HKSAR v. Wong Kam Luen and Another

HCMA470/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 470 OF 2006

(ON APPEAL FROM KTCC 1348 OF 2006)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  30 June 2006

Date of Judgment:  30 June 2006

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J U D G M E N T

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1.This is an appeal by two Appellants against the sentences passed upon them for offences contrary to the Pharmacy and Poisons Ordinance and the Antibiotics Ordinance. 

2.In a word, the 2nd Appellant ran a pharmacy in Tsuen Kwan O and the 1st Appellant was a probationary salesman there.  The authorities carried out a test purchase which gave rise to the supply of substances controlled by the Ordinances I have mentioned.  There were only a small number of tablets as set out in the charges.  That transaction gave rise to three joint charges:  firstly, selling an unlabelled poison; secondly, the unlawful sale of a Part I poison; and thirdly, selling a Third Schedule poison without prescription.

3.The 1st Appellant only was charged with the offence contrary to the Antibiotics Ordinance as that Ordinance does not have any corresponding provision making the proprietor pharmacist liable as exists under the Pharmacy and Poisons Ordinance.  The magistrate sentenced the 1st Appellant to fines of $1,000 on each of the four charges he faced and to a suspended sentence of 2 months, suspended for 3 years, on each offence. 

4.For the 2nd Appellant, she imposed fines of $10,000 on the three charges he faced and, on those charges, suspended sentences of 4 months suspended for 3 years. 

5.The magistrate took a serious view and, in particular, emphasised the problems that concern the use and misuse of antibiotics.

6.The Appellants’ counsel came here armed with many authorities concerning proof of facts that are in dispute.  However, there is no dispute before me that what is said at paragraphs 19 and 20 of the Respondent’s written summary are correct and are a sensible basis on which this Court should proceed.  Those paragraphs read as follows:

“Antibiotics treat many infections caused by bacteria. 

It has been long recognised that bacteria resistance to antibiotics is part of a bacterium’s own defense system.  The more often bacteria are exposed to antibiotics, the more likely that resistance will develop.  The overuse and misuse of antibiotics accelerates the process of antibiotic resistance. 

In recent years, there have been quite a number of discussions in news coverage and articles about unnecessary overuse of antibiotics.  Many of the traditional antibiotics are reported to have begun to wane and increasingly they are losing the effectiveness in the battle against infectious diseases.”

7.It is the fact that the pleas of guilty tendered by the 2nd Appellant had nothing to do with antibiotics.  The question arises though before me whether it is right that he should receive a suspended sentence of imprisonment.  What is apparent and what justifies it is that, in March of 2005, he committed a similar crime.  He then committed these crimes in October of 2005.  He was sentenced for the first offence before he was sentenced for this offence.  For some reason, the prosecutor below said that the man had a clear record.  If he meant there was no conviction on his record in October of 2005, that was correct, but that is not what a clear record is.  A clear record matters at the time of sentence and, at the time he was sentenced for this, he did not have a clear record. 

8.In the course of the submissions made today and in the exchanges between the Bench and the Bar, it has been said, and it reflects what everyone knows in Hong Kong, that you can go to pharmacies here and purchase drugs for which you should have a prescription, but without one.  Everyone knows that goes on.  Whilst it provides some people with a convenient service, cutting out the trip and the expense and the time of going to a doctor, it is in breach of the Ordinances in question.  If the courts only fine the pharmacist for breaching these Ordinances, then they carry on selling in the way they do.  The fines become an overhead.  It would not be all that dissimilar from the way we treat hawkers. 

9.What should the courts do in this situation?  We are here to enforce the will of the legislature.  If the legislature says these substances have to have a doctor’s prescription before they can be in the hands of the public, then we must do our best to ensure that the will of the legislature in that regard is followed.  It is thus that the only way we can encourage compliance with the Ordinance is to say that “If you keep doing this, you will end up in prison”.  That is why, in the case of the 2nd Defendant, in my judgment, it is right that he have a suspended sentence of imprisonment hanging over him. 

10.The magistrate clearly took a starting point of 6 months’ imprisonment.  I do not have to say she was wrong in doing that.  This is a re-hearing.  I am allowed to tinker and take a different view.  I do take a different view because if this had been a sentence of immediate imprisonment that had to be passed for continuing to run the pharmacy in breach of the Ordinance involving imprisonment for the first time, it would not have called for a starting point as long as 6 months in my view.  In my judgment, a sentence with a starting point of 3 months would have been appropriate.  I would reduce that, for the plea, to 2 months and suspend it again for the 3 years.  I would not have done that in a blanket way in respect of all the three charges that the 2nd Defendant faced.  In the first charge, the mischief was selling an unlabelled poison.  In respect of that charge, I shall leave the fine in place but remove the suspended sentence of imprisonment. 

11.In regard to the 2nd Appellant and for Charges 2 and 3, I shall reduce the suspended sentence of imprisonment from 4 months to 2 months, leaving the fines in place.  So the appeal against sentence by the 2nd Appellant is allowed to that limited extent. 

12.The 1st Appellant’s case poses me - I will be frank - a problem.  He was only a probationary salesman.  He admitted he knew what the substances were.  He has not tried to diminish what he did.  He truly had a clear record.  In his case, with the clear record, I am not persuaded that imprisonment, albeit suspended, would be the right sentence. 

13.Accordingly, in his case, I shall quash the sentences of imprisonment and leave the fines in place.  It seems to me there is a big distinction to be made between those who have had a warning shot across their bow and have been told not to do it by the authorities and have been caught doing it, and those who come to it afresh, especially when they are a stranger to the profit-making exercise and they are just a paid employee and they are a probationer like this 1st Appellant.  If it turns out that it was thought that the way round the efforts of the courts to stop breaches of the Ordinance was to employ such people as the 1st Appellant, then a time may come when they may have to receive sentences of imprisonment.  In my judgment, that time has not come yet on the state of the evidence and the general knowledge before me.

14.So the 1st Appellant’s appeal is allowed to the extent that I have indicated. 

Representations:

Ms Laura Ng, Government Counsel, of the Department of Justice, for the Respondent (HKSAR)

Mr Kenneth Lam Kar-yan, instructed by Jesse H Y Kwok & Co., for both Appellants