THE QUEEN v. TANG SAU CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 273 OF 1987

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JUDGMENT

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1. The Appellant pleaded guilty on the 8th January 1987 to three charges, (a) of carrying on the management of an unregistered clinic, (b) possession of Part I Poisons, and (c) possession of antibiotics, for which offences sentences of three months' imprisonment, and fines of $2,500 on each of the other two were respectively imposed.

2. She now appeals against sentence particularly the imposition of an immediate custodial sentence.

3. The facts leading to these charges are that on 8th September last year, .a woman police constable went up to the Tang Lai Wah Gynaecology at 341 Hennessy Road, 10th Floor, and posed as a patient with a menstrual problem. She was attended to by the Appellant and without examining the 'patient' recommended an injection to treat her. When the Appellant was about to administer the injection, a party of police officers raided the premises and found that they were equipped as a medical clinic. In the syringe was a Part I poison described by the Government Chemist as "Dihydroxgprogesterone acetophenide", and in the clinic were found two other Part I Poisons and two Antibiotics. The quantities of these drugs were small.

4. She has no medical qualifications of any kind but is a member of the Hong Kong Herbalist Association. She has a previous conviction for similar offences in 1982 that is Practising Medicine without Registration and Possession of Part I Poisions and Antibiotics for which offences she was fined a total of $2,000.

5. Before the Magistrate, it was submitted in mitigation on her behalf that she was herself receiving treatment for depression and hypertension, that not all the items seized were dangerous in themselves and that she had pleaded guilty. In imposing an immediate custodial sentence on the Appellant, the learned magistrate took all these matters into account, including her age, but considered very carefully the effect such offenders have on the less wary members of the community who resort to such clinics for medical treatment. In my views, looking at the name of the clinic itself would give one the impression that it was managed and staffed by a qualified medical practitioner.

6. The appeal against the sentence of imprisonment is based on the same grounds as were advanced before the learned magistrate, and the appellant has now asked that the sentence be suspended. I have examined the medical certificates which have been submitted on her behalf in this appeal to ascertain how serious her illness is but these certificates. are of little assistance since they mention only the illness and the medication prescribed for the particular condition.

7. I do not consider that the learned magistrate was wrong in principle in imposing an immediate custodial sentence in view of the circumstances but the fines imposed in respect of the possession charges were manifestly excessive having regard to the fact that these offences were auxiliary to the principal offence, and the quantities small. This appeal is therefore allowed to the extent that the fines on the second and third charges are reduced from -$2,500 to $1,000 each.