R v Mingh Ya Zhu [2000] VSCA 191

7. This is a case stated by a County Court judge pursuant to ss.446(2) and 447 of the Crimes Act 1958. It raises a short question of construction concerning paragraph (c) of the definition of "commercial quantity" in s.70(1) of the Drugs, Poisons and Controlled Substances Act 1981. Section 70(1) provides that, in Parts V and VI of the Act, unless inconsistent with the context or subject-matter -

"'commercial quantity', in relation to a drug of dependence -

...

(c) the name of which is specified in column 1 of Part 3 of Schedule Eleven - (i) if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 2A of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or (ii) in any other case, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;".

Diacetylmorphine (heroin) is a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven. The relevant quantity specified in column 2A is 500 grams. The relevant quantity specified in column 2 is 250 grams. The heading to column 2 reads "Quantity", scil. quantity of drug of dependence; the heading to column 2A reads "Quantity of mixture of substance and drug of dependence".

12. 3 On 11th January 1999 the accused, Ming Ya Zhu, was arrested by police in St Albans. She was in possession of a wrapped package containing a block of white powder. The block, which weighed 349 grams, consisted of a mixture of heroin and other substances. It contained 264.5 grams of heroin, the balance of its weight being attributable to those other substances.

15. The question of law reserved for the consideration and determination of this Court pursuant to s.446(2) is:

"Is a mixture of diacetylmorphine (heroin) and other substances weighing in total less than 500 grams, but containing in the mixture more than 250 grams of diacetylmorphine (heroin), a commercial quantity?"

The accused, by her counsel, has stated that, if the answer to the question is "Yes", she will plead guilty to one count of trafficking in a drug of dependence in not less than the applicable commercial quantity and that, if the answer to the question is "No", she will plead guilty to one count of trafficking in a drug of dependence in a traffickable quantity.

20. Mr Holdenson argued that sub-paragraph (i) was not applicable, because the block weighed less than 500 grams, and that that was the only sub-paragraph to which regard should be had in the case of mixtures. I accept the first branch of that submission but not the second. To say that mixtures are dealt with in sub-paragraph (i) and non-mixtures in sub-paragraph (ii) is to ignore the structure of the definition. Counsel also submitted that the construction for which he argued accorded with common sense. To my mind, the contrary is true: it would produce an anomaly: but I do not rely on that consideration, because the meaning of the definition of "commercial quantity" is, in relevant respects, clear.[1]

23. Sub-paragraph (i) of the definition applies if, and only if, two conditions are satisfied. The first is that the drug of dependence is contained in or mixed with another substance. The second is that the quantity of that mixture of drug of dependence and other substance is not less, in the case of heroin, than 500 grams. Both conditions must be satisfied if sub-paragraph (i) is to apply. Where it does, "commercial quantity" means any amount of the drug of dependence. In "any other case", that is to say where it is not the case that both those conditions are satisfied, sub-paragraph (ii) applies. "Commercial quantity" then means the quantity of the drug of dependence specified in column 2, which, in the case of heroin, is 250 grams.

26. On the facts stated in the case, sub-paragraph (i) does not apply. The first condition is satisfied but the second is not. Accordingly sub-paragraph (ii) applies, with the result that "commercial quantity" means 250 grams.

29. Were it not for two technical difficulties, the question should therefore be answered "Yes".

32. The first difficulty is that the "commercial quantity" is not a quantity of mixture but a quantity of drug of dependence. Strictly speaking, that is so even where sub-paragraph (i) applies. The question reserved asks whether a mixture of heroin and other substances weighing in total less than 500 grams, but containing in the mixture more than 250 grams of heroin, is a commercial quantity. The second difficulty is that, where sub-paragraph (ii) applies, the commercial quantity is always 250 grams. The offence is to traffick in relation to an amount not less than that quantity.[2]

35. The simplest course is to remit the question to the learned County Court judge, with a view to its being restated if his Honour considers that desirable. In practice, that would seem to be unlikely, because the point of substance has been answered in these reasons: the 264.5 grams of heroin contained in the block were not

less than the applicable commercial quantity notwithstanding that the block itself weighed less than 500 grams.

40. I have had the advantage of reading in draft the reasons for judgment of Callaway, J.A. I agree in them and in the order he proposes.

[1] It is similarly unnecessary to rely on the explanatory memorandum that accompanied the Sentencing and Other Acts (Amendment) Bill 1997, but it, too, militates against counsel's construction. The explanatory notes to cll. 37 and 46 both say that column 2 specifies "the amount of drug contained in the substance seized". It was not suggested that anything turned, for present purposes, on the distinction drawn by the words "contained in or mixed with" at the beginning of sub-paragraph (i).

[2] I do not stay to consider whether s.71(1)(a) specifies an element of the offence or a statutory circumstance of aggravation. It appears to do the latter.