Ching Kwai Yan v. The Queen

CACC000377/1978

Coram: Trainor, J.

Date of Judgment: 15th May,1978.

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JUDGMENT

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1. Ching Kwai Yan appeared in the Magistrates Court charged with carrying on the management of an unregistered clinic, being in possession of Part I Poisons and being in possession of Antibiotics. To those counts he pleaded guilty and the learned magistrate imposed a fine of $1,000 and imprisonment of two months suspended for two years on the first account; and on the second and third account he imposed a fine of $750 respectively or imprisonment of one month in the alternative. Against those penalties he now appeals.

2. It has been argued by Mr. Bernacchi that these penalties are excessive in the circumstances of this case. He argued that the circumstances of this case are exceptional in that the appellant is a person who has done six years medical training in China, and is, Mr. Bernacchi has informed me, in possession of a certificate showing him to be qualified to practise medicine in the Republic of China. Mr. Bernacchi has stressed that this man is one of many who would meet a long felt need in Hong Kong for more medical practitioners. He said that the appellant might well have been one of those who would have been qualified to practise medicine in Hong Kong by now were it not for the fact that he had a previous conviction for offences, the same as the offences to which he pleaded guilty, and as a result was not permitted to sit for an examination to entitle him to qualify in Hong Kong and thereby get a licence to practise.

3. The arguments of Mr. Bernacchi are emotive arguments and might be such as to appeal to persons in a position different to a judge whose sole function is to interpret the law. It is not the function of a judge to criticise the legislation that is in existence and I certainly will not do so although I have been invited so to do. Indeed I indicated to Mr. Bernacchi on many occasions that it is improper to have the reasons for legislation criticised in court. The laws may be freely criticised in court as to the way they have been framed, the way they have been drafted, the language that has been used if such is warranted. The justification for legislation is the exclusive domain of the legislature. It is a principle of British justice that the powers that exercise Government are separated and are, substantially, independent of each other. The legislature makes the laws, the courts interpret them. The legislature will not interfere with the judiciary in its interpretation of the law; subject to the law - the Letters Patent and Royal Instructions the judiciary will not question the right of the legislature to legislate or the reason for legislation. That being so I come back to the fundamentals of this case and that is that the law has proscribed the practice of medicine in Hong Kong by persons who are not qualified according to the laws of Hong Kong to practise. Whether that is a good or a bad thing is not for me to say. If I were to say anything I am sure it must be obvious what it would be. The appellant knows that the law is there; he knows that he may not manage a clinic; he has in fact been penalised for doing so on a previous occasion. With all that he proceeded to do what he knew he should not do. And when he was asked in the Court below if he had anything to say as to the penalty that might be imposed he said: "I have to make a living. I treat friends and kaifongs. I applied to sit for the examination but because of my last convictions I was not allowed to sit. I have to make a living. It can't be helped." In other words, despite the fact that he knew he had broken the law previously and had been penalised for it he was quite prepared to carry on and commit the same offence again.

4. The learned magistrate was faced with those facts, particularly the fact that on the previous conviction the appellant had on the first count been fined $500. On this occasion the magistrate increased the fine to $1,000. Mr. Bernacchi has referred me to the decisions of the Full Court in Criminal Appeal cases No. 756 to 771 of 1977. I think properly to interpret those cases one must look at what the Full Court would appear to have thought to be the overall penalty that should be imposed. In each of the cases involved in the series of appeals the penalty was in the region of $1,500 for the substantive offence. The Full Court treated each case, as a glance through the judgments suggests to me, as if there was a substantive offence and subsidiary offences; but for what was the substantive offence in those cases the fine was $1,500. As I said earlier, for managing an unregistered clinic the appellant was originally fined $500 the magistrate in the instant case increased the fine to $1,000.

5. The legislation makes provision for a maximum fine of $1,000 for a first offence, but it then goes on to provide that in the event of a second or subsequent offence there may be an additional penalty of up to three months' imprisonment. I think that that clearly indicates how the legislature feels; and it feels that on a second offence imprisonment is what ought be contemplated.

6. In this case the learned magistrate imposed a term of imprisonment of two months, but he suspended it for two years. I thoroughly agree, and I don't need any argument to convince me of it, a suspended sentence is a sentence of imprisonment, and it goes down in a person's record. I do not accept that the appellant is, as Mr. Bernacchi said, an honourable and respectable person and, therefore, undeserving of such a sentence. He is a person who broke the law once, was punished and deliberately did so again. As I said, the legislature, in my interpretation, has indicated that it considers a term of imprisonment is what ought be considered for a second offence. The learned magistrate suspended the two months' imprisonment and so far as suffering the penalty is concerned it is entirely up to the appellant. If for two years he commits no offence then he does not have to undergo imprisonment and all that happens to him is he pays $1,000.

7. In my opinion the learned magistrate properly interpreted the law and gave a good deal of consideration to the appellant in that he suspended the sentence.

8. With regard to the other two offences there is a considerable similarity between them and they are offences that run hand and glove with the first offence. For that reason it did occur to me that perhaps they might be treated in the same way as one does in criminal cases where concurrent terms of imprisonment are imposed. Again, one is faced with the fact that two different pieces of legislation were enacted to deal with these offences. One is the Antibiotics Ordinance and the other is the Pharmacy & Poisons Ordinance. That would suggest that the analogy of concurrent sentences ought not be applied. However, I am going to look at this case in an overall way, and so far as the fines imposed on the second and third counts are concerned I am going to reduce the fines imposed on each from $750 to $500. Therefore I dismiss the appeal so far as it concerns the first count and I allow the appeal on the second and third counts to the extent that I substitute a fine of $500 on each count for the fines of $750 imposed.

9. I understand that the fines have been paid therefore the result of my decision is that there will be refunded to the appellant $500.

Representation:

Mr. Bernacchi, Q.C. & Mr. Leung (Ho & Wong) for appellant.

Mr. Duncan, c.c. for Crown.