HKSAR v. Chan Yau Fat

HCMA157/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 157 OF 2008

(ON APPEAL FROM TWCC 3205 OF 2007)

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BETWEEN

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Date of Hearing:  27 March 2008

Date of Judgment:  27 March 2008

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J U D G M E N T

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1.This is an appeal against a sentence of 4 months’ imprisonment, which was passed following a plea of guilty to an offence of possession of goods to which a forged trademark was applied, contrary to section 9(2) of the Trade Descriptions Ordinance, Cap. 362.

2.The Appellant was a senior salesman at a dispensary that sold medicines in Tsuen Wan.  In May of last year, Customs officers went there and sought to purchase some Cialis.  They successfully bought some  pills purporting to be such without a prescription, bearing the forged trademark of “Cialis” .  The Appellant was not on the premises at the time of that raid in May, but the fact of it must have come to his attention.  Indeed, in discussion in court today that has not been put in issue.

3.He was at the premises in September.  Customs officers followed up with an inspection on the 18th of that month and they found at the premises 68 tablets purporting to be Cialis and 64 tablets purporting to be Viagra, with forged trademarks applied.  Analysis of the drugs seized on this occasion revealed that they had the active ingredient that dealt with the condition the pills were designed for and nothing was found in the pills which could be identified as being harmful to anyone who took them.

4.The magistrate took the view that selling medicines which had not been through the rigorous procedures that allowed them to be sold on prescription under the specific names of Cialis and Viagra was a serious matter and I agree with that.  There is an obvious issue concerning public health safety.  There is also a very unattractive motivation of plain profit by cheating.  Not only that, he identified the fact that the Appellant had a position of responsibility at the dispensary as a senior salesman.

5.I take the view that selling medicines under false descriptions is something that is so serious that it justifies an immediate custodial sentence.  Anyone in the dispensing trade must know that if they indulge in such an activity for profit, they face a loss of liberty.  The area of activity is small enough that what the court does in relation to those found to be cheating within it can have an impact.  If dispensers know that they can cheat but not risk their liberty, they are the more likely to do so.  So it has to be prison.  The magistrate took a starting point of 6 months and reduced it to 4 months by reason of the plea of guilty.

6.This appeal against sentence is a re-hearing.  The Appellant does not face the burden of having to establish before me that the sentence was wrong in principle or manifestly excessive.  That is the test applied for sentences passed upon indictment which are heard in the Court of Appeal.  It means that if my view is slightly different from that of the magistrate, I can act upon my view today and alter the sentence.  My view is that instead of 4 months, 3 months would do.  I am not saying that the magistrate was wrong.  My view is just slightly different.

7.The reason I am minded to say it is 3 months and not 4 is this.  Of course, there was basic mitigation that had helped the Appellant, in that he was a decent married man, this is the first time he had ever been in trouble and that he had honestly faced up to admitting his crime, but beyond that, the other point is this:  that the drugs in question being sold without prescription were, one imagines, being sold for recreational use and the evidence from the Government Chemist was that they would have had the effect that their purchasers intended.  It was not a case where the medication that was being falsely described was going to have an injurious effect.  In other words, a salesman in the Appellant’s position could well say, that even though he was cheating, and cheating unattractively, it would not harm the purchasers whom he had misled and they would get what they wanted.

8.I can see how a dispenser could be tempted to that view, whilst at the same time taking a view that he would never pass on what I might call a “backdoor” medicine to someone who had a serious condition that needed treating, and that he would never pass on anything which he judged to have a risk to health by including something in it that would be injurious to people who took it .  Any dispenser who acted in that way would face a very much longer sentence of imprisonment.

9.For those reasons, the appeal is allowed to the extent of varying the sentence from one of 4 months’ imprisonment to one of 3 months’ imprisonment.

10.I wish to repeat, in order to emphasise this, that I do not say that the magistrate was wrong.  My view is just slightly different. 

Representations:

Mr Frederick Chung, Senior Government Counsel of the Department of Justice, for the Respondent

Mr Andrew Kan, instructed by Messrs Littlewoods, for the Appellant