HKSAR v. WANG FANG CHUN

HCMA23/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.23 OF 2001

(ON APPEAL FROM FLC 2048 OF 2000)

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J U D G M E N T

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1. This is an appeal against an order made by a magistrate pursuant to section 36(1) of the Pharmacy and Poisons Ordinance, Cap.138 ("the Ordinance"), forfeiting 260 bottles totalling 7,800 tablets of the medicine sildenafil citrate. This drug is more commonly known as 'Viagra' and is a Part I Poison. The appellant, Madam Wang Fang Chun, was charged with possession of the tablets in question at somewhere inside the Hong Kong International Airport otherwise than in accordance with the provisions of the Ordinance. The appellant pleaded not guilty to the charge, and was acquitted after trial before a magistrate. Subsequent to her acquittal, the Secretary of Justice applied for the forfeiture of the tablets pursuant to section 36(1) of the Ordinance. The application was resisted by the appellant who was represented in the proceedings in the court below. Having heard submissions from the respective parties, the learned magistrate ordered that the subject matter be confiscated.

2. Mr Grounds, who did not appear in the court below, relies on two grounds of appeal. The first ground is that since the appellant was acquitted of the possession charge and that at the material time when the prohibited tablets were seized, no other offence under the Ordinance had been committed, the Secretary for Justice was not entitled to make an application for confiscation under section 36. The second ground of appeal is that the learned magistrate failed to take into account the relevant considerations in the exercise of her discretion to confiscate the drugs and that she failed to consider the prospects of confiscating only a portion of the drugs involved.

3. At the trial, it was common ground that the appellant arrived Hong Kong from Taipei at about 5:30 p.m. on 18 June 2000. At 6:00 p.m. the appellant reported to the staff of the China Airlines that she lost her check-in luggage which is a bag containing the 260 bottles of tablets. She then filed a Property Irregularity Report with the China Airlines claiming for the return of the bag. In the report the missing bag was described as to be containing some medicine. It is also not in dispute that earlier on the same day in Sheung Shui, New Territories, a Taiwanese male surnamed Suen handed over two bags, one of which containing the tablets, to a police officer who in turn handed them over to the duty officer of Sheung Shui Police Station. Both bags were in safe custody of the police until later in the month when they were delivered to the Government Chemist for analysis. Examination revealed that there were 260 bottles containing a total of 7,800 tablets of 'Viagra' which is a Part I Poison.

4. In the meantime, the appellant stayed overnight in Hong Kong and left for Thailand on the following day. On 23 June 2000 the appellant wrote to the Commissioner of Police asking for the return of the 260 bottles of tablets. She has been informed earlier by the China Airlines Limited that the drugs in question were handed over to the police for custody.

5. The reasons as stated by the learned magistrate in her Statement of Findings in acquitting the appellant of the charge of possession of the said tablets are :

".... At the time when the subject matter arrived in Hong Kong, it was in the constructive possession of the Defendant. However the Defendant was not in Hong Kong so she was outside the jurisdiction. When the Defendant arrived Hong Kong Airport at 5:30 pm, the subject matter was already in the custody of Hong Kong Police. It cannot be said that the subject matter was still in the constructive possession of the Defendant. Since the prosecution failed to prove beyond reasonable doubt that the subject matter was in the possession of the Defendant when she was in Hong Kong, the Defendant was acquitted. ...."

6. With great respect to the learned magistrate, her understanding of the Law of Constructive Possession cannot be correct. The appellant checked the luggage through to Hong Kong. She had every intention to retrieve the bag when she arrived at the Hong Kong International Airport. But for the fact that it was handed over to the police for custody earlier on the same day, the appellant would have no difficulty in retrieving the drugs and walked out of the airport with them. Constrast this with the scenario where police officers were laying ambush in the vicinity of a locker which they had searched earlier, and found to be containing dangerous drugs. A person who held the key to the locker and who intended to collect the dangerous drugs from the locker would be in constructive possession of the drugs inside the locker even though the police had got to the drugs earlier. The basis of the acquittal of the appellant on the charge of possession must necessarily be flawed. In so far as there has not been any application to review the learned magistrate's decision to acquit the appellant nor has there been any application to state a case on a point of law for consideration by this court, the appellant stands acquitted of the charge.

7. Turning now to Mr Grounds' first ground of appeal, he seems to have fallen into the same error as the learned magistrate when he submitted that no offence could have been committed under the Ordinance because at all material times the tablets had been in the lawful custody of the police. Section 36(1) of the Ordinance provides :

"Any magistrate may, on application by the Government, order to be forfeited any pharmaceutical product or medicine or any substance or article consisting of or containing any poison with respect to which any offence under this Ordinance has been committed, whether any person has been convicted of such offence or not, and upon the making of any order of forfeiture ...."

It is clear from the wording of the section as a pre-condition of ordering forfeiture, the magistrate must be satisfied that an offence under the Ordinance has been committed. The appellant's acquittal does not preclude the making of the Forfeiture Order.

8. The power to order forfeiture of the infringing pharmaceutical product or medicine under the Ordinance does not depend on whether there had been a conviction of a person charged under the Ordinance. The court is only concerned with whether an offence has been committed in relation to the items in question. The court is neither concerned with the identity of the offender nor whether there has been a conviction.

9. The contention by Mr Grounds that no offence could have been committed at all by anybody under the Ordinance is fallacious. As indicated earlier, the learned magistrate erred in her approach on the issue of constructive possession. Had there been a correct understanding of the law, the appellant would have been in constructive possession of the tablets and hence the offence of possession under section 23 would have been convicted by the learned magistrate. The precondition under section 36(1) for forfeiture would have been met. Further, the presence of the drugs in question within Hong Kong is never in dispute. The number of tablets involved is of such that it must be a commercial quantity. It was the appellant who checked the bag containing the drugs for carriage by the airline to Hong Kong. She claimed that the drugs are for eventual transshipment for consumption in Thailand. Apart from the offence of possession under section 23 of the Ordinance, section 28A of the Ordinance also imposes restriction on import and export of pharmaceutical products. It appears that an offence under this section has also been committed. Although the appellant was acquitted of the possession charge, the pre-condition for forfeiture under section 36 had nevertheless been met. It was therefore open to the learned magistrate to order forfeiture of the tablets.

10. In his second ground of appeal, the learned magistrate was criticized for taking into account irrelevant considerations and/or failed to take into account relevant considerations. The order for confiscation, it was submitted, was such that no reasonable tribunal could have made.

11. Under the paragraph for "reason for the order" in the Statement of Findings, the learned magistrate stated :

".... From the letter by the Defendant to the Commissioner of Police dated June 23 (Exhibit P7), it was clear that the Defendant was aware that the subject matter was in Hong Kong on June 18. She was looking for it and she would keep it overnight in Hong Kong before she went to Thailand on the following day. It is clear from these evidence that Hong Kong was used as a conduit for the transportation of Part I Poison. I opine that the Court has a duty to safeguard the prestige of Hong Kong. People should be stopped from using Hong Kong as a conduit for transporting any prohibited drugs.

....

Whatever category of Part I Poison Viagra belongs to, it is still a kind of Part I Poison. There is no evidence to say that it is not dangerous in consuming Viagra."

12. Mr Grounds identified some 13 factors in support of his second ground of appeal. They can be conveniently summarized as :

(a) The Government stood to benefit hugely by a Confiscation Order as the total value of the tablets in question was about HK$678,000.

(b) The maximum fine under the Ordinance was $100,000. The loss suffered by the appellant as a result of the Confiscation Order would be disproportionate to the amount of the fine.

(c) There is no evidence to suggest that the transaction was illegal. The appellant was a legitimate business woman who had every intention to deliver the consignment of drugs to Bangkok.

(d) The appellant intended to declare the tablets to the Customs in Hong Kong and she had no intention to dispose of the Viagra locally.

(e) It was through no fault of the appellant's part and it was the negligence of her agent, the China Airlines, that the tablets arrived in Hong Kong before the appellant.

(f) The appellant was acquitted of the possession charge.

(g) There was overemphasis placed on the issue of Hong Kong's prestige and that it was used as a conduit for transportation of prohibited drugs when in fact the Viagra tablets were Part I Poison.

13. The appellant was legally represented at the forfeiture proceedings in the court below. Not all of the points noted above however, were raised for consideration by the learned magistrate as being relevant factors in the exercise of her discretion under the forfeiture provisions. It is not entirely fair, therefore, for Mr Grounds to criticize the learned magistrate for failing to consider the factors which Mr Grounds thinks should have been relevant when most of them had never been drawn to the learned magistrate's consideration. Counsel for the appellant in the court below concentrated on the fact that the appellant was acquitted of the possession charge and he seemed to have laboured on the point that there was never any intention on the appellant's part to import the tablets into Hong Kong. The fact remains prohibited Part I Poison was found in Hong Kong. The appellant had knowingly assumed the risk of not declaring the drugs to the relevant authorities beforehand. The tablets themselves were items integral to the offence and once the learned magistrate had decided to forfeit the tablets, I do not think it would be open to her to consider forfeiting only a portion of the tablets involved as the tablets formed one consignment which, in the light of the evidence, it was treated as such by the appellant. Any suggestion that the financial loss suffered by the appellant is disproportionate to the likely sentence that she would have received does not bear scrutiny. On this point, it would be useful to refer to the case of The Queen v. Chan Kin Kwan, CA No.652 of 1983 (unreported). Addison J said :

" There is a fallacy in this argument, as I see it, in that it would put a premium on a person always to smuggle or attempt to smuggle goods into another country of a value far in excess of his financial worth. Should those articles be seized he would always be able to say that he suffers financial ruin.

....

Mr. Cagney, for the Crown put the matter very succinctly when he said that the loss of the whole investment on a venture of this kind is a hardship but not an undue hardship. ...."

Suffice it to say that any person who had been entrusted with the consignment of the tablets should have made certain that any requirements by the authorities should be complied with, the appellant had failed to comply with the relevant statutory provisions. There had been a number of options open to the appellant in shipping the consignment of tablets to Thailand but she had chosen to flout the law of Hong Kong. Any suggestion that she intended to declare to the authorities has not been borne out by the evidence.

14. The learned magistrate had exercised her discretion based on the available information before her at the time. There is nothing to suggest that she had exercised her discretion otherwise than in a judicious manner. For the reasons given, I see no merits in the two grounds of appeal put forward by Mr Grounds on the appellant's behalf. The appeal against the Forfeiture Order is dismissed.