HKSAR v. Tsui Chi Lam

HCMA582/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.582 OF 2006

(ON APPEAL FROM KTCC 467 OF 2006)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 28 July 2006

Date of Judgment : 16 August 2006

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J U D G M E N T

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Introduction

1.The appellant was convicted on 16 May 2006 of one charge of taking part in the management of an unregistered clinic, one charge of possession of Part 1 poison, one charge of possession of substance to which the Antibiotics Ordinance applies, and one charge of possession of a dangerous drug by Ms Amanda Woodcock sitting in Kwun Tong Magistracy.  On the 1^st count, he was sentenced to nine months’ imprisonment and on the other charges each to three months’ imprisonment, all sentences to be served concurrently.  He now appeals against the convictions.  By the time he appeared before me on 28 July 2006, he had already served the sentences imposed in respect of the charges of possession of substances.  He therefore only sought to appeal against the conviction on Charge 1 of taking part in the management of an unregistered clinic.

The evidence

2.The evidence as found by the learned magistrate and as narrated in her Statement of Findings was as follows :

“… On the 27^th September 2005, the police entered the clinic disguised as patients to see a doctor.  The 1^st defendant [not the appellant] opened the door and greeted them.  The appellant was found in the one and only consultation room with a female who was released by the police.  PW1 found the female sat on the consultation bed and the appellant stood in front of her.  The appellant was arrested and photographs were taken of the clinic set up.  Antibiotics, Part one Poison and Dangerous Drugs were seized from the clinic.  Sketches were drawn of the set up of the clinic and where the seized items were found, including drugs, antibiotics, surgical instruments and many ultrasound scans of different fetuses.”

Grounds of appeal

3.The 1^st ground of appeal as advanced by Mr Boyton of counsel on behalf of the appellant was :

“The learned trial Magistrate found that there was ‘no evidence … that Chinese medicine was practiced there’ in her ‘brief reasons for verdict’ and thereby erred in law and/or on the facts.  This finding demonstrated that the learned trial magistrate had, at the time she delivered her oral reasons for verdict, failed to take into account that the exculpatory parts of the appellant’s mixed statement (the assertion that he was practicing acupuncture and Chinese medicine therein), was still evidence before the court.  By failing to consider that this was evidence, which was, in the appellant’s favour, the convictions on all charges are unsafe and unsatisfactory.”

4.The salient part of the appellant’s record of interview were :

“Q: All right, I wish to ask (something) about the flat I had just mentioned.  Did you take (it) as (your) clinic?

A:   Right.”

He said the flat was rented by Dr Keung Chi-man who was the appellant’s colleague.  He said Keung was not a Hong Kong resident and went between Shenzhen and Hong Kong on a business visa.  He said that he did sometimes give Keung a hand in seeing patients at the flat.  He said that the 1^st defendant was his patient and she had an itch on her feet and a headache.  His qualification for practising was acupuncture.  He was also a listed Chinese medicine practitioner.  He was permitted to establish a Chinese medicine shop, do acupuncture and give manipulative therapy, that is, Chinese medical services.  He admitted that the flat in question was used as a clinic.  In other words, he treated, acupunctured and examined people there.  He was asked about the batch of needles which was found on the premises and he said they were used by Dr Keung for injections in the hemorrhoids.  He was asked about his monthly consolidated statement of the Hong Kong Bank which was found by the police in the flat and he said that statement was sent to the flat because he frequented it.  He also said that all relevant correspondence was also sent there.  He was asked about some intravenous infusion needles found by the police on the premises and he said they were used for injections of glucose for treating certain patients.  Finally he admitted that he had practised at the flat for about half a year.

5.Defence counsel made their final addresses to the magistrate on 4 May 2006 and after she heard the addresses, she said that she was hoping to be able to give a verdict that afternoon but in view of the fact that she had not had sufficient time to go through the records of interviews, she said :

“… and they are quiet important — well, they are important — I’m going to need some time to go through them.  So I’m not going to be able to give a verdict this afternoon, which would mean consulting your diaries for next week.”

6.As a result, verdict was adjourned until 16 May 2006.  When she gave her reasons for verdict on 16 May, in relation to the appellant’s records of interview, this was what the magistrate said :

“Upon reading the 2^nd defendant’s records of interview, it clearly indicates that he worked there, agreeing to it being his clinic.  He also told the police that he treated people there.  And when asked about equipment, in particular needles and intravenous drips, he said they were used in the treatment in the clinic.”

Near the end of her reasons for verdict this was what she said :

“The 2^nd defendant is a person who admits in his record of interview that he treated people in this clinic.  He purported to be a medical man and practised from this clinic.  He must have had possession, control and access to the drugs and antibiotics.”

It is clear to my mind that during the adjournment the magistrate must have considered the appellant’s record of interview and indeed she said so in so many words when she gave her reasons for verdict, namely that upon reading the 2^nd defendant’s records of interview, it clearly appeared that certain things happened.

7.Mr Boyton’s submission on this was that the paragraph which I have quoted above which starts with words “Upon reading the 2^nd defendant’s records of interview” was only indicative of the magistrate having only considered the inculpatory parts of the statement but not the exculpatory parts.

8.In the magistrate’s Statement of Findings which was dated 11 June 2006, the magistrate again referred to the appellant’s record of interview.  This is what she said :

“… The appellant also admitted to the police in a record of interview (P92) that he worked there.  This record of interview was not challenged and admitted as voluntary.  At paragraph 35 and 36 of the exhibit P92(b) he admits it was a clinic.  At paragraphs 116 to 119 he admits the flat was used as a clinic.  He told the police that a Mr. Keung rented the premises but he could not contact him.  He was shown many of the exhibits seized from the clinic and asked to comment on them, he admitted that he used hypodermic needles and intravenous drips found to treat patients, see paragraph 530.”

Furthermore, in the admitted facts it was admitted that the setting of the clinic on the day of the police raid was compatible with a clinic for practising Western medicine.  It was also admitted that the gynaecological instruments and the drugs found inside the clinic on that day could be used for abortion.  The magistrate found in her Statement of Findings that there was little physical evidence that this was a Chinese medicine clinic.  In her Reasons for Verdict, she said that there was no evidence that the clinic was a Chinese medicine clinic, nor that Chinese medicine was practised there.

9.As Miss Sally Yam for the respondent submitted, the learned magistrate did not err in so finding.  Miss Yam submitted that the mere assertion by the appellant that acupuncture was practised in the clinic was not evidence that Chinese medicine was practised there.  Furthermore, in the Medical Clinics Ordinance, Cap.343 that the appellant was charged under, under section 2 the Interpretation section, “clinic” was stated to be premises which did not include premises used exclusively by a Chinese medicine practitioner registered or listed under the Chinese Medicine Ordinance, Cap.549 in the course of his practice.  It was agreed by the prosecution that the appellant was listed under the said Cap.549 but, in my view, the premises in question could hardly be said to have been premises used exclusively by him in the course of his practice as a Chinese medicine practitioner.

10.In my view, the magistrate clearly did consider the contents of the appellant’s record of interview and just because the appellant chose to say that the clinic in question was where he treated, acupunctured and examined people there that was not a defence to the charge.  In my view the magistrate clearly did come to that conclusion.  Ground 1 therefore fails.

11.The 2^nd ground of appeal advanced by counsel was that :

“The learned Magistrate erred in law and/or on the facts when she convicted the appellant of ‘Taking part in the management of an unregistered clinic’ because he practised as a doctor therein : as section 14(1)(a) of the Medical Clinics Ordinance, Cap.343 distinctively identifies two separate acts that constituted the offence, that is, of ‘managing an unlicenced clinic’ and ‘performing the role of doctor in such an unlicenced clinic’.  As the learned Magistrate had (1) failed to specifically identify the appellant’s actual acts (that is, the actus reus) that constituted ‘taking part in the management’ and (2) had failed to give adequate reasons why merely being a doctor meant one took part in the management of that clinic, the said conviction on the first charge is unsafe and unsatisfactory.”

This ground of appeal is a complaint that the magistrate never gave a sufficient analysis as to what acts constituted management.

12.Ms Yam, for the respondent, submits that the learned magistrate did not convict the appellant of charge 1 simply because he practised as a doctor in the clinic.  She submits that the magistrate had also considered the following evidence :

(1) the fact that the appellant was found with a key to the front gate of the clinic on his person upon his arrest;

(2) his bank statement addressed to the clinic was found in the desk of the consultation room;

(3) his admissions that it was his clinic and he worked there; and

(4) his use of the various instruments and equipment found in the clinic to treat patients.

13.In her oral Reasons for Verdict the magistrate, having gone briefly through the evidence against both defendants said that the evidence that she saw as relevant clearly allowed her to fairly and reasonably infer that both defendants took part in the management of this clinic that day.  She said that what they were doing there was more than a menial or routine job.  She said she was sure they played the role of doctor, nurse, assistant respectively.  She said she was sure the 2^nd defendant [appellant] provided services in this clinic and he had control over the services.  She said she did not accept that his role equates to that of a prostitute in a vice establishment.  She said that in any event, a prostitute could be a manager or a keeper at the same time as prostituting herself or himself.  She said that she had considered the authorities and she came to the conclusion that there was more than sufficient evidence to prove both defendants took part in the management of this clinic.

14.In her Statement of Findings the magistrate said that :

“… clearly on [the appellant’s] own admission; he worked as a doctor in this clinic, he knew it was run as a clinic and by his role there he furthered it as a clinic.  Playing doctor in an unlicensed clinic is in no way a menial role.  He was an integral part of this business and after I considered the physical and admitted evidence against him, I found him to be part of the management on that particular date.   The evidence I found as relevant clearly allows me to fairly and reasonably make that inference.”

15.In my view, based on the evidence adduced at the trial and which was referred to by the magistrate, she was entitled to draw the inference that the appellant not only worked as a doctor on those premises but he was part of the management of that clinic.  The premises were rented by one Dr Keung but Dr Keung was not a Hong Kong resident and travelled between Shenzhen and Hong Kong on a business visa.  Quite clearly, when Keung was not in Hong Kong, he needed the assistance of someone who had medical qualifications to help him to manage the clinic.  The 1^st defendant was performing the duties of a nurse or assistant and clearly by herself could not have run the clinic on behalf of Keung.  This ground of appeal also fails.

16.In the circumstances, the appeal against conviction is dismissed.

Miss Sally Yam, SGC of Department of Justice, for HKSAR

Mr David Boyton, instructed by Messrs Cham & Co., for the Appellant