HKSAR v. TSUI CHI LAM

DCCC 342/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 342 OF 2009

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of abandoning a child, under two years of age, whereby the life of the child was endangered, contrary to section 26 of the Offences against the Person Ordinance, Chapter 212 (charge 1) and one charge of possession of Part 1 poisons, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138 (charge 4).  The maximum sentence for these offences is 10 years and 2 years imprisonment respectively.

2.  Full particulars of the offences are set out in the admitted facts.  Briefly at around 2.30 p.m. on the 1st November 2008 staff of Park ‘N Shop supermarket in North Point found a plastic bag inside a temporary rubbish bin.  The plastic bag was found to contain a baby girl wrapped in a piece of newspaper, together with towels soaked in blood. 

3.  The baby girl was immediately sent to hospital for treatment where upon examination the doctors believed that she was possibly delivered that morning after a 31-week pregnancy.  I have had the opportunity of reading three medical reports on the health of the baby, which state the baby was estimated to be of 34 weeks gestation when taken to the hospital.  The reports reveal that on admission the baby was diagnosed with a form of cyanotic congenital heart disease.  The baby was hypothermic and had respiratory distress.  I note that the growth parameters are at low percentiles and that early cerebral palsy cannot be excluded.  An MRI brain scan was to have taken place on the 27th May but the result has not been made known to the court.  The reports set out in some detail the medical treatment and care given by the doctors, who are to be commended, as this has resulted in the baby being discharged from hospital into care on the 12th January. 

4.  The defendant was arrested in the early evening of the 18th December last year when returning to his clinic in Causeway Bay.  During the search of the clinic the police found various poisons the subject of charge 4.  Under caution the defendant admitted that he left the baby in the supermarket and that the medicine, including all the Part 1 poisons belonged to him.

5.  In mitigation, through Mr Chung, the defendant puts forward the same account he gave to the police when interviewed on video.  A Filipino lady first called the defendant saying she had missed her period and believed she was two-months pregnant.  The lady then went to see the defendant who thought she either had a tumor or was more than two-months pregnant.  

6.  The defendant did not treat the lady, who stayed in the clinic and after an hour came out of the toilet holding the baby asking the defendant for help.  The defendant took a quick look at the baby and found the baby was not crying.  The defendant believed the baby was dead but was not sure.  He helped the lady to cut the umbilical cord after which the lady wrapped the baby in newspaper and then put the baby into some plastic bags.  Again the lady asked for help.  Seeing the lady was very weak the defendant decided to take the baby to the supermarket, where he left the baby in a conspicuous place, hoping someone would find the baby. 

7.  I have expressed my reservations as to the circumstances leading to the birth of the baby.  Whilst I find highly unlikely the defendant believed the lady was only two-months pregnant when she was in fact at least 7-8 months pregnant, the defendant is not charged with any offence relating to the birth of the child only the abandoning of the child. 

8.  Again whilst I find highly unlikely the defendant did not know the baby was alive as opposed to not being sure, after very careful consideration during the adjournment, I am prepared to proceed on the basis the defendant was reckless.  In my view, in the circumstances of this case, whether the defendant actually knew or was reckless as to whether the baby was alive, makes no material difference to sentence and therefore the holding of a Newton enquiry is not necessary. 

9.  The offence is a very grave one.  The defendant, a listed Chinese medicine practitioner, faced with the birth of a baby in his clinic did not take the baby to the hospital or call for an ambulance, instead allowing the Filipino lady to wrap the baby in newspaper and put the baby in a number of plastic bags, which were tied in knots.  The defendant then went to the supermarket, which was the opposite side of Victoria Park to that of his clinic, no doubt in an attempt to avoid anyone making a connection to him and his clinic.  The defendant carried the baby concealed inside plastic bags thereby preventing the baby from properly breathing.  

10.  The defendant left the baby inside the temporary rubbish bin hoping the baby would be found.  I have had the opportunity of seeing the photographs of the temporary rubbish bin.  This can hardly be described as a conspicuous place, although I accept that if the defendant wanted to secretly dispose of the baby he need not have gone to Park ‘N Shop.   The temporary rubbish bin consisted of a black plastic bag, inside which the defendant placed the baby.  The baby was not visible to anyone looking at the rubbish bin and therefore was only fortuitous the baby was found within minutes when a staff of Park ‘N Shop who had earlier in the morning set up the temporary rubbish bin was surprised to see a plastic bag inside. 

11.  In all the circumstances of the case I am satisfied the appropriate starting point after trial is 6 years imprisonment.  In passing sentence I have taken into account everything said by Mr Chung together with the letters submitted on behalf of the defendant.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years imprisonment on charge 1.  I am satisfied no reduction is to be given on account of the defendant’s age or ill health.  I am satisfied the defendant will receive proper medical treatment whilst serving his sentence.

Charge 4 – Possession of Part 1 Poisons

12.  When the defendant was arrested no less than thirteen different poisons were found of varying quantities.  Regrettably the court has not been informed of what these are.  In my view it behoves the police to ascertain what they are so that they can properly investigate and for the prosecution to know so that they can properly advise on the charges to be laid.  To come to court not knowing what they are is in my view a failing in the duty of counsel.  When called upon counsel should be able to assist the court.  How one can prepare a case without knowing what the poisons are I simply cannot understand.

13.  I should add here whilst I am critical of the prosecution for not ascertaining the details of the poisons the police are to be commended for their investigation.  The thoroughness of their investigation by viewing the CCTV of Park ‘N Shop, tracing the movements of the defendant from his Octopus card has resulted in bringing the defendant to justice. 

14.  Mr Chung on behalf of the defendant says the defendant knew what the poisons were but never used any, the poisons having been left over after a doctor, who practised in Western medicine, died six months earlier.  Once again whilst this seems most unlikely, especially looking at the defendant’s history of possession of Part 1 poisons, I proceed on the basis the defendant did not use any of the medicine.  However by keeping them the risk they may be prescribed without proper medical training was very high. 

15.  At the last hearing I informed the parties what the results of my research were.  No objection has been taken to these findings.  I have now researched all the poisons.  Using the Oxford Concise Medical Dictionary as my main source the poisons possessed by the defendant are:

(1)    Propofol – used as an intravenous anaesthetic;

(2)    Quinestrol (oestrogenic substance) – a synthetic female sex hormone used as an oral contraceptive and for treating menstrual disorders

(3)    Oxytocin – used to induce or accelerate labour;

(4)    Chlorpromazine – an antipsychotic drug used in the treatment of schizophrenia and to control nausea;

(5)    Norethisterone – also a synthetic female sex hormone mainly used as an oral contraceptive but also to treat menstrual disorders;

(6)    Atropine – used to treat eye infections and a slow heart rate;

(7)    Promethazine – an antihistamine drug used to treat allergies and insomnia;

(8)    Diethylstilbestrol – a synthetic female sex hormone used in the past to prevent miscarriage but stopped because of the increased risk of cancer;

(9)    Quinine – used to treat malaria and small quantities to treat nocturnal leg cramps;

(10)   Ketocanazole – an antifungal drug used in the treatment of fungal diseases, including candidosis, which is especially common in the vagina;

(11)   Nifedipine – a calcium-channel blocker used in the prevention of angina and high blood pressure;

(12)   Doxazosin – an alpha blocker used to treat high blood pressure; and

(13)   Amlodopine - a calcium-channel blocker used to treat hypertension and prevent angina.

16.  The defendant is a persistent offender.  He has been sentenced to fines, immediate imprisonment and latterly a suspended sentence, which he is now in breach of.  Previous sentences have had no deterrent effect upon him (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).   Taking into account the number and quantity of different poisons, the nature of the poisons and the very high latent risk they could be prescribed without proper medical training in the use of Western medicine, I am satisfied a starting point of 9 months imprisonment is appropriate, which I increase to 12 months imprisonment by reason of the defendant being a persistent offender.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 8 months imprisonment. 

17.  The defence submit there is no connection between the charges.    The offence therefore stands as entirely separate and distinct for which a consecutive sentence is appropriate.  I order the sentence to be served wholly consecutive to charge 1.  I am satisfied a total sentence of 4 years and 8 months imprisonment properly reflects the defendant’s criminal culpability on the two charges.

Suspended sentence

18.  On the 11th May 2007 the defendant was sentenced in  KTCC 904/2007 to 4 months imprisonment suspended for 2 years for an offence of possession of Part 1 poisons and 2 months imprisonment suspended for 2 years for an offence of possession of antibiotics.  Both sentences were ordered to run concurrently.

19.  I have had the opportunity of reading the case papers.  In that case the defendant possessed over 400 tablets containing metronidazole, which is used to treat infections of the urinary, genital and digestive systems and a cream containing clobetasol propionate, which is used to treat skin disorders.

20.  I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence with the original term unaltered (see section 109C (1) of the Criminal Procedure Ordinance, Chapter 221).  I activate the suspended sentence, which I order to be served consecutive to the sentences imposed on charges 1 and 4. 

21.  The defendant goes to prison for a total of 5 years.