HKSAR v. Wong Wai Man

HCMA000658/2003

HCMA658/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 658 OF 2003

(ON APPEAL FROM KCCC 5880 OF 2003)

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Coram : Hon Jackson J in Court

Date of Hearing : 27 August 2003

Date of Judgment : 27 August 2003

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J U D G M E N T

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1.The appellant was convicted after trial in the Kowloon Magistrates' Court of an offence of trafficking in 80 tablets containing 1.11 grammes of midazolam. He was sentenced to a term of 18 months' imprisonment and he appeals against that sentence saying that it was too severe.

2.The facts of the offence are sufficiently stated in the magistrate's 'Reasons for Sentence' as follows :

"This defendant was intercepted by police on the 14th April 2003 and was found to be in possession of 40 packets each containing two midazolam tablets - total narcotic content 1.1 grammes. He was delivering them on behalf of someone else to the Sir Robert Black Methadone Clinic in San Po Kong where they would have been sold to drug addicts for use with heroin."

3.The magistrate went on, in his Reasons for Sentence, to say this :

"The defendant pleaded not guilty to trafficking in dangerous drugs and was convicted after trial. He has a substantial record for drugs and other offences though not for trafficking.

It is evident from a review of the authorities that the sentence of 18 months was excessive and that it should have been in the order of six months given the complete absence of any effective mitigation and the aggravation of supplying to a methadone clinic. Had the defendant asked for a review, I would have varied the sentence accordingly.

The principal authority is AG v. Chan Chi-man [1987] HKLR 221 which gives a tariff for trafficking methaqualone which has subsequently been applied to midazolam in HKSAR v. Yiu Chi-wai [1997] HKLY 351 (not a trafficking case - 3 months for possession of 3.8 milligrammes of midazolam). There are numerous other appeal cases (often involving possession of heroin as well) including, most recently, HKSAR v. Wong Chi-sing, HCMA 2 & 204/2003 where six months was used as the baseline for sentence on the facts of the case."

4.So that there is no doubt about it, the appellant has accumulated no fewer than 30 convictions since 1982. Those convictions were for offences of dishonesty, violence and triad association; and 10 of them were related to dangerous drugs or "part 1" poisons. Since 1995 he has been sent to a Drug Addiction Treatment Centre twice and he has also served short sentences of imprisonment.

5.Plainly this appeal must be allowed but to what extent?

6.Despite the able submissions made on behalf of the appellant by Ms Ma and the cases which she has cited to me in support, the fact of the matter is that this appellant (who has an appalling criminal record) was convicted after trial of trafficking in dangerous drugs (albeit in a small quantity) and that he was doing so to drug addicts outside a methadone centre.

7.In those circumstances a sentence of six months' imprisonment is, to my mind, wholly appropriate.

8.This appeal is allowed to this extent. The sentence of 18 months' imprisonment is set aside and will be replaced by one of six months' imprisonment.

Representation:

Ms Olivia Tsang, GC of the Department of Justice, for the Respondent

Ms Anita Ma, instructed by DLA, for the Appellant