BRIGHTON PHARMACY LTD v. THE DISCIPLINARY COMMITTEE OF THE PHARMACY AND POISONS BOARD

M.P. No. 954 of 1992

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H E A D N O T E

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Where a quasi-judicial body entrusted with the enforcement of professional or trade discipline is thinking of suspension, it is necessary that it applies its mind to the financial implications of any period of suspension which it may impose, and that it be fair and careful. But that does not require it to embark upon a detailed examination of accounts, for it is entitled to take a broad view. And, whatever the financial implications, suspension is sometimes necessary for the protection of the public.

M.P. No. 954 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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JUDGMENT

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...(illegible) authorised seffer or porsons.

1. On June 8, 1990, in the Magistrate's Court in San Po Kong, one of its officers, a Mr Liu Chun Kit, was convicted of an offence under the Pharmacy and Poisons Ordinance, Cap. 138, namely, that of the illegal sale of Part I Poisons. That offence was committed at Brighton's Premises in Kowloon City on May 22, 1990. Subsequently, on May 29, 1991, in the same Court, Brighton itself was convicted of two offences under the same Ordinance. Both of those offences were committed at its premises in Kowloon City on July 6, 1990. One was of storing First Schedule poisons other than in a receptacle fitted with an adequate lock under a key retained by the registered pharmacist. The other was of possession of unregistered pharmaceutical products for the purpose of sale.

2. Each of those three offences drew a fine of $1,000. Such convictions triggered the Board's power to appoint a Disciplinary Committee to inquire into Brighton's conduct. The Board made such an appointment; and the Disciplinary Committee conducted such an inquiry. That inquiry took place on March 6, 1992. At the end of the inquiry and on the same day, the Disciplinary Committee

3. This appeal is against that direction, which Brighton complains is irregular and too harsh. The direction, I should mention, has, pursuant to a consent order made by a Deputy Judge of this Court, been stayed pending this appeal.

4. Brighton now seeks the setting-aside of the Disciplinary Committee's direction and its replacement by such more lenient measure as this Court may consider appropriate.

5. The grounds of appeal set out in Brighton's notice of appeal read as follows :-

"1.    There were material irregularities in the course of the proceedings in  that

a . no proper enquiry was made into the effect of the period of disqualification on the Appellant.

b. no reasons or no proper reasons for the length of the disqualification were given.

2.    In all the circumstances the length of the disqualification was manifestly excessive."

All of that is expanded upon in the penultimate paragraph of an affirmation made by Mr Liu on the 6th of this month and filed on Brighton's behalf on the following day. That paragraph reads as follows :-

"I beg to submit that the disqualification of a period of three months will be very detrimental to the business of the Appellant and future survival of the same. To illustrate the likely serious adverse effect of this disqualification on the Appellant, there is now produced and shown to marked "LCK-1" copies of the computer print-out showing the monthly sale volumes of the Appellant for the year 1991. The total sales of the Appellant for the year 1991 was HK$6,702,939.76. On average, about 65% (ie HK$4,356,910.84) of the said sales was ascribed to the sales of pharmaceutical products as an authorised seller of poisons. A period of three-months disqualification will cause a lost of sale of about HK$1,089,227.71 which is a very large sum for a small business such as the Appellant. From the above figures, it can be seen that the Appellant's survival depends largely on the sale of pharmaceutical products, Furthermore, the longer the length of disqualification, the lesser the chance that the customers will return to the Appellant again. It will therefore be tantamount to a wiping out of the Appellant's business forever and termination of the employment of its staff.

6. In the course of the argument, Mr Holland for Brighton sought to augment those facts and figures by stating, on instructions, that the loss of profit will be in the order of $200,000 over three months.

7. For the respondent the Disciplinary Committee, Miss Scully has received no instructions to accept any of the facts and figures put forward on behalf of Brighton either by the affirmation from which I have read or by way of the statements which Mr Holland was instructed to make. Miss Scully has had the courtesy to demonstrate that her instructions are not based on any mindless refusal to accept the obvious but rather that her client has reason to query the facts and figures put forward on behalf of Brighton.

8. It seems to me that I can do no more than to proceed on the basis that those facts and figures may be right or may be wrong.

9. Now, it is well-established that when exercising appellate jurisdiction of the sort which I am now exercising, the courts are always slow to interfere with the decisions and sentences of bodies constituted by persons involved in the profession or discipline concerned. Unless such error as is alleged is manifest, the court would not in the normal way interfere.

10. Here there is something unusual in that there is an argument based not only on what the result ought to have been on what was before the Disciplinary Committee, but also in regard to what ought to have been before the Disciplinary Committee. I am referring to the complaint that the Disciplinary Committee made no proper inquiry into the effect on Brighton of the period of disqualification directed.

11. My attention has been drawn to the judgment delivered on March 5, 1992, by Barnett J. in a fairly similar appeal involving the Tin Sing Aberdeen Pharmacy. There, as one sees from page 13 of the judgment, he said this

"The Committee should have made enquiry into the effect of a period of disqualification, so that the period decided upon should not inflict punishment disproportionate to the gravity of the offence. No such enquiry was carried out by the Committee.

I can well understand why Barnett J. thought along those lines. He would be aware of course that before a fine is imposed, a sentencing court should and would make inquiries into the ability of the defendant to pay such a fine, if the circumstances are such that one might reasonably doubt his ability to pay it.

12. But two things must be said here. The first is that in the present case, it cannot be said that the Disciplinary Committee made no inquiry at all. For, as one sees from the transcript of the proceedings before the Disciplinary Committee, the Chairman said this at the end of what Mr Liu said on behalf of Brighton in mitigation  "Thank you. The Committee would like to ask the defendant should a judgment be made to disqualify the authorised seller of poisons what kind of effect or implication would this have on the defendant." There is some difficulty about the way in which that is worded. But in all the circumstances, the meaning must have been clear to all, concerned. And one finds that this is what Mr Liu said on behalf of Brighton : "Obviously it would have a bad influence on my work. I hope you will give a light sentence. This is only the first time." The Chairman then indicated that the Disciplinary Committee would take note of what had been said.

13. The second thing to be remembered here is this. It is not as simple as some may think to get to the bottom of facts and figures of the sort being advanced here. It cannot be done simply by looking at the concern's financial statements composed of its balance sheet and its profit and loss account - even assuming that they have been audited and the auditors' report is unqualified. For here one is delving into the profitability of different component parts of the business involved. Nor would the answer be apparent from a casual, or even a fairly detailed, examination of the underlying books - even assuming that the accuracy of all the books is accepted. Anybody who has been involved in cases in which accounts have had to be examined will know what a lengthy process is very often involved - even when one is not engaged in the actual taking of an account, carrying with it the usual falsification and surcharge procedures. Therefore, one has to be very careful in making - and in interpreting - pronouncements to the effect that bodies like the Disciplinary Committee must make this, that or the other financial investigation.

14. It seems to me that the Disciplinary Committee itself accepted the broad spirit which I perceive as underlying the observations of Barnett J. in the case to which I have made reference.

15. But once it has shown itself alive to the serious effect which any period of disqualification may have on a concern such as Brighton, and once whoever is representing the concern before it has had his say, I do not think that, in the normal way, one could possibly fault a body such as the Disciplinary Committee for proceeding on the basis of a broad view of the matter.

16. Financial loss may be an implication which follows suspension as night follows day. But, nevertheless, what is clear from the way in which professional and trade bodies across the board deal with these matters, and from the way in which the courts supervise their proceedings, is this. Bodies entrusted with enforcing discipline rightly recognise that persons before them enjoy certain privileges in the shape of being authorised to engage in activities which not just anybody may engage in. Such privileges enure not only to those persons' advantage but   more importantly, to the advantage of the general public : provided that the rules laid down for the protection of the public are obeyed. But if those rules are not obeyed, then it very often follows that the privileges will be brought to an end or held in abeyance for some time. The protection of the public requires no less.

17. Clearly, one must not go too far. One has to have regard to the interests as well of persons facing disciplinary proceedings. And, indeed, the interests of such persons and that of the public are, to a certain extent, intertwined. For it is not in the best interests of the public too readily to put an end to, or curb for too long, the activities of persons who, although they have breached the rules, are capable, if they can be made to respect the rules, of serving the public well,

18. Nobody is more keen than I am that all the facts and figures be before the disciplinary body before it comes to its decision - if that does not slow down the proceedings unduly. But one has to be practical about it. It seems to me that the scheme laid down by the Ordinance involves putting the enforcement of discipline in the hands of people who are knowledgable in the profession or trade involved, and allowing them to use their commonsense and their sense of fairness and proportion. I have no reason to think that in the present case the Disciplinary Committee failed to act sensibly, fairly and proportionately.

19. The conclusion to which I come is that the proceedings before the Disciplinary Committee are not vitiated by irregularity and that the result at which the Disciplinary Commitee arrived is not manifestly too harsh. Where a quasi-judicial body entrusted with the enforcement of professional or trade discipline is thinking of suspension, it is necessary that it applies its mind to the financial implications of any period of suspension which it may impose, and that it be fair and careful. But that does not require it to embark upon a detailed examination of accounts, for it is entitled to take a broad view. And, whatever the financial implications, suspension is sometimes necessary for the protection of the public.

20. The net result is that - with an expression of course of my indebtedness to counsel on both sides for their assistance - I must, and do, dismiss this appeal.

[Submissions on Costs]

21. Miss Scully seeks costs on behalf of the respondent on the basis that there is no reason why costs should not follow the event. And Mr Holland, arguing on this aspect of the matter as realistically as he has argued the rest of the case, accepts that there is very little he can say as to why costs should not follow the event. Accordingly, I awary the respondent its costs of the appeal.