C. Unlawful sale of Part 1 poisons

C. Unlawful sale of Part 1 poisons

Under section 11 and Part 6 of the Pharmacy and Poisons Ordinance (Cap.138), only registered pharmacists, or premises that are registered with the Pharmacy and Poisons Board as seller of poisons under the Ordinance and the actual sale is conducted by a registered pharmacist or under his supervision may sell poisons.  Such premises must be under the personal control of the registered pharmacist. Any contravention of the above requirements constitutes an offence under sections 21 and 33 of the Ordinance. 

“Sale” means an offer for sale/gratuitous supply, or exposure for sale/gratuitous supply. 

Under section 22 of the Ordinance, an authorised seller of poisons may only sell Part 1 poisons to a fit and proper person who is either duly certified by an authorized person under the regulations or is known to the seller or to a registered pharmacist employed by the seller at the premises where the sale takes place.  The seller must maintain a poisons book recording the date of sale, the name, HKID number andaddress of the purchaser, the name of the person certifying that the purchaser is fit and proper, the name and quantity of the article sold, and the purpose stated by the purchaser to require the poison.  The purchaser and the registered pharmacist must also sign the poisons book. 

If poisons were found in the retail business premises not an authorised seller of poison, every person in that premises is presumed to possess the poison for the purposes of sale unless he proves otherwise (section 24). 

However, sections 21 and 22 do not apply to the sale of poisons by way of wholesale dealing; sales for export; sales to registered professionals (doctors, dentists, veterinary surgeons); or sales to government departments, educational institutions, or persons who require the substance for the purposes of their trade or business. 

Sentencing 

The maximum penalty for unlawful sale of Part 1 poison by an unregistered seller is a fine of $100,000 and imprisonment for 2 years. 

The usual sentence for unlawful sale of a Part 1 poison is immediate imprisonment. While the quantity of poison involved is not the primary consideration, it remains a factor to be taken into account. 

A breach of section 22 by an authorized seller of poisons, including the sale of poisons to persons who do not meet the requirements or the failure to maintain proper records, constitutes a criminal offence punishable by a maximum fine of $5,000. 

Given the seriousness of the offence, the sale of Part 1 poisons is likely to attract immediate custodial sentence; the courts have indicated that community service orders are not appropriate in such cases. 

The prosecution may rely on various evidence to prove that the defendant possessed or sold a Part 1 poison. The most common evidence includes the defendant’s own confession or evidence obtained through so-called “decoy” (or “sting”) operations. 

Upon conviction, the court may order that the convicted person to pay the costs and expenses reasonably incurred in relation to the collection, analysis or examination of poisons, pharmaceutical products, or any other substances for the purposes of the criminal proceedings (section 34A of the Pharmacy and Poisons Ordinance).