Yan Fook Dispensary v. Disciplinary Committee of Pharmacy and Poisons Board

HCMP003652/1992

1992, No. MP 3652

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

____________

____________

Coram: Hon Jones J. in Court

Date of hearing: 26 March 1993

Date of handing down judgment: 2 April 1993

_______________

J U D G M E N T

_______________

1. This is an appeal under s.16(3) of the Pharmacy and Poisons Ordinance (the Ordinance) against a decision of a Disciplinary Committee (the Committee) appointed by the Pharmacy and Poisons Board given on the 14th October 1992.

2. The facts which are not in dispute reveal that at the material time the Yan Fook Dispensary (the appellant) carried on business at 95 Hip Wo Street, Kwun Tong selling the usual products of a chemist shop under the sole proprietorship of Mr Cheng Shan-yu.

3. The Committee was convened under s.15 of the Ordinance to inquire into the conduct of the appellant having regard to the convictions of Mr Cheng in respect of four offences that were committed in December 1990. Two of the offences were dealt with by a magistrate on the 9th July 1991 when Mr Cheng pleaded guilty to "Failing to store First Schedule Poisons in a receptacle fitted with an adequate lock, the key of which should be retained by the registered pharmacist", contrary to reg.19(2)(a) of the Pharmacy and Poisons Regulations and "Possession of Part I Poisons", contrary to s.23 of the Ordinance. In respect of the first charge, the poisons were kept at the business address of the appellant whilst the other offence related to poisons kept at Mr Cheng's residence. The magistrate imposed a fine of $2,000 on the first charge and $6,000 on the second charge. Two other charges against Mr Cheng in respect of possession of dangerous drugs for the purposes of unlawful trafficking were transferred by the magistrate for hearing to the District Court and were heard on the 25th November 1991. The first of these charges related to dangerous drugs found at the business address of the appellant and the second charge to dangerous drugs found at Mr Cheng's residence. At the hearing the district judge accepted Mr Cheng's plea of guilty to possession to both charges, contrary to s.8 of the Dangerous Drugs Ordinance and imposed fines of $3,000 on the first charge and $20,000 on the second charge. In October 1991 Mr Cheng sold the business to the present sole proprietor Mr So Hung. No evidence was adduced that Mr So was not a bona fide purchaser.

4. By a letter dated the 8th September 1992, the appellant was informed by the Pharmacy and Poisons Board that following the convictions of Mr Cheng and another offence committed by an employee in 1987 with which the Committee was ultimately not concerned, an inquiry into the conduct of the appellant had been ordered under s.15 of the Ordinance.

5. Although Mr Cheng was described by the Committee as an employee of the appellant, he was clearly the sole proprietor although technically it could be said that he was working for the appellant. However, nothing turns on this point.

6. At the inquiry which was held on the 14th October 1992, Mr So appeared as the sole proprietor and admitted the facts but claimed that he had no knowledge of the offences that had been committed by his predecessor. The Committee found the case proved and disqualified the appellant for a period of four months from being an authorised seller of poisons under s.16(2) (b)(i) of the Ordinance.

7. Whilst a number of grounds of appeal have been raised including infringements of some articles in the Bill of Rights Ordinance, the main ground upon which this appeal rests is the fact that the offences in question were committed by the previous owner for which the present owner has no responsibility. On the other hand, Mr Fitzpatrick who appeared for the respondent submitted that the appellant's case is misconceived as the disqualification is directed at the appellant and not Mr So.

8. Upon an appeal, the High Court by s.15(3)(b) of the Ordinance may affirm, reverse or vary the direction of the Committee. Although the decision of the Committee is directed against the business, the practical effect is to penalise the present proprietor Mr So and put him out of business for four months. No allegation has been made that Mr So was in any way concerned with the offences that were committed by Mr Cheng. Although it was contended on behalf of the respondent that Mr So's complaint as to his financial losses that would arise during the period of disqualification should be directed to Mr Cheng, such remedy is neither realistic nor practical for I am told that Mr Cheng's present whereabouts are unknown.

9. In coming to their decision to impose a penality of four months' suspension, the Committee do not appear to have directed their minds to the fact that it would deprive a wholly innocent person from carrying on his lawful business. Their decision against the appellant would be correct if it would have resulted in the right person being punished. However, to impose such a penalty in the circumstances of this case amounts to a travesty of justice.

10. Accordingly the appeal will be allowed to the extent that the sentence of four months' suspension will be set aside. There will be an order nisi for costs to the appellant.

Representation:

Mr David Tolliday Wright (Chong, Leung & Co. for Appellant.

Mr David Fitzpatrick (Attorney General's Clambers) for Respondent.