HKSAR v. LEE YIN FONG

HCCC293/2008

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 293 OF 2008

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Transcript of the Audio Recording
of the Sentence in the above Case

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The facts in this matter may accurately be categorised as revealing a real tragedy.  The accused is the daughter in a humble but plainly supportive family.  She has suffered since her birth from a reduction in her mental capacity.  That, according to all the reports which I have before me which are best summarised in that of a psychologist, has resulted in her being assessed as falling in the category of mild-grade mental retardation.  The psychologist asserts that she was impaired in social judgment, anticipation of behavioural consequences and planning ability.  It is against the background of that disadvantage that the events which occurred need to be considered.

The accused has, over the years, held several jobs.  Towards the end of 2005 she changed her employment and, as a result, met a man.  They formed what, on the reports before me, seems to have been a largely physical relationship.  Towards the end of 2007 the accused became pregnant.  She did not tell the father of the child of this fact.  There seems to be a real doubt as to whether she actually appreciated the fact of her pregnancy. 

In an interview the day after the commission of the offence she indicated to the police, according to the summary of facts which she has agreed, that she did not appreciate the fact that she was pregnant.  Shortly before the event she had sought assistance from a herbalist for certain symptoms, and that herbalist did not diagnose her pregnancy, suggesting that the symptoms involved may have been due to a fall. 

At some stage during the course of her pregnancy her father had apparently - so she related in the record of interview - remarked on her enlarged stomach, which resulted in her mother asking if she was pregnant.  It certainly seems that at that stage the fact that she was pregnant had not impressed itself upon her.  She consequently told her mother that she was not pregnant: her mother’s response was that if she found herself pregnant she would not be allowed to live at home. 

It is not unknown for a parent to say something which, in the fullness of time, they regret ever having allowed to pass their lips.  I have no doubt that because of what happened subsequently the accused’s mother wishes those were words she had never said, for the accused quite obviously took that expression very literally, rather than simply as an admonition, as I have no doubt it was intended to be. 

 Shortly before what appears to have been a full term pregnancy, and on the day of the offence, the accused was in the toilet.  It seems that she had gone into labour and on her own, she delivered in what must have been for anyone, but particularly for her, the most distressing circumstances. 

It is helpful to quote from the report of Dr Robyn Ho, the psychiatrist who examined the accused and whose report seems to have assisted the Department of Justice in coming to its conclusion to accept the plea.  Paragraph 12 reads:

“On 16 June 2008 she started to have pain on the left side of her abdomen for a short period of time.  She had further pain on 16 June that lasted for around 10 minutes each time, with 3 to 4 hours pain-free intervals.  She was able to go to work, but felt physically uncomfortable.  She thought she had gastritis.  She had interrupted sleep.  On 17 June 2008 she started to have pain again, around 1 pm, for 10 minutes.  She did not have any more pain until around 7 pm, and the pain gradually increased.  She first thought that she was constipated.  She realised she was going to give birth from around 8 pm when her water broke.  She went into the toilet at around 9 pm, with worsening of pain.  She did not know what to do, but did not think of getting help from her father who was at home.  Her mother returned home around 10 pm, and Lee lied that she was constipated.”

 I think it is worth interjecting in this quotation to observe that that in itself must demonstrate the measure of this woman’s desperation at that time.  She realised she was in the process of giving birth - she was right in labour - and yet she still lied to her mother to conceal that.  To continue:

“Her mother went out to buy laxatives.  She eventually gave birth to the baby whilst sitting on the toilet.  She said she felt very confused and was panicking.  She did not know what she should do with the baby.  She was scared to tell her parents as she was worried her mother will throw her out of their home.  She did not remember much of what happened.  She said the baby cried twice and had no movement.  She took it out of the toilet bowl and was unsure how the umbilical cord was broken.  She saw the window in the bathroom was open and just threw the baby out.  She then sat inside the bathroom until her mother returned.  She eventually opened the bathroom door for her mother, and her mother then telephoned the emergency services for help.” 

As it is, the accused was then taken to hospital, where she received treatment.  She was subsequently arrested and remanded in Siu Lam Psychiatric Centre.  She was, until approximately a week ago, in custody from then.  Dr Ho continued in her report, paragraph 17:

“It is my opinion that the balance of the defendant’s mind was significantly disturbed at the material time as a result from the acute mental and physical stress of delivering a baby by herself, as well as her mild-grade mental retardation.  She had not fully recovered from the effect of giving birth to the child at the time of the alleged offence.  Her actions during the index offence were very likely related to the disturbance of her mind.”    

Infanticide, of course, can take many forms.  It is an offence which attracts a very substantial sentence in the appropriate case. 

The picture which clearly emerges in the present matter is one of a young, unsophisticated person, which limited coping skills, placed in a situation of desperation.  The punishment which she has inflicted on herself by her conduct is one which will live with her for the rest of her life.  This is an instance where no further punishment is needed from the law or this court.  What is needed is a facility to help her re-establish herself as best she is able.

I have been informed - in a very helpful report from the probation officer - that suitable arrangements have been made by her, with the assistance of others, to guard as far as is possible against further unplanned pregnancies.  That, in the circumstances, was a singularly appropriate step to have taken.  It seems to me that the appropriate course to follow in these circumstances is to place the accused under the supervision of a probation officer.  I am told today that contact has been made with a voluntary organisation which is prepared to assist her.  The bigger the support system that is available to her the better, in my judgment. 

A probation order would formalise that arrangement. 

 If support were needed for the view that I have taken, I am informed by Miss Ng, who appears for the prosecution, that since 2002 the four prosecutions for infanticide which have reached the sentencing stage have resulted in three probation orders, and one, a foreigner, returning to her home country.  I was also referred by Miss Remedios, who appeared on the earlier bail application, to a decision in Sainsbury, an English Court of Appeal decision.  It is a fairly old decision, dating from 1989.  But it is noted in that decision that in the preceding 10 years, 59 cases of infanticide had been recorded, and not one of them had resulted in a custodial sentence.  Even without the benefit of that support, probation seems to me to be the appropriate course in this matter.

[TERMS OF ORDER EXPLAINED]

ACCUSED:  Yes.

COURT:  In the circumstances the order that I make is that you are placed under the supervision of a probation officer for a period of 3 years, with the condition that you attend such meetings with your probation officer as he or she may direct.  There are to be reports, written reports - without court attendance - every nine months.