HKSAR v. So Chai

HCMA788/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.788 OF 2005

(ON APPEAL FROM ESCC 1979 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 29 September 2005

Date of Judgment : 29 September 2005

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J U D G M E N T

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1.The appellant was convicted on his own plea of one charge of ‘trafficking in a dangerous drug’, namely 197 tablets and 0.40 grammes of tablet fragments containing a total of 2.89 grammes of midazolam, and was sentenced to 16 months’ imprisonment.  He now appeals against the sentence.

2.The facts upon which the appellant pleaded guilty were as follows :

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2.

Intelligence revealed that Deft was trafficking in dangerous drugs from China to Hong Kong on a regular basis.  On the same day, officers of DSDS WDIST therefore mounted an Anti-Dangerous Drugs Operation with Immigration Department against the Deft at Lo Wu Control Point.  At 1241 hrs, Deft was detected to leave Hong Kong through Lo Wu Control Point and returned at 1343 hrs.  PW1 and PW2 immediately conducted surveillance on the Deft thereafter.  At about 1452 hrs the same day, Deft was found entering into a building situated at 10-12 Tang Fung Street, Tin Wan, Aberdeen and walked to the rooftop where he was observed releasing exh. (2) to exh. (7) from his rectum.  At this juncture, the ambushed officers of DSDS WDIST nearby turned up and arrested the Deft for the offence of ‘Trafficking in a Dangerous Drugs’.  As a result, a total of 199 tablets of suspected Midazolam (some of them were broken) were seized.  Under caution, Deft admitted the offence and confessed that he bought the exh. (2) from Shenzhen China and brought them to Hong Kong for his own-consumption.”

3.The magistrate has the following observations in his reasons for sentence :

“	The Defendant admitted the offence.  He had 12 previous convictions, mainly for drug offences, the last one being for Trafficking.
	Having obtaining a pre-sentencing report I decided that imprisonment was appropriate.  I took 2 years as the starting point and, allowing a reduction for the defendant’s plea, I imposed a sentence of 16 months imprisonment.”

4.The complaint before me is that :

“	1.	The Magistrate erred in principal in:-
		(a)	following tariff guideline for apparently other more serious dangerous drugs.
		(b)	deviating from the guideline in Chan Chi Man without reason.
	2.	Further and/or alternatively, the 24 months starting point taken by the magistrate in respect of the charge was in all the circumstances manifestly excessive.
	3.	The magistrate erred in making no enquiry of the defendant as to whether the applicant was bringing the drugs into Hong Kong for his own use, and was, in other words, technical trafficking an pleading guilty to trafficking as a result of the importation.”

5.I agree that that these are valid grounds of appeal, as does the respondent.

6.Present judicial opinion is that for sentencing purposes, trafficking in midazolam is no different from trafficking in methaqualone, whose guideline case is Chan Chi Man [1987] HKLR 221 where it is said that so far as weight is relevant, the proper starting point for under 500 grammes is as the court thinks fit.  For over 500 grammes but under 1000 grammes, the proper starting point is 6 to12 months.

7.Here, the quantity of midazolam is just 2.89 grammes.

8.I also note that it is true that the magistrate made no inquiry as to whether the drug was for the appellant’s own consumption, which was what he alleged under caution, and which, if true, would render the present case one of technical trafficking.

9.I am prepared to give the appellant the benefit of that doubt in the absence of any contention by the respondent.

10.The appeal is allowed.  The sentence of 16 months’ imprisonment is set aside and substituted by one of 2 months.

Ms Cheung Kit Yee, Kathie, GC of the Department of Justice, for HKSAR

Mr Giles Surman, instructed by Legal Aid Department,  for the Appellant