HKSAR v. TOCYA JOAN NGALATAN

DCCC 757/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 757 OF 2014

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Reasons for Sentence

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1. The defendant has been convicted on her own plea of one offence of administering poisons or other noxious things with intent to procure miscarriage, contrary to section 46 of the Offences against the Person Ordinance.

2. The facts are very simple.  The defendant self‑administered an aborting agent in November of 2013, leading to the miscarriage of a foetus she was carrying and her subsequent admission into hospital.

3. The defendant has admitted the facts, and I convicted her on the basis of those admissions.

4. She is aged 30, born in the Philippines in 1984.  She was a domestic helper in Hong Kong, working for the same family since 2011.  She has no criminal record.  Her antecedents say she received secondary education level.  She has been remanded in custody since the time of her arrest.  She was married, and of importance is that she has a daughter, aged 7, and other relatives in the Philippines.  The defendant is no doubt anxious to return to the Philippines to care for her daughter and be with her family again.

Mitigation

5. In mitigation it is said that she chose the wrong path to deal with this pregnancy.  Nevertheless, it is clear from the authorities that the offence under section 46 of Cap 212 does carry a sentence of immediate imprisonment even for a person of clear record after a plea of guilty.  The case I have been referred to is the case of R v Muhammad and Chan Siu Mee [1985], and the Court of Appeal said:

“In respect of a conviction for a single offence under section 46 of this ordinance without previous convictions, sentences of 18 months to 2 years have been imposed fairly regularly. In the earlier part of that period such sentences seemed to be frequently suspended, but certainly from 1981 onwards sentences were usually imposed as immediate custodial sentences.”

6. Looking at the facts of this case, we have a self‑administered abortion not done for commercial purposes.  Of some relevance of course is the fact that the abortion was conducted very late, which perhaps aggravates the situation to a certain extent.

7. I consider that a sentence of imprisonment has to be imposed.  Mitigating factors are the defendant’s plea of guilty and her attempt to assist the prosecution.  At the end of the day I found her evidence could not be relied upon, but that does not mean that she has been untruthful, and I consider it a factor I can take into account when determining the starting point for sentence.

8. The defendant is a lady of clear record and hitherto unimpeachable character, and she is the mother of a 7-year-old daughter who no doubt requires the presence of her mother again.

9. Taking all these factors into consideration, I have decided that the starting point for sentence I will take is one of 18 months’ imprisonment.  I reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.

10. I sentence you to 12 months’ imprisonment.