ATTORNEY GENERAL v. CHIU YUK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 124 OF 1986

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JUDGMENT

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1. This is an appeal by the Attorney General by way of case stated against a decision of a learned magistrate dismissing a charge and making an order for payment of costs by the Appellant to the Respondent.

2. The Respondent was charged with two offences under the Pharmacy and Poisons Regulations. He pleaded guilty to one offence and not guilty to the other. The offence to which he pleaded not guilty alleged that "being a person holding a wholesale poison licence he did supply to an unauthorised person a part I poison contrary to regulation 27 of the Pharmacy and Poisons Regulations."

3. The material part of regulation 27 reads as follows:-

"No person holding a wholesale poison licence or a licence to manufacture pharmaceutical products shall sell or supply any poisons except to-.........

(i) purchasers outside Hong Kong......"

4. The learned magistrate found that the Respondent was a licenced pharmaceutical manufacturer and that the poisons were sold by him to a trader in Nigeria and that the purchaser had arranged with a Nigerian agent to take from Hong Kong to Nigeria part of the order. The part of the order which the agent was transporting in a suitcase formed the subject of the charge. The order was fulfilled in two parts apparently because the whole order had not been manufactured by the Defendant at the time when the Nigerian purchaser required delivery of part of the order. The poisons which formed the subject of the charge were the balance of that order.

5. The learned magistrate rejected a submission of no case to answer at the close of the prosecution ease. The Respondent then gave evidence which the learned magistrate said confirmed the evidence adduced by the prosecution. He found the Defendant not. guilty and made the order as to costs earlier mentioned.

6. The first question asked in the case stated is:-

"Does a person who holds a licence to manufacture pharmaceutical products, commit an offence contrary to Regulation 27 of the Pharmacy and Poisons Regulations, Cap. 138, if he supplies a poison to a person in Hong Kong who is the agent of a purchaser outside Hong Kong, and to which the agent intends to take that poison?"

7. The answer to that question must be "No ". Supply to a purchaser outside Hong Kong necessarily involves delivery of the poison to someone in Hong Kong for the purpose of carriage beyond Hong Kong to that purchaser. If delivery in Hong Kong to an overseas purchaser's agent made that agent a purchaser himself within the meaning of the regulations, as the Appellant contends, no lawful delivery could ever be made to anyone acting as the overseas purchaser's agent for the purpose of delivering the goods to that purchaser. The Appellant's contention is, in my view, completely without merit.

8. The second question posed in the case stated is:-

"Was I correct in law in exercising my discretion to award costs against the Appellant in the circumstances herein-before disclosed?"

9. Mr. CHAN, who appeared for the Respondent at the hearing of the appeal, was prepared to concede that the order for costs should be set aside on the ground that it was not practicable to make an apportionment of costs in relation to the (a) and (b) charges but he was prepared to accept whatever decision the court arrived at in answering all the questions posed by the learned magistrate.

10. The Appellant contends that the learned magistrate was empowered to make an order. as to costs only where he dismissed the. information. It was argued that as the learned magistrate had not dismissed the information but merely one charge on the charge sheet he did not have power to award costs.

11. Section 69 of the Magistrates Ordinance provides:-

"....where a magistrate dismisses the complaint or information he may, if he is satisfied that the proceedings ought not to have been instituted or pursued against the defendant, order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as he may think fit."

12. By definition in section 2 of the Magistrates Ordinance "information includes a charge". A magistrate therefore clearly has jurisdiction under section 69 to make an order for costs when dismissing a charge whether or not that is the only charge a defendant faces or only one of a number of charges which he faces. The learned magistrate here had jurisdiction to make an order for the payment of costs in favour of the Respondent. Although the magistrate ruled against the submission of no case to answer at the close of the prosecution case, he was still entitled to conclude, as he did, that the charge in respect of that offence should not have been brought or pursued against the Respondent. There was no change in the evidence before the magistrate at the close of the defence case. The case at the end of the trial was neither stronger nor weaker than it was at the close of the prosecution case. The material which led to the learned magistrate's finding that the charge was not proved was avail-able to the prosecution when the proceedings here instituted. The magistrate, therefore, being empowered to make an order as to costs was, in my view, correct in law in making use of that power. I think that he was entitled to take the view that the Respondent was liable to pay more by way of costs when he expected that he would have to face a trial in respect of the charge on which he was eventually acquitted. If the prosecution had brought only the charge to which the Respondent pleaded guilty, the Respondent would have been able to brief a legal representative merely for the purposes of a plea in mitigation. Faced with the prospect of defending the charge which was eventually dismissed, he must have been liable for more costs than he would have had to face had he merely to plead guilty to one charge. I did not think, therefore, that the order for costs should be set aside in the circumstances, and I would answer the magistrate's second question, "Yes".