HKSAR v. LEE TO NEI AND ANOTHER

HCMA595/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.595 of 1998

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J U D G M E N T

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1. Each Appellant was convicted on 1st May 1998 on one charge of failing to store Part I First Schedule Poisons in a locked receptacle, the key for which was retained by the registered pharmacists, and one charge of possession of unregistered pharmaceutical products for the purpose of sale, distribution or other use.

2. The 1st Appellant was fined $20,000 on each charge and the 2nd Appellant $15,000 on each charge. Each appeals both conviction and sentence.

3. It is not necessary for me to rehearse the facts in this matter because my judgment does not depend upon them. It is conceded very properly by Mr Law, for the Respondent, that the first charge contains an element of mens rea in that the word "store" in Regulation 19(2)(a) of the Pharmacy and Poisons Regulation requires, at the very least, knowledge that some items are being stored in the premises.

4. In respect of the second charge, he again properly concedes that possession of unregistered pharmaceutical, at the very least requires some knowledge that an item was in the possession of the appellant.

5. Both charges are based on the type of mixed offence contemplated by the Privy Council in Gammon (Hong Kong) Ltd and Others v. Attorney General of Hong Kong [1985] 1 AC 1. As in that case, the section creating the offence required an element of mens rea and an element of an absolute offence.

6. In the case before me, it was incumbent upon the Magistrate to make findings as to knowledge of the Appellants in respect of each charge and then to deal with the remain of the elements of the charge not requiring mens rea. He did not. He took the whole of each offence as being one of strict liability with no knowledge required even to the elements of "store" or "possession".

7. This cannot be right and the appeal against conviction must be allowed. The convictions are quashed and the sentences set aside.