Tsui Sin-kwok and Others v. The Queen
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CACC000764/1977
Coram: Briggs, C.J., Pickering, J.A. and Leonard, J. Date of Judgment: 21st September, 1977. ----------------- JUDGMENT ----------------- 1. There are sixteen appeals before the court numbered 756 to 771 of 1977. They can best be dealt with together. 2. The appellants pleaded guilty to various offences under Chapters 137, 138, 161 and 343 and were sentenced to various fines. Broadly speaking, the appellants were all fined for either carrying on the management of an unregistered clinic or practising medicine without registration and, in addition, there were various offences of being in possession of Part I poisons and antibiotics. 3. The magistrate's Statement of Findings is the same in each case and it is obvious that he considered that the purpose of the Ordinances enumerated above was to protect the public so far as the practise of medicine and the supply of drugs and antibiotics were concerned. 4. We think that the magistrate properly took into consideration these reasons when sentencing the appellants but we notice that the fines that he imposed were very much larger than fines imposed for similar offences in the past two years. It is a well known principle of sentencing that a judge should not alter an accepted level of sentencing unless there has been some consultation with his fellow judges. In this case, there is no suggestion that any such consultation had taken place. We therefore think it right to vary the amount of the fines imposed in the court below, except in one case. 5. The offences to which seven of the appellants pleaded guilty were the same in each case. The numbers of the cases are: Criminal Appeal No. 757/77 (SHIU Siu-ngok) Criminal Appeal No. 758/77 (YEUNG Yee-yiu @ YEUNG Tip-yiu) Criminal Appeal No. 759/77 (TSANG Chiu-kwan) Criminal Appeal No. 761/77 (CHAN Hok-chan) Criminal Appeal No. 763/77 (CHAN Sau-Ping) Criminal Appeal No. 764/77 (CHAN Hok-yan) Criminal Appeal No. 770/77 (TJUNG Fo-sien) Each appellant in these appeals was sentenced for practising medicine without registration, carrying on the management of an unregistered clinic, possession of Part I poisons and possession of antibiotics. They were fined sums totalling $7,000: $1,200 or three months' imprisonment on the first charge, $500 or 3 weeks' imprisonment on the second charge, $5,000 or four months' imprisonment on the third charge and $300 or two weeks' imprisonment on the fourth charge. 6. We think that the total fine of $7,000 is manifestly excessive and we substitute therefor on the first charge a fine of $1,500 and on each of the other three charges the sum of $100 making a total of $1,800. 7. It is obvious, in each of these cases, that the offence of practising medicine without registration is the real substantive offence and that the other offences are subsidiary to and are so closely connected with that first offence that only a nominal fine is necessary. In each case the amount of poisons and antibiotics was only such that one would expect to find in a clinic on a day to day basis. 8. The following cases:- Criminal Appeal No. 756/77 (TSUI Sin-kwok) Criminal Appeal No. 766/77 (KWONG Chai-ming) Criminal Appeal No. 767/77 (IP Pik-yuk) are all cases in which the appellants pleaded guilty to three offences: (1) Carrying on the management of an unregistered clinic, (2) Possession of Part I poisons and (3) Possession of antibiotics. The first appellant was fined $500 or three weeks' imprisonment on the first charge, $3,000 or two months' imprisonment on the second charge and $300 or two weeks' imprisonment on the third charge. The other two appellants were fined $500 or three weeks' imprisonment on the first charge, $5,000 or four months' imprisonment on the second charge and $300 or two weeks' imprisonment on the third charge. 9. We think these are cases in which the substantive offence was undoubtedly carrying on the management of an unregistered clinic. We, therefore, substitute for the fines imposed by the magistrate $1,000 on the first charge and $100 on each of the other two charges, making a total of $1,200. 10. In appeal No. 760/77 (CHENG Kwok-shun), the appellant pleaded guilty to (1) Practising medicine without registration, (2) Carrying on the management of an unregistered clinic and (3) Possession of Part I Poisons. He was sentenced to $1,200 or three months' imprisonment on the first charge, $500 or three weeks' imprisonment on the second charge and $5,000 or four months' imprisonment on the third charge. 11. We think that the substantive charge in this case is practising medicine without registration. The facts show that the appellant was in his clinic and practising when he was arrested. We therefore substitute a fine of $1,500 on the first charge and $100 on each of the other charges making a total of $1,700 in all. 12. In appeal No. 762/77 (TSE Poa-suk), the appellant was found guilty of (1) Practising medicine without registration, (2) Carrying on the management of an unregistered clinic, (3) Possession of Part I poisons and (4) Possession of antibiotics. She was sentenced to $1,500 or three months' imprisonment on the first charge, $1,000 or six weeks' imprisonment on the second charge, $6,000 or four months' imprisonment on the third charge, and $500 or three weeks' imprisonment on the fourth charge. 13. We think that the substantive offence in this case is the first offence, but we notice that the appellant has a previous conviction for carrying on the management of an unregistered clinic and of being in possession of Part I poison and antibiotics. This occurred in 1976. In view of the record of this appellant, we substitute a fine of $2,000 for the first offence, and $100 for each of the other three offences, making a total sum of $2,300 in all. 14. Appeal No. 765/77 (MOK Wing-fat) stands alone. In this case the appellant pleaded guilty to possession of Part I poison and possession of antibiotics. He was sentenced to $5,000 or four months' imprisonment on the first charge and $300 or two weeks' imprisonment on the second charge. 15. The appellant was found in possession of a considerable quantity of Part I poisons and of one bottle of Penbritin capsules, which is an antibiotic. At his trial he admitted that what he had in his possession were "samples which I kept for my friends". 16. In this case, it is obvious that possession of Part I poison is the substantive offence. There is no suggestion that this man was practising medicine or managing a clinic. He was a supplier of Part I poisons and antibiotics. We think this is a serious offence and the appellant did not even have the excuse for possession of these articles that he needed them in order to manage a clinic. 17. We think that there is no reason to interfere with the sentence passed on this appellant and his appeal is dismissed. 18. In appeal No. 768/77 (YU Wing-fuk @ YU Hung-pok) the appellant pleaded guilty to (1) Carrying on the management of an unregistered clinic, (2) Possession of Part I poison and (3) Possession of antibiotics. For the first offence he was fined $600 or three weeks' imprisonment, for the second offence he was fined $6,000 or four months' imprisonment and for the third offence he was fined $500 or three weeks' imprisonment. The appellant has one previous conviction, in 1975, for exactly the same offences. 19. We think that in view of this appellant's record he should be fined $1,000 on the first charge and $100 on each of the other two charges, making a total of $1,200. 20. The appellant in Appeal No. 769/77 (HUNG Fuk-hong @ HUNG Yun-sang) pleaded guilty to four charges (1) Practising medicine without registration, (2) Carrying on the management of an unregistered clinic, (3)Possession of Part I poison and (4) Possession of antibiotics. He was sentenced to $1,200 or three months' imprisonment on the first charge, $500 or three weeks' imprisonment on the second charge, $5,000 or four months' imprisonment on the third charge and $300 or two weeks' imprisonment on the fourth charge. The appellant has four previous convictions: One of practising medicine without registration, two of being in possession of antibiotics and one of being in possession of Part I poison. 21. In view of his record, we think that the appellant should be fined $2,000 on the first charge and $100 each on the other three charges, making a total of $2,300. 22. The final appeal is Appeal No. 771/77 (LO On-wa and CHU Sau-ying). There are two appellants involved in this case. Leave was given by the court for the second appellant to appeal against sentence out of time. The first appellant pleaded guilty to practising medicine without registration. The first and second appellants were also found guilty of carrying on the management of an unregistered clinic, possession of Part I poison and possession of antibiotics. The first appellant was sentenced to $1,200 or three months' imprisonment on the first charge, $500 or three weeks' imprisonment on the second charge, $5,000 or four months' imprisonment on the third charge and $300 or two weeks' imprisonment on the fourth charge. 23. We think that these fines must be reduced and that the first appellant should be fined $1,500 on the first offence and the sum of $100 each on the other three offences making a total of $1,800. The second appellant should be fined $1,000 on the second charge, that is the charge of carrying on the management of an unregistered clinic, and $100 each on the other two charges, making a total of $1,200. 24. Any sums in excess of those mentioned above which have been paid by the appellants must be returned forthwith.
Representation: Bernacchi, Q.C. & J. Kwong (Ng & Yung) for all appellants Alderdice for respondent/crown |