THE QUEEN v. CHENG PING MUI

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JUDGMENT  OF  THE  COURT

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Macdougall, J.A.:

1. The applicant was tried before de Basto J. and a jury on an indictment containing one count of murder. She was convicted of manslaughter and was placed on probation for two years. At the hearing of her application for leave, to appeal against conviction we granted leave, allowed the appeal, quashed the conviction and set aside the probation order. We now give our reasons.

2. The evidence for the prosecution was that on 5th January 1989 a newly born baby was found on the ground near an abandoned television set in the shrubbery behind a wooden hut at Sheung Shui. It was taken to Fanling Hospital where at 2.30 a.m. it was certified dead on arrival. Earlier that evening, sometime after 9 o'clock, the applicant, a schoolgirl aged 16, was found lying unconscious in a pool of blood at the rear of the hut in the vicinity of the television set. She was taken to Fanling Hospital but was transferred to Prince of Wales Hospital at around midnight where placenta was removed from her body and her bleeding was stopped. She had lost 400 ccs of blood while in hospital and the medical evidence was that she had been bleeding very heavily prior to her admission.

3. At 10 a.m. that morning, as a result of what she had earlier told a woman police officer, she was interviewed by another female officer and, in a statement recorded in question and answer form, gave an account of what had happened on the previous evening. She said that at around 7 p.m. she began to suffer abdominal pains accompanied by bleeding from her vagina. Prior to this she had not manifested any signs of pregnancy that were obvious to her family, her schoolmates or teachers, although she herself had suspected that she might be pregnant, but had not gone to see a doctor because she did not wish to know whether it was true.

4. She went to a room at the rear of the hut which was used as a kitchen and bathroom. There she washed away the blood which had been coming from her vagina whilst she was experiencing labour pains. Eventually she gave birth to a baby boy. In cross-examination it was put to her that the birth took place at about 9 p.m. She agreed that this was so. She then placed the baby in a bucket and went outside to the rear of the hut. Because it began to cry she then, in her own words, "picked it up, covered its mouth with my left hand and grasped its neck with my right hand. It still moved. I was so frightened that I picked it up and placed it at the television set." She said that the baby was no longer crying at the time she placed it there, but that it was still moving. In answer to the police officer's question as to how many times she had grasped the baby she replied that she had done so several times. When asked why she had grasped it with her hand she said "I was very frightened. I didn't wish it to come out. I didn't wish it alive. I was afraid that it would be known by other persons."

5. At the trial she testified that, being unable to sleep owing to a serious pain in her belly, she went to the bathroom where she felt that "something in my lower part wanted to come out." At this time she was bleeding and was very frightened. She pulled at something which was forcing its way out of her body and eventually when the baby was born, found that she had been pulling its neck.

6. The baby was covered in blood. In a state of great fright the applicant broke the umbilical cord "by pulling it". Feeling that there was something else that needed to be discharged she tried to extract it with her hands but failed to do so. She was here plainly referring to the placenta. Then she heard the baby cry. Fearing that her family would hear its cries she placed it in a bucket outside the window. She was then able to leave the hut without her family seeing her carry it. After retrieving the baby from the bucket she sat down at the rear of the house. It then began to cry. Again fearing that her mother would hear, she covered its mouth with her hand. Apparently this was unsuccessful. She then placed her hand on its neck and applied a slight pressure in a further attempt to stifle its cries. On withdrawing her hand the baby again began to cry. The applicant was very frightened as she knew that her family would be looking for her, and she feared that if they discovered that she had had a baby they would not accept it and would expel her from the household in disgrace. She was thinking of a way in which she could persuade her family to accept it. In her desperation she noticed the abandoned television set and, in a state of confusion, decided to place the baby behind it for the time being. Having done so she saw the baby moving and apparently attempting to cry. She could not recall whether it was actually crying at this time. Feeling weak and dizzy she began to walk back to the hut but collapsed unconscious onto the ground.

7. As to the statement she made in question and answer form to the woman police officer, the applicant denied that she had said "I did not wish it to come out. I did not wish it alive." When further pressed on this matter she explained that at the time of the taking of the statement she was "very tired and exhausted", did not wish to answer questions and did not know what she was saying.

8. It was these disputed sentences in her statement on which the prosecution placed particular reliance. However, it is not clear to what occasion on which she grasped the baby that the applicant was then making reference. The sentence "I didn't wish it to come out", which in the original Chinese meant that she did not wish it to be born, suggests that she could have been referring to the time when she delivered the baby.

9. Dr. Mong, the forensic pathologist who performed an autopsy on the baby, was of the opinion that the cause of death was asphyxia, namely, deprivation of oxygen. He was unable to say what it was that caused the asphyxia. According to him the list of possibilities was endless. He was also unable to estimate the time of death. His examination revealed however that there was bruising of the soft tissue on both sides of the baby's voice box and pin point bleeding spots on the surface of its lungs and the whites of its eyes. This bruising was not visible from an external examination. Dr. Mong expressed the opinion that manual strangulation was a possible cause of the bruising to the voice box. He agreed, however, that there was no evidence of strangulation.

10. Dr. Chan, a pathologist called by the defence, agreed that the cause of death was asphyxia. Since he did not attend the autopsy his finding was based on a histological examination of seven slides taken by Dr. Mong of various organs including the lung. After consultation with Dr. Mong, Dr. Chan concluded that aspiration of birth fluid resulted in tissue reaction producing infection, namely pneumonia, which caused the asphyxia. This is a common cause of death in newly born babies, particularly those born outside hospital. Dr. Mong, however, was unable to agree that tissue reaction was likely to have caused any infection.

11. Dr. Wilson, a paediatrician called by the defence, testified that although the pin point haemorrhage spots indicated asphyxia, there were various degrees of asphyxia, and that it was possible that the baby had only been partly asphyxiated and had subsequently died from exposure. He told the court that a newly born baby would have become distressed, have turned blue and suffered from shock after leaving the mother's body, where the temperature was 37.4°C, and immediately being placed in an environment in which the temperature was approximately 17°C. He expressed the opinion that it is very difficult at a post mortem examination to discover evidence that a baby has died of exposure. In the light of this evidence coupled with the applicant's  testimony that the baby's limbs were moving when she left it next to the television set, the jury may well have concluded that the cause of death was exposure.

12. In his opening address to the jury prosecuting counsel said:

            "Members of the jury, she had - we have no doubt about this - she had abandoned the baby."

 

Later he said:

 

            "Clearly, members of the jury, says the Crown, this wasn't an accident. No mother, if she wanted the baby to be alive, would abandon it in those circumstances out in the bushes there beside that television set for five hours before the police found that the baby, evidence will show this, was strangled."

13. In his closing address prosecuting counsel, having dealt with manslaughter committed by means of an unlawful and dangerous act, said this:

            "The other possibility of manslaughter is even if you thought Dr. Chan, the other pathologist, was right in that it did not die as a result of the mother's suffocation, the way the Crown would put it on this second limb of manslaughter, she did abandon, if you so find, you would have to so find, of course, members of the jury, the Crown says she abandoned her newly born child for some five hours or so, with no medical attention, no warmth or comfort, in bushes on a cold damp night, telling no one."

14. Although it is true that the baby had been exposed to the night air for five hours before it was retrieved and taken to hospital, the undisputed evidence was that the applicant was found at around 9 p.m., shortly after having placed the baby by the television set, lying unconscious on the ground and was then rushed to Fanling Hospital. She did not regain consciousness until after the placenta was removed at Prince of Wales Hospital. It was after this had been done that she told a police officer at that hospital about the baby. The effect of prosecuting counsel's assertion, twice made, was likely to implant in the mind of the jury the entirely false impression that the evidence disclosed that she had deliberately left the baby in that condition for five hours. We do not think that prosecuting counsel intended to mislead the jury, but the way he expressed himself was likely to have had that effect, particularly so when what he said was not corrected by the judge. Any false impression that the jury was likely to have gained was therefore not dispelled.

15. There was a further disturbing feature of prosecuting counsel's addresses to the jury. In his opening address he told them that before the applicant placed the baby beside the television set she had wrapped it in some clothing. In his closing address, however, he told them "I may comment that she never did, I think, on her own admission - never on her own admission did she do one single thing to afford any comfort or warmth for this baby. She didn't put it in her arms. She put it in the bucket. She didn't wrap it up in any towel or any clothing. She just left it in that bucket naked and as it was delivered."

16. We did not have before us the entire record of the evidence, but we were informed by counsel that the condition in which the baby was found did not emerge clearly at the trial. It is plain from her evidence however that the applicant made no admission that she did not wrap the baby in clothing or did nothing to afford it warmth. Indeed she was not asked any questions concerning this.   In view of prosecuting counsel's clear assertion in his opening address that the applicant had wrapped the baby in clothing before placing it next to the television set - an assertion that surely must have been based on facts known to him - coupled with his later unfounded assertion that she had admitted that she did nothing to afford it warmth, leads us to the almost inescapable conclusion that, as the judge again failed to rectify the situation, the case for the applicant was further prejudiced.

17. But the matter does not rest there. The three possible verdicts adverse to the applicant that were open to the jury were murder, infanticide and manslaughter. The evidence called for a careful and clear direction on the issue of manslaughter. If the jury were not sure that the applicant had the intention to kill or to do serious bodily injury to the baby, thereby eliminating the possible verdicts of murder and infanticide, they then had to consider whether the baby's death was either caused by an unlawful and dangerous act intentionally done by the applicant or was the result of the applicant's gross negligence.

18. A finding of guilty of manslaughter therefore depended on whether the jury were sure that (a) in covering the baby's mouth with her hand or in placing her hand on its neck, the applicant intentionally did an unlawful and objectively dangerous act as a result of which the baby died or (b) in placing the baby on the ground next to the television set in the backyard of the hut she showed a reckless disregard of danger to the health and welfare of the helpless baby to whom she owed a duty of care. Recklessness would be established if the jury were sure that the applicant had been indifferent to an obvious risk of injury to the baby's health or, that having appreciated that risk, she had nevertheless decided to run it.

19. Moreover, in directing the jury on the issue of manslaughter by an unlawful and dangerous act, it was essential that they be told to consider whether the internal bruising to the baby's voice box was caused as a result of pressure applied to its throat by the applicant in an attempt to stifle its cries or whether it was reasonably possible that it occurred during the course of birth when the applicant was attempting to deliver it by holding it by the neck and pulling. Dr. Wilson's testimony in this regard was "I would have thought that it was a fairly normal type of self-delivery - grasping the infant, I think, she said, by the neck and pulling it out."

20. The judge gave the jury the following directions on manslaughter:

            "Murder is the unlawful killing of a human being with the intention of killing. Manslaughter is also the unlawful killing of a human being but without an intention to kill, so both manslaughter and murder involve the unlawful killing of a human being but the great difference between them is that in murder, the killing must be accompanied by an intention to kill, an intention to deprive of life. Both of them are unlawful killings but you need not concern yourselves with the word 'unlawful' because it is not suggested in this case that whatever happened, the killing was lawful, if there had been a killing.

 

            Let me give you an example of manslaughter. Two men are arguing in the street and, during the argument, one slaps the other on the fact. And the man who is slapped, he steps back and he accidentally loses his balance and he falls over backwards and he hits head on the kerb; he suffers a very severe fracture of the skull and he dies. Now the man who slapped him, which is an unlawful act to do and which caused this death, would be guilty of manslaughter. He would not be guilty of murder because although he did a wrongful act which resulted in death, he did not intend that this other man should be killed, so it would be manslaughter."

21. Later, he gave three examples, one of which related to manslaughter:

            "I am going to give you three examples, members of the jury, where the facts are the same but where the intention or the state of mind is different. A mother is trying to listen to an interview on the radio. She is interested, for example, in an interview. Her child, her six-month-old child, is lying next to her in a cot. The child keeps crying. The mother has difficulty listening to this interview which she likes to hear. She picks up a pillow and she puts it over the child's fact to cover its nose and mouth, and she intends by doing that to give the child a fright, to try to teach it not to cry. When she removes the pillow, to her horror she finds the child is dead. Now that, members of the jury, would be manslaughter because she did something unlawful, putting, blocking the child's breathing, interfering with the child's breathing but she never intended to kill the child, so she would be guilty of manslaughter, not of murder."

22. Later again, he said:

            "If you find that she did intend to kill the child but you were also of the view that the balance of her mind as disturbed, then your verdict would be not guilty of murder but guilty of infanticide. If you find that she did not intend to kill the child, then the verdict would be manslaughter.

 

            It is unlawful for any person who has custody or care of a young child, of a child, wilfully - by which I mean deliberately, every time I use the word 'wilfully', I mean deliberately. I will start that again. It is unlawful under our law for any person who has custody, care of a person under the age of 16, I think it is, wilfully, by which I mean intentionally or deliberately, to assault, ill-treat, neglect, abandon or expose the child in a manner likely to cause injury to its health. If you are satisfied - and when I use words like 'satisfied', words of that kind, bear in mind it is satisfied beyond reasonable doubt - if you are satisfied she wilfully did any of those things and that this contributed significantly to the child's death, then she would be guilty of murder, or of one of the two alternative verdicts to murder, that is manslaughter or infanticide, depending on what you find to have been her intention and state of mind at the time.

 

            If you are satisfied that the significant cause of death was, as Dr. Wilson thought might be the case, exposure, that the accused wilfully exposed the baby, then depending on whether you find or whether or not you find that she intended to kill the baby, the accused would be guilty of either murder or manslaughter or of infanticide.

 

            If you thought the balance of her mind was disturbed, if you are satisfied the child died of asphyxiation as a result of wilful pressure on its neck or on its mouth being covered, then again, depending on whether you find she intended to kill the baby, the accused would be guilty of either murder or manslaughter or of infanticide, infanticide it you were to think that at the relevant time, the balance of her mind was disturbed."

23. The first of these three directions was totally inadequate. There was no attempt to state and explain the two different bases on which the jury could find the applicant guilty of manslaughter. The example given was intended to refer to manslaughter caused by an unlawful and dangerous act, yet neither the concept of unlawfulness, nor that of dangerousness was mentioned. Furthermore, in the example which he gave, the judge assumed that the slap was a dangerous act without indicating that that would be a matter for the jury to decide in all the circumstances of the case.

24. The example given in the second passage was also intended to relate to manslaughter by an unlawful and dangerous act, but no reference was made to the fact that for there to be a verdict of guilty the jury must find that the act was intentional, unlawful and dangerous.

25. The direction given in the third passage confused the distinction between manslaughter by an unlawful and dangerous act and manslaughter by gross negligence. Moreover by telling the jury that if they were satisfied that the significant cause of death was exposure and that the applicant had wilfully exposed the baby the applicant would be guilty of either murder, manslaughter or infanticide defending on whether she intended to kill the baby, the jury were left without the essential direction that they should find her guilty of manslaughter only if they were sure that she had been guilty of gross negligence.

26. The direction which the judge gave would have had the jury to think that the applicant could be found guilty of mansaugher in that situation on the basis of the earlier direction that manslaughter is "the unlawful killing of a human being but without an intention to kill."

27. In the light of the undisputed evidence that the birth occurred at about 9 p.m., and that the applicant was found unconscious in a pool of blood at what must have been a very short time afterwards, and bearing in mind her testimony that she was frightened and confused and was trying to think of some way in which she could persuade her family to accept the baby, that after she had attempted to stop it crying by placing her hand over its mouth and then over its throat it continued to cry, that she placed it behind the television set for the time being, that its limbs  were still moving, and that almost immediately thereafter she collapsed unconscious, the jury required a clear direction relating this evidence to the issue of manslaughter by gross negligence. No such direction was given.

28. In summary, the judge not only failed to give clear and accurate directions both as to manslaughter by an unlawful and dangerous act and manslaughter by gross negligence, and neglected to relate the evidence to each of those concepts, but he also failed to correct the completely wrong and highly prejudicial assertions made by prosecuting counsel in both his opening and closing addresses. In the circumstances we were satisfied that the conviction could not stand. It was for these reasons that we allowed the appeal.