HKSAR v. LEUNG YUNG TIM

HCMA730/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.730 OF 2005

(On Appeal From ESCC 3011 OF 2005)

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J U D G M E N T

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1. The appellant was convicted on his own plea of one charge of ‘Possession of Part I Poison’, namely two tablets containing sidenafil, or Viagra in common parlance, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138.  He was sentenced to a fine of $500.  He now appeals against the conviction.

The facts

2. So far as they are relevant, the facts as admitted by the appellant were as follows :

“At 0205 hours on 2005-06-14, PW1 and party of Car-6, EU HKI were performing anti-crime patrol in uniform at Wing Lok Street near Connaught Road, Central, Hong Kong.  PW1 spotted Defendant.  PW1 later intercepted Defendant for a search outside No 90 Connaught Road, Central, Hong Kong.  As a result, Exhibits 1 and 2 were found from the black waist bag which was hung at Defendant’s right waist.  (Exhibit 2 was contained inside Exhibit 1).  At 0207 hrs on the same day, PW1 arrested Defendant for the above offence.  A Notice to Persons under Police Custody was later issued to Defendant (Exhibit 4).

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5.  As a result of the examination and analysis of Exhibit 2 by the Government Chemist, it was confirmed that it contained ‘sidenafil’ which is a listed Part I poison (Exhibit 5).

…….”

Grounds of appeal

3. The appellant raises three grounds, all of them homemade :

(1)  Facts were concocted by the police to show that he had knowingly and deliberately committed the offence, namely that he “turned around and intended to walk away” when PW1 spotted him.

(2)  He was misled into admitting the offence by the duty lawyer.

(3)  The magistrate did not listen to his explanation that the Viagra was sold to him by a drug store and that he was not advised by the proprietor of the store that Viagra would only be sold to a buyer with a prescription.

Judgment

4. I am satisfied that there is nothing in any of these grounds.

5. Words to the effect that the appellant was shying away from the police were in the brief facts —— but only in the original copy.  They were deleted at the defence request before plea was taken.  The final version is that which appears in the extract above.

6. There is also nothing to suggest that the appellant was misled in any way.  The transcripts see him admitting possession the second time round, first having some unexplained difficulty with the already amended facts.  Meanwhile, the plea had always been a guilty one.  The duty lawyer whose affirmation I have ordered for this appeal is also emphatic that his written instructions never once changed were that the appellant would plead guilty.

7. Finally, the transcripts reveal no attempt to explain anything to the magistrate.  The duty lawyer’s affirmed position is that the appellant had never even sought to explain to him or the court liaison officer that the proprietor of the drug store had neglected to advise him of the need of a prescription.  Quite to the contrary, the appellant’s written instruction was that no such “doctor’s certificate” existed.

8. On that note, we come to the crux of the matter. 

9. Section 23 of the Pharmacy and Poisons Ordinance reads :

“(1)  No person shall have in his possession any poison included in part I of the Poisons List otherwise than in accordance with the provisions of this Ordinance, the proof whereof shall lie upon him.

  (2)  Nothing in this Ordinance shall prohibit the possession by any person of any poison included in Part I of the Poisons List where such poison is obtained in the circumstances set out in section 28(1)(a), (b), (c) or (d).”

10. In turn, section 28(1) reads as follows :

“(1)  Except as provided by regulations, nothing in sections 21, 22, 26 and 27 shall apply to—

(a)   a medicine which is supplied by a registered medical practitioner for the purposes of medical treatment, by a registered dentist for the purposes of dental treatment or by a registered veterinary surgeon for the purposes of animal treatment; or

(b)   a medicine which, for the purpose of medical treatment, is supplied by a person who, although not a registered medical practitioner, practices medicine in a clinic in such circumstances that, by virtue of section 8(8) of the Medical Clinics Ordinance (Cap. 343), he is not by reason solely of such practice guilty of an offence under section 28 of the Medical Registration Ordinance (Cap. 161), if, but only if, the medicine is supplied by him in the course of his practice in that clinic; or

(c)   a medicine which is dispensed by an authorized seller of poisons on premises duly registered under this Ordinance; or

(d)   a poison forming part of the ingredients of a medicine which is supplied by an authorized seller of poisons on premises duly registered under this Ordinance,

if the provisions of this section are satisfied in relation thereto.”

11. The word “dispense” in section 28(1)(c) is defined in section 2 to mean :

“supplying a medicine or poison on and in accordance with a prescription given by a registered medical practitioner …..”

12. Clearly, having a prescription is one of the keys to having a defence under section 23(1).  The appellant’s professed lack of it, and the absence of other proofs that he was acting in accordance with the Ordinance, must mean that he was rightly charged and convicted.  This is notwithstanding the fact that he has now in his possession what purports to be a sales receipt by the drug store in question.  The fact that the drug store sold him Viagra, probably illegally, cannot exempt him.  The fact that he did know he needed a prescription, which is what he keeps repeating before me, does not help him either.

13. The appeal is dismissed.