HKSAR v. Ng Hon Wai

HCMA 623/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 623 OF 2010

(ON APPEAL FROM ESCC 3134/2010)

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Before: Deputy High Court Judge E Toh

Date of Hearing: 11 February 2011

Date of Judgment: 11 February 2011

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrate’s Court to one charge of possession for sale, or for any purpose of trade or manufacture, goods to which a forged trade mark was applied; a charge of selling a Part I poison otherwise than in the presence and under the supervision of a registered pharmacist; and a charge of selling a 3^rd Schedule Poison without the authority of a prescription.

2.The facts which were admitted was very simply this.  On the day of the offence, a team of Customs officers were conducting an anti-counterfeit operation in the Causeway Bay area.  At about 5:20 pm on that day, a Customs officer entered a dispensary in which the Appellant was working and conducted a test buy.  The Appellant was standing behind a counter and the Customs officer successfully purchased a box containing four tablets of suspected counterfeit Viagra for $380 from the Appellant.  The Appellant at that time did not ask for a prescription.

3.Later on the same day, the Appellant was cautioned and arrested.  Under caution, the Appellant admitted that he was working at the dispensary as a salesperson and the four tablets belonged to him. 

4.The four tablets were later examined by a Government Chemist, and confirmed to be a counterfeit product and the four tablets were found to contain Sildenafil, which was a Part I poison.

5.Charge 1 was relating to the four tablets of Viagra, and Charges 2 and 3 concerned the sale of there four tablets of medicine containing Sildenafil.

6.The Appellant is 20 years old and had a clear record.  The learned Magistrate then called for a probation officer’s report; a CSO report; a Detention Centre report; a Training Centre report and a Rehabilitation Centre report.  The reports from the Detention Centre, Rehabilitation Centre and Training Centre recommended that the Appellant be admitted to a Rehabilitation Centre and he was found unfit for a Detention Centre. 

7.The probation officer’s report takes the view that the Appellant is of good character and that it was not necessary for him to undergo any counselling or supervision and the probation officer’s view is that the Appellant should be given a Community Service Order for a medium duration, i.e. 81 to 160 hours.  The learned Magistrate noted the probation officer’s report was very much in favour of the Appellant.

8.It is clear from the report that the Appellant comes from a simple but good background.  His mother is a hard-working lady. His father passed away 5 years ago and his elder brother is married and the Appellant lives with his mother and elder brother in a public housing unit. The home is very tidy and simply furnished.  The Appellant had good academic result and after leaving school he was working at various jobs until he landed in this particular dispensary and had been working in that dispensary for about 2 months prior to the offence.  The Appellant’s mother said the Appellant is a filial son and despite his low income he would contribute HK$2,000 to HK$3,000 per month to the family.  He worked long hours and in his spare time he played internet at home or played football with his friends.

9.The Appellant was remorseful, said the probation officer, for what he has done and he said that the pharmacist was on sick leave that day and the employer was out of the shop and he said he merely sold the Viagra tablets without knowing that it was counterfeit. 

10.The probation officer noted that the Appellant has a strong will to reform himself and that is why he did not consider the Appellant needed any counselling or supervision.  That is a very impressive probation officer’s report.

11.The learned Magistrate after considering the various reports, then considered that Charge 1 called for a custodial sentence and at the end of the day, he then accepted the recommendation to send the Appellant to a Rehabilitation Centre and fined the Appellant HK$2,000 on Charge 2 and HK$2,000 on Charge 3.

12.The Appellant now appeals against the sentence basically against Charge 1.  It is clear that the Charge 1 offence is a serious offence and it is also clear that in most cases custodial sentences are called for because the Court had said time and time again that selling counterfeit medicine or vitamins may cause harm to the community at large.

13.However, having said that in sentencing one also has to look at the background of the Appellant and in this case the Appellant is of a young age of 20 years old.  He has had a clear record and he had only worked in the pharmacy for two months.  It is also a fact that the Appellant had no personal gain because the Viagra he sold was really on behalf of the shop because the money went back to the shop.

14.I accept that the Appellant had no prior experience in dispensing this type of medicine and he merely was doing what he thought he ought to do as an employee of the pharmacy.

15.So, in those circumstances, I think this is a case which called for an exceptional circumstance.  I am also very much impressed by the letter from the Appellant’s present employer, the Appellant had been kept in custody for some weeks prior to his being granted bail and when he was given bail, the Appellant then managed to secure for himself a job as a merchandiser since 1 October last year for a restaurant called the Ever Rich Restaurant limited.

16.In the letter, the employer, the Manager of the restaurant had stated his impression of the Appellant.  He said the Appellant worked six days a week 9:00 to 6:00 and that he normally worked overtime whenever necessary and he is not concerned about the actual reward payable to him.  The Appellant had shown himself to be helpful and polite and his character is proper and good.  It is also noted by Mr Tse, the Manager, that the Appellant is a filial son, because he earned only HK$6,000 per month yet he also helped in supporting his mother and family.

17.So, I am therefore prepared in the circumstances to be lenient in this case.  I would allow the appeal.  The sentence of a rehabilitation centre is set aside and the Appellant is sentenced to 100 hours of CSO. 

Ms Lo Shui Ying Sabra, Public Prosecutor, for the Respondent

Mr Richard D Donald, instructed by Messrs Au & Associates, for the Appellant