THE QUEEN v. SIN SHING CHEONG

IN THE SUPRENE COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 268 OF 1987

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JUDGMENT

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1. The Appellant pleaded guilty in the Magistrates Court to a charge of trafficking in the dangerous drug, contrary to section 4(1)(a) of the Dangerous Drugs Ordinance.

2. The admitted facts were that a police officer, believing that the Appellant might be able to supply Mandrax, “posed as a customer” and met him one afternoon in a restaurant. The Appellant asked the officer whether he wished to buy Mandrax and when he said that he did, the two discussed prices and eventually exchanged pager numbers for later contact. In the evening of the following day, the Appellant telephoned the officer and asked whether he "really wished to buy Mandrax". The officer said that he did and they then arranged to meet again at the restaurant the next day. They met and agreed upon a sale of 3,000 tablets at HK$3.20 each. They parted after arranging to meet later in the day at another place to conclude the transaction. The officer arrived at the rendezvous first. The Appellant arrived by taxi. After arriving, the Appellant met another man who accompanied him to meet the officer. When they met, the Appellant said that "there were only 1,500 tablets in stock”. He then went to the taxi and returned with a plastic packet. On returning, he asked the officer to accompany him to a nearby toilet whilst the Appellant's companion asked for "payment of the money” The officer paid that man $3,000 and, according to the admitted facts, that man “walked away with no trace”. The Appellant and the officer went to the toilet where the Appellant was arrested. The plastic packet he was carrying contained 1,450 tablets. Subsequent chemical analysis revealed that they contained 563.4 grammes of methaqualone.

3. In mitigation, his Counsel referred to his age (23 years), his clear record, his co-operation with the police, the nature of the drug, the Appellant's subsidiary role in the transaction, the receipt of all the money by another person and the reason for his involvement. As to the last, it was said that one Ah Ming was the man who “walked away with no trace" and that the Appellant had agreed to do this "one-off" transaction for him in order to repay "about $3,000" which the Appellant had lost to Ah Ming through gambling.

4. Mr. Plowman, Counsel for the Appellant - he did not represent him in the Magistrates Court - submits that the sentence

“is manifestly excessive having regard to:-

(a) the various matters contained in the judgment of the Court of Appeal in Application for Review No. 19 of 1986 R. v. CHAN Chi-man; and

(b) the fact that the Appellant was a first offender had pleaded guilty and played the role of a 'middleman' as between the undercover police officer and the supplier."

5. The learned Magistrate in his Statement of Findings said that he did not follow the guidelines laid down in CHAN chi-man because he thought that on the basis of the decisions in R. v. YEUNG Ying-kan[1] and R. v. CHOW Kwok-ping[2] the guidelines were not appropriate where the offence was trafficking and not possession for the purposes of unlawful trafficking. It was Mr. Plowman's submission that the learned Magistrate should not have ignored the guidelines of CHAN Chi-man completely but should have used them as a starting point in assessing the appropriate sentence. That starting point, according to his submission, was a sentence less than imprisonment for six months because the number of tablets involved was less than 2,000. Consequently, had the Appellant been convicted of a section 7 offence, given his clear record, his age and his plea of guilty, he may have not received a prison sentence at all. In any event, he submitted, had a prison sentence been thought appropriate it would not have exceeded three months on a plea of guilty. The two and a half years imposed by the learned Magistrate was, therefore, 10 times as great as the longest prison term to which the Appellant would have been liable had he been convicted on a section 7 charge. The sentence was, therefore, manifestly excessive.

6. I think it is instructive to look at the reasoning which formed the basis of the guidelines set out in CHAN Chi-man. Delivering the judgement of the Court of Appeal in that case, the learned Chief Justice said:-

"… we concluded that the prevalence and potential dangers of methaqualone are such that it should be regarded by the courts as being in the same scale of seriousness as opium.

The scale of sentences for the possession of methaqualone for the purpose of unlawful 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 1,000 grammes - 12 - 24 months;

(d) over 2,000 grammes - 2 - 3 years;

(e) over 3,000 grammes - 3 – 4 ½ years;

(f) over 6,000 grammes - 4½ - 6 years;

(g) over 9,000 grammes - 6 years upwards

The tariff goes further in paragraphs (e), (r) and (g) than that prescribed for opium in Lau. The latter should therefore be amended in the same manner. Thus the above tariff can be said to replace Lau with regard to opium.

Methaqualone tablets

The above guidelines apply to possession of methaqualone in powder form, which can readily be weighed in grammes. On this basis, a proper, sentence on this respondent, found in possession of over 33 kilogrammes of methaqualone, would be in the region of 7 to 10 years.

However in the majority of cases involving methaqualone which come before the court, the drug is present in tablet form, not in powder.

We are told that the normal dosage in a Mandrax pill, the form in which methaqualone is commonly available, is about 250 milligrammes.

But, seizures in recent months have shown that the average content of a pill containing methaqualone, available for sale in the retail market in Hong Kong, varies between 2 and 13 milligrammes per tablet, with an average of about 8 milligrammes.

If an average of 10 milligrammes per tablet were taken, this would mean that possession of 1,000 tablets would involve a content of approximately 10 grammes of methaqualone. This would produce a range of sentences for tablets out of proportion to the suggested tariff for powder, which provides for a range of 6 - 12 months for possession of between 500 and 1,000 grammes of methaqualone powder.

Rough and ready though this may be, we think that the right course is to assume that any tablet found to contain any proportion of methaqualone shall be deemed, for the purposes of sentence, to contain the dosage that would be present in a proper Mandrax pill, that is to say, 250 milligrammes per tablet. On this basis, the suggested tariff would be as follows : -

(a) up to 2,000 tablets - as the court thinks fit;

(b) over 2,000 tablets - 6 -12 months;

(c) over 4,000 tablets - 12 - 24 months;

(d) over 8,000 tablets - 2 - 3 years;

(e) over 12,000 tablets - 3 - 4½ years;

(f) over 24,000 tablets – 4½ - 6 years;

(g) over 36,000 tablets - 6 years upwards."

It is clear from that extract that the most significant factor in determining the appropriate sentence is the weight of the methaqualone possessed. The separate tablets table represents "a rough and ready" approach to be used when the methaqualone cannot be "readily weighed in grammes” or where, although the weight is known, the average content of methaqualone in each pill is less than the normal dosage of 250 milligrammes. In each of those situations the average content is to be taken as 250 milligrammes for the purposes of sentence. The table on page 227 is not a guideline for use in all tablet cases but merely a ready reference table showing how to relate the number of tablets, in the two situations just mentioned, to the weight table guidelines set out on page 226. If, however, the average weight of methaqualone per tablet is greater than 250 milligrammes then the table on page 227 is not appropriate because the number of tablets does not then properly take into account the actual danger created by the drug.

7. In this case, the Appellant had 1,450 tablets containing 563.4 grammes of methaqualone. If he had been convicted on a charge of possession for the purpose of unlawful trafficking the sentencer would have referred to (a) on page 226 arid not (a) on page 227. A sentence of imprisonment for six to twelve months would have been the appropriate starting point.

8. However, as the learned Magistrates pointed out in his statement of findings, the Court of Appeal has said on at least two occasions that guidelines established in respect of Section 7 offences are not applicable “where the charge is that of direct trafficking” (Yeung and Chow, supra).

9. Had the Appellant sold pills containing the normal Mandrax dosage of methaqualone I think that a sentence of imprisonment for 2½ years would have been excessive bearing in mind that the Court of Appeal has ranked methaqualone and opium as drugs of equal danger. In this case, however, it would be quite wrong to treat the Appellant as the purveyor of a drug no more harmful than opium. In Chan Chi-man the Court of Appeal had in mind pills whose methaqualone content varied between 2 and 13 milligrammes per tablet” -- pills so mild that the Court found it necessary to give them a “deemed” content of 250 milligrammes in order to equate them with Mandrax for the purposes of sentence. The pills in this case, however, had 30 times the methaqualone content of the most dangerous black market pills known to the Court of Appeal and 1½ times the strength of a proper Mandrax pill". The purveyor of these pills constitutes a much greater danger to his consuming public than his counterpart selling the milder pills referred to in Chan Chi-man. I, therefore, think the learned Magistrate was justified in imposing a sentence above the range for trafficking in "proper Mandrax” In the circumstances I am not convinced that the sentence is either wrong in principle or manifestly excessive.

10. I, therefore, dismiss the appeal.