HKSAR v. MUHAMMAD ASGHAR

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 Verdict

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1. The 2nd defendant is Muhammad Asghar. He is charged with supplying poisons or other noxious substances with intent to cause miscarriage to procure an abortion. That is contrary to section 47 of Cap 212.

2. The particulars allege that the poison or noxious thing, Cytotec, Soden, and some unknown drug, was intended to be unlawfully used by PW1, who is the 1st defendant, with the intent to procure her miscarriage.

3. In 2010 PW1 was a domestic helper in Hong Kong and the defendant was a Pakistani Form 8 holder.  They met through Facebook.  They started a relationship during which they had occasional sex.

4. In November of 2013, PW1 says she discovered she had become pregnant and the defendant was the father.  PW1 told the defendant of her pregnancy.  She says he denied he was the father.  PW1 then decided to abort the baby, and she said the defendant said he would help her by buying abortion medicine.

5. On 22 November PW1 says she and the defendant met at Mei Foo MTR Station, where the defendant gave her 19 tablets: three white tablets with Chinese writing, 10 Cytotec tablets, and six tablets called Soden, which are painkillers.

6. On returning home, PW1 took the three white tablets with Chinese writing and some of the painkillers.  She threw away the Cytotec.  Later on the foetus she was carrying miscarried.

7. PW1 was subsequently arrested and pleaded guilty to administering to herself the poison or other noxious thing to procure miscarriage.

8. The defendant says he never supplied any aborting agent to the 1st prosecution witness.  He says due to contradictions and inconsistencies, her evidence is not reliable and cannot be relied on to prove that fact, and insofar as he admitted supplying, giving and buying Cytotec for her in a record of interview, it is said there is no evidence the defendant ever knew that this drug could cause a miscarriage to occur, and there is no evidence that it was supplied by him in an attempt to cause a miscarriage.

9. The prosecution relies heavily on the 1st prosecution witness to prove its case.  She came to Hong Kong in 2011 to work as a domestic helper.  She has a 7-year-old daughter and an ex‑husband in the Philippines.  She has worked for the same family since she came to Hong Kong.

10. On 23 March 2013 she visited family in the Philippines.  She returned on 7 April.  She began a relationship with the defendant on August 10, 2012.  She thought they were boyfriend and girlfriend, and it did involve a sexual relationship.  She said they had sex after her return from the Philippines on 9 and 10 June.

11. After May her menstruation ceased.  In the first week of November she felt movement, and went to buy a pregnancy kit at a dispensary.  Before she bought the test, she told the defendant that she thought she was pregnant through a Whatsapp message.  The defendant asked her to go to hospital for a check‑up.  She told the defendant she was pregnant and asked for help after finding a positive result on the pregnancy test.

12. After she told him she was pregnant they had an argument.  He did not say he was the father of the baby, and accused her of having sex with another man.  She then suggested she had better go back to the Philippines to have an abortion.  The defendant then said, “Okay.  I’ll help you do the abortion.”  He said he would buy abortion medicine, and PW1 agreed.  It is said by her he made the suggestion that he would buy the medicine on 19 November.  On 22 November he told her he had bought the medicine.  He did this by a Whatsapp message.

13. They agreed to meet at Mei Foo MTR Exit C, where she gave him money, $1600.  She says she was given three medicines:  10 Cytotec, six Soden, and three labelled in Chinese; 19 altogether.  He is alleged to have said that the three in Chinese are strong tablets for abortion; Cytotec is for abortion but has a lesser effect; and Soden is a painkiller.  He told her to take the medicine every nine hours.

14. She took the medicines, except the Cytotec.  He also said to combine the three tablets with the Cytotec.  For an undisclosed reason which still remains undisclosed, she did not want to take the Cytotec, and she threw the tablets away outside her employer’s home.

15. After taking these medicines, the miscarriage occurred.

16. In cross-examination she was shown photograph P14, which were photographs extracted from the defendant’s phone.  She recognised on those photographs the Chinese-labelled medicine.

17. Another witness, PW11, an expert, identified this as an abortion agent.  It is called misoprostine.  It is short‑acting and may not be found in the foetal blood.  She had not identified this when she originally made the statement.

18. The autopsy report showed the baby was a pre‑term male baby expelled from his mother’s uterus intact.  The measurement of the baby’s size was compatible with the gestational age of about 27 weeks; close to seven months.

19. The toxicological analysis revealed the presence of alcohol and naproxen.  Naproxen is a painkiller found in the pill Soden.  It has a slight risk of increasing the chance of spontaneous abortion, but has never been reported to have been used as a drug for medical abortion.

20. DNA analysis was conducted, and expert calculation revealed the chance of observing the DNA types obtained from the analysis is about 25 trillion times more likely if the girl and her Pakistani boyfriend were the biological parents of the deceased foetus.  It would appear to point very strongly to the fact that the defendant was the father of the child.

21. As I said, three drugs were identified that PW1 had been given by the defendant.  She administered two to herself.  The drugs allegedly given were misoprostine - that is, the three Chinese tablets - Cytotec and Soden.  Cytotec’s active ingredient is misoprostal.  It is used for healing duodenal ulcers and gastric ulcers and treatment and prophylaxis of non‑steroidal anti‑inflammatory.  There is an off-label use which is possibly used in abortions.  The off-label use of a single dose of 400 micrograms may be used for medical termination of pregnancy. 

22. There is no evidence this drug was ever taken by PW1.  She denies using it.  She says she threw it away.  No toxicological evidence showed its presence. 

23. The Soden is a painkiller used for the treatment of pain and inflammation.

24. The defendant was arrested on the evening of 24 November at his home at a rooftop in Yau Ma Tei.  The interviewing officer used English to talk to the defendant, but actually cautioned him in Chinese.  Under caution, the defendant said, “I only gave her some pill.  I had sex with her before.” 

25. Following his arrest, the defendant agreed to take police to the shop where he purchased the pills.  This was the Wing Hing Pharmacy in Temple Street and the Chun Fai Pharmacy in Jordan Road.

26. A video interview record was conducted on 27 November.  The contents of that record were challenged in court.  I admitted the recordings into evidence.

27. The defendant said that he had a sexual relationship with PW1, and PW1 told him she was pregnant and asked him to get medicine for her.  He bought a total of 19 tablets, six painkillers and 10 other tablets.  He had given her 19 pills.  He had obtained the pills from the pharmacy by saying they were for no menstruation.  He identified Cytotec 200 as one of the medicines bought by him in a 10-tablet pack.  When buying the pills he had shown the pharmacy staff photos on his mobile phone.

28. He had given PW1 the pills at Mei Foo MTR Station.  He had been told that the purpose of the medicine whose photographs were stored in his mobile phone was for use when there was no menstruation.

29. The prosecution called the owner of the pharmacy, and also the Whatsapp phone records of the defendant were produced to the court.

30. The defendant’s evidence differed slightly from his interview record.  He said he had met PW1 about three years before through Facebook.  They had become friends.  He agreed they had a sexual relationship, but said he had another girlfriend and did not regard PW1 as being in a full boyfriend/girlfriend relationship with him.

31. The defendant said the time had come when PW1 had told him she was not menstruating and was having treatment for that condition.  He found out about this in November.  She told him there had been another problem and she was not pregnant.  She did Whatsapp him on 19 November, asking if he could buy her a pregnancy kit.  Even then the defendant said he did not consider she was pregnant.  He received the Whatsapp recorded at 469 in the exhibit.  It says:  “I think I’m pregnant”.  That was at 2149 on 19 November 2013.

32. He did not think he was the father of the child.  He then Whatsapped her “How to do”, or “What should I do?”  They spoke on the telephone the following day - that is, 20 November.  He wanted to ask her if she had visited a doctor.  She told him she had visited a doctor and the doctor gave her medicine and she was taking it.  The defendant asked her to go to the hospital.  She said she would.  She did not discuss abortion, and he did not know for sure if she was pregnant or not.

33. During the calls she said she would take medicine.  The defendant said he advised her not to take any medicine before she went to the hospital.  He did not want to buy her any medicine, so he Whatsapped her at 488 that “It’s very expensive.”  He said it was $1400.

34. PW1 called him on 22 November as the defendant wanted her to confirm why she wanted to take medicine.  She told him she had used the medicine before.  It would make her menstruation normal.  The defendant did not want to get her any medicine, but they talked about it and he said he would go to the dispensary.  He did not actually intend to buy her any.  He simply got Panadol for her.  He did this because he was afraid PW1 would tell his girlfriend - that is, his real girlfriend - about them.

35. He met her at the MTR and gave her Panadol.  The medicine he said she wanted to get was shown in P14 - that is, the photographs on his phone - but he gave her none of these medicines.  He said in cross-examination that the pharmacy would not sell them without a prescription.  That should be accurate if the pharmacies keep to the regulations that they are supposed to practise, as both Cytotec and the three Chinese pills would only be obtainable on prescription.

36. Although he said in the video interview record that he gave her Cytotec, that was not true.  He said the police had asked him and told him to say that.

37. The issues that are disclosed by the evidence are firstly, can the 1st prosecution witness be relied upon to establish that the defendant supplied her with a drug or any drug capable of causing an abortion; secondly, if she cannot be relied on, is there evidence in the case - for example, the defendant’s admissions - that could establish the necessary supplying with the required intent?

38. As far as the legal issues are concerned, the defendant is of clear record.  The prosecution must prove that the drug was supplied with knowledge that it was intended and would be used with intent to procure a miscarriage.  It has been said in order to constitute the offence of procuring or supplying a noxious thing is not only the same as intended to be used with intent to procure a miscarriage, the substance must be of a noxious character in the quantity in which it was supplied.  It is sufficient knowledge on the part of the accused if he believes the noxious thing was to be used for the purpose of procuring a miscarriage, although no person other than the accused may have intended that it should be used for such purpose, and although the woman herself may not have intended to use the drug.

39. In the submissions of the defendant it was submitted that the 1st prosecution witness was firstly either untruthful, and even if that could not be established, that she was not reliable.  The prosecution need to produce evidence to the criminal standard, and it was said that previous statements that she had made, and also the unlikelihood of other things she said in court, meant the court could not rely on what she has told them to a criminal standard.

40. It was said it was simply unbelievable that a woman who had given birth to another child - the child was aged 7 - that when she was, on her account, between six and seven months into a pregnancy, that she was not aware that she was pregnant.  It was said it is simply incredible, and furthermore, the evidence appeared to show that she was closer to seven months, which made it even more remarkable.  Secondly, when admitted after the miscarriage, she is reported to have told a doctor that she obtained the aborting agent from a Pakistani woman herself, and also that she had obtained the pill over the counter after she decided on termination, and bought them days before the admission.

41. Now, this is evidence that contradicts the evidence she gave in court in a fundamental area.  This is not a side area of her evidence, this is a fundamental area regarding her evidence against the defendant.

42. However, in her evidence, the 1st prosecution witness said that Soden and Cytotec and Misoprostine - that is, the three Chinese tablets - were given to her by the defendant.  However, in her original statement she purported not to recognise the three Chinese tablets, but had then recognised them in court in cross-examination.  The defence say that has not been adequately explained.

43. Of course, the court does not have to consider the 1st prosecution witness to have been lying to find her evidence unreliable.  It is sufficient for her evidence to be impugned if she is no longer considered reliable to establish the facts that the court needs established in order to enter a conviction against the defendant.

44. Another matter that was raised by the defence was her apparent knowledge of the nature of the drugs that she was supplied with.  Her evidence is she was supplied with the three different forms of drug, but she discarded the Cytotec.  She has never, it is said, made any attempt to explain why she did discard that drug, given what the defendant is alleged to have told her about the efficacy of the particular drugs she was given, and it is suggested that that shows that she has a much greater knowledge of the nature of the drugs that she bought or was supplied with than she has been prepared to tell the court about.

45. I considered all these factors.  I also considered that the defendant’s admission in his video record of interview that he had bought Cytotec to some extent supports her account.  Nevertheless, I found that the deficiencies in her evidence were such that the court could not place reliance upon her to a criminal standard.  She had given contradictory accounts in respect of fundamental matters, and her explanations are unsatisfactory.  Also, I found myself in agreement with the defence when they described her account of her awareness of her pregnancy as being just simply incredible.

46. So simply, I could not rely upon her evidence to a criminal standard, especially as to which pills were given to her by the defendant.

47. Having said that, the prosecution say there is sufficient evidence in the video-recorded interview that the defendant supplied Cytotec and Soden to the 1st prosecution witness and the Cytotec is capable and has an off-label use of causing an abortion.  The prosecution say that is sufficient to establish the case.

48. The defendant’s account as to her requirement for the drug was because she complained of a failure in her menstruation and that being the reason why she needed the medication.  That is what he said in the video-recorded interview and is what he said in evidence.

49. The defence say that the messages in the Whatsapp account appear to show that even as late as 21 November the defendant was unsure what the 1st prosecution witness’ condition was.  On 21 November 2013, he asked PW1 if she had gone to the hospital.  This naturally contradicts PW1’s assertion that the agreement to terminate the pregnancy had occurred on 19 November when the defendant had said he would obtain the necessary medicines.

50. On 22 November PW1 talks to the defendant on Whatsapp by saying she plans to go to the hospital on Sunday.  This exchange does not appear to be consistent, again, with there being a settled agreement for the pregnancy to be terminated.  Furthermore, the drugs supplied by the defendant in his admission only has an off-label use of termination of pregnancy.

51. I consider that it would need to be specifically and independently proved that the defendant was aware of this off‑label use. In his video-recorded interview he simply states he believed it was for restarting menstruation.

52. I consider, having considered all the evidence, the prosecution cannot prove to a criminal standard that if the defendant supplied the Cytotec to PW1, that he knew or believed that such thing was to be used for the purpose of procuring a miscarriage.

53. That being the case, the essential element of the case is not proved.  The charge fails, and the charge is dismissed.  The defendant is acquitted.