R. v. TO CHUN FUNG

IN THE COURT OF APPEAL

1993, No. 17
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The appellant, who is a registered medical practitioner, was convicted after trial before His Honour Judge Pang, sitting as a judge of the High Court, and a jury on one count of unlawfully using unknown means with intent to procure miscarriage contrary to section 46 of the Offences against the Person Ordinance Cap. 212. He was acquitted on another count which also alleged an offence against section 46. He now appeals against the conviction and the sentence of 12 months' imprisonment imposed on him.

2. The principal evidence for the prosecution in respect of the count on which the appellant was found guilty was that of a Miss So on whom the operation to unlawfully procure a miscarriage was allegedly performed. She testified that in June 1990 when she was 18 years of age, her period did not come and that she was suffering some abdominal pain. She went to see a Dr. Angela Leung who, after performing a urine test on her, told her that she was pregnant. Miss So told Dr. Leung that she did not want to have a baby. Dr. Leung then told her that she would introduce her to a doctor and that she would have to visit him on the following day. Dr. Leung then gave her the name card of the appellant.

3. On arrival at the appellant's clinic, Miss So told him that she was pregnant. The appellant then performed an ultrasound scan of her abdomen and, during the course of the examination, said something to her which she did not clearly hear. The appellant then told her that she needed a surgical operation and explained to her why such was necessary. Miss So could not recall what reason he gave. When cross-examined regarding this matter she agreed that if the reason had been that she was pregnant she would have remembered it. The appellant's nurse then asked her to complete certain forms. One of the forms which Miss So signed stated, "You accept the diagnosis of Dr. To Chun Fung that the embryo in your uterus has died and the pregnancy was (sic) ceased. Therefore you have to under go an operation of curettage of the uterus as soon as possible."

4. Miss So could not remember whether the appellant had told her this before she signed the form. She admitted that she signed the form and knew what she was signing. She further admitted that she was so obsessed with the idea that she was pregnant that she would have signed anything whatever it said. Moreover, she admitted that she could not remember whether the appellant had told her that she was pregnant. It appears that she had been relying on what she understood Dr. Leung to have told her and had assumed that Dr. Leung had passed that in formation to the appellant.

5. Shortly afterwards, she was called into the appellant's room where she was told to lie on a bed and was given an anaesthetic after which she lost consciousness. When she later awakened, the nurse gave her some medicine and told her to return a few days later. However, she did not return. Her period resumed on the following month.

6. In cross-examination she denied that Dr. Leung had told her that she was worried about the pregnancy and was referring her to the appellant for a further examination. Although she admitted that after the urine test had been carried out Dr. Leung had shown her something which displayed a plus and a minus sign, she denied that Dr. Leung had told her that the urine test had produced a rather strange result in that it revealed both a positive and a negative reading. And, although she initially admitted that she could not remember whether the appellant had told her that the embryo had died and that her pregnancy had ceased, she later denied that he had said this.

7. Dr. Leung was not called as a witness for the prosecution but gave evidence for the defence. She testified that she had carried out a pregnancy test on Miss So with a test pack and that because of the equivocal nature of the result of that test and the fact that Miss So had complained of not menstruating and of experiencing abdominal pain, she formed the view that an ultrasound examination was called for. Since, however, she did not possess the necessary equipment in her clinic she referred Miss So to the appellant who specialises in obstetrics and gynaecology and is a member of the Royal College of Obstetricians and Gynaecologists.

8. This evidence as to the equivocal nature of the test was consistent with the result sheet on which Miss So said that she had seen both a plus and a minus sign.

9. The appellant's evidence was that Dr. Leung had referred Miss So to him as a patient who was suffering from abdominal pain and had recorded an equivocal pregnancy test after not having had a period for eight weeks. Dr. Leung had considered that it was possible that Miss So might have experiencing an ectopic pregnancy, which is a pregnancy where the embryo is outside the uterus and which eventually leads to pain and a disruption of the menstrual cycle.

10. On conducting a physical examination of Miss So the applicant observed that there was "a lot of white discharge on her crotch". He also noted that she experienced tenderness when he palpated the right lower quadrant of her diaphragm. In the circumstances he concluded that it was necessary to perform an ultrasound examination. That test revealed that there was no fetal echo from the embryo. The appellant concluded that, because of the size of the fetal sac, the ovum was blighted, that is to say that the embryo had not developed. He then explained to Miss So that she had had a miscarriage and that it was necessary for him to perform a curettage to evacuate the remnants of the failed pregnancy. After Miss So had completed the necessary forms, the appellant performed the curettage. At the time of doing so, he was satisfied that the pregnancy had failed and that the fetus had died.

11. A Dr. Chung who was called as a medical expert by the prosecution agreed that if a doctor is of the opinion that a fetus is no longer viable, he is entitled to and indeed should evacuate the uterus as soon as possible.

12. At the conclusion of the prosecution case there was a submission of no case to answer. The judge ruled in favour of the prosecution. It is now contended on behalf of the appellant that there was no admissible evidence that Miss So had been pregnant at the time that the appellant performed the curettage procedure on her, and that the judge had erred in finding that there was a case to answer.

13. During the course of Miss So's testimony objection had been taken by defence counsel to the admission into evidence of what Miss So said she had been told by Dr. Leung. In response to the objection prosecuting counsel frankly conceded that the evidence was hearsay and inadmissible if adduced for the purpose of proving that Miss So was pregnant. He sought to have the evidence admitted solely on the basis that it "explained the cause of later conduct" of Miss So and stated that the prosecution did not rely on it to prove that Miss So was pregnant. Since Miss So had admitted in cross-examination that she could not remember whether the appellant had told her that she was pregnant, the prosecution, at the close of its case, was left with nothing more than Miss So's belief that she was pregnant, that she wanted to have and intended to have an abortion and that she thought that the appellant intended to and did perform an abortion on her. That being so, the judge should have ruled that there was no case to answer and have directed the jury to return a verdict of not guilty on that count.

14. Initially, at the hearing of this appeal, Mr. Saw for the Crown sought to uphold the judge's ruling. However, when it became apparent that his submission was founded on a misinterpretation of Miss So's evidence, Mr. Saw frankly and fairly conceded that at the close of the prosecution case there was no admissible evidence on which a jury could properly have convicted the appellant and that the appeal must therefore succeed.

15. We agree, we therefore allow the appeal, quash the conviction and set aside the sentence.

16. That being so we do not consider it necessary to deal with the other grounds of appeal other than to observe that the judge failed to give an adequate direction to the jury as to the appellant's good character. What he said was this:

"Dr. To Chun Fung is a registered medical practitioner specializing in obstetrics and gynaecology and is a member of the Royal College of Obstetricians and Gynaecologists. He has been specializing in his fields since 1984. He is also a man of good character without any record of criminal conviction. He is active in community service and was awarded the St. John's Ambulance Association principal surgeon's Cup. In the past he had been invited by the Hong Kong Medical Association to give evidence in court in his specialized field although it never materialised."

17. The judge however did not go on to direct the jury that the appellant's good character was relevant both to his credibility as a witness and to the likelihood of his having committed the offences on which he stood trial. Had this count been properly before the jury for the delivery of a verdict this was eminently a case which called for proper directions regarding character. The judge's failure to give those directions was a serious non-direction.