The Queen v. Chan Siu Mui(F)

CACC000324/1985

IN THE COURT OF APPEAL

BETWEEN

_______________

Coram: Hon. McMullin, V.-P. Silke & Kempster, JJ.A.

Date of hearing: 12th-13th November, 1985.

Date of judgment: 13th December, 1985.

___________

JUDGMENT

___________

McMullin, V.-P. :

1. The applicant CHAN Siu-mui (Dl) was charged together with LEE Tak-nei (D2) with conspiring together between the 29th of October and the 12th of November 1984 to procure the miscarriage of a woman named WONG Man-ngar by unlawfully using an instrument or some other unknown means".

2. The trial before Judge Hopkinson with a jury commenced on the 25th of June and concluded on the 29th with the conviction of both defendants by majority of 5 to 2.  They were each sentenced to a period of 3½ years' imprisonment.

3. The case for the Crown consists principally of the testimony of the complainant WONG, who at the time of this event was only sixteen years of age, together with that of her boy-friend KWAN Chi-cheung, then 21, and the complainant's elder sister WONG Suk-ngar.

4. It is not in dispute that the complainant WONG began to cohabit with KWAN some time before October 1984 at Sau Mau Ping. Having missed one or two menstrual periods she suspected that she was pregnant. She sought advice and assistance at an establishment known as the CHENG Yuk-ling Centre where she went in the company of her elder sister on the 29th of October. This turned out to be a clinic of sorts in Yee Wo Street. There she consulted a person who, at the trial, she referred to throughout as Dr. Cheng, but who was ultimately identified by her, at a formal identification parade, as the second defendant, LEE Tak-nei.

5. This woman gave her an injection to regulate her menses and told her to return in a week's time. She paid $40 for this service.

6. Everything that follows in her testimony is in dispute as to the substance of what occurred.

7. A week after this first visit when nothing had come of the treatment she had received she returned once more accompanied by her sister and saw D2 again on the 5th of November and had a urine test. D2 told her that she was pregnant. She said that she did not want a baby and was told by D2 that she herself did not do such operations but had a friend in Hung Hom who would terminate the pregnancy. The cost was said to be $1,000 but this was subsequently reduced to $900.

8. Miss Wong returned to D2's clinic on the 12th of November, this time with her boy-friend KWAN and she saw D2 again. On this occasion D2 made several phone calls and then wrote down a name "Chan Tan" and an address. The complainant was told that this was a doctor who would perform the operation. At D2's instance the complainant paid $100 as "a deposit" for the operation.

9. She and KWAN then went to this address on the 5th floor of a building in Nathan Road. They were admitted by a woman who was subsequently identified as CHAN Siu-mui (D1). Dl asked the complainant how long she had been pregnant and told her to remember clearly as the price would depend on it. The complainant said that it was two months and D1 then asked her for $800 which she duly paid. Dl then described the nature of the operation and the procedures which it would involve and drew some diagrams. She then told the girl and KWAN to sit for a while in the sitting-room and said that she would shortly take her downstairs to perform the termination operation herself.

10. After they had been sitting for a short while the front door bell rang and Dl went to the door, opened it and then shut it immediately and came back to them and said it was the police and that they should say that they did not know her. A party of police then entered and took the complainant and KWAN outside the flat. On being questioned the complainant said that she had gone there to have an abortion and that she had paid $800. The police then asked Dl about this and she produced the money from a mug in the kitchen where it had been placed by her on its receipt from the complainant. All three were then taken to the police station.

11. KWAN and WONG Suk-ngar, the elder sister, gave evidence which in general supported the story of the complainant. The complainant did not identify D2 either in ocurt or on a formal parade but KWAN did identify her at a parade on the 6th of October at Ho Man Tin Police Station.

12. On the 20th of November the complainant went to the Family Planning Association and on the 29th she was admitted to Queen Mary Hospital where her pregnancy was terminated - it is to be presumed legally under the current provisions of the law. She was found to have been ten weeks pregnant at the time of this operation.

13. Meantime, on the 22nd of November, the complainant received a phone call from Dl while she was at her boy-friend's premises. According to her Dl asked her if she had given to the police the pills which she had given to the girl on the 12th of November. The complainant said that she had thrown them away. She then asked Dl about the $100 she had given to D2 and was told that she could get that money back. Her boy-friend then took the phone from her and according to him Dl asked him not to give evidence against her "to the extreme". A few minutes after this conversation ended D2 rang up to say that the complainant could come and recover her $100.

14. Throughout the trial it was the case for both defendants that there was no agreement between them to give the girl the service the latter says she wished to have. D2 said that she simply sent the girl to Dl for a further check upon her condition because the urine test taken by her on the 5th of November was inconclusive. All she had done was to prescribe some medicine for which she charged $80 together with $20 for the consultation. She denied phoning Dl and says that she spoke to a man at that clinic and thereafter sent the girl and her boy-friend with a note to that address.

15. D1 said that her intention was simply to examine the girl further to see if she was pregnant since her symptoms might be caused by other conditions. She was also prepared to send her to a doctor TSUI at an establishment known as the Medical Development Institute for a further examination. She says she took the $800 as a fee which could be adjusted against possible hospitalization of the girl. She had done this apparently because she was aware that the boy-friend was a hair-dresser who had a tattoo upon his arm and she did not trust him.

16. A Dr. Tsui was called for the defence. He supported Dl's claim to have made an arrangement on the 12th of November to bring along a patient with problems about her periods for examination.

17. Upon the appeal, Mr. Huggins who appeared for the applicant had origianlly filed grounds of appeal raising a number of objections to the manner in which the judge had directed the jury. In the event it is necessary to consider only one of those grounds since Mr. Hartmann for the Crown concedes - correctly in the view of this court - that there was a serious misdirection upon law in the face of which we do not think the conviction can be regarded as satisfactory.

18. The judge warned the jury that they must approach the evidence of the complainant with caution. He did not put that upon the basis that she must be considered an accomplice in the crime. The form which his direction took would have been more appropriate in a case where the charge involved an allegation of sexual assault. He said:

"You may wonder why, and we can't really give you a definite answer except that such witnesses may be inaccurate. For all sorts of reasons, or for no reason at all, they may fabricate a story or embroider it in some way, and if they do it is extremely difficult to refute. So their evidence is to that extent suspect, and what is looked for is confirmation from some other source that the suspect witness is telling the truth in some part of her story which goes to show that the accused committed the offence with which they are charged. "

19. This by itself is of no great consequence since a warning was in any event given; but when he had dealt - again correctly - with the need for corroboration he said:

"Well, of course the boy-friend's evidence is capable of corroborating the girl's. "

The evidence however showed that KWAN was as anxious to procure this abortion as was the girl herself. Indeed in cross-examination he admitted that once he had discovered that she was pregnant it was he who had suggested to Miss Wong that she should take that course. Thereafter his accompanying her to the clinic was clearly in pursuance of a plan with which he was in thorough agreement and which he wished to forward for his own ends. He was most clearly an accomplice of the girl and therefore incapable of affording her evidence the kind of support which the law requires.

20. This misdirection was reinforced by what the judge said when he came to consider and contrast the evidence of the girl and her boy-friend. Having pointed out that there was some minor degree of conflict between the testimony of the two he went on to say:

"Anyway, he in particular - I would think it would be better for you to concentrate on his evidence because, of course, he wasn't in the girl's predicament, he wasn't in trouble like she was at that time, and he was in a position to look at things somewhat more objectively -"

21. In view of this we are satisfied that the conviction must be regarded as unsafe and unsatisfactory and that it cannot stand. We grant the application and allow the appeal, quash the conviction and set aside the sentence.

Representation:

Mr. WONG Po-wing (Ronald Ho & Co.) for Dl.

Mr. A. Huggins (Tong & Knight) for D2.

Mr. M. H. Hartmann for the Respondent/D.P.P.