Attorney General v. Wong Yuen Lam and Another

CAAR000003/1986

BETWEEN

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Coram: Cons, V.-P., Yang & Kempster, JJ.A.

Date of hearing: 10 June 1986

Date of delivery of judgment: 10 June 1986

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application for the review of sentences passed by His Honour Judge Rattigan sitting as a Deputy Judge of the High Court. Leave was given by this Court on the 21st March this year.

2. The two Respondents had pleaded guilty to the unlawful use of an instrument or other means to procure a miscarriage. Each were sentenced to 2 years' imprisonment suspended for 2 years. They had also pleaded guilty to other offences with which we are concerned.

3. The two Respondents are husband and wife. They both have medical qualifications and experience in China. The wife, in particular, has qualifications and experience there in gynaecology. They came to Hong Kong in 1979 and 1980 respectively. Since then the husband, apart from operating their unlicensed clinic for a short while, has been engaged in the commercial world by day and acted as a caretaker by night. As far as the abortion to which he pleaded guilty is concerned, he appears to have been concerned in an administrative rather than in a medical capacity. The wife has operated the unlicensed clinic and for a long time now has been the night nurse to an old lady.

4. The circumstances of this particular abortion were in no way unusual. It was performed in a room equipped with an examination couch and gynaecological instruments. It seems to have been performed skilfully and to have caused no ill effect to the patient.

5. It is suggested that the Respondents consented to perform the operation as the patient came from a poor background and could not afford hospital fees. They charged her only $500 for the operation. We would merely observe in passing that we are told that in appropriate circumstances abortions can be obtained at government hospitals at little or no charge.

6. There was no suggestion that the operation was justified for any of the reasons mentioned in Section 47A of the Offences Against the Person Ordinance. Indeed it is conceded today that it was not. More important perhaps, is that the agreed facts indicate that no consideration was ever given to the requirements of that section.

7. The Judge below was impressed by the medical qualifications of the two Respondents. We accept that as a factor to be taken into account to some extent. However a court must be very careful in assessing the value of medical qualifications which are not accepted in Hong Kong. It must also bear in mind that however skilful the surgeon, he or she will not be supported by the full range of facilities available at a government hospital or one approved for the purpose by the Director of Medical & Health Services.

8. The Judge seems to have attached great importance to his conviction that both Respondents would be able to practise medicine here after 1997. He put that comment in the forefront of his reasons. With every respect to him that is a matter of pure speculation, and even were his speculation to be well founded, we must confess ourselves completely mystified as to why he thought that consideration to be of any relevance. In our view it had none.

9. With every respect to the learned Judge he adopted a wrong approach. He said -

"The offence here is that the defendants are not licensed to practise. Abortion is legal in Hong Kong."

That is not a correct appraisal of the situation. Of course in a sense it is true that abortion is legal in Hong Kong. Provision is made for it in the Offences Against the Person Ordinance. But it is not available "on request'. Two registered medical practitioners must be satisfied that the case falls within one of the stringent conditions laid down in Section 47A. An abortion performed otherwise is illegal.

10. A perusal of the authorities indicates that it has generally been thought appropriate, since 1981, to impose immediately custodial sentences for abortions performed for reward in the context of an established business. We think that is the correct approach. We do not of course seek to deprive any judge of his discretion to suspend the sentence in appropriate circumstances, but we would expect him to be hesitant before doing so and this Court will look for cogent reasons in support.

11. We have already referred to factors which in our view do not provide support in the instant case. We then take note that both Respondents pleaded guilty and were cooperative immediately upon their arrest. We observe also that, apart from running the unlicensed clinic, they have led industrious and useful lives since their arrival in Hong Kong. They have brought up two children who are now 17 and 14 years of age. We are told that no one will be available to look after those children if immediately custodial sentences are imposed, and to that extent any such term will bear more hardly upon them by reason of their anxiety as to the circumstances of their children. But we do not see these as sufficient reasons for allowing the suspension of a sentence to stand.

12. Our attention has been drawn to the case of Chan Yau⁽¹⁾ in which this Court observed -

"          We are of the view that the general level of sentences which has been passed in Hong Kong for abortion is far too low and that a sentence of five years' imprisonment upon a professional abortionist, with a previous conviction for manslaughter, is not unreasonable."

13. It has been suggested to us that the Respondents do not fall within the category of professional abortionists, but the agreed facts suggest otherwise.

14. Our attention has also been drawn to other cases in which the indication given in Chan Yau⁽¹⁾ does not seem to have been heeded.  However, if the learned Judge had in this instance not suspended the sentence that he passed we think it unlikely that we would have interfered.

15. We also bear in mind that it is customary when the matter is raised upon an application for review to impose a term less than should have been imposed in the first instance.

16. For those reasons we allow the application, set aside the sentences imposed below and impose in their place sentences of 18 months' imprisonment to take effect immediately.

(1) Criminal Appeal No. 1523/83

Representation:

Mr. A.P. Duckett, Q.C. & Mr. K.K. Chan, Crown Counsel for Applicant

Miss Jacqueline Leong (D.L.A.) assigned for Respondents