HKSAR v. LAI PUI HEUNG

CACC 468/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 468 OF 1999

(ON APPEAL FROM HCCC 410 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 2 August 1999, the Applicant was convicted of using an instrument to procure an abortion, contrary to section 46 of the Offences Against the Person Ordinance, Cap. 212. This followed a trial in the Court of First Instance before Deputy Judge Louis Tong and a jury. The Applicant now seeks leave to appeal against her conviction. Her application relating to sentence was not pursued and this has been dismissed.

Prosecution's Case

2. The Applicant is 53 years old. She qualified as a doctor on the Mainland and at one stage of her career had been in charge of a clinic there. This was before she came to Hong Kong in 1989. The Applicant was not qualified to practise as a doctor of medicine in Hong Kong.

3. In February or March 1998, the victim, who was fifteen and a half years old at that time, discovered that she was pregnant. A friend gave her the telephone number of a "Miss Lai" for the purposes of having an abortion. In late March or early April, she called the number, asked for Miss Lai and spoke to a female. The victim told the woman that she was two or three months pregnant and asked how much an abortion would be. The woman replied "two to three thousand dollars" and told the victim to go to Exit D of the Sheung Wan MTR station and to make a telephone call from there. The victim arranged a date for this to take place and explained what clothing she would be wearing when they met.

4. On 5 April 1998, the victim met the woman, who she understood she had previously spoken to, between 2.00 and 3.00 p.m. at Sheung Wan MTR station. The victim described in her evidence the appearance of the person she met as someone who wore spectacles, was 40-50 years old and had short black hair. The victim asked the woman whether she was Miss Lai and the woman answered "Yes".

5. They left the MTR station together and walked for some 6 or 7 minutes to a building. They went into the building and up some stairs to a narrow corridor, off which was the entrance to a room. The victim, in the course of her evidence, said that she had had a good look at the woman during the walk to the room. On the door of the room was a signboard which said "Lai Yi Chinese Practitioner of Chinese Medicine". The room was divided by a piece of cloth into two but, apart from the woman and the victim, no one else was present. The woman gave the victim a cup in order to provide a urine sample for a pregnancy test, and the woman in due course confirmed that the victim was pregnant.

6. The woman then told the victim to lie on a bed where she examined her. The woman told the victim that she was about two months pregnant and that the abortion would cost $2,400. She also told the victim not to tell anybody about it because it was illegal.

7. The woman provided a white robe for the victim to wear. After a wait of about 5 or 6 minutes, the abortion was carried out. The victim was conscious throughout the abortion which lasted about 15 or 20 minutes, although the victim confirmed that during the procedure itself she was unable to see the abortionist because her knees obscured the view of the woman carrying out the abortion.

8. After the abortion, the woman helped the victim put on her underwear and they sat at a desk for a while. The woman showed the victim a picture to illustrate the nature of the foetus. Then the woman gave the victim some medicine and the victim paid the woman $2,400. She was told to phone for a later consultation.

9. About a week later, the victim became ill and had to go into hospital. It was in those circumstances that she revealed what had happened.

10. Just over a month after the illegal abortion had been carried out on her, the victim attended an identification parade on 8 May 1998 where she picked out the Applicant as the woman who had performed the abortion.

11. The Applicant, for her part, had been arrested on 22 April 1998. She had told the police, "Sir, I just help in testing pregnancy". The Applicant was interviewed at Central Police Station and two statements were taken from her. After the first of the statements, she was taken to her place of residence. There, the police found a box which contained a number of cards and those bore the Chinese characters "Lai Yi Chinese Medical Practitioner".

Defence Case

12. Turning now to the defence case, the Applicant testified during the course of the trial that she qualified as a doctor in China but, because she was not able to work as a doctor in Hong Kong, she acted as a nurse at the clinic where the abortion was performed. She only carried out pregnancy tests and acupuncture for patients. The clinic was run, she said, by a "Dr Cheung". She denied having carried out the abortion or even knowing about it. This must, she said, have been done by Dr Cheung.

13. She adopted the contents of her cautioned statements. In the first statement, she said that she had been introduced to Dr Cheung about two years before by a friend called Tsang. The Applicant did not know how to contact Tsang. She had worked at the clinic for about a year and, although she had allegedly known Dr Cheung for about two years, she also did not know where Dr Cheung could be found. She admitted that the telephone for the clinic was registered in her name.

14. In her second cautioned statement, the Applicant admitted that while she was the doctor in charge of Hainan Province Qionghai City and Children Health Clinic from 1982 to 1989, she had carried out abortions. She was responsible for the "bigger operations" where there was a necessity to remove the uterus. Having made this admission, the interview had to stop in order to enable her to speak with her son. When the interview resumed, the Applicant was asked whether she had conducted abortions on the Mainland and she answered: "During the period of being an intern I had done that for others. However, upon practising medicine after graduation, I never did that."

15. The premises where the abortion was carried out were searched. A number of medical instruments were found and the Applicant identified those instruments and gave her explanation as to their use.

16. The judge, in summing up to the jury, encapsulated the defence when he said at page 6:

"The prosecution does not have to prove the name or the actual type of instrument used in the operation. In this case, however, members of the jury, there appears to be no dispute on any of these matters by the defence. The defence raised was not that there was no abortion or that it was lawful, but that the abortion was not carried out by the accused. It was a case of wrong identification by the (victim)."

Grounds of appeal - identification criticised

17. Against this background, Mr John Halley, on the Applicant's behalf, has raised what amount to two substantive grounds of appeal. Firstly, he submitted that the judge had erred in admitting evidence of a dock identification by the victim. Secondly, he alleged that the evidence relating to an identification parade, when the Applicant was picked out by the victim, was wholly unsatisfactory. In these circumstances, he submitted that the judge had erred in finding that the Applicant had a case to answer at the conclusion of the prosecution's case because no safe or satisfactory evidence had been led by the prosecution to establish the Applicant's culpability.

18. The only issue at trial was the identification of the Applicant as the woman who performed the abortion on the victim. Evidence concerning identification of the Applicant came entirely from the victim who described her to police when she first reported the matter as being between 30 and 40 years of age, 5'2" tall, a bit fat, with fair complexion and having short straight hair. As to the Applicant's age, as we have already said, she was in fact 53. The victim was 15 when she gave that statement but was nearer 16 by the time she gave evidence to the effect that, in her mind, 30 to 40 was not very different to 40 to 50. We have already set out what she said during the trial as to her memory of the abortionist's appearance. She added that the abortionist had worn spectacles.

19. During the trial, the Applicant wore spectacles while she was in court as she does in these proceedings today. The victim was allowed to confirm that she was speaking of the Applicant by pointing her out in front of the jury whilst she sat in the dock. Before the court proceedings, however, the victim had, as we have said already, pointed the Applicant out on an identification parade.

20. In addition to the evidence of identification given by the victim, there was a considerable body of evidence connecting the Applicant to the premises where the abortion was undoubtedly performed. Firstly, the Applicant herself admitted being connected with the premises to the police who questioned her. Secondly, a watchman, PW3, who worked in the building, had on occasions collected rent from, or distributed rent receipts to, the Applicant, albeit sometimes he had seen another woman at the clinic. Thirdly, the name cards found at the Applicant's address bore precisely the same name as the signboard on the door of the abortion clinic.

21. The principle governing the identification of a defendant in court was very clearly set out in R v Hoang Duc Hoa and others [1997] HKLRD 12. Mortimer JA (as he then was) said at page 14D-E:

"This is not to say that in a proper case a dock identification cannot be allowed. A dock identification is admissible in evidence. We sound a note of warning, however, because judges should not allow dock identifications and prosecuting counsel should not seek to rely upon such, if the identification is the first time that the witness is called upon to identify an accused person unless there is some very good reason. The obvious reason is that an accused has refused to attend an identification parade and that no other proper means of identification has been possible before trial, such as a group identification of a structured identification by means of photographs or some other recognised and proper procedure. Normally, the only time that a dock identification is permitted is in a true recognition case where the accused is known well to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks."

22. In the present case, the circumstances which surrounded the dock identification of the Applicant by the victim arose following an occasion when, in the victim's presence, the judge had addressed the Applicant. This happened shortly after the victim started to give evidence when the judge asked the Applicant if she was able to hear what the victim was saying. The Applicant, through the interpreter, acknowledged that she could hear. The judge then asked the victim to keep her voice loud enough for everyone to hear and she continued with her answers to examination-in-chief.

23. Soon afterwards, the judge asked the jury to leave the court in order to discuss a matter in their absence. Following a short discussion, the Applicant's trial counsel (who was not Mr Halley) anticipating that the victim might be asked to identify the Applicant in the dock, enquired of the judge whether this should be allowed to happen in view of the earlier incident when the judge had addressed the Applicant in the victim's presence. In the end, more or less at the request of the judge, counsel made it clear that he was objecting to such an identification. However, the judge ruled that a dock identification could be made.

24. In the cross-examination which followed, the victim maintained that she was able to identify the Applicant in court because her memory was good, and she added that she would not forget such "important matters".

25. In our opinion, the judge did not err in permitting the victim to identify the Applicant in the dock. This was not the first time the Applicant had been identified by the victim. The essential evidence of identification of the Applicant took place at the identification parade on 8 May 1998 which we shall need to deal with separately under ground 2 in due course.

26. There is no rule of law or procedure which prohibits a witness from identifying a defendant in the dock where the witness has previously identified the defendant at an identification parade, or in some other legitimate manner and in some cases it may be appropriate for the judge to give a warning to the jury as to the limited probative value which such an identification has. Of course, prosecuting counsel runs a risk that the witness will fail to identify a defendant in court where, for example, the defendant's appearance has changed from the time of the earlier identification, or the witness has some other reason for failing to identify a defendant in court. This, however, is a risk which the prosecutor is entitled to take if he so desires. It may very well be that, for tactical reasons, the prosecution will consider that identification should be confirmed in court. This ground fails.

27. Turning now to the second ground of appeal, relating to the unsatisfactory nature of the identification parade, the circumstances in which it was held need to be scrutinised with some care.

28. On 8 May 1998, the victim and her mother attended Central Police Station for the identification parade. The victim went to the library in the police station where she was met by a police officer who explained the procedure. This officer was Inspector Simpson who did not testify in the trial because he was not in Hong Kong at that time.

29. The Applicant, together with her solicitor, also attended Central Police Station that day. She was kept in a separate place, away from the victim. As the Applicant was wearing clothes that might stand out on the parade, the officer in charge of it, Chief Inspector Sepher (PW6), suggested that she should change, and she did so. The Applicant and her solicitor then selected the other women volunteers who would stand with her on the identification parade.

30. A little later, the victim and her mother were mistakenly led by a police officer (not Inspector Simpson) into the room where the identification parade was due to be held. The victim was able to see a group of women on one side of the room who were moving about. According to the victim, the officer who had led her into the room and the "western" officer spoke to each other, and she and her mother were led back to the library. She did not pay attention to the identity of the people in the room, and none of the women stood out amongst the others. She said they were 15 to 20 feet away from her and she could not see them properly because she was not wearing her contact lenses. She estimated that she was in the room in that way for about 2 or 3 minutes.

31. After the victim said in examination-in-chief that she was in the room for 2 or 3 minutes, the Applicant's trial counsel, in the jury's absence, asked the judge to reconsider his ruling permitting the evidence of the identification parade to be placed before the jury. The judge's response was that he would not have made a different ruling even if the victim had testified to this effect at the earlier voir dire.

32. During cross-examination, the victim repeated that when she first entered the room where the identification parade was held, she did not pay attention to the people in the room.

33. PW6, the officer-in-charge of the identification parade, said that when the victim and her mother entered the room, the Applicant was facing him and had her back to the door through which the victim had just entered. When the victim and her mother entered, they just stood in the doorway. Inspector Simpson told them to leave. They looked at Inspector Simpson who led them out of the room. The whole episode lasted in his estimation no more than about 5 seconds. The Applicant's solicitor was consulted and he had no comment at that stage to make.

34. Thereafter, PW6 arranged for the Applicant and the eight other women volunteers to line up. The Applicant chose her position and then her solicitor asked some of the volunteers to change their positions. The Applicant had no objection to the volunteers taking part in the parade or to standing on the parade herself. On the floor in front of each person was a number. The Applicant chose position 7.

35. The victim was led back into the room by the same officer who had taken her into the room a few minutes earlier. She viewed the nine women in the line-up by walking from the beginning of the line to the end. She then went from the end of the line back to the beginning. The victim was then about 3 to 5 feet away from the women on the parade. After this, she went back to PW6 who was at a desk in the room and told him that the woman who performed the abortion was "No. 7". She was asked to repeat this more loudly for others to hear and she did so.

36. In evidence, the victim said that the Applicant's appearance had changed on the identification parade because the Applicant was not wearing spectacles. She remained confident that she had made no mistake over her identification of the Applicant. Her own failure to wear contact lenses made, she said, no difference because "I looked at them closely and I could see them clearly".

37. After the victim had identified the Applicant and had been led out of the room, the Applicant's solicitor was asked whether he had any comment on the identification parade. He commented, "I wish to point out that the witness was one of the two females who had just entered the room".

38. During cross-examination, PW6 accepted that the Rules for the Conduct of Identification Parades had not been followed in every respect because Inspector Simpson had allowed the witnesses to be called in before he could meet the victim at the door of the room and escort her to the table. In re-examination, he said that despite this flaw in procedure, he did not believe the fairness of the parade had been adversely affected.

39. After the prosecution closed its case, the Applicant's counsel made a submission of no case to answer on the ground that the victim's evidence of identification of the Applicant at the parade and in court should be withdrawn from the jury. The submission was primarily, though not exclusively, focused upon the irregularity in the conduct of the identification parade insofar as it has been outlined in this judgment.

40. Defence counsel, in the course of making this submission, conceded that a parade which was not conducted in strict compliance with the instructions for the conduct of identification parade did not necessarily invalidate the parade, provided the parade was conducted fairly. The judge ruled against this submission saying that such matters as he had been asked to consider were for the jury's consideration.

41. Mr Blanchflower, to whom we express our indebtedness for his most helpful submissions in writing which have to a large extent formed the foundation of what has been said in this judgment about the evidence, submitted that the judge's ruling was based upon his evaluation of the evidence having seen and heard the witnesses. He submitted that far from erring in law by concluding that there was a case to answer, considering the overall strength of the evidence, the judge would have erred if he had acceded to the submission of no case. He emphasised also that this was not a "fleeting glance" type of case. The jury had to decide, assuming the victim was attempting to tell the truth, whether or not she might have been mistaken. If she might have been, the prosecution had failed to prove its case.

42. We find ourselves in agreement with Mr Blanchflower. The submission of no case was rightly rejected. The procedural flaw was unfortunate, but in the event not serious, and it was properly left to the jury to decide whether they considered the identification had in any way been unfair to the Applicant.

43. As Mr Halley has submitted that the conviction was unsafe and unsatisfactory, we ought to conclude by saying that in summing up the issues arising from the evidence of identification, the judge's directions were impeccable. Indeed, Mr Halley has not attacked the summing up as such.

44. The judge carefully directed the jury in relation to their duty to assess the credibility, reliability and accuracy of witnesses and the evidence as a whole. The jury was told that a witness may be genuinely mistaken as a result of the lapse of time, as opposed to being deliberately untruthful. The judge said it was for the jury to determine whether they thought the conduct of the identification parade was fair. They should carefully examine the victim's evidence, particularly her evidence relating to identification. The judge gave directions that were flawless, following the guidance given in R v Turnbull and Another (1977) 1 QB 224, requiring the jury to examine all the circumstances in which identification by the victim had been made, and pointing out the weaknesses in her evidence on this topic. The judge directed them that if they had a doubt about the fairness and reliability of the identification parade arising from Inspector Simpson's absence as a witness in the proceedings, they should give the benefit of the doubt to the Applicant. The judge advised the jury not to treat the victim's identification of the Applicant in court as significant. The judge also reminded the jury that the victim had given evidence under immunity, leaving it to them to decide whether this could have affected her testimony.

45. Mr Blanchflower's submission was that the judge could not have said anything more to focus the jury's attention on the only issue in the trial and to advise them as to how they should approach the identification evidence. Again, we found ourselves in full agreement with Mr Blanchflower.

Conclusion

46. There is, in our judgment, nothing which would justify our intervention. The conviction must stand and the application is dismissed.