HKSAR v. LO WUN YI AND ANOTHER

HCCC 369/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 369 OF 2016

-----------------

------------------

----------------------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

----------------------------------------------

COURT:

Lo Wun-yi and Li Shuk-fan face an indictment alleging two counts of conspiracy to use an instrument with intent to cause a miscarriage, contrary to section 47 of the Crimes Ordinance and section 159 of the Crimes Ordinance. The first count alleges that a time between 1 January 2014 and 14 September 2014, the second count alleges the same offence, but between 15 and 16 September 2014.

The offence the subject of the unlawful conspiracy is to be found in the second part of section 46 of the Offences Against the Person Ordinance, Cap 212, which provides as follows:

“Any person who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers or causes to be taken by her any poison or noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence triable upon indictment.”

Under section 46, the relevant maximum penalty provision, is imprisonment for life.

The procedural position is that both Lo Wun-yi and Li Shuk‑fan were committed for trial to the High Court. At a listing hearing on 28 September 2016, Lo Wun-yi indicated her intention to plead guilty. In contrast, Li Shuk-fan indicated an intention to plead not guilty. Orders were made for the trial to be listed on 21 August 2017.

In the meantime, Ms Lo informed the prosecuting authorities of her intention to give evidence against Ms Li. Following that, Ms Lo gave a number of witness statements to the prosecution. On 1 December 2016, before Andrew Chan J, Lo Wun-yi pleaded guilty and admitted a summary of facts. She was convicted and the case was adjourned.

On 1 March 2017, the Court was informed that the prosecution had indicated that it was prepared to accept Lo Wun-yi as a prosecution witness and her case was adjourned until the end of the trial of Li Shuk-fan. Further statements were given by Lo Wun-yi and following that, and as counsel for Ms Lo would contend, as a result of those statements, Li Shuk-fan indicated a plea of guilty.

The matter arose because an undercover officer, who was instructed to pose as a pregnant woman, proceeded to the residence of Lo Wun-yi. She presented at the residence of Lo Wun-yi and was admitted. The undercover officer claimed to her that she was pregnant. Enquiries were made and Lo Wun-yi expressed to her that given the medical history she had presented, it was too late for a termination of pregnancy by taking medicine.

Ms Lo told the officer it would be safer to have a surgical abortion and that the procedure would be a brief one. The officer was told that the cost of the operation would be $5,500. She was also told that she would be taken to another place where the operation would be performed by another doctor, which Lo Wun-yi would simply assist that doctor.

The undercover witness was given advice by Ms Lo to the effect that she should not eat 2 hours before the operation, and that medicine would be administered as an anaesthetic. A telephone call was then made by Lo Wun-yi which was to the effect that arrangements would be made for the operation to occur the following night. Lo Wun-yi told the undercover officer she would accompany her throughout the abortion process. She then prescribed pills which were said to be for relieving the pain of the operation and for the reduction of inflammation.

The undercover officer paid to Lo Wun-yi a deposit of $500 for the operation. No physical examination was performed. There was, however, an enquiry on the part of Ms Lo as to the allergies that the undercover officer might have to certain foods or medicine.

The next day, that is, 16 September 2014, Lo Wun-yi met the undercover officers and they were taken to a residence, that of Li Shuk-fan in Kwong Tin Estate. Lo Wun-yi inputted the password to the building and went to the residence of Li Shuk-fan. Outside that residence, Lo Wun-yi asked the undercover officer whether she had brought the surgical fee of $5,000. It was only then that Ms Lo rang the doorbell. Li Shuk-fan answered the door and admitted Lo Wun-yi and the undercover officer.

She was introduced as Dr Li. Inside the flat, the undercover officer noted that two, three-drawer filing cabinets were located and on top of that was a wooden board about 6 by 3 feet, covered by a plastic mat. That was the surgical table. The undercover officer was instructed to go to the toilet and to urinate and on her return, to take off her trousers and get on the surgical table. The officer enquired of Li Shuk-fan what would happen. She said that she was told she would first examine and disinfect her before giving an anaesthetic injection.

She said that she would then suck out the foetus with certain instruments. Ms Li told the officer that the instruments had been disinfected and were placed on a dressing table. She then urged the officer to go to the toilet and urinate. The relevant table displayed what might appear to be surgical instruments, including a duckbill specular, surgical scissors and clips. There was a syringe containing a transparent liquid.

While in the toilet, the officer called her colleagues and suggested they might like to take arrest action, and about 2 minutes after that, Lo Wun-yi and Li Shuk-fan were indeed arrested. When Lo Wun-yi was arrested and cautioned, she said, “I refer the girl to Dr Li because I wanted to earn a reference fee of $500. For the Western medication, that was given to the girl simply because it would be safer and hurt less if she took it before the operation.”

On arrest and caution, Li Shuk-fan said, “I perform abortion for others by reference of Dr Lo simply because I am in need of money. I charge about $2,500 each time.”

A search of the premises was then conducted. In various places, equipment and medicine consistent with conducting a surgical abortion were found. On the dressing table, a bottle bearing the label “Lidocaine” which was analysed to contain Lignocaine was found. In the kitchen, the officers found a pressure cooker.

The medical evidence would have been, at trial, that Lidocaine is a local anaesthetic which is used in operations such as surgical abortion. The tablets, pills and other matters found included a number of Part I poisons and antibiotics controlled by the Antibiotics Ordinance and some dangerous drugs. That included ketamine which is capable of being used as an anaesthetic in operations.

The medical evidence would have been that Li Shuk-fan did actually explain the surgical abortion procedures to the undercover officer, and had prepared medical apparatus and drugs for carrying out the operation. The premises in which Li Shuk-fan -- were adapted for carrying out gynaecological and obstetric examinations and operations, including surgical abortions.

Neither Lo Wun-yi nor Li Shuk-fan was a registered medical practitioner. Lo Wun-yi was a practitioner entitled to practise Chinese medicine under the Chinese Medicine Ordinance, Cap 539. The significance of absence of qualification as a registered medical practitioner is that section 47A of the Offences Against the Person Ordinance provides an exception to the criminal prohibition against using an instrument or chemicals to procure an abortion under limited, unspecified circumstances.

In short, section 47A provides that pregnancy may be:

“... terminated by a registered medical practitioner if 2 registered medical practitioners are of the opinion, formed in good faith that

(a) the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the pregnant woman, greater than if the pregnancy were terminated; or

(b) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormality as to be seriously handicapped.”

There is another critical requirement which is that, “The termination of pregnancy must be carried out in a hospital or clinic maintained by the Government or declared by the Director of Health by notice published in the Gazette to be an approved hospital or clinic for the purposes of ...” section 47A. There is a slight qualification to this which is not material for present purposes.

There is no suggestion in the agreed facts that the premises where Lo Wun-yi took the undercover officer to, and which were occupied by Li Shuk-fan, could conceivably be the kind of hospital or clinic contemplated by section 47A. Further, there is no suggestion that either Lo Wun-yi or Li Shuk-fan made any enquiries of the undercover officer to determine whether the pregnancy claimed by the officer would in any way be a risk to the life or health of the officer.

Lo Wun-yi was interviewed under caution and that interview was recorded. Essentially, she made full admissions and added that she had known Li Shuk-fan for over 10 years and that she believed that she was an obstetrician in the mainland. Further, she admitted collaborating with Li Shuk‑fan in offering surgical abortions since early 2014. In that time, she admitted that three or four abortions had taken place in the premises of Li Shuk-fan. Ms Lo described the process of the operation and said that the pressure cooker was used to sterilise the surgical instruments by high heat.

As the anaesthetic, she said that Li Shuk-fan would administer that, but she admitted that she helped purchase it. She described the reward that she would receive from Li Shuk-fan in the form of lai see. Li Shuk-fan was also interviewed under caution and that video was recorded. She told the police that she came to Hong Kong in 1990 and lived at premises in Kwong Tin Estate. She said that she had known Lo Wun-yi since the early 1990s, but only started to perform abortions in association with her in 2014. She said that she could not remember how many abortions she had performed in association with Lo Wun-yi.

She said that she had been an obstetrician in the mainland for 30 years before coming to Hong Kong, and accordingly, she knew how to perform surgical abortions. She actually performed the abortions and Lo Wun-yi assisted her. She described in some detail how she did that. She identified the instruments found in her premises and that was in the course of describing how she performed the abortions.

Li Shuk-fan told the police that she used the pressure cooker as the means of sterilising the instruments. The Lidocaine was used as a local anaesthetic and the ketamine was used for general anaesthesia. She accepted she was not a registered medical practitioner or a Chinese medicine practitioner. She described the financial arrangements between herself and Lo Wun-yi.

Dr Raymond Wong was a consultant at the Prince of Wales Hospital. He examined the equipment and circumstances and made the point that there was no medicine or equipment suitable for resuscitation. He explained why that was of concern because it was necessary, when Lidocaine was used, that there may need to be a requirement to manage possible reactions to that drug involving the cardiovascular respiratory or central nervous system effects. Further, not only was there no oxygen available, but there was no monitoring devices such as a blood pressure measuring device.

He expressed the view that arrangements in connection with the table were so rudimentary that any resuscitation procedures such as external cardiac massage would not be possible. He made the point that if there was a reaction to Lidocaine, then the patient would not be in a position to receive immediate treatment. That had the potential to expose the patient to a risk of brain damage or other complications. The absence of the monitoring devices meant that if the patient got into trouble in this regard, this would not be spotted promptly.

He characterised the arrangements at the premises of Li Shuk-fan as amounting to gross medical negligence. He also expressed the view that the sterilisation equipment was potentially inadequate which could lead to a significant risk of infection, which could itself be life-threatening.

By way of background, Lo Wun-yi was aged 65 and born in China. She had previous convictions in 1982 of practising medicine without registration, and the possession of antibiotic substances without registration. Both offences received a non-custodial sentence. She was a person who undertook a course in Chinese medicine and was practising Chinese medicine until the present. She is a widow and has been for a long time. She took up the obligation of educating her two sons.

It cannot have been easy for a person who is a registered Chinese medicine practitioner to undertake this task. Her efforts have paid off and her sons, aged 42 and 40 respectively, have achieved great things. I read a medical report from Dr Henry Kwok that she is a chronically depressed person. She receives treatment for that depression. Both Lo Wun-yi and her psychiatrist speak of the strain she has been under since being detected and culminating in today’s proceedings. That has, perhaps, been contributed to by something of an estrangement between her and one of her sons.

The mitigation letters are from, amongst other sources, a vast number of patients who speak highly of her. Plainly, she is a caring doctor and gives of herself to the community. She is a person who is facing the prospect of an operation on her back in the near future. She has made four admissions to the police, although she did not avail herself of the opportunity of a plea of guilty when the matter was committed to the High Court. I do not propose to hold that against her in this context.

She was not charged until 31 May 2016, but after that, her case proceeded to the High Court in a relatively efficient and uneventful manner. It is manifest that in the investigation of this case the police have experienced a great deal of frustration and, not to put too fine a point on it, bureaucratic inertia on the part of agencies other than the police. This does nobody any good, and while it is possibly somewhat over-generous on my part not to blame anyone for the inertia which occurred, the overall effect is that there has been a delay in this case which could easily have been avoided.

Frankly, I am not in a position to quantify the avoidable delay. It is certainly not as great as contended for by counsel for Ms Lo, but it is there. Implicit in the very helpful chronology put forward by counsel for the prosecution is a mounting degree of exasperation on the part of the police which is, in my judgment, having read the outline, well justified. It is a factor which I propose to take into account in sentence.

In addition, she has manifested her remorse by giving a series of statements to the police with a view to being a witness for the prosecution in the trial of Li Shuk-fan. It is clear that provision of those statements was a critical factor in Li Shuk-fan changing her plea from not guilty to guilty. That is to her credit and in due course I will reflect that in the sentence I propose to pass.

Li Shuk-fan is a 75-year old woman and she, too, had been born in China. She has a previous history of practising medicine without registration and possession of antibiotic substance and possession of a Part I poison. She was convicted and received a non-custodial sentence. As I indicated during the hearing, I do not intend to hold that against her. While in China, she was trained at a school for medical assistants and midwives in Zhejiang in 1960, and following this, she worked in a commune hygiene centre as a medical assistant and midwife.

She also worked in a centre providing obstetrics and gynaecology services. Between 1980 and 1990, she had been promoted to what is described as “medical practitioner” and was permitted to provide operations artificially induced abortions. She has had, to say the very least, a challenging and difficult life. She lost one of her sons to leukaemia and her husband was, until recently, in a nursing home. He, sadly, died some weeks ago.

She lives in public housing. To say the least, her financial position is, as counsel for Ms Li put it, in a tight situation. She suffers from depression. Plainly, she has had a difficult time of being in mainland China, having gone through the trauma of the Cultural Revolution. I accept the submissions of her counsel that this had a profound effect on her. She accepts that it was financial pressure which induced her to work as an abortionist. She would receive something of the order of $2,500 as a reward for the operation. She said she considered she would be able to perform abortions safely because of her past experience and that using Lidocaine would not cause danger to patients.

It will be obvious from what I earlier observed that I do not accept that for one moment. I have also read the psychologist’s report, Mr Eddie Li Kam Wah. The statutory scheme which regulates the provision of abortions requires that the person who carries out the abortion is a registered medical practitioner. Further, the procedure must be carried out in an approved hospital. These are obvious safeguards for the safety of the patient. As Dr Raymond Wong pointed out, things can go wrong for the patient, and so it would appear, they can go wrong in a hurry. Hence, the need for the means to conduct resuscitation and the means to monitor the patient’s life sign through devices as elementary as a blood pressure monitor.

Dr Wong also made the point that, in the absence of adequate sterilisation equipment to ensure that surgical devices used in the course of conducting an abortion were suitably sterilised, there is a risk of infection to the patient. Although Dr Wong does not articulate the kinds of consequences where there is an infection created in the course of undertaking a surgical abortion, it seems to me that those risks are both obvious and potentially very serious. Small wonder it is that he characterised the setup at the premises of Li Shuk-fan as amounting to gross medical negligence.

While I accept that Li Shuk-fan has had some extensive medical experience in the mainland undertaking abortions, the idea that she would regard the setup in her premises as adequate for the safety of her patients or sufficient for their safety beggars belief. If she did not appreciate those risks, but nevertheless went ahead, then the situation in terms of culpability is either the same or marginally worse. The setup that was seen in the premises of Li Shuk‑fan either assumed that all things would go right, or was naïve to the possibility that they could go wrong.

It is no answer, in my opinion, to say that if the patient got into the kind of situation that Dr Wong contemplated, that she could be bundled off to hospital for treatment. This point, which in my opinion is an utterly compelling one, is that sometimes it will be necessary to undertake resuscitations or other procedures when things go wrong in a massive hurry; otherwise, there is no point in bundling the patient off to the accident and emergency department of a hospital.

Lo Wun-yi is a registered medical practitioner. She has been working with Li Shuk-fan for some time and I draw the irresistible inference from the admitted facts in this case that she must have appreciated that, to put it politely, the basic setup in the premises of Li Shuk-fan was inadequate for the safety of patients. While I am prepared to accept that her appreciation of the risk to patients may not have been to the same degree as that of Li Shuk-fan, she must have appreciated that the setup to which she was referring women was inadequate for the safety of those women.

There is not a word of warning to the effect, “If things go wrong, you are at substantial risk if you have an abortion in this clinic.” A further consideration in the legislative scheme is that a registered medical practitioner is only permitted to undertake the abortion in an approved hospital if two registered medical practitioners have formed a view about the consequences of an abortion in the terms expressed in section 47A of the ordinance. The legislative scheme is plainly aimed at a compromise between abortion on demand and an absolute ban on abortion.

No enquiries were made about the consequences for this woman if an abortion was not carried out. I perfectly recognise that both Lo Wun-yi and Li Shuk-fan were not qualified to express an opinion and would not be equipped to necessarily ask the right questions, even if they’d gone through that sort of enquiry. Against that, I think it is probably fair to say that attitudes to abortion, although not uniform, are somewhat more relaxed than they were when our present legislative scheme, and in particular, the enactment of section 47A came into being.

Both Lo Wun-yi and Li Shuk-fan were doing this for financial reward. They said so. Further, this was not a one-off arrangement. These two women had, so it would appear, worked together to provide abortions for many months. Thus, they put at risk the health and safety and wellbeing of more than one woman. The charge on the indictment is conspiracy. It is well-established that the essence for sentencing purposes of such a crime rests in the agreement. If there are instances of the execution of that agreement, in this case by conducting abortions, that assists the sentence that is to be considered appropriate, at least to some degree, and it assists in identifying the nature and scope of the conspiracy.

There is no suggestion that the conspiracy averred in Count 1 is different to that averred in Count 2. I infer, and I think it is the only reasonable inference from the proved facts, that the arrangements for such other abortions were carried out in the furtherance of the conspiracy in Count 1 were precisely the same as Count 2. The risk was precisely the same.

Against that, given their respective backgrounds, these women might have had more insight into how to conduct a surgical abortion than most in the community.

The authorities which consider the appropriate sentence for this offence recognise that the circumstances which comes before the courts are so varied in nature that it would be impossible, and indeed, inappropriate to have a tariff for the sentencing of offences of this nature. This is articulated in the decision of the Court of Appeal in HKSAR v Tsui Pik Fong [2009] 5 HKLRD 498, [2009] 5 HKC 210. In that case, one of the issues was whether chemically induced abortions were worse or better than surgical abortions for the purpose of sentencing. The answer was, obviously, in the negative. However, in the course of rejecting this proposition, Wright J for the court observed, at paragraph 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’.”

While I am not sure that I am totally comfortable with characterising the arrangements in this case as a “backstreet abortion”, it is critical in the observation of Wright J is how important the risk to the patient is in considering the appropriate sentence. I respectfully agree with Wright J that the case of Scrimlagia, I give the reference, does not greatly assist. I do so not just for the reason that he advanced, but also because the three characterisations of situations referred to in that case really do not help for sentencing purposes.

Wright J then considered the authorities at paragraph 17. The essence of that examination would suggest a continuous provision of abortion service - for this purpose I make no distinction between an individual and a conspiracy to provide unlawful abortion services - is somewhere in the region of between 18 months and 2 years. In this regard, I was greatly assisted by counsel, including the prosecutor, who suggested that this was the correct analysis.

This was a conspiracy to provide abortion services over a significant time. Both Lo Wun-yi and Li Shuk-fan were active members of the conspiracy, although they had different roles. Lo Wun-yi introduced the patients and brought them to the clinic - I use the word “clinic” loosely - collected the fee, and received a reward for her part in the procedures. This happened on a number of occasions, including the one which brought this conspiracy to light.

The essence of what must be sentenced here is the agreement to provide the services, although as I have said already, the fact that the conspiracy was executed on a number of occasions provides some information as to the nature and scope of the conspiracy. I would not characterise these two women as equals. They were both extensively involved in the conspiracy.

Lo Wun-yi was not merely the introducer; I have found already she must have appreciated that there was an element of risk in these abortions, even if her appreciation was not as detailed as that of her co-accused. Different members of a conspiracy may have different levels of participation in that conspiracy and their culpability must be judged by reference to that. In my judgment, the appropriate starting point for Lo Wun-yi is 18 months.

Li Shuk-fan carried out the abortions for money and must have appreciated the risks she was exposing her patients to. It may well be that in many, if not most cases that she participated in, in the furtherance of this conspiracy that all did go well. However, that wholly misses the point. The major purpose of section 47A of the ordinance is to ensure that if abortions are to be carried out, they are carried out in as safe an environment and by as qualified practitioners as can be reasonably expected.

None of that was provided here. If something had gone wrong, serious consequences could easily have flowed to the patient. One adds to this the observation about the inadequate sterilisation procedure and one could easily see, therefore, how Dr Wong could express the view that this was gross medical negligence.

By reason of her participation in this conspiracy, I consider that a starting point of 2 years is appropriate for Li Shuk-fan.

Neither of these women have had easy lives. At various stages of their lives, those lives have been beset by tragedy, trauma and difficulty. In relation to Lo Wun-yi, her remorse and her cooperation with the authorities is clearly demonstrable. She is a person who is spoken of by her patients and those who know her in the highest terms. She is, in the context of being a Chinese medicine practitioner, obviously a devoted and caring practitioner. Whether it be Chinese medicine or Western medicine, the degree of patient care and empathy which emerges from the mitigation letters, which I accept without reservation, speak in some respects of a practitioner who might well be an example to others.

Nevertheless, she has participated in a conspiracy to provide abortions for money over a substantial period. In my judgment, the appropriate sentencing discount for her plea of guilty is about 33 per cent. To that must be added her willingness to testify for the prosecution and the fact that she will not now have to actually testify is, for all purposes, irrelevant. She did all she could and she must be given full and appropriate credit for that. She is, as I say, a person spoken highly of, and that must be a relevant factor for sentence.

She has gone through perhaps a difficult and stressful time over the last couple of years. There has been an element of delay which I have already observed is difficult, if not impossible, to quantify. She faces prison as an older woman and that cannot be ignored. I do not think I could reduce the percentage discounts in a manner which is coherent or logical in all of the foregoing factors. To do so would be, in my judgment, to surrender the art of sentencing to something of a bean-counting exercise and I am not prepared to participate in that.

I have also struggled with the suggestion, forcefully and persuasively made by Mr Lee, Barrister at Law, on her behalf, that her sentence be suspended. There are arguments in favour of suspension and all the mitigating factors are relevant for that. However, struggle as I did with that notion, I do not think I could justify to the community of Hong Kong suspending the sentence.

I am perfectly aware that a suspended sentence is a prison sentence. However, I come back in the end to her participating in a conspiracy which placed at serious risk women who sought abortions outside the recognised and safe processes of a Government or approved hospital, done by a registered medical practitioner. The just sentence, taking into account all the factors, apart from the plea of guilty, results in an overall discount of about 45 per cent. As I mentioned, I treat the second count on the indictment as a continuation of the first.

The sentence I pass is a concurrent sentence. On my calculations, that means that she must go to prison for 10 months.

In arriving at a just sentence in the case of Li Shuk-fan, I first have to take account of her eventual plea of guilty. It seems to me this clearly came about as a result of the extensive and continued assistance of Lo Wun-yi. The plea of guilty is, in a multitude of respects, a final recognition of what ought to have been obvious right from the start. Even if, for example, the admissions against interest attributed to this woman were held to be inadmissible at trial, the rest of the evidence is, in my judgment, overwhelming.

Quite why, in the face of those blindingly obvious facts, she did not accept responsibility for her conduct at an early stage is something I find difficult to contemplate. It could be that the explanation is that sometimes, even in the face of an overwhelming case, it is very difficult in those personal and particular circumstances of a case for a person to finally take responsibility and accept the obvious. In view of the personal circumstances of this woman, I would be prepared to accept that as an explanation, even if I might be accused of being slightly over-generous in my approach.

All things considered, I think a discount for a plea of guilty of 25 per cent is perhaps generous, but appropriate in the circumstances. Further, the personal circumstances of this woman read in some respects like a page torn from recent Chinese history. Her situation in Hong Kong was dire, and I am sad to learn of the death of her husband.

It would be wrong to ignore her age of 75, although, but it must be said, to a significantly lesser degree, I struggled with the thought of imposing a suspended sentence. However, for the same reason as I gave, albeit it was slightly easier for me to decide in this specific case, I decline to suspend the sentence. For all of the factors other than the plea of guilty, when added together, leads me to reduce the overall starting point by an overall figure of about 30 per cent.

The consequence of this is that Li Shuk-fan must go to prison for 17 months on each count, concurrent. That is my sentence.