Tai Muk-kwai t/a Nan Lien Pharmaceutical Co and Another v. The Queen

Case No.CACC 1129/1979

Court

Court of Appeal

Date19 Mar 1980

Judge—

Case Document

100%

CACC001129/1979

Expert evidence - conflicting opinions - court's approach - desirability of the Crown in prosecutions under the Pharmacy and Poisons Ordinance, Cap. 138 to provide duplicate samples whenever practicable - power of an appellate court to find facts - "possession" under section 23, Cap. 138 obiter

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1129 OF 1979

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Between
	Tai Muk-kwai trading as Nan Lien Pharmaceutical Co. and Shun Yuen (Overseas) Trading Co. Ltd.	Appellants
	AND
	The Queen	Respondent

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Coram: Addison, J.

Date of Judgment: 19 March 1980

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JUDGMENT

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1. On the 26th October 1979 the learned magistrate sitting at Causeway Bay found the appellants guilty of various offences under the Pharmacy and Poisons Ordinance, Cap. 138.

2. Both appellants were convicted of possession on the 10th January 1979 of a Part I poison, namely Indomethacin, under sections 23, 33 and 34 of Cap. 138 and the 2nd appellant was additionally convicted of 5 offences of selling a Part I poison, again Indomethacin, under sections 21, 33 and 34 of Cap. 138. Those sales occurred on various dates between the 1st November 1978 and the 5th January 1979.

3. They now appeal against conviction.

4. Section 23 of Cap. 138 enacts:

"No person shall have in his possession any posion include (sic) in Part I of the Poisons List otherwise that in accordance with the provisions of this Ordinance, the proof whereof shall lie upon him."

5. Section 24 of the Ordinance enacts:

"Every person other than an authorized seller of poisons or a listed seller of poisons carrying on a retail business in premises at which poisons are found shall until the contrary is proved be presumed to have such poisons in his possession for the purposes of sale."

6. Indomethacin is included in Part I of the Poisons List under the Pharmacy and Poisons Regulations.

7. Section 33 provides that contraventions of sections 21 and 23 con-stitute offences under the Ordinance and section 34 lays down the penalty for such offences. It additionally provides for vicarious liability.

8. The additional offences of which the 2nd appellant was convicted were under section 21 of the Ordinance. That section provides:

"Subject to sections 28 and 32, no poison included in Part I of the Poisons List shall be sold except on premises duly registered under this Ordinance as premises of an authorized seller of poisons by a registered pharmacist or in his presence or under his supervision."

9. The issues in the trial were considerably narrowed by the admission of certain facts under section 650 of the Criminal Procedure Ordinance.

10. In relation to the charge under section 23, the possession offence, it was agreed:

	(i)	that Nan Lien Pharmaceutical Co. and Shun Yuen (Overseas) Trading Co. Ltd. both carried on business at 44, Lee Chung Street, 9th floor, Block B, Chaiwan;
	(ii)	that Tai Muk-Kwai was the sole proprietor of the Nan Lien Pharmaceutical Co.;
	(iii)	that Shu Joan Chang was the manager of Shun Yuen (Overseas) Trading Co., Ltd. and the assistant manager of Nan Lien Pharmaceutical Co.;
	(iv)	that on the 10th January 1979 two inspectors of the Medical and Health Department seized from the premises 51 boxes each containing 12 bottles of either Chiufong Toukuwan Nan Lien or Chiufong Toukuwan New Formula and two bags of Chiufong Toukuwan raw material;
	(v)	that the items in (iv) above were sealed and sent to the Government Chemist for analysis; and
	(vi)	that the Government Chemist's certificate of the 14th May 1979 certified that 25 boxes of Chiufong Toukuwan New Formula and all the Toukuwan Nan Lien contained Indomethacin which is a Part I poison.

11. The Government Chemist's certificate relating to the possession charge stated the receipt by him of 52 sealed boxes and 2 sealed gunny bags. These boxes were found to contain 7,432 bottles of pills whilst inside the 2 bags were found powder. These were made into 54 exhibits of which the Government Chemist certified 27 contained Indomethacin and 27 did not. It is of significance that the 2 bags of Chiufong Toukuwan raw material was certified not to contain Indomethacin.

12. Section 25(1)(b) of the Evidence Ordinance, Cap. 8 provides:

"A document in the form set out in Form 1 of the Schedule purporting to be signed by the Government Chemist and purporting to be a certificate as to any article or substance submitted to him shall be admitted in evidence in criminal or civil proceedings before any court on its production without further proof, and

(b)

such document shall be prima facie evidence of all matters contained therein."

13. It was never agreed between the parties that the analysis, conducted by Dr. Ko was accurate. That was the substantive issue in the trial.

So far as the 5 summonses alleging contraventions of section 21, i.e. selling a Part I poison are concerned it was admitted:

	(i)	that varying numbers of bottles containing either Chiufong Toukuwan New Formula or Chiufong Toukuwan Nan Lien were recovered from companies to whom they had been sold by the 2nd appellant;
	(ii)	that they were sent to the Government Chemist for analysis;
	(iii)	that the certificates of the Government Chemist, Dr. Ko, certified the presence of Indomethacin in the respective bottles; and
	(iv)	that Shun Yuen (Overseas) Trading Co., Ltd. sold the bottles on premises not duly registered.

14. Again, what was not conceded was the accuracy of the Government Chemist's certificates.

15. The learned magistrate in his brief statement of findings said:

"	The only point at issue was whether or not the exhibits produced contained the Part I poison Indomethacin.
	Two undisputed, experienced experts gave evidence - one Dr. Ko Kip Shin, Government Chemist, for the pro-secution and the other, Peter Gerald Martin, a public Analyst, brought out from the U.K. by the appellants.
	The mass of technical jargon, as to the tests used by both sides, and the lengthy cross-examination can be boiled down to one agreed fact: the prosecution say the exhibits contain Indomethacin and the defence say there is a doubt.
	Mr. Martin does not question Dr. Ko's methods, or the type of tests she carried out - in fact he described them as good.
	I therefore accepted the evidence of Dr. Ko that the pills, the subject matter of the summonses, did contain Indomethacin and found the defendants guilty on all 6 summonses."

16. The general ground of appeal argued in this appeal was that there was no evidence or no sufficient evidence whereon to found the said con-victions. It was contended the convictions are unsafe and unsatisfactory.

17. To determine this ground it is necessary to consider the evidence of Dr. Ko, who was the sole witness for the prosecution and to compare that with the evidence of Mr. Chui Shing Chung and Dr. Martin, the public analyst called by the defence.

18. Dr. Ko who is a Government Chemist of 10 years standing and who is a Chartered Chemist holding the degrees of Ph.D. and B.Sc gave evidence that she carried out 3 tests. These were: (1) thin layer chromatology (known as T.L.C.) - this she said was a preliminary test which permits observation of the speed at which a drug travels in a tank containing certain solution; (2) an ultra violet spectra test and (3) and infra-red test.

19. Of these 3 tests Dr. Ko said that the infra-red test alone was sufficient to convince her of the presence of Indomethacin. She said the two remaining tests were confirmatory.

20. These tests were conducted on the large quantities of chemicals seized from the premises at 44A and forming the basis of the A charge as well as on the pills forming the basis of the prosecution case on charges B - F inclusive. She said she examined one in 12 of the bottles she received.

21. She was not asked in chief to give details of the tests she carried out. Counsel for the Crown seemed content to ask her to produce her certificates and leave it to the defence to cross-examine her.

22. This does not accord with general practice. It was apparent the pro-secution were relying on section 25 of the Evidence Ordinance in proving its case.

23. In the course of cross-examination she produced an extract from the British Pharmacopoeia listing the properties of Indomethacin and the ways of identifying it.

24. Four methods of identification are therein listed as A to D.

25. These are:

	(A)	the infra-red absorption spectrum;
	(B)	the light absorption with hydrochloric acid;
	(C)	a dissolving test with methyl alcohol; and
	(D)	a further dissolving test but with sodium hydrochloride.

26. She explained that the A test, which she adopted is based on the fact that if two substances are treated in the same way they yield the same infra-red spectrums. She said she did not carry out test B in the manner mentioned in the British Pharmacopoeia nor did she carry out test C and D though she said she made use of them. Precisely how she did that was not disclosed.

27. In respect of the pills she said, eventually, that she employed the hydrochloric acid test, after grinding, and she also ground up the pills and mixed the compound with chloroform.

28. She gave evidence that in conducting the T.L.C. test she compared the test samples with undisputed Indomethacin. She also examined the compound under ultra-violet light and found the test and control samples had the same retention factor as well as the same flourescene. She did not carry out gas chromatology.

29. She stated her conclusion, namely that Indomethacin was present. Of that poison she said it was synthetic and she added:

"There is no way that this drug could be put in the pill except deliberately by the manufacturer."

30. She was adamant that the interaction of herbs could not possibly create Indomethacin.

31. Such then was her evidence before the learned magistrate.

32. Pausing here, it is significant that Dr. Ko did not produce to the court her charts, diagrams, graphs etc. providing the basic data from which she reached her conclusion. These should have been put in by the prosecution. A tribunal of fact should not be deprived of seeing the material and, so far as it is able, considering the same. This omission has provided in my opinion the major ground of appeal before this court.

33. It seems Counsel for the Crown, who I hasten to add was not Counsel who has appeared in this appeal, preferred to trim the evidence to a pro-nouncement of the basic conclusion.

34. There was another unsatisfactory feature in the prosecution and this arose from the failure of the Crown to provide the defence with duplicate samples of the exhibits seized so as to enable them to carry out such tests as they deemed appropriate. Where from the quantities seized samples can be made available to the defence this should be done unless to do so would prejudice the Crown in its investigation and or presentation of its case. The fact there is no statutory enactment requiring this to be done should not relieve the prosecution of ensuring fairness in such matters. One expects this will be done in the future.

35. I am informed that had the appellants' solicitors asked for duplicate samples these would have been supplied but the solicitors did not realise they simply had to ask for them. It seems to me that the better practice would be for the Crown to supply them unsaked, whenever possible.

36. The defence were not afforded the opportunity of examining any of the exhibits forwarded to the Government Chemist. Nor were they able to cross-examine on such material as there was recording the data giving rise to Dr. Ko's conclusions.

37. What the appellants did in this case was to forward to their solicitors samples of the pills they still retained. Accordingly, Dr. Martin, their analyst received 2 boxes of Chiufong New Forumla (marked A and C) and one box of Nan Lien (marked B). He conducted tests on those medicines.

38. Dr. Martin who is a Fellow of the Royal Institute of Chemistry and the holder of a doctorate in chemistry carried out 4 tests. These were:

	(1)	the infra-red test;
	(2)	a T.L.C. test;
	(3)	spectrum test; and
	(4)	gas chromatography.

39. Of the infra-red test he found no Indomethacin in Ex. A; a trace in Ex. C and something similar in Ex. B. He could not say what that similar compound was. He said his infra-red test was inconclusive. He explained that there is a group of substances related to Indomethacin which are called indols. These are rooting compounds. He thought the results of the infra-red test might be explicable on that basis, and without the substance being Indomethacin.

40. Of the T.L.C. test, he considered that inconclusive also. This time A contained Indomethacin; B contained something similar and C contained a trace. His doubt as to this test arose when he tried separation. He said T.L.C. was a matter of separation of compounds rather than one of identification.

41. Dr. Martin also conducted spectrum tests, extraction with chloroform and gas chromatology tests. These too proved inconclusive.

42. All in all he was not prepared to certify that Indomethacin was present in the samples he examined. He said his reason for entertaining doubts was that the peaks in the spectrum were not the same as in the real poison. Accord-ing to Dr. Martin the one sure way of detecting the poison was by mass spectro-meter but that was expensive and there was no equipment in Hong Kong for that to be carried out.

43. Of the tests he carried out, which be it noted were not on the same com-pounds as those examined by Dr. Ko, he found something that could have been Indomethacin in two of those tests.

44. He thought the tests employed by Dr. Ko were not inappropriate for the detection of Indomethacin and could have detected the presence of Indomethacin provided they were properly carried out.

45. Mr. Hazan, who appeared for the appellants in the court below told the learned magistrate in his address that Dr. Martin could not comment on the opinion of Dr. Ko because he did not know the details of her tests.

46. It was assumed by the defence that the samples worked on by Dr. Martin were to all intents and purposes of the same ilk as those forwarded to the Government Laboratory. It seems a reasonable assumption: certainly the learned magistrate in his findings of fact did not suggest otherwise.

47. The essence of the dispute between the two experts was summed up by the learned magistrate who said that whereas Dr. Ko alleged the pills contained Indomethacin, Dr. Martin entertained a doubt.

48. The doubt of course was referable to the samples examined by Dr. Ko, not all of which were found by Dr. Ko to contain the poison.

49. Dr. Martin was not the only witness for the defence. Mr. Hui, the manager of the two appellant companies told the learned magistrate that the medicines came from herbs all of which are listed in the Chinese Materia Medica. He said he had no idea there was Indomethacin in the drugs. He claimed he never deliberately inserted Indomethacin into the bottles. All the ingredients, he said, came from Taiwan. The formula, he said came from his father and this he passed on to the Nan Lien Company. In 1972, because of certain restrictions imposed by some foreign countries to which the medicine was exported, the formula was changed.

50. He agreed in cross-examination that no one could have inserted Indomethacin into the pills without his knowledge. It was suggested that if Indomethacin were present it must have come from the innocent reaction of the Chinese herbs.

51. Dr. Martin in his evidence said:

"It is not impossible for the poison to be created by the interaction of these herbs."

52. This view was diametrically opposed to that of Dr. Ko.

53. There was evidence before the learned magistrate that Indomethacin was a therapeutic drug for rheumatoid arthritis and gout. Such also was the purpose advertised of the appellant's medicine. The recommended dosages were not incompatible.

54. Such, more or less, was the evidence for the defence and it was for the learned magistrate to decide whether the offences charged had been proved beyond reasonable doubt.

55. According to the learned magistrate: "The only point at issue was whether or not the exhibits produced contained the Part I Poison Indomethacin."

56. The learned magistrate accepted the evidence of Dr. Ko and found the offences proved. The reason he gave was:

"Mr. Martin does not question Dr. Ko's methods, or the type of tests she carried out - in fact he described them as good."

57. "Good" in this context meant, not accurate, but "appropriate".

58. In other words because the nature of the tests performed were relevant for the detection of Indomethacin the learned magistrate acted on the certi-ficates of Dr. Ko.

59. In the matter of expert evidence and certificates this court has con-sidered the following cases:

60. Tolson v. Larcombes (Bellingham) Ltd. (1962) 106 S.J. 15; Stojalowski v. Imperial Smelting Corp. (NSC) Ltd. (1977) 121 S.L.J. 118; R. v. Hipson (1969) C.L.R. 85; McCulloch v. Hannan (1951) 1 All E.R. 402; R. v. Jennion (1962) 1 All E.R. 689 and Bennett v. Peattie (1925) 57 O.L.R. 233.

61. Mr. Hazan challenges the verdicts in this appeal claiming them to be unsafe and unsatisfactory. He says there was insufficient evidence to prove the presence of Indomethacin in the pills beyond reasonable doubt. He argues that if that contention is not upheld then he maintains the learned magistrate did not make any finding as to how the Indomethacin came to be there. If its presence was otherwise than by the deliberate act of the appellants then questions as to mens rea arose, and, even possibly, the effect of section 37 of the Ordinance. Such matters, he complains were not dealt with by the magistrate in his Findings of Fact. He contends these should have been considered and the fact they were not must result in these appeals being allowed.

62. Mr. Lucas who appears for the Crown takes issue on each of these points.

63. As to the finding of Indomethacin in the medicine, the appellant, in ground 4 of his Grounds of Appeal, alleges:

"In the absence of the production of detailed records showing Dr. Ko's results without which Dr. Martin said he was not prepared to comment on her opinion that the pills contained Indomethacin, the learned magistrate was wrong in finding that the prosecution had proved that the pills contained the prohibited substance."

64. Let us first look at the duty of experts. This was set out in Davie v. the Lord Provest, Magistrates and Councillors of the City of Edinburgh (1953) S.C. 34 where the Lord President at page 40 said:

"	Founding upon the fact that no counter evidence on the science of explosives and their effects was adduced for the pursuer, the defenders went so far as to maintain that we were bound to accept the conclusions of Mr. Teichman. This view I must firmly reject as contrary to the principles in accordance with which expert opinion evidence is admitted. Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the court - S.S. Bogota v. S.S. Alconda. Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the judge or jury. In particular the bare ipsa dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. I refer to Best on Evidence (12th edition) page 434 ff.; Phipson on Evidence, (9th edition) page 400 ff.; Dickson on Evidence (1st edition) vol. ii. sec. 1999; Wills on Circumstantial Evidence, (7th edition) page 176, and to the many authorities cited in these works.
	That the Lord Ordinary was entitled to discard the evidence of Mr. Teichman I do not doubt. It remains to consider whether he was right in so doing. (His Lordship considered Mr. Teichman's evidence and, after expressing the opinion that the Lord Ordinary was justified in rejecting it, continued) -
	Two further matters require mention. In addition to Mr. Teichman and his assistant the defenders adduced another expert, Mr. Shennan, whose qualifications are impressive. This witness was asked, inter alia, with regard to the theory of the propagation of ground waves and his answers are not only different from but in material respects contradictory of Mr. Teichman's thesis - so much so that in opening this reclaiming motion counsel for the defenders did not read the evidence of Mr. Shenna at all. The Lord Ordinary treated Mr. Shennan's evidence as "of no value", but I cannot think that this is the end of the matter. If conflicting scientific expert evidence is adduced by a party, he cannot complain if on that account alone the whole of it is treated with more than suspicion."

65. Lord Russel at page 42 said:

"The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevantly to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue, a Court is entitled, although not obliged, to accept it, even if unsupported by any corroborative expert opinion."

66. That was a civil case in which no presumptions applied such as we have here under Cap. 8, section 25.

67. In R. v. Turner (1975) Criminal Law Report 98 the Court of Appeal expressed the view that "before the value of an opinion could be assessed the facts on which it was based must be known. If the expert had been misinformed, or considered irrelevant facts or ignored relevant facts, the opinion was likely to be valueless. Counsel calling an expert should ask him in chief to state the facts on which his opinion was based. It was wrong to leave the other side to elicit them in cross-examination."

68. In Tolson v. Larcombers (Bellingham) (1961) 106 S.J. 15, a prosecution under the Food and Drugs Act, 1955 in which a certificate of a public analyst was put in evidence, it was held by the Divisional Court, overruling the ruling of the magistrate's court that the certificate was admissible in evidence and although in most cases the analyst should simply set out in his certificate enough parts of the analysis to enable the justices to come to a conclusion themselves, the sole question was whether the substance in question was natural cream and that was a question which the justices should only act on expert advice.

69. In the report cited, Parker, L.C.J. said:

"But this was a special case in that the real issue did not turn on detailed questions of analysis but on whether the substance was a natural cream as defined by section 135. It was a case in which the matter to be determined was one for experts. Whether the justices accepted the opinion of the expert or not was a matter for them, but they were entitled to have and could only act on the opinion of experts. Accordingly the certificates were in the prescribed form and contained evidence which, if the justices accepted it, showed that what was sampled and sold was imitation cream."

70. In this appeal the certificate of the Government Chemist was in the prescribed form. It was prima facie evidence of its contents. The issue here is whether the magistrate was justified or not in reaching the con-clusion he did.

71. In R. v. Bracewell (1979) 68 Cr. App. R. 44 Ormrod, L.J. had occasion to consider the summing up of the trial judge in a case where conflicting evidence was given by experts.

72. Part of the summing up reads as follows:

"Mr. Steer understandably makes great play on his clients behalf of the doctor's expression I'I cannot with certainty rule out' so and so. You must remember this, that a doctor, and you may have thought that Dr. Green was a splendid example of fairness, is speaking from a scientific point of view. He was saying: 'I cannot as a scientific certainty rule out that which you postulate, namely partial asphyxia, recovery and then a heart attack', but, he said, 'I incline strongly against that view'. You will remember ladies and gentlemen that your duty is not to judge scientifically or with scientific certainty. You judge so that as sensible people you feel sure and even say that what might not satisfy Dr. Green as a scientific certainty might, with propriety, satisfy you so that you felt sure. Do not be misled. There is no such thing as certainty in this life, absolute certainty. You ask your-selves the simple question upon the whole of the evidence do I feel sure .......'

73. Having cited that passage Lord Ormrod continued:

"That direction in our judgment, correctly draws the distinction between what may be described as scientific proof on the one hand and legal proof on the other. It is, with respect, an admirably lucid and succint way of dealing with a problem which often arises in connection with scientific evidence."

74. As in all cases including those where experts give evidence, each case must be decided on its own facts.

75. Mr. Hazan's principal bone of contention is that because Dr. Ko did not produce in evidence the data on which her opinions were reached he could not cross-examine her on that data. Certainly there was no obligation on him to call for its production (See R. v. Hipson (1969) Cr.L.R. 85)

76. The record shows that Mr. Hazan informed the court in his final address that Dr. Martin could not comment on Dr. Ko's opinion, he not knowing the details of her tests.

77. He claimed that in a case in which expert evidence is given, but without the data to support the opinion arrived at, it would be wrong for a tribunal to accept the opinion of that expert on the ground that the conflicting expert had found himself unable to test that evidence by cross-examination. To do so would in effect be altering the burden of proof.

78. It was argued that the magistrate needed to see the data himself before he could fairly and reasonably reach his conclusion.

79. One cannot but have a great deal of sympathy with this contention. I have considered it carefully but to view it in vacuo is in my opinion to do no more than embark on an academic exercise.

80. Mr. Hazan stressed that Dr. Martin's sincerity as a witness was not impugned. Dr. Martin carried out more tests than did Dr. Ko and Mr. Hazan argues that there was no justifiable reason for the learned magistrate to accept the opinions of Dr. Ko that the pills contained Indomethacin. Surely, it is contended, the evidence of Dr. Martin must have caused the tribunal to entertain doubt as to the presence of Indomethacin. Criticism is also made of the magistrate for not dealing with these matters in his Findings of Fact.

81. Mr. Lucas on the other hand argues there was sufficient evidence for the magistrate to reach the conclusion he did. He points out that only Dr. Ko examined the pills the subject matter of the charge and of those supplied to Dr. Martin he found the unconfirmed presence of Indomethacin in some. I have already set out the evidence which does not require repetition.

82. Mr. Lucas asks, even if Dr. Martin expressed doubts as to his own analysis, how could that raise a doubt in respect of the medicine the subject matter of the charge and examined by Dr. Ko? Even Dr. Ko, he pointed out, found half the drugs seized from the appellant's premises to be free of Indomethacin. He pointed to that part of the evidence of Dr. Martin who said: "I got something that could be Indomethacin on two tests."

83. In all the circumstances, argues Mr. Lucas, bearing in mind section 25 of Cap. 8, and the purpose for which the pills were sold conforming to the known medical use of Indomethacin, the learned magistrate did not err in accepting the evidence of Dr. Ko and finding Indomethacin to be present.

84. In my judgment though it would have been highly preferable had the learned magistrate adverted to and discussed these matters in his Findings of Fact nevertheless I am satisfied there was sufficient evidence before him to reach the conclusion he did and that the decision he reached was neither unsatisfactory nor unsafe.

85. The learned magistrate considered that this finding was the end of the matter. To him it was the only point in the trial. Mr. Hazan argues otherwise and I must now turn to his remaining arguments.

86. First he submits it was incumbent on the learned magistrate to find how it was that Indomethacin came to be present in the pills. This is the substance of Ground I of the additional Grounds of Appeal which alleges:

"It was the case for the prosecution that Indomethacin could only have been inserted into the pills deliberately by the manufacturer. It was never suggested to Mr. Hui in cross-examination that this had been done by the appellants in Hong Kong. The learned magistrate made no finding of fact as to how and where the prohibited substance got into the pills (if it did) in the light of Mr. Hui's unchallenged evidence that all the ingredients came from Taiwan."

87. Mr. Lucas reminds this court that the issue was possession or no possession. It was not necessary for the Crown to go further and show how Indomethacin came to be present.

88. Mr. Hazan's argument on this Ground is as follows:

89. The presence of Indomethacin in the pills could have come from either:

	(A)	deliberate insertion in the course of manufacture; or
	(B)	by the interaction of the ingredients or herbs used to make the pills. These ingredients were, he says, herbs named in the Chinese Herbal Materia Medica and customarily used by the Chinese people; or
	(C)	from the raw material which came from Taiwan. Mr. Hazan argues that if that were the source then it could only have been present in traces and to a degree that knowledge of such could not be attributed to the appellants.

90. This ground of appeal opens the door to further possible grounds of appeal involving questions of mens rea and the operation, if at all, of section 37 of the Ordinance

91. Mr. Hazan concedes that if this court concludes that Indomethacin was deliberately inserted during the course of manufacture then this court need not concern itself with the problem of mens rea or strict liability.

92. Let me first turn to the possibility of B above; that is the question of interaction of the herbs.

93. Dr. Ko in her evidence said the interaction of the herbs to create Indomethacin was impossible.

94. Dr. Martin said: "There is the possibility that somehow the poison get in either in Taiwan or through the interaction between the chemicals."

95. Obviously by the word "chemicals" Dr. Martin meant "herbs", of which he said he had no particular experience.

96. To see whether this might reasonably have been possible one must turn to the evidence of Mr. Hui.

97. The drugs were manufactured on his premises but the ingredients came from Taiwan. Raw material seized did not contain Indomethacin. Mr. Hui said he had no idea the formula contained Indomethacin; in fact he denied that that was so. He checked the manufacture of the product and he alleged he never deliberately inserted Indomethacin into the bottles of pills. Finally he said nobody could put the drug in the pill without his knowing.

98. Insofar as the learned magistrate did not in this particular case make any finding of fact as to how Indomethacin came to be present and, insofar as such is relevant to the case, then in my opinion this court is empowered to make a finding on this appeal but subject to certain qualifications. There must have been adduced before the tribunal evidence of such a quality which permits the finding to be made and that finding must be of a character that none other could reasonably have been reached had the magistrate directed his mind to it.

99. Put in another way, had the learned magistrate been asked to have made a finding of fact on the very matter he would instantly reply - "Well of course I reached or would have reached that conclusion had I been asked."

100. Applying that test in this appeal I can only come to one conclusion, namely that Indomethacin was inserted in the pills by the manufaturers or their employees. In my opinion to conclude otherwise would be to fly in the face of common sense.

101. I have not reached that conclusion without taking into account the arguements advanced against it by Mr. Hazan. He emphasised that it seemed strange that not all the pills were found to contain Indomethacin. He stressed that it seemed unlikely, if Indomethacin were deliberately inserted, that they should err in handing over samples con-taining the drug to their analyst albeit he did not positively confirm its presence. Rather, he submits, would they have ensured those samples handed over were free of the drug.

102. I have considered these points but I conclude from the evidence, and without doubt, that Indomethacin was inserted in the manufacturing process. I exclude its possible presence in the raw material from Taiwan because of the report of the Government Chemist who found none present in Ex. P53.

103. That being the case and Indomethacin not being a Chinese traditional medicine or a herb customarily used by the Chinese people, section 37 of the Ordinance has no application. In any event, on the authority of Leung Chi-kin v. R. (1970) H.K.L.R. 25 it is difficult to see how this medicine could be regarded as anything but a "Western medicine." It was exported to Western countries.

104. This finding is sufficient to dispose of this appeal insofar as issues as to mens rea do not arise for determination but it does no harm to set out, in brief, the arguments advanced.

105. Mr. Hazan submits that mens rea is an essential ingredient for offences contrary to sections 21 and 23 of Cap. 118. He relies on the passage in Archbold's 40th Edition at para. 1438A, particularly the dictum of Lord Reid in Sweet v. Parsley (1969) 53 Cr. App.R. 221 at page 225 which is therein cited. He referred me to Warner's case (1969) 2 A.C. 256; R. v. Marriot (1971) 1 W.L.R. 187 and Sulman v. R. (1977) H.K.L.R. 214, a decision of the Court of Appeal in Hong Kong.

106. In Sulman's case, Pickering J.A. at page 218 of the report said:

"When the Legislature steps upon ground which involves the liberty of the subject if is treading sacred ground. It is however competent to the Legislature to secularize the grounds by the creation of a presumption or of an offence of strict liability and that is a competence of which the Legislature of this territory, no doubt quite appropriately, has availed itself relatively widely, in regard to some of the more serious evils affecting our community such as, to mention only two, dangerous drugs and firearms, It is for the courts to apply the law giving full recognition to such encroachment upon the ordinary requirements of mens rea but it is equally for the courts to repel an invasion of that historic and elementary requirement of a crime unless it be entirely clear that an offence of strict liability has been in fact created. In the case of section 42(2)(c)(i) of the Immigration Ordinance we find no such clarity of intention."

107. Mr. Hazan considered it unjust in the extreme that a citizen could find himself liable to a fine of $10,000 and imprisonment for 12 months where he has no criminal intent.

108. Mr. Lucas countered this argument by saying that the essence of the offence was "possession" and all the court had to do was to consider the meaning of possession. He referred the court to the article, "Possession and Section 28 of the Misuse of Drugs Act, 1971" by Ribeiro and Perry appearing in 1979 Criminal Law Review at page 90 where the authors discuss "ideal possession" and "strict possession."

109. Mr. Lucas' principal argument, put briefly, was that Warner's case covered the situation. He pointed out that section I(1) of the Drugs (Pre-vention of Misuse) Act 1964 which enacts:

".... it shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act unless ....."

is more akin to section 23 of the Pharmacy and Poisons, Ordinance, Cap. 118.

110. He submitted that whereas controversy has ranged on what one might call the "container argument" in Warner's case, nevertheless the definition of possession as laid down in that case remains unaffected.

111. Mr. Lucas referred to various passages in Warner's case in his argument that strict liability is the order of the day under Cap. 118. The judgments were extensively cited including that at page 300 where Lord Guest said:

"	In construing the section certain considerations have to be borne in mind. The title of the Act is Drugs (Prevention of Misuse) Act, 1964" and the long title is "An Act to penalise the possession, and restrict the importation. of drugs of certain kinds." The title thus indicates that the evil is the misuse of the drugs and that their possession is to be penalised. The actual words of section 1(1) 'It shall not be lawful for a person to have in his possession' a prohibited substance could not make it clearer that subject to certain exemptions the possession of pro-hibited drugs is an offence. With respect to those who hold that this is not an absolute offence I cannot conceive of any words which could make the offence more absolute. It is as absolute as it can be. I am not inclined to place much weight on whether there is or is not a presumption that mens rea is a necessary ingredient in a statutory offence, but if there was, the presumption has to some extent been whittled down in recent years (See Harding v. Price (1968) 1 K.B. 695, 701) and in any event the language of section 1 in my view is sufficient to rebut any such presumption. The very doing of the act, as has been said, imputes mens rea. Other factors which are relevant to be taken into account are the mischief aimed at and the object of the prohibition. The mischief is clearly the unauthorised possession of the drugs which are injurious to health unless administered under prescription. The social evil of the trafficking of drugs is clearly struck at.
	Last, but by no means least, there must be consideration of the case of evasion of the offence if mens rea is required. The very nature of the drug, namely, small pills, makes secretion easy and detection difficult. If the correct interpretation of section 1 is that the prosecution are required to prove knowledge by the accused of the existence of the substance this will be, in my view, a drug pedlar's charter in which a successful prosecution will be well-eigh impossible in the case of the trafficker who conceals the drugs and on questioning remains silent or at any rate refuses to disclose the origin of the drug. If the offence involves knowledge, this knowledge must extend not only to the prohibited act but to the totality of the prohibition (See Gaumont British Distributors Ltd. v. Henry (1939) 2.K.B. 711). If, therefore, this is not an absolute offence the prosecution will, in my view, require to establish knowledge by the accused not only of possession of the actual substance but also knowledge of the nature of the substance, namely, that it is a prohibited drug under the Act. This would, in my view, lead to wide-scale evasion of the Act. The test has sometimes been put as to which interpretation would best assist in achieving the object of the Act (See Lim Chin Aik v. The Queen (1963) A.C. 160,174, per Lord Evershed). To this question I unhesitatingly answer that the offence is absolute. In fact, I would go further and say that to require mens rea would very largely defeat the purpose and object of the Act."

112. It was the argument of Mr. Lucas that irrespective of whether the offences were offences of absolute liability or not there was no question but that the appellants were in possession of the pills.

113. In developing his argument on the meaning of possession he referred to the dictum of Lord Pearce in Warner's case at page 305 of the report. There Lord Pearce said:

"I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance of mistake as to its qualities is not an excuse. This would comply with the general understanding of the word 'possess'. Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believe them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide its sensibly in favour of the genuinely innocent but against the guilty."

114. I realise I have eclipsed Mr. Lucas' able argument and I hope I shall be forgiven for doing So. He referred me to Searle v. Randolph (1972) Cr.L.R. 779 which held, applying Warner's case and distinguishing R. v. Marriot (1971) 1 W.L.R. 187, that the difference between a cigarette end composed of or filled wholly with tobacco and one filled with a substance including cannabis was the same kind of distinction between an aspirin tablet and a heroin tablet. The prosecution in that case were not required to prove knowledge by the defendant that the end contained cannabis.

115. Another case cited was R. v. Fernandez (1970) Cr.L.R. 277 (C.A.)

116. On these authorities, as well as that of the Privy Council in the case of D.P.P. v. Brooks (1974) 2 W.L.R. 899, I would have found, had such been necessary that the appellants assuming them to have been unaware of the presence of Indomethacin within the pills were nevertheless in possession of them for the purpose of section 23 of the Ordinance.

117. Perhaps it is a matter for some regret to counsel that, after all their researches, this court has not found it necessary to give a definitive ruling on whether Cap. 118 creates offences of absolute liability. Had such been necessary I would have done so.

118. The admitted facts in this case did not lead the magistrate to believe the appellants were not in possession of the drugs seized from their offices nor that they had not been in possession of the tablets sold. This was understandable enough. They were, after all, the manufacturers of the drug. Even if I put aside for the moment my finding of mens rea on the ground the poison was deliberately inserted, there was ample evidence for the learned magistrate to conclude these appellants possessed the medicines within the definition of "possession" as laid down by the cases to which I have referred.

119. One matter I have not dealt with. It is this: Are the offences created by the sections offences of absolute liability?

120. Mr. Lucas contends for the reasons I have adumbrated that that is the case. Mr. Hazan maintains a contrary view. He says it would be grossly unjust for a woman to be convicted simply because she picks up the wrong prescription at the Chemist. He says the law would be bizarre if a person charged with possession of dangerous drugs could be acquitted if he showed he did not know that what was in his possession were dangerous drugs but would be guilty if it were a Part I poison.

121. A ruling on the point of absolute liability is not required in this appeal, even though I take the view that the observations of Lord Guest at page 300 of the report in R. v. Warner are cogent and persuasive.

122. The matter would be determined by the principles of statutory inter-pretation but the policy of the Act is not irrelevant. It used to be the view that one looked at the intention of Parliament at the time the Act was passed. Even if that rule is more honoured in the breach than in the observance and one looks at the Act in today's light it could not be said that the conditions prevailing today are any the less important.

123. In these days of experimentation where new medicines are put on the market almost daily and where some have inflicted irreversible consequences the State should, in my opinion sacrifice the doctrine of mens rea for the welfare of unsuspecting consumers. Those who take dangerous drugs usually do so by election whereas those who take medicine do so from necessity. The evils which may flow from contraventions of the Pharmacy and Poisons Ordinance can be incalculably greater.

124. These appeals against conviction are dismissed.