HKSAR v. Chan Tak Shing

HCMA000657/2002

HCMA 657/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 657 OF 2002

(ON APPEAL FROM ESCC 1501/2002)

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Coram: Deputy High Court Judge Toh in Court

Date of Hearing: 2 August 2002

Date of Judgment: 2 August 2002

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J U D G M E N T

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1.The Appellant had admitted possession of a Part I Poison, contrary to section 23(1), section 33(1) and section 34 of the Pharmacy & Poisons Ordinance, Cap. 138. He was sentenced to 4 months' imprisonment. He now appeals against that sentence.

2.The Appellant was unrepresented in the Court below. The facts reveal that the Appellant was searched by a police officer in King's Road and 4 tablets were found in his right trousers' pocket. Upon being asked what they were, the Appellant admitted they were dangerous drugs which he had bought from an unknown male inside Southern Playground in the Wanchai area, he was then arrested for possession of dangerous drugs. After the Government Chemist's analysis, it was discovered to be a drug called Zopiclone which is listed as a Part I Poison.

3.I am informed by Mr Whitehouse who represents the Appellant in this court that Zopiclone is a depressant and basically is to treat insomnia. He has also very helpfully provided me with some material regarding this drug Zopiclone. According to the information, this kind of drug has a very low risk of dependency and is basically mainly for the treatment of insomnia.

4.The learned Magistrate, prior to sentencing the Appellant, had called for a report as to whether he was a drug dependent. The Appellant was found to be not a drug dependent. The Appellant had eight previous convictions mostly of theft and one for possession of Part I Poison, and this was in 2001 for which he was sentenced to 1 month's imprisonment.

5.I am grateful to Mr Madigan for providing this court with some cases on this. In the case of Tang Chung Yan reported in [1989] 2 HKC 607, the Defendant there was found to have two tablets of Part I Poison and he was sentenced to two months' imprisonment. But in those days, the maximum under the Ordinance was $1,000.00 fine and 12 months' imprisonment. At this time, for possession of Part I Poison, the maximum sentence for this offence is actually $100,000.00 and 2 years' imprisonment, thus the level of sentence has increased.

6.The other case is Chau Ming Fai Cary, HCMA No. 479 of 1998. In that case, the Appellant was found in possession of some 314 tablets of Part I Poison as he had a shop, in which he was selling these items amongst other things. He was sentenced two months' imprisonment on that charge. On appeal, Mr Justice Suffiad had dismissed the appeal against sentence but did not criticize the two months' imprisonment as being too lenient.

7.Whilst it is true that the amount of drugs is not of paramount importance when a judge is deciding on the sentence, nevertheless, it is a factor to be taken into consideration. I do agree though that this kind of offence does call for an immediate custodial sentence, but taking into account the risk of low dependency for this kind of drug, that it is only 4 tablets, and the learned Magistrate at the time when he sentenced the Appellant, did not have any information about Zoplicone before him. In these circumstances, I considered that 6 months as a starting point is manifestly excessive. I agreed with Mr Whitehouse that the starting point should be 3 months' imprisonment and taking into account that the Appellant did plead guilty, he is entitled to 1/3 off which reduces the sentence to two months' imprisonment.

8.The Appellant's appeal against sentence is successful. I allow his appeal and he is sentenced to two months' imprisonment. His original sentence is quashed.

Representation:

Mr P K Madigan, SGC for DPP

Mr Frederic Whitehouse, instructed by the Legal Aid Department , for the Appellant