The Queen v. Chan Chi Man
Read the full judgment text of CAAR 19/1986 on BabelCite. This Court of Appeal judgment was delivered on 11 December 1986 before Roberts, C.J., Li, V.P. & Silke, J.A..
Criminal law – dangerous drugs – sentencing – review of sentence – possession of dangerous drug for purpose of unlawful trafficking – methaqualone – cannabis resin – opium – heroin – cocaine – sentencing tariffs – whether methaqualone should be equated with cannabis or opium – deemed dosage for tablets – discount for guilty plea – review application customary deduction – whether sentence manifestly inadequate – The respondent was convicted after trial of possession of 33,576.5 grammes of methaqualone for the purpose of unlawful trafficking and sentenced to two years' imprisonment; the Attorney General applied for review on the ground that the sentence was manifestly inadequate and sought guidance on the proper tariff for methaqualone – whether a tariff should be prescribed for possession of cannabis resin for the purpose of unlawful trafficking and how it should relate to the opium tariff – held, the court prescribed a tariff for cannabis resin at two-thirds of the opium tariff, ranging from 'as the court thinks fit' for under 500 grammes to 4 years upwards for over 9,000 grammes, with a new band of 36-48 months for over 6,000 grammes – whether methaqualone should be equated with cannabis or with opium – held, methaqualone should be regarded as in the same scale of seriousness as opium, given the sharp increase in seizures, the medical evidence of serious physical effects (including fatalities, particularly when combined with alcohol), and growing abuse; the earlier tentative equation with cannabis in R. v. LEE Yiu-cheung was distinguished – the tariff for methaqualone in powder form should mirror the opium tariff (with extended ranges), ranging from 'as the court thinks fit' for under 500 grammes to 6 years upwards for over 9,000 grammes – whether the powder tariff should apply directly to tablet quantities – held, because Hong Kong retail tablets contain only 2-13 milligrammes of methaqualone (average about 8 milligrammes) against a standard Mandrax dosage of 250 milligrammes, any tablet containing methaqualone should be deemed to contain 250 milligrammes for sentencing purposes, producing a separate tablet tariff ranging from 'as the court thinks fit' for up to 2,000 tablets to 6 years upwards for over 36,000 tablets – whether the two-year sentence was manifestly inadequate – held, yes; on the proper tariff, 33.5 kilogrammes of methaqualone warranted 7-10 years, and the respondent's personal factors and mistaken belief that methaqualone is not a dangerous drug because it is not characterized as such in China did not justify a reduction below seven years – in a review application the court applies the customary deduction before substituting sentence – sentence of two years quashed and substituted with a sentence of five years' imprisonment – the court also indicated that all suggested guidelines are stated on the basis of conviction after a plea of not guilty, with the appropriate discount to be allowed for a guilty plea, and that the tariffs are not immutable and may be varied in the future to reflect changing patterns of drug use, medical evidence, and public interest.
Legal issues: Tariff for possession of cannabis resin for unlawful trafficking · Tariff for possession of methaqualone for unlawful trafficking · Methaqualone in tablet form – deemed dosage for sentencing · Adequacy of sentence imposed on respondent for methaqualone possession
Outcome: Application for review granted; sentence increased from two years to five years' imprisonment.
Cited by 10 cases
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CAAR000019/1986
BETWEEN:
Coram: Roberts, C. J., Li, V. P. & Silke, J.A. Date of Hearing: 14 November 1986 Delivery of Judgment: 11 December 1986 ------------------ JUDGMENT ------------------
Roberts, C. J. Preliminary 1. The Attorney General has applied to this court for the review of the sentence passed on the respondent of two years' imprisonment, after his conviction, following trial, of possession of 33,576.5 grammes of a dangerous drug, namely, methaqualone, for the purpose of unlawful trafficking therein. 2. The Crown, apart from submitting that the sentenced imposed in this instance is manifestly inadequate, sought guidance from this court as to the proper tariff which should be applied in future cases where defendants are found in possession of methaqualone ('m') for the purposes of unlawful trafficking and asked whether sentences for m should be linked to those for cannabis. Present sentences for Heroin, Morphine, Cocaine and Opium 3. Previous decisions have prescribed tariffs for possession for the purpose of unlawful trafficking in relation to various types of dangerous drugs, as follows. 4. Heroin, Morphine and Barbiturates - The tariff for these was prescribed by this Court in CHAN Chi Ming v. The Queen(1) in the following terms - "Where the quantity was -
5. Cocaine - In R. v. LEUNG Pang-chiu(2), this court decided that sentences for cocaine, described as a 'hard drug', should be equated with those for heroin. 6. Opium - The tariff for possession of opium for the purpose of unlawful trafficking was prescribed by this court in R. v. LAU Yiu-nam(3) as follows -
Sentences for Cannibis 7. Sentences imposed for unlawful possession of cannabis, show a considerable variation in the approach of the courts. 8. In R. v. Samtani(4), 2½ years was imposed for possession of 405 grammes of cannabis resin. 9. In R. v. LI Kwong-keung(5), 2 years was imposed for 852 grammes of cannabis (probably herbal). 10. In R. v. CHEUNG Wai-leung(6), 12 months' imprisonment was imposed on review for 700 grammes of herbal cannabis, though the court thought 18 months would have been appropriate. 11. In R. v. Tamang Nima(7), 2½ years' imprisonment was imposed for 5 kilogrammes of cannabis resin. 12. In R. v. Inayat Hussain(8), 2 years was imposed for 1.9 kilogrammes of cannabis resin. 13. In R. v. Ohmert(9), 18 months' imprisonment was imposed for 1,100 grammes of herbal cannabis. 14. In R. v. WAN Pui-hay (10) , 5½ years was imposed for 12.1 kilogrammes of cannabis resin. 15. In R. v. LI Kwong-keung(5), this court set out the correct order of seriousness of the categories so far considered in the following passage -
Suggested tariff for possession of cannabis resin 16. Taking the above factors into consideration, we have thought it right to suggest a tariff for possession of cannabis resin, for the purpose of unlawful trafficking. This will be two-thirds of that which has already been prescribed for the possession of opium. This would produce the following range of sentences, though the scale goes further in quantity than that which has been so far applied for opium -
17. So far, no clear distinction appears to have been drawn in sentences between cannabis in the three forms in which it commonly appears, that is to say herbal cannabis, cannabis resin and cannabis oil. 18. The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol ("thc"). 19. The concentration of thc in herbal cannabis is up to about 8% of the bulk weight. In cannabis resin the concentration is about 15%. In cannabis oil, it is 60%. 20. It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly. Tariff for methaquelone 21. So far, there seem to be few cases on sentences for possession of m for the purpose of unlawful trafficking. Our attention was drawn to the following - 22. In R. v. CHACK Chi-ming(11) - 12 months was imposed for possession of 274 m tablets. 23. In R. v. LEE Yiu-cheung(12) - 5 months for possession of 6 m tablets. 24. In R. v. YEUNG Hing-yu(13) - 4 years for possession of 46,270 tablets, containing 230.5 grammes of m. 25. In R. v. LAU Yung Kam & SZETO Lung Lok(14) - (a) Dl - 21 months, for possession of 9 tablets, containing 2.0 grammes of m; (b) D2 - 15 months, for possession of 4 tablets, containing a total of 0.9 grammes of m. 26. These cases suggest a wide variation and illustrate the need for guidance from this court. 27. Before seeking to do so, however, we must consider the extent to which, if at all, our hands are bound by the following observations of a different division of this court in R. v. LEE Yiu-cheung -
28. Thus this court has, albeit somewhat tentatively, equated the appropriate level of sentence for possession for the purpose of unlawful trafficking of m with that specified for cannabis. 29. It does not appear, however, as if that court had the advantage of extensive argument, as we did, on the spread of the use of m and on its effects on those who take it. And its specific refusal to prescribe a tariff leaves it free to us to do so, notwithstanding the reference to the relationship of m to cannabis in Lee(12) Statistics of 'm' 30. Statistics of drug seizures in Hong Kong show that the total of opium seized in 1976 was 3,553 kilogrammes, whereas in 1986 (the first 10 months) the total was only 70 kilogrammes. Cannabis, remained steady, with 87 kilogrammes seized in 1976 and 92 kilogrammes in 1986 (first 10 months). 31. For m, however, the number of tablets seized has grown from 1,499 in 1980 and 793 in 1981 to 318,168 in the first 10 months of 1986, plus 33.5 kilogrammes of m in powder form. 32. We therefore seem to be dealing with a sharp increase in the import and consumption of m. Nature of methaqualone m, which is available in the market in tablet form, is a depressant drug, producing a depression of the central nervous system. It is popular because it produces a sense of well-being and hallucogenic effects. 33. It is a psychotropic substance which induces psychological and physiological dependence and is said to be commonly abused by bar girls, hostesses and youths looking for a quick relatively inexpensive "high". It is often taken with alcohol, which enhances its potency and produces hallucinations. 34. The serious effect of m, taken in significant quantities, can be seen from statistics provided by the Commissioner of Police. These show that in the past eight years there have been 15 deaths and 16 cases of serious overdose, from abuse of m reported to the police. 35. The Central Registry of Drug Abuse, which records the number of cases of drug abuse reported to it, shows the, number of those said to be abusing m to have risen from 3 in 1980 to 72 in 1985 and 63 in the first ten months of 1986. 36. Prosecutions for abuse of m rose from 55 in 1984 and 69 to 1985 and 108 in the first 10, months of 1986. 37. In "Drugs and Drug Abuse", by Cox and others, published by the Canadian Addiction Research Foundation, the comment is made that there have been no reports of death in human beings, directly attributable to cannabis overdose, though some deaths are certainly contributed to by cannabis - e.g. where it has adverse effects on driving skill. 38. Describing the effects of m, if a substantial dose is taken, Cox comments that a key effect is a mellow, sensual and dissociative high, reportedly similar to that produced by heroin. A non-tolerant user may be overcome by drowsiness and sleep. Common symptoms are slurred speech, muscle weakness, tremors, and restless and severe agitation. 39. High dosage may produce impairment of cognitive and motor functions, visual disturbance, emotional instability, frequent insomnia and fatigue. 40. In extreme cases of abuse, there may be an acute toxic psychotic state, characterized by delusions and disorientation followed by spasm, delirium and coma. Most reported fatalities have followed a combination of m and alcohol. 41. It is 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. 42. Giving what we hope is appropriate weight to these factors, we conclude that the prevalence and potential dangers of m are such that it should be regarded by the courts as being in the same scale of seriousness as opium. 43. The scale of sentences for the possession of m for the purpose of unlawful trafficking should therefore be the same as that set out for opium in R. v. LAU Yiu-nam(3) - i.e.
44. This tariff goes further in paragraphs (e), (f) and (g) than that prescribed for opium in LAU(3). 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 45. The above guidelines apply to possession of m 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 m, would be in the region of 7 to 10 years. 46. However in the majority of cases involving m which come before the court, the drug is present in tablet form, not in powder. 47. We are told that the normal dosage in a Mandrax pill, the form in which m is commonly available, is about 250 milligrammes. 48. But, seizures in recent months have shown that the average content of a pill containing m, 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. 49. 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 m. 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 m powder. 50. 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 m 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. 51. On this basis, the suggested tariff would be as follows -
52. This tariff would be somewhat more severe than the sentence of four years' imprisonment imposed in R. v. YEUNG Hing-yu(13) , for possession of 46,270 tatblets, and considerably less severe than the sentence in R. v. Chack Chi-ming(11) (12 months for 274 tablets) R. v. LEE Yiu-cheung (12) (6 months for 6 tablets) and R. v. LAU Yung Kam & SZETO Lung Lok(14) (21 months for 9 tablets and 15 months for 4 tablets). Conclusion 53. It should be observed that all the suggested guidelines set out above are those which we think ought to be considered by a court on the basis of conviction after a plea of not guilty. 54. The court should reduce these sentences by the appropriate discount which it thinks should be allowed for a plea of guilty. 55. We should also make it clear that tariffs of this description are not immutable and that it is open to this court, in the future, to vary them, according to the needs of society. 56. In considering the revision of tariffs for drug offences, this court will give effect, among other factors, to the following -
The Respondent 57. As we have said, the proper sentence for possesion of 33 kilogranmmes of m, in powder form, would be 7-10 years. 58. The judge gave considerable weight to the personal factors of the respondent, especially to the latter's belief that m was not a dangerous drug, based on the fact that it is not so characterized in China. 59. We do not see, however, that these factors should, given appropriate weight, have reduced the sentence to below seven years. 60. As this is an application by way of review, we make the customary deduction and substitute a sentence of five years for the sentence of two years' imprisonment imposed by the judge. (1) [1979] H. K. L. R. 491 (2) A. R. 17/85 (3) CA 520/85 (4) C. A. 403/79 (5) C. A. 206/52 (6) A. R. 7/82 (7) A. R. 7/83 (8) C. A. 473/85 (9) C. A.213/85 (10) H. C. 94/86 (11) C.A. 307/85 (12) C. A. 713/86 (13) H. C. 99/86 (14) C. A. 1084/86 Representation: Mr. J. Matthews (D. L. A.) for Respondent Mr. A. S. Hodge, D. C. P., & Mr. A. A. Bruce, S. C. C. for Crown. |
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