HKSAR v. NG NGA WO

HCMA 185/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 185 OF 2001

(ON APPEAL FROM TMS 9012/2000)

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J U D G M E N T

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Introduction:

1. The Appellant was convicted of one charge of failing to keep a register in the specified form with respect to dangerous drugs obtained by him and supplied by him, contrary to Regulations 5(1)(a) and 5(7) of the Dangerous Drugs Regulations, Cap 134. He now appeals against that conviction.

2. The facts as found by the learned magistrate is that at the time of the offence, Mr So, a pharmacist of the Department of Health inspected the dangerous drugs register kept by the Appellant against his stock of dangerous drugs. He found the stock did not tally with the register; the name of supplier and invoice numbers and the name of the person to whom the drugs are supplied and the balance columns in some parts of the register were not filled in; some of the entries were not in chronological order and the name of the dangerous drugs was not printed on some pages of the register.

3. The Appellant's defence is that he was busy seeing 60 to 70 patients a day and he left the drugs register to his nurses who were careless and made mistakes. He accounted for some of the differences in the balance in respect of some of the drugs but not all. He said he supervised the nurses and had taken all reasonable steps and exercised all due diligence to comply with the law.

4. Miss Wong on behalf of the Appellant submits that with respect to the first non-compliance, the learned magistrate stated in his oral reasons for verdict that it was not very important. Those were the very comforting words said by the learned magistrate, however, that was in the context that the inaccurate balance rendered his register inaccurate which the learned magistrate considered important. Obviously the magistrate found the inaccuracy was a contravention.

5. In respect of the example cited by the learned magistrate of the Appellant's failure to put down the address of the person to whom the drugs were supplied Miss Wong submits that it was permissible to enter the reference number of the person's treatment record in the register and that that was done. The learned magistrate was fully aware of that. He cross referenced that number with the patient's record and found that the address shown on the record was just "Mai Po" and considered that inadequate. Miss Wong submits that such address is adequate. I cannot agree. An address must contain such description as is sufficient to enable the person at that address to be located and identified. Though there may not be many people living in Mai Po, it is such a large area that such a description defeats the purpose of keeping the register. Such an incomplete description prevents the authority from verifying if the drugs have been supplied to the patient for the purpose of controlling the use of dangerous drugs. Or if something has gone wrong with the manufacture of the drugs which requires the drugs to be recalled or the patient to be informed or treated, with such an incomplete address there is no way that patient could be located within reasonable time and effort. The learned magistrate was right in finding as a fact that the Appellant has failed to keep the register as required.

6. In respect of the Appellant's failure to fill in the name of the supplier of the drugs, Miss Wong submits that the Appellant all alone had one supplier in respect of his entire stock of drugs and this supplier could be readily identified. I do not think that affords a defence. His obligation is to keep the register. That he has the information in his head but does not enter that in the register is not a defence. The register without the information of the supplier would render it nugatory to keep the register. If the authority needs to recall any drugs supplied by a supplier, the register by itself could not enable the authority to do so.

7. Miss Wong submits that though the learned magistrate stated in his contemporaneous reasons for verdict that the Appellant failed to record the identity card number in some of the register, he did not even refer to that in his Statement of Finding. I do not think there is any substance in this ground of appeal. There are sufficient contraventions to justify the learned magistrate to come to the conclusion that the Appellant failed to keep the register. There is no merit in this appeal, which must be dismissed.