Liability for Dispensing Errors in Hong Kong

Abstract

The United Kingdom (UK) case R v Lee (2010) EWCA Crim 1404 resulted in a pharmacist being convicted for an inadvertent dispensing error and paved way for the decriminalisation of such errors by way of a due diligence defence enacted in 2018. In relation to Hong Kong (HK), what is its legal position for dispensing errors, and can it follow the decriminalising steps of UK? The primary objective of this paper is to explore whether and how HK can reach the normative position for a dispensing error legal regime: (1) I posit that the normative position for healthcare professional (HCP) liability for dispensing errors should prioritise the public interest of minimisation of future dispensing errors over the retribution of past wrongs; (2) I illustrate HK’s current position for the liabilities of HCPs on dispensing errors, focusing analysis on the relatively controversial aspects of HK’s criminal liability, referencing the landmark cases Hin Lin Yee v HKSAR (2009) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195 to assist my analysis of the requisite mental element for relevant statutory offences; (3) through comparison with UK’s development post-R v Lee and application of Rule of Law principles, HK’s current position is critiqued, coming to the conclusion that while there are compelling reasons for the decriminalisation of dispensing errors in HK, the prerequisite for this to happen is an overhaul of regulatory frameworks by significantly increasing levels of accountability.