Lau Hon-wah v. The Queen
Read the full judgment text of CACC 234/1980 on BabelCite. This Court of Appeal judgment was delivered on 27 March 1980.
1. This is an appeal against sentences of eighteen months imposed by the learned Magistrate for trafficking in a dangerous drug and, to run concurrently with that, a sentence of eighteen months imprisonment for being in possession for the purposes of unlawful trafficking.
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CACC000234/1980 Headnote Dangerous Drugs: trafficking: scheduled drug, unregistered practitioner: sentence IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 234 OF 1980 -----------------
----------------- Coram: Silke, J. in Court Date of Judgment: 27 March 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal against sentences of eighteen months imposed by the learned Magistrate for trafficking in a dangerous drug and, to run concurrently with that, a sentence of eighteen months imprisonment for being in possession for the purposes of unlawful trafficking. 2. It is a matter out of the ordinary run of drugs cases for the substance, dipipanone hydrochloride, is one which figures in the First Schedule to the Dangerous Drugs Ordinance. 3. The substance is a potent analgesic with rapid action. 4. The appellant is an unregistered and unlicenced person with a medical qualification of some nature in China. He practises Chinese medicine - normally herbal medicine, in what is termed a clinic. 5. To that place came two persons: a constable and a drug addict: they alleged themselves to be in pain and, without examination, were given two tablets costing $6 each taken from a bottle in a drawer. That bottle was produced - and I have seen it. It bears the name of a proprietary brand produced by a recognised drug firm, and on its side is listed the ingredients which include the drug in question. 6. Mr. O'Cock has urged, in an attractive argument well presented, that the appellant should have been charged under the Pharmacy and Poisons Ordinance in relation to a Part 1 Poison - which the drug also is - rather than under the Dangerous Drugs Ordinance - but he does not question the convictions for trafficking nor that of possession for the purpose of trafficking. He would wish me to treat the appellant as if he had been convicted under the lesser penalty Ordinance. He has referred me to cases in which the penalties imposed were completely different to the one imposed here. 7. The learned Magistrate in his Statement of Findings said he took a very serious view of these offences - and there I am with him. But I part with him in his application of what has been called the "tariff case" of Chan Chi Ming v. R. 1167/78 in which the Court of Appeal laid down guidelines as to sentences for offence under the Dangerous Drugs Ordinance. For that Court, in setting out the general consideration which should be borne in mind when passing sentence, said this:-
8. The drug here is neither morphine, heroin, a barbiturate nor opium. 9. The real graveman of the offence as I see it, is an unregistered, unlicenced and, in effect, unqualified person dispensing openly at form of medical clinic a scheduled a dangerous drug of which, on the evidence, he knows little and cares less. He is not subject to any form of supervision or inspection. 10. And that in a community such as Hong Kong is dangerous and is capable of being abused. 11. Neither Mr. Boase for the Crown nor Mr. O'Cock for the appellant were able to direct my attention to sentences passed on offenders in similar circumstances. There is, of course, a wealth of cases where persons similar to the appellant were charged and convicted of offences under the Medical Registration Ordinance: the Medical Clinics Ordinance or the Pharmacy and Poisons Ordinance. 12. This offence is more serious. 13. I have to consider was the learned Magistrate right in imposing a custodial sentence and I think he was - but the quantum is excessive. 14. I also have to consider was he right to impose an immediate custodial sentence and again I think he was insofar as the trafficking offence is, being under section 4 of the Ordinance, an excepted offence. A mere fine would not be appropriate. 15. I confess that: in the particular circumstances of the offence here, the fact that it is apparently the first time a charge of this nature has been lodged in those circumstances, the clear record of the offender and the general impropriety of passing a deterent sentence on a first offender I am tempted, had I the power to do so to, impose a sentence of imprisonment and suspended it. This I cannot do. 16. In the event, I would allow this appeal in part and substitute for the sentence imposed on the trafficking charge a sentence of three months imprisonment and for the sentence imposed on the possession for purpose of trafficking charge a sentence of three months imprisonment: to run concurrently. 17. Due allowance should be made for the period spent in custody between the date of the conviction and the granting of bail pending the hearing of the appeal.
Representation: Mr. O'Cock of John Ip & Co for appellant Mr. Boase for Crown |