ATTORNEY GENERAL v. WONG YI CHEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1200 OF 1986

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BEWEEN

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JUDGMENT

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The issue

1. Does a patient of a methadone clinic in possession of "taken away" methadone contravene s.8(1)(a) of the Dangerous Drugs Ordinance ("the Ordinance")? The answer to that question determines the result of this appeal by Hay of case stated.

The facts

2. On. 30 March 1986 the Respondent, as a patient of the Robert Black Methadone Clinic, was handed a dosage containing 65 milligrammes of methadone hydrochloride ("methadone"), a dangerous drug within the meaning of the Ordinance.

3. Methadone is used for detoxification of drug addicts. Patients attend the clinic for treatment of drug addiction by way of detoxification. The treatment' for each patient follows a simple, unvarying procedure. On his first visit the patient is examined by a registered medical practitioner ("the doctor"). If the doctor decides that the patient requires medical treatment by way of detoxification he prepares a prescription which specifies the daily dosage of methadone the patient is to receive. The medical treatment for which the prescription is prepared consists of daily ingestion of the prescribed dosage at the clinic under the supervision of the nursing staff.

4. Within hours of receiving his prescribed dosage on 30 March 1986 the Respondent was found in a street away from the clinic in possession of a plastic bottle containing a solution in which 42 milligrammes of methadone was present. He was arrested and charged with an offence contrary to s. 8(1)(a) of the Ordinance. The charge was dismissed following a finding of no case to answer. The dangerous drug found on the Respondent in the street was part of the dosage given to him at the clinic. The Respondent converted it into take-away" methadone by deceiving the nursing staff at the clinic into believing that he had ingested it.

The learned magistrate's reasons for finding no case to answer

5. The learned magistrate's reasons for finding no case to answer are set out in the Case as follows:-

“(a) [The Ordinance] is a penal statute and as such should be strictly interpreted ……… I cannot properly and safely strain the Ordinance's wording to the extent of concluding that the Respondent was guilty of an offence contrary to s. 8(1)(a) ……

(b) Once the Respondent lawfully received the methadone in the clinic, which is what I have found had occurred in the instant case, the Ordinance makes no provision for a situation or contingency whereby the Respondent could later be said to have ceased to be in lawful possession thereof:-

(c) Although I personally feel that the facts as found should constitute an offence, a strict interpretation of the Ordinance is the correct approach. It would not be correct to find that an offence is created by implication or inference, which on a proper construction of the Ordinance is the only way in which an offence could be alleged."

The question posed in the case stated

6. The case stated poses the following questions :-

"First : Was I correct in holding that the administration of a dangerous drug is part of the process of supplying under the provisions of [the Ordinance]?

Second Where a person was lawfully given a drug, was I right in holding that [the Ordinance] makes no provision for such possession later becoming unlawful?

Third Was I correct in law in holding that the respondent had no case to answer?"

The Offence

The material part of s. 8(1)(a) provides as follows :-

"80 (1)(a) Save under and in accordance with [the] Ordinance …… no person shall -

(a) have in his possession ………… a dangerous drug.

(2) Any person who contravenes any provision of subsection (1) shall be guilty of an offence ………"

7. Possession of a dangerous drug having been proved there was a case to answer unless that possession was "under and in accordance with the Ordinance".

Possession authorized under Part IV of the Ordinance

8. Part IV of the Ordinance is headed -

"Statutory Authority to procure, supply and possess dangerous drugs".

The material provisions of that Part are as follows :-

"22(1) Subject to the provisions of [the] Ordinance –

(a)    a registered medical practitioner;

…………

(f) a sister for the time being in charge of a ………. clinic maintained by the Crown;

………….

is hereby authorized, so far as may be necessary for the practice or exercise of his profession, function or employment, and in his capacity as such, to be in possession of and to supply a dangerous drug …………

23(1) Nothing in section 22 shall –

…………

(b) authorize the sister in charge of a …… clinic maintained by the Crown -

…………

(ii) to supply a dangerous drug except in accordance with a prescription lawfully given by a registered medical practitioner in charge of any of the patients of the …… clinic ………

25(1) A person to whom --

(a) a dangerous drug is lawfully supplied by a registered medical practitioner ……; [or]

(b) a dangerous drug is lawfully supplied on a prescription lawfully given by a registered medical practitioner ………

is hereby authorized to be in possession of the dangerous drug …… so supplied ……"

Did Part IV authorize the Respondent's possession?

9. To be authorized under s. 25(1)(a) the Respondent had to be in possession of methadone lawfully supplied by the doctor. The doctor could lawfully supply only to the extent necessary for the practice of his profession (s. 22(1)). The practice of his profession is medical treatment. On the facts, the only medical treatment for which he would supply methadone was ingestion under medical supervision at the clinic. Possession of methadone away from the clinic could not be possession of methadone supplied for that medical treatment. It was not therefore possession of methadone "so supplied” under s. 25 (1)(a).

10. To be authorized under so 25(1)(b) the Respondent had to be in possession of methadone lawfully supplied by the sister in charge of the clinic in accordance with a prescription lawfully given by the doctor. According to the Oxford English Dictionary, "prescription" means --

"2. A direction or formula (usually) written by a physician for the composition and use of a medicine; a recipe; transf. the medicine prescribed."

By s. 2(1) of the Ordinance "prescription means a prescription for a single individual given by a registered medical practitioner for the purposes of medical treatment". That statutory definition is an adoption by the Legislature of the primary rather than the transferred meaning. On the facts, the only medical treatment (that is, the use element of the prescription) which could have formed the purpose of the doctor's prescription was ingestion under medical supervision at the clinic. So the sister could not lawfully supply except in accordance with a prescription prescribing that use. Possession of methadone away from the clinic could not be possession of methadone lawfully supplied on such a prescription. It was not therefore possession of methadone "so supplied" under s. 25(1)(b).

11. The Respondent was not authorized under Part IV to be in possession.

Was his possession under and in accordance with any other provision?

12. There were submission both below and on appeal which together with the first question posed by the learned magistrate suggested that s. 5 was helpful. The material part of that section is as follows :

"5(1) No person shall supply ……… a dangerous drug to or for any person in Hong Kong unless --

(a) the latter person is authorized by …… [the] Ordinance to be in possession of that dangerous drug; [and]

(b) the dangerous drug is to be supplied …… in accordance with [the] Ordinance …….

(2) Any person who contravenes subsection (1) shall be guilty of an offence …………

(3) For the purposes of this section, the administration of a dangerous drug --

(a) by or under the direct personal supervision of, and in the presence of, a registered medical practitioner; ………… or

(c) by a sister for the time being in charge of a ………. clinic maintained by the Crown acting on the instructions of a registered medical practitioner, to a patient or that ……… clinic,

shall be deemed not to be the supplying of the dangerous drug."

13. It is not necessary for the purpose of disposing of this appeal to embark upon an exegesis of s. 5. It suffices to say that -

(a) the provision did not authorize the Respondent's possession of methadone outside the clinic; and

(b) the sister in charge of the clinic would not have contravened subsection (1) if, when giving the Respondent methadone to drink at the clinic, she was acting not in accordance with a written prescription but merely according to the oral instructions of the doctor.

14. There was, therefore, no authority under the Ordinance for the Respondent to be in possession of the methadone at the time he was accosted by the police. Accordingly, there was a case to answer.

The answer

15. I think that the third question in the case should be answered, "No", and that the other two questions do not call for any answer.

16. The Appellant indicated through counsel at the hearing of the appeal that if it were found that the Respondent did have a case to answer he did not wish the case to be remitted for further hearing.