HKSAR v. WONG MEI YI

HCCC 374/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 374 OF 2014

(ARISING FROM KTCC NO. 5230 OF 2013)

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REASONS FOR SENTENCE
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Background

1. The defendant, Wong Mei Yi, in the afternoon on 4 October 2013 gave birth to a baby boy.  She was 20 years of age, unmarried and alone when she gave birth to her child in the toilet of her parents’ home.  She said that the baby was not breathing and was unresponsive when she patted him.  She said that she saw no signs of life.  He was still and did not move. He did not cry and there was no breath.  She was in great pain throughout this time and was bleeding heavily from the childbirth.  She said she was terrified as she thought her baby was dead.  She clothed him and wrapped him in a plastic bag.  She then put him inside a waste disposal bin in the lift lobby on the 3^rd floor outside her parents’ home.  She said she was too frightened to tell her family members or boyfriend what had happened.  She did not know how to put it into words.

2. It was back in March 2013 that the defendant realised that she was pregnant but she told no one about her condition.  By June 2013, however, her boyfriend noticed a change in her physical appearance and raised it with her.  She confirmed she was pregnant.  Even though they discussed going to see a doctor, she did not do so. The next time she acknowledged her pregnancy was when she gave birth on 4 October 2013.

3. Later in the evening of 4 October 2013, a cleaner collected the rubbish from the waste disposal bin on the 3^rd floor and put it in the disposal shute of the building which led to the refuse room at the ground level of the building.  Another cleaner discovered the baby inside the plastic bag and immediately called the police. Ambulance officers arrived and tried to resuscitate the baby, but without success.

Pathologist’s report

4. An autopsy showed head, chest and abdominal injuries including skull fractures, subdural haemorrhages, subarachnoid haemorrhages, pulmonary haemorrhages, heart bruise and renal haemorrhages that accounted for the death of the baby.

5. The forensic pathologist observed that the presence of these injuries indicated that the baby was alive at the time when they were inflicted and accordingly he was of the opinion that the cause of death was multiple injuries. He explained that judging from the pattern and nature of the injuries, they were probably inflicted during a fall from a considerable height and this was consistent with the account of the baby falling from the 3^rd floor disposal shute down to the ground floor refuse room.

6. The forensic pathologist noted that the defendant claimed that she did not notice any sign of life or response from the baby when he was born.  He observed that the defendant was not medically trained, and it would not be unexpected for her not to be able to detect signs of life, especially when in a state of stress.

Offence of infanticide

7. The offence of infanticide under section 47C of the Offences against the Person Ordinance, Cap 212, is limited to when a mother kills her own child.  It reads:

“Where a woman by any wilful act or omission causes the death of her child being a child under the age of 12 months but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for the provisions of this section the offence would have amounted to murder, she shall be guilty of infanticide, and shall be liable to be punished as if she were guilty of manslaughter.”

8. This offence deals with the specific occurrence that sadly sometimes occurs when a woman as a result of childbirth suffers impairment of her mental responsibilities and by her act or omission causes the death of her child.  It is hard to imagine that life can be taken by a mother after giving birth to a child, but equally it may be hard for the mother in those circumstances to understand herself what she has done.  This offence recognises that a woman experiences biological and behavioural changes when pregnant and during and after childbirth which may have a grave effect upon her.  It is intended to account for the complex and gendered psychological and medical context in which the offence occurs.  This needs to be borne in mind when determining an appropriate sentence for this offence. 

Sentencing options

9. The tragic loss of life must be viewed in the tragic circumstances in which it has taken place.  It is difficult to judge such behaviour when it is hard to know what a person has gone through in the circumstances that they were in and it is even more difficult to punish the person for the same reason.

10. A woman convicted of infanticide is liable to be punished as if she were guilty of manslaughter.  Section 7 of the Offences against the Person Ordinance provides that any person convicted of manslaughter shall be liable to imprisonment for life and to pay such fine as the court may award.  That is the penalty that a woman faces upon her conviction for the offence of infanticide.

11. It is an element of the offence that the balance of the mother’s mind was disturbed because she has not recovered from either giving birth to the child or the effect of lactation on her.  It is for this reason that custodial sentences are extremely rare for this type of offence and why probation orders are generally imposed, recognising that the mother needs support and supervision rather than punishment.  This will of course depend upon the particular facts and circumstances of the individual case. 

12. A probation order places the offender under the supervision of a probation officer for a specified period which in law is not less than one year and no more than three years, with or without conditions. It is an alternative to imprisonment and designed primarily to rehabilitate an offender but in order to be effective it requires the offender’s consent. 

Psychiatrist’s report

13. Submitted in mitigation for the defendant is a comprehensive and helpful psychiatric report from Dr Peter W T Yu.  He gives a detailed account of the defendant’s background and circumstances and provides a thorough assessment and analysis of her mental condition with reference to the offence of infanticide. 

14. The defendant was born in Mainland China but moved to Hong Kong at a very young age.  She was raised by her father who recently died in October 2014.  Her mother left the family when she was 2 years of age but they would still meet from time to time.  She has an older brother who is single.  She has had very little schooling, having started primary education when she was 7 or 8 years of age and stopping in Form 1 when she was 13 or 14 years of age.  She has had very little work experience and mainly stayed at home instead of taking up employment.  She lives at a public housing unit at Wong Tai Sin with her brother but stays overnight at her boyfriend’s unit which is in a nearby block in the same estate.  She would be given money from her boyfriend and brother, as well as her father while he was alive. 

15. The defendant met her boyfriend when she was 15 years of age.  He is 26 years of age and works at an eatery nearby his unit.  She has been previously pregnant when she was 16 years of age but did not seek any antenatal care.  She gave birth to a baby boy on 21 July 2011 and gave up the child for adoption after she nursed him for a few days. It was noted that she from time to time regretted the decision she made. 

16. Dr Yu in his report examined her health history, daily activities and behaviour, her account of the offence, and her mental state and emotions.  He noted that in cases where a mother has killed a newborn child there may be an undercurrent of shame or fear where the pregnancy is typically denied or concealed.  It results in a state of denial and produces irrational behaviour where the mother cannot accept the birth of the child.  He concluded that the circumstances of the defendant fit this typical profile.  He also concluded that she lives a sheltered life and is naïve and immature.  He noted that following the delivery the defendant suffered shock and fear, and the adverse effects of severe pain and heavy blood loss.  He was of the opinion that at the time of the offence she had not recovered from the effect of giving child birth and her mind was disturbed.  He believed that the defendant may benefit from psychosocial treatment which aims to provide social support, encourage socialising, foster independence and help cope with the usual stresses of life as well as the specific stresses of the stigma of having committed a serious offence.  He recommended a probation order for a suitable period.

17. Having regard to the foregoing matters, I called for a probation officer’s report for the purpose of making inquiries as to the defendant’s suitability for probation. 

Probation officer’s report

18. The probation officer’s report as to the defendant’s suitability for probation is unfavourable.  He depicts the defendant as a young woman who has hitherto lived a self indulgent and irresponsible life.  She has not worked since she left school seven years ago when she was 13 or 14 years of age and in that time appears to have been a regular drug abuser.  His assessment of her is very critical, noting that she was untruthful and evasive when discussing her past behaviour and current situation.  He doubted her sincerity to reform, and concluded that there was a high risk of her committing a similar offence.  He did not recommend a probation order.

Where the truth lies?

19. I have on the one hand, the psychiatrist’s report of the defendant which addresses the biological and mental factors that may have affected her at the time of the offence, and on the other, the probation officer’s report of the defendant which addresses her circumstances and behaviour in which she is depicted as a self indulgent and irresponsible young person.

20. I am not quite sure where the truth lies, and it is necessary for me to stand back and assess the defendant’s background and the circumstances leading up to and surrounding the offence.  The prosecution have accepted the defendant’s plea of guilty to this offence on the basis that the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to her child.  However, I cannot help but feel that there was an element of irresponsible behaviour on the defendant’s part that led to her child’s death.  It is a concern that the defendant had previously given birth to a child with little if any acknowledgement by her of her pregnancy except when she was going into labour which finally warranted her seeking medical care and attention.  The child was then given up for adoption.

21. The same thing happened in this instance.  The defendant did not acknowledge her pregnancy and did not seek medical care or attention at any time during pregnancy or at child birth.  May be that itself displays a mind disturbed.  Or maybe it is an indication that this was an unwilling mother with an unwanted pregnancy.

Probation ruled out

22. The circumstances of this offence are shocking and unsettling.  This is a serious offence and the sentencing options are limited.  Bearing in mind it is an offence involving a mother taking the life of her child when her mind is disturbed, it behoves the court to focus on sentencing options that will assist and rehabilitate the offender.  Whilst general sentencing principles are an important factor in the determination of an appropriate sentence, they should not be slavishly followed without appropriate consideration and application of them to the facts and circumstances of the individual case.

23. Probation has been ruled out by the probation officer in his assessment of the defendant.  He has had the benefit of in-depth discussions with the defendant and other persons about her history, her personal circumstances and her emotions and behaviour.  I feel however that the revelations about the defendant’s behaviour and attitude must be put in the unusual context and troubling circumstances of this offence.

Suspended sentence not an option

24. In consequence of the probation officer’s report, I would have considered as an alternative, imposing a suspended custodial sentence, but as provided under section 47C this offence is to be punished as if the offender were guilty of manslaughter.  It means that the sentencing option of suspending a custodial sentence is not available to the court. 

25. A suspended sentence can provide a very effective means of rehabilitation by avoiding the necessity of actual prison but having the spectre of prison as a means to encourage a person to behave more responsibly and to make more of a concerted effort to correct their ways and not reoffend.  The power of suspending a sentence as provided under section 109B of the Criminal Procedure Ordinance, Cap 221, can only be passed on a sentence of imprisonment for a term of less than two years and where the offence is not an excepted offence.  Excepted offences are listed under Schedule 3 of the Ordinance and include manslaughter.  Even though Schedule 3 does not list section 47C as an excepted offence the wording of the section makes it plain that the offence should be punished as if the person were guilty of manslaughter and therefore in my view it should be regarded as an excepted offence and the option of suspending a sentence of less than two years’ imprisonment is not available when sentencing for this offence. 

26. This highlights the need for reform of this statutory restriction as it places a serious and inappropriate constraint on a court in achieving a sentence that is just and appropriate in the circumstances of the offence and offender.  I note the Law Reform Commission published a report on 25 February 2014, proposing the repeal of the excepted offences.  However, it still remains the law.

Probation preferred

27. This brings me back to consider a probation order even though the probation officer did not recommend it.  After careful consideration of the circumstances of this offence and the defendant, I am of the view that more will be achieved by making welfare officers and other support more readily available to this young woman.  A probation order provides the means for this to be achieved. 

28. Pursuant to s 3 of the Probation of Offenders Ordinance, Cap 298, a court may make a probation order if it is of the opinion that it is expedient to do so having regard to the circumstances, including the nature of the offence and the character of the offender.  A probation order may in addition to supervision “require the offender to comply during the whole or any part of the probation period with such requirements as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition by him of the same offence or the commission of other offences.” 

29. Even though probation is not recommended by the probation officer, it is for the court to decide whether or not probation is appropriate taking into account all the facts and circumstances of the offence and the offender.  A probation report provides important information about the offender as well as the circumstances surrounding the offence.  Accordingly, the recommendation made in a probation report is persuasive, but that is not all the information that the court has before it and there may be occasions where the recommendation is not followed given all the facts and circumstances of the case and the relevant sentencing principles that the court in its judgment considers should apply and be followed. 

30. As is typical in cases of this type, the defendant denied her pregnancy to others and to even herself.  She clearly did not face up to her situation and alone she gave birth to her child at her parents’ home.  She was terrified and in pain and believing her child was dead she disposed of his body. 

31. The defendant is a young person from a poor background who has lived a socially isolated life.  It would appear that she is without adequate social and economic supports to cope with childbirth or caring for a child.  When she gave birth she was in a state of isolation, exhaustion, shock and panic and while she may have behaved in an immature and irresponsible manner she was under the stress of childbirth.  In my view what this defendant needs is help, not prison. 

32. I will order that she be put on probation which requires the defendant to be under the supervision of a probation officer and I do so for a period of 3 years.  I will in addition impose conditions having regard to the circumstances of the case that I consider necessary for securing the good conduct of the defendant and for preventing a repetition by her of this offence.  The conditions imposed are to give additional teeth to the probation order and ensure there is no repetition of this offence by the defendant through a program of education, care and supervision to assist in her rehabilitation and future development. 

33. After discussion with Mr Selwyn So, counsel for the defendant, it is agreed by the defendant that the following conditions be imposed:

1. The defendant is to participate in and complete a vocational guidance and development program.

2. The defendant is to attend and participate in a drug counselling program and will subject herself to random drug testing.

3. The defendant will use her best endeavours to obtain and maintain gainful employment and/or education.

4. The defendant will provide volunteer services at scheduled times at a childcare establishment.

5. The defendant will participate in such programs or counselling sessions as arranged by the probation service, including attending together with her partner a family planning clinic.

34. It is the case that Mr So has discussed the conditions with the defendant and he confirms her understanding and acceptance of them.  I have also confirmed that to be the case with the defendant.