HKSAR v. Leung Yung Tim
Read the full judgment text of HCMA 730/2005 on BabelCite. This High Court CFI judgment was delivered on 23 November 2005.
1. The appellant was convicted on his own plea of one charge of ‘Possession of Part I Poison’, namely two tablets containing sidenafil, or Viagra in common parlance, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138. He was sentenced to a fine of $500. He now appeals against the conviction.
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HCMA730/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.730 OF 2005 (On Appeal From ESCC 3011 OF 2005) --------------------------- BETWEEN
---------------- Before : Deputy High Court Judge D. Pang in Court Date of Hearing : 23 November 2005 Date of Judgment : 23 November 2005 -------------------------- J U D G M E N T -------------------------- 1.The appellant was convicted on his own plea of one charge of ‘Possession of Part I Poison’, namely two tablets containing sidenafil, or Viagra in common parlance, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138. He was sentenced to a fine of $500. He now appeals against the conviction. The facts 2.So far as they are relevant, the facts as admitted by the appellant were as follows :
Grounds of appeal 3.The appellant raises three grounds, all of them homemade :
Judgment 4.I am satisfied that there is nothing in any of these grounds. 5.Words to the effect that the appellant was shying away from the police were in the brief facts —— but only in the original copy. They were deleted at the defence request before plea was taken. The final version is that which appears in the extract above. 6.There is also nothing to suggest that the appellant was misled in any way. The transcripts see him admitting possession the second time round, first having some unexplained difficulty with the already amended facts. Meanwhile, the plea had always been a guilty one. The duty lawyer whose affirmation I have ordered for this appeal is also emphatic that his written instructions never once changed were that the appellant would plead guilty. 7.Finally, the transcripts reveal no attempt to explain anything to the magistrate. The duty lawyer’s affirmed position is that the appellant had never even sought to explain to him or the court liaison officer that the proprietor of the drug store had neglected to advise him of the need of a prescription. Quite to the contrary, the appellant’s written instruction was that no such “doctor’s certificate” existed. 8.On that note, we come to the crux of the matter. 9.Section 23 of the Pharmacy and Poisons Ordinance reads :
10.In turn, section 28(1) reads as follows :
11.The word “dispense” in section 28(1)(c) is defined in section 2 to mean :
12.Clearly, having a prescription is one of the keys to having a defence under section 23(1). The appellant’s professed lack of it, and the absence of other proofs that he was acting in accordance with the Ordinance, must mean that he was rightly charged and convicted. This is notwithstanding the fact that he has now in his possession what purports to be a sales receipt by the drug store in question. The fact that the drug store sold him Viagra, probably illegally, cannot exempt him. The fact that he did know he needed a prescription, which is what he keeps repeating before me, does not help him either. 13.The appeal is dismissed.
Mr Hau Wai Chuen, Stewart, SGC of Department of Justice, for HKSAR Appellant in person, present |