OVERVIEW
Under the Pharmacy and Poisons Ordinance (Cap. 138), it is an offence to have in your possession, unless certain conditions are met, certain drugs listed under that Ordinance. Although the penalties are less severe than those under the Dangerous Drugs Ordinance, people may not always be aware of the provisions of this Ordinance.
Sildenafil, for instance, is listed under the Pharmacy and Poisons Ordinance. Sildenafil is the chemical name for the drug whose trade name is Viagra.
The Classification System
How medicines and poisons are classified for retail sale.
The Poisons List in Schedule 10 of Cap. 138A classifies ingredients as poisons.
Part 1 Third Schedule Poison (Prescription)
Prescription-only medicines used for conditions requiring medical diagnosis and management.
Must be sold in a registered pharmacy under the supervision of a registered pharmacist and on or in accordance with a prescription.
Part 1 Poison (Non-Prescription)
Controlled medicines not included in the Third Schedule, such as ibuprofen.
Must be sold at an Authorised Seller of Poisons in the presence and under the supervision of a registered pharmacist; no prescription is required.
Part 2 Poison
Lower-control medicines, including some cold and flu medicines.
May be sold by an Authorised Seller of Poisons or a Listed Seller of Poisons without a pharmacist present.
Non-Poison / Over-the-Counter
Registered medicines that contain no ingredient classified as a poison.
May be sold in any retail shop, including supermarkets and convenience stores.
STATUTORY PROVISIONS
Pharmacy and Poisons Ordinance (Cap. 138) and Pharmacy and Poisons Regulations (Cap. 138A)
The relevant part of the current statutory provision states:
“No person shall be in possession of any Part 1 poison otherwise than in accordance with this Ordinance.”
ELEMENTS OF THE OFFENCE
Physical Control
The defendant had physical custody or direct control over the substance.
Knowledge
The defendant knew they possessed the substance, even if they did not know its precise chemical name.
Classification
The substance matches an entry inside Part 1 of the Poisons List.
Lack of Authorization
The defendant does not hold a prescription, wholesale licence, or practitioner registration allowing possession.
Penalty
Many offences under Cap. 138 or Cap. 138A carry the same maximum penalty on summary conviction.
Maximum Financial Penalty: A fine at Level 6 ($100,000 HKD).
Maximum Imprisonment: Up to 2 years in prison.
Professional Consequences: Registered pharmacists and Authorised Sellers of Poisons may also face disciplinary proceedings before a committee appointed by the Pharmacy and Poisons Board. Available directions include reprimands or warnings, removal of a pharmacist's name from the register, disqualification of an authorised seller, removal of registered premises, or variation of registration conditions.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.