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
CRIMINAL APPEAL NO. 1129 OF 1979
|Tai Muk-kwai trading as Nan Lien Pharmaceutical Co. and Shun Yuen (Overseas) Trading Co. Ltd.
Coram: Addison, J.
Date of Judgment: 19 March 1980
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:
||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;
||that Tai Muk-Kwai was the sole proprietor of the Nan Lien Pharmaceutical Co.;
||that Shu Joan Chang was the manager of Shun Yuen (Overseas) Trading Co., Ltd. and the assistant manager of Nan Lien Pharmaceutical Co.;
||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;
||that the items in (iv) above were sealed and sent to the Government Chemist for analysis; and
||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
||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:
||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;
||that they were sent to the Government Chemist for analysis;
||that the certificates of the Government Chemist, Dr. Ko, certified the presence of Indomethacin in the respective bottles; and
||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:
||the infra-red absorption spectrum;
||the light absorption with hydrochloric acid;
||a dissolving test with methyl alcohol; and
||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...