Lui Man Kit v. R.

CACC000363/1993

IN THE COURT OF APPEAL

1993, No. 363
(Criminal)

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Coram: Hon Yang CJ, Silke VP, and Penlington JA

Date of hearing: 23 February 1994

Date of judgment: 23 February 1994

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted after trial of one count of using an instrument with intent to procure a miscarriage. She was sentenced to imprisonment for 21 months. This is her application to appeal against both conviction and sentence.

2. In the course of the trial, she also pleaded guilty to three other charges, namely, one for carrying on an unregistered clinic, one for possession of Part I poison, and one for possession of antibiotics. She pleaded not guilty to a charge of administering a poison with intent to procure a miscarriage. She was acquitted by the jury on that charge.

3. The particulars in the indictment state that the applicant on 11 January 1992 at Flat 1C on the First Floor of 55 San Hong Street, Sheung Shui, New Territories, with intent to procure a miscarriage of a woman called LIU Hing-ying, unlawfully used an instrument or some other unknown means.

4. LIU Hing-ying was at the time 16 years of age and, as the judge pointed out in his summing-up, it was essentially a case about an alleged abortion.

5. Three grounds of appeal have been advanced on behalf of the applicant. Firstly, the complaint is made that in the course of the trial a material irregularity occurred when counsel for the Crown asked questions of the applicant, during cross-examination, which inferred that the applicant habitually performed abortions. Secondly, it is contended that although this was a case in which the credibility of the applicant and her propensity to commit the crimes with which she was charged were crucial to the issues to be decided by the jury, the learned trial judge failed to direct the jury on the relevance of her previous good character. Thirdly, in all the circumstances, the conviction was unsafe and unsatisfactory.

6. The issues in the case were succinctly put by the judge. The prosecution said that the applicant burst the fetal membrane of LIU Hing-ying to procure a miscarriage. The applicant's case was that she attended to LIU Hing-ying on 11 January 1992 to stop her bleeding. The applicant said that nothing was done by her to the girl with any intention to procure a miscarriage.

7. Having warned the jury of the danger of convicting on the uncorroborated evidence of LIU Hing-ying who was an accomplice, the judge went on to give a fairly detailed account of the evidence of the prosecution witnesses and the applicant. It is not disputed that LIU Hing-ying's evidence was not corroborated.

8. The first ground of appeal is based on three groups of questions and answers. The first group dealt with the applicant's medical practice. She said: "I mean I cured people's colds, coughing, fever, influenza, and a lot of people in Hong Kong have VD. They come to my place for clearance and flushing". She stated that the main source of her income had not been that of curing diseases and illnesses for she also operated a factory.

9. This series culminated in the question: -

"Q. You told us you arrived in Hong Kong in 1982. Have you been running or managing your unlicensed clinic since that time ?"

10. The trial judge intervened, asking Counsel for the Crown the relevance of this question. The witness was allowed to answer and she said: -

"A. At the beginning stage, yes, but subsequently just on and off. ....."

11. As the jury were aware of her plea to managing an unregistered clinic, we consider the complained question to be legitimate cross-examination.

12. The second group of questions and answers concerns the cases, for example, of patients who are three months pregnant who suffer from German measles or cataract. She said she had no experience in this sort of situation. She was then asked: "Was Ms Liu the first person that had ever approached you for abortion ?" It is clear that at this point of the evidence the judge became concerned at the direction which the questions might be heading and, in the absence of the jury, a discussion ensued between the Bench and the Bar in order to avoid any question that might be asked, which tended to show that the applicant had the propensity of committing anything relating to abortion. This question received no answer as the line was not pursued. With respect to Counsel for the Crown it should never have been asked. But the matter was allowed to rest.

13. The third group of questions and answers began with her answer in the affirmative to the question as to whether she had told the court that she gave injection to LIU Hing-ying every three minutes or so to stanch the blood vessels. Then she was asked why she had that kind of injection in her clinic. She replied: -

"Because quite often women, after delivery and yet they did not have an appointment with hospital, they would come to my clinic for consultation. So I must have that kind of injection ready. Maybe there were some women who had a lot of period, bleeding incessantly due to their menopause, I had to give that kind of injection to stop bleeding. Also there were some cases where women who received contraceptive injections at health centres, after they had received contraceptive injections, they bled continuously; so they would come to my place and I would give that kind of injections to those women."

14. In our view, there was nothing improper in the question which elicited that answer. A little later, when the question "You also told us that you had injections to contract the uterus" was asked, the judge again in the absence of the jury discussed the matter with counsel to avoid questions which might show propensity being asked. No answer was given to the indicated question and, again, the line was not pursued.

15. In the light of the different counts with which the applicant had to face, the questions and answers were designed to show the total background of the applicant's practice as a medical practitioner in an unregistered clinic. In our judgment, there is nothing in this first ground of appeal, taking the questions individually or, as Mr Dunn for the applicant asks us to, cumulatively.

16. As to the second ground of appeal, we note that the applicant did not put her character in issue. It was a conscious decision on the part of her counsel at the trial not to refer to her character or lack of previous conviction before the jury. It must be noted also that she had during the course of trial pleaded guilty to the three counts which I have just alluded to, and it was a matter of discretion for the trial judge whether or not to direct the jury on the applicant's character. If he did, he would be obliged to give a balanced picture by referring to the pleas of guilty, as well as any other matter which might ensure to the benefit of the applicant on the issue of character. That could not have been to her advantage.

17. We are aware of the line of authorities in England such as Berrada (1990 91 Cr App R 131) and Buzalek and Schiffer (1991 CLR 116) and others. However, in all the circumstances of the case, we do not think that the judge erred in not referring to character. The second ground of appeal also fails.

18. In the circumstances, there is nothing in the third ground of appeal either.

19. We accordingly dismiss the application for leave to appeal against conviction. We give leave to the applicant to abandon her application for leave to appeal against sentence.

Representation:

Mr John Dunn (M/s Michael Kan & Co) for Applicant

Mr C Newall for Crown/Respondent