd defendant in the court below - either it could not have been put forward with sufficient clarity, or the magistrate has omitted to deal with a submission of central relevance to sentence. Although Mr Chui asserted that the magistrate's record of the mitigation was not full, and although he pointed to a passage in the record where he, Mr Chui, is recorded as saying that the offences were technical, he told me that he does not think that he told the magistrate that his client did not know of the breaches. He then told me today that he cannot recall whether the point was put, save that he drew to my attention that the record of proceedings does make reference to section 33 of the Ordinance - it appears in that part of the record which shall deal with Mr Chui's submissions. But there is a bare reference to section 33 and no more. So quite what was said is difficult to know.

12. Since adjourning this matter last week for judgment, I have carefully scrutinised the record of proceedings and the magistrate's reasons for verdict. The magistrate's reasons for verdict are, if I may respectfully say so, a model of clarity and care; and it is in my judgment unthinkable that he would have missed so vital a contention, whether expressed or implied, as is now advanced, had that contention found any but the most obscure and oblique of corners. Mr Chui quite properly does not argue that he made the point expressly. That he clearly did not. But I am satisfied that whatever his intention, it was not advanced with any clarity. On the contrary, the clear and uncontradicted implication of the agreed facts was that his client knew full well what was going on in his shop.

13. But the real question now is where stands the mitigation advanced last week on appeal that the 3rd defendant did not know that the poisons were sold unlawfully? I indicated to Mr Chui last week that I regarded the 3rd defendant's contention with the greatest scepticism. Having further studied the papers, I became thoroughly confirmed in the view that the contention was untrue, and in the light of that and what Mr Chui has most recently told me this morning, I was not prepared to address his appeal on the factual basis put forward last week or indeed at first instance this morning. That basis does not accord with the statement of facts agreed, and there is no suggestion in the 3rd defendant's confession that the 2nd and 1st defendants acted without authority. Indeed one would have expected that the first, middle, and last matter which this appellant would have been most eager to convey to the police was the contention which I originally was asked to accept. Nor does that contention accord with the plain sense of the matter, which is that an employee in the 2nd defendant's position was not about to flout regulations so central to the life of the pharmacy, when there was no gain in it for himself, and when his employer, the proprietor, was right there in his presence whilst it was going on. There is also a passage in the probation report prepared for the 3rd defendant's case, which supports my conclusion. The probation officer reports the fact that the 3rd defendant borrowed $200,000 from his parents in order to start his business, and that his family had concluded that perhaps the appellant had engaged in these offences because he was burdened by those loans. That is a strange thing for the family to say, if the 3rd defendant's complicity in these offences was not wilful; not least because the family is a close one to whom the 3rd defendant could be expected to have unburdened himself with what he had done, especially if he had offended only technically in the sense now advanced. It is also a hallmark of the report that it contains not a vestige of a suggestion by the 3rd defendant that he was unaware of the illegal practices of his employees. But finally today, Mr Chui took further instructions on the matter and concluded by telling me that his client now accepts that he was fully aware of what went on at least on the three occasions when the cough syrup was sold.

14. Accordingly, I reject the mitigation originally advanced and I have to say that I find that the 3rd defendant's false attempt to shift blame to his employees was singularly unattractive, a fact which undermines the suggestion of any remorse.

15. Accordingly, I find that the magistrate approached sentence on a correct factual basis. In so far as the 2nd defendant was concerned, it is apparent that he knew full well what he was doing and that what he was doing was unlawful. He thought nothing of selling drugs in the absence of a doctor's prescription, or the syrup in the absence of the pharmacist, and I think it scant mitigation for a man aged 33 to say that he did so under the direction or encouragement of the proprietor, and I note in particular that the breaches of the law were frequent, that the 2nd defendant although only an employee, was apparently wholly familiar with street jargon for these drugs, and that he played a role which went beyond mere sufferance of latitude encouraged by an employer, for he actively encouraged the purchaser to try another drug which would provide greater fun, and to buy another drug a few days hence when it would be cheaper.

16. It was moreover evident, as the magistrate has rightly observed, that the customer was not someone with a genuine complaint or ailment. It appears to have been a matter of no concern to those working in the pharmacy that these drugs might find their way to the hands of others including young persons. There was, as the magistrate put it, "consistent delivery without demur to the same person over a sustained period of several forms of dangerous drugs - a virtual cocktail - to which the customer was not entitled."

17. Care must be taken - and the magistrate evidently took that care - to sentence the 3rd defendant for those offences to which he pleaded guilty, and not somehow to build in a penalty for some of the drugs related offences to which the admitted facts would appear to make him a party. Nevertheless, the admitted facts and common sense leave no room for doubt as to the respective roles played by each of the three defendants, and in so far as is relevant to sentencing of the 3rd defendant, as to his role in the sales of the poison, I am satisfied that the 3rd defendant presided over a system of work at the pharmacy in which a blind eye was turned to breaches of the law. As I have already commented, it is inconceivable that either employee would on a regular basis, and on occasion in the presence of their employer, behave as they did unless he had told them that that was what they could or should do, at least in the case of some customers. The prime responsibility for ensuring that the pharmacy was run properly rested with him; and it is a responsibility which he quite deliberately did not fulfil. It may well be that for the reasons to which his family have referred in their conversations with the probation officer, he was over anxious not to turn away business when it presented itself. It is true that the 3rd defendant pleaded guilty to the unlawful sale of Part 1 poison, and not to the trafficking in dangerous drugs; but the reality is that those three charges represent sales of the same Part 1 poison to the same purchaser, a 20 year old female, on almost three consecutive days; 7th, 8th and 10th July. Quite apart from the fact that these were evidently samples of what the 3rd defendant was up to, there were no questions asked of the purchaser, whether by the proprietor or others, as to her frequent need for the same poison in such a short space of time. It is put by Mr Chui that the offences were technical. They were nothing of the kind. What did the 3rd defendant think this lady was up to? Why did he not inquire? The truth of the matter is that neither the proprietor nor the 2nd defendant cared.

18. The magistrate did not exaggerate or over - dramatise the case when he described what had gone on as conduct which "amounted to a cynical continuing, commercial supply of dangerous drugs and Part 1 poisons on demand". That is the factual background against which the attack on the sentences is to be examined.

19. In the case of the 2nd defendant and the dangerous drugs offences, the magistrate took as his starting point a term of 15 months imprisonment. He gave a discount of 6 months imprisonment because of his clear record, and a further three months for the entry of a plea of guilty. The maximum term prescribed by the relevant ordinance for these offences on summary conviction is 3 years imprisonment and a fine of $500,000. For the Part 1 poisons offence in relation to both the 2nd and the 3rd defendants, he took as his starting point 6 months imprisonment, allowing 2 months discount for the clear record of each, and 1 month for the plea of guilty, noting in relation to the plea of guilty that it came at the end of a series of court appearances, and that the case was overwhelming. At the date of these offences (for the prescribed penalty has since increased) the maximum penalty permitted by law for the Pharmacy and Poisons Ordinance offence was a fine of $30,000 and imprisonment for 12 months. The magistrate use of orders making the sentences concurrent in some case and consecutive in others was to give effect to what he regarded as the appropriate totality.

20. In support of the 2nd defendant's appeal it is said that the starting point of 15 months is too high, as is the starting point of 6 months imprisonment for the poisons offences. Then it is said that the magistrate failed to give sufficient credit for the pleas of guilty and for the defendant's good character and for the effect the sentence is having on his family. It is then argued that the magistrate failed to take into account the fact that the offences were committed at the behest of an agent provocateur. That says Mr Harris, although a matter in this case of limited impact, is one which should have had some mitigating effect on sentence, and in any event the police ought to have arrested his client earlier. Had they done so, the spread and number of charges would have been smaller and the sentences correspondingly less. Mr Harris also attacks an implication in the reasons for sentence that a more rigorous sentence is justified in cases of actual supply as opposed to cases of possession for the purpose of supply.

21. The trafficking points apart, Mr Chui adopts all these points on behalf of his client, in addition to those which he raised which are peculiar to his client's case.

22. In support of the starting point argument in relation to the dangerous drugs sold, I was referred to the cases of Chan Chi Man [1987] HKLR 221; and Leung Ngai Hong MA 432-535 of 1994. The hearing of this appeal took place at the beginning of the second week in succession that I sat hearing magistracy appeals, and the session was my first in a considerable time. This was the third case before me within a week concerning the drug midazolam. In the first week my attention was drawn to the fact that midazolam is a drug which is so troubling the authorities in its increased use or abuse that a case is shortly to be put before the Court of Appeal for it to provide tariffs or guidelines for sentencing for offences involving the drug. I was presented at an earlier appeal with evidence that midazolam was used to treat sleep disturbances, the normal dose used to induce sleep being 15 milligrammes, that the drug could be misused as a drug of addiction, and was being used by heroin addicts in conjunction with heroin. I was then specifically asked not to seek to set guidelines or tariffs given the intended approach to the Court of Appeal, and I was at first content to proceed in the meantime, as was the Crown, by treating this drug as if it lay in the same gravity band as methaqualone. That was a convenient approach because that drug is the subject of guidelines in the case of Chan Chi Man. But in the few days since that first case, it has become increasingly apparent that the drug is recognised as one which is increasingly abused, and I note what the magistrate has to say is his experience :

"I am also entitled to take into account conditions prevailing in my area of jurisdiction: on almost a daily basis older drug dependants appear in this Court charged with possession of midazolam maleate which is used in conjunction with heroin hydrochloride: with similar regularity, young persons appear on charges of possession of the three substances covered by these charges but, particularly, codeine phosphate in cough syrup form."

23. In the circumstances, and most particularly when I am dealing with those running and working in a pharmacy, whilst I will not seek to suggest standard tariffs for midazolam offences, it would be artificial for me to disregard entirely what is apparently common knowledge amongst magistrates who deal with such cases, and I shall consider the tariffs in Chan Chi Man, a case decided in 1987 and which deals with methaqualone and not midazolam, in the light of this development, and of course in the light of the particular circumstances of this case. I have no information about the drug flunitrazepam. It is not suggested that it should be treated as falling within some special band of gravity, or worse than methaqualone, although I note that the magistrate says that it is one of three substances for the possession of which young persons are regularly appearing before him. The number of tablets which form the basis for the charges to which the 2nd defendant pleaded guilty was 42, that is, the combination of both midazolam and flunitrazepam. Chan Chi Man sets a tariff for possession for the purpose of trafficking in up to 2,000 tablets of methaqualone as being an amount which the court thinks fit, and between 2,000 and 4,000 tablets at between 6 to 12 months imprisonment, these tariffs to relate to sentences after a plea of not guilty. This, says Mr Harris, demonstrates that the starting point of 15 months imprisonment adopted by the magistrate in this case was far too high, although he accepts that in this case the facts are such that a custodial sentence was not inappropriate.

24. The case of Leung Ngai Hong is of limited use for present purposes. It was a case in which an appellant was sent to prison for 15 months after plea for possession of a quantity of midazolam tablets, and Bewley J. reduced that term to 9 months. There was no evidence before the judge as to whether methaqualone and midazolam were comparable in effect, and he said that in the absence of such evidence and in the light of the Crown's concession that the Narcotics Bureau [then] considered the two drugs as of comparable seriousness, it would be wrong to apply a tariff heavier than that approved in Chan Chi Man.

25. I was also referred to a draft judgment in a magistracy appeal. That sounds rather odd, but it arose in this way; that the family of the 2nd defendant had shown counsel a newspaper report of an appeal by a pharmacy employee who had pleaded guilty to trafficking charges, where a custodial sentence was, on appeal, set aside, and the family wished, quite understandably, to draw counsel's attention to this apparent disparity in the treatment of the 2nd defendant. The case is Sit Chi Keung MA 135 of 1996. There are a number of distinguishing features. The draft does not say what the drug was; and whatever it was, there was no evidence that the drug was being particularly abused; the drugs were dispensed to a customer or customers who had previously obtained the same drug on prescription; and the appellant had refused to sell the drug to undercover officers who had asked for it.

26. I note therefore, with the qualifications which I have expressed, the guidelines in Chan Chi Man; and that in this case there were pleas of guilty, and that the 2nd defendant was, as indeed was the 3rd defendant, a person of previous good character. Nevertheless, it is a most significant aggravating factor in this case that those selling were doing so on a regular basis, and much more seriously, were doing so in the course of running, or helping to run, a pharmacy business. It is particularly serious because pharmacies are trusted, as must be obvious to all proprietors and their employees, to conduct their business with the most scrupulous care when it comes to the dispensing of drugs and the sale of poisons. It is in my judgment a very serious offence indeed for those running or employed in a pharmacy knowingly to supply drugs and poisons in breach of the law, and to do so as a matter of course, and without any regard to the identity of the purchaser, the purpose of the purchase, the fact that the same purchaser comes back time and again and at short intervals for the same drug or poison, and to the possible onward sale by that purchaser to others. To do it where the drugs or poisons are potentially addictive and are being sought on a regular basis, is particularly heinous. Those who in such a position behave in that way, must in my judgment expect immediate and effective custodial sentences. Almost invariably, they will be people with no previous convictions, a factor which will, on facts such as those in the present case carry limited weight in mitigation. In my judgment the discounts given by the magistrate in this case to both appellants for the fact of their previous good character were significantly too generous.

27. In so far as it is said that the impact of these sentences will be severe for the family of the appellants, that is no doubt so, and it is a fact that emerges vividly from the probation reports as well as from the medical report which I have read and it is of course tragic. But that is not a consequence which can be laid at the door of the magistrate or of this court. I would reflect only that the illicit dealing in drugs is a trade that causes somewhat more tangible and longer lasting anguish to youngsters and to their families in this territory. Pharmacists and their employees who knowingly lend themselves to such conduct will find that the courts will proffer little leniency when their conduct is exposed, and it is the function of the courts to convey that message to the few who might be tempted to err.

28. Then it is said that the magistrate gave no consideration to the fact that this was a case in which the offences were committed at the behest of an agent provocateur. Mr Harris says that the investigation was in the nature of a spot check and that although it is not a case for a substantial discount on this ground, some discount is merited. I have for the purpose of this point studied a series of English cases, as well as two Hong Kong authorities which counsel helpfully drew to my notice.

29. It is not entirely easy to glean from the English cases an agreed approach. A distinction is to be drawn between cases where police undercover agents infiltrate a criminal group or enterprise to investigate and gather evidence, on the one hand, and, on the other, cases in which a fresh offence is instigated by an undercover agent. In the latter instance a court may, if it thinks it right to do so, reduce the penalty (see Underhill, [1979] 1 Cr App R (S) 270). However it is clear that the fact that the very offence might not, but for the involvement of the police or an informer, otherwise have been committed does not necessarily mean that a court will mitigate the penalty. Amongst the relevant considerations will be these : whether the offence was an isolated offence or whether on the other hand the instigated offence was but part of a course of criminal conduct to which the defendant was party; whether the offender was induced to commit the type of offence which he would otherwise not commit, or on a scale which he might otherwise not embrace (see R. v. Chapman and Denton [1989] 11 Cr App R (S) 222); or whether the defendant was subject to pressure or encouragement to commit the offence (see R. v. Perrin [1991] 13 Cr App R (S) 518). If the offence is one which the defendant would not have committed had he known that the person approaching him or drawing him in was a policeman, and that is the only reason he would have resiled from its commission, so that the offence would have taken place with someone else, that is not an entrapment situation - see R. v. Liu Chun Fai [1987] HKLR 1032, where the real question was said to be whether the sale of forged notes would have taken place to somebody else if it had not taken place to the particular officer. That is to be contrasted with an obvious case of entrapment, a case at the other extreme, where, to use the example put by Lord Salmon in R. v. Sang [1980] AC 402, and cited in Liu Chun Fai at page 1035, "a dishonest policeman, anxious to improve his detection record, tries very hard with a help of an agent provocateur to induce a young man with no criminal tendencies to commit a serious crime which would otherwise not have been committed."

30. Applying those principles, it seems to me that this is not a situation which avails the appellants, or if it does it avails them to a very limited degree. There is no question, but that in this case there was no encouragement or pressure of any kind exerted by the young female undercover officer on either appellant; and it is evident that if the offence had not been committed in respect of this customer it would have been, and no doubt was, with others. The 2nd defendant said as much when he averred to the fact (see paragraph 29 of the admitted facts and the contention on his behalf in mitigation) that he had been told to sell drugs to regular customers on prescription even if there was no medical chit. So too with the 3rd defendant. In the statement of agreed facts, he said that although cough medicine was bought on the pharmacist's instructions, they also sold it when he was not there. I note in this context also the encouragement given by the 2nd defendant to the purchaser to buy the other more fun making drug, and to buy the following week when the drug would be cheaper. The magistrate did not address the question of entrapment. It was not raised. But in any event, it is not on the facts of this case a matter which avails the appellants.

31. I am then urged to say that even so, police conduct has worked to the unfair disadvantage of the appellants, because the police should have arrested them earlier. They had ample evidence on which to do so well before 31st July. Had they arrested them earlier, the argument goes, they would have faced fewer charges. This is not a submission with which I can agree. A month was a perfectly reasonable period over which to test the conduct of this business and those who ran it and worked in it; to test how open and frequent were the breaches, the circumstances in which they were prepared to commit them, whether there would be any concern by the pharmacy about the repeated supply of the same poison and drugs to the same customer in regular, almost daily succession; it was in other words a proper test of the true extent of the criminality involved.

32. A matter in respect of which Mr Harris has, it seems to me a valid complaint, is the suggestion by the magistrate, in the passage where he distinguishes this case from the facts in Chan Chi Man, that cases of actual trafficking should be visited with higher penalties than possession for the purpose of trafficking. The penalties for the two types of conduct, now embraced as one offence of trafficking, are the same, and I do not think that the distinction should be drawn.

33. Against all the considerations which I have addressed, the question is whether the magistrate has, as is contended imposed sentences which are manifestly excessive or wrong in principle in the case of either appellant.

34. In taking the starting point of 15 months imprisonment for the drug trafficking offences, the magistrate has, it seems clear, built in the aggravating feature that the sales were by a pharmacy, that the employee, the 2nd defendant, was proactive in the sales, that no questions were asked, and that the offences were part of a course of conduct. But for these and other aggravating features to which this judgment makes reference, it must be the case that each supply of a few tablets of midazolam and flunitrazepam if taken in isolation could not justify a starting point of 15 months imprisonment, even taking into account the adjustments to be made to the tariffs set by Chan Chi Man as a result of evidence of abuse of the drug midazolam. And a 15 months starting point for a one-off supply of just a few midazolam tablets by a pharmacy employee might still be said to be on the high side. But even if so, on the facts of this case, a 6 months sentence for each offence of trafficking is not in my judgment excessive, even taking into account the pleas of guilty (for which slightly too little credit has been given) and the clear record of the 2nd defendant - for which in my opinion significantly too much credit was given. For the Part 1 poisons offence, the magistrate has taken a starting point of 6 months imprisonment and reduced the term on each charge to 3 months imprisonment. The 2nd defendant was on a regular basis supplying cough syrup to a young lady, at the same time as he was supplying her with dangerous drugs. On each occasion that he did so he must have known or strongly suspected that the syrup was for abuse. That being so, given the other aggravating features of this case, neither the starting point nor the term imposed for each Part 1 poisons offence can be said to be excessive.

35. In the case of the 2nd defendant, the magistrate has rightly run the trafficking and Part 1 poisons offences together ordering the sentences to run concurrently. The totality of 18 months which the magistrate has imposed by the use of concurrent and consecutive terms appears to me to be entirely appropriate to the circumstances of this case. Accordingly, but for one matter which has arisen this morning and for which I shall, perhaps very generously, grant some credit, the appeal is dismissed.

36. The matter which has arisen this morning - and I emphasise that this does not in any way derogate from the appropriateness of the sentences imposed by the magistrate - is the fact that as a result of the very unattractive insistence for some time by the 3rd defendant that he knew not what was going on and that the employees were acting without authority the 2nd defendant was prepared to give evidence at a Newton hearing if that was necessary. There is, I know, much authority to the effect that promises of help should meet with no credit. But in this particular case, I am entirely satisfied that the 2nd defendant was prepared to help and I shall assume that the fact that I raised the possibility of his evidence may have had some bearing on the 3rd defendant finally coming to his senses and admitting his true role. In the circumstances, I shall reduce the overall impact of the 2nd defendant's sentence to one of 16 months imprisonment instead of 18. I shall in the moment work out how that should properly be done.

37. I have fully rehearsed how serious was the conduct of the 3rd defendant. The fact that the product he is convicted of supplying was a Part 1 poison and not a dangerous drug is reflected in the lower individual terms imposed. Prior to the opening of his own business the 3rd defendant, so I note from the probation report, had worked in dispensaries for 9 years. The admitted facts show that on the 3 days covered by the charges relating to his conduct, the customer asked, in his presence, for drugs as well as cough syrup. But putting aside the contention that he heard the request for drugs, for he is not to be sentenced for complicity in that, he cannot with his experience have assumed that the young lady who asked for and received a new bottle of cough syrup on each of the days, 7th, 8th and 10th July was doing so because she had a cough. That he must have assumed or strongly suspected that the Part 1 poison was intended for abuse is crystal clear, and that is a very serious matter. In such circumstances, neither the individual sentences in his case imposed, nor their totality, is excessive; and his appeal is dismissed.

38. In order to give effect to the slight production in the overall sentences on the 2nd defendant, the sentence of 6 months imprisonment in respect of Charge O was obviously intended by the magistrate to run concurrently with other 6 months term saved in respect of Charges Q and S. He ordered 6 months on Charge Q to run consecutively to Charge O and I confirm that sentence. As for Charge S, I shall order that 4 months of that run consecutively. To the sentences on Charges Q and O, 2 months to run concurrently, making a total of 16 months imprisonment.