HKSAR v. LUI WING CHEUNG

HKSAR v. LUI WING CHEUNG

Magistrate's credibility findings that no superior granted authority were upheld on rehearing; appellant's assertions of permission and mistaken belief were unsupported by evidence and contradicted by hospital and supervisory testimony, and atropine was not supplied at the prison so s.23 liability stands; sentencing adjusted where appropriate – custodial sentence for possession in locker (quantity and bags indicative of supply) was justified, but lesser penalties fit for the minor on-person tablets and for possession of atropine as a Part 1 poison.

Citation
HKSAR v. LUI WING CHEUNG
Parties
Respondent: HKSAR; Appellant: LUI Wing-cheung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 May 2009
Case Number
HCMA623/2008
Procedural Posture
Criminal Appeal / Appeal to Court of First Instance Against Convictions and Sentences Imposed by Magistrate
Outcome
Convictions on all three charges confirmed; appeal against sentences partially allowed.
Legal Topics
Introducing Unauthorised Articles Into Prison, Possession of Prohibited Articles by Prison Officer, Possession of Part 1 Poison, Mistaken Belief Defence, Authority/delegation (carltona), Sentencing for Abuse of Trust
Source Language
EN
Criminal Law Prisons Law Pharmacy and Poisons Law Sentencing Introducing Unauthorised Articles Into Prison Possession of Prohibited Articles by Prison Officer Possession of Part 1 Poison Mistaken Belief Defence +2 more

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Parties

HKSAR

Respondent

LUI Wing-cheung

Appellant

Procedural Posture

Criminal Appeal / Appeal to Court of First Instance Against Convictions and Sentences Imposed by Magistrate

Legal Issues

  1. 1 Whether appellant had actual or delegated authority to possess and introduce the items
  2. 2 Whether a defence of reasonable mistake (mistaken belief of authority) was available
  3. 3 Whether possession of atropine was lawful under the Pharmacy and Poisons Ordinance

Ratio Decidendi

Magistrate's credibility findings that no superior granted authority were upheld on rehearing; appellant's assertions of permission and mistaken belief were unsupported by evidence and contradicted by hospital and supervisory testimony, and atropine was not supplied at the prison so s.23 liability stands; sentencing adjusted where appropriate – custodial sentence for possession in locker (quantity and bags indicative of supply) was justified, but lesser penalties fit for the minor on-person tablets and for possession of atropine as a Part 1 poison.

Court Disposition

Convictions on all three charges confirmed; appeal against sentences partially allowed.

Orders

  • Convictions on Charges 1, 3 and 4 affirmed
  • Sentence on Charge 1 set aside and substituted with fine of HKD 5000