R. v. CHEUNG FOOK LEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 624 OF 1996

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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 who is aged 41 years appeared before the magistrate in May of this year and pleaded guilty to having in his possession, on 18th March 1996 at Lai Chi Kok Reception Centre, 0.8 grammes of a mixture containing 53 milligrammes of midazolam maleate. He was on that day detained in the hospital of the Lai Chi Kok Reception Centre and whilst there the drugs were discovered inside in one of his nostrils.

2. He appeared before the magistrate on 13th May and pleaded guilty and was sentenced by him to 12 months' imprisonment. He has a long record for possession of dangerous drugs. In 1994, for example, he was imprisoned on a number of occasions for a total of 19 months. He is clearly a drug addict. The magistrate asked for a Drug Addiction Treatment Centre report, which report concluded that the appellant would not benefit from another period in a treatment centre.

3. As it appears from the Reasons for Sentence, the magistrate had evidently relied on the guidelines in the case of So Ma Kwai MA466/92 and Chiu Hung Wong CA39/93, cases which in each instance concerned possession of heroin, where the courts in the first phase represented by those cases suggested a term of 6 to 9 months' imprisonment for simple possession on a guilty plea, and 9 to 12 months' imprisonment for those with a history of multiple offences. The second phase began with legislative amendments in 1992 to the penalty for possession of dangerous drugs, by reason of which amendments the courts expressed themselves bound to visit offences of simple possession of dangerous drugs with penalties significantly more severe than hitherto. That legislative amendment and the courts' consequential response is applicable to all dangerous drugs, not only heroin.

4. Yet that is not to say that the tariffs or guidelines set in So Ma Kwai and Chiu Hung Wong were intended to apply across the board, regardless of the nature of the drug. That different prescribed drugs have different properties, and that there is a wide spectrum of social evil into which such drugs fall is self-evident. So, for example, a study of the judgment of the Court of Appeal in Attorney General v. Chan Chi Man [1987] HKLR 221 demonstrates how dramatically different from the tariff for trafficking in heroin is cannabis and methaqualone. It is, said the Court in that case :

"... not possible to apply any scientific measure to determine the relative dangers to individuals and to the community of different dangerous drugs. We can do no more than suggest a relationship between them in a rough and ready manner, based on the imperfect statistics and somewhat superficial medical information on which we must rely." (per Roberts C.J. at p.226)

And the court emphasised further that :

"... tariffs of this description are not immutable and ... it is open to this Court, in the future, to vary them, according to the needs of society." (at p.227)

5. So, the question is : where in the spectrum does the drug midazolam fall? Only one case has been drawn to my attention which involves an offence connected with this particular drug. That is the case of R. v. Leung Nai Hong (Mag.Appeals 432 - 435/1994). There the court was invited to treat the drug as falling within the same band as if it were methaqualone, a drug in respect of which tariffs or guidelines for trafficking were laid down in Chan Chi Man. Bewley J. in Leung Nai Hong referred in his judgment to the Crown's contention that the Narcotics Bureau considered that the two drugs, namely methaqualone and midazolam were drugs of similar seriousness, the one being a tranquilliser, the other a stimulant. But the learned Judge pointed out that he had no evidence on the matter, and that in the absence of that evidence, he did not think it right to indicate what should be a proper sentence for that particular offence.

6. However today, I have some evidence put before me about midazolam. There is a report or statement from a Dr Dickens who says that :

"In its oral preparation, it is used primarily to treat disturbances of sleep. It can however be mis-used as a drug of addiction although addicts to this class of drug are nearly always people with pre-existing drug or alcohol abuse."

He says that the normal dosage of the oral form of the drug required to induce sleep is 50 milligrammes in adults. That would mean that on the appellant's possession in respect of this particular charge, he had three doses of the drug.

7. Mr Saw for the Crown informs me that this drug is, however, shortly to be the subject of consideration by the Court of Appeal. It is a drug which apparently is said to be on the increase in its popularity and abuse. In other words, it is intended to persuade the Court of Appeal that it is becoming a particular problem. He has also shown to me a report from a Government Chemist which suggests an increase in popularity in the abuse of this particular drug and in particular he contends that it is becoming a common concomitant of heroin abuse. Mr Saw, however, specifically invited me not to set or seek to set guidelines for sentences for possession or trafficking in this particular drug. Full statistics and forensic evidence is to be submitted to the Court of Appeal. That being so, how then am I today to treat the drug and its place in the spectrum? It seems to me that in the present hiatus, I ought to lean in the appellant's favour in so far as the matter is not resolved and treat the drug as of a similar grade to methaqualone. Mr Saw does not seek to persuade me otherwise.

8. That being so, it is to be noted that in Chan Chi Man, the Court of Appeal suggested that trafficking in less than 500 grammes of methaqualone after trial should attract such sentence as the court thinks fit; and over 500 grammes, 6 to 12 months' imprisonment.

9. Mr Hung, in his able submission today, emphasises how small an amount was found in this case and by reference to those tariffs which are, to boot, for trafficking, there should be either no custodial sentence at all or a very short one.

10. There are, however, two features which must come into the balance. The first is that Chan Chi Man was decided before the legislative changes to which I have referred. The second and most significant feature, is that the appellant had these drugs in a place of detention. That is a serious aggravating feature and requires a deterrent sentence. See the case of Au Kwok Chai (AR No.22 of 1995).

11. Mr Hung invites me to take a less serious view of that aspect of the offence because he says, on 16th March, that is two days before this offence, the appellant had bought three packets of this drug from a pedlar. He was then arrested and charged for possession of two of those three packets. He has been prosecuted for that separately, and sentenced to 6 months' imprisonment. It is said that this particular quantity of drugs, namely the one subject to the present appeal, was not found on his arrest on 16th March because they were in a packet stuck up his nostril and there they remained until he went to Lai Chi Kok Reception Centre. He did not remove them then because they were stuck. This strikes me at a tall story indeed, and I do not accept it.

12. The position then seems to be this, that the magistrate was in error in approaching the case on the basis of the tariffs in So Ma Kwai and Chiu Hung Wong. For reasons which I have explained, I shall treat this drug as falling in the same category as methaqualone. That, however, is not to be taken as any precedent whatsoever. It is a course taken in a peculiar circumstances of this case. In these circumstances, the sentence might, in the normal course of events, not to be one of imprisonment at all. However, the appellant is a multiple offender and, most seriously, he knowingly had these drugs in Lai Chi Kok Reception Centre, which, as I say, is a serious aggravating feature.

13. In my judgment, the appropriate term is one of 6 months' imprisonment, and that is the sentence which I substitute for the one imposed by the magistrate.