HKSAR v. TSUI PIK FONG

CACC39/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 39 OF 2009

(ON APPEAL FROM HCCC 168 OF 2008)

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J U D G M E N T

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Hon Wright J (giving the judgment of the Court):

1.  On 9 January 2009 the appellant was convicted by a jury before Deputy High Court Judge Line of two charges, each contrary to s. 46 of the Offences against the Person Ordinance, Cap. 212, of having administered a poison or other noxious thing with the intent to procure a miscarriage by an 18-year-old girl: the offences occurred on 1st and 9th October 2007 respectively.  She was sentenced to undergo imprisonment for a period of three years on each count, the sentences to be served concurrently with one another: two suspended sentence imposed upon her in November 2006 for the possession of Part I Poison and possession of antibiotics were activated and she was ordered to serve, consecutively, a further period of two months imprisonment. 

2.  On 24 June 2009 she was granted leave, by Hartmann JA, to appeal sentence on the two charges of which she was convicted by the jury: she does not seek to challenge the appropriateness of the activation of the suspended sentences.

3.   The tenor of cross-examination at trial, the appellant having exercised her right not to testify, was that the appellant had had no dealings with the girl or her boyfriend, both of whom testified to the events which we shall outline shortly, who simply were being untruthful out of a desire to protect the person who, in fact, had supplied the abortifacient which the girl had consumed. By its decision, albeit by a majority on Count 2, the jury rejected this suggestion.

4.  The essential facts as they appear in the judge’s summing up may be summarised as follows: the girl and her boyfriend had been in a relationship for some two years; he had impregnated her in January 2007 whereupon she had visited the Family Planning Association and the pregnancy was terminated in lawful circumstances; seven months later she was pregnant again; she and her boyfriend discussed a second abortion and, at his suggestion, on 1 October they went to consult the appellant who was a Chinese medicine practitioner practising in Tuen Mun; after saying that she was pregnant but did not wish to give birth, she was examined by the appellant who told her that she had been pregnant for 40 days and who gave her, at a cost of $900, 13 tablets; the appellant had told her how to take the tablets, that she would experience "slight abdominal pain and would excrete the baby"; in the ensuing days she took the tablets, but not as directed; nothing happened so she returned, alone, to the appellant on 9 October; on this occasion she was given 12 tablets at a cost of $800, told how to take them and told that she would have "abdominal pain and that the baby would then be passed from her body"; she returned to the appellant on 15 October as, apart from slight abdominal pain and bleeding, nothing had happened but, on this occasion, after examination she was given further tablets which transpired to be placebos.

5.  That night, she felt slight abdominal pain, went to the toilet and sometime after midnight heard a sound of something dropping into the toilet bowl which, although she did not look, she took to be the foetus; she continued to bleed heavily through the night; she became so weak she was unable to walk; at her sister’s suggestion, she went to Queen Mary Hospital on the afternoon of 16 October; she was examined by a doctor in the Accident and Emergency Department who found that she looked pale with a haemoglobin level at 7.1, blood pressure "on the low side", with tachycardia and had a haematoma at the back of her head; she was then examined by an obstetrician and gynaecologist who testified that she had lost 2 to 3 litres of blood, some 40% of her total blood supply, that the tachycardia was due to the diminished supply of blood and that if she had not been treated immediately "there was a danger to her life"; his unchallenged evidence was that his findings on examination were consistent with the girl having taken drugs to bring about an abortion; a pathologist who testified spoke to the presence of foetal tissue in tissue taken from the girl's uterus.

6.  The appellant was arrested the following day, 17 October. Amongst items seized from the appellant's clinic were two tablets of mifepristone, an antiprogestogenic steroid, an abortifacient, which is unregistered in Hong Kong. The prosecution case, as accepted by the jury, was that this was the substance administered to the girl.

7.  Hartmann JA granted the appellant leave to appeal sentence on the basis that a clearly arguable issue had been raised as a result of the judge’s expressed view that "... an abortion procured by way of the administration of drugs could be (and was in this particular case) more serious than the procuring of an abortion by using surgical implements." Moreover, he took the view that the authorities which had been invited to his attention were of many years standing and that this case may be "... an opportune moment for the Court of Appeal to consider what may or may not be appropriate by way of sentencing in offences of this kind."

8.  What the judge said in his sentencing remarks was as follows:

"I have no doubt that you gave her mifepristone. That drug is not registered for use in Hong Kong. I cannot tell for sure from the evidence whether you gave her any other drug such as misopristol. Whether you did or not affects the unpredictability of when the abortion would occur. But even with misopristol (sic) alone it could have occurred at any time in up to two weeks.

We have been told about the conversations that took place. There is no suggestion of any warning given by you of possible complications or any counsel given to that young girl as to what she should do if she continued to bleed. A moment's thought would reveal the risk that in fact eventuated in this case, namely that the abortion was an incomplete one, causing continued copious bleeding.

You left an 18-year-old girl to face that risk without any sort of medical help. We know that she was reluctant to reveal her condition until it was very serious. Such reluctance in a girl like her was always to be contemplated. It was lucky for her that her sister was at home when her condition was such that she was so weak she could not stand, and she fainted.

She had lost up to 40% of her total blood supply. The doctor who treated her told us that there was a real risk to her life. If the sister had not got her to hospital, she would have died.

I am aware of no other cases that have reached the appeal level either by review or appeal against sentence in Hong Kong that have concerned an illegal abortionist in such circumstances. The other cases at that level deal with surgical abortion. In cases of surgical abortion, the abortionist is there if things go wrong. The abortionist who uses the modern drug mifepristone in the way you did is not present when the abortion takes place. That increase in the risks is a mischief which must be reflected when I come to find the right starting point for your sentence.”

9.  In our view, the judge did not go so far as to indicate that, as a matter of principle, sentences where a miscarriage is procured by way of the administration of a noxious substance should be greater than where they are procured by way of physical intervention but rather regarded the administration of the abortifacient in this case as an aggravating feature.

10.  There are inevitably risks, and potentially grave ones, whichever method is used. Whilst it may well be that, when a termination of a pregnancy is lawfully conducted, the procedure is carried out in a suitable environment and the practitioner ensures the ongoing safety of the patient and is present if, as the judge said, things go wrong, experience shows that that is not necessarily the case where unlawful physical intervention takes place: it is notorious that unlawful terminations of pregnancy are frequently conducted in a non-sterile environment with scant regard for the ongoing condition of the woman, illustrated by the deserved epithet “backstreet abortion”.

11.  This is graphically illustrated in R v NG Ying [1977-79] HKC 57 where the Court of Appeal confirmed a sentence of five years imprisonment, describing the offence as "quite the worst of its type which this Court has encountered" and relating the following facts:

"A few hours after leaving the appellant's clinic, the girl was taken to Queen Elizabeth Hospital where the doctor who examined her described her as near death; his diagnosis was original abortion, perforated womb and haemoperitoneum…; there was a laceration of 3 inches in length on the anterior uterine wall; several foetal parts were found in the uterus together with several pieces of placental tissue and the whole of the small bowel except for about 5 feet was gangrenous and one part was completely torn away at one end. Two operations were performed upon the victim who had miraculously retained consciousness throughout the treatment, described by the Doctor at Queen Elizabeth Hospital as butchery, inflicted upon her by the appellant and who, despite her condition, was then cynically and unceremoniously placed in a taxi with the admonition to tell nobody especially the police about what had happened, since otherwise both she and the appellant would get into trouble."

12.  We note that the judge summarised the evidence as showing that no harm would be caused by an overdose of mifepristone, other than causing the miscarriage. Consequently, there was no suggestion that the girl was potentially exposed to unanticipated side effects from or reactions to the drug itself.

13.  A further element is the risk to the woman's future ability to bear children. On the evidence which is available in this matter, we are unable to determine whether the administration of mifepristone or other antiprogestogenic steroid may adversely affect a woman's childbearing ability: if that were so, then that would be a consequence similar to the frequent outcome of a mechanical termination whilst, if the administration of the drug were to have no effect on future childbearing, it may be argued that there is less risk inherent in the oral administration of an abortifacient. That is a matter upon which evidence may be needed in the future.

14.  Despite the observations of the judge and the submissions of Mr Cross SC on behalf of the respondent we see no justification for drawing a distinction in sentence based on the method chosen by the abortionist.

15.  Nor do we see offences of this nature as being susceptible to the imposition of a tariff for sentencing purposes. The circumstances of the commission of an offence of this nature are so varied, the offence being one which is intensely personal in nature, as not to admit, in our view, of the categorisation of factors which are determinative of an appropriate sentence.

16.  We are aware that the English Court of Appeal suggested that three levels of the culpability on the part of an abortionist should be recognised: R v Scrimlagia (1971) 55 Cr App R 280. We do not regard such categorisation as necessary in the Hong Kong context where, fortunately, offences of this nature infrequently come before the courts. Conversely, we accept that the circumstances which that Court ascribed to the three categories would be features which a sentencing judge would be entitled to take into account in assessing an appropriate sentence.

17.  We turn briefly to the sentencing authorities to which we have been referred. In 1963 a sentence of 3 years imprisonment on a plea was reduced to 18 months where the damage caused by the abortion resulted in the woman spending 30 days in hospital and undergoing a hysterectomy: the Court of Appeal reviewed a number of sentences imposed in the preceding years in Hong Kong observing that the resulting sentences varied between 15 months and 3 years imprisonment and that in none had it been established clearly that the accused was a professional abortionist: see YIP Kang-tung v R [1963] HKLR 814. In 1977 a period of 3 years imprisonment imposed after trial on a 64-year-old male who had two previous convictions for abortion and had committed the offence for which he was then being sentenced within six months of his last release from prison was confirmed on appeal: WONG So-chun and Anor. v R CACC385/1977. Chronologically, the next case was that of NG Ying to which we have referred above and which appears to have been the high water mark of sentences. This was followed by R v CHAN Yau [1984] HKC 218 in which a period of 5 years imprisonment was confirmed after the applicant, described by the court as a professional abortionist, had been convicted after trial of two charges of abortion, she having a previous conviction in 1964 of manslaughter consequent upon performing an abortion. In R v HEUNG Muhhammad and Anor [1986] HKLR 514 a sentence of 3½ years imprisonment after trial was reduced to 2 years on appeal, the Court of Appeal commenting that the facts did not show him to be a professional abortionist despite the fact he was running a clinic and in possession of equipment for gynaecological purposes, treating the offence of which he had been convicted as a single act. A two-year starting point after trial in respect of a male with no previous convictions was upheld by the Court of Appeal in R v CHEUNG Kam-kei CACC404/1994 where the foetus that was aborted resulted from an ectopic pregnancy

18.  To turn from the general to the particular, we note that the judge’s prime concern seems to have been the fact that the appellant gave the girl little warning of the possible consequences of the administration of the drug. Whilst his concern is understandable, what appears to have escaped the judge’s attention is the fact that the girl had already undergone one lawful pregnancy termination a few months previously, which plainly suggests it to be unlikely that she would be oblivious to the possible consequences.

19.  In addition, we note that the evidence of the gynaecologist which was summarised in the judge's summing up as being that “…if she had not been treated immediately there was a danger to her life " was escalated by the judge in his sentencing remarks to "If the sister had not got her to hospital, she would have died", a theme pursued by Mr Cross in his submissions. In our view it is inappropriate to categorise the evidence in those terms.

20.  Whilst we recognise that, in respect of the earlier cases by which we mean all except CHEUNG Kam-kei, the rule prescribing an automatic one third discount on a plea of guilty had not become as inflexible as it has today thus rendering difficult an accurate assessment of a starting point where a sentence was imposed after a plea of guilty, sentences may be seen to have ranged between 18 months and 3 years imprisonment for a single offence save for those in which particularly grave consequences resulted.

21.  In our judgment the sentence was appropriate on the facts of this case.  Moreover, the sentence imposed by the judge cannot be said to be substantially at variance with the general pattern of sentences imposed over many decades, albeit that it tends towards the upper end of the general range of sentences.

22.  The appeal is dismissed and the sentences are confirmed.