HKSAR v. CHUNG KING KUI

HCMA 448/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 448 OF 2003

(ON APPEAL FROM FLCC 2076/2002)

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J U D G M E N T

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1. This is an appeal by the Appellant, Madam Chung King Kui, against her conviction on 25 March 2003 by Miss Eda Loh sitting at Fanling Magistracy of the offence of Possession of Part I Poisons.

2. Although Mr Ozorio, for the Respondent, having made submissions seeking to uphold the conviction eventually conceded that the Respondent would no longer seek to do so, I consider it right in the circumstances to set out the reasons why the court allows the Appellant's appeal.

3. The charge alleged that the Appellant had in her possession on 18 September 2001 at the premises of Ming Wah Enterprises Company (Ming Wah) at flat 9, 5/F, Poly Industrial Central, 15 Yip Fung Street, Fanling, the following poisons included in Part I of the Poison list:

(1) 2 bottles of Caustinerf Fort containing liqnacane

(2) 8 bottles of Scardonest 3% plain injections containing Mepivacaine, and

(3) 13 boxes of Scandonest 2% special injection containing Mepivacaine otherwise in accordance with the provisions of the Pharmacy and Poison Ordinance contrary to sections 23(1), 33(1) and 34 at the Pharmacy and Poison Ordinance Cap. 138.

4. The evidence for the prosecution came from Mr So Ho Chung, a pharmacist, who with colleagues, had raided the premises in question on 18 September 2001 and found the poisons referred to in the charge and a Dr Caleb Cheng who had brought Scandonest from Ming Wah earlier in 2001.

5. It is not disputed that the Appellant was not on the premises at the time, but that two persons, Madam Ching Man Ling and Mr Kwong Hoi Leung were. At Mr So's request, Ching Man Ling had produced to him a file containing invoices and correspondence directed to Ming Wah Enterprises Company relating to orders for Caustinerf Fort and Scandonest and another file containing invoices relating to local sales of Scandonest and Caustinerf Fort by Ming Wah.

6. The Appellant gave evidence,

"that she is retired and lives on the mainland. In 1996, she formed Ming Wah and this firm was then handed to her over offspring including her son Carson Lee to run. Thereafter she knew nothing the business or the operation of the firm and did not know the poisons were on the premises. From time to time she had invested money in the firm."

7. The application form registering Ming Wah at the Business Registry was however signed by the Appellant on 8 June 1996 and showed that on 18 September 2001, the date of the alleged offence, she was still the registered sole proprietor of Ming Wah.

8. There was also evidence in the form of traffic movement records that the appellant was not in Hong Kong on the date in question.

9. There was also evidence before the court that the premises at the material time were let to Trimax Healthcares Supplies (Asia) Group Ltd (Trimax) and the lease was signed by Carson Lee.

10. Madam Ching Man Ling gave evidence that Carson Lee was in charge of Ming Wah and was her boss and had authorised her to represent Ming Wah.

11. The Learned Magistrate concluded on the evidence that Ching and Kwong were staff of Ming Wah on the material date, and on that day the poisons were in possession of Ming Wah rather Trimax.

12. In order to find the Appellant guilty of the offence charged the court had to find that the Appellant was in possession of the particular poisons.

13. The Learned Magistrate expressly stated in paragraph 13 of her Statement of Findings that she accepted the evidence of all witnesses, including those of the defence to be true and correct. She also stated in paragraph 20 of her findings that she believed the Appellant's evidence that she did not know such poisons were on the premises.

14. The Magistrate was clearly mindful of the fact that knowledge on the part of the Appellant must be proved before she could be found in possession of the poisons because immediately after paragraph 20, she asked the rhetorical question "Can knowledge be presumed to the Appellant?". She thereupon relied upon sections 24 and 33(2) of the Pharmacy and Poisons Ordinance Cap. 138 to conclude that it could.

15. Section 24 provides:

"Every person other than an authorized seller of poisons or a listed seller of poisons carrying on a retail business in premises at which poisons are found shall until the contrary is proved be presumed to have such poisons in his possession for the purposes of sale."

16. Of this section the Magistrate said:

"As neither Ming Wah nor the Appellant, nor anyone connected with them is an authorized or listed seller of poisons, Ming Wah and the appellant under section 24 is presumed to have such poisons in its possession for the purposes of sale."

But somewhat curiously in view of the fact that she had expressly found that the Appellant did not know such poisons were on the premises, she went on to say that the presumption in Section 24 had not been rebutted. In my view, even if the presumption arose, the Magistrate's acceptance of the Appellant's evidence that she knew nothing about the business or the operation of the firm and did not know the poisons were on the premises would have been sufficient to rebut the presumption. But in any event, I am not satisfied that the presumption did arise. The Magistrate had accepted the Appellant's evidence that she had retired. She could not therefore had been carrying on a retail business. The fact that she appeared or she was named in the business registration documents as the registered proprietor of the premises was only prima facie evidence that she was carrying on such business. That was rebutted by her evidence which the Magistrate accepted that she had retired and her son was running the business.

17. The Learned Magistrate further relied on the provisions of section 33(2) of the Ordinance which provides:

"In the case of proceedings against a persons under this Ordinance for or in connection with the sale, exposure for sale or supply of a poison effected by an employee-

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(b) any material fact known to the employee shall be deemed to have been known to the employer."

18. Since she was satisfied that Ching Man Ling was an employee of Ming Wah of which the Appellant was the registered sole proprietor and Ching had knowledge that the poisons were in the premises, the Magistrate found that Ching's knowledge under Section 33(2) was deemed to have been known to her employer, the Appellant.

19. Even if the Magistrate could infer or could have inferred despite her acceptance of the Appellant's evidence that she retired that the Appellant was the employer of Ching Man Ling, I find that Section 33(2) was not applicable in the circumstances of this charge.

20. The subsection is only applicable in the case of

"proceedings for or in connection with the sale, exposure of the sale or supply for poison effected by an employee."

While the possession of poisons by Mah Wah might have been in connection of the sale or supply of poisons, the "proceedings' before the court were not. The proceedings related solely to possession of the poisons. I am satisfied that the words "or in connection with" intended to cover for instance, a prosecution under for instance Section 28(3) of the Ordinance where there has been a supply of poisons. It is not applicable to a charge of "possession" under Section 23(1).

21. I find therefor on the basis of the evidence accepted by the Learned Magistrate that she was wrong to find that the Appellant was in possession of the poisons alleged in the charge.

22. I allow the appeal and quash the conviction.