Features

Selling drug intended for human use but unfit for purpose – Possession for sale of drug not registered by manufacturer with Pharmacies and Poisons Board – Medicine sold contaminated with alcohol – Defendants alleged to be unaware of contamination and relied on medicine having been obtained from reputable supplier – Whether defendants caused contamination deliberately – Whether presumption of mens rea displaced – Whether statutory defence of due or reasonable diligence available – Whether common law defence of honest and reasonable but mistaken belief of compliance available – Liability of agent

HIN LIN YEE v HKSAR [2010] 3 HKC 403

Court of Final Appeal
Final Appeal No 7 of 2009 (Criminal)
Bokhary, Chan & Ribeiro PJJ, Litton & Lord Hoffmann NPJJ
8, 26 March 2010

Gerard McCoy SC, Douglas Jones (Richards Butler) for the appellants.
Kevin Zervos SC, Vinci Lam (Department of Justice) for the respondent.

The 1st appellant was a medical practitioner and the 2nd appellant was an assistant in his clinic. Both appellants were convicted of selling a drug intended for use by man but unfit for that purpose under s 54(1) of the Public Health and Municipal Services Ordinance (Cap 132). The case against the 1st appellant was that he had prescribed for children, and accordingly sold to their parents or guardians, a drug which was contaminated with alcohol. The 2nd appellant’s conviction was based on the contention that she had engaged in selling the contaminated medicine. The 1st appellant was also convicted of possessing for sale a drug which had not been registered by the manufacturer with the Pharmacies and Poisons Board under reg 36(1) of the Pharmacy and Poisons Regulations (Cap 138A). The allegation was that four bottles of medicine, where the contaminated drug originated from and which contained an unregistered substance were found in the 1st appellant’s clinic.

During trial, the appellants’ case for the s 54(1) offence was that they were unaware of the contamination and that they were entitled to rely on a common law defence on the basis that they had honestly and reasonably believed the medicine to be fit for its purpose when sold to the patients. In relation to the offence under reg 36(1), the 1st appellant’s case was that he was unaware that the drug was unregistered and that he had obtained the drug from a reputable, long-standing and trusted supplier. He accordingly relied on the statutory defence on the basis that he did not know and
could not with reasonable diligence have discovered that the substance in question was not registered.

On appeal (see [2009] HKCU 774), the judge held that the basis for the magistrate’s finding could not stand as the magistrate wrongly concluded that the contamination was intentional by the appellants. He nevertheless held that the convictions should be sustained. He decided that s 54(1) created an offence of absolute liability and the common law defence had no application to safety legislation, following the Court of Appeal’s decision in HKSAR v Shun Tak Properties Ltd [2009] 3 HKLRD 299. The judge also confirmed the conviction under reg 36(1) that on the evidence the 1st appellant could not bring himself within the statutory defence. The appellants appealed and the central issue of contention was whether the common defence was available to the appellants against the offence under s 54(1).

Held, unanimously dismissing the 1st appellant’s appeal and dismissing, by majority (Bokhary PJ dissenting), the 2nd appellant’s appeal:
Per Ribeiro PJ
The proper starting-point for ascertaining the mental requirements of any statutory offence or any external element of such an offence was to presume that the prosecution must prove mens rea in respect thereof. That presumption may be displaced expressly or by necessary implication. If it was not displaced, the mens rea requirement persisted.

If the presumption was displaced, three possible alternatives arose under Hong Kong law, namely whether the legislative intent was (i) to allow a defence if the defendant could prove on the balance of probabilities that the prohibited act was done in the honest and reasonable belief that the circumstances were such that, if true, he would not be guilty of the offence; or (ii) to confine the defences open to the accused in relation to his mental state to the statutory defences expressly provided for in relation to the offence charged; or (iii) to make the offence one of absolute liability so that the prosecution succeeded if the accused was proved to have performed or brought about the actus reus, regardless of his state of mind.

On its true construction, a statute may expressly or by necessary implication provide for special defences which represented its own halfway house, to the exclusion of any other possible middle course. The key question was whether the statutory defence, properly construed, was inconsistent with the availability of the common law defence. If so, only the statutory defence could be relied on.

The suggestion that the common law defence be excluded broadly in cases of safety legislation could not be supported. A desire to avoid complexity in summary trials was not an acceptable basis for treating all regulatory offences as offences of absolute liability. It did not justify convicting defendants who had demonstrably acted reasonably, diligently and without actual fault. Further, in the context of industrial safety, there may be sound reasons for concluding that some offences were absolute, but the compelling rationale of a halfway house was that the statutory objectives may well be attainable by adopting an intermediate basis of liability in many, if not most, cases.

In the present case, the presumption of mens rea was displaced in relation to s 54(1)(a)’s requirement that the medicine sold be unfit for human use. The legislative intent was to confine the defences available to those contained in ss 70 and 71 of the Public Health and Municipal Services Ordinance, such defences being inconsistent with the concurrent availability of the defence of honest and reasonable belief.

The appellants had not brought themselves factually within either ss 70 or 71 and the 1st appellant had no reasonable prospect of being able to do so if given an opportunity to attempt this on a trial. Likewise, for the offence under reg 36(1), the 1st appellant could not establish a defence under reg 36(1C) as he was unable to show that he could not have discovered with reasonable diligence that the substance in his possession had not duly been registered.

Per Bokhary PJ (dissenting)
As a general rule, an agent for a disclosed principal did not incur even civil liability. It was no small matter, therefore, to arrive at a construction under which a morally blameless agent incurred criminal liability. There were insufficient findings of primary fact to support a sure conclusion that the assistant sold within the meaning of the provision under which she was charged. Nor were there sufficient findings of primary fact on which to decide what measure would in a situation like the assistant’s have a deterrent effect such as to render criminal liability conformable with freedom of the person and not arbitrary. The law should not dissipate its energies by fixing criminal liability on morally blameless people to no useful purpose. For the law to do that in a context like this would be grossly prejudicial not only to justice but also ultimately to public health and safety.