HKSAR v. LO HIU YIN

HCMA 237/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 237 OF 2013

(ON APPEAL FROM KCCC 4895 OF 2012)

____________________

____________________

------------------------

J U D G M E N T

------------------------

1. The Appellant was convicted after trial of four charges of conspiracy to obtain services by deception and sentenced to a total of 18 months’ imprisonment by Deputy Magistrate S H Lee.

2. The facts are simply that in March 2011, the government of Hong Kong informed the public that for non‑local pregnant women whose expected delivery date falls on or before 31 October 2011, they would not be able to book delivery services or “bed spaces” with Queen Elizabeth Hospital as the quota would be full up to that date.

3. So, in order to defeat that quota system policy, the Appellant who was running a business of arranging for mainland pregnant women to come to Hong Kong to give birth, entered into four agreements with the four pregnant mainland women, named in the trial in order to facilitate them giving birth in Queen Elizabeth Hospital in June and July 2011.

4. The modus operandi would be that the Appellant would arrange for the four women to see Dr Wong, a general practitioner in Hong Kong, and they were told to supply Dr Wong with false dates of the last menstrual period.  Now the practice of the doctor would be not to examine the patient, but merely based on the date of the last menstrual period supplied to him, he would then come up with the expected delivery date. That is what happened in these four cases, Dr Wong then said that the expected delivery dates based on the four last menstrual period dates supplied would to be in November and December 2011.

5. With the doctor’s certificates, the Appellant then proceeded to book delivery services for these four women at Queen Elizabeth Hospital for November and December 2011.  The Appellant knew that the real delivery dates for the four women would be in June or July 2011.  She also knew that when these four women attended Queen Elizabeth Hospital for their first antenatal check‑ups, the doctors at Queen Elizabeth Hospital would then see that the expected delivery dates would be earlier than was certified by Dr Wong.  In those circumstances, Queen Elizabeth Hospital would then have their hands tied and have to offer “bed spaces” to these four women on their real delivery dates.

6. As a result of investigation by the Police, the Appellant was arrested in July 2011 and the Appellant admitted in two video‑recorded interviews that her agreement with the four mainland women to provide false dates of their last menstrual periods and that she would be remunerated in the range of HK$5,000 to HK$10,000 per arrangement.

7. The Learned Magistrate in considering sentence, after the trial, was well aware the facts that pertain to these four conspiracies and he had also set them out in great detail in his Reasons for Sentence.  The Learned Magistrate was also aware of the Appellant’s background, that she had a clear record, she is aged 36 and was given the right of abode in Hong Kong in 2000 and that she had two children and is single mother.  There is no tariff for this kind of cases and the Learned Magistrate was referred to a case in Kwun Tong involving similar charges but as the Learned Magistrate properly noted it was not binding on him.

8. The Learned Magistrate then considered the mitigation that was placed before him and also the fact that the imprisonment of the Appellant would have an adverse effect on her family.  However, the Learned Magistrate considered that these four charges are serious because it involved an abuse of the quota system for non‑local pregnant women to give birth in a public hospital in Hong Kong.  The Learned Magistrate recognized that the quota system was in place because of the limited resources of our public health system, and the Learned Magistrate found that the Appellant had deliberately set out to exploit the loopholes of the practice of general practitioners in issuing medical certificates for the expected delivery dates of pregnant patients based solely on the last menstrual period reported, without physical examination.

9. The Learned Magistrate recognized that this was a profitable business engaged in by the Appellant.  The Learned Magistrate also properly recognized that it was an aggravating factor for the Appellant to commit the four charges of conspiracy with four separate conspirators in the relatively short time of three months.  The Learned Magistrate considered that a deterrent sentence was necessary and therefore he adopted a starting point of 12 months for each of the four charges.  The Learned Magistrate did not think that the delay in prosecution was a mitigating factor because it had to be viewed in the context of the size of the investigation.

10. Having regard to the totality principle, the Learned Magistrate thought that a total sentence of 18 months would be appropriate and therefore he concluded that the sentence of 12 months of each of the four charges, 6 months of her sentence on Charge 2 shall run consecutively to that on Charge 1 and the rest to run concurrently, thus giving a total of 18 months’ imprisonment.

11. On appeal, Mr McGowan, on behalf of the Appellant, submitted basically 5 grounds of appeal.  His first ground of appeal was that the Learned Trial Magistrate had failed to consider that the conspiracies were, in fact and in effect, merely one rather than four conspiracies.  As I have said I do not accept this premise.  It was four separate conspiracies and it happened within a short period of time and the Learned Magistrate pointed out it would an aggravating factor rather than one conspiracy as submitted by Mr McGowan.

12. The second ground of appeal was that the Learned Magistrate had erred in his view that the “overall culpability” warranted 18 months’ imprisonment.  The Learned Magistrate had explained very clearly why the culpability was 18 months’.  It was a very serious offence, it took advantage of and abused the loopholes that the Appellant saw in the system and made profit from it at the expense of our local women who were pregnant and needed the “bed spaces”.

13. The third ground of appeal was that the Learned Magistrate had erred in finding that deterrent sentences were required.  Again, I do not see that the Learned Magistrate was wrong in that because these offences were serious and required deterrent sentences.

14. As for the delay in prosecution point, as Miss Chiu had pointed out, the Learned Magistrate considered that it really depended on the type of the investigation.  A delay of 1 ½ years does not automatically mean credit should be given to the Appellant.  One has to look at what actually happened and whether the delay was reasonable in the circumstances and I cannot see that there been any unreasonableness in the delay.

15. Mr McGowan finally then submitted that the overall sentence was manifestly excessive and wrong in principle.  As I have said the Learned Magistrate had correctly identified the matters to be taken into account when sentencing.  This was a serious case at the time and it was a rampant disregard of and an abuse of our system.  It affected the local pregnant women so much so that the Government had to take very urgent measures to try and free up the “bed spaces” for our local women who were due for delivery of their babies.  So all in all, I do not accept that the sentence was in any way manifestly excessive or wrong in principle, and there is no reason to interfere with the Learned Magistrate’s sentence and so the appeal is dismissed.