HKSAR v. CHAU MING FAI CARY

HCMA479/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.479 OF 1998

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J U D G M E N T

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1. In this case, the Appellant pleaded guilty, at the Kwun Tong Magistracy, on 28th April 1998, to one charge of possession of Part I Poison on 25th February 1998 at a shop on the ground floor of On Wah Street in Sau Mau Ping, contrary to s.23 of the Pharmacy and Poisons Ordinance, Cap 138. The Appellant also pleaded guilty to one charge of possession of antibiotics, contrary to s.5(1) and s.10(1) of the Antibiotics Ordinance, Cap 137. He was sentenced to concurrent terms of two months' imprisonment on each of the two charges. He now appeals against these sentences.

2. The facts of the case, as admitted by the Appellant, were that on 25th February 1998, a police party, headed by Detective Inspector Mok Ying Biu, armed with a Search Warrant and accompanied by a Government Pharmacist raided the premises at the above address in On Wah Street, and the offending articles were found inside a drawer of the shop counter.

3. From the charge laid against the Appellant to which he pleaded guilty, it can be seen that the Part I Poison found were 14 tablets containing norfloxacin, 120 tablets containing mefenamic acid and 180 tablets containing phenylpropanolamine hydrochloride. In so far as the antibiotics found, the subject matter of the second charge, there were 70 capsules containing amoxycillin, 30 capsules containing cephalexin, 40 capsules containing cloxacillin and 40 capsules containing ampicillin.

4. The Appellant has two previous and similar convictions, one in June 1997 for which he was fined $6,000 and the other in July 1997 for which he was fined $15,000. These two previous offences were committed in the same premises as the present case. In mitigation, it was put forward on behalf of the Appellant that the subject matter of the offences were not drugs for abuses, such as cough mixture of midazolam, and secondly, that since the raid, the Appellant had transferred the business of the dispensary to someone else and had ceased his business since 1st April 1998.

5. It was also said on the Appellant's behalf in mitigation that he had intended to close his business of the dispensary because the Department of Health did not issue him with a Part I Poisons Licence and therefore he could not employ a registered pharmacist at the dispensary; and that he found the running cost of the dispensary too high.

6. The learned Magistrate took the view that by making these Part I Poisons and antibiotics so readily available to the general public without a prescription, the Appellant was blatantly disregarding the regulations which is to ensure that these substances could only be gotten by a prescription and overseen by a qualified pharmacist. And that although they were not the usual drugs for abuse, they nevertheless pose a danger to the public. The learned Magistrate also took the view that although the Appellant had ceased his business, a deterrent sentence was still called for because the fines imposed on the Appellant on the two previous occasions had failed to have its deterrent effect. He took a starting point of three months, reducing it to two to take account of the pleas of guilty in each case and ordered the two sentences to be concurrently served.

7. Mr Mathews in his submission this morning urges upon me that the sentence was wrong in principle and manifestly excessive. The thrust of Mr Matthews' argument is that a deterrent sentence was not called for because the Appellant had ceased his business of the dispensary and had transferred his business to someone else.

8. On this point, looking at all the facts of this case, it seems to me that the Appellant transferred his business on 1st April after the raid on his shop, almost as a means to put forward that as mitigation in the impending court proceedings that he were to face. I have now been referred to two cases by Miss Ko, these two cases being firstly Attorney General v. Lee Chung Leung, Application for Review No. 21 of 1976, and secondly, R. v. Tang Chung Yan [1989] 2 HKC 607. Whilst I accept that it has been said on many occasions that cases are not always useful when it comes to sentencing, I find that in these two cases the underlying principle stated by the courts there is that in a normal case involving possession of Part I Poisons, an immediate custodial sentence would be proper.

9. The Appellant had been given his chances when he was fined on the two previous occasions in 1997, but it appears that he has not availed himself of the chance that he had been given.

10. Having considered all the matters taken into account by the learned Magistrate in this case, I am of the view that the learned Magistrate was neither wrong in principle nor was his sentence manifestly excessive. In those circumstances, I shall dismiss this appeal against sentence, and I will order that the Appellant will have to serve the sentence as ordered by the Magistrate.