COURT: Defendant, you pleaded guilty to infanticide, an offence under section 47C of the Offences against the Person Ordinance, Chapter 212.
You admitted that on or about the 22nd day of September 2020, at Tin Shui Wai, New Territories, in Hong Kong, you wilfully caused the death of an unnamed baby girl, being a child under the age of 12 months by using part of a shirt to gag the mouth of the said child, but at the time of the act, you had not fully recovered from the effect of giving birth to the said child and by reason thereof the balance of your mind was disturbed.
So on 22 September 2020, you, defendant, then aged 17 years and 2 days old and unmarried, gave birth alone in the toilet whilst attending school. Your pregnancy was unplanned and happened when you were aged 16 with your then boyfriend. You did not realise you were pregnant until very far along into your pregnancy. You were worried but told no one about your pregnancy as you felt ashamed to mention your situation to anyone.
You became pregnant during the COVID-19 pandemic when at that time there was only online classes. You thus endured your pregnancy on your own without seeing any doctors or telling anyone. At the time you found out you were pregnant, you lived alone at a flat rented by your mother. Your mother had returned to China whilst your father and your twin sister lived together at another abode.
In September 2020, school commenced again. In the morning of 22 September 2020, you woke up with abdominal pain but still went to school. You attended PE class but felt unwell, you were permitted to sit down and rest. Your pain worsened so you went into the toilet and sat on the toilet seat. You did not seek help from others. While sitting on the toilet, you gave birth to the baby.
The birth of your baby was sudden and very painful. You knew the baby had fallen into the toilet bowl and took the baby out. At that time, you saw the toilet bowl was filled with blood. You were overwhelmed by intense fear and your mind became empty and could not think. You were distressed. The baby was crying aloud, so you put part of your shirt into the baby’s mouth so that the crying sound would not be heard by others.
After the birth of the baby, you had massive bleeding and you stayed on the toilet for a long time, feeling tired and drowsy. After a while, you then left the toilet and put the baby into a blue bag and left the bag with the baby in the student common room. As you felt dizzy and uncomfortable and your vision was blurred, you went to the medical room and stayed there until the end of classes. After school, you put the baby in your schoolbag and left school, disposing of the baby beside a rubbish bin on your way home.
At around 4.15 am, the following morning on 23 September, a Mr Sin Ying-fat left his home in Tin Sui Wai for his morning exercise. His route took him along the same pavement which was used by you when you left school.
Upon approaching the same rubbish bin, he noticed a blue bag. He approached the blue bag and used a stick to open it. He saw the head of the baby inside. Mr Sin immediately reported this to the police. An ambulance arrived shortly thereafter. The ambulance crew cut open the bag and found the baby dead.
CCTV footage of the vicinity of the rubbish bin captured you in school uniform appearing at the rubbish bin at about 2.05 pm on 22 September.
DNA from blood stains found on the handle straps of the blue bag were a mixture of yours and your baby’s. You were then arrested and cautioned.
Under section 47C of Cap 212, infanticide is defined as follows:
“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.”
After the defendant’s arrest, you were seen by two psychiatrists, one by the name of Dr Wong Yee-him, the defence psychiatrist and the other Dr Chow Kit-wan, the prosecution psychiatrist.
Both psychiatrists were of the opinion that you defendant met the mental criteria set out in section 47C, Cap 212. Dr Wong was of the opinion that you suffered from post-traumatic stress disorder (PTSD) immediately after the birth of the baby. Whilst Dr Chow Kit-wan was of the opinion that you suffered a major depressive disorder but not PTSD.
Dr Wong concluded that at the period immediately after the birth, the defendant was overwhelmed by PTSD features. The defendant was traumatised by the unexpectedness of the pain and sight of the blood. She was overwhelmed by intense fear, felt her mind was empty and could not think. She could not look at the baby after her delivery.
Dr Wong described, the defendant at the time was being in the state of complete loss of awareness. Hence, he concluded the defendant’s mind was disturbed by reason of her not having fully recovered from the effect of giving birth.
Dr Chow concluded, the defendant’s mind was significantly disturbed by the acute mental and physical stress and exhaustion by the unexpected delivery of the baby which had been accompanied with continued bleeding and pain from which she had not fully recovered at the time of the offence.
Mr Christopher Grounds, your counsel, has passionately mitigated on your behalf. He has cited a number of Hong Kong authorities where the approach by the courts to sentencing recognises the importance of rehabilitation and he seeks and requests for you the defendant to be sentenced to probation.
In Wong Mei Yi [2015] 2 HKLRD 1112, Zervos J, as he then was, stated at paragraphs 11 and 12:
“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.”
At paragraph 12, he went on to say:
“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.”
Let me now turn to the defendant’s background. You had a difficult upbringing, your parents divorced when you were about 4 years old. Your mother returned to the mainland and left you and your twin sister with your father. You unfortunately received little love and care from your father who went to work all day, only returning for dinner. Your father and you had little communication. He provided little in terms of care or affection and direction in life.
Defendant you and your twin sister learned to be independent and self-reliant the hard way. Effectively, you brought yourselves up from a very young age. The defendant you being the older of the twins, took on the role of the older sister, looking after your younger twin.
Your father’s abode was a stone house in the rural areas of Yuen Long. Sadly, it was an unhealthy and a deplorable home setting unfit for cohabitation. It was described by the social worker as a house filled up with tons of rubbish, infested with cockroaches and rats, with no hot water, with only a garden hose to use for bathing, a kitchen that was unsuitable due to the clutter and barely a place to sleep.
Your mother remarried and lived in mainland but came to Hong Kong at irregular intervals. Later, the mother moved to Hong Kong to live. In Secondary 3, you could no longer stand the poor living environment and therefore moved out to live with your mother and half-brother.
However, in early 2020, your mother moved back to the mainland with her son from another marriage, leaving you living alone in the flat in Hong Kong. You continued to live alone in the mother’s flat whilst your twin sister stayed with her father.
Nevertheless, as can be seen from the probation report, you defendant did exceptionally well in secondary school and were almost at the top of your class. It was however, during this time whilst you were living alone that you became pregnant at the age of 16.
Prior to sentencing the defendant, I called for a probation and psychiatry report from your attending physician. The defendant is still under psychiatric care. You are still diagnosed to have depressive episodes. Your mental condition has improved after psychiatric medication. You have, however, had some instances of defaulted follow-ups to attend psychiatric treatment. But I am ensured by Mr Grounds, that he has informed you that you must firmly continue to follow-up your psychiatric treatments and not miss any.
As it is typical in cases like these, during the defendant’s pregnancy, she did not tell others about it. In this case, it is exasperated by the fact that she was living alone with no parental guidance and fell pregnant when there was only remote schooling as a result of the COVID pandemic.
Defendant you are now a young woman now, aged 19, from a complex background. You have now returned to live you’re your twin sister and father to what I am informed is certainly a much more suitable place of abode. You are due to start a course in September on wedding arrangements. It is a one year Higher Diploma course in Make-up and Wedding Planning.
Prior to pleading guilty to this charge, you had been remanded in custody for 14 months. The probation officer has expressed that the defendant, herself, has gained much insight into this offence.
Mr Grounds has rightly referred to your contrition in paragraph 21 of the probation report. You said you developed self-hatred as the baby was killed by you. You stated that you hated yourself as you could live and enjoy your life and the baby was deprived of such an opportunity. You have guilty feelings towards the baby.
At paragraph 22, you said you would even shoulder up your responsibility and be sent to prison if that was sufficient to compensate your wrongdoing. From this, it is recognised that you defendant appreciate and know the wrongdoing you have committed. This case is truly a tragedy to both you the defendant and the deceased baby.
Having considered all the circumstances in this case and your background and mental condition, I am of the view that you defendant are not in need of punishment but of rehabilitation.
Defendant you had committed this first offence at the age of 17 years and 2 days. Now at your young age of 19 need to rebuild a normal routine and structured life. I am of the view that this can be achieved by placing you on probation. As can be seen from the very detailed probation report, the probation officer is also of that view and also states that the defendant is suitable for probation.
Mr Grounds informs me that you are agreeable to be placed on probation. May I please confirm that with the defendant herself?
ACCUSED: Yes.
COURT: And can you confirm with me that you also agree to abide by the conditions as stated in the probation report?
ACCUSED: Yes.
COURT: Defendant, you have agreed to be placed on probation and abide by the conditions as suggested and recommended by the probation officer, I therefore sentence you to a term of 12 months’ probation.
ACCUSED: Yes.
Probation order and its breach explained and understood by the defendant.