The Queen v. Heung Muhhammad (D1) and Another

CACC000180/1985

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.

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JUDGMENT

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McMullin, V.-P. :

1. This morning we dismissed the application for leave to appeal by the first and second defendants, HEUNG Muhhammad Ali and CHAN Siu-mui, against their convictions for an offence under Section 46 of the Offences Against the Person Ordinance: using an instrument to procure a miscarriage contrary to the provisions of that section.

2. They also applied for leave to appeal against their sentences which, in the case of each of them, was 3½ years.

3. We are indebted to the industry of Mr. Huggins who has consulted the records of the courts in relation to sentences imposed for this offence dating back to 1974.

4. It appears from this calendar of sentences that a pattern has emerged and that in respect of a conviction for a single offence under Section 46, without previous convictions, sentences of 18 months to 2 years have been imposed fairly regularly. In the earlier part of that period such sentences seem to have been frequently suspended but in the latter part, certainly from 1981 onwards, the sentences were usually imposed as immediate custodial sentences.

5. The first applicant, HEUNG Muhhammad Ali was the person in whose clinic this particular operation was performed. The second applicant was the` person who referred the complainant girl to that clinic.

6. The sentencing judge took into consideration the several factors of mitigation put before him in respect of both of the defendants. The first defendant has a medical degree of some kind from the university in China but he is not qualified in Hong Kong. He has a previous conviction in 1979 for maintaining an illegal clinic and practising medicine thereat and for illegal possession of drugs. He came to Hong Kong originally in 1974. This is however his first conviction for this offence.

7. In passing sentence the judge referred to him as a "real professional making a business of illegally practising medicine and surgery". We think however that in the circumstances disclosed to the court that comment upon his behaviour and character was unnecessarily harsh. The facts do not disclose him as a professional abortionist though clearly he. was running a clinic which involved the use of equipment for gynaecological purposes. We must regard his act as a single act.

8. We have had a number of cases drawn to our attention and we are sensible of the comments made by the learned Chief Justice in CHAN Yau v. The Queen⁽¹⁾ where he said:

"We are of the view that the general level of sentences which has been passed in Hong Kong for abortion is far too low and that a sentence of five years' imprisonment upon a professional abortionist, with a previous conviction for manslaughter, is not unreasonable."

Those comments of course reflect the facts of the case with which he was then dealing, a case in a wholly different category from that which we are now confronted involving a woman with a previous record, a similar act having resulted in the death of the victim and a charge of manslaughter upon which she was convicted.

9. We do not think that on the material before us now we can say that this is an appropriate moment at which we should act upon the indication contained in the passage which I have just now quoted.

10. We think taking all the circumstances into account that the sentence of 3½ years imposed upon the first defendant was too heavy. We allow the application and treating the hearing of it as the hearing of the appeal. We set aside that sentence and substitute therefor a sentence of 2 years only.

11. Having taken that view in the case of the first applicant we proceed to the case of the second. As I have said her part in this affair was obviously of a lesser degree of seriousness although she was the conduit through which the complainant was directed to the clinic of the first defendant. Her premises were inspected and searched after her arrest. No equipment, of the kind which was used and found in the premises of the first defendant, was found in her possession. A distinction ought to have been drawn in any event between the two defendants at the time of sentence. We allow the application of the second applicant and treating her application as the hearing of the appeal, we set aside the sentences of 3½ years and impose instead a sentence of 18 months.

12. We understand that there has been some misunderstandingg in relation to time when these sentences should commence to run. We would like to make it clear that these sentences will commence to run from the 23rd of April 1985, the date of sentencing by the trial judge.

(1) Cr. App. 1523 of 1983

Representation:

Mr. WONG Po-wing (Ronald Ho & Co.) for D1.

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

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

IN THE COURT OF APPEAL

BETWEEN

_________________________

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

Date of hearing: 12th November, 1985.

Date of judgment: 13th December, 1985.

___________

JUDGMENT

___________

McMullin, V.-P. :

HEUNG Muhhammad Ali (Dl) and CHAN Siu-mui (D2) were convicted in the High Court of using an instrument to procure a miscarriage contrary to the provisions Section 46 of the Offences Against the Person Ordinance, Cap. 212. They were each sentenced to 3½ years' imprisonment. They now apply for leave to appeal against conviction and sentence.

It is not in dispute that Madam FUNG Kit-chun, a married woman with two children, in mid-October 1984 suspected that she was once again pregnant. On the 4th of November she had a urine test carried out in premises on the 5th floor of a building at No. 525 Nathan Road to which she had been attracted by a notice at the entrance of the building which bore the legend: "Chan Tan Gynaecologist" coupled with a message to the effect that trips could be arranged to Shumchun for the purpose of having unwanted pregnancies terminated.

The urine test was carried out by a man who has not figured in the subsequent proceedings. She was told that the test was positive and she at once enquired about the possibility of having an abortion performed. She was given a telephone number and while in the same premises, and using that number, she was able to contact a woman who identified herself as CHAN Tan. She was advised that the operation could be carried out more conveniently in Hong Kong and a price of $800 was agreed. She also was given an address to which she should go on the following day, the 6th of November.

On that day she went to premises in Po Ling Mansion situated in Wu Kwong Street, Hung Hom. She was accompanied by a long-time woman friend CHU Yau-ho. They were greeted by a woman she recognized as CHAN Tan and who she later identified as D2. They were taken by D2 in a taxi to Wu Kwong Street. On the way there, according to Madam Chu, D2 spoke to Madam Fung concerning the forthcoming operation to terminate her pregnancy and repeatedly reassured her that everything would be alright.

At Wu Kwong Street, Madam Chu was asked by D2 to remain downstairs while she went up in a lift with Madam Fung. They entered an apartment somewhere in the upper regions and D2 introduced her to a man who Madam Fung later identified as Dl. She understood that this would be the person who would perform the operation.

D2 asked her for $800 which she paid over at once. She became somewhat frightened at this stage and evidently wished to defer her decision but when she was told that her $800 would be forfeited in any event, she undressed and lay upon a table in that room which was referred to by D2 as the operation room. D1 then approached, holding an instrument which the complainant described as a "suction machine". D2 then placed a mask over her face and administered gas from a cylinder. Her evidence concerning what happened thereafter came under heavy fire in cross-examination. She maintained however that she had remained conscious and was aware of D1 using this instrument to scrape or suck something from her body having inserted a tube connected to this instrument into her vagina. This she said was very painful.

After a while she was told by D2 that the operation was completed and she got up and dressed and was given a tablet of some sort which she consumed. She rejoined her friend downstairs feeling dizzy and suppressing a tendancy to retch. D2 then took her and her friend to D2's own clinic where Madam Fung was given some medicine. She then went home and remained there for several days. She felt unwell, was unable to sleep and suffered pain in her abdomen and private parts.

She concluded that something had gone wrong in the operation and she admitted that she wished to sue Dl. It was for this reason that she reported to Shumchun Police Station on the 9th of November. She made several statements to the police and handed over the remainder of the pills which she had been given by D2. She was taken to Queen Elizabeth Hospital where she was admitted and seen by a gynaecologist, Dr. Sit, who examined her and took a urine test. She spent the night at the hospital but discharged herself next day before the doctor's investigations had been completed.

Thereafter she led the police to search for the premises of Dl which they located eventually on the 12th of November. On the 13th of November she identified both of the defendants at a parade held at Ho Man Tin Police Station.

The trial judge gave a clear warning to the jury in relation to the evidence of Madam Fung. He told them to approach her evidence on the basis that it was that of an accomplice and he directed them in terms to which exception has not, and indeed could not, be taken as to the nature of corroborative evidence in general.

He identified four items which they might consider afforded such corroboration. The first of these related to Madam Chu's evidence concerning the conversation in the taxi. That clearly was corroborative in the proper sense and no point is taken in relation thereto. The judge, however, included in the same direction a reference to words spoken by Madam Fung to Madam Chu, immediately upon rejoining her after the operation, to the effect that "it had been done". Madam Chu's evidence that these words had been spoken to her, even if they might be regarded as part of the res gestae, could clearly not have afforded corroboration of Madam Fung's testimony. Counsel for the Crown, towards the conclusion of the summing-up, drew this mistake to the attention of the judge who thereupon corrected it and nothing more need be said of that.

The judge correctly advised the jury that the conversation in the taxi would be corroborative of Madam Fung's evidence only in relation to the second defendant.

The other items identified by the judge as affording corroboration of Madam Fung were:

A Dr. Hau gave evidence to the effect that the gas cylinder and its attachments, and the curettage device, could be used for the purpose of removing the foetus and gestation product from a woman's uterus. It was conceded by the Crown that Dr. Hau's evidence - the transcript of which was not before us - did not go so far as suggesting that the use of such items was necessarily restricted to the performance of such an operation. That would, in any event, be clear in relation to the gas mask and the medicine though Mr. Huggins was, we think, right to maintain that the same must also be said in relation to the curette, clearly the type of instrument which, as a matter of general knowledge, is commonly used by qualified practitioners in performing the operation known as D.N.C. Something of the kind is in fact claimed by the applicant in a statement made by him to the police, under caution, after his arrest. The judge directed the jury, correctly on the present state of the law in Hong Kong, that this statement could not be regarded as proof of the truth of its contents but only as evidence of the fact that he had given such an explanation for his possession of this equipment.

Neither the first nor the second defendant gave evidence at the trial. It was however never denied, on behalf of either of them, that some form of treatment had been given by Dl to Madam Fung on the day in question, and this statement of D1 cannot be said to have advanced the Crown's case to any degree.

The case put to the witnesses in cross-examination on behalf of both defendants was that Dl had carried out a manual exploration and examination of Madam Fung without the use of any instrument or gas and that the purpose of this examination was to determine whether or not she was pregnant. It was further put that she was told by Dl that in his opinion she was suffering from inflammation of the pelvis and that he advised her to go to the Families Planning Association for further examination. All of this she denied.

The first point taken by Mr. Huggins on behalf of the first applicant is that the three items referred to could not in law afford corroboration of Madam Fung's testimony. With customary fairness he concedes that there may be some difficulty about the curettage machine but the other two items, he says, are clearly not corroborative in any true sense. We are satisfied however that the discovery of this machine, which clearly could be used for the purpose of procuring an abortion, is corroborative, in the fullest sense, of Madam Fung's testimony although the gas-apparatus and the various medicines may well have other legitimate uses. These may, however, simply be regarded as fortifying Madam Fung's evidence which attributed to them a use ancillary to the use of the curettage device.

The next point taken is that the judge failed to warn the jury against using certain other parts of the evidence as corroborating Madam Fung's story where such items, though not affording such support in law, were of a kind which might have tempted the jury so to use them.

In this regard Mr. Huggins relies upon certain dicta of Lord Parker, L.C.J. in Reg. v. Goddard⁽¹⁾ and Reg. v. Evans⁽²⁾. In each of those cases the learned Lord Chief Justice states, obiter, that there may be cases when there is a danger that the jury may regard some matters as corroborative when they are not truly so. In each case he illustrates that danger by reference to early complaints by alleged. victims in cases of sexual assault. Mr. Huggins relies also upon the decision of this court in WONG Yau-leung v. The Queen⁽³⁾, a case in which Mr. Huggins also appeared for the appellant. Giving the judgment of the court, Silke, J.A. says,

"We accept that in certain well defined circumstances, such as a complaint in a rape case, such a direction is necessary. For there may be a 'danger that the jury will treat as corroboration something which is incapable of being corroboration' (Goddard)."

He then cites Reg. V. Goddard but goes on to say,

"We do not however think that there can be any such general rule as Mr. Huggins would have us find. Such a rule would make the task of the trial judge virtually impossible."

It seems that the court's impression of counsel's argument in that case was that he was suggesting a rule which would oblige a judge in every case to identify anything that might be corroborative in the eyes of the jury when it could not be so in the eyes of the law.

In the present case Mr. Huggins argued far a more modest principle viz.: that such` a duty is cast upon a trial judge in any case in which there is a real danger of the misuse of evidence in this way.

There would not seem to be any good reason, rooted in principle, why this cautionary practice should be restricted wholly to complaints in sexual assault cases. It may be because the danger has been thought to be eminent in such cases that the current dicta seem to focus upon those cases exclusively. Nothing in the case law, however, would seem to preclude the application of the practice to other suitable cases. But clearly the danger must be patent upon the face of the evidence, taken in the context of the circumstances in the given case.

It is certainly not the duty of any judge to warn the jury against the imaginative misuse of evidence for this purpose. There must be a clear and obvious possibility of such misuse before any such warning would become necessary. Such occasions are impossible to categorize and each case would have to be considered in relation to its own facts whenever, at the appellate level, the need for such warning is being considered. Such a consideration will not arise in any case in which the judge has correctly identified the corroborative evidence and has instructed the jury that there is no other evidence which could be corroborative. That was not done in the present case, the judge merely saying that he was pointing out."some pieces of evidence which are capable of constituting corroboration ..."

Of the matters which Mr. Huggins alleges to fall within this category requiring warning, the first is the sign board outside No. 525 Nathan Road bearing the 1egend "Chan Tan Gynaecologist, arrangements for people to go to Shumchun to have abortions". It may be that in relation to this specific charge that evidence was at most marginally admissible as part of the narrative of events drawing Madam Fung into contact with D2. Such operations are, we understand, not merely not illegal but may even be encouraged under that jurisdiction. An advertisement showing D2 to be a gynaecologist whose wish it was to remain within the law prevailing in Hong Kong would, on the whole, not seem to be a likely source of inspiration for a jury seeking to confirm the evidence of a complainant whose story was that D2 had broken it.

For the same reason we think that counsel's complaint that this piece of evidence, which was undoubtedly without significant probative value in relation to the offence charged, was nevertheless highly prejudicial to his client, is not sustainable.

Then, counsel says, Madam Fung's evidence that she was told by an unidentified male at the premises in Nathan Road, after the urine test had been performed, that she was pregnant was inadmissible, and that the jury might put this together with the evidence elicited in re-examination that she was not pregnant at the time of the trial and so conclude that an abortion had actually been performed on the 6th of November. Although that was not the nature of the charge against the defendants, nevertheless, counsel said, such evidence would be powerful support of the complainant's story that an instrument for the purpose of procuring an abortion had been used by Dl with the connivance of D2. Although no objection was taken at the time this was clearly inadmissible hearsay and the jury should have been told to disregard it.

As against that however there was the evidence of Dr. Sit who examined Madam Fung on the 9th of November. The urine test was positive but was not confirmed by an ultra-sound. test. If both of these tests had been positive this would, in the doctor's opinion, have been conclusive of early pregnancy. Because Madam Fung had discharged herself on the following morning Dr. Sit was unable to come to any conclusion other than that she had a pelvic infection.

It is clear from that evidence that a positive urine test is not in itself conclusive. Taken overall, it seems unlikely that the jury would have used what they were told about both of these urine tests to confirm Madam Fung's evidence that she was pregnant before and not pregnant after her visit to Dl's clinic. By itself, indeed, the positive result of Dr. Sit's urine test pointed in the direction of her still being pregnant and therefore away from the conclusion that she had had an abortion performed. This would tend, if anything, to obviate a consequential conclusion that an instrument to procure an abortion had been used.

Then it is said that the jury might have regarded the complaint to the police as affording corroboration of Madam Fung's evidence.

It may be that, by way of analogy with the sexual assault cases, such a warning should have been given. The complaint was made three days after the alleged criminal act and was, on Madam Fung's own admission, rather the initiation of an endeavour to pursue Dl for damages than to disclose his crime. A direction that corroborative evidence cannot come from the complainant herself was, in the circumstances, at least desirable since, whatever had been done to her, Madam Fung was clearly a disgruntled patient who had had time to consider her position and possibly concoct a story.

Again, a direction ought to have been given to the effect that Madam Fung's evidence that she had been told by the unidentified man who carried out the urine test, that she was pregnant was inadmissible and therefore could not be regarded as supporting her story. We do not think, however, that the want of such directions must be regarded as fatal to the verdict and if it be needed we would apply the proviso to S. 83F of Cap. 221.

The complaint under ground 4 of the appeal is justified to the extent that the judge did fail to tell the jury that Madam Chu's evidence of what was said to her by Madam Fung about the operation having been done was also inadmissible and should not be considered by them at all. The prejudicial effect of this evidence, once it had been discounted by the judge as corroborative, must we think have been very slight and again the proviso may be applied.

The next ground to which we must attend is the 8th ground. Mr. Huggins maintains that the judge should have warned the jury about the evidence of Madam CHU Yau-ho on the basis that she too was at least potentially an accomplice of the complainant. We have considered these submissions carefully and have also considered in detail the evidence given by Madam Chu. We cannot find anywhere in that evidence a suggestion that Madam Chu lent active support to Madam Fung's endeavour to procure an abortion for herself. Her role throughout would appear to have been that of a woman giving emotional support to an old friend at a time of great need, irrespective of what her views about the course of conduct contemplated may have been. Nor can we find anything in the evidence to support the suggestion that there may have been collusion between Madam Fung and Madam Chu to give a false account of their visit to the clinic on the 6th of November.

The ninth ground is that the judge distorted, or misrepresented, the defence case to the jury in directing them that it was for them to consider whether Madam Fung was half-conscious or totally unconscious at the time of the alleged operation. Mr. Hartmann concedes that this was a factual misdirection inasmuch as the defence case was that there had been no question of Madam Fung ever being even semi-conscious since no gas was used and the operation was a mere manual examination by Dl.

As to this, however, Mr. Hartmann points out that Mr. Aiken (counsel for Dl at the trial), in correcting a statement which had been made by the judge in the course of the summing-up, made it clear that it was his client's case that all that he had done was to sterilize and clean Madam Fung's private parts in carrying out an examination.

Finally, (ground 10), Mr. Huggins strongly argued that the trial judge had misdirected the jury on fact in matters of considerable importance. The complainant was confronted with several statements made by her to the police prior to the trial. In at least two of these she had said that she was unconscious in the course of the operation. This conflicted with her evidence which, as a whole, would seem to amount to the contention that she never lost consciousness but was at best a bit sleepy.

Secondly, in these statements she had made no mention of the "suction machine" to which she referred in her evidence. At the trial she admitted that she had thought at the time that these were important matters and she gave varying reasons for the non-appearance of these important details in her statements. These include the somewhat contradictory contentions: a) that she had forgotten to tell the police because she wanted to give her statement quickly; and, b), that probably the police had recorded her statement wrongly. The omission of these very important details from the statements is certainly strange and it is true that the judge did not direct the jury's attention specifically to the contradiction between these statements and her evidence in court. Mr. Hartmann, for the Crown, relies upon the fact that there was extensive cross-examination on these matters and that the jury must have been aware of them.

Notwithstanding these various misdirections and non-directions we are satisfied that the jury must have been fully apprised of the nature of the "defence" and the extent to which Madam Fung's testimony had been thrown into doubt by cross-examination on her statements. It would undoubtedly have been better if the judge had underlined these matters to the jury but the trial was a short one and the jury must have been very clearly aware of the issues involved by the conclusion of the evidence and the speeches of counsel. We cannot regard these defects as being of such a fundamental character as to vitiate the conviction of the second applicant and the application for leave to appeal must be refused.

Mr. Wong for Dl was content to enlist the arguments so ably presented by Mr. Huggins on behalf of the other defendant in support of his own client's application. The greater part of the contentions put forward by Mr. Huggins on behalf of D2 do in fact apply to the case of Dl as well. In addition however Mr. Wong contends (ground 3 of his grounds) that the judge erred in directing the jury that it did hot matter whether or not a miscarriage had in fact occurred, or even whether the medical evidence would show that the offending act could not have caused a miscarriage. The jury, he says, should have been instructed that if they thought a miscarriage had not occurred, or, alternatively, could not have been brought about, that of itself would tend to support the defence case that there had been no intention to procure a miscarriage.

It may be that such directions would have been desirable. Of course the judge was not wrong to say that the charge did not oblige the proof of the completion of a miscarriage but the fact, if it was a fact, that no such thing had occurred, would certainly have tended to detract from the evidence of the complainant and to support the case for the defendants. And undoubtedly Dr. Sit's evidence remained finally somewhat equivocal.

We cannot agree however that the want of such directions is fatal to the jury's verdict. The core of the case laid in Madam Fung's evidence was that she had actually experienced the insertion of the tube in her body and the scraping or sucking effect, accompanied by pain, of the subsequent operation. The jury must have accepted that evidence whether on the basis that they found it credible on its own or because it was both credible and corroborated. That was the end of the matter and the convictions necessarily followed.

For these reasons we grant the applications for leave to appeal but applying the proviso in respect of the matters already referred to we dismiss the appeals of both applicants.

(1) (1962) 46 Cr. App. Rep. 456 (at page 461)

(2) (1965) 48 Cr. App. Rep. 314 (at 319)

(3) Cr. App. 363 of 1981 - unreported

Representation:

Mr. WONG Po-wing (Ronald Ho & Co.) for D1.

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

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