HKSAR v. CHAN CHUEN KIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 777/97

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J U D G M E N T

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1. The Appellant, who is a registered medical practitioner, appeals against sentences imposed on him for five breaches of the Dangerous Drugs Ordinance and Regulations. He was convicted in the Magistracy on two charges of failing to keep a proper dangerous drug register (Reg. 5(1) of the Dangerous Drugs Regulations) and three charges of failing to keep dangerous drugs in a locked receptacle (Sec. 23(4) Dangerous Drugs Ordinance). The Appellant originally appealed against conviction but that was abandoned prior to today's hearing.

2. The Appellant was sentenced in respect of the A (Reg. 5(1)), B (Reg. 5(1)) and C (Sec. 23(4)) charges, to three months imprisonment on charge A; 6 months on charge B and 6 months on charge C. Those sentences were ordered to run concurrently. In respect of charges D (Reg 5(1)) and E Sec. 23(4), a $5,000.00 fine was imposed on each charge.

3. Today counsel urged on this court that although the sentences are technically correct, the court should give serious consideration to suspending them because of the Defendant's particular position. That position appears to be that he is unlikely to be practising any longer as a doctor as he is likely to be struck off the Medical Register; that he is no longer dealing with Western drugs and that he is running a drug addiction treatment programme using Chinese or herbal medicine. I would comment that the fact this man has any contact with drug addicts at all must be a matter of great concern, given his behaviour.

4. The Magistrate spent a great deal of time over the trial of this case. He gave very sound and detailed reasons for the convictions. He had before him on sentence, able counsel representing the Appellant and he considered a background report. It has been argued in support of a suspended sentence that to date the most serious penalty imposed for this type of offence has been a sentence of imprisonment which has been suspended and that usually fines are imposed. That may well be the case. Having said that I consider it unfortunate that such is generally the case, because often these offences require very much more serious punishment than can be achieved simply by fines. Doctors are entrusted with the custody and dispensing of many dangerous drugs - their responsibility in discharging that trust is a heavy one and courts should punish any breaches with condign penalties, in appropriate cases.

5. In this case the Appellant had one previous conviction in May 1995 for failing to keep a register; he had been fined for that. In January 1997, he was fined $5,000.00 for failing to keep dangerous drugs in a locked receptacle. So although he is not a persistent offender he has offended before and is quite well aware of his obligations as a doctor under the Dangerous Drugs Ordinance. Breaches of the Regulation (5)1 offence are punishable by a maximum fine of $450,000.00 and a maximum term of three years' imprisonment which indicates the serious view the legislature took of such breaches. The Magistrate took into account all the matters raised on the Appellant's behalf and also noted previous sentencing by other courts, particularly in relation to the regulation 5(1) offence. He acknowledged that there was a wide range of culpability within which the offence of failing to keep a proper record could be committed and he said such offences would range from those who are unable to make out the defence in Regulation 5(8) because of their negligence or failure to supervise a system, to those who deliberately and wilfully concealed the existence of drugs.

6. The facts of this case showed clearly that this was a very grave failure to keep a register and to keep dangerous drugs secure. I quote from the Magistrate's Statement of Findings where he says, "in this case the evidence shows a very disturbing state of affairs. The evidence of the pharmacist (PW15) was that the drug "Grupam" which was found in charges B, C, D and E is a drug whose major ingredient is flunitrazepam, which is classified as a soft drug and is used as a sleeping pill. This drug is not registered with the Department of Health in Hong Kong and cannot be sold in Hong Kong without being registered. This drug was deliberately concealed behind a false ceiling in the Defendant's clinic and it was also disguised as presents and stored behind a sofa in the Defendant's home. This kind of offence could not be characterised as technical, there was a deliberate concealment. Furthermore, the drugs were in such quantity that the clear inference could be drawn that these drugs would find their way into the community. This meant that a serious view had to be taken of the charges where this drug featured." The Magistrate went on to say "I also noted that the Defendant was a man in whom the community had placed a high degree of trust, a trust which was on the evidence in the trial misplaced."

7. The drugs referred to in charges A and C are, for the most part, drugs that are commonly abused as soft drugs in Hong Kong and therefore it is particularly reprehensible that they were not kept properly. The "Grupam" in charges B, D and E is also a soft drug which is abused in Hong Kong. Indeed on one view of the facts, it might be said that this Appellant was extremely fortunate not to have been charged with trafficking under the Dangerous Drugs Ordinance. However, the Magistrate made it quite plain that he was not dealing with the matter on that basis.

8. I have considered the sentences and note that this is possibly the first time that an immediate sentence of imprisonment has been passed for this type of offence. Nevertheless these are entirely proper and appropriate sentences, imposed for good reasons, in respect of serious breaches. I see no grounds that would justify them being suspended and I order that the Appellant serve this period of imprisonment immediately. The appeal against sentence is dismissed.