The Attorney General v. Chan Sik-wai @ Chan Wai

CAAR000032/1975

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

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 30th April, 1976.

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

DECISION

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

1. The respondent was found guilty by a jury of one offence of using an instrument to procure miscarriage contrary to section 46 of the Offences Against the Person Ordinance (Cap. 212). He was sentenced to a fine of $10,000 or to six months' imprisonment in default.

2. In early February 1975, a girl aged 22 was robbed at the point of a knife and raped. This resulted in a pregnancy. She consulted the respondent and in consequence he used an electric suction pump upon her thus procuring a miscarriage. The operation was entirely successful. Shortly afterwards the girl developed typhoid fever, not as a result of the operation. In consequence the fact of the miscarriage became known.

3. The respondent is a man of 43 and was then operating a "gynaecological clinic". He is a graduate of a medical school in China, so he is not without some medical skill. There was no evidence that the respondent was a professional abortionist, nor indeed that he had ever performed an abortion other than in the present case. He charged the girl $400.

4. Mr. Sceats, who appeared before us on behalf of the Attorney General, submitted that the sentence of a bare fine was wrong in principle. He produced a list of recent cases which shows that it has been the practice to impose a custodial sentence in every case though in some cases that sentence was suspended.

5. We think that there is merit in Mr. Sceats' submission and that for an offence of this nature a custodial sentence should normally be imposed.

6. The application was therefore allowed and the sentence passed by the trial judge set aside. A sentence of eighteen months' imprisonment was substituted, such sentence to be suspended for two years. And the fine was reduced to $2,500.

Representation:

Sceats for crown/applicant.

L. Leong (M. Lee & Co.) for rewpondent.