Tan Gek Young v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 17 August 2017
• Neutral Citation: [2017] SGHC 203
• Plaintiff Counsel: Christopher Chong, Amogh Chakravarti and Toh Cher Han (Dentons Rodyk & Davidson LLP)
• Date: 17 August 2017
• Docket Number: Magistrate’s Appeals Nos 9016 of 2017/01 and 9016 of 2017/02
• Hearing Date: 17 May 2017
• Subject Matter: Sentencing,Criminal Procedure and Sentencing
• Published date: 22 August 2017
• Defendant Counsel: Tan Wen Hsien and Grace Lim (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 203
• Year: 2017

Chao Hick Tin JA: Introduction

The appellant in the first appeal, and the respondent in the second, is Tan Gek Young (“Tan”), a doctor who, over a period of 15 months from 2014 to 2015, sold more than 2,300 litres of cough preparations for non-medical purposes.

Following investigations, the Health Sciences Authority (“HSA”) tendered 55 charges against Tan. Its prosecuting counsel proceeded with 15 charges, to which Tan pleaded guilty. These comprised 12 charges under s 6(1)(a)(i) of the Poisons Act (Cap 234, 1999 Rev Ed), two charges under s 6(3)(b) of the Poisons Act, and one charge under s 24 of the Medicines Act (Cap 176, 1985 Rev Ed). Tan also consented to 40 charges being taken into consideration for the purpose of sentencing (“TIC charges”). Of these, 36 were under s 6(1)(a)(i) of the Poisons Act, two were under s 6(3)(b) of the Poisons Act and two were under s 24 of the Medicines Act.

In the court below, the district judge (“DJ”) meted out a global sentence of 24 months’ imprisonment and a fine of $130,000, in default 12 months 4 weeks' imprisonment. (see Public Prosecutor v Tan Gek Young [2017] SGDC 39 (“GD”) at [108]). Both Tan and the Public Prosecutor (“PP”) filed appeals against the sentence. The first appeal was filed by Tan, while the second was filed by the PP. They relate, respectively, to the excessiveness or inadequacy of the sentence imposed by the DJ. As this appears to be the first time a case concerning the illicit supply or sale of cough preparations has reached the High Court, I reserved judgment to consider the applicable sentencing principles more fully. I now give my judgment, beginning with the facts.

Facts

At the time of the offences, Tan was a Singapore Permanent Resident running a medical practice at Meridian Polyclinic & Surgery (“the clinic”), which is located at Block 136 Bedok North Avenue 3 #01-162, Singapore.¹ He would have been between 59 and 60 years of age at the time of the offences given that he was 61 years old at the time of sentencing. The offences were committed at the clinic over some 15 months during the period between January 2014 and June 2015. They came to light following two sets of investigations by the HSA. The first set of investigations concerned the period from January to July 2014 (“the first period”) and the second concerned the period from October 2014 to June 2015 (“the second period”).

The HSA learnt in March 2014 that the clinic was selling unlabelled bottles of cough preparations containing codeine (henceforth referred to as “codeine cough preparations”) to abusers. Codeine is a poison listed in the Schedule to the Poisons Act. On 15 July 2014, its enforcement officers, together with officers from the Central Narcotics Bureau, conducted a joint operation at the clinic.² The officers apprehended a number of abusers leaving Tan’s clinic. HSA's officers also inspected the clinic’s records and discovered a large quantity of codeine cough preparations that the clinic had sold and which was unaccounted for.³

Though aware that he was being investigated, Tan nevertheless, after a pause, resumed selling codeine cough preparations in October 2014. At first, he sold it in 90-ml bottles as he had done before. But from December 2014, Tan began selling codeine cough preparations in 3.8-litre canisters. Between December 2014 and June 2015 he purchased 400 canisters of such preparations from different companies (amounting to some 1,600 litres) and, in the same period, resold about 200 of the canisters to abusers.⁴ In the meantime, he was also selling unlabelled 90-ml bottles of codeine cough preparations to individual abusers. Over the first and second periods, he would sell each unlabelled 90-ml bottle for about $25 to $30 (but only for $15 if it were sold to a genuine patient),⁵ and each 3.8-litre canister for about $1,000 to $1,100.⁶ Tan knew that, other than the genuine patients, those to whom he had sold the bottles of codeine cough preparations were abusing it and were not using it for treatment of cough.⁷ He also knew that some of the abusers to whom he had sold codeine cough preparations in canister form were re-selling the cough preparations to other abusers.⁸

The charges

The HSA’s prosecuting counsel proceeded on 12 charges under s 6(1)(a)(i) of the Poisons Act and two charges under s 6(3)(b) of the same Act. The material part of s 6 reads:

Prohibitions and regulations with respect to sale of poisons

6.—(1) It shall not be lawful — (a) for any person to sell any poison unless — (i) he is licensed under this Act to sell poisons;

…

(3) Subject to any rules made under this Act dispensing with or relaxing any of the requirements of this subsection — (a) it shall not be lawful to sell any poison to any person unless that person is known to the seller or to some pharmacist in the employment of the seller at the premises where the sale is effected, or is introduced by some person known to the seller as a person to whom the poison may properly be sold; and (b) the seller of any poison shall not deliver it until — (i) he has made or caused to be made an entry in a book to be kept for that purpose stating the date of the sale, the name and address of the purchaser and of the person, if any, introducing him, the name and quantity of the substance sold and the purpose for which it is stated by the purchaser to be required; and (ii) the purchaser and the person introducing him, if any, have affixed their signatures to that entry.

Under s 16(1) of the Poisons Act, a person who contravenes s 6 commits an offence and is liable to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both. There is an exemption in s 7(1)(a) of the Poisons Act, which says: “nothing in section 6 shall apply…to a medicine which is supplied by a medical practitioner for the purposes of medical treatment of his own patients”. That exemption is inapplicable to the present case. It is an admitted fact that none of the sales of codeine cough preparations forming the basis of the charges brought against Tan under s 6 of the Poisons Act were for medical treatment.⁹

The HSA's prosecuting counsel also proceeded on one charge under s 24 of the Medicines Act which reads:

Sale or supply of medicinal products not on general sale list

24. Subject to any exemption conferred by or under this Part, on and after such day as the Minister may appoint for the commencement of this Part (referred to in this Part as the appointed day) no person shall sell by retail or supply in circumstances corresponding to retail sale any medicinal product which is not a medicinal product on a general sale list, unless — (a) the product is sold or supplied on premises which are a registered pharmacy; and (b) that person is or acts under the personal supervision of a pharmacist.

A person who contravenes s 24 of the Medicines Act is liable to be punished with a fine not exceeding $5,000, or imprisonment for a term not exceeding 2 years, or both (see s 35(3) Medicines Act).

The charges proceeded with

I will now set out, briefly, the salient facts of the 15 charges proceeded with, starting with the 12 charges that were brought under s 6(1)(a)(i) of the Poisons Act: 1st charge:¹⁰ On 15 July 2014 at about 2pm, Tan sold 10 unlabelled 90-ml bottles of codeine cough preparations to an abuser of such preparations named Lou for $300. 3rd charge:¹¹ On 15 July 2014 at about 2:35 pm, Tan sold three unlabelled 90-ml bottles of codeine cough preparations to an abuser named Ong for $90. 7th charge:¹² In April or May 2015, Tan sold one 3.8-litre canister of codeine cough preparation to an abuser named Kelvin for $1,000. 12th, 14th, and 16th charge:¹³ On three separate occasions in each month of April, May, and June 2015, Tan sold one 3.8-litre canister of codeine cough preparation to an abuser named Chiam. 18th, 20th, 28th, 36th, 44th, and 52nd charge:¹⁴ On each of the six monthly occasions between January and June 2015, Tan sold six 3.8-litre canisters of codeine cough preparation to a person named Chew, charging $1,100 for each canister. Tan was told by Chew that the latter would resell the purchased codeine cough preparations to colleagues and friends.¹⁵ I should add that Tan had, in fact, during the four months from February to May 2015, effected four sales each month to Chew involving six 3.8-litre canisters of codeine cough preparations each time. HSA's prosecuting counsel chose only to proceed with the charges arising from the first occasion of sale in each of the months from February to May (and from the single occasions of sale in January and June). Hence, there were 12 additional charges arising from this period which were not proceeded with but only taken into consideration for the purposes of sentencing – see [15] below.

A single charge was brought under s 24 of the Medicines Act: 9th charge:¹⁶ On one occasion between February and April 2015, Tan supplied one 3.8-litre canister of cough preparations to an abuser named Nigel without charge.

The remaining two charges, which were brought under s 6(3)(b) of the Poisons Act, are as follows: 5th charge: From 1 January 2014 to 15 July 2014, Tan sold codeine cough preparations amounting to an estimated 1,175,825ml without recording the sales in the clinic’s daily dispensing register. These unrecorded sales were discovered when the investigating team inspected the clinic’s dispensing register during their visit on 15 July 2014. The HSA’s investigations revealed that he had, in this period, bought about 309 canisters of codeine cough preparations at about $39 each and sold about 13,064¹⁷ 90-ml bottles of codeine cough preparations. In HSA's calculations, the cost of all the canisters would have been about $12,067 and the sales would thus have yielded Tan a profit of between $314,550.38 (assuming he...