WONG SO-CHUN AND ANOTHER v. THE QUEEN

CACC000385/1977

  

IN THE COURT OF APPEAL
	1977 No. 385
	(Criminal)

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BETWEEN
	WONG So-chun	Appellants
	LI Ho-biu
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.A., Leonard and Li, JJ.

Date of Judgment: 26th July 1977.

  

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JUDGMENT

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Huggins, J.A.:

1. The Appellants, wife and husband, were charged in the District Court with conspiracy with others to procure the miscarriage of a woman. After a trial they were found Guilty and sentenced to one year's imprisonment and three years' imprisonment respectively. They appeal against those sentences. In the view of this court there is no merit in the appeal of the 2nd Appellant. Although he is sixty-four years of age he has two previous convictions for abortion, one in 1960 and one in 1974. Upon each of those convictions he was sentenced to three years' imprisonment. By committing the present offence within six months of his last release from prison he has demonstrated that he has no intention of giving up his illegal practice. The learned judge may have made an unfortunate choice of words when he said:

".. I do not see how I can possibly properly impose a shorter sentence upon him for the present offence than was imposed upon him last time".

By that we do not understand the judge to have meant that whatever sentence might have been imposed for a previous offence he would not have imposed a shorter sentence on this occasion: we think he was merely saying that he thought three years' imprisonment was the minimum term which was appropriate to the circumstances of the present offence. It is true that, whereas in England since abortion was legalized in specified cases the courts have tended to pass heavier sentences than previously for illegal abortions, in Hong Kong the contrary appears to have happened. We do not necessarily consider ourselves bound to continue that tendency, but it is sufficient in the present case to say that we think a sentence of three years' imprisonment on the 2nd Appellant was amply justified and his application is dismissed.

2. It seems likely that the 1st Appellant was at least to some extent subject to the influence of her husband, to whom she had been married since 1964. She has a clear record and it may be that but for the influence of her husband she would never have contemplated what would undoubtedly have been a very dangerous procedure, the girl being between twenty-two and twenty-six weeks pregnant. The 1st Appellant has been in prison for three months and not without some hesitation we have come to the conclusion that justice will be done if we allow her appeal to the extent of suspending the term of imprisonment imposed by the learned District Judge for a period of two years. We so order.

  

26th July 1977.

  

Representation: