HKSAR v. GOOD HEALTH PHARMACO LTD. AND ANOTHER

1999, No. MA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 206 OF 1999

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J U D G M E N T

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1. At the trial, Mr Wong Wu-man was the 1st Defendant while Good Health Pharmaco Limited was the 2nd Defendant. In this appeal, the company has become the 1st Appellant while the individual has become the 2nd Appellant. To avoid confusion, I will refer to them as "the Company" and "Mr Wong" respectively.

2. The Company and Mr Wong each faced one charge. They were tried before J.T. Glass, Esquire in the North Kowloon Magistracy and were on 28th February this year convicted. Both charges had to do with what the prosecution said happened on 23rd June 1998 at the Ground Floor of No. 515 Shanghai Street in Mongkok. The charge against the Company was laid under section 20(1) of the Pharmacy and Poisons Ordinance, Cap. 138 ("the Ordinance"). The particulars of the charge were at the date and place just mentioned, the Company, being other than an authorised seller of poisons, took or used in connection with any business engaged in the retail sale of poisons, or in the dispensing, compounding, or manufacturing of drugs, poisons or pharmaceutical products, any title, emblem or description which might reasonably be taken to suggest that it was an authorised seller of poisons.

3. The charge against Mr Wong was made under regulation 36(1)(b) of the Pharmacy and Poisons Regulations, Cap. 138. The particulars of the charge were that at that day and place, Mr Wong had in his possession 495 tablets of Viagra, an unregistered pharmaceutical product with the Pharmacy and Poisons Board, for the purpose of sale, distribution or other use.

4. The Company and Mr Wong appeal against conviction.

5. As far as Mr Wong is concerned, there was grave suspicion against him. But at the end of the day, I think that the Magistrate's finding that he was in possession of the tablets is speculative. I consider his conviction unsafe and allow the appeal to quash it.

6. I turn now to the Company. The provision under which it is charged, section 20(1) of the Ordinance reads:

"Any person other than a registered pharmacist or an authorized seller of poisons who takes or uses in connection with any business engaged in the retail sale of poisons, or in the dispensing, compounding, or manufacturing of drugs, poisons or pharmaceutical products, any title, emblem or description which might reasonably be taken to suggest that he or any person employed by him is a registered pharmacist or that he is an authorized seller of poisons, or that he or other person employed by him possesses any academic qualification other than the academic qualification that he or his employee in fact possesses shall be guilty of an offence."

One element of this offence is therefore that the taking or using of the title, emblem or description be "in connection with any business engaged in the retail sale of poisons, or in the dispensing, compounding, or manufacturing of drugs, poisons or pharmaceutical products." In other words, it is an element of the offence that the person who does the taking or using was conducting a business engaged in at least one of those things.

7. Such evidence as the Magistrate received as to the Company's business was that the Company was engaged in selling household items. The Magistrate seems to have accepted such evidence. In any event, there was no finding by him that the Company was conducting a business engaged in any of the things mentioned in section 20(1).

8. Accordingly, the Company's appeal is also allowed and its conviction is also quashed.