HKSAR v. HIN LIN YEE AND ANOTHER

HKSAR v. HIN LIN YEE AND ANOTHER

The court held that the common law defence is inapplicable to safety legislation so the offences of selling drugs unfit for use were absolute and the elements of those offences were proved; the 1st Appellant failed to prove the statutory due diligence defence as to possession of an unregistered pharmaceutical product; accordingly convictions were upheld, but sentences were reduced because the trial findings of deliberate adulteration could not be supported and mitigation (including publicity and lack of proven motive or serious harm) warranted lower fines.

Citation
HKSAR v. HIN LIN YEE AND ANOTHER
Parties
Respondent: HKSAR; 1st Appellant: Hin Lin Yee; 2nd Appellant: Lo Siu Kuen
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 May 2009
Case Number
HCMA574/2008
Procedural Posture
Magistracy Appeal (criminal) / Appeal Against Conviction and Sentence (judgment on Appeal)
Outcome
Convictions upheld; appeal allowed in part on sentence and sentences varied
Legal Topics
Absolute Liability, Statutory Defence (due Diligence), Registration of Pharmaceuticals, Adulteration of Drugs, Appeal Against Findings of Fact, Mitigation and Sentence Reduction
Source Language
EN
Criminal Law Pharmacy and Medicinal Regulation Public Health Law Sentencing Law Absolute Liability Statutory Defence (due Diligence) Registration of Pharmaceuticals Adulteration of Drugs +2 more

Case Brief

Summary, issues, holding and outcome

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Parties

HKSAR

Respondent

Hin Lin Yee

1st Appellant

Lo Siu Kuen

2nd Appellant

Procedural Posture

Magistracy Appeal (criminal) / Appeal Against Conviction and Sentence (judgment on Appeal)

Legal Issues

  1. 1 Whether the Magistrate's findings of deliberate adulteration and cover up were supported by material and properly put at trial
  2. 2 Whether the common law defence of honest and reasonable mistake applies to safety legislation
  3. 3 Whether the 1st Appellant established the statutory defence of lack of knowledge and reasonable diligence regarding registration

Ratio Decidendi

The court held that the common law defence is inapplicable to safety legislation so the offences of selling drugs unfit for use were absolute and the elements of those offences were proved; the 1st Appellant failed to prove the statutory due diligence defence as to possession of an unregistered pharmaceutical product; accordingly convictions were upheld, but sentences were reduced because the trial findings of deliberate adulteration could not be supported and mitigation (including publicity and lack of proven motive or serious harm) warranted lower fines.

Court Disposition

Convictions upheld; appeal allowed in part on sentence and sentences varied

Orders

  • Convictions on all summonses against both Appellants upheld
  • 1st Appellant: fine for possession of unregistered product reduced from HK$20,000 to HK$15,000