HKSAR v. LEE HANG WING

HCC Case No. 83 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL PROCEEDINGS

CASE NO. 83 OF 1998

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J U D G M E N T

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1. The defendant pleaded guilty to three counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2. The defendant was born in January 1940. He used to run a medicine shop but retired in 1995. At about noon on 25th July 1997 the defendant was seen to exchange a paper bag he had been carrying in Tai Po Road junction with Nam Cheong Street with a man for a wad of bank notes. The police immediately stopped and searched both men. The money came to a total of $8,000. The paper bag contained 1000 tablets of midazolam maleate which became the subject of the first charge. The defendant then led the police to a flat in Ki Lung Street he had rented where some 250,000 tablets of midazolam and the like were stored. This second batch is the subject of the second charge. The defendant then took the police to his home in Mei Foo Sun Chuen where a further 5,000 odd tablets of midazolam and the like were seized for the third charge. The defendant admitted under caution that he had obtained the dangerous drugs from the mainland. He did sell such drugs to close friends in Hong Kong when they required them. But usually he sent his stock to Macau.

3. The precise quantities and purities of the dangerous drugs seized in this case is detailed in the table below.

Legend: (s) - Seized in the street. (g) Seized in Ki Lung Street flat. (h) Seized from the defendant's home.

4. It is common ground that no tariffs directly on benzodiazepines have been laid down by higher courts in Hong Kong. In the circumstances, I am very grateful to both counsel who researched the problem and furnished me with copious reference materials to assist me in this case.

Comparable Tariffs

5. My task would be simpler if I could align this case with the tariffs laid down for one of the drugs of abuse. The relevant authorities are: for ice, A.G. v. Ching Kwok-hung [1991] 2 HKLR 125; for heroin, R. v. LAU Tak-ming [1990] 2 HKLR 370; for opium, R. v. Lau Yiu-nam [1986] HKLR 954; for opium, R. v. Lau Yiu-nam [1986] HKLR 954; for cannabis , A.G. v. Chain Chi-man [1987] HKLR 221; for methaqualone (mandrax), A.G. v. Chain Chi-man [1987] HKLR 221 and for MDMA (ecstasy) HKSAR v. LEE Tak-kwan, CA 177 of 1997. Unfortunately for me, opinion from those wiser and far more experienced are divided as to where midazolam trafficking should land in the midst of existing tariffs.

6. For simple possession of a drug similar to midazolam maleate, recent authorities have held that the sentence should be comparable to that for simple possession of methaqualone. See: HKSAR v. YIU Wai-chu, MA 624 of 1997 and HKSAR v. LUK Yun-shing, CA 357 of 1998. This would suggest that midazolam as a dangerous drug should be regarded as similar in nature to mandrax. However, in R. v. Orton, MA 225 of 1987 and HKSAR v. LEE Chi-wo, MA 21 of 1998, both on trafficking of midazolam, Gall, J held that an appropriate level for sentencing in respect of a drug similar to midazolam maleate should be two-thirds of the sentence set out for methaqualone. Not surprisingly, Mr. Mumford for the defendant urged me to follow Gall, J.

7. But, in R. v. SIU Yuen Fong and TAM Kwok Kin MA 582 of 1986, Stock, J appeared to hold the view that sentencing for midazolam should be based on the tariffs for methaqualone but adjusted upwards to reflect the increasing trend of abuse of midazolam. Although the offence in that case was possession of midazolam for the purpose of trafficking, it is now generally accepted that no distinction should be drawn between the abolished offence and trafficking simpliciter. Even if Stock, J can be ignored, the preponderance of the authorities is on the higher side for in HKSAR v. LEE Tak-kwan, CA 177 of 1997 our Court of Appeal observed that,

"We note that the sentencing guidelines in A.G. v. Chu Chi-man (sic) [1987] HKLR 221 for methaqualone (Mandrax) may be thought to be inconsistent with the guidelines we recommend in this case. "Mandrax" is not at present a prevalent drug of abuse in Hong Kong. If its abuse should ever become prevalent again, it may be necessary for this Court to review the "Mandrax" guidelines."

8. This indicates that the "Mandrax" guidelines should not be applied to prevalent drugs of abuse like benzodiazepines. In view of the huge quantities involved in this case, the adjustment to be made for increasing abuse in midazolam is not a matter of months as in R. v. SIU Yuen Fong and TAM Kwok Kin, but years. My duty is to find a rational basis for adjustment.

The Current Approach

9. There are several aspects to fixing the scale of sentencing for drug trafficking. On the quantitative aspect, in Queen v. LAU Tak-ming [1990] 2 HKLR 370, Silke V-P said at p. 387,

"It has been suggested we simply retain the existing mixture basis with appropriate variations. This has its attractions, not least by providing overall continuity, but it seems to us to have too many flaws, for example the retention of the concept of notional conversion and a blurring of the differences between the three types of narcotic purity which now exist. The first would need in every case evidence to be called by the Crown as to the conversion method and the resultant value which, as we must now acknowledge, can lead to controversy and, possibly, injustice apart from considerable administrative inconvenience.

In the light of all this the one constant is the quantity of narcotic. It is contained in all the mixtures whatever their size. And that is the basis for the tariff we now set out."

On the qualitative aspect, in HKSAR v. LEE Tak-kwan, CA 177 of 1997 where the Court of Appeal set tariffs for trafficking in ecstasy, Mortimer V-P delivering the judgment of the court observed that,

"The guidelines laid down in R. v. Lau Tak-ming for heroin are well recognised and have been followed without criticism since 1990. These has been no suggestion in this case that they should be varied or revised.

In applying the guidelines in Lau Tak-ming to "ecstasy" the judge adopted the reasoning of the English Court of Appeal in Warren and Beeley. This decision is only persuasive but it is necessary to examine the reasons carefully to ensure that they are appropriate to Hong Kong having regard to the UK drugs legislation and the guidelines laid down by the English Court for heroin and other Class A drugs.

The necessary comparisons demonstrate at once that the statutory schemes and sentencing guidelines are different in the two jurisdictions. The United Kingdom Misuse of Drugs Act 1971 divides controlled drugs into three classes - A, B and C - depending upon the degree or type of harm involved. "Ecstasy" is not specifically mentioned in any of the classes but is a Class A drug consequent upon the definition in the "compounds" specified in Schedule II paragraph 1(c ).

Heroin and opium are both Class A drugs. Cannabis, cannabis resin and methaqualone are Class B drugs.

The statutory scheme in Hong Kong is quite different. The Dangerous Drugs Ordinance (Cap 134) specifies "dangerous drugs" in Part I of the First Schedule but these drugs are not further categorized. (Parts III and IV contain some modifications not relevant to the present enquiry)

In the United Kingdom the broad approach to sentencing has been much influenced by statutory categorisation of the drugs. See Warren and Beeley ..... ......

The absence of classification in the Hong Kong Ordinance has made it necessary for this Court to consider the properties and harmful effects of individual drugs in fixing the appropriate sentence and recommending guidelines. See, for example, the enormous differences in the level of sentence suggested in R. v. Lau Yiu-nam [1986] HKLR 954 for opium and in R. v. Lau Tak-ming [1990] 2 HKLR 370 for heroin, both of which are Class A drugs in the United Kingdom Ordinance.

.. .. .. .. ..

The approach of this Court has been to consider the degree or type of harm involved in the misuse of particular drugs. Our approach does not have the merit of simplicity but we have little alternative but to consider the proper level of sentencing for "ecstasy" from first principles. It is necessary to have regard the nature of the drug, its effects and the threat it poses to life and society compared with some of the other common drugs of abuse."

10. On the social aspect, the Court of Appeal in LEE Tak-kwan implicitly maintained the view taken in A.G. v. Leung Pang-chiu [1986] HKLR 608 and by Stuart-Moore, J (as he then was) as the sentencing judge in LEE Tak-kwan that appropriate sentences are necessary to stop abuse of soft and hard drugs before it becomes prevalent.

11. Following the current approach, I must first consider the degree or type of harm involved in the misuse of midazolam. The parties have placed before me expert reports specifically on midazolam and information published by United States authorities on drugs of abuse. Below is an excerpt from a 1996 edition of the publication by the Department of Justice of the United States:-

"Benzodiazepines were first marketed in the 1960s. Touted as much safer depressants with far less addiction potential than barbiturates, these drugs today account for about 30% of all prescriptions for controlled substances. It has only been recently that an awareness has developed that benzodiazepines share many of the undesirable side effects of the barbiturates. A number of toxic CNS effects are seen with chronic high dose benzodiazepine therapy. These include headache, irritability, confusion, memory impairment. depression, insomnia and tremor. The risk of developing over-sedation, dizziness and confusion increases substantially with higher doses of benzodiazepines. Prolonged use can lead to physical dependence even at recommended dosages. Unlike barbiturates, large doses of benzodiazepines are rarely fatal unless combined with other drugs or alcohol. Although primary abuse of benzodiazepines is well documented, abuse of these drugs usually occurs as part of a pattern of multiple drug abuse. For example, heroin or cocaine abusers will use benzodiazepines and other depressants to augment their "high" or alter the side effects associated with over-stimulation or narcotic withdrawal.

There are marked similarities among the withdrawal symptoms seen with all drugs classified as depressants. In its mildest form, the withdrawal syndrome may produce insomnia and anxiety, usually the same symptoms that initiated the drug use. With a greater level of dependence, tremors and weakness are also present, and in its most severe form, the withdrawal syndrome can cause seizures and delirium. Unlike the withdrawal syndrome seen with most other drugs of abuse, withdrawal from depressants can be life-threatening."

12. These information are confirmed by separate written reports by Mr. LEE Hi-fung, a registered pharmacist in the Inspection and Licensing Section of the Pharmaceutical Service, Department of Health of Hong Kong and Dr. LEE Tak-shing, psychiatrist and Assistant Professor of Psychiatry with the Faculty of Medicine of the Chinese University of Hong Kong. In particular, Dr. LEE says that,

Benzodiazepine dependence potential has been well-illustrated. Guidelines for its clinical use have been set in Hong Kong and elsewhere. In 1997, the Hong Kong College of Psychiatrists produced her guidelines on the use of benzodiazepines and related medicine, (published in the Hong Kong Journal of Psychiatry, 1997, Volume 7, Pages 22-23). According to these guidelines, the lowest effective dose of hypnotic should be used, and that chronic usage of these benzodiazepines is in general not recommended.

Among the available benzodiazepines in Hong Kong, midazolam is one of the most addictive ones. Various benzodiazepines have different potentials for dependence development, related to the duration of drug action. The shorter the duration of action, the higher the potential of development of drug dependence. Midazolam happens to be one of the shortest acting benzodiazepines, and thus, one of the most addictive drugs.

Local Scene of Benzodiazepine Misuse

The local scene of benzodiazepine misuse among drug abusers is reflected in the latest report (415, 1988-1997) of the Central Registry of Drug Abuse, from the Narcotics Division, Government Secretariat, Government of the Hong Kong Special Administrative Region.

In 1997, among known cases to the registry, 7.9% abused benzodiazepines. There is an increasing trend in benzodiazepine misuse. In 1995 and 1996, the figures were 3.9% and 5%.

Back in 1988 to the early 1990's, only around 2% of previously reported persons to the registry abused benzodiazepines. Among these people, the number who abused midazolam increased from 0.4% in 1996 to 1.3% in 1997.

However' one must be reminded that these reports may underestimate the genuine figure of substance misuse. It is most likely that we are seeing only the tip of the iceberg. This is particularly true for misuse of benzodiazepines and other "soft" drugs.

13. Mr. Mumford takes exception towards the last quoted paragraph on the ground that it is speculative. However, increasing trend of abuse is confirmed by statistics provided by Mr. CHENG Kok-choi, a forensic scientist with the Hong Kong SAR Government Laboratory:-

Yearly seizures of Midazolam

14. On behalf of the defendant, a written opinion by Dr. Benjamin Lai, a medical practitioner specializing in the field of psychiatry, was placed before me. Mr. Mumford confirmed that the views of Dr. Lai are not inconsistent with those from the experts for the government.

15. Nonetheless, Mr. Mumford contended that benzodiazepines should be rated below mandrax for sentence because firstly benzodiazepines are less deleterious and secondly mandrax no longer has any medicinal use whereas benzodiazepines may still be prescribed. I shall revert to the relative effects of benzodiazepines in due course. But I do not think drugs should be compared for the purpose of sentence on the basis of whether they have medicinal use. The fact that a drug is no longer used as a pharmaceutical makes it easier to control because they can be identified as contrabands instantly. A drug that still has medicinal use and thus can be legitimately carried by a drug store poses more difficulties for law enforcement officers because it may be sold illegally under cover of a legitimate facade.

16. Comparison of different types of dangerous drugs is almost impossible. One type may have little addiction potential but dramatic effect for the abuser. If the immediate effect of abuse is not that objectionable, the consequences of long term abuse or the withdrawal symtoms may be quite disastrous. Be that as it may, I should try to do my best to form a judgment for the purposes of the current approach.

17. Mr. Mumford believed that LUK Yun-shing was decided per incuriam where the Court of Appeal treated benzodiazepines the same as mandrax. He supported Orton where Gall, J found that methaqualone causes a moderate level of physical and psychological dependence whilst diazepam causes a low level of dependence in respect of each factor. The risk of coma and death from abuse had been found to be high in respect of methaqualone and in respect of diazepam but that benzodiazepines including diazepam were considered to be a relatively safe therapeutic agent. I might add that in LEE Yak-kwan, the Court of Appeal compared the different drugs of abuse and more or less came to the same conclusion. Their lordships, of course, were relying on expert opinion before them at the time. But such opinion may be regarded as outdated. According to Dr. LEE, I have quoted, benzodiazepines are no longer recommended for wide use. The short acting benzodiazepines are very addictive. The serious risks of weaning off benzodiazepines without close medical supervision have not been sufficiently emphasized to our courts previously. The American literature implicitly regards benzodiazepines no longer a safe therapeutic agent.

18. Taking into account all factors and circumstances, benzodiazepines, in particular midazolam, should be regarded as just one level below heroin in terms of overall harmful effect to society. It follows that sentence for trafficking in midazolam should be pegged to the tariffs for trafficking in heroin but discounted by, say, twenty percent.

An Alternative Approach

19. In as much as there is a lot to commend on the approach adopted by the Court of Appeal in LEE Tak-kwan, there may be reasons for an alternative approach.

20. First, as the Court of Appeal in LEE Tak-kwan has already pointed out, regard should be had to the differences in control legislation in the United Kingdom and United States on the one hand and Hong Kong on the other hand. United Kingdom and United States authorities categorize drugs of abuse by several classes. Whereas the Hong Kong legislature has consistently shown willingness to follow United Kingdom legislative schemes, despite ample opportunities it has not adopted the classification framework in the United Kingdom Misuse of Drugs Act 1971. This cannot be an oversight. One is, therefore, left wondering whether perhaps our local legislature has established as a firm policy not to deal with drug offences by distinguishing different types of dangerous drugs. It is not irrational for our legislature to decide that a dangerous drug is a dangerous drug. Hard or soft, drugs of abuse must be banned all alike and trafficking in different drugs should be dealt with on the same footing. If this view is correct, then as the Judiciary, perhaps we should not undermine the legislative intent by endeavouring to sub-divide drugs accordingly to our own definitions.

21. Secondly, the total and ultimate effects of drugs and pharmaceuticals are notoriously hard to confirm. The literature from the United States contains ample evidence of this. Barbiturates were very popular for the first fifty years of this century as a pharmaceutical. But concern about the addiction potential and associated fatalities led to the search for a better alternative. In the 1960s, benzodiazepines were introduced as allegedly much safer depressants with far less addiction potential than barbiturates. It took another thirty years for benzodiazepines to become known as sharing many of the undesirable side effects of barbiturates. Who knows what more we might discover in a couple of decades' time about barbiturates, benzodiazepines and ecstasy? The point is that if tariffs are set on what is now known as the comparatively less harmful effects of a particular drug, there is from experience more than an even chance that decades later the drug will be regarded as quite unsafe. By then, many users and abusers would have been poisoned. Perhaps this is one of the reasons why our legislature accepted that drugs should not be classified according to their presently perceived effects.

22. In the premises, once it is thought that a drug should be controlled, it should be controlled by the same measures as for other drugs. That means that one set of tariffs should apply to all drugs. That set of tariffs should be sufficiently high to discourage trafficking but leaving room for adjustment upward for the worse as in the case of ice or downward when the drug is clearly passing into obscurity. The highest set of tariffs is for trafficking in ice which is about ten percent above that for heroin. Ice is known to be an even more vicious drug than heroin. I suggest it would suffice to apply the tariffs for heroin trafficking to benzodiazepine trafficking.

The Exceptional Approach

23. A unique feature in this case is that the quantities seized by the police in the street and from the defendant's home come to 6,890 tablets containing 37.48 gms of purity which is only 5% of the total purity contents or 2.5% of the total number of tablets seized during the operation. I am quite sure from experience that the police would have uncovered the drugs at the defendant's home in a routine follow up search. I am told, however, that the seizure from the godown was the result of voluntary disclosure by the defendant. The police quite fairly informed the court that they had no prior information relating to the godown and they are not sure if they would have found the drugs in the godown in the normal course of full investigation.

24. In the circumstances, if the quantity seized from the godown is taken into account when sentencing the defendant, the court would be discouraging surrender of dangerous drugs which would not otherwise be easily detected. The defendant may well feel justly aggrieved even if he is given a substantial discount on a sentence which takes into account the quantity he voluntarily surrendered.

25. I suggest there should be in effect at least some degree of immunity on the quantity which would not have been easily detected but voluntarily given up so as to help stem the flow or trade of dangerous drugs. Without a firm policy of immunity, there is little incentive for traffickers to give up their hidden stock. This does not mean that for large quantities seized the case should not be brought before the High Court or the District Court. It would be prudent for the prosecution to leave it to the court to decide whether on the peculiar facts of each case part of the quantity seized should not be taken into account for sentence.

26. I might add that immunity is, for obvious reasons, in addition to any discount a trafficker would be entitled to on account of other mitigating factors such as plea of guilty.

The Starting Point

27. Nearly all the dangerous drugs for which the defendant should be charged are benzodiazepine depressants. Since all were seized from the defendant on the same day, for the purposes of sentence, it is appropriate to aggregate all the dangerous drugs which should be taken into account for sentencing purpose as one lot and deal with the defendant as if he is convicted of one offence of trafficking.

28. According to Lau Tak-ming, the range of sentence for trafficking in 400 to 600 grammes of heroin is 15 to 20 years after trial. Using the current approach, pegging sentence for benzodiazepines at 80% of the tariffs for heroin, for over 2000 grammes involved, the initial starting point should be about 20 years. However, since the drugs were imported and primarily intended for re-export, this aggravating factor takes the starting point to some where between 20 and 25 years. The authorities in Macau could justifiable protest if I do not regard bulk re-export to there as an aggravating factor. If the alternative approach is adopted, making no distinction between heroin and midazolam, for over 2,000 grammes of purity, Again I reckon that a starting point of 20 to 25 years is justified.

29. On the other hand, if the exceptional approach is acceptable, the defendant should be sentenced for only the quantities seized from the street and from his home. That means the sentence should be as if for trafficking 37.48 gms of heroin. For that reduced quantity, the appropriate starting point is 5 to 8 years.

30. Mr. Mumford, rather ingeniously, suggested that the defendant should not be sentenced for trafficking in a dangerous drug. What his client did was no more than selling medicine without a licence and to close friends only. The purchaser in the street caught in relation to the first count was his friend buying for use by his father who was suffering from Parkinson's disease. In dealing in the drugs in this case, Mr. Mumford submitted, his client did not know that the benzodiazepines were being abused. In any event, by reference to the mandrax tariffs, counsel urged me to use 2 to 3 years as the starting point.

31. The short answer to this submission is that surely legitimate users with proper prescription would have no need to resort to the defendant for supply. The defendant must knew that he was supplying to those who sell for illegal purpose.

32. I have adverted to three approaches to sentencing in this case. Even if I am not wrong in any of these approaches, it is not my place to start departing from well established authorities. It is the prerogative of the Court of Appeal to approve new guidelines. Even if I am bold enough to strike out in a new direction and apply a starting point somewhere above 20 years, the shock and anxieties that visit upon the defendant who is aged 58 and is not of particular good health may well result in a disaster beyond that he should suffer for his crime. I should not make life more miserable for the defendant by some legal gymnastics. The Court of Appeal will no doubt in the fullness of time consider all views if they have not already done so. In the premises, having laid bare my views, I decided that in the light of all factors and circumstances, on any view, it would not be wrong to use a starting point of 8 years.

The Mitigating Factors

33. There are ample authorities to the effect that the age, clear record and other personal circumstances of the defendant are not factors to be taken into account in sentencing for drug trafficking. Accordingly, I ignored all the materials placed before me regarding the defendant's illness and donations to charity.

34. On the other hand, the defendant has pleaded guilty and fully co-operated with the police. A full one-third discount is due. There are other extenuating circumstances, including but not exclusively the consideration that the defendant is sentenced without precedent. I would give the defendant a total discount of 50%.

35. It followed that the defendant should be sentenced to imprisonment for four years. The sentence was therefore, four years imprisonment for each offence all to be served concurrently.

36. Finally, a matter I omitted to mention in open court, the team of police officers in this case displayed professionalism of a very high order for they succeeded in getting the defendant to voluntarily surrender his entire stock of dangerous drugs. The officers should be commendated.