R. v. CHEUNG KAM KEI

IN THE COURT OF APPEAL

1994, No. 404

(Criminal)

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J U D G M E N T

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Litton, V-P, giving the judgment of the Court:

1. On the 4 August 1994 the applicant was convicted after trial before Mr Justice Barnett and a jury on an indictment containing three counts: 1) using an instrument with intent to procure a miscarriage, contrary to s.46 of the Offence against the Person Ordinance; 2) carrying on the management of a clinic which is not registered, contrary to s.14(1)(a) of the Medical Clinics Ordinance and 3) possession of dangerous drugs namely 4 mg. of midazolam, 20 mg. of diazepam and 93 mg. of pethidine hydrochloride. She now seeks leave to appeal against the conviction on the first count alone.

The facts

2. The facts briefly are these. In January 1993 Mrs Chiu Sui-hing (PW1), unknown to her and her husband, had an ectopic pregnancy in the left fallopian tube; that is to say, that the foetus was not attached to the uterus and was in the fallopian tube. If left unattended, there could have been only two results. One was that the fallopian tube would rupture - rupturing, that is, not into the vagina but the abdomen - the other was that the foetus would simply abort, usually at about 6-10 weeks. There was no possibility that an ectopic pregnancy could give a viable baby.

3. On the 16 January 1993, in the morning, Mrs Chiu (PW1) had abdominal pain and some blood discharging from her vagina. She went to see a doctor Chiu Sik-ho (PW6) who examined her and gave her a pregnancy test. Dr Chiu told her she was pregnant but might have a miscarriage; that is to say, that miscarriage was threatened. We pause here to remark that an ectopic pregnancy would not have been detectable upon an ordinary examination and Dr Chiu (PW6) was in no way at fault for failing to make that finding. Mrs Chiu was given some medicine and told by PW6 to go home to rest. Mrs Chiu still had pain in the afternoon and eventually her husband Mr Chan Kan (PW2), through a middle person, a Madam Chan Chun (PW3), arranged for her to see the applicant.

4. Sometime after 7 p.m. on the 16 January Madam Chan (PW3) took Mrs Chiu and her husband to the applicant's clinic at Mut Wah Street in Kwun Tong. The clinic had a sign downstairs saying in Chinese "Cheung Kam Kei Gyneocology". PW1 and PW2 had brought their two children along with them on the visit.

5. After the introduction, the applicant examined Mrs Chiu internally through the vagina and then said: "I wouldn't do. Better to have it done".

6. Mrs Chiu (PW1) understood this to mean that the foetus was dead. A fee of $1,800 was then agreed. Mrs Chiu was told to lie on the examination bed again and was given a pill and an injection. The applicant then inserted an instrument into her vagina and performed a scraping operation followed by suction with a suction machine. This was repeated. The whole procedure lasted about 10-15 minutes and the applicant then said: "It is alright now". Mrs Chiu went home but she was not alright. The pain continued.

7. 9 days later, on the 25 January, she fainted in the toilet and was eventually taken to Prince of Wales Hospital where the ectopic pregnancy which had by then ruptured was discovered. She was operated upon. The left fallopian tube was removed and she recovered.

The issue at trial

8. There was only one issue for the jury to decide: Did the applicant believe when she used the instrument on Mrs Chiu that Mrs Chiu was normally pregnant and intended by the use of the instrument to procure a miscarriage? The applicant did not testify at her trial so the jury did not have the benefit of hearing from her own mouth what her intentions were.

The summing-up

9. At the commencement of the summing-up the judge put the issue succinctly in this way:

"The real issue is whether the defendant, when she did what she did to Mrs Chiu, believed Mrs Chiu to be normally pregnant and intended to get rid of that pregnancy for her, that is to say procure a miscarriage. If you are sure about that, then you may convict the defendant. But if you are not sure about it, if you consider the defendant believed or might have believed that the foetus was already dead and that she was simply removing the remains, then you would acquit the defendant."

10. Then later on the judge repeated this direction in these terms:

"But, as I said, if you think the defendant believed or might have believed that it was already too late, that the foetus was dead, and that all she intended to do was to clean out the remains, then you must acquit her."

Grounds of appeal

11. Counsel for the applicant puts his argument to this court on the basis that, factually, Mrs Chiu was not pregnant when the applicant examined her on the evening of 16 January 1993. This proposition seems to us wholly untenable. If Mrs Chiu had tested positive when the pregnancy test was conducted in the morning of 16 January, it would be reasonable to infer that she was still pregnant that evening. But the real issue before the jury was, ultimately, the applicant's belief as to Mrs Chiu's condition, as to which there could be no complaint with regard to the summing-up.

12. Counsel then puts his submission upon this alternative basis: that an essential ingredient of the charge under s.46 is that Mrs Chiu was at the time of the operation pregnant, and since the prosecution never established that fact, the conviction is fundamentally flawed. This argument wholly disregards the wording of s.46 of the Offences Against the Person Ordinance under which the applicant stands convicted. Where relevant it reads as follows:

".. any person who, with intend to procure the miscarriage of any woman, (whether she is or is not with child).... unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence."

13. Looking at the case in the round the outstanding feature is this: The case turned upon the applicant's intention at the time of operation. As to that, the person in the best position to tell the jury was the applicant herself. She did not testify. She did not explain what she meant when she said: "It wouldn't do. Better to have it done." The matter was left eventually for determination upon what inference could properly be drawn upon the case presented by the prosecution. There were no misdirections. The issues were put fairly to the jury. In the circumstances the application for leave to appeal must be dismissed.

Sentence

14. The applicant was sentenced to 18 months' imprisonment. The judge took as his starting point a sentence of imprisonment of 2 years after trial. He took into account all the relevant circumstances including the applicant's clear record, her family background and discounted the sentence to 18 months' imprisonment. We are unable to see any error in the sentencing process. The sentence of 18 months appears to be in line with what this court has said in the case of the Queen v Heung Muhammad and Chan Siu-mui, Cr.App. No. 180 of 1985 where Mr Justice McMullin, V-P giving the judgment of the court made this observation:

"It appears from this calendar of sentences that a pattern has emerged and that in respect of a conviction for a single offence under S.46 without previous convictions, sentences of 18 months to 2 years have been imposed fairly regularly...".

15. The sentence in this case is in line with that approach. The application for leave to appeal against sentence must therefore be dismissed.