Re Tin Sing Aberdeen Pharmacy

HCMP003833/1991

MP No. 3833 OF 1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Barnett in Court

Date of Hearing: 21 February 1992

Date of Delivery of Judgment: 5 March 1992

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J U D G M E N T

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1. The appellant, Tin Sing Aberdeen Pharmacy, appeals against the direction of a Disciplinary Committee of the Pharmacy and Poisons Board, given on 14th November 1991, whereby the appellant was disqualified for a period of two months from being an authorised seller of poisons. A number of grounds of appeal was advanced. The grounds essentially constituted an appeal against sentence but had a flavour of judicial review. In the end, however, it was simply asserted on behalf of the appellant that the period of disqualification was manifestly excessive having regard to all the circumstances of the case.

2. It will be helpful, I think, to set out the relevant provisions of the Pharmacy and Poisons ordinance, Cap.138 (The ordinance).

"15.Appointment of Disciplinary Committee

(1)    When a complaint is received by the Board regarding the conduct of a registered pharmacist, an employee of a registered pharmacist, a body which is an authorized seller of poisons or an officer or employee of or partner in such body, or when any such person or body is convicted of an offence under this Ordinance or when it otherwise appears necessary or desirable to the Board that the conduct of any such person or body should be inquired into, the Board shall, for the purpose of such inquiry, appoint a Disciplinary Committee consisting of

(a)    the medical officer in the Department of Health appointed by the Governor under section 3(2)(e) who shall be the chairman of the Disciplinary Committee; and

(b)     2 registered pharmacists (not being public officers) nominated by the Pharmaceutical Society of Hong Kong.

(2)    .................

16. Powers of a Disciplinary Committee

(1)     A Disciplinary Committee appointed under section 15 shall hold an inquiry into the conduct of any person or body in respect of whom or which it is appointed and shall cause notice thereof to be served on the person or body concerned at least 28 days before the date of such inquiry.

(1A)     A Disciplinary Committee shall conduct an inquiry in accordance with the prescribed procedure.

(2) A Disciplinary committee may, if it thinks fit, at the conclusion of an inquiry under this section -

(a) ..........

(b)     where the inquiry is in respect of a body which is an authorized seller of poisons or in respect of an officer or employee of or partner in such body, direct that

(i)     that body be disqualified, for such period as may be specified in the direction, from being an authorized seller of poisons; or

(ii)      subject to subsection (5), any or all of the premises of that body shall be removed from the register of premises and be disqualified, for such period as may be specified in the direction, from being registered therein.

(3)     (a)      A person or body in respect of whom or which a direction has been made under subsection (2) may, within 28 days after receipt of notice under section 19(1), appeal to the High Court.

(b) On any such appeal, the High Court may affirm, reverse or vary the direction of the Disciplinary Committee and the decision of the High Court on such appeal shall be final...........

17. Liability of authorized sellers of poisons for acts of employees

(1) I n any case under section 16, where the person convicted of an offence or guilty of misconduct is an employee of the authorized seller of poisons, the Disciplinary Committee shall not give any direction unless proof is given to its satisfaction of some one or more of the facts specified in subsection (2), and it is of the opinion that having regard to the facts so proved the authorized seller of poisons ought to be regarded as responsible for the offence or misconduct.

(2) The facts as to some one or more of which the Disciplinary Committee must be satisfied before giving any such direction as is mentioned in subsection (1) are -

(a) that the offence or misconduct in question was instigated or connived at by the authorized seller of poisons or in the case of a body corporate, by an officer of that body corporate or in the case of an unincorporated body of persons, by any member of such body...."

3. For the purposes of section 16(1A), Pharmacists (Disciplinary Procedure) Regulations have been made pursuant to section 29 of the Ordinance. I need say no more about these than that they refer to a "defendant", finding "a defendant guilty of a charge" and "passing sentence", but do not require a Committee to give any reasons when passing sentence.

4. The facts are these. On 1st October 1988 a magistrate convicted one Lau Yeung Kuen of two offences. First, on 9th September 1988 at the appellant's premises in Aberdeen, selling a Part I poison (an inhaler for asthma sufferers) on premises not duly registered under the Ordinance as premises of an authorized seller of poisons. Second, at the same time and place, selling the same item otherwise than in accordance with a prescription. Mr. Lau was fined $500 in respect of each offence. The poison in question was confiscated. On 10th May 1991, a magistrate convicted one Cheng Siu Hung of two offences. First, on 28th September 1990 at the appellant's premises, selling.a Part I poison (a cough mixture) otherwise than in the presence of a registered pharmacist and under his supervision. Second, at the same time and place, being the person in charge of the business failed to store poisons included in the first schedule in a receptacle fitted with an adequate lock, the key for which should be retained by the registered pharmacist. Mr. Cheng admitted that he was the supervisor of the premises. The poisons were found inside the back sales counter and inside one drawer underneath the front sales counter, neither place being fitted with lock and key. (The poisons, so I am informed, were of the variety commonly purchased in a chemist's shop and not of a serious nature.) Mr. Cheng pleaded guilty. He was fined $1,000 for each offence. The poisons were confiscated.

5. By letter dated 14th October 1991, the Secretary of the Pharmacy and Poisons Board notified the appellant that, in view of the convictions to which I have referred, the appellant as authorized seller of poisons had not used due diligence to enforce the execution of the Ordinance, and ought to be responsible for the offences and misconduct. The appellant was notified of a meeting at which the Committee would inquire what action, if any, should be taken against the appellant. The appellant was invited to submit in writing any explanation, to appear at the Committee's meeting and to appear by counsel or solicitor. (The Secretary's letter was, if I may say so, a model of how a person, the subject of disciplinary proceedings, should be notified thereof).

6. At the hearing on 14th November 1991, Mr. Cheng appeared for the appellant. He had since his convictions become effectively the sole proprietor of the appellant. Mr. Cheng did not challenge the evidence placed before the Committee, the evidence essentially consisting of the record of proceedings in the Magistrate's Court in relation to the two sets of convictions to which I have referred. Mr. Cheng confined himself to saying that the earlier convictions had occurred when the premises were owned by another person, that he himself had been obeying the law, and that punishment for the offences had already been imposed by the Court. The Committee then announced itself satisfied as to the facts required by section 17(2)(a) of the ordinance in relation to the two sets of convictions. Mr. Cheng made a plea in mitigation repeating that the earlier offences had occurred before he assumed proprietorship of the appellant and that he had no knowledge about the management by the previous proprietor. He promised to exercise due care and diligence and to observe the regulations. He asked for a light sentence. In answer to an inquiry from the Chairman of the Committee, Mr. Cheng indicated that he should be of clear record as he had not committed any offence, and had a good reputation since becoming proprietor of the appellant.

7. I find that last response a little difficult to understand, because Mr. Cheng had been convicted of two separate offences not long before he became proprietor of the appellant.

8. The Committee then directed that the appellant should be disqualified for a period of two months from being an authorized seller of poisons. It did not give any reasons for that direction.

9. For the appellant, Mr. Franklin made a number of points which might, I think be, summarised as follows. First, in general terms, because the Committee gave no reasons for its direction or sentence, it was open to me to substitute my own view of what the sentence should be having regard to all the information before me.

10. Second, the two convictions of Mr. Lau arose out of the one transaction and effectively constituted only one offence. It was not clear whether the Committee had adopted that view or what importance it attached to these convictions.

11. Third, the two offences committed by Mr. Cheng did not appear to be particularly serious. Relatively modest fines were imposed by the Magistrate. In relation to the second of Mr. Cheng's two offences, which on the facts appears to be the more serious, a first offence attracts a maximum fine of $2,500, a second offence a fine of $5,000 and only upon a third or subsequent offence is there imprisonment for 12 months. (I note that Mr. Cheng's first offence is punishable by a fine of $10,000 and imprisonment for 12 months.)

12. Fourth, the Committee made no enquiry into the background of the case. I reject this complaint. I do not see what other information the Committee could properly have sought.

13. Fifth, the appellant's loss of profit on the sale of poisons would be in the region of $84,000 per month. Further, the disqualification would be a matter taken into account by the licensing authority upon the appellant's renewal of its annual licence.

14. Sixth, the appellant has given no trouble since Mr. Cheng became the proprietor.

15. Mr. Wingrad, of the Attorney General's Chambers, appeared on behalf of the Committee. I put it thus because, on the originating summons by which this appeal is brought, no one is made respondent. Most sensibly no point was taken on this. For future reference, however, any appeal should additionally be entitled: Between (the named) appellant and (the named) respondent.

16. Mr. Wingrad made one point. He said that an appellate court should be slow to interfere with a decision of an expert or professional tribunal unless it is clear that the decision is wrong. He said that although the Committee did not give reasons for its direction, there being no requirement anyway that it should, there is no ground for saying that the Committee's direction is in error. He fortified his submission by reference to Wong Kai Fou v. The Medical Council of Hong Kong (1967) HKLR 620, a decision of the Full Court, where at p.646 Hogan C.J. said:

" Turning to the appeal against sentence, we have given most anxious consideration to this question and, to that end, have looked at the particulars and sentences published during the last ten years in the Hong Kong Gazette in respect of cases of professional misconduct. We have also kept prominently in mind the approach adopted by the Privy Council in England in the case of McCoan v. General Medical Council to which reference has been made in the two Hong Kong cases of Chan Wing On v. Director of Public Works and Hung Hsing Construction Co., Ltd. v. Director of Public Works.

Both Hong Kong cases refer to the following passages from the Privy Council judgment in the case of McCoan, where the General Medical Council had directed erasure because of infamous conduct:

".... The powers of the Board to correct the determination of the committee on the hearing of such an appeal are in terms unlimited, but in principle, where a professional body is entrusted with a discretion as to the imposition of the sentence of erasure their lordships should be very slow to interfere with the exercise of that discretion. There appears to be no authority directly in point under the Medical Acts but their lordships have been referred to some analogous authorities in the cases of professional misconduct of solicitors.

Their lordships are of opinion that Lord Parker, C.J., may have gone too far in In re a Solicitor, when he said that the appellate court would never differ from sentence in cases of professional misconduct, but their lordships agree with Lord Goddard, C.J., in In re a Solicitor, when he said that it would require a very strong case to interfere with sentence in such a case, because the Disciplinary Committee are the best possible people for weighing the seriousness of the professional misconduct.

No general test can be laid down, for each case must depend entirely on its own particular circumstances. All that can be said is that, if it is to be set aside, the sentence of erasure must appear to their lordships to be wrong and unjustified."."

17. He also referred to Thobani v. The Pharmaceutical Society of Great Britain, a decision of the English High Court on 23rd January 1990, Transcript No. CO\781\89. It involved an appeal under the Pharmacy Act 1954. The Court consisted of Watkins L.J. and Nolan J. At p.7 Watkins L.J. said:

" The function of this court when reviewing a sentence of the Society, as has been said on many previous occasions, is not to impose its own view in substitution for a view taken by the committee unless it comes to the conclusion that the decision of the committee was plainly wrong or unless of course the committee has, in reaching its conclusion, misdirected itself for the reasons which I have already given. I would rule out the contentions that there were misdirections of the kind relied upon in the grounds of appeal.

As was said in Harari v. The Pharmaceutical Society of Great Britain by May L.J.:

"Once again, the decisions of this court in other cases relating to pharmaceutical chemists and, indeed, other professional bodies, have made it clear that the principle that it will only interfere where the Tribunal below has clearly gone wrong applies with greater force in relation to any penalties imposed by the domestic Tribunal than to the actual decision on the merits. That must follow from the professional composition of the Statutory Committee who have to decide on the suitability of the particular defendant before them to continue to Carry on practising as a pharmaceutical chemist.

18. Upon these authorities, I accept Mr. Wingrad's submission. As a matter of principle, I am satisfied that when hearing an appeal from a professional body or tribunal, a Court should be slow to interfere with its findings and decisions, unless misconduct, misdirection, or some other error is plainly demonstrated. (Again, the flavour of judicial review). Clearly it will probably be easier to demonstrate error in the proceedings leading to a finding of "guilt". It will be less easy to attack a "sentence". In the absence of reasons for sentence, however, whether or not reasons are required by the legislation which provides for the tribunal's procedure, an appellant gets something of a flying start.

19. In this case, I am persuaded that sufficient error has been demonstrated for me to exercise my jurisdiction to vary the direction of the Committee. First, the convictions of Mr. Lau were clearly of some relevance, otherwise there was no point in raising them before the Committee. For my part, however, I would have been inclined to regard them as somewhat ancient history occurring as they did before Mr. Cheng became involved with the appellant. Further, although there were two convictions, there was effectively only one offence. The relevance of these convictions must, therefore, have been minimal. I cannot be satisfied, however, that that is the view taken by the Committee.

20. Second, I was told from the Bar that the appellant's losses over two months will total about $160,000. Whether that figure is accurate is immaterial.

21. 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.

22. It appears to me that disqualification for a period of two months is a fairly substantial penalty for a finding of guilt based upon criminal offences at least one of which the legislature does not seem to regard as particularly serious in the light of the modest fines which are the only penalty for the commission of a first and second offence. In any event, little weight should be attached to the earlier convictions of Mr. Lau.

23. It is of course in the public interest that the requirements of the Ordinance and regulations made thereunder are strictly observed. There is a danger to the public if substances classified as poisons are wrongly dispensed. There is a danger if such substances can be taken and misapplied or otherwise abused because they are not kept securely by the person having responsibility for them. Breaches of the legislation must therefore be discouraged. In the circumstances, I am of the view that a period of disqualification for one month is appropriate. I vary the direction of the Committee accordingly.

24. It has been said both by the Court of Appeal and by this Court on innumerable occasions that when a tribunal makes a decision which adversely affects another person that person is entitled to know why or how that decision has been reached. In other words, the tribunal should give reasons Those reasons need not be long or detailed. Some indication of the principal factors affecting the tribunal's thinking is all that is required. In the present case I am sure that, if it had thought so to do, the Committee. could have given reasons for its directions in two or three simple sentences. Had it done so its direction would in all probability have been unassailable and these proceedings would have been unnecessary. I earnestly enjoin both this Committee and any other disciplinary tribunal to observe this simple requirement in future. This omission apart, I should, in fairness, say that the conduct of the Committee was otherwise impeccable.

Representation:

Mr. S. Franklin & A. Chan, inst'd by Tong Chan & Co. for Applicant.

Mr. Wingrad, C.C. Crown Solicitors for Respondent.