HKSAR v. HIN LIN YEE AND ANOTHER

HCMA574/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 574 OF 2008

(ON APPEAL FROM TWS1952-1957/2007)

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J U D G M E N T

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1.  This is an appeal against conviction and sentence by two Appellants.

2.  The 1st Appellant was a doctor in private practice, and the 2nd Appellant was a clinical assistant working for him.  The doctor faced a total of five summonses, and his assistant, one.

3.  The first summons faced by the doctor was laid contrary to Regulation 36 and 40 of the Pharmacy and Poisons Regulations made under the Pharmacy and Poisons Ordinance, Cap. 138, and it alleged that he possessed, for the purposes of sale, distribution or other use, a pharmaceutical product, namely four bottles of chlorpheniramine maleate, 10 milligrams per 5 millilitres, which was not registered with the Pharmacy and Poisons Board.

4.  The remaining four summonses were laid contrary to Section 54(1) and 150 of the 9th Schedule of the Public Health and Municipal Services Ordinance, Cap. 132, and they allege that on four occasions he sold a drug, namely a bottle of colourless liquid labelled as Piriton, containing chlorpheniramine, intended for use by man but unfit for that purpose, and the complaint in each of those four cases was that the Piriton, an antihistamine, had been prescribed to children and somehow had been contaminated by isopropyl alcohol, or industrial alcohol, as I shall call it.

5.  In the case of two of the summonses, the degree of adulteration was 43 per cent; in the case of the third, 11 per cent; in the case of the fourth, 1 per cent.

6.  The 2nd Appellant faced only one summons, which was contrary to Section 54 of the Public Health and Municipal Services Ordinance in that it was alleged against her that on one occasion, she sold a bottle of Piriton contaminated by industrial alcohol.

7.  In respect of the first summons, the doctor was fined $20,000, and $15,000 on the remaining summonses, creating a total of $80,000.  The 2nd Appellant was fined $3,000 on her summons.

8.  The case took nine days to try in the Magistrates’ Court.  There is a very long statement of findings.  In summary, the Magistrate found that he did not believe the doctor, that he had been less than frank in his evidence, and that he had knowingly adulterated the children’s medicine with the industrial alcohol and indeed had taken steps to cover up the fact that he had done so.

9.  This appeal was really launched on the basis that those findings could not be supported because they had never been suggested to the Appellant at trial and had never been the subject of either the prosecution’s opening or closing address.  It simply had not been put on that basis; and the doctor, a man of good character, and a professional man, had never had the opportunity to meet those allegations.

10.  I have a full transcript before me, and the written submissions which were made to the Magistrate by the prosecution.  The complaint by the Appellant is a justified one.  It is factually correct, and Mr Lee SC, who appears for the Respondents to this appeal, graciously and correctly, concedes that to be the position.

11.  So the fact is those findings, grave ones against a professional man, cannot be supported in this court.  However, what has happened is that the law has been clarified in the meantime, and the issues that arose in the Magistrates’ Court are not issues before this court today on a rehearing, because the fight in the Magistrates’ Court was concerned with both a statutory defence and with what was called the common law defence.

12.  HKSAR v Shun Tak Properties Limited, HCMA1014/2006, decided by the Court of Appeal, held that the so-called common law defence had no application to safety legislation.  The Shun Tak case concerned the Factories and Industrial Undertakings Ordinance. 

13.  The ratio decidendi of that case applies equally to the situation here, where the legislation is concerned with the safety of drugs and the protection of the public in that regard.

14.  So what has happened is this:  that applying the law as it stands today, in relation to the charges of selling a drug for use by man but unfit for that purpose, there is no common law defence.  It is common ground there is no statutory defence and that the offence can rightly be described therefore as an absolute one in the sense that a reasonable belief of compliance with the ordinance is no defence to the charge.

15.  It is common ground in the case that the ingredients of the offence, namely that a drug was sold by either of the Appellants on the relevant occasions for use by man when it was unfit for that purpose, were all proved by the evidence and they were never issues.

16.  It follows that today there is, in effect, no defence on those four summonses, and that the appeal therefore in that regard must be dismissed.

17.  In relation to the first summons against the 1st Appellant, which was the one that alleged he possessed, for the purposes of sale, a substance which was not registered with the Pharmacy and Poisons Board, there is a statutory defence for him to prove that he did not know and he could not, with reasonable diligence, have discovered that the product was not registered. 

18.  I am able to judge whether or not he discharged that burden on the material before me without having to look at the findings of credibility that the Magistrate made.  The doctor said at trial that it never occurred to him to check because he trusted the supplier.  That is a different thing from saying that he could not, with reasonable diligence, have discovered that the product in question was not registered.  In a word, my judgment is that he could not prove the second limb of the statutory defence, and therefore the appeal against conviction in relation to that first summons must also fail.

19.  In relation to the 2nd defendant, she was charged with the absolute offence, and her appeal against that conviction must fail.

20.  Today, Mr Macrae, SC, who has appeared on behalf of both of the Appellants, has realistically seen that that is the likely result in the circumstances, though he did not concede the lack of due diligence .  That is a finding I make on the evidence available to me.

21.  He did raise the question of whether or not I could properly make that finding here today in view of the way the case was put below, but I believe I can justly do that, because I can see what the Appellant was saying about it, and I can ignore those findings which have been discredited that were made by the Magistrate, and form my own view on the material that the Ordinance directs I should have regard to.

22.  That leaves the appeals against the sentences.  It seems to me that the fair thing to do here is to treat this as if it had been a plea of guilty in the Magistrates’ Court, in respect of the four summonses that alleged selling the unfit drug.

23.  I cannot say that the sentences actually passed, which I have already averted to, were so low that they were unreasonable.  It follows, therefore, in view of the way the case now unfolds, where if there had been an appreciation that the common law defence had no application and there would have likely been pleas of guilty to the four summonses, that I must give credit for those notional pleas; and also I have got to reflect in the penalty a difference between those fines based on deliberate adulteration and knowledge and the case as it stands now, which is guilt following absolute liability.

24.  I have no doubt in the Magistrates’ Court that if there had been a plea of guilty, there would have been a short written Summary of Facts which would have been agreed.  It may be if the prosecutor there had been minded to embellish his case, he would have been entitled to open that it was the prosecution’s view that this adulteration could have come about because the doctor had been diluting the stronger and unregistered Piriton, and it was in the process of doing that, presumably to save himself a small amount of money, that a mistake occurred and alcohol somehow got into the children’s medicine.

25.  If it had been opened, I dare say the defence would have said that they did not accept that but I do not think they would have forced the issue to a Newton Inquiry; it would not have suited their book, and they would have said, that in any event, it was just a mistake.  They would have said there was no point in deliberately contaminating the children’s medicine with alcohol.  However it occurred, whatever the motive, it must have been a mistake, because there is absolutely no point in doing it deliberately.  These are submissions with which I have sympathy, because the defence can demonstrate from material that was produced at the trial that the cost of the industrial alcohol was slightly in excess of the cost of the medicine adulterated .  There was no economic motive to do this.

26.  So it remains, in effect, a mystery, and I believe that if a Magistrate sitting and hearing this had heard the case opened in the way I have outlined, and heard mitigation on the lines of, we do not know how it happened, but are sorry; we won’t do it again, then in that case, the matter would have proceeded without any great further inquiry.

27.  If that is what would have happened, then I have to revise the fines that were imposed.

28.  I would not want anyone later to look at this case and look at the level of fines and say that they were in any way an indication as to what fines should be in this area.  I reduce them here for the specific reasons that I have just mentioned.

29.  I should also mention that the degree of danger caused by the adulteration did not approach anything life threatening.  In the case of two of the summonses, the adulteration was only 1 per cent and 11 per cent, which would have had a negligible effect, even on children; and in the other case, the adulteration was 43 per cent.  It would have caused no serious symptoms in the patients who in fact took them, and no damage can be linked or demonstrated to any person here by reason of the mischief which these summonses address.

30.  It is also right that I can see that the 1st Appellant has had a hard time over these matters.  I have no reason to doubt the assertions made in mitigation now before me that the matter attracted a great deal of negative publicity and that it has had a very significant, said to be 50 per cent, and I have no reason to doubt that, impact on the income from his practice.

31.  Of course, normally if you do something wrong, you expect to pay the price for it, but in this case, what clearly attracted the publicity, I imagine, were the findings of the Magistrate that this was done deliberately.  Those are findings that cannot be supported here today, and are conceded to be so by the Respondents, and that hard time he has had therefore is something I believe can be taken into account.

32.  I shall reduce the fines.  It is not an easy task to find the right level.  In respect of the summonses contrary to the Public Health and Municipal Services Ordinance, namely selling the unfit drug, I shall halve the fines.  In the case of the fine in relation to the first summons faced by the 1st Appellant contrary to the Pharmacy and Poisons Ordinance, I shall reduce that $20,000 to $15,000.  In relation to the fine of $3,000 imposed upon the 2nd Appellant, I am told and have no reason to doubt, that the 1st Appellant has paid that for her - she was a lady only earning $7,000 a month at the time - and I shall just halve that, in the circumstances, and say that there should be a fine there of $1,500.

33.  Mr Macrae SC made no secret of the fact that one of the reasons for coming to this court was the impact that the findings of the Magistrate may have in relation to the 1st Appellant’s profession, because following conviction, the papers would obviously go to the Medical Council.  Nothing I say here can bind the Medical Council, I appreciate that, but I hope they will be cognisant of the opinion of this court, that the findings that he deliberately adulterated the medicine and that he then deliberately covered that up cannot be supported.

34.  I should also add this:  that the idea that he deliberately did this, when no motive can be attributed to it and it would be so contrary to his professional obligations and training, I do not find to be, on the evidence I have, a sensible conclusion.  There must have been a mistake of some kind.  I do not know what the mistake was, and I sentence on the basis that the mistake remains something no one, or at least no court, will ever know more of.