HKSAR v. Harry Sudirman

CACC000486/2003

CACC 486/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 486 OF 2003

(ON APPEAL FROM HCCC 217 OF 2002)

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Coram: Hon Stuart-Moore VP, McMahon and Lunn JJ

Date of Hearing: 19 August 2004

Date of Judgment: 2 September 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.The applicant practised as a doctor of medicine from a surgery in Melbourne Plaza in the field of gynaecology and obstetrics. The treatment administered to one of his patients was alleged to have brought about her death. This led to his conviction, on 16 October 2003, following a trial before Jackson J and a jury, on two counts. The first alleged that on 8 January 2001, he unlawfully used an instrument at Room 1108, Melbourne Plaza, 33 Queen's Road Central, with intent to procure the miscarriage of Zenaida Chu (Mrs Chu), contrary to section 46 of the Offences against the Person Ordinance, Cap. 212. The second count alleged manslaughter on the same day and place.

2.The applicant, then aged 63, was sentenced on 30 October 2003 to concurrent terms of twelve months and two years' imprisonment on counts 1 and 2 respectively. He now seeks leave to appeal against conviction.

Ground of appeal

3.The single ground of appeal amounts to a complaint that in the light of fresh evidence which was not available at trial, and in all the circumstances generally, the convictions are unsafe or unsatisfactory. The fresh evidence primarily consists of the affirmation, and the exhibits referred to therein, of Lee Chou-ping, the applicant's wife, and the affidavit of Andrew Macrae, SC, who was the defence counsel at trial.

4.An application was made to us under the provisions of section 83V(1)(a) of the Criminal Procedure Ordinance, Cap. 221, and pursuant to Lee Chou-ping's affirmation, for the production of two items of correspondence, dated 16 January 2001 and 30 January 2001 respectively, setting out a complaint against the applicant which was served by Mrs Chu's husband on the Medical Council of Hong Kong. The prime significance of Mr Chu's complaint for present purposes was a reference to his wife having been "refused" an abortion on 2 January 2001 by Dr Vivianne Shu (PW2), an obstetrician and gynaecologist, after she had confirmed that Mrs Chu was pregnant.

5.The application that we should receive the evidence of Lee Chou-ping and Mr Macrae was made pursuant to section 83V(1)(c) and (2) of the Criminal Procedure Ordinance.

6.The provisions which are relevant to both aspects of this application are as follows:

"83V. Evidence

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) ....

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

(3) Subsection (1)(c) applies to any witness (including the appellant) who is a competent but not a compellable witness."

7.In short, it was argued by Mr Marash, SC, who now represents the applicant, that it was necessary and expedient to consider the terms of Mr Chu's complaint because, if the defence had been aware of this material at trial, the whole emphasis of Mr Macrae's presentation of the defence would have been significantly different from the way in which the case was in fact presented to the jury.

8.We admitted the fresh evidence de bene esse in order properly to assess its value when placed alongside the remainder of the evidence called at trial.

Summary of evidence

9.Mrs Chu was 31 years old when she died. She married Chu Yu-wing in 1992 and gave birth to a son in 1994.

10.On 2 January 2001, Mrs Chu consulted Dr Vivianne Shu, a highly experienced gynaecologist and obstetrician, at her clinic in Paterson Street, Causeway Bay. Mrs Chu expressed, amongst other things, her concerns to Dr Shu about the vaginal discharge she was experiencing together with headaches and nausea.

11.Dr Shu's examination of Mrs Chu revealed blood streaks in the vagina which led her to suspect that Mrs Chu was pregnant. She then did a vaginal ultrasound examination which revealed an intrauterine sac and a foetal pulsation. Dr Shu considered the pulsation indicated a viable foetus. Dr Shu concluded that Mrs Chu was about five and a half to six weeks pregnant and she informed Mrs Chu of this.

12.Because of the small amount of bleeding, Dr Shu treated Mrs Chu with folic acid (Vitamin B) and a medical product in an endeavour to stop the bleeding. The bleeding led Dr Shu to believe that there was a "threatened abortion" by which she meant that there might be problems affecting the viability of the foetus. With this in mind, Dr Shu was not in a position to say whether, by 5 January 2001 or thereafter, the foetus would still have been viable. She was, however, for reasons which will later emerge as important, able to say that she found no sign of any polyps inside Mrs Chu's private parts. All we need at this stage to say in this regard is that Dr Shu agreed that a gynaecologist could remove polyps by undertaking a procedure known as "dilate and curettage" ("D and C"). She went on to say that if it was known that a patient was pregnant, a D and C procedure would not be carried out as this "will cause the demise of the pregnancy".

13.Subsequently, laboratory tests revealed that other samples taken from Mrs Chu showed no indications of infection or the presence of malignant cells.

14.Dr Shu wrote in the corner of her medical notes in respect of the visit of Mrs Chu on 2 January 2001: "Think over" which she said was written after asking Mrs Chu to "think about" the pregnancy due to the consternation she was showing at the time.

15.On 5 January 2001, Mrs Chu, in the company of a friend who worked with her at the American Club in Tai Tam, Maritess Polo (Miss Polo), attended the applicant's clinic in Central. On arrival, the applicant's nurse, Ng Suk-ha (Nurse Ng) gave Mrs Chu a urine sample container. Mrs Chu then went to the toilet outside the reception room whilst Miss Polo, according to her evidence, stayed inside the reception area. In due course, Mrs Chu gave Nurse Ng the sample. According to Miss Polo, she then accompanied Mrs Chu into the applicant's consultation room and remained present in the room throughout the time Mrs Chu was with the applicant.

16.Miss Polo said that Mrs Chu began by presenting her symptoms of nausea and dizziness saying that she thought she was pregnant. Miss Polo said that neither Mrs Chu nor Miss Polo told the applicant about the earlier consultation with Dr Shu on 2 January 2001. She had been told by Mrs Chu not to tell the applicant that she had already found to be pregnant. Apparently, Mrs Chu was seeking a second opinion.

17.Miss Polo described how the applicant then carried out a pregnancy test on Mrs Chu's urine sample in the presence of Mrs Chu and herself. The applicant said: "Yes, you're positive". Then, Mrs Chu asked the applicant: "Can you do something about it?". She mentioned to the applicant that her husband was getting old and that they could not afford another baby. The applicant answered: "Yes, I can do something about it". The applicant then conducted a physical examination on Mrs Chu behind a curtain.

18.After this, a morning appointment was made for her to return to the clinic on Monday, 8 January 2001. The applicant indicated that his fee for the procedure would be $5,500 but, when Mrs Chu asked for a discount, this was reduced to $5,000.

19.On 8 January 2001, Miss Polo again accompanied Mrs Chu to the applicant's clinic. Mrs Chu paid the fee of $5,000 to Nurse Ng. On this occasion, she went into the applicant's consultation room by herself where there was evidence that she signed the consent form for the procedure and obtained a receipt from the applicant for payment of the fee. Nurse Ng then made the necessary preparations before she was instructed by the applicant to mix two drugs. Nurse Ng then mixed 1 milligramme of Ultiva (Remifentanil) and 1 milligramme of Dormicum (Midazolam) in water and the mixture was put into a syringe. The applicant then injected Mrs Chu with the mixture which made her, according to the applicant's evidence, semi-conscious. Mrs Chu was at the time in a gynaecological bed in the "stirrup position".

20.At that stage, the applicant said that he began a D and C procedure upon Mrs Chu. Soon afterwards Nurse Ng noticed that all was not well. It appeared that Mrs Chu had suffered a cardiac arrest. The applicant, with the assistance of a neighbouring doctor and Nurse Ng, attempted without success to resuscitate Mrs Chu.

21.An ambulance was then called to take Mrs Chu to hospital. Further resuscitation was attempted by ambulance personnel and by medical officers, but to no avail.

22.On 9 January 2001, Dr Tso Chi-bun, a forensic pathologist, conducted a post-mortem examination on Mrs Chu. The cause of death was stated to be the "adverse effects of remifentanil and midazolam". Based upon the autopsy findings, and in particular some scratches found in the cervix and over the vaginal canal, Dr Tso expressed the opinion that a D and C procedure had been carried out shortly before death. Urine and blood samples were taken from Mrs Chu which revealed very high hormonal levels which were indicative of pregnancy, but no foetus was found. Dr Tso also took some post-mortem urine samples from Mrs Chu so that they could be tested on the pregnancy kits seized by the police from the applicant's clinic. All the results were positive.

23.Although no foetus was ever found, Dr Tso concluded that Mrs Chu had been pregnant at some stage shortly before her death. In the light of the very high hormonal levels and other indications, Dr Tso was of the view that there had been a live foetus inside Mrs Chu. He was in agreement with the suggestion that pregnancy was not the only cause of the high hormonal levels ("HCG levels") but in this case, he said it was more likely and more reasonable that the high level was caused by the presence of a live foetus. He had looked for other causes and had found none.

24.Professor Ho Pak-chung, Head of the Department of Obstetrics and Gynaecology at the University of Hong Kong was called as an expert on behalf of the prosecution. Professor Ho explained the significance of HCG levels in urine and blood. He agreed that the HCG levels in the samples of blood and urine taken by Dr Tso were consistent with a pregnancy of about six weeks duration. He conceded, in cross-examination, that it was possible that Dr Shu could have been mistaken about the presence of the foetus and also that it was possible the foetus could have died before the deceased visited the applicant's clinic. Professor Ho agreed that merely to look at the HCG levels in the blood and urine samples was an insufficient basis on which to conclude that there had been a live foetus at the time the applicant had carried out the D and C procedure.

25.The applicant's evidence at trial conflicted, in particular, with Miss Polo's account on a number of important issues. The most significant conflict related to Miss Polo's presence, as she had stated, inside the applicant's consultation room on 5 January 2001. The applicant said that he had not seen her there.

26.The applicant went on to say that the urine sample supplied to him by Mrs Chu produced a negative result when the standard pregnancy test was done. Furthermore, his subsequent gynaecological examination revealed no signs of pregnancy. However, according to him, he did find a cervical polyp measuring 3 millimetres. He advised Mrs Chu that she should have a D and C procedure to enable a diagnosis of the polyp to be done in view of her vaginal bleeding. He then prescribed her with a vaginal pessary and with an anti-parasitic medicine called "Gyno-Peraryl". The applicant accepted that these medications should not have been prescribed for a woman who was believed to be pregnant but he said that he had no reason to believe that Mrs Chu was pregnant.

27.After Mrs Chu had left, the applicant described how he discovered that he could find no pethidine in his surgery for pain relief. All his efforts to obtain some failed. However, on the next day, he discovered he had a drug called "Ultiva". He read the literature which accompanied it and recalled how he had been told by a company representative of the drug supplier that this product could be used in a similar way to pethidine and that its potency was about the same. He had not read that it could not be administered by injection.

28.When he operated on Mrs Chu, on 8 January 2001, the applicant said that by the time he was alerted by Nurse Ng to the problem which led to an attempted resuscitation of the patient, he had already removed the polyp and performed a D and C procedure with four or five scrapes of the uterus. Furthermore, he had noticed what he described as the residual products from a miscarriage. It is to be observed that if the applicant did remove a polyp, as he alleged, it was never recovered.

29.The defence called Ng Mo-chong (DW3), a patient who had been at the applicant's surgery on 5 January 2001. She first made a statement concerning the events of that day following a meeting with the applicant on 7 June 2002. She recalled that two Filipinas, matching the description of Mrs Chu and Miss Polo, had been waiting in the reception room with her until they both went out of the room after Nurse Ng had given one of them a urine sample container. She said that later on, one of them (fitting Mrs Chu's description) went into the applicant's consultation room, leaving the other in the reception area. This version, concerning Mrs Chu going into the consultation room on her own, was confirmed by Nurse Ng who had been called by the prosecution. An application to treat her as hostile was rejected.

30.In essence, the applicant's case was that he had no reason to believe Mrs Chu was pregnant and that a polypectomy and a D and C procedure was necessary on the symptoms she displayed.

The summing up

31.None of the directions given by the judge in the summing up, as to the law or the facts, is criticised.

32.Importantly, so far as the facts were concerned, the judge reminded the jury of a number of inconsistencies and contradictions revealed in Miss Polo's evidence. As to this aspect, the point was rightly made, both in these proceedings and in the court below, that the applicant could not have been convicted unless the jury was able safely to conclude that he believed (rightly or wrongly) that Mrs Chu was pregnant at the stage when he administered the fatal drug dose immediately before carrying out the D and C procedure. This almost inevitably meant that the jury must have accepted Miss Polo's evidence that she had been present to hear the applicant confirm a positive result to Mrs Chu's pregnancy test and his agreement to do something about it. It followed, therefore, that the jury had rejected not only the testimony of the applicant but also the evidence given by Nurse Ng and DW3 so far as it related to this crucial issue.

The application

33.Having regard to the strong evidential foundation which suggested that Mrs Chu had been pregnant until the time of her death or very shortly beforehand, it was submitted by Mr Marash, without fear of contradiction, that the jury would not easily have been persuaded that Mrs Chu had provided the applicant with a urine sample which gave a negative pregnancy test reading. In spite of this, it was pointed out that Mr Macrae had attempted at trial to cast doubt on Mrs Chu's pregnant condition. He probably would not have done so, Mr Marash contended, if the content of the complaint lodged by Mrs Chu's husband to the Medical Council of Hong Kong had been available to the defence at trial. Mr Macrae stated in his affidavit that "if (he) had been aware of this information, the defence may well have been presented quite differently".

34.The correspondence, a letter and a subsequent information form, sent by Mr Chu to the Medical Council in January 2001, amounted to a complaint about the applicant's conduct and requested an investigation into his wife's death. Apparently, the complaint was not communicated to the applicant until his trial had concluded.

35.Mr Chu made reference in both items of correspondence to the consultation with Dr Shu on 2 January 2001 who, as he expressed it, had "refused to terminate the birth due to her (Dr Shu's) religious reasons". The principal point made by Mr Marash, based upon the contents of Mr Macrae's affidavit, was that if Mr Macrae had been aware of the information contained in Mr Chu's complaint that Dr Shu had refused to carry out an abortion for Mrs Chu, he would have been "unlikely" to have attempted to challenge Dr Shu's findings that Mrs Chu was pregnant. Instead, Mr Macrae would have pursued what Mr Marash appropriately called the "conspiracy theory". This involved the allegation that Mrs Chu and Miss Polo, in the knowledge that Mrs Chu had been refused what would have amounted to an illegal abortion, had gone to the applicant's surgery in an endeavour to trick him into thinking that Mrs Chu was not pregnant but in need of a D and C procedure for her vaginal bleeding, knowing that this would have the same effect as an abortion. It was pointed out by Mr Marash that the evidence at trial revealed that Mrs Chu had twice previously been operated on by the applicant for the removal of a polyp and, in 1996, the applicant had performed a D and C procedure on her for an incomplete abortion. In this sense, therefore, Mrs Chu was well acquainted with such gynaecological procedures.

36.Developing the "conspiracy theory", it was suggested by Mr Marash, again based upon the contents of Mr Macrae's affidavit, that Mrs Chu obviously had to supply a negative urine sample if she was to succeed in tricking the applicant. It was, so the theory went, for this purpose that Mrs Chu brought Miss Polo along with her in order that Miss Polo could accompany her to the toilets. There, Miss Polo would provide the urine sample for the pregnancy test which would produce the negative result Mrs Chu desired.

37.Leaving aside, as an irrelevance, the inherent unlikelihood of a scenario whereby a pregnant Mrs Chu had set herself the task of convincing the applicant, with nearly thirty years' experience in gynaecology, that she was not pregnant but needed a D and C procedure for other reasons, there were several matters to be considered which left this ground of appeal patently bereft of merit.

38.Firstly, for whatever reason, it was the fact that Dr Shu had not performed an abortion on Mrs Chu, having found substantial evidence that she was pregnant. The opinion that Mrs Chu was pregnant was consistent with Dr Tso's findings at the post-mortem and supported also by Professor Ho. The applicant, on the other hand, said that he had found nothing in his examination of Mrs Chu which led him to believe that she was pregnant.

39.Plainly, and perfectly properly on the instructions he had, Mr Macrae had taken the tactical decision to test Dr Shu's findings by attempting to cast doubt upon them. If he had succeeded, he might on that basis alone have been able to persuade the jury that the urine sample on which the applicant carried out the pregnancy test had produced a negative result.

40.We do not need to set out how this line of cross-examination was pursued. It suffices to say that it was lengthy and sometimes technical but, in the end, it produced nothing of real assistance to the defence. Mr Macrae is a highly experienced advocate and he would have been well aware that this line of defence had misfired.

41.In the present context, what is of much greater significance is that a second, and alternative, line of defence was also advanced by Mr Macrae. In short, we are in no doubt at all, having examined how he put his case, that he did propound the "conspiracy theory" in front of the jury. It was, of necessity, done in a low-key manner. No one reading the transcript of Miss Polo's evidence could fail to appreciate that she was a formidable witness and Mr Macrae, using all his skills, did just enough to implant in the mind of the jury what may have gone on between herself and Mrs Chu. The following cross-examination by Mr Macrae, suggesting a general cover-up between the two women, took place:

"	Q.	I have already put to you, Miss Polo, that you were not, in fact, present (at the consultation on 5 January 2001). But I suggest the reason that you are able to say what happened is that it is partly what (Mrs Chu) subsequently told you, partly what you learned from her husband and partly what you heard from the police.
	A.	No, sir, I was with her.
	Q.	I have no doubt and forgive me for asking you the obvious, but you were obviously upset at the manner in which your close friend passed away.
	A.	Of course, sir, I am.
	Q.	And do you blame the doctor?
	A.	Of course, sir, he made a mistake.
	Q.	Right. Miss Polo, I want to examine what I suggest really happened on the 5th. You've told us what the nurse was told by your friend, isn't it correct if you were present, you would be able to tell us that (Mrs Chu) never told the doctor that she had already been found to be pregnant?
	A.	I'm sorry, sir.
	Q.	Is it not correct that inside the consultation room, (Mrs Chu) never told the doctor that she had already been found to be pregnant?
	A.	Yes, she never told the doctor.
	Q.	She never told the doctor?
	A.	She never told the doctor.
	Q.	Thank you. And it also follows from that, isn't it - doesn't it, that she never told the doctor that she had had a scan, or that her pregnancy was 5 1/2 to 6 weeks old?
	A.	No, she never told.
	Q.	In fact, neither she nor you told either the nurse or the doctor that she had seen, even seen a doctor three days before, did you?
	A.	No, sir.
	Q.	Correct?
	A.	Correct.
	Q.	You see, 5 January 2001 was - was it a Monday?
	A.	The 5th, it was a Friday.
	Q.	Friday, Friday. I'm sorry, you're quite right, the 8th was a Monday. No mention is made on that Friday that she has been anywhere near another doctor for the purposes of determining whether she's pregnant on the Tuesday, the previous Tuesday.
	A.	I'm sorry, sir.
	Q.	No mention is made to anybody on the 5th, a Friday, that earlier in the week, on the Tuesday, (Mrs Chu) has been to see a doctor and has already been found to be pregnant.
	A.	No.
	Q.	Correct?
	A.	Correct.
	Q.	Is the truth of the matter that (Mrs Chu) had specifically told you not to tell the doctor that she had been found to be pregnant?
	A.	No, sir.
	Q.	Did (Mrs Chu) tell you specifically not to tell the doctor or his nurse that she had seen another doctor three days before?
	A.	Yes, she told me not to tell.
	Q.	She did? She told you what?
	A.	She told me not to tell the doctor or not to mention to the doctor.
	Q.	I see, not to mention what?
	A.	That she was already found pregnant or that she went to see a doctor, another doctor.
	Q.	So when you went up there on the 5th, you knew you were to say nothing about what you already knew of her pregnancy?
	A.	Correct, sir.
	Q.	And you knew that she was to say - that she would say nothing about it?
	A.	Correct, sir.
	Q.	What was this all about, Miss Polo, to pull the wool - do you know of this expression, to pull the wool over the eyes of Dr Sim?
	A.	No, sir, she just wanted to get a second opinion.
	Q.	I see. So did you discuss - well, if you're getting a second opinion, why don't you tell him what the first opinion is?
	A.	To tell the doctor, sir?
	Q.	Yes.
	A.	Well, I was just there to accompany her.
	Q.	Do you know what (Mrs Chu's) real motive was in telling you - did she explain why she didn't want you to tell the nurse or the doctor, or is this what you're speculating was her reason?
	A.	I'm sorry, sir?
	Q.	Right, yes, I'm sorry, it's a confusing question. You said that she wanted a second opinion...
	A.	Right.
	Q.	... and that was why she had instructed you not to tell the doctor she was pregnant.
	A.	Correct, sir.
	Q.	Is that your assumption, is that what you think or is that what she told you?
	A.	It's what she told me, sir.
	Q.	I see. Where did she tell you this? Where?
	A.	When she asked me to go with her, to accompany her." (Appeal bundle pp. 192-194)

42.Shortly before this passage, Mr Macrae had asked Miss Polo about the visit to the toilet for the purposes of a urine sample being provided. The following dialogue took place:

"	Q.	May I suggest that you accompanied your friend (Mrs Chu) to the toilet for the purpose of providing a urine sample? You went with her?
	A.	No, sir, I did not.
	Q.	Well, you went with her to the clinic, you went with her into the consultation room, but you didn't go with her to the toilet?
	A.	No, sir.
	Q.	Now, upon the provision of the sample to the nurse, you and (Mrs Chu) waited a little bit longer, correct?
	A.	Correct.
	Q.	The patient came out and her name was called, (Mrs Chu's) name was called.
	A.	Correct, sir.
	Q.	Right. Miss Polo, again, I'm going to put it to you that in fact, on that occasion, on 5 January, you did not, in fact, go into the consultation room with (Mrs Chu) to see the doctor.
	A.	I'm sorry, sir?
	Q.	I suggest you were not present when (Mrs Chu) saw the doctor.
	A.	No, sir, I was inside, I was with her." (Appeal bundle pp. 190-191)

43.The topic of the urine sample was recalled when Mr Macrae, in less ambiguous language than he had used in cross-examination, addressed the jury in his closing speech. He said:

"If Miss Polo wasn't there, only he (the applicant) can tell us what it was and if Miss Polo wasn't there, it raises interesting questions, does it not, as to whose urine it was. And all the expert evidence in the world is not going to affect the simple issue of whose urine was, in fact, tested on the 5th and whether the test kit displayed a positive or a negative.

Now, members of the jury, I'm going to deal with Count 1 first. I want to get it out of the way before I deal with what I suggest is the real issue in this case in Count 2. And I'm going to suggest, at the outset, that there is something very strange, there is something not quite right, something that is difficult perhaps to put one's finger on about the 1st count. And I do not accept that we have heard the whole truth about what the deceased and Miss Polo were up to at the clinic on 5 January of that year." (Appeal bundle p. 501)

44.A little later, Mr Macrae again returned to this topic when he invited the jury to consider the possibility (appeal bundle p. 504) of an attempt being made to "pull the wool over the applicant's eyes .... In other words, to deceive him, to mislead him" in the hope that he would carry out a D and C procedure. He then remarked:

"Now, we don't know how smart or how cunning the deceased was. In fact, we don't know anything really about her at all. Now, I don't want to stand here and appear to be blackening the name of somebody who can't answer back but it is a fact, I'm afraid, and I have to say it, that neither the deceased nor Miss Polo were apparently truthful to either the nurse or the doctor about the deceased's condition, and the question keeps coming back, why?" (Appeal bundle p. 504)

45.After this, with reference to the urine sample, Mr Macrae suggested that:

".... if it was negative, if the result that was conducted on that specimen, who's ever it was, was negative, it does beg the question as to whose urine it was and it begs the question as to why." (Appeal bundle p. 510)

46.When dealing with the evidence given by the patient, DW3, called by the defence, Mr Macrae said that:

"And her evidence also seriously calls into question that Miss Polo - the evidence, I'm sorry, of Miss Polo that the deceased and the deceased alone went in with a urine sample container or, rather, went out with a urine sample container to the toilet alone because, according to Miss Ng Mo-chong, Miss Polo went out with her. And why doesn't Miss Polo want her to know that?

Members of the jury, as I said at the beginning, what is going on here? Do we know the whole truth about this matter?" (Appeal bundle p. 513)

47.A second matter for consideration in concluding that this ground of appeal lacked substance, for which no explanation was forthcoming, was why counsel at trial, had he been aware of Mr Chu's comment that Dr Shu had refused to carry out an abortion for religious reasons, would on this account have found it necessary to pursue the "conspiracy theory" to the exclusion of the other possible line of defence that Dr Shu may have been mistaken. Even assuming Mr Chu's hearsay assertion to have contained accurate information, this was no reason for Mrs Chu to have needed to go to the lengths of tricking an experienced gynaecologist into performing an abortion when the only reason alleged for the earlier refusal had been on the grounds of Dr Shu's religious beliefs. It might have been different if it had been suggested that Dr Shu had refused to perform an abortion because it was unlawful to carry out the operation.

48.This leads us to the third consideration which, like the first, reveals the true workings of the defence tactics at trial. As Mr Reading, SC, for the respondent, was at pains to point out, the defence was well aware that Mrs Chu may have been hopeful of obtaining an abortion from Dr Shu but Mr Macrae successfully sought to shut out this evidence, as he was perfectly entitled to do, on the ground that it was hearsay. In particular, the defence had been provided with Dr Shu's witness statement. In this, she stated: "I asked (Mrs Chu) to think carefully if she wanted to deliver the child because she had told me her husband did not want to have the baby". Mr Chu's witness statement, also in the hands of the defence and also not revealed to the jury, confirmed that by 5 January 2001, he and his wife had at that stage decided to seek an abortion.

49.There was, therefore, nothing particularly startling about the information provided by Mr Chu in his complaint to the Medical Council. Whatever the reason, Mrs Chu had left Dr Shu's surgery without having had an abortion but the matter was plainly under consideration. If Mr Macrae had wanted to question Dr Shu about this, he had ample opportunity to do so.

50.In legal argument which took place in the jury's absence, he rightly succeeded, for sensible and valid tactical reasons, in having Mrs Chu's hearsay assertions to Dr Shu and to Mr Chu excluded. For this reason, when Dr Shu in evidence was asked in-chief whether she had written down the words: "think over" in her medical records, she explained that she had asked her patient to think it over. In deliberately leading form, to avoid hearsay evidence being introduced, prosecuting counsel asked:

"	Q.	In fact, you were asking her to think over about the pregnancy due to some sort of consternation she may have shown you at the time.
	A.	Yes." (Appeal bundle p. 139)

There, the matter was left. Mr Macrae asked no questions about it.

51.It is glaringly obvious that the reality behind the defence tactics at trial is that, faced with overwhelming evidence of guilt, there were two possible lines of defence open and they were both taken. The main hope was that Dr Shu might accept the possibility of a mistaken diagnosis of Mrs Chu's condition. However, when her evidence grew stronger and more cogent under cross-examination, the defence was able to fall back on the other weapon in its armoury which might explain the applicant's failure to realise that Mrs Chu was pregnant. This was the direct allegation that Miss Polo was not speaking the truth when she said she was present at the consultation room on 5 January 2001 coupled with the stealthily placed allegation made by Mr Macrae, which Mr Marash described as a "little naughty", in relation to whose urine sample had been given to the applicant for the pregnancy test. This was always an option and nothing in Mr Chu's complaint to the Medical Council has affected this.

52.Ultimately, what Mr Marash was left having to argue was that whilst the information provided by Mr Chu to the Medical Council was hearsay in nature, it would have justified a tougher approach by Mr Macrae in following the "conspiracy theory". We do not intend to pursue this speculative line of argument further. Mr Macrae had an amount of ammunition with which to suggest that the applicant may have been subjected to a trick by a woman desperate to obtain an abortion and he used this to its full potential with all the subtlety at his command. Mr Chu's complaint to the Medical Council added, in our opinion, nothing of substance to the information already in Mr Macrae's possession.

53.Although Mr Chu's complaint amounted to hearsay information, we would have been entitled, if it had been in the interests of justice to do so, to have utilised it in the determination of this application (see: HKSAR v Huynh Bat-muoi [2001] 4 HKC 643 at 651-652). However, having regard to the views we have already indicated, we consider that its production was unnecessary. Equally, while Mr Macrae no doubt genuinely believes that he may have conducted the case differently if he had known about the contents of Mr Chu's complaint, we are satisfied that his evidence should not be received as it would not have afforded any ground for allowing this application. Perhaps, with the benefit of hindsight, Mr Macrae has simply come to realise that one of his two lines of defence was not worth pursuing.

54.There were a number of ancillary matters in argument which Mr Marash accepted could not in themselves amount to a sufficient basis for allowing an appeal. In such circumstances, we do not propose to dwell on these as they did nothing, individually or collectively, to reinforce a ground which, for the reasons we have given, has singularly failed to show that the verdicts were unsafe or unsatisfactory.

Conclusion

55.Accordingly, the application is dismissed.

Alternative manslaughter verdict

56.We should say, finally, that we are disturbed at what occurred when the jury came to return their verdicts in relation to manslaughter. There were two possible routes to finding the applicant guilty on this count. These alternatives were left to the jury as "manslaughter by an unlawful act" and "manslaughter by gross negligence". However, when the jury convicted the applicant of the first alternative of manslaughter by an unlawful act, the transcript shows that the following took place:

"Clerk:

On the same count of Manslaughter against the accused, Harry Sudirman, also known as Sim Hok-gwan, Harry, have you reached a verdict in respect of the offence known as Manslaughter by gross negligence?

Foreman: Yes

Clerk: Is your verdict unanimous?

Foreman: Yes.

Clerk: What is your verdict?

Foreman: Not guilty." (Appeal bundle p. 68)

57.The taking of a second verdict in the circumstances which prevailed was unfortunate although, as it happens, it has caused no difficulty in the present case.

58.The questions a jury will be asked on returning to court are routinely set out in writing for their benefit. The questions have been designed in such a way that where there are alternative reasons which are open to the jury for convicting of manslaughter, they should first be asked if they have reached a verdict on the count of manslaughter. If they have been able to reach a verdict on which they are all agreed or have agreed upon by an acceptable majority, the jury should then be asked whether their verdict is "Guilty" or "Not Guilty". Only at this stage, when the defendant has been found guilty of manslaughter, should the jury, where necessary, be asked the basis of their verdict. A sample of the written questions which should have been handed to the jury in the present case would have been along the following lines:

59.Judges are not required in every case to find out the basis of the jury's verdict in manslaughter but it is desirable that they should do so where this may affect sentence.

Representation:

Mr John Reading, SC, DDPP, Ms Dee Crebbin, SGC and Ms Ng Mee Wah, Memi, GC, of the Department of Justice, for the Respondent.

Mr Daniel Marash, SC and Mr Toby Jenkyn-Jones, instructed by Messrs Johnson Stokes & Master, for the Applicant.