R. v. LI MING YIU

No.MA834 of 1996

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H E A D N O T E

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Dangerous drugs - midazolam - sentencing - evidence of growing concern about its increased use and as a concomitant to heroin abuse - Leung Nai Hong was not intended to assert that the courts should impose for offences of possession of midazolam the same sentence as for possession of methaqualone - guidelines awaited from Court of Appeal.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.834 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 was sentenced by a magistrate on 30th June 1996 in respect of two offences.

2. The first was theft. The appellant stole some bread, cake and chocolate from a shop altogether valued $28. For that offence, he was sentenced to one month imprisonment. That sentence is not the subject of appeal.

3. There was also found on him two tablets. Upon analysis that was found to contain 37 miligrammes of midazolam maleate. He was charged with possession of that quantity of that drug. To this charge, as with the other, he pleaded guilty, and was sentenced to six months imprisonment, ordered to run consecutively to the term of one month for the shoplifting offence. Both offences were committed on 31st March 1996.

4. The appellant is aged 44 years. He has a string of previous convictions, almost all of them for theft and for possession of dangerous drugs. When sentenced, he had just started to serve a sentence of one and a half months imprisonment for another offence. But more importantly, however, I note that he committed this particular offence whilst on bail pending trial for other offences.

5. The magistrate called for a Drug Addiction Treatment Centre Report. The appellant is a heroin addict. He has been treated many times before, and it is not surprising therefore that the report was against the idea of a further period of compulsory treatment in such a centre.

6. The magistrate took as his starting point a term of eight months imprisonment for the drug offence, and two months for the theft. He then reduced each to six months and one month respectively to reflect his view of the appropriate totality. With respect that is not the correct approach. The correct approach is to impose the appropriate sentence for each offence, having regard to the aggravating and mitigating factors, including the plea of guilty, and to impose the sentence for that offence. Only then should the question of totality be addressed and effect be given to any adjustment to the total effective term which is then thought appropriate by use of the tool of concurrent and consecutive terms. In this case, moreover, it is not clear what credit was given for the plea, and what reduction to reflect the totality.

7. This is the second case before me within a week which concerns possession of this particular drug. The other was a case of Cheung Fook Lee (MA No.624 of 1996) an appeal in which I had the advantage of representations by Mr Hung, who appears today for the appellant. In that earlier appeal, the essence of the appeal against sentence was much the same as today, namely, that the magistrate paid insufficient regard to the very small quantity of the drug; to the fact that this drug is altogether of a nature different from drugs such as heroin and ice; that the offence was for possession only; and that it would be appropriate to apply the same bands of sentence as are appropriate for the drug methaqualone, a drug in respect of which the Court of Appeal has, in a judgment in the case Chan Chi Man [1987] HKLR 221 laid down guidelines for sentencing. The Court of Appeal has not done so for midazolam, although there is one High Court case concerning this drug, namely, Leung Nai Hong, Mag. App. Nos.432, 433, 434 and 435 of 1994, a case to which the magistrate referred in his reasons for sentence. In that case, no evidence was put before the court about the nature of this drug. However, for the case of Cheung Fook Lee, I had the advantage of some evidence about the nature of the drug, both from the Crown, and on behalf of the appellant. I was told that the drug was used to treat sleep disturbances and could be used as a drug of addiction. A normal dose to induce sleep was 15 milligrammes in an adult. In the present case, there are 37 milligrammes. I was however informed by the Crown in Cheung Fook Lee that this particular drug was shortly to be considered by the Court of Appeal, in the sense that the Crown is to seek to put evidence before the Court of Appeal intending to persuade it that this drug has becoming a growing problem, and that it is a common concomitant of heroin abuse. I note in this case, that the appellant is a heroin addict.

8. Because the Court of Appeal will shortly to consider the matter, I was invited to steer clear of laying down guidelines in the Cheung Fook Lee case. The Crown was content that I proceed on the footing that the drug was of a grade similar to methaqualone. The fact that this is the second case in so short the time and given the suggestion that it is used in conjunction with the intake of heroin, makes me suspect that the approach which I adopted in Cheung Fook Lee was too generous. It is said that today by Mr Hung that until the Court of Appeal pronounces on the proper tariff for offences of possession and trafficking in midazolam, magistrates and the High Court should continue to treat the drug as being in the same band of seriousness the methaqualone. He placed heavy reliance on the case of Leung Nai Hong. In my judgment, however, that case has been elevated to a status which it was never intended to have. All Bewley J. was saying was that there was no evidence before him about the relative qualities and use of the two drugs. There now is such evidence. The question is whether it is unfair to visit this appellant with a greater sentence in the absence of guidelines. I think that magistrates are perfectly entitled to take note of and to give effect to, a growing body of evidence which comes before them on a day to day basis, and to increase sentences accordingly despite the absence of guidelines from the Court of Appeal. However, given the Crown's attitude to the matter and given the fact that the issue is to be placed before the Court of Appeal, I shall continue to approach the drug by looking to the statutory guidelines for methaqualone, but I cannot ignore altogether the evidence now to hand. The suspicion that my early approach was too generous has become all the more tangible in view of the third case which comes before me today, in which it is made perfectly clear by a magistrate that on an almost daily basis, defendants appear before his court charged with possession of this drug which is used in conjunction with heroin.

9. In Chan Chi Man, the Court of Appeal suggested sentences for trafficking in methaqualone after trial. For trafficking in less than 500 grammes, the sentence, it was said, should be such sentence as the court thinks fit; and for

trafficking in over 500 grammes, six to twelve months imprisonment. Looked at in that light, six months for possession of 37 milligrammes seems considerably too high. The aggravating feature in this case is the fact that the appellant is a multiple offender and he also committed this offence whilst on bail. It is also the fact that Chan Chi Man was a case which preceded the increase in 1992 in the penalty for possession of dangerous drugs, and, as I say, there is now evidence that this particular drug is obviously becoming a particular problem.

10. In this circumstances, in my judgment, the appropriate sentence on this appellant for this particular offence is one of three months imprisonment. I order, as before, that it should run consecutively to the one month term imposed in relation to the offence of theft.