HKSAR v. Lau Koon Leung

HCMA000648/2003

HCMA 648 & 669/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS. 648 AND 669 OF 2003

(ON APPEAL FROM NKS 5995-6015/2003 AND TMS 4086-4111/2003)

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Coram: Deputy High Court Judge Longley in Court

Date of Hearing: 20 August 2003

Date of Judgment: 20 August 2003

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J U D G M E N T

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1.This is an appeal against sentences by way of fines totalling HK$470,000 imposed by the Special Magistrate at North Kowloon on 19 June 2003, when following the Appellant's plea of guilty, he fined the Appellant HK$10,000 on each of 47 summonses of failing to keep proper records of dangerous drugs contrary to Regulations 5(1)(a) and 5(7) of the Dangerous Drugs Regulations, Cap. 134. The Special Magistrate also ordered the confiscation of the relevant drugs seized.

2.The 47 summonses arose out of routine inspections of the dangerous drugs registers which the Appellant, Dr Lau Koon Leung, was required by Regulation 5 of the Dangerous Drugs Regulations to keep in respect of dangerous drugs obtained and supplied by him.

3.The Appellant is a sole practitioner operating two clinics. Of the 47 summonses, 26 related to his clinic in Tuen Mun and 21 to his clinic in Mongkok.

4.A total of 9 different types of dangerous drugs were involved. They were:

(1) Flunitrazepam

(2) Bromazepam

(3) Triazolam

(4) Amfepramone

(5) Chlordiazepoxide

(6) Nitrazepam

(7) Phentermine

(8) Diazepam

(9) Lorazepam

5.The fact that there were 47 summonses is accounted for by the fact, not simply that the summonses related to two premises, but that the drugs came under different brand names and came in tablets containing different weights of the same drug. The Appellant was keeping separate records reflecting these differences.

6.The drugs were of 3 types: sleeping tablets, slimming tablets and tablets for patients suffering from symptoms of anxiety.

7.The First Schedule to the Dangerous Drugs Regulations prescribes the statutory form of the register which a person authorized to supply dangerous drugs is obliged to keep. A separate register or separate part of the register should be used with respect to each of the relevant dangerous drugs.

8.The Appellant breached his statutory duty in three respects. Firstly, in respect to the register to which all 47 summonses related he failed as required to record the identity card number of the patient to whom the drug was supplied.

9.Secondly, in so far as the 26 summonses relating to the Tuen Mun Clinic are concerned there were unauthorized alterations to the register in respect of 23 of the records and in so far as the 21 summonses relating to the Mongkok Clinic are concerned there were unauthorized alterations in respect to 17 of the records.

10.Thirdly, there was a discrepancy between the drugs seized and the balances recorded in the registers both in respect of the drugs at the Tuen Mun Clinic and at the Mongkok Clinic.

11.A number of circumstances were brought to the court's attention which put these breaches in context including the fact that the register did properly record the patients' card number, which itself included the patients' identity card number.

12.The Appellant claimed to that he had delegated the task of keeping the registers to his principal nurse who had been with him for 9 years and trusted her to keep them correctly. She and other nurses had made mistakes in calculation, some of which had been corrected with fluid. It was said the Appellant himself had not understood that corrections could not be made in this way.

13.Furthermore, the discrepancy was not simply a shortage of seized drugs compared with what was recorded in the register (although in so far as at Tuen Mun Clinic is concerned in 20 records the shortage of seized drugs varied from 8 to 25,690 tablets). There was also, for instance, in the same clinic an excess of drugs seized over the balance of appearing in 6 records varying from 47 to 3,039 tablets.

14.It was not suggested that any of the drugs were used by drug addicts in association with their addiction nor was it suggested that there was any over-prescribing or prescribing to patients of whom there were no records. It was urged upon the Special Magistrate that the Appellant was a very busy doctor who did not take enough care in the administrative side of his practice and that these was simply a case of bad record keeping.

15.The Special Magistrate took into account the circumstances urged upon him in mitigation, including the Appellant's pleas of guilty and his clear record.

16.He rightly observed that there was no tariff for this sort of offence. He commented that the maximum fine for this offence had been increased from HK$50,000 to HK$450,000 in May 1996, and that the authorities had been cited to him were in respect of cases prior to the increase of penalty.

17.He quoted the observations of Mortimer JA in Ng Mei Sin v Medical Council [1995] 1 HKC 242 at 246E that:

"Any breach of those regulations must be treated seriously. They seek to ensure that drugs legitimately supplied to doctors are fully and carefully controlled so that the risk of those drugs falling into the wrong hands is minimized."

18.He rightly stressed that the regulations imposed a primary responsibility on the doctor to ensure the accuracy of the registers. He noted the discrepancies between the drugs seized and the balances recorded in the register were quite substantial.

19.Mr Marash has referred me again to the pre 1996 cases which were before the magistrate. They involved instances which varied in terms of the culpability involved but, in particular, in terms of the number of charges faced by the doctor concerned. Mr Marash also referred me to a table of penalties imposed in a number of cases since the increase in penalty in 1996 but unfortunately those tables do not reveal the circumstances of each offence.

20.The court must be particularly careful to ensure that a sentence which would be appropriate on a single charge if it stood alone does not become manifestly excessive if the Defendant faces a very large number of charges involving similar misconduct.

21.In my view even taking into account the mitigating circumstances in this case, a sentence of HK$10,000 on one of the summonses faced by the Appellant would not have been manifestly excessive. Although I am mindful of the fact that circumstances of all cases are different, I note that that was the sentence imposed on the Appellant in the case of Lai Chung Lim Peter v The Medical Council of Hong Kong CACV 10 of 1996 when he appeared before the Magistrate's Court and pleaded guilty to one charge of failing to keep proper records. It appears that in that case too the doctor had kept some records even though they were not in conformity with the requirements of the regulations and that the drugs could be accounted for and had not come into the possession of unauthorized persons.

22.In his judgment in that case, Ching JA said this about the duty of doctors to observe the obligations in the regulations:

"...Medical practitioners are usually given the right or the privilege of having in their possession drugs which the legislature has seen fit to describe as being dangerous. That right or privilege brings with it corresponding obligations. As an example only, such drugs can go astray by being pilfered or otherwise. At an extreme, a doctor may be misusing the drugs in one way or another. The Medical Council is properly concerned with the conduct of medical practitioners and the possible misuse of the drugs. It has no means of policing medical practitioners from day to day. That must be left to the police with the assistance of the Department of Health. Even those authorities cannot, and should not be expected to, police from day to day the activities of an honourable profession. They must content themselves with spot checks from time to time. Those checks must entail the task, often tedious, of a physical count of the drugs. It should thereafter be possible for a cross-check to be made with records which should be immediately available in a complete form. Regulation 5 of the Dangerous Drugs Regulations, Cap. 134, provides for the keeping of the register in the form set out in the First Schedule. It is a simple form which can be filled in as a clerical exercise whenever drugs are received or dispensed. There is nothing complicated about it. To my mind it is generally neither a mitigating factor nor a defence to say that all of the information as to drugs received can be found from the suppliers' invoices or that all of the information as to drugs dispensed can be discovered from the patients' records. Given the many thousands of patients which a medical practitioner may have it would take the authorities an enormous amount of time to check through records such as those. That should not be a task which they have to perform. The task is put squarely on the medical practitioner conducting his practice in the proper manner."

23.I find however that the Special Magistrate erred in not properly considering the overall sentence bearing in mind that there was 47 summonses.

24.Despite the seriousness of breaching the regulations, sentences which resulted in overall fines of HK$470,000 were, in my view, manifestly excessive bearing in mind that each offence related to the same or similar deficiencies in record keeping but simply in relation to a different record.

25.I consider that the overall gravity of the offences would have been properly reflected by imposing sentences of HK$2,500 on each summons which would result in overall fines totalling HK$117,500.

26.I therefore allow the appeal to that extent and I substitute for the sentence of a fine of HK$10,000 on each summons, a sentence of a fine of HK$2,500 on each summons.

Representation:

Mr Gavin Shiu, SADPP (Ag), of Department of Justice, for HKSAR

Mr Daniel Marash, SC, instructed by Messrs Johnson Stokes & Master, for the Appellant