HKSAR v. Ip Wai on

HCMA000749/2003

HCMA 749/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 749 OF 2003

(ON APPEAL FROM KTCC 3919/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 6 November 2003

Date of Judgment: 6 November 2003

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J U D G M E N T

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1.The Appellant pleaded guilty to one charge of Possession of Part I poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138. The learned Magistrate sentenced him to an imprisonment for a period of 2 months. The Appellant now appeals against that sentence.

2.The facts revealed that on the date of the offence at about 5:28 pm, the Appellant was seen in the Amusement Game Centre by two plain clothes police officers, who upon searching him, found inside the Appellant's handbag, two glass bottles and a plastic bottle containing the codeine which is described in the charge.

3.Under caution, the Appellant admitted that he took the syrup for fun. The learned Magistrate after convicting the Appellant, called for probation officer's report and a Drug Addiction Treatment Centre report. It was also revealed to the Magistrate that the Appellant had three previous convictions and the last one was in March 2003 for Possession of Part I Poison for which he was fined $2,000.00.

4.In the probation officer's report, it mentioned that the Appellant admitted that he had abused codeine since February 2003. The report from the Commissioner of Correctional Services pointed out that the Appellant was not considered to be drug dependent and that the Appellant claimed that he took the substance for relief, having had to work long hours in his trade.

5.The learned Magistrate after considering the report and that the Appellant had a previous conviction for a similar offence, then decided that the only way to deal with the Defendant was to impose an immediate custodial sentence.

6.It would appear from the transcript that the learned Magistrate did not have the benefit of the description of what codeine is, as I have had from Mr Dunn, who represents the Appellant.

7.As Mr Dunn pointed out that the drug codeine the description of which he took from Butterworths Medical Dictionary, 2nd Edition said that:

"It is a mild hypnotic and it causes less respiratory depression than morphine and is less constipating and it is of especial value in allaying irritating cough."

8.Less than 0.1% of this drug is found in medication readily available over the counter in Hong Kong. Mr Dunn also submitted information relating to a pain killer with the brand name Tylenol and this is an over the counter drug available in the United States and in certain parts of Asia, Tylenol with codeine elixir contains 12 mg of Codeine phosphate in each 5 ml of Tylenol.

9.It is clear that the authorities in Hong Kong does consider that codeine is not harmful if it was in concentration of 0.1% or less than 0.1%. Here, the Appellant was found in possession of a liquid containing 0.13% of codeine just taking him over the legal limit.

10.The learned Magistrate, as I said, did not have the benefit I have today of Mr Dunn's submission on the effect of this drug. And it is clear that the Ordinance in relation to Part I Poisons covers a wide variety of drugs.

11.The case referred to by the learned Magistrate of Chan Tak Shing HCMA 657/2002, in there, the drug referred to is Zoplicone. Mr Dunn submitted there is no provision for Zoplicone of any strength of concentration to be sold over the counter, like codeine can be sold.

12.It is clear that the learned Magistrate therefore considered the possession of codeine by the Appellant was on a par with the possession of Zoplicone in Chan Tak Shing and therefore sentenced him accordingly. If he had had the advantage of more comprehensive information on the drug from the defence, it may be that he may have arrived at a different view.

13.So, in these circumstances, I consider that the sentence imposed by the learned Magistrate was manifestly excessive. So, the appeal is therefore allowed and the sentence is quashed. The sentence that I impose on the Appellant is one of 18 months suspended for 2 years because I still think that a custodial sentence is necessary as the Appellant had abused the same drug within a period of a few months.

14.I will give a brief explanation of what it means to be given a suspended sentence. If you do not understand it and you need a fuller explanation, I am sure your counsel will explain it more lawfully to you. This means that if you do not commit in other offence in the next two years, you would not need to serve this 18 months' imprisonment. But if you do commit in other criminal offence within these 2 years, you may have to serve this 18 months' imprisonment.

Representation:

Mr Sharman Lam, SGC of Department of Justice, for the Respondent

Mr Dunn John Christie, assigned by Director of Legal Aid, for the Appellant