HKSAR v. Tse So So

HCMA282/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.282 OF 2006

(ON APPEAL FROM TMS 10720-8 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 19 October 2006

Date of Judgment : 3 November 2006

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J U D G M E N T

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1.The appellant, a medical doctor, faced 9 summonses of “failing to keep record of dangerous drugs obtained and/or supplied” contrary to Regulation 5(1) of the Dangerous Drug Regulations, Cap. 134.  She was convicted after trial and was ordered to pay a total of $108,000 in fines.  She originally appealed against conviction and sentence.  Before me she abandoned her appeal against sentence.

Amendment of summonses

2.The particulars of the failure, as stated in the original 9 summonses (all dated 28 October 2004), are identical (save as to the particular type of drug) and are as follows :

“Information has been laid THAT YOU on 3 May 2004 at about 12 noon at Shop No. 6A, G/F., Kwan Tak Building, 19 Hong Lok Road, Yuen Long, NT, in Hong Kong, being a person authorized by the Dangerous Drugs Ordinance, Cap. 134, to supply a dangerous drug, failed to enter in a register kept in accordance with regulations 5 and 6 of the Dangerous Drugs Regulations, Cap. 134, in chronological sequence in the form specified in the First Schedule of the said Regulations true particulars with respect of every quantity of a dangerous drug namely [particulars of the drug in question], supplied by you whether to persons within or outside Hong Kong.”

3.When the matter came before the court for trial on 3 October 2005 (before another magistrate), and before any evidence was adduced, the prosecution applied to amend the particulars by adding the words “obtained by you, and/or” before the words “supplied by you”.  The effect was to add two more modes of commission of the same offence.  There was no objection from the defence and the case was then adjourned for hearing for reasons unrelated to the amendments.

4.When the case was heard before the learned magistrate in early 2006, the defence applied to stay the summonses on the ground that they were time-barred. The learned magistrate refused the application.

The facts

5.The factual background is set out in the learned magistrate’s Statement of Findings as follows :

“5..The agreed facts establish that the defendant is a doctor operating a clinic in the Yuen Long area.  She is authorised under the Dangerous Drugs Ordinance, Cap. 134, to supply dangerous drugs.  She is therefore required to comply with the terms of Regulation 5 of the Dangerous Drugs Regulations as to the keeping of appropriate registers of dangerous drugs.

6..On the 3^rd May 2004, a medical officer and a pharmacist of the Department of Health inspected the registers kept at the clinic.  They found that in relation to nine of the ten types of drugs handled by the defendant in her clinic in Yuen Long, discrepancies existed between the quantities of dangerous drugs recorded in the registers and the amount in stock.  It is those discrepancies which form the basis of the prosecution case.  Each type or size of drug is the subject of matter of one information.  Various seizures of dangerous drugs and the registers were made.  All these items have been exhibited in the trial.

7..The dangerous drugs in question were counted and sent to the government chemist.  A government chemist's certificate was produced but it has subsequently been amended by reason of recounting exercises which have revealed errors in the original count.  Those recounts have been the main reason why this case has taken so long to get to trial.

8..The discrepancies are tabulated in Table A which has been extracted from the admitted facts and the exhibits.  In most cases, the recorded balance, or that which was calculated from the last entered figures of received and dispensed drugs, overstated the quantity in stock giving a negative discrepancy.  In two cases, there was an understatement in the register giving a positive discrepancy.  And in one case, there was a record of stock but no actual stock was found.  Table B is an extract of the registers in respect of the various drugs, showing the date they commenced, the opening balance (if any) and the quantities acquired in the relevant period.

9..During the course of the recounts, it was discovered that some bottles of pills (capsules or tablets) supplied to the clinic contained slight variations in actual content from stated content.  Thus in the case of Phentermine 30mg Cap, one bottle contained 201 capsules rather than the 200 stated.  Table C sets out the variations in each case and indicates the percentage of the total number checked in each case which the variation represents.  In percentage terms, the variations can be seen to be very small.”

Prosecution case

6.The prosecution case was that by reason of the discrepancies between the quantities recorded in the registers and the amount in stock, the register kept in each case was not kept in accordance with Regulations 5 and 6, in chronological sequence, in the form specified, with true particulars of drugs obtained or supplied.  The difference between the balance recorded and the amount in stock leads inevitably to the inference that the entries as to the drugs obtained (received), or the entries as to the drug supplied, or both, must be inaccurate and therefore untrue.  The prosecution submitted that the offence was one of strict liability, with a statutory defence available to the defendant.

Defence case

7.The appellant did not give evidence or call any witness for the defence.

8.The defence case, in a nutshell, was that the offence was not one of strict liability.  The prosecution was required to prove both the actus reus and the mens rea.  There was an obligation on the prosecution to prove that the defendant was acting dishonestly, that she deliberately entered the false or inaccurate particulars, knowing their contents to be false. 

9.The defence also contended that the prosecution was not entitled to use the “balance” column in the registers to raise the inference that the particulars of drugs either obtained (received), or supplied, or both, must be false.  The prosecution must prove which of the particulars entered in the register, whether received or supplied, is not true.

Grounds of appeal

10.Mr Ching Y. Wong SC, leading Ms Tanya Chan of counsel, represented the appellant.  Mr Wong was also the counsel acting for the appellant before the learned magistrate.

11.There are 3 substantive grounds of appeal :

(1) the learned magistrate had no jurisdiction to hear the summonses;

(2) the learned magistrate erred in ruling the appellant had a duty to enter true particulars in the “balance column”; and

(3) the learned magistrate erred in failing to make a finding upon which of the 3 modes alleged in the summonses he based the conviction.

1^st ground : the jurisdiction point

12.Mr Wong submitted that the learned magistrate erred in holding that :

(a) the amendments to the original information were “made by the court”; and

(b) he had jurisdiction to hear the amended information.

13.In respect of (a) above, Mr Wong’s contention was that the power of a magistrate to amend is governed by section 27 of the Magistrates Ordinance.  In the present case, the amendments were not made by the “adjudicating magistrate” of his own volition as provided by the ordinance.

14.Mr Wong accepted that the prosecution may invite a magistrate to amend under section 27 but the amendment must be based on one of the two grounds stated in the section : (1) a defect in the substance or form of the information; or (2) a variance between the complaint, information or summons and the evidence adduced in support of it.  Mr Wong submitted that the prosecution did not rely on either limb when making the application.  In any event, as evidence had not been adduced at that stage, no reliance could be placed on the second ground.

15.Mr Wong accepted that a magistrate has the power to entertain an application to amend from the prosecution and to allow such application.  He frankly admitted, however, that despite numerous hours of research, he was not able to identify the source of such a power.

16.It is Mr Wong’s contention that since the application to amend was made by the prosecution and the amendments were not made pursuant to the said section 27, they were not “made by the court” as found by the learned magistrate.  The amendments were not “amendments” but the “laying of fresh information disguised as amendments”, Mr Wong submitted.

17.In respect of the jurisdiction point (b), while conceding that the offence alleged by each information is capable of being committed in 3 different modes, i.e. particulars in relation to (1) obtaining from, (2) supplying to, or (3) both the obtaining from and supplying to, it is the appellant’s contention that by electing to allege just one mode of the commission of the offence (supplying to) when the original information were laid on 28 October 2004, and then adding two new modes of the commission of the offence by amendments on 3 October 2005 outside the 6-month limitation period, the amended information were time-barred and the learned magistrate had no jurisdiction to hear the matter. 

18.Mr Wong relied on the authorities of AG v. Fung Si Tsou [1986] HKC 567, CA, Secretary for Justice v. Poon Chau Cheong [2000] 2 HKLRD 636, CFA, to support his contention.  He also submitted that the learned magistrate was wrong in relying on the case of AG v. Wong Lau [1993] 1 HKCLR 257.

Respondent’s response

19.Mr Tam Sze Lok, SGC for the respondent, submitted that the amendments to the information were mere amendments to correct a defect in the substance or form.  The magistrate, in accordance with section 27 of the Magistrates Ordinance, was obliged to amend and had rightly granted the application for the amendments.  No injustice resulted in such amendments.

20.Mr Tam contended that the present case was distinguishable on the facts of both Poon Chau Cheong and Fung Si Tsou relied on by the appellant.  He further submitted that the learned magistrate was correct in applying the law derived from the case of Wong Lau.

Judgment

21.Unlike judges of the Court of First Instance of the High Court, magistrates do not have inherent jurisdiction or power to amend: their power to amend comes from statutory provisions.  There is only one section in the Magistrate Ordinance which gives a magistrate the power to amend, i.e. section 27.

22.Section 27(1) provides :

“(1) Where it appears to the adjudicating magistrate that there is-

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2)-

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons.”

23.It is important to note that the section refers to the “adjudicating magistrate”, not just any magistrate.  The term “adjudicating magistrate” is not defined in the Magistrate Ordinance.

24.In contrast, section 23 of the Magistrates Ordinance, which also deals with variance between the information and the evidence adduced in support thereof, does not refer to the “adjudicating magistrate”, but to the “magistrate”, when making provisions as to what the magistrate may do.  There is no provision for amendment under section 23.

25.I have considered provisions similar to our section 23 in the UK legislation, viz., section 123 of the Magistrates’ Courts Act, 1980, which is a re-enactment of section 100 of the 1952 Act. Section 123 (s. 100) provides :

(1)     No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint.

(2)     If it appears to a magistrates’ court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourned the hearing.

26.Section 100 of the 1952 Act was considered in Garfield v. Maddocks [1974] 1 QB 7.  In that case the prosecutor Maddocks preferred an information against the defendant Garfield and another defendant Goodman, alleging that they used threatening behaviour with intent to provoke a breach of the peace.  Both Garfield and Goodman were members of an organization known as “Hunt Saboteurs Association”. They disrupted a fox hunt at a public place and caused disturbance by using aerosol sprays on the hounds with a view to deaden their sense of smell.

27.When the defendants appeared before the magistrates’ court to answer the information, an application was made by the prosecutor to amend the information to allege threatening behaviour whereby a breach of the peace was likely to be occasioned.  Although the defendants conceded that they were not embarrassed by lack of notice, the application was refused and both were convicted.  The defendants appealed to the Crown Court.  At the outset of the proceedings an application was made by the prosecutor to amend the information to allege insulting behaviour whereby a breach of the peace was likely to have occasioned.  The application was granted.  The Crown Court proceeded with the hearing on the basis of the amended information and dismissed the appeal.  The defendants’ appeal against the decision of the Crown Court was successful when the Court of Appeal ruled that the Crown Court had no power to amend an information when hearing an appeal from justices.

28.Counsel for the defendants referred to section 100 of the 1952 Act and submitted to the Court of Appeal that while no power of amendment was granted to the justices by virtue of any statute or rule, they had a common law power to amend.

29.Widgery CJ, giving judgment of the court, has this to say in relation to the subsection (1) of the above provision :

“Those extremely wide words, which on their face seem to legalise almost any discrepancies between the evidence and the information, have in fact always been given a more restricted meaning, and in modern times the section is construed in this way, that if the variance between the evidence and the information is slight and does no injustice to the defence, the information may be allowed to stand notwithstanding the variance which occurred.  On the other hand, if the variance is so substantial that it is unjust to the defendant to allow it to be adopted without a proper amendment of the information, then the practice is for the court to require the prosecution to amend in order to bring their information into line.  Once they do that, of course, there is provision in section 100 (2) whereby an adjournment can be ordered in the interests of the defence if the amendment requires him to seek an adjournment.”

30.On the facts stated it would appear that the prosecutor applied to amend the information before the justices prior to any evidence being called, otherwise there was no need to mention that the defendants were not embarrassed by lack of notice.  Unfortunately, the Court of Appeal only dealt with the situation which arises when there is a variance between the evidence and the information and did not deal with any power to amend prior to evidence before called.

31.In any event, our section 23 is narrower in scope than section 123 (s. 100) of the English Act, and our section 27 expressly deals with amendments.  I am, therefore, unable to derive assistance from the English case.

32.Coming back to section 27 : It is unclear why the word “adjudicate” is added in that section.  Bearing in mind the word “adjudicate” means “to try and determine judicially”, according to the Shorter Oxford English Dictionary, 5^th ed., it is my judgment that the “adjudicating magistrate” refers to the magistrate who is to hear the evidence and determine whether the defendant is guilty or not.

33.Although the prosecution applied for an amendment before a magistrate who was scheduled to try the case, that magistrate was not the adjudicating magistrate as he was not the one who eventually heard the evidence to make the determination.  The learned magistrate who heard the evidence in this case was the “adjudicating magistrate” but the application to amend was not made before him.  The “amendment” was therefore not an amendment made under section 27 of the Magistrate Ordinance.

34.Apart from the fact that the magistrate allowing the application to amend was not “the adjudicating magistrate”, the original information could not be said to be defective.  This is not a case in which an offence was imperfectly stated; or where essential averments were omitted.  This is not a case in which the information themselves contained defects.  Although the prosecution successfully added two new modes of the commission of the offence, it is not the case that insufficient particulars were given, rendering the original information defective. 

35.Further, there is no dispute that at the time of the application to amend, no evidence had been called so there could not have been any variance between the information and the evidence adduced in support.  What happened was that the prosecution could envisage a variance between the information and the evidence to be adduced and applied to add the two new modes.

36.Having looked at the various sections in the Magistrates Ordinance governing the laying of an information and the issuing of a summons, it is my judgment that when the prosecution applied for an amendment of the original information, it was in effect asking for the court’s permission to withdraw the original information, and substitute new ones (the amended versions).  The applications for amendment were short-cut ways of putting the new information before the court.

37.Since the new information were laid before the court on 3 October 2005, which was well beyond the 6-month limitation period imposed by virtue of section 26 of the Magistrates Ordinance, the learned magistrate had no jurisdiction to hear the matter.

38.The appeal against conviction is allowed on this ground.

39.For the sake of completeness I will consider the other grounds of appeal as well.

2^nd ground : the balance column point

40.Mr Wong referred to Regulation 5(1) of the Dangerous Drug Regulations and submitted the regulation “does not include the ‘balance column’, let alone a duty to enter ‘true particulars’ therein”.  The learned magistrate was wrong in adding such a duty to the said provision, Mr Wong contended.

41.Further, Mr Wong submitted that as the statutory duty under the said Regulation was for a period of 2 years, matters which had taken place prior to 4 May 2002 were irrelevant.  There was an opening balance brought forward in some of the registers. Mr Wong submitted that the learned magistrate had failed to consider the possibility of the balance column not tallying with the stock check due, not to any untrue entries made during the relevant 2-year period, but to an inaccurate opening balance. 

The relevant Regulation

42.Regulation 5(1) (a), (7) and (8) of the Dangerous Drugs Regulations Cap. 134A reads :

“(1) Every person authorized by or licensed under the Ordinance to supply a dangerous drug… shall comply with the following provisions, that is to say :

(a)   he shall, in accordance with this regulation and regulation 6, keep a register and enter therein in chronological sequence in the form specified in the First Schedule true particulars with respect to every quantity of a dangerous drug, other than a preparation specified in Part II of the First Schedule to the Ordinance, obtained by him and with respect to every quantity of a dangerous drug, other than a preparation specified in Part II of the First Schedule to the Ordinance, supplied by him, whether to persons within or outside Hong Kong;

…

(7)   Any person who contravenes any of the provisions of paragraph (1) or (6) shall be guilty of an offence and shall be liable on conviction to a fine of $450000 and to imprisonment for 3 years.

(8)   It is a defence for a person charged with committing an offence under paragraph (7) in relation to paragraph (1) to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.”

Judgment

43.It should be noted that the appellant no longer contends before me that the offence was not a strict liability offence.  I agree with the learned magistrate’s conclusion that this is a strict liability offence.

44.It is incorrect to say that the learned magistrate failed to consider the possibility of the balance column not tallying with the stock check due, not to any untrue entries made during the relevant 2-year period, but to an inaccurate opening balance.  The learned magistrate said this in his Statement of Findings :

“34. The registers relating to TMS10721, 10722, 10724 and 10727, start with a balance brought forward from a previous register.  It is argued that the discrepancies revealed in those cases might themselves have been brought forward and that the failure to record ‘true particulars’ might have occurred during the currency of those registers and not in the present registers; since registers only have to be kept for two years, errors older than that must be discounted.”

45.As to the extent of duty imposed under Regulation 5, the learned magistrate found as follows :

“30. Regulation 5 requires the entry of true particulars into the register with regard to drugs obtained and supplied.  The prosecution must prove that the defendant failed to keep true particulars in accordance with Regulations 5 and 6.  It is not the duty of the prosecution to prove specifically whether the failure arose with regard to what was recorded in the ‘received’ or the ‘supplied’ columns.  It is said that there is no obligation to keep a running balance and that therefore the court cannot look at the ‘balance’ column to determine that the other figures must be untrue somewhere.  I disagree.  The register must be kept in the form set out in the First Schedule to the Regulations.  That form includes a balance column.  It is simply the last balance plus or minus any dangerous drugs received or supplied and will, when compared with the stock, reveal whether there is a recording error or not.

…

35.  In my judgment, the obligation upon authorised person, such as this defendant, is to enter true particulars in the current register.  Failure to do so, for whatever reason, will constitute the offence, subject, of course, to the statutory defence.  If the failure arose from an error in an earlier register, which has continued into the current register, that does not absolve the defendant of liability for current entries of particulars which are not true.  As I said earlier, the balance column is required in the scheduled form.  It is not optional.  The figure flows from what is added or subtracted. This is, in effect, a current transaction and stock record.  If it is inaccurate because it starts with an inaccurate figure, it still does not meet the requirements of Regulation 5(1).”

I am in complete agreement with the learned magistrate’s reasoning as stated.

46.The appellant is required by law to keep a register and enter therein in chronological sequence in the form specified in the First Schedule true particulars with respect to every quantity of a dangerous drug obtained/supplied by her.  Although the word “quantity” is used, it is absurd to say that the appellant needs only to enter true particulars under the column “Amount received/ supplied”.  The purpose of such a register is to keep a record of the comings and goings of dangerous drugs.  The duty is to enter true particulars in all columns as detailed in the prescribed form, including the balance column.  Failure to enter true particulars in the register due to errors brought forward is still a failure to keep a register as required under Regulation 5.  The statutory defence of all reasonable steps being taken and all due diligence being exercised to avoid committing the offence is available to the appellant if the untrue particulars in the registers had indeed come about as a result of errors being brought forward.

47.The learned magistrate quoted the judgment of Ching JA (as he then was) in the case of Lai Chung Lim, Peter v. The Medical Council of Hong Kong [1996] 2 HKLR 249 at 258I to 256C (made in the context of a professional disciplinary case).  I find the judgment helpful and reproduce it here :

“Even [the police and the Department of Health] 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 the information as to drugs received can be discovered 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.”

I find no substance in this ground of appeal.

3^rd ground : conviction of “and/or”

48.Mr Wong’s contention was that the learned magistrate has not made a finding as to which of the 3 modes of the commission of the offence was proved.  While the prosecution could allege supplied and obtained, or supplied or obtained, the prosecution was not permitted to invite the court to convict on the basis of and/or as the “conjunctive” is diametrically opposed to the ‘disjunctive’, Mr Wong submitted.

The learned magistrate’s findings

49.The learned magistrate said this in para. 33 of his Statement of Findings :

“33. If a discrepancy between stock and register is identified (and leaving aside matters to which I will refer in a moment) it would not be possible in most cases for investigators to identify which of the entries in the ‘received’ or ‘supplied’ columns was inaccurate – the TMS10722 situation would be one of the rare exceptions.  An inaccuracy could result from a number of different possibilities: either over-recording or under-recording either or both of the received drugs or the supplied drugs; or it might result from single or multiple inaccurate entries, some cancelling out others: the range of possibilities is extensive.  Thus the only way of carrying out the checks that are required by the Dangerous Drug Regulations, in the interests of the community, is to compare the balance in the register against the stock. I am satisfied that the court is not required to make a finding as to the exact location(s) in the register of any inaccuracy revealed by such a comparison.”

Judgment

50.The offence is one of failing to keep a register with entries as required by the relevant regulations.  As correctly stated by the learned magistrate, “An inaccuracy could result from a number of different possibilities : either over-recording or under-recording either or both of the received drugs or the supplied drugs; or it might result from single or multiple inaccurate entries, some cancelling out others: the range of possibilities is extensive.”  With the discrepancies found when comparing the balance stated in the registers and the stock count, it is indeed not possible for the court to find whether the untrue particulars were in relation to just the obtaining from, or just the supplying to, or both. I agree with the learned magistrate’s findings that he is not required to make a finding as to the exact location(s) in the register of any inaccuracy revealed by comparison of the balance in the register against the stock.

51.I find no substance in this ground of appeal.

Conclusion

52.In view of my findings in relation to the jurisdiction point, the appeal is allowed, the convictions are quashed and the fines set aside.

Mr Tam Sze-lok, SGC of Department of Justice, for HKSAR

Mr Ching Y. Wong, SC leading Ms Tanya Chan, instructed by Messrs Li, Wong & Lam, for the Appellant