HKSAR v. Lee Yin Shing

HCMA 868/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 868 OF 2005

(ON APPEAL FROM KCCC 2032 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 12 October 2005

Date of Judgment: 12 October 2005

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J U D G M E N T

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1.This Appellant, a man in his late 30s, appeals against his conviction after trial before Bruce McNair, Esquire in the Magistrate’s Court at Kowloon City on six charges.  Charges 1, 2 and 3 were of unlawful sale of Part I poisons, contrary to sections 21, 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138.  Charge 4 was of possession of Part I poisons, contrary to sections 23(1), 33(1) and 34 of that Ordinance.  Charge 5 was of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134.  And Charge 6 was of possession of substance to which the Antibiotics Ordinance applies, contrary to sections 5(1) and 10(1) of the Antibiotics Ordinance, Chapter 137.

2.The prosecution led evidence to the following effect.  On three occasions, at the Wah Hing Dispensary at 230-236, Temple Street in Kowloon, the Appellant sold Viagra to a plainclothes police officer conducting a covert operation.  Those three occasions form the subject–matter of Charges 1, 2 and 3.  The Appellant was the tenant at Room 1 on the first floor of 228 Temple Street in Kowloon, and he was seen using that flat as a stockroom for pharmaceuticals sold at the dispensary.  The Part I poisons, dangerous drugs and substance the subject–matter of Charges 4, 5 and 6 respectively were found in that stockroom.

3.As for the defence case, it was that the police had “framed” the Appellant, that he had not sold anything to the police officer, that nothing incriminating had been found, and that the stockroom and indeed the Appellant had nothing to do with the dispensary at the material time, it having been sold earlier.

4.Upon a careful consideration of all the evidence, the Magistrate felt sure that the truth was as the prosecution witnesses testified and that the charges had all been proved beyond reasonable doubt.

5.Today in Court the Appellant has handed up a written submission setting out the points which he wishes to make in support of his appeal.  I have considered all of them.  Having given this matter careful consideration, I find no basis on which it could be right to overturn the Magistrate’s conclusion that the Appellant was guilty as charged under each charge.  The Appeal is therefore dismissed.

Appellant in person

Miss Winnie Lam, GC of Department of Justice, for the Respondent