COURT: On 11 April this year, the defendant pleaded guilty to three charges of practising Chinese medicine without registration and one charge of manslaughter before a magistrate, and he was committed to the Court of First Instance for sentence.
Today he confirmed all his pleas before me and agreed to the Amended Summary of Facts prepared by the prosecution. As such he was convicted accordingly of all the four charges.
According to the Amended Summary of Facts to which he agreed, he was never a registered Chinese medicine practitioner or a listed Chinese medicine practitioner at all material times.
The victim or the deceased in this case is Ms Tam. She was married to a Mr Kwok (hereafter referred to as “KCW”). At the material time, KCW and the deceased lived together with their son in Yuen Long of the New Territories. The deceased did not suffer from any chronic illness or health problem, apart from having a simple cyst at the inner lower quadrant at her right breast, medically considered to be small in size.
In early October 2020, the husband KCW learnt from his friends that they were receiving acupuncture treatment from the defendant who was a Chinese medicine doctor, and his friends found the treatment effective.
As KCW was suffering from waist pain and the deceased recently suffered from numbness at her right hand, KCW wanted to relieve such problems by receiving acupuncture treatment from the defendant. So through the introduction of his friends, they came to meet the defendant and received their acupuncture treatment from him.
The first acupuncture treatment occurred on a day in early October 2020. That is the subject of the 1st charge. It took place at the residence of a common acquaintance of the couple and their friends and the defendant. On this occasion, the defendant told KCW that his waist pain was a result of his nerve being pressed and pressured, and he explained to KCW about the different benefits for having acupuncture treatment to different parts of his back.
During the treatment to KCW, he penetrated about 60 needles into the back of KCW and his waist, one needle at a time. Each needle used was about 3 inches long. After piercing a needle into his body, the defendant would move the needle back and forth with the needle remaining inside KCW’s body which caused him great pain. Each needle would remain inside KCW’s body for about two to three seconds. Only one needle would be pierced into his body at one time.
Sometimes there would be blood coming out after a needle was pierced into the body, and KCW noted that a large proportion of the needles were bent after they were removed from his body. A fresh needle would be used for each insertion, and then the used needles were taken away and kept by the defendant.
When KCW told the defendant that it was very painful, the defendant said it was normal to feel pain and asked KCW to try to withstand the pain to get through the treatment. The treatment lasted for about 30 minutes.
After he had finished with the treatment of KCW, it was then the turn of the deceased and he applied a similar process to her treatment. For this treatment, the deceased did not complain about the pain.
Thereafter the defendant was paid $800 in cash, and because KCW and the deceased found the acupuncture treatment helpful, they arranged to receive further treatments from the defendant.
On 5 November 2020, they received the second acupuncture treatment from the defendant, and that is the subject of the 2nd count. The acupuncture treatment was given to them at their own residential premises. The course of the treatment was similar to that of the 1st charge. When he applied the needles to the back of the deceased, at the time the deceased had her top clothing pulled up to her neck and she was laying prone on a cushion or on a table.
The 3rd charge related to the acupuncture treatment that he gave to KCW and the deceased on 3 December 2020 in a similar manner in their residential premises. After the treatment the deceased told KCW that she felt chest pain. The pain reduced after resting for 15 minutes and the deceased did not seek any medical treatment. Likewise, on this occasion the treatment was performed on her back with her top clothing pulled up to her neck.
The 4th charge of manslaughter relates to an incident on the evening of 10 December 2020. On that night the defendant further gave acupuncture treatment in similar fashion to KCW and the deceased.
On this occasion, KCW told the defendant that a cyst had been discovered at the right breast of the deceased for about 10-odd years, and KCW wanted the defendant to treat it. The defendant answered that he would not give acupuncture at the breasts, but he could give acupuncture at the right side of the deceased’s back to address the problem.
So he proceeded with the acupuncture treatment in a similar manner to previous occasions at about 9.30 pm that night onto the back of the deceased, but after about 15 minutes’ treatment, the deceased, who was usually tolerant to the pain and seldom complained about the pain, said she felt so painful at her chest that she needed to pause the treatment. The defendant replied her that it was normal and the pain would be relieved by tapping at her chest wall.
After two to three minutes, he asked the deceased if she felt better and whether he could continue with the treatment. The deceased said “Yes” and the acupuncture treatment continued. After about five minutes, the deceased again complained that it was so painful that she was to stop the treatment this time. The defendant again asked the deceased to tap at her chest wall to relieve the pain.
As usual, after the treatment to the deceased KCW drove the defendant to the Long Ping MTR Station for him to go home. After KCW had left the premises with the defendant, the son of the deceased and KCW, that is KCF, heard the deceased complained that she could not breathe. He saw that the deceased was pale with her lips in purple, and she was trying hard to inhale.
So KCF took a look and realised that the deceased was still pale, and her lips colour changed from purple to black. The deceased complained that she could not breathe. KCF immediately called 999 for ambulance. Eventually the deceased was rushed to Pok Oi Hospital, and she was certified dead at about 11.42 pm on the same night.
Sometime shortly after midnight the defendant answered a phone number and provided his full name, Hong Kong identity card number and his full address. He said that he had already been informed about the death of the deceased, and he said he had no qualification or licence for either medicine or acupuncture.
At 0523 hours on 11 December 2020, the police cautioned him at his Yuen Long residence, and the defendant was asked if he had any qualification for Chinese medicine or licence for acupuncture. He replied under caution that he had none. He was then arrested for practise without registration.
His residence was searched with the following items seized, including two plastic boxes containing 841 pieces of acupuncture needles in total, another 204 boxes of acupuncture needles, 2 bottles of disinfectant, 2 pieces of cotton gauze, some tools and 3 plastic bottles containing used acupuncture needles.
Upon caution, he said the acupuncture needles and the acupuncture tools found in his home were used for giving acupuncture treatment, and that the tools and the needles were purchased by his relatives in the mainland, and they were sent to his home in Hong Kong for his use.
Later in a video-recorded interview, he said he came to Hong Kong in 1979. He was educated up to secondary school level in the mainland and, as to whether he was registered in Hong Kong as a Chinese medicine practitioner, he answered “No”.
Autopsy was carried out on the deceased by the government pathologist Dr Cheung Hiu-ni. According to Dr Cheung, the cause of death was bilateral pneumothoraxes due to penetrative injuries to the back with the following significant findings, including the recent external injuries of about 35 roundish red bruises on the lower back of the neck and the upper back of the trunk of the deceased, a group of about 7 roundish red bruises on the lower back of the trunk of the deceased, and at the bilateral chest cavities there were abundant air bubbles consistent with pneumothoraxes. The back of the neck and the trunk also showed multiple bruises. Also 5 bruises were found at the right parietal and the left parietal pleura of the deceased.
Both lungs were markedly collapsed, consistent with pneumothoraxes, and the right upper lobe of her lung showed one roundish penetrative wound on its posterior surface. The left lower lobe showed 2 roundish penetrative wounds on its posterior surface. The distance between the skin surface and parietal pleurae measured at autopsy was 3.5 centimetres.
It was the remarks of Dr Cheung that the autopsy showed bilateral pneumothoraxes. Pneumothoraxes occurs when the integrity of the membranes is breached, allowing air to enter the pleural cavity from the lungs or airways or chest walls. The accumulation of air could compress the lungs and major blood vessels, resulting in death from respiratory and circulatory failure, and it can be caused by penetrative wounds.
In the present case, autopsy showed penetrative injuries to the back from the skin down to the lungs. The histological findings were consistent with the injuries being inflicted recently, within hours before the death of the deceased. Also there was one roundish penetrative wound on the upper lobe of her right lung and 2 roundish penetrative wounds on the lower lobe of her left lung. These wounds indicated that the membrane covering the outer surface of her lungs were breached, therefore allowing air to enter the pleural cavities.
According to the pathologist Dr Cheung, the acupuncture needles seized from the home of the defendant were found to be capable of piercing the pleurae if inserted through the skin at the back of the body. Also those needles were capable of producing penetrative injuries to the back of the deceased resulting in bilateral pneumothoraxes.
The defendant now accepts and admits that at the material time, in relation to all four charges, he was not a registered Chinese medicine practitioner or listed Chinese medicine practitioner, but he practised Chinese medicine by providing treatment or alleviation of disease or symptom of disease by way of acupuncture based on traditional Chinese medicine. He also admits that at the material time, in relation to Charge 4 of manslaughter, that by the unlawful and dangerous acts which exposed the deceased to the risk of at least some harm, he had unlawfully caused the death of the deceased.
The defendant was 72 years old at the time of the offence and he is now 76 years of age. He was born in China, and he came to Hong Kong at the age of about 31 years. He said he had received education up to Form 2 in China, and before his retirement in 2008 he had worked as a construction worker.
He has one previous conviction for the offence of assisting unauthorised entrant to remain in Hong Kong in 1984. I should mention here that for the purpose of sentencing, I would ignore his previous conviction completely.
The defendant informed this court that he was admitted to the Pok Oi Hospital in November 2023 to undergo a surgery to remove his gall bladder. Thereafter he was admitted to a home for the elderly and his mobility was categorised as ‘always need assistance from other people’. Before the offences he lived with his wife in Yuen Long, and he also had two sons and two daughters-in-law.
In mitigation, defence counsel Mr Michael Leung informed this court that he entered Hong Kong legally from mainland China at the age of 31 in 1979, and he had a supportive family. His wife and family members are all in court now to show their support to the defendant.
Counsel submitted that the defendant, in his young age, he was chosen to be a helping hand for the military doctors in the army, and thereafter these doctors became his teachers and mentors. He helped them to treat the soldiers and acquired the medical knowledge and skills for less than 10 years, and he started to learn acupuncture at the time. Thereafter he worked in China. He worked for a few years by attaching to different Chinese medicine dispensaries in Guangzhou.
Counsel agreed that he was never a qualified medical practitioner on the mainland before he came to Hong Kong, and the only source of his medical knowledge, including his knowledge about acupuncture, was when he was acting as a helping hand for the military doctors when he was in the army. That was in his very young days and that was something that lasted for less than 10 years.
Counsel submitted that after he came to Hong Kong in 1979, he started his practice of Chinese medicine and performed acupuncture on patients. At that time that was allowed in Hong Kong, and they were described as herbalists in the Ordinance if their practice was traditional Chinese medicine.
With the coming into effect of the new Ordinance in August 1999 when he was about 51 years old, all the Chinese medicine practitioners including herbalists were required to register as Chinese medicine practitioners before they could continue their occupation, or they had to become a listed Chinese medicine practitioner.
According to counsel, to obtain the qualification of a registered Chinese medicine practitioner requires the person to sit through certain examinations or to obtain certain qualifications. The alternative available was to become a listed Chinese medicine practitioner which was designed for those who had long years of practice and not willing to attend a school.
Counsel submitted that despite the fact that he had worked in Hong Kong for about 20 years as an acupuncturist before the new law came into effect, indeed he had never applied to become a listed Chinese medicine practitioner, not even making any attempt to become a listed Chinese medicine practitioner.
Counsel explained that because he found it difficult to provide evidence to prove that he had a practice for over 10 or 15 years, despite his practice for 20 years in Hong Kong. And counsel submitted that he did not have his own clinic, he only worked at the patient’s home, so that was difficult for him to prove his experience in Hong Kong. So, counsel said, he continued his practice even after the law required -- he continued with the illegal practice without a licence and worked only for his old patients or their friends by introduction. From time to time he also worked as a construction worker on a casual basis.
Counsel submitted that after his children had grown up he was not required to work anymore to support himself for a living, but he continued not for money.
Counsel submitted that he was very sorry for the death of the deceased. He also suffered from a stroke after the surgery in Pok Oi Hospital and he cannot walk properly anymore, and now he has to rely on a wheelchair for his mobility.
Counsel also submitted two mitigation letters, one prepared by the defendant asking for leniency saying that he sincerely regretted about the matter, and the other prepared by his family members including his wife, two sons and the two daughters-in-law. The family members also expressed their regret that they had not paid sufficient attention to the retirement life of the defendant and that was why he committed the offences.
Pausing here, I should mention that in neither of those letters I see any apology or regret shown to the deceased or her family members about causing her death in this matter.
Now, in respect of the expert report prepared by defence doctor Dr Peng Zengfu who is a registered Chinese medicine practitioner located by the defence, counsel would like me to take into account certain matters in his report. But before I come to address those matters, I must point out one important matter. It seems to me that the expert Dr Peng prepared his report on the basis that there were two complaints from the deceased. The first complaint, or the main complaint, was about lower back pain and that was classified as the primary issue. And the secondary complaint was the complaint about the cyst in her right anterior chest.
I should mention that apparently Dr Peng was mistaken. I have gone through the relevant evidence with counsel, and counsel confirmed in this court that indeed the deceased herself had never –– there is no evidence that she had ever complained about any lower back pain to the defendant, even though the husband, according to the Summary of Facts, the husband had complained about waist pain to the defendant.
Counsel would like to draw to my attention that according to Dr Peng’s expert opinion, the choice of needles in this case was appropriate and the use of the needle or the needle insertion sites by the defendant were also appropriate. However, it comes to my attention that Dr Peng also mentioned that due to safety concerns, in the past even when people studied acupuncture in school, the teachers emphasised avoiding needling in the chest and back area as much as possible.
But, Dr Peng said that “However, modern Chinese medicine acupuncturists are required to learn anatomy. Consequently, the acupuncturists would appropriately take into account the circumstances when needling the chest and back, under the condition of ensuring safety, in order to enhance the therapeutic effect, and may use relatively longer needles when appropriate.”
So in consideration of the expert’s opinion, I do bear in mind that the use of acupuncture needles or even longer acupuncture needles, which apparently is the case here, it is appropriate for persons who had learned anatomy under modern Chinese medicine.
Upon my query, counsel informed me that he had learned anatomy while he was learning from the military doctors when he was treating the soldiers together with the military soldiers in his young age. But other than that he had not received any formal training on anatomy. In my view this has diminished the effect of Dr Peng’s opinion about the appropriateness of his needling the back of the deceased by using even longer needles. As such I will give limited weight to the expert opinion of Dr Peng.
In the case of R v Clarke; R v Cooper [2017] 2 Cr App R (S) 18, the Court of Appeal in England stated that the court, in considering the situation where offenders of advanced age with concomitant health complaints fell to be sentenced for criminal offences committed at a time when they were much younger, concluded that while an offender’s diminished life expectancy, age, health and the prospect of dying in prison were factors legitimately to be taken into account in passing sentence, they have to be balanced against the gravity of the offending and the public interest in setting appropriate punishment for very serious offences.
In that particular case, the two appellants were aged 101 and 96 respectively, and they fell to be sentenced for sexual offences committed at a time when they were younger. The facts of those case are, of course, different from the present case. However, it is useful to refer to what the English Court of Appeal has said, that:
“Whilst we consider that an offender’s diminished life expectancy, his age, health and the prospect of dying in prison are factors legitimately to taken into account in passing sentence, they have to be balanced against the gravity of the offending, (including the harm done to victims), and the public interest in setting appropriate punishment for very serious crimes. Whilst courts should make allowance for the factors of extreme old age and health, and whilst the courts should give the most anxious scrutiny to those factors as was recognised in Forbes, we consider that the approach of taken them into account in a limited way is the correct one.”
I do bear in mind this principle when I sentence the accused, that is, when I look at the mitigation factor of his old age and his health condition, especially when I come to the sentence of the manslaughter charge.
I will first of all consider the sentence in respect of charges 1 to 3, that is for the offence of practising Chinese medicine without registration, contrary to section 108(2)(a) of the Chinese Medicine Ordinance, Chapter 549. The maximum sentence for conviction upon indictment for this offence is one of 5 years’ imprisonment.
In the case of HKSAR v Lei Xou Yi [2005] 3 HKLRD 556, the Court of Appeal stated that the medical qualification in the mainland was not a good reason or excuse for carrying on an illegal medical practice which is a serious offence since it put the health and the lives of the public at stake. Had the defendant not received any medical training prior to engaging in illegal practice he could have received an even more severe punishment.
In that case, without going through the particular facts of the case, the learned magistrate adopted a 3-year starting point for a person who operated on a large-scale Chinese medicine practice for a period of about twenty years and he had pleaded guilty to the offence.
In any event, I do bear in mind the principle that if a person had not received any medical training prior to engaging in the illegal practice, he could have received an even more severe punishment.
In this regard, I bear in mind counsel’s submission that he had learned his medical knowledge when he worked as a helping hand to the military doctors in his young age for less than 10 years, even though counsel was unable to tell me at what age he was when he obtained that knowledge. And counsel said that he also obtained this knowledge when he attached to a Chinese medicine dispensary. However there is no evidence of any formal training, that is, counsel agreed that he did not receive any formal training on Chinese medicine or anatomy.
In respect of the charge on Count 4, the charge of manslaughter, I do bear in mind what the Court of Appeal said in the cases of HKSAR v Lin Siu Lung [2009] 6 HKC 308 and HKSAR v Wong Shui Mouk CACC 239/2007 that a judge deciding an appropriate level of sentence for manslaughter should weigh in the balance the many factors in aggravation and in mitigation without indicating any starting point because this is the category of offence which can vary greatly in gravity and can be affected by many different considerations adverse and unfavourable to a defendant.
So it is not necessary for the court to indicate any starting point, and a judge passing sentence for a case of manslaughter should take an overall view of the matter, encompassing matters both of aggravation and mitigation, and come to a determination on an appropriate sentence.
Bearing those principles in mind, I should now come to the sentence in respect of charges 1 to 3. For those three charges, I think it would be appropriate to take a global view of the matter because the 1st charge occurred in early October 2020, the 2nd charge occurred on 5 November 2020 and the 3rd charge occurred on 3 December 2020.
To reflect the overall culpability that he had indeed practised as an illegal Chinese medicine practitioner and performed acupuncture for a period of about two months from October to December 2020, and the fact that on each occasion two patients were involved, taking an overall view or a global view of the matter would be an accurate approach to reflect his true culpability.
In my view, these three charges were aggravated by the fact that he had not received any formal training on medical practice and that, indeed, from the large number of acupuncture needles being seized at his home, I take the view that indeed he was operating on quite a large scale of acupuncture practice at the material time because in the Summary of Facts it was stated that at his home 841 pieces of acupuncture needles, in addition to 204 boxes of acupuncture needles, were found. And, also for the plastic bottles, there were altogether three plastic bottles containing used acupuncture needles. According to the Summary of Facts, apparently he put the used acupuncture needles into the bottles.
Taking into account the period of his practice in those three charges, the number of patients involved and the scale of his practice as indicated by the very large number of acupuncture needles found at his home, I consider that the appropriate starting point without aggravation should be 2 years and 9 months’ imprisonment.
To that I will add 9 months for the aggravating features because of the large scale, the fact that he had not received any proper training in Chinese medicine, and aggravated also by the fact that he practised the Chinese medicine for a long period of two months over two patients.
Even though counsel admitted in mitigation that since after the introduction of the new legislation in 1999 he had indeed never stopped working as an illegal Chinese medicine practitioner by performing acupuncture on other people, but those were not matters included in the Summary of Facts. I will only mention that for information but I will not treat that as an additional aggravating feature.
So the proper starting point for the overall charges of 1 to 3 after aggravation should be 3 and a half years’ imprisonment. He is entitled to a full one-third discount because of his early plea of guilty, and for that reason I will reduce the overall starting point to one of 2 years and 4 months’ imprisonment.
And I also bear in mind the less serious nature of those three charges, his age and also his health condition. For those matters I consider that it would be appropriate to give him a discretionary further discount of 1 month.
So in respect of the overall charges of charges 1 to 3, I would impose the ultimate sentence of 2 years and 3 months’ imprisonment.
Coming back to the individual sentences. I will also impose 2 years and 3 months as the individual sentence for each of Charge 1, Charge 2 and Charge 3 so that it can reflect the overall culpability of his practice over that period involving two patients on each occasion.
All the sentences in Charges 1, 2 and 3, are to be served concurrently. So the overall sentence for Charges 1, 2 and 3, is one of 2 years and 3 months’ imprisonment.
In respect of the charge of manslaughter, for the 4th count I have taken into account all the circumstances including the facts of the case, his lack of formal medical training and that he had performed -- even though I do not understand why he had to perform the acupuncture on the back of the deceased when her complaint initially was only about the right hand numbness, and it was until the day of her death that she complained about the cyst, or her husband complained about the cyst at her right anterior chest.
Nevertheless, I take into account that as a medical practitioner who was treating the deceased at the time, he had a duty of care to his patients irrespective of whether he was licensed or not, and he should deploy a very high level of safety measures when he was performing or using so many needles on the back of the deceased.
I also take into account the fact that after the deceased had complained about the pain or intense pain in her chest, instead of stopping right at that moment, according to the Summary of Facts he only allowed her to rest for two to three minutes. Then the deceased indicated that she could continue, and he continued until she was so painful that she could not continue anymore and asked him to terminate the treatment.
But, even with all those adverse symptoms displayed by the deceased, he left her home without staying to check her condition thereafter. He just let the husband drove him away to the MTR station without checking or staying for a longer period of time to ensure that the deceased was all right or see whether any further help was necessary.
Taking into account all those matters, I consider that the fact that he is now of an elderly age of 76 years and his health condition cannot constitute very valuable or valid reasons for reduction of sentence. As the court indicated in the case of Clarke and Cooper, they are of limited value for offences of a very serious nature. This court has to balance the sufferings suffered by the deceased herself and also her family. After all a human life has been lost based on the trust of the deceased and her family on his medical knowledge.
Having taken into account all the circumstances I consider that the appropriate sentence for Charge 4 should be one of 5 and a half years.
Having considered the distinction in the nature of the offences between charges 1, 2, 3 and Charge 4, the difference in the period, the number of patients involved in charges 1 to 3, I consider that it is appropriate to order half a year in the sentences of charges 1 to 3 to be served consecutive to the sentence in Charge 4, making a total sentence of 6 years’ imprisonment, and that is the sentence that I would impose onto the defendant for all those four charges: 6 years’ imprisonment.