HKSAR v. WONG CHI SING

HCMA 3 & 204/2003
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS. 3 & 204 OF 2003

(ON APPEAL FROM TWCC 2812 & 3067 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence. The Appellant is currently serving 2 years' imprisonment in respect of three cases of trafficking in a dangerous drug passed upon him at Tsuen Wan Magistrates Court.

2. The facts giving rise to the sentences are these, that on 23 September of last year, outside the methadone clinic in Tsuen Wan, police officers saw the Appellant sell two tablets of midazolam. The weight was 27 milligrams of the active ingredient of the drug.

3. He was not arrested then. The police were keeping an eye on what was going on there and, four days later, on 27 September, they saw him do exactly the same thing again. He was arrested two days later. He was given bail. He appeared in court. The bail was renewed. Then, on 28 October, outside Tsuen Wan Town Hall this time, he trafficked in 50 tablets of midazolam. The weight of the drug involved was 0.68 of a gramme.

4. He pleaded guilty. In respect of the first two sentences, he was sentenced to 18 months' imprisonment, to run concurrently to each other. In relation to the last offence, with the greater amount, he was sentenced to two years. That was ordered to run concurrently.

5. Mr Surman appears for him today, armed with the authorities that give the guidelines for this drug, and it is common ground that midazolam falls to be dealt with in the same way as methaqualone, and the guidelines in a case called Chan Chi Man therefore applies.

6. Even if one takes all of the drugs together, they fall in the first category which is a category that runs to 500 grammes and attracts a sentence as the court thinks fit. The tariff goes on in brackets of over 500 but under 1,000: 6 to 12 months; over 1,000: 12 to 24 months; over 2,000: 2 to 3 years; over 3,000: 4 to 4 1/2 years.

7. Mr Surman says the Magistrate doubtless gave credit for the plea and, therefore, the notional starting point must have been 3 years. On the guidelines of Chan Chi Man, a sentence of that length would have been for midazolam in a quantity of nearly 3 kilograms. Mr Edmond Lee, who appears for the Respondent, acknowledges accordingly that the sentence is - and perhaps this understates it - on the high side.

8. One can quite see why the behaviour of this Appellant attracted a sentence at the very top end of the bracket for this sort of crime from the Magistrate, and rightly so, but it does appear to me that, looking at the guidelines we all agree apply here, the sentences are too long.

9. Accordingly, what I shall do in respect of this Appellant, who is a long-term drug addict with many previous convictions for the possession of heroin and one previous conviction in 1996 for trafficking in a dangerous drug, which looks like it was heroin from the sentence passed, I shall take sentences right at the top end of the discretionary band, in effect, the sentence that you arrive at at the beginning of the second band of six months, as a starting point in each case.

10. I shall reduce that by a third for his pleas, and that would produce, in respect of all these charges, a sentence of 4 months' imprisonment. I will order the first two charges to run concurrently, but the third charge, which was committed whilst on bail, I shall order to run wholly consecutively. The result is 8 months' imprisonment.

11. One of the aggravating factors that has been discussed here today is the fact that this Appellant was selling outside a methadone clinic, and I have taken that into consideration in arriving at the sentences I have passed, but it seems to be that the aggravation of selling midazolam in these circumstances in these quantities is nothing, proportionately, like the aggravation it would be as if he had been selling heroin.

12. I have asked both sides here why it is that drug addicts or heroin addicts take midazolam, and it is common ground that just one tablet taken either with heroin or with methadone produces, or is thought to produce, an enhanced effect. In other words, it makes the experience that the addict craves a more pleasant one for him.

13. This is not a case where a customer of the Appellant was going to take handfuls of the drug and, by a large overdoes as happens in cases of this nature, achieve some sort of looked-for result. And, in fact, in argument, we have agreed that the sale of midazolam in these circumstances is akin to providing the tonic that goes with a gin and tonic. In those circumstances, this Appellant's trafficking in midazolam is not as mischievous as if he had been selling it in large quantities to young people around discotheques or the like, though the fashion for young people taking midazolam in that quantity seems, from the experience of the court, to have diminished of late.

14. There are, in fact, two appeals before the court. One is number 3 of 2003; one is numbered 204 of 2003. For the avoidance of any doubt, the sentences of 4 months apply to all the charges in those two appeals, and in Appeal No. 3 of 2003, the two sentences are concurrent to each other.