HKSAR v. Wong Kap Si

HCMA640 & 702/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appeal against Sentence)

MAGISTRACY APPEAL NOS. 640 AND 702 OF 2005

(ON APPEAL FROM FLCC 1244 OF 2005

AND TWCC 1618 OF 2005)

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BETWEEN

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(Consolidated)

Before : Hon Nguyen J in Court

Date of Hearing : 1 November 2005

Date of Judgment : 28 November 2005

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J U D G M E N T

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1.The above two appeals were consolidated for hearing.

HCMA640/2005 (Case FLCC1244/2005)

2.On 27 June 2005, the appellant pleaded guilty to one count of trafficking in dangerous drugs before Mr Andrew Ma and was sentenced to 12  months’ imprisonment, the starting point having been assessed at 18 months.

3.The particulars of the offence are that on 27 May 2005, the appellant had trafficked in 297 tablets containing a total of 4.08 grammes of midazolam.       This was a case of cross-border trafficking because the appellant had bought the dangerous drugs in China and he was arrested at Lok Ma Chau Border Crossing carrying the drugs, which he admitted he intended to sell in Hong Kong.

4.A review of two previous cases shows the following :

(1)

HKSAR v. Wong Chi Sing, HCMA3 and 204/2003, where the amount trafficked in was 0.027 grammes of midazolam where on a plea of guilty, a sentence of 18 months’ imprisonment was imposed, which on appeal was reduced to 4 months.  Another charge of trafficking involved 50   tablets of midazolam containing 0.68 grammes where on a plea of guilty, the sentence imposed was 2 years’ imprisonment concurrent to the first charge, which on appeal was reduced to 4 months consecutive to the 4 months imposed in respect of the other charge, making a total of 8 months.  The result on appeal was, therefore, a sentence of 2 years’ imprisonment reduced to 8 months’ imprisonment.

(2)

HKSAR v. Wong Wai Man, HCMA658/2003, where the appellant was convicted of trafficking in 80 tablets containing 1.11 grammes of midazolam.  He had a substantial record for drugs, namely 30 convictions since the year 1982, 10 of which were for dangerous drugs, but he had no conviction for trafficking.  The sentence imposed of 18  months was reduced on appeal to 6  months.  An aggravating factor in that case was that the appellant had been selling the tablets to drug addicts outside a methadone centre.

5.The guidelines for midazolam and methaqualone were laid down in the case of The Queen v. Chan Chi Man [1987] HKLR 221 where the Court of Appeal stated that for an amount under 500 grammes, the sentence was discretionary and for an amount over 500 grammes, the range of sentences should be from 6 to 12 months.

6.In the instant appeal, the appellant was convicted in the year 2002 of four counts of trafficking when he was sentenced to 30 months.  This was, as the magistrate pointed out, an aggravating factor in that the sentence of 30 months imposed in the year 2002 obviously had no rehabilitative effect whatsoever on the appellant.

7.However, taking into account the tariff guidelines and the two appeal cases that I mentioned, my view is that the starting point of 18 months adopted by the learned magistrate was manifestly excessive.  Bearing in mind that there were elements of aggravation in this case in that it was a case of cross-border trafficking and the appellant had six previous convictions for possession of dangerous drugs and, as mentioned above, four convictions for trafficking in the dangerous drugs, my view is that the appropriate sentence after taking into account the discount for the plea of guilty should be one of 9 months’ imprisonment.

HCMA702/2005 (Case TWCC1618/2005)

8.On 8 July 2005 the appellant pleaded guilty to a charge of possessing two tablet fragments containing a total of 0.02  grammes of midazolam on 16  May 2005.  He was sentenced on 8  July 2005 to 4  months’ imprisonment, the starting point of 6 months having been assessed as appropriate.  Of the 4 months, 3 months were ordered to be served consecutively to the sentence passed in respect of the appeal mentioned above.

9.A review of two previous possession of midazolam cases shows the following :

(1)	In HKSAR v. Yiu Chi Wai, HCMA624/1997, for possessing 0.0038  grammes of midazolam where the appellant had 15 previous convictions, six of which were drug related and where he had been convicted after trial, a sentence of 9 months’ imprisonment was reduced on appeal to 3 months.
(2)	In HKSAR v. Chim Chak Yiu, HCMA743/2003 for possessing 0.01  grammes of midazolam where the appellant had 29 convictions, eight of which were related to dangerous drugs, on a plea of guilty, the starting point of 8 months’ imprisonment was reduced, because of the plea of guilty, to 4 months’ imprisonment.  On appeal this was further reduced to 1 month.

10.In my view, the sentence of 4 months’ imprisonment imposed by the learned magistrate was manifestly excessive and, in my view, an appropriate sentence would be one of one month’s imprisonment.

11.This offence was committed before the offence of trafficking mentioned above, but the sentence was passed after the sentence in the other case.  The magistrate had ordered that 3 months of the 4 months should be served consecutively to the sentence for trafficking.

12.I agree that the sentence should be consecutive, and so I order that the 1-month imprisonment should be served consecutively to the 9 months imposed for the trafficking, making a total of 10 months’ imprisonment.

13.The appeal is allowed to that extent.

Mr W.T. Chiu, GC of the Department of Justice, for HKSAR

Mr Henry Ma, assigned by DLA, for the Appellant