HKSAR v. TSANG KIN CHUNG RIDGELEY

bjbj 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 HKSAR Respondent and TSANG KIN CHUNG RIDGELEY (

REASONS FOR JUDGMENT -------------------------------------------------------

AUTONUMOUT 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

AUTONUMOUT 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.

AUTONUMOUT 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 : (1) AG v. Lee Chung Leung, CAAR21/1976, which was a Court of Appeal decision of 28 December 1976; (2) R. v. Tang Chung Yan, HCMA1441/1989, which was a decision by Ryan J dated 29 December 1989; (3) HKSAR v. Chau Ming Fai Cary, HCMA479/1998, a decision of Suffiad J dated 28 August 1998; (4) HKSAR v. Chan Tak Shing, HCMA657/2002, a decision of Toh DJ of 2 August 2002; and (5) HKSAR v. Li Hok Leung, HCMA1001/2004, a decision of Toh DJ dated 18 November 2004.

AUTONUMOUT 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

AUTONUMOUT 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 In a normal case of this nature, we think that an immediate custodial sentence is a proper sentence.

AUTONUMOUT 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 The court [in case No.(1)] did, however, state that in a normal case involving possession of Part I Poison, an immediate custodial sentence would be proper. 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.

AUTONUMOUT 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 Whilst I accept that it has been said on many occasions that cases are not always useful when it comes to sentencing, I find that in these two cases the underlying principle stated by the courts there is that in a normal case involving possession of Part I Poisons, an immediate custodial sentence would be proper. 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.

AUTONUMOUT 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.

AUTONUMOUT 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 I do agree though that this kind of offence does call for an immediate custodial sentence 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.

AUTONUMOUT 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

AUTONUMOUT 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. (Peter Nguyen) Judge of the Court of First Instance High Court Ms Laura Ng, GC of the Department of Justice, for HKSAR Mr Andy Hung, assigned by the Director of Legal Aid, for the Appellant

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