HKSAR v. ' A DEFENDANT'

HCCC 267/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 267 OF 2002

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J U D G M E N T

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1. The defendant in this case, a girl who was aged 15 at the time, has been indicted for an offence of attempted murder committed on 11 April 2001. Put shortly for present purposes it is alleged that she stabbed her newborn child very shortly after its birth. The defendant's mother then rushed the child to hospital. Happily the child survived.

2. The case is listed for trial before me on 28 October.

3. At a pre-trial review on 17 October Mr Reading SC for the Department of Justice indicated to me that if the defendant was prepared to plead guilty to an amended indictment alleging not attempted murder but attempted infanticide, and if I was satisfied that such offence exists under the Laws of the HKSAR, then the prosecution would be prepared to accept such a plea in the interests of justice.

4. In his usual helpful way Mr Reading in posing the question that he asks, has provided me with textbook and case authority which clearly suggests that the answer to the question is yes. Neither Mr Haynes, who appears for the defendant, nor myself have been able to find further authority despite our best endeavours and, as Mr Haynes pointed out on 17 October, that is perhaps not surprising.

5. Mr Reading's argument, put shortly, is this: Section 159G of the Crimes Ordinance reads as follows:

" (1) A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.

.....

(5) This section applies to any offence which, if it were completed would be triable in Hong Kong ...."

6. The offence of infanticide is triable in Hong Kong by virtue of Section 47C of the Offences Against the Person Ordinance (Cap. 212). That section reads 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."

7. It seems to me that it must therefore follow by reason of the clear wording of Section 159G that it is an offence in the HKSAR to attempt to commit infanticide and that if the defendant in this case intended - by a wilful act - to cause the death of her child and she attempted to achieve that end but at the time of that wilful act the balance of her mind was disturbed then she is guilty of such an offence.

8. I find support for that proposition in the judgment of MCCowan J in the case of R v K A Smith [1983] Crim LR 739 in which he found that a plea of guilty to an offence of attempted infanticide was both proper and appropriate and, so it must follow, such was an offence known to the law.

9. Professor Sir John Smith's commentary which follows that report is extremely helpful. It reads as follows:

"Commentary. The Criminal Law Revision Committee in their Working Paper on Offences against the Person (1976), .... expressed the opinion that, because of the way in which the Infanticide Act 1938 is drafted, it is not possible to charge a person with attempting to commit infanticide. This opinion was repeated in the final Report of the Committee ...., when they confirmed their provisional recommendation that legislation should make it possible to charge a woman with an attempt. The judge in the present case does not seems to have felt the same difficulty as did the Committee and, with respect, he may well be right. The problem is that the section, in effect, provides a partial defence to a charge of murder. On the other hand, unlike section 2 of the Homicide Act 1957 (diminished responsibility - with which the C.L.R.C. had similar problems) it does not impose any onus of proof on the defendant. The result is right in principle for, as the C.L.R.C. say, "a woman who attempts to kill her child in circumstances in which, had she succeeded, she would be guilty of infanticide, is in fact attempting to commit infanticide, and it is in our opinion correct in principle that the law should reflect this."

10. As Mr Reading further points out to me, whilst it has been generally accepted that an offence of attempted manslaughter is not an offence known to law that is probably so only in relation to offences of 'involuntary' manslaughter - see Archbold (2002 Edition) at 19.113 - and not for example manslaughter by reason of provocation or an attempt to kill in pursuance of a suicide pact.

11. I would just respectfully add this in conclusion that, on the facts of this case as I understand them to be, a count of S(17) wounding might be equally appropriate although that of course is a matter for counsel and in particular for counsel for the prosecution.