HKSAR v. Tsui Pik Fong

CACC 39/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 39 OF 2009

(ON APPEAL FROM HCCC NO. 168 OF 2008)

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Before: Hon Hartmann JA in Court

Date of Hearing: 24 June 2009

Date of Ruling: 24 June 2009

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R U L I N G

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1.The applicant appears before me this morning seeking leave to appeal her sentence.

2.She was found guilty by a jury of two charges of administering a poison or noxious substance with intent to procure a miscarriage.  The jury found that the applicant had given drugs to a young woman who wished to end her pregnancy.  When the drugs did not work on the first occasion, the dosage was repeated.  The young woman then miscarried in her own home.  This was, however, followed by serious bleeding, and, if it was not for the presence of a family member who took her to hospital, the young woman may well have died.

3.The trial judge sentenced the applicant to 3 years’ imprisonment for each charge, the sentences to run concurrently with each other.

4.As to an appropriate sentence, it appears that the relevant authorities are of considerable vintage.  Ms Chan has been able to point me to one authority in which a 3-year sentence was imposed.  That is Wong So-chun & another v the Queen, CACC 385/1977.  That judgment is over 30 years old.  I notice that the term of 3 years was imposed upon a man who had two previous convictions for procuring abortions.

5.The applicant in the present case does have previous convictions concerning possession of antibiotics and Part I poisons but no previous conviction for anything as serious as procuring a miscarriage.  The sentence imposed on the applicant after trial was, therefore, seemingly greater than the Hong Kong authorities have previously indicated.

6.Each case, of course, is to be determined according to its own facts and in the present case, the young woman who received the medication fell seriously ill and had to be resuscitated on an emergency basis.

7.Line DJ, the trial judge, was of the view that an abortion procured by way of the administration of drugs could be (and was in this particular case) more serious than the procuring of an abortion by using surgical implements.  It is more serious, the judge found, when the person who is given the drugs is left to her own devices, to go home and to have the miscarriage with no medical help at hand.

8.For myself, I can see good sense in this approach.  But the fact remains that an issue that is clearly arguable has been raised and, in addition to that, it seems to me that, bearing in mind the vintage of the authorities that have been brought to my attention, perhaps this is an opportune moment for the Court of Appeal to consider what may or may not be appropriate by way of sentencing in offences of this kind.

9.In fairness to this applicant, she has not herself advocated the point.  She has simply sought clemency.  She has expressed her shame, her embarrassment in front of her family, and her determination to lead a better life upon her release.  She was a woman of 59 upon her conviction, and although, as I have said, she had some previous convictions for possession of drugs which she was not authorised to possess, she appears otherwise to have led a blameless life.

10.Leave to appeal is therefore granted.  I have informed the applicant that there is no risk of her receiving ‘loss of time’ if her appeal is successful.

11.I should, however, in finishing, say to the applicant that the fact that I have granted leave in the circumstances of this case does not mean that I think she necessarily has a good chance of having her sentence reduced.  That may or may not be so but I am of the view that the Court of Appeal should consider appropriate sentencing principles in respect of this kind of offence.

Ms Winsome Chan, SPP of the Department of Justice, for the Respondent

Applicant in person, present