HKSAR v. WONG TSO HSIN

HCMA000967/1998

HCMA967/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.967 OF 1998

———————-

BETWEEN
HKSAR Respondent
AND
WONG TSO HSIN Appellant

———————–

Coram : Hon Gall, J. in Court

Dates of hearing : 24 and 30 November and 7 December 1998

Date of judgment : 7 December 1998

———————–

J U D G M E N T

———————–

1. The Appellant was convicted on 22nd September 1998 of possession of a dangerous drug, namely, one tablet containing 15 milligramsof midazolam maleate. He entered a plea of guilty and was sentenced to 6 months’ imprisonment. He appeals that sentence.

2. The facts were that the Appellant was the subject of a stop and search and that in his possession was found a tablet of midazolammaleate. He has 30 previous conviction of which 8 were similar. He was found to be unsuitable for Drug Addiction Treatment Centre,treatment having been admitted before. The Magistrate gave him credit for his plea of guilty which was entered on the day of trial.

3. In his appeal, Mr Hung argues that for a small seizure such as this, the tariff should be at the discretion of the Court but notmore than 6 months’ imprisonment after trial. He arrives at this tariff by consideration of the similarity between midazolam maleateand methaqualone. A tariff for the latter is fixed for trafficking in R. v. Chan Chi Man [1987] HKLR 221. The tariff in that case for methaqualone, for up to 2000 tablets or 500 grams of powder, was as the Court saw fit; over those quantitieson an ascending scale starting at 6 months.

4. I accept that there are similarities in the nature of methaqualone and of midazolam maleate, and it was held by Liu J.A. in HKSAR v. Luk Yun Shing, CACC No.357/98, that for sentencing purposes of that case methaqualone is no different from midazolam maleate. A concession to thateffect was made by the Department of Justice in that case. An analysis of the evidence in respect of the two drugs carried out byDeputy Judge Lugar-Mawson in HKSAR v. Yiu Chi Wai, HCMA No.624/97, indicated noticeable differences between the drugs. Midazolam is a short acting tranquilliser, whilst methaqualoneis a depressant having hypnotic and sedative qualities; methaqualone has greater addictive effects.

5. In R. v. Li Ming Yiu, HCMA834/96, Stock J. found that the incidence of possession of midazolam maleate was increasing and that it was a common concomitantof heroin abuse. Notwithstanding that Liu J.A. held methaqualone to be no different from midazolam for the purposes of sentencingin Luk Yun Shing above, it is clear that, in practical terms, from its nature, growing use and use with heroin, midazolam may in some cases warranta sentence different from that which is appropriate for a similar quantity of methaqualone.

6. A further matter put to me in argument is that a mathematical approach should not be adopted and with this I agree. Tariff bands,e.g. 20 years’ imprisonment is appropriate for trafficking in 600 grammes of pure heroin, R. v. Lau Tak Ming & Ors. [1990] 2 HKLR 370, but no Court would impose a sentence of 40 years for 1200 grammes of pure heroin.

7. Similarly, at the lower end of the scale, a mathematical calculation cannot be made to determine the penalty for small quantitiesof heroin or any other similar drug.

8. Mr Saw, before me today, concedes that for small quantities of midazolam maleate, for trafficking, the sentence should be at thediscretion of the Court but not more than 6 months’ imprisonment. Clearly in most cases of simple possession of the drug, the samesentencing scale would apply on a lesser basis.

9. In the case before me, the Appellant was in possession, for his own use, of one tablet containing 15 milligrams of the drug, an appropriatestarting point would have been four months’ imprisonment, and with a reduction for plea, a sentence of 12 weeks’ imprisonment wouldhave been appropriate. The appeal is allowed to the extent that a sentence of 12 weeks’ imprisonment is substituted for that of sixmonths’ imprisonment. The additional suspended sentence of three months’ imprisonment, I do not interfere with and it remains consecutiveto the sentence in this matter.

(T.M. Gall)
Judge of the Court of First Instance,
High Court

Representation:

Mr A.A. Bruce, S.C., SADPP, and Mr Gary Lam, G.C., for HKSAR (24.11.98)

Mr A.A. Bruce, S.C., SADPP and Mr Richard Ma, G.C., for HKSAR (30.11.98)

Mr D.G. Saw, S.C., SADPP and Mr Wesley Wong, S.G.C., for HKSAR (7.12.98)

Mr Andy Hung, inst’d by D.L.A., assigned for the Appellant