Ho Tao v. The Queen
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CACC000696/1982
BETWEEN:
Coram: Roberts, C. J. Date: 10 September 1982 ----------------- JUDGMENT ----------------- [Possession of antibiotics and poisons.] Preliminary 1. The appellant was convicted of three charges -
2. He was fined $750 on the first charge, $750 on the second and $1,000 on the third. He appealed against conviction on all three charges. During the course of the hearing he applied for leave to appeal against sentence out of time which leave was granted. First Charge (Unlicensed Clinic) 3. It was not disputed by the appellant at his trial that he was running a "clinic" in the general sense of that word; nor did he dispute that his "clinic" was unregistered. His defence was that it was exempt from registration since he was only practising Chinese medicine there. 4. A clinic is exempt from registration, by virtue of section 2(f) of the Medical Clinics Ordinance, if it consists of premises, which word is so defined as to include a "vehicle" whether this is mobile or not, used exclusively for treatment given according to purely Chinese methods, by persons entitled under section 31 of the Medical Practitioners Ordinance to practise medicine or surgery according to purely Chinese methods. 5. The appellant conceded that he had been running a clinic for many years in Hong Kong. So the question which the magistrate had to decide was the kind of medicine which he was practising in his clinic on the day in question. Was he using his premises exclusively for treatment given according to purely Chinese methods, which he was entitled to do, or was he practising western medicine, which he was not. 6. On the 1st September, 1981, the van in which the appellant operated his clinic was visited and searched by Woman Police Inspector Butt and Dr. Chan, a representative of the Medical and Health Department. When the van was searched, the drugs listed in the second and third charges were discovered in it. 7. According to the prosecution witnesses, the drugs were found in different places inside the van, whereas the appellant insisted that they were all found in his brief case. The magistrate accepted the evidence of the prosecution witnesses to this effect and rejected the appellant's defence that all these drugs were in his possession for his personal use and not for prescribing to his patients. 8. On the first charge, the Crown's case rests on several pieces of evidence; on the finding of the drugs which were listed in the second and third charges; on the finding of medical equipment, consisting of a stethoscope and a hypodermic syringe and needles; on labels which described the clinic as the "Tuen Mun Castle Peak Bay Clinic In Charge HO To-sang"; and on admissions in letters which were said had been written to Inspector Butt and the D.M.H.S. though these letters do not appear to have been produced in evidence, to the effect that he had been operating a combined Chinese and western clinic. 9. There was no evidence as to whether the practice of medicine or the treatment of patients by purely Chinese methods can include the use of a stethoscope and of hypodermic syringes. The possession by the appellant of these therefore must be regarded as neutral. 10. The labels are also neutral in that they describe the appellant as being in charge of a clinic, a word which could be applied in a non-technical sense to a place where either Chinese or western medicine or both are administered. 11. Dr. Chan, the Crown witness from the Medical and Health Department agreed that the van bore the Chinese characters "Chinese Doctor"; but did not recall whether he had seen any Chinese herbs or medicine in the van. 12. At the resumed hearing before me today," Mr. Osborne, for the Crown, conceded, very properly in my view, that the conviction on this charge could not be supported. He did not feel that he could argue that the magistrate would necessarily have reached the same conclusion if, he had had, as I have had, the benefit of the translation of a document which was produced in evidence by the appellant during the trial. This document is described as an "out-patient's handbook", and appears to have been issued by the Guangszhou Zhu Jian Overseas Chinese Hong Kong and Macau Compatriots Hospital. It is called "Out-Fatients Hand Book" and shows that the drugs which were seized in the van on the 1st September had all been prescribed for-him at this hospital. 13. The handbook is in the name of the appellant "HO Tao". The entry in it is dated the 16th August, 1981, slightly over two weeks before the date on which the van was searched. The handbook contains a list of drugs said to have been prescribed by Dr. YU Hung - kay for the appellant. 14. It lends powerful support to the appellant's contention that all the drugs found in the van-had been prescribed for him for his own use. As there was no evidence before the magistrate as to the precise number of tablets which were so found, it must be inferred in the appellant's favour that the quantities of drugs found in the van were less than those which had been prescribed for him by Dr. Yu in China. 15. If the magistrate had had the advantage of seeing a translation of this book, I think that he would have reached the conclusion that the drugs found in the appellant's possession were wholly for his own consumption. Had he done so, he might very well have decided that t-the first charge, was not proved since clearly one of the most important elements in his finding of guilt was that the appellant was dispensing western drugs of the nature found in the van and that from this an inference should be drawn, apart from the other pieces of evidence, that the appellant was practising western medicine. 16. I agree with counsel for the Crown that for these reasons it would be unsafe to uphold the conviction on the first charge and therefore allow the appeal and quash the conviction on that charge. 17. The other two charges have raised problems of interpretation of the relevant ordinances of some difficulty. Second Charge (Antibiotics) 18. The certificate of the Government Chemist, which was tendered in evidence by the Crown, establishes that the medicines which were seized from the appellant's van were of the kind specified in the second and third charges. Section 5(1) of the Antibiotics' Ordinance (Cap. 137) reads -
19. Sub-section (2) sets out a list of persons who are exempt from sub-section (1). These include doctors, dentists, veterinary surgeons, pharmacists and authorized sellers of poisons. They do not, in terms, exempt a patient who may be in possession of an antibiotic in pursuance of a prescription properly issued by a medical practitioner. 20. My attention was drawn to section 5(2)(h), which exempts from section 5(1) a person "acting under the direction" of a registered medical practitioner, registered dentist or veterinary surgeon. I was invited to find that this paragraph was in sufficiently wide terms to cover a patient who had acquired drugs under the authority of a prescription issued to him by his doctor. 21. I think that this would be an unnatural stretching of the phraseology of the paragraph, which I consider is intended to protect such persons as nurses dental assistants and veterinary assistants who work closely with doctors, dentists or vets. I do not think that that paragraph was meant to cover a patient in possession of properly prescribed drugs. Third Charge (Poisons) 22. A similar difficulty arises in the interpretation of the Pharmacy and Poisons Ordinance. The appellant was convicted of an offence against section 23 of that Ordinance (Cap. 138) which provides that-
23. Although both counsel have undertaken a careful research of the Ordinance and its regulations, neither was able to find, nor have I been able to do so, any provision which gives protection to a person who is in possession of Part I poisons under the authority of a prescription given by a registered medical practitioner, dentist or veterinary surgeon. 24. Section 28 of the Pharmacy and Poisons Ordinance confers certain exemptions with regard to medicines supplied by doctors and others. Unfortunately, section 28 confers these exemptions only in relation to sections dealing with the obligations of sellers of poisons. Gap in legislation 25. If my interpretation of these ordinances is correct, there is an unfortunate gap in both of them. As a matter of common sense, it could never have been the intention of the Legislature to impose a criminal liability on a patient in possession of antibiotics or Part I poisons, duly prescribed for him by a registered medical practitioner. Nevertheless, on a strict interpretation of these ordinances, that appears to be the case. It is perhaps an error which the Legislature might care to consider putting right. In the meantime, I have no doubt that the good sense of the Crown Law Office will prevent large numbers of innocent citizens from being prosecuted for possession of antibiotics or Part I poisons properly prescribed for them by their doctors. Prescriptions outside Hong Kong 26. Because I have come to this view, it is not necessary for me to consider whether in law, at present, there is a difference between drugs prescribed by a doctor in Hong Kong and drugs prescribed by one practising outside Hong Kong. 27. Generally, both Ordinances do make a distinction between “registered medical practitioners" and other doctors. If steps were taken to legitimize the possession of antibiotics and poisons, prescribed by registered medical practitioners, who operate within Hong Kong, it would be necessary to consider whether this protection should be extended to drugs prescribed by doctors who practise outside Hong Kong, in view of the widely different standards which apply in different countries. It would, if it were not, be left to the discretion of the Crown Law Office to decide whether or not to prosecute, bearing in mind the circumstances of each case. Conclusion 28. Reaching the conclusion which I have done as to the meaning of these ordinances, I have no alternative but to sustain the conviction on the second and third charges, being satisfied as I am and, indeed, this was not disputed by the appellant, that he was in possession of the drugs concerned. I consider that this is one of those exceptional cases in which I should exercise the power conferred by section 36 of the Magistrates Ordinance, by reason of the extenuating circumstances under which the offence was committed. 29. I cannot but feel that had the Crown, before the institution of this prosecution, known that the appellant was in possession of these drugs as the result of a prescription issued to him in China, it would not have proceeded further. 30. I should make it clear, however, that the course which I have taken is not to be regarded as setting a standard for persons convicted of possession of drugs prescribed for them by overseas doctors. In other cases substantial penalties may be appropriate, even though the defendant can produce evidence that the drugs concerned were prescribed for him by a doctor abroad. 31. In relation to the second and third charges therefore. I dismiss the appeal against conviction but allow the appeal against sentence. I make an order discharging the appellant absolutely on both charges, without recording any conviction. Representation: D. MacKenzie-Ross (D.L.A.) for Appellant R.A. Osborne Crown Counsel for Respondent. |