HKSAR v. Chan Miu Ching

HCMA151/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.151 OF 2006

(ON APPEAL FROM KTCC 7434 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 23 May 2006

Date of Judgment : 23 May 2006

Date of Handing Down Reasons for Judgment : 9 June 2006

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REASONS  FOR  JUDGMENT

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1.The appellant was convicted on her own plea of one charge of ‘practicing medicine or surgery without being registered or provisionally registered', contrary to section 28(2)(a) of the Medical Registration Ordinance (Cap. 161) [Charge 1], one charge of ‘making medical diagnosis in an unregistered clinic', contrary to section 14(1)(a) of the Medical Clinics Ordinance (Cap. 343) [Charge 2], one charge of ‘possession of Part I poison', contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance (Cap. 138) [Charge 3] and one charge of ‘possession of substance to which the Antibiotics Ordinance applies', contrary to sections 5(1) and 10(1) of the Antibiotics Ordinance (Cap. 137) [Charge 4].  She was sentenced to the concurrent terms of 2 months' imprisonment on Charges 1 to 3 and 4 weeks' imprisonment on Charge 4.  She appeals against these sentences.

The facts

2.Briefly, in the afternoon of 19 July 2005, a police officer posing as a patient visited the appellant's clinic at Room 1, 4/F, Hing Shun Mansion, 82 Fu Yan Street, Kwun Tong.  After the consultation, the appellant provided the officer with three packets of medicine one of which was Part I poison. [Charges 1 and 2].  A variety of Part I poison and antibiotics were later found in the defendant's clinic. [Charges 3 and 4].

The magistrate's reasons

3.Quoting from the magistrate's Reasons for Sentence, this is what he had to say about the appellant's background :

“6. The Defendant had previously committed offences relevant to the said 2^nd, 3^rd and 4^th charges in this case on 29 December 2000.  She was sentenced to a fine, and 4 months' imprisonment which was suspended for 24 months.

7. In mitigation, the Defendant through her lawyer stated that she was 66 years old, separated from her husband, and has 3 daughters.  Two of her daughters were doctors.  The 3^rd daughter was studying in Australia but had to return to Hong Kong because of mental illness and needed the Defendant's care.  The Defendant has a 94-year-old mother.  As for the Defendant, she suffered from coronary heart disease which required regular treatment.  The Defendant was a licensed Chinese medicine practitioner.  The Defendant's clinic was also her residence.  She was the chairwoman of the incorporated owners committee of that building, and she had served the local community.  The Defendant had been blackmailed for $40,000.  She suspected that the present incident was the result of the blackmailer complaining to the Health Department.”

4.The magistrate then gave a short analysis of the following four cases all of which were given immediate custodial sentences : HKSAR v. Lai Sau Yat, CACC529/2004; HKSAR v. Mui Wai Cheung, HCMA1073/2000; Lau Hon Wah v. R., CACC234/1980; and A.G. v. Leung Hing & Another, AR22/1975.

5.In the end, he concluded :

“9. In this case, the Defendant's strongest as well as the most favourable mitigating factor was her timely guilty plea, which saved the court's time and showed her remorse.

10. However, the Defendant did not have a clear record.  She had a relevant previous conviction.  In addition, it is only 4 years or so between her previous conviction and the date of the present offences.

11. The Defendant practised medicine without registration and possessed a large quantity of Part I poisons while not being subject to any professional code or supervision.  This would expose patients to danger and risks which could not be discounted as minor.  I considered that this should be dealt with by a deterrent sentence.

12. After considering all the circumstances, I adopted 3 months' imprisonment as the starting point for the 1^st, 2^nd and 3^rd charges, giving the Defendant a 1/3 discount for her guilty plea.  I considered a starting point of 6 weeks' imprisonment appropriate for the 4^th charge, which became 4 weeks after the 1/3 discount.  I considered that all the offences originated from the Defendant's practice of medicine without registration, hence all sentences to run concurrently.

13. The Defendant was given a suspended sentence previously.  I did not think it appropriate in this case to impose a suspended sentence again.  Neither did I think it correct to make a community service order: the Defendant is not of young age and she did not have a clear record.  The offences of which she was convicted previously could not be regarded as minor.”

Grounds of appeal

6.Counsel for the appellant has advanced three grounds.

7.Ground 1 :

“The magistrate erred in failing to consider adequately, or at all, alternative sentencing options.  He failed to call for background reports, including probation report and community service report before sentencing the appellant.”

8.It is contended that a fine should have been adequate in all the circumstances.  For support, a collected appeal involving 16 matters is cited : Tsui Sin Kwok & Others v. The Queen, CA 756-771/1977.  Alternatively, it is suggested that the appellant fits all the six criteria in Brown (1981) 3 Cr App R (S) 294 for a community service order.

9.It is pointed out to me that the appellant is a registered Chinese Medicine Practitioner, that what she practiced was really a combination of Chinese and western medicine and that she is a staunch supporter of different charitable organizations.  I have been told that she has finally closed down her Chinese medical practice and that there is no chance of her re-offending.

10.In my judgment, having considered everything that has been said under this ground, the only appropriate sentence in this case remains one of immediate imprisonment.  I repeat the sentiment expressed by the Court of Appeal in HKSAR v. Lai Sau Yat (ibid) :

“In general, those who practice medicine unlawfully would have received medical training or possess some medical qualification … However, the medical training or medical qualifications of these individuals are not recognized in Hong Kong and there are no effective ways to monitor their standards … practicing medicine unlawfully would directly affect the health of the public and even endanger their lives.”  (A translation from Chinese)

11.It has not escaped me that the appellant's was a mixed Chinese and western practice.  But the danger is the same.  The public was put at risk.  I also note that she was re-offending.   I do not find the case of Tsui Sin Kwok (ibid), decided long ago before the maximum penalties of the relevant offences were increased by legislation, to be of any assistance.

12.Ground 2 :

“The magistrate failed to give sufficient weight to the appellant's criminality, antecedents, special and exceptional circumstances, and other mitigating factors justifying suspension of the imprisonment sentence imposed.”

13.It is argued that the present case is exceptional in that the appellant is a registered Chinese Medicine Practitioner who, presumably, knew what she doing, notwithstanding the use of mixed Chinese and western methods.  It is pointed out to me that she had had the benefit of many continued education programmes and seminars so “any foreseen risk” is arguably “minimal”.  I have been told that she is only source of physical care and emotional support for her 94-year-old mother.  I am reminded that the appellant herself is already aged 66.

14.I repeat what I said in paragraph 11 above about risks.  I also take the view that it was the appellant who put herself and her mother in the present predicament, not least by re-offending.  I note that two of the appellant's daughters are doctors so suitable arrangements for the care of their aged grandmother will not be a problem.

15.Ground 3 :

“Immediate custodial sentence was therefore wrong in all the circumstances and it is manifestly excessive.”

16.In my judgment, there is nothing wrong or excessive about the composite term of 2 months' immediate imprisonment.

Judgment

17.The appeal is dismissed.

Ms Olivia Tsang, GC of Department of Justice, for HKSAR

Ms Ody A. Lai, instructed by Messrs Wong & Co., for the Appellant