Leung Ping v. The Queen

CACC000339/1977

Coram: Trainor, J.

Date of Judgment: 25th May, 1977

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JUDGMENT

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1. The appellant who is registered pursuant to the Business Registration Ordinance as the sole proprietor of the Leung Ping Chinese Herbalist Clinic was convicted: of practising medicine without being registered so to do; on a second count of carrying on the management of a clinic which was not registered or exempted from registration; and on a third count of being in possession of Part I poisons.

2. The evidence against the appellant as to the practice of medicine was given firstly by a police constable who on the 5th November, 1976 visited the premises of the appellant where he saw a notice board on which was written in Chinese characters "Leung Ping Medical Office". He knocked on the door and was admitted by the appellant. It would appear from the evidence that the only conversation that took place between the two of them was that the appellant inquired of the police constable how he knew to come there. There was evidence by the police constable that while he sat there the appellant felt his pulse. Apart from that there was not one piece of unambiguous evidence to indicate that the appellant was illegally practising medicine. The evidence on which the prosecution strongly relied consisted of a number of documents and exhibits. There were what were called "case cards", and a card of the appellant which set out a list of qualifications which to say the least of it sounded most unusual. In addition to those documents to which I have briefly referred evidence was given by a doctor, who said that he saw on the wall framed letters of appointment of the appellant as a medical practitioner. These he said were framed and placed on the wall. An interesting thing about them was that they were left on the wall, and were never produced to the court. Their absence is of considerable importance in that the learned magistrate in his findings obviously relied to considerable extent on the fact that the witness said those letters were letters of appointment of a person with the same name as the appellant as a medical practitioner. As those documents were not produced no evidence could be derived from them; no value could be attached to the hearsay statement of that witness and what was said ought not to have been taken into consideration by the learned magistrate in coming to his conclusion. It certainly was not the best evidence and the hearsay evidence was inadmissible. This witness also spoke of the premises and said categorically that the front room was a waiting room and the rear portion of the premises was a consultation room. These of course were questions for the magistrate to decide but he appeared to accept the statement.

3. Another document that has been emphasized by the respondent as indicating that the appellant carried on practice as a doctor was one to which I have earlier referred, the one stating the qualifications of the appellant. Section 31 of the Medical Registration Ordinance under which the appellant was prosecuted says that nothing in the Ordinance shall be deemed to affect the right of any person of the Chinese race, not being a person taking or using any name, title, addition or description calculated to induce anyone to believe that he is qualified to practise medicine or surgery according to modern scientific methods, to practise medicine or surgery according to purely Chinese methods and to demand and recover reasonable charges in respect of such practice. Now it occurs to me that that document that has been so strongly relied upon as indicative of the appellant practising medicine other than in what I might call the Chinese way in fact establishes that is the sort of practice in which he was engaged. The various things as they are writted there could never in my opinion lead any person to believe that the appellant was practising other than in a non-modern non-scientific way. However what upsets me most about this conviction is the fact that the learned magistrate did rely, and, I think, heavily on the documents that were never exhibited. Even if they influenced him to any appreciable extent I think it is fatal to the conviction and as I said earlier feeling as I do that he did take then into consideration I hold that this conviction is, to put it as its lowest, unsafe and unsatisfactory and accordingly I allow the appeal so far as the first count is concerned. What I have just said a moment ago equally applies to the second count and I allow the appeal as far as the second count is concerned. As to the third count - possession of Part I poisons - there is an onus imposed by the section on a person who is found in possession of Part I poisons to show that he is in possession of them in accordance with the provisions of the Pharmacy and Poisons Ordinance. This the appellant failed to do and the conviction of the learned magistrate was proper. In the circumstances I dismiss the appeal so far as the third count is concerned. As to the penalty that was imposed for that offence I see no reason for interfering with it. If the fines have already been paid then those pertaining to the first and second counts must be returned to the appellant.

Representation:

Mr. Sanguinetti (Helen A. Lo & Co.) for Appellant

Mr. Sharwood, C.C. for Repondent