HKSAR v. Tsang Kin Chung Ridgeley
Read the full judgment text of HCMA 673/2006 on BabelCite. This High Court CFI judgment was delivered on 6 December 2006.
1. The appellant pleaded guilty to one charge of possession of Part I poison, contrary to sections 23 and 34 of the Pharmacy and Poisons Ordinance, Cap.138 and, on 30 June 2006, he was sentenced to two months’ imprisonment by Ms Judy Ma sitting at Tuen Mun Law Courts. On 6 December 2006, I allowed his appeal against sentence and substituted the imprisonment with a fine of $6,000. I said that I would give my reasons on a later date. That I now do.
Cited by 3 cases
|
HCMA673/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 673 OF 2006 (ON APPEAL FROM TMCC 1576 OF 2006) --------------------------- BETWEEN
------------------------------- Before : Hon Nguyen J in Court Date of Hearing : 6 December 2006 Date of Judgment : 6 December 2006 Date of Reasons for Judgment : 18 January 2007 ------------------------------------------------ REASONS FOR JUDGMENT ------------------------------------------------ 1.The appellant pleaded guilty to one charge of possession of Part I poison, contrary to sections 23 and 34 of the Pharmacy and Poisons Ordinance, Cap.138 and, on 30 June 2006, he was sentenced to two months’ imprisonment by Ms Judy Ma sitting at Tuen Mun Law Courts. On 6 December 2006, I allowed his appeal against sentence and substituted the imprisonment with a fine of $6,000. I said that I would give my reasons on a later date. That I now do. The facts of the case 2.What was alleged against the appellant was that he had in his possession 1,052 tablets containing zopiclone. a listed Part I poison. The facts found by the magistrate were in the appellant’s favour : she said that the authorities for sentencing in drugs cases were to stop abuse of drugs; this case involved drugs which were used as sleeping pills; this appellant in fact had a need to use such drugs; he was therefore not an abuser of drugs; this case therefore was different from the average case involving abuse of drugs. She also found that the drugs in question were for the personal use of the appellant but that he also shared the drugs with other people. That reference was a reference to what he said in his evidence that when he was maintaining a boyfriend and girlfriend relationship with the 2nd defendant which by the date of the offence had terminated, he did share the tablets with her when she needed them. The magistrate therefore regarded this case as being more serious than the average case of possession of Part I poisons. 3.In the course of my review of the cases in the following paragraphs I shall be referring to five cases and these five cases are :
4.The magistrate in the instant appeal quoted cases No. (2), (3) and (4), and using them as authorities stated that the appropriate sentence for possession of Part I poison cases is an immediate custodial sentence. The precedent cases 5.Case No. (1) concerned a defendant who was arrested at the airport and was found to have on his person one pound of ephedrine hydrochloride which was for the relief of asthma and used on the illegal drug market as a stimulant. The Court of Appeal, having considered the facts of that case, said :
6.That decision by the Court of Appeal was relied upon by Ryan J in case No. (2) where he was dealing with an appellant found to be a hard core addict with little hope of recovery but where the drugs involved were only two tablets containing a Part I poison. Ryan J quoted case No. (1) and said :
With respect to Ryan J, he had, in my view, misread case No. (1) as laying down a guideline that in all cases involving possession of Part I poison an immediate custodial sentence would be a proper sentence. Ryan J read that case as a sort of tariff by the Court of Appeal for cases of Part I poisons, irrespective of the facts of the case and irrespective of the amounts of drugs involved. 7.In case No. (3), Suffiad J was dealing with a case where the facts were much more serious than the facts in the instant case. In that case, the appellant was running a dispensary shop and what was found in the shop were 314 tablets of Part I poison. Suffiad J quoted case No. (1) and case No. (2) and said :
Again with respect to Suffiad J, he, in my view, fell into the same error as Ryan J did in case No. (2), that is to say he regarded case No. (1) as laying down some sort of tariff irrespective of the facts of the particular case. 8.In case No. (2), the sentence of six months was reduced to one of two months on appeal and in case No. (3) the sentence of two months was upheld on appeal by Suffiad J. 9.In case No. (4) the drugs were also zopiclone and there were only four tablets involved. It was stated in that case that zopiclone was a depressant and basically was to treat insomnia and that this kind of drug had a very low risk of dependency and was basically mainly for the treatment of insomnia. Toh DJ also had quoted to her case No. (2) and case No. (3) and having considered those cases she said :
In that case the magistrate had imposed a sentence of four months which Toh DJ reduced to one of two months. The facts in case No. (4) were in a sense less serious than the facts in the present case because only four tablets were involved. 10.In case No. (5), there were 30 tablets of zopiclone involved but the seriousness in that case was that the appellant was selling those pills together with other dangerous drugs in a disco which apparently had a bad reputation with the courts. In that case Toh DJ reduced the sentence of four weeks’ imprisonment imposed by the magistrate to one of two weeks. Reasons for decision 11.I allowed the appeal in the instant case because, even though quite a large number of tablets was involved, basically, and this was not disputed by the prosecution, the pills were for the treatment of insomnia and this appellant had made out a case that he required the tablets to cure him of his insomnia which he had had, up to the date of the offence, for a number of years. He was not trafficking in the pills. He was not selling the pills from a dispensary as happened in case No. (3) nor was he selling them in a disco as in case No. (5). In my view, what the Court of Appeal said in case No. (1) was clearly a reference to a case similar to what occurred in that particular case, namely, a person exporting a fairly substantial amount of drugs which could be used as a stimulant. In my view, the Court of Appeal was not laying down a tariff for all cases involving possession of Part I poisons and was confining that comment which I have quoted to the facts of that particular case. In my judgment, the public interest does not require that a defendant, who has Part I poisons for his own use and the use is for curing some affliction or for relieving some pain, should be sentenced to immediate imprisonment. It was for that reason that I allowed the appeal.
Ms Laura Ng, GC of the Department of Justice, for HKSAR Mr Andy Hung, assigned by the Director of Legal Aid, for the Appellant |
Other judgments that cite this case