R. v. Lee To Nei

HCMA000033/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 33 OF 1995

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Coram : Hon. Ryan, J. in Court

Date of hearing : 21 February 1995

Date of judgment : 21 February 1995

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J U D G M E N T

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1. The appellant was charged with selling a Part I poison without the supervision of a registered pharmacist, selling a Part I Third Schedule poison without the authority of a prescription and with improper storage of Part I Third Schedule Poisons.

2. The brief facts were that PW1, on the instructions of the Department of Health, went to the Pacific Pharmacy Company with the intention of purchasing some goods which were required to be sold under supervision. The Department of Health knew that the registered pharmacist would not be at the premises as he had advised them that he would be absent. The appellant sold two bottles of "Kenactor-A" to PW1 and she then handed them to Mr Pang, a pharmacist employed by the Department of Health. Mr Pang, PW2, inspected the pharmacy and seized 14 cartons of drugs which, he said in evidence, had not been properly secured as required by the Ordinance. He also gave evidence that he had received the two bottles of "Kenactor-A" from PW1, that he had taken the two bottles and the 14 cartons of other drugs to the Government Chemist for analysis. He did not say in evidence that he had sealed the two bottles in a packet but that can be inferred from the Government Chemist's Certificate which makes reference to the Government Chemist having received 15 packets.

3. At the trial, PW1, whom the magistrate found to be an honest and reliable witness, identified the two bottles as the ones that she had purchased and handed to PW2. PW2 identified them as the bottles that he received from PW1 and as being the bottles that he had taken to the Government Chemist to be analysed.

4. The only ground of appeal is that in view of the magistrate's critical findings in relation to PW2, there was no satisfactory evidence of the chain of exhibits involving the product purchased and the product analysed. This was not a point taken before the magistrate. He did say in his reasons for Verdict at the conclusion of the trial that the chain of evidence seems to be in issue but that apparently did not involve P1, namely the two bottles. The cross-examination of PW2 was directed towards the contents of the 14 cartons and as to where they had been found and as to how they had been secured. This related to the third charge. The magistrate found that PW2's evidence was so unsatisfactory about the way in which he had dealt with these exhibits, that he could not be relied upon in relation to the third charge, and accordingly the third charge was dismissed.

5. The magistrate, was however, satisfied that the two bottles had been purchased from the appellant, that he had not been properly supervised, that the bottles had been handed to PW2 who had taken them to the Government Chemist where they had been properly analysed. He was satisfied that the two bottles produced in Court were the bottles that had been purchased. On the evidence that he had before him, that is a decision that he was, in my view, entitled to come to despite the other inadequacies of the evidence of PW2. Accordingly the appeal is dismissed.

Representation:

Miss Mahomed for Crown

Mr McCoy, instructed by M/s Chan, Lau & Wan, for Appellant