R. v. GARY ORTON

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL No. 225 OF 1997

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J U D G E M E N T

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1. The appellant was convicted on his own plea of Trafficking in a Dangerous Drug and Possession of a Poison included in Part 1 of the Poisons List. He was sentenced to 10 months imprisonment in respect of the first charge and 6 months imprisonment in respect of the second charge with the sentences to be served concurrently.

2. The agreed facts were that the appellant entered Hong Kong through the airport and upon examination of his luggage and clothing was found to have in his possession the drugs and the poisons set out in the charges. In respect of the first charge of trafficking that amounted to 1160 tablets and 13.97 grammes of tablet fragments containing a total of 6.139 grammes of Diazepam which is otherwise known by the commercial name Valium. In respect of the second charge the poisons were 34623 tablets of Methandienone, 490 ampoules of Testosterone Enanthate and 10 ampoules of Testosterone. It was common ground that the drugs and poisons were for the personal use of the appellant and that the element of trafficking was based upon his importation of the drugs into Hong Kong and not upon any evidence of an intention to sell in this territory. The magistrate very properly took into account the principle laid down in R v. Lee Chiu-pang 1995 2 HKC 523 where Mortimer JA. said at 525 :

"Clearly those who take drugs across borders must be dealt with more severely. As a member of the international community, here in Hong Kong we regard that as a particularly serious circumstance of an offence. The judge rightly took this into account as an aggravation."

3. It must be said at the outset that the magistrate in this case was given very little assistance as to the manner in which he should evaluate the seriousness of diazapam as a dangerous drug particularly as a diligent search by counsel has not revealed any previous consideration by the courts of the appropriate level of sentencing for that drug.

4. I have had considerable assistance from a letter from Professor R.L. Jones Professor of Pharmacology at the Chinese University of Hong Kong and a publication entitled Drugs of Abuse published by the Drug Enforcement Agency of the U.S. Department of Justice and distributed to judges by the Judicial Studies Board to which both counsel before me agreed I should refer. It is common sense that different dangerous drugs must be considered differently depending upon a number of factors. High upon the list of those factors must be the potential for abuse of the drug, the degree of safety or otherwise with which it can be consumed, the extent to which the drug is physically addictive or psychologically habit forming and what legitimate medical use there is for it. Both the technical sources to which I have been referred compare these factors for the drug Methaqualone and for Diazapam. The comparison is useful because in Attorney General v. Chan Chi-man [1987] HKLR 221 at 227 Roberts C.J (as he then was) set out a guideline for the sentencing of those convicted of trafficking in Methaqualone powder that is the pure drug :

"The scale of sentencing for the possessin of Methaqualone for the purpose of unlawfully 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 1000 grammes - 12 - 24 months"

5. The Chief Justice then went on to deal with other quantities of the drug.

6. If, therefore, the relative undesirability of Diazapam can be assessed in the light of the undesirability of Methaqualone the levels of sentencing for various quantities of Diazapam can be determined. Both sources which I considered confirm that Methaqualone has been withdrawn from the list of medications which may be prescribed by doctors in many countries and it no longer has a widespread legitimate medical use. Diazapam or Valium is still widely prescribed by doctors both here and in many countries for the treatment of stress. Methaqualone causes a moderate level of physical dependence and a moderate level of psychological dependence. Diazapam causes a low level of dependence in respect of each factor. The risk of coma and death from abuse has been found to be high in respect of Methaqualone and in respect of Diazapam Professor Jones comments :

"Like other benzodiazepines it is considered to be a relatively safe therapeutic agent; cardiovascular and respiratory depression are rare and there is minimal toxicity to blood forming tissues, liver and foetus. A few deaths have been reported at doses of greater than 700mg of diazepam (or chlordiazepoxide). The striking advantage of this group is their remarkable margin of safety."

7. The withdrawal symptoms in respect of Methaqualone are said to be marked and may include convulsions. Those for Diazapam are not marked and are said to include increased anxiety with tremor and dizziness.

8. Whilst nothing can detract from the fact that trafficking in Diazapam is a serious offence the dearth of cases relating to this drug in our courts indicates that the trade in this drug has not reached the proportions which require deterrent sentences. A comparison of Methaqualone and Diazapam confirms that in respect of all the major indicators Diazapam occupies a significantly lesser place in the hierarchy of drugs than does Methaqualone and therefore in respect of the same quantity of drug sentences for Diazapam should be significantly less than Methaqualone but still high enough to mark the fact that Diazapam is a dangerous drug. I would have thought that a sentence of about two thirds of that appropriate for a quantity of Methaqualone would be right in the same circumstances and for the same amount of Diazapam.

9. I am not asked to interfere with the sentence in respect of the second charge and Mr. Forrest does not address me on it. The appeal is dismissed in respect of the second charge.

10. The appellant has been in prison since the 13th of November 1996. A period of about 6 months. After remission he has served the sentence in respect of the second charge. If he had been convicted of trafficking in Methaqualone after trial the starting point for his sentence would have been at the discretion of the court as the total quantity of the dangerous drug in the first charge was 6.139 grammes. In any event the starting point would have been less than the 6 month starting point, after trial. for 500 grammes of Methaqualone as set out in R. v. Chan Chi-man. Upon a plea the sentence would have been reduced. I allowed the appeal against sentence in respect of the first charge to the extent that I substituted a sentence which affected the immediate release of the appellant.