HKSAR v. YIM HING YAN

[English Translation – 英譯本]
HCMA 178/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 178 OF 2013

(ON APPEAL FROM KCCC NO. 3822 OF 2012)

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REASONS FOR JUDGMENT

1.  The appellant was charged with two counts of possession of Part I Poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138, Laws of Hong Kong. He pleaded not guilty and was convicted after trial by Deputy Magistrate Ms Sin Kam Seung at Kowloon City Magistracy. He was fined $6,000 in total. He appealed against the convictions.

2.  After hearing, I allowed the appeal and set aside the convictions and fines. I also ordered costs of the appeal be to the appellant, to be taxed by a Master if not agreed. My reasons are set out below.

Particulars of Offence

3.  The two charges against the appellant alleged that on 15 March 2012 and 20 March 2012 respectively, inside On Tai Tong Medicine Company (“On Tai Tong”), Room A, 18^th Floor, Yun Kai Building, 466-472 Nathan Road, Yau Ma Tei, Kowloon, he had in his possession, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, the following poisons included in Part I of the Poisons List, namely,

(1) 53.2 grams of 甘草粉(華記祥) (powdered licorice [Wah Kee Cheung]) from a bottle and 1.46 kilograms of 甘草粉(華記祥)抽屜2斤4 (powdered licorice [Wah Kee Cheung] drawer 2.4 catties), containing prednisone acetate, being one of the derivatives of the active principles of Suprarenal gland (Charge 1); and

(2) the surface of the mortar and pestle containing prednisone acetate, being one of the derivatives of the active principles of Suprarenal gland.

Facts of the Case

4.  The facts of the case were set out in the written submission prepared by Mr Derek Lau, Public Prosecutor for the respondent. I basically adopted the same.

Prosecution Case

5.  According to the Admitted Facts, the appellant is a practising listed Chinese Medicine Practitioner at On Tai Tong as well as the sole proprietor thereof. On 15 March 2012, Mr So Ho Chung (PW1) and Mr Lieu Yat Leung (PW2), pharmacists of the Department of Health, visited On Tai Tong, where the appellant was present at that time. Inside the cabinet next to the appellant’s desk, there was a bottle containing 53.2 grams of powdered licorice (Exhibit P1). Inside a drawer of the appellant’s desk, there were some small bags containing a total of 1.46 kilograms of powdered licorice (Exhibit P2). There was also an opened bag of powdered licorice (Exhibit P3) in the appellant’s consultation room. The appellant told PW1 that the powdered licorice in question was “a tonic for stomach given to patients”. PW2 then seized exhibits P1 to P3 in marked and sealed bags.

6.  Exhibits P1 to P3 were sent to the Government Laboratory for analysis and the results confirmed that exhibits P1 and P2 contained prednisone acetate, which was included in Part I of the Poisons List in the Pharmacy and Poisons Ordinance. Prednisone acetate was not detected in exhibit P3.

7.  On 20 March 2013, PW1, PW2 and Mr Wong Shing Chau (PW3), Chinese Medicine Assistant of the Department of Health, visited On Tai Tong and revealed their identities. The appellant was informed of the results of the analysis in relation to exhibits P1 to P3. The appellant then indicated that the powdered medicine in question was for his own use and not intended for patients. PW1 then asked the appellant “how the ‘Western drugs’ were obtained”. The appellant indicated that the prednisone and chlorpheniramine tablets that he was supplied with came from mainland China. He would use a mortar and pestle to crush the tablets before mixing the powdered medicine with the powdered licorice that he ordered locally. PW1 asked the appellant about how those medicines were to be consumed. The appellant explained that he would mix two spoonfuls of powdered licorice with two tablets of prednisone and one tablet of chlorpheniramine for consumption. PW1 agreed that having explained the results of the analysis to the appellant, he did “have a reasonable suspicion that [the appellant] had sold some Chinese medicine containing Western drug ingredients”. However, he did not agree that he should have cautioned the appellant immediately because he “had not yet completed the investigation”.

8.  After an hour or so, PW1 and PW3 cautioned the appellant. Under caution, the appellant refused to answer any question and asked to “find a lawyer”. The appellant was subsequently arrested by the police.

9.  PW2 also seized a mortar and pestle (Exhibit P4) from On Tai Tong. Analysis confirmed that the surface of Exhibit P4 contained prednisone acetate, which was included in Part I of the Poisons List in the Pharmacy and Poisons Ordinance.

Defence Case

10.  The appellant elected not to give evidence or call any defence witness. However, according to the line of cross-examination taken by the defence of the prosecution witnesses, the appellant denied having made the confession in question.

Magistrate’s Findings

11.  The magistrate found PW1, PW2 and PW3 to be honest and reliable witnesses. Although their written statements alleging that the appellant had explained the method of consumption only came about several months after the material time, the magistrate accepted the testimony of PW1 and PW3, namely, the appellant did explain to them the method of crushing two tablets of prednisone and one tablet of chlorpheniramine before mixing them with two spoonfuls of powdered licorice for consumption. It was not disputed that the response in question was made prior to any cautioning. The magistrate held that the response was given by the appellant voluntarily and that there was no infringement of any kind of the appellant’s rights.

12.  Regarding the prosecution witnesses’ alleged breaches of the “Rules and Directions for the Questioning of Suspects and the Taking of Statements” issued in 1992 by the Secretary for Security (the SS Rules) as submitted by the defence, the magistrate found in her oral findings that at that stage, the prosecution witnesses were still investigating the case and were yet to form any real suspicion against the appellant for committing an offence. However, the revelation came from the appellant voluntarily. Therefore, there was no infringement of the rights of the appellant. Yet the magistrate, for unknown reasons, did not repeat this finding in her Statement of Findings.

13.  Based on the location where the exhibits were stored, the appellant’s explanation of the medicines’ ingredients and the method of consumption and the capacity of the appellant as the practising listed Chinese Medicine Practitioner and the sole proprietor of On Tai Tong, the magistrate drew the only reasonable and irresistible inference that the appellant was in possession of exhibits P1, P2 and P4, all of which contained prednisone acetate, a Part I Poison as shown in the analysis results. The magistrate found the appellant guilty of the two charges.

Grounds of Appeal

14.  Although Mr Victor Ho, counsel for the appellant, has put down in writing six grounds of appeal, he basically only relies on the third ground:

“The trial deputy magistrate erred in ruling that there was no infringement of any kind of the appellant’s rights under the 1992 SS Rules. The appellant submits that 1) the appellant’s “right to silence” was infringed at the scene; 2) the court has failed to analyze if any weight should be attached to the words, if any, spoken by the appellant without being cautioned. The prosecution has failed to prove beyond a reasonable doubt that the appellant’s confession, if any, was made voluntarily.”

My Considerations

15.  Rule II of the SS Rules provides that:

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence.”

16.  The testimony of the prosecution witnesses was that the appellant had made the confession in question before being cautioned. Although according to PW1, having explained the analysis results to the appellant, he was still investigating the case and therefore he did not agree that he should have cautioned the appellant first, he in fact conceded that at that time, he had a reasonable suspicion that the appellant had sold Chinese medicine with Western drug ingredients. Of course, the appellant was charged not with selling but with possession of Part I Poison. However, the facts of the case remained that on 15 March 2012, the prosecution witnesses already went to On Tai Tong, of which the appellant was the sole proprietor, and seized from there the powdered licorice later found to have contained a Part I Poison. When they returned to On Tai Tong on 20 March, they must already have had reasonable grounds for suspecting that the appellant had committed offences relating to Part I Poison (be it for possession or for sale). Under these circumstances, the prosecution witnesses should have cautioned the appellant first before questioning him about the source of the “Western drugs” in question.

17.  Without being cautioned, the appellant revealed, when only asked by the prosecution witnesses, that the “Western drugs” in question were obtained from the mainland. According to the testimony of the prosecution witnesses, the appellant mentioned that he was supplied with “prednisone” and “chlorpheniramine”. In other words, the appellant provided the ingredients of the powdered licorice. However, the court must not ignore the fact that it was the prosecution witnesses who had explained to the appellant that the analysis results showed the presence of “prednisone acetate” and “chlorpheniramine”. Nothing in this case suggests that the appellant “volunteered” to reveal to the prosecution witnesses that he was aware of those two ingredients in the “Western drugs”. Moreover, PW1 testified clearly that he was the one who had asked the appellant where the “Western drugs” came from and how they were to be consumed. I do not see any evidence in this case indicating that the appellant had volunteered a “full confession” before the prosecution witnesses had a chance to administer a caution.

18.  On the facts of the case, I am of the view that the prosecution witnesses did breach Rule II of the SS Rules mentioned above.

19.  Of course, a breach of the above Rules by the prosecution witnesses does not mean that the appellant’s confession must be excluded (see HKSAR v Chan Ka Chun, CACC42/1999). Much depends on the circumstances and extent of the breach.

20.  The present offence is not a strict liability offence (See Wong Kwong-wah v The Queen, CACC722/1981). Whether the appellant knew at the material time that the powdered licorice contained Part I Poison is an important element. The appellant, without being cautioned or told that he had the right to remain silent, answered questions put by the prosecution witnesses and made a confession, and the prosecution relied on the appellant’s confession as evidence against him. Since he immediately remained silent and refused to answer any question once he was cautioned an hour or so later, it goes to show that had the prosecution witnesses abided by the Rules and cautioned the appellant before questioning him, he would very unlikely have made any unfavourable admissions.

21.  It must be noted that the right to silence is deeply rooted in the common law. Not only does a suspect have a right to choose whether or not to answer questions, he also has a right not to incriminate himself. (See Secretary for Justice v Lam Tat-ming & Anor (2000) 3 HKCFAR 168).  

22.  In my view, it was unfair to the appellant for the prosecution to rely on the confession obtained under such circumstances. The magistrate should have exercised her discretion to exclude the confession in question.

23.  Without the appellant’s confession, the evidence could not lead to the only reasonable inference that the appellant was in possession of the Part I Poison.

24.  Based on the above reasons, I am of the view that the convictions were not safe. I therefore allow the appeal, quash the convictions and set aside the fines.

25.  Since the appellant’s appeal is successful, he should be awarded the costs of the appeal (with no objection from the respondent).

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.