HKSAR v. GAMBOL, OFELIA SANTOS

HCMA 524/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 524 OF 2012

(ON APPEAL FROM ESCC 1641/2012)

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J U D G M E N T

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1.  This matter comes before me as an appeal against conviction. However, today the appellant has abandoned that on my granting her leave out of time to appeal against the sentence.

2.  The whole matter revolved around the possession of one single pill which was a Part 1 poison because it contained the substance sildenafil which is the active ingredient of drugs or substances such as Viagra.

3.  The case for the respondent and the basis of the conviction was that the appellant’s possession of the pill arose from her domestic matrimonial circumstances.  It was to be used on the last night of her holiday when she had been in the Philippines with her husband but it was not in fact used and ended up, never mind how, in her handbag. 

4.  Mr Wong has appeared for the respondents today and has been statesman like in his conduct of the matter.  It was the case that no legal advice was obtained before launching this prosecution.

5.  There is no evidence in the case that the pill was obtained in any way unlawfully in the Philippines and in discussion of the merits of the case with Mr Wong, it appeared that anyone lawfully in possession of medicines from abroad only has the protection of prosecutorial discretion when they bring those drugs here, if they are Part 1 poisons.

6.  I am told it was the packaging of the pill which displayed some Chinese characters that prompted the prosecution here, although it is difficult to see why logically that should be so.  In those circumstances, it seemed to me that the fine, HK$1,500, a substantial proportion of the monthly wage of the appellant, should be quashed and an absolute discharge put in its place.

7.  In the circumstances, I did not adjourn the matter for the magistrate to give reasons for why she passed the sentence and I hope she will not think me discourteous for taking that course.  But it is quite apparent from the papers that in the court below there was never any question of examining the possible lawful provenance of the single pill in the Philippines and the appellant coming here, as others must do on a very regular basis, amenable to prosecution because of a lack of prescription or the like from a Hong Kong registered medical practitioner or other approved source.  I hope the course that the court has now taken does the best justice as it can in the circumstances.

8.  The final and most important thing though I wish to say is that there is obviously a fear that the Immigration Department may take an unfavourable view of any future application by the appellant to renew her working visa as a domestic helper.  Of course, it is their discretion and I do not seek to tell them, in any way, how they should exercise it.  But I would like them to know that it would be the view of this court that to refuse to renew her visa on the basis of this conviction when the court has substituted an absolute discharge and took the view that the matter should not have been prosecuted would, in fact, be unjust in the circumstances.  I shall ask for the remarks I have just made to be transcribed and they will be supplied to the appellant for whatever use she thinks fit.