HKSAR v. NG TIN YAN

DCCC 422/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 422 OF 2014

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Reasons for Sentence

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1. This is one of those cases where it must be emphasised what the real mischief of the crimes you have committed is and why the sentences I will impose I find appropriate.

2. You have pleaded guilty to preventing the lawful burial of the body of your 6-month-old daughter.  You have also pleaded guilty to perverting the course of justice by making a false police report that your baby had been abducted by strangers straight out of her pram in a public area.

3. On 23 November 2013 at 7.38 pm, you called the police console and reported that your baby had been taken out of her pram on Carpenter Road when you had been distracted by a woman with a Mainland accent asking directions.  You also called your estranged boyfriend, the father of your child, to tell him the same thing.  He rushed to the scene.

4. The police took this report very seriously. Many police teams became involved.  A police hotline was set up for the public to call if they had any information.  The Customs & Excise Department as well as the Immigration Department were put on high alert to look out for this baby crossing over our borders into Mainland China.

5. Between 23 November and 1 December, you maintained this lie that your baby had been abducted.  On 28 November, the police examined your mobile phone and looked at the Internet searches that you had made on it.  This led them to believe you had made a false report.

6. You were arrested on 2 December and admitted under caution that the truth was your baby had stopped breathing and you threw her in a dustbin.  You made the false report to hide her death a few days after you threw her body away.

7. What followed was a nine-day search of the Tseung Kwan O landfill by hundreds of police officers.  They could not find your daughter’s body.

8. On the last occasion, you pleaded guilty to both charges and I adjourned, at counsel’s request, to obtain certain reports. 

9. There was a suggestion you may have possible postnatal depression to explain your actions.  I adjourned for a psychiatric, psychological and a background report.  I have read all three reports and you have confirmed the factual contents of the reports are accurate.

10. The psychiatrist is of the view that you did not nor do you suffer from any psychiatric disorder.  The psychologist is of the view that you are not suffering from any psychological disorder.  This doctor says you have low self-esteem.  This doctor says your solving and stress-coping skills are weak.

11. However, in my view, this seems at odds with the lengths you went to to convince all that your baby had been abducted, such as filling in the feeding table for your baby until the day you say she was abducted.  You carried on a charade for nine days before the police looked at your mobile phone.

12. In any event, from the reports, it is clear you do not suffer from any psychological or psychiatric disorder, nor did you at any material time suffer from post-natal depression.  I will not repeat the details of these reports, suffice to say I have taken them into account, in particular, the full details given of the defendant’s family and their support in the background report.

13. Mr Boyton has helpfully supplied written mitigation.  He proceeds on the basis that you yourself felt like a victim in a love triangle.  He submits, because of that situation, you yourself were under stress and acted irrationally.  But, as I said earlier, your actions to deceive the police were planned and were well thought out, which does seem to contradict the mitigation put forward.

14. Mr Boyton urges the court to consider the sentences imposed in the authorities that he has referred to.  He also puts up an argument for both charges to be dealt with concurrently.  Mr Boyton has said all he can say on your behalf.

15. Before I proceed to my reasons for sentencing, a chronology of the events, according to the facts, is necessary. 

16. Your daughter was born on 23 May 2013.  It seems she was a healthy baby.  You and your daughter lived in an apartment in Wong Tai Sin and were financially supported by your boyfriend, the baby’s father. Your boyfriend was already married and had a family.  You knew this but bore a child to this man despite this.  You told a friend that you would have his child to win him over.

17. On 8 November, you argued and he left your home without his keys.  He did not return nor did he see his daughter again.

18. On 14 November, two of your friends visited you and saw the baby alive and well.

19. On 15 November, one of those friends received a photograph from you taken at 9.50 pm on your mobile phone.  It was a photograph of your daughter.

20. In the early hours of 17 November, you and your boyfriend had a marathon text exchange.  There is a record of 250 text exchanges between 4.18 and 6.05 am.  Amongst those texts, your boyfriend told you twice that he did not love you any more.  Between 6.05 and 7.23 am, you sent him 15 messages or texts consecutively, ending a message with:  “You’d better be careful with your kids.”

21. Later that day, at about 10 am, you left the house for a violin lesson.  You had told the police that your daughter died the night of the day you had your last violin lesson, that being 17 November.  You said you discovered your baby had died at about 7 or 8 pm that night.

22. You have not been able to give a time or date when you wrapped your baby in plastic bags and put her in a dustbin outside your flat.  You told the police you were too scared to call anyone and you were afraid your boyfriend would find out your baby had died.

23. According to the facts, what you did instead was the following. 

24. You continued to fill out a feeding record for your daughter from 18 November to 23 November. 

25. You also made many Internet searches on topics that seemed very unnatural for a grieving mother whose baby had just died in her sleep.  There is one search that you made, according to your evidence, some hours before you discovered your baby was not breathing.  It seems at 13.09 pm on 17 November, you searched on the Internet:  “BB no breath”. 

26. Later, on 17 November, within three or four hours of you discovering your baby had died, you made many attempts to search other topics, such topics as “disposal of a corpse”, “dumping grounds”, “missing persons” and “dumping a baby”.  These searches were made between 11 pm on 17 November through to 1 pm on 18 November.

27. At 5 am on 18 November, you left home for an hour.  You told the police that you had gone to 7-Eleven to buy a drink, cigarettes and ice cream on Yin Hing Street, which is the street next to your premises.

28. Between 10.49 am on 18 November to 5.45 am on 22 November, you made 22 such further Internet searches.  They include topics such as “the psychology of a murderer” and “criminal behaviour”, and downloading documents entitled, including, “criminal psychology of a killer/murderer” and “a discourse on criminal behaviour based on criminology”.  One search made at 3.29 pm on 18 November, not 24 hours after you discovered your baby dead, you searched:  “Kill people, keep calm”.  Obviously the police questioned you about why you made such searches, but you had no explanation to give them.

29. On 20 November, you actually spoke to a friend on the telephone, but made no mention of your daughter.  You said you were watching television and could not talk to her.

30. On 21 November, you called a different friend and in conversation told her you were going out to buy clothes for your child.

31. Two days later, on the 23rd, at 7.38 pm you made a false report of your child’s abduction.

32. What followed was nine days of the police investigating this report.  They viewed hundreds of CCTV tapes.  They conducted door-to-door enquiries of an entire area of Kowloon and they calculate the cost of that investigation to be $858,529.

33. On 2 December, the police arrested you.  You made an admission that your baby had stopped breathing and you threw her away in a dustbin. 

34. As I have said, this then led to a landfill search from 5 December to 14 December.  From records given to me, on the first day 89 officers were involved in searching Tseung Kwan O landfill. Subsequently, 80 officers were involved on two separate days; 50 officers were involved on two separate days;  46 officers were involved for four days.  All these officers searched without success for nine full days.  Costs incurred by the police after your arrest is $942,088.  Total cost is $1,800,617.

35. I have been referred to, in particular, an English authority relating to perverting the course of justice.  That is R v Reynolds Thomas Tunney [2007] 1 CrAppR (S)91 565.  That appellant was sentenced to 3 years’ imprisonment for making a false statement, giving a false alibi to a murder suspect.  The Court of Appeal reduced that sentence to 2½ years. 

36. The importance of this authority is that the Court of Appeal identified three matters relevant to sentence:

(1) firstly, the seriousness of the substantive offence to which the perverting of the course of the justice is related. Here, the disposal of a body of a baby;

(2) secondly, the degree of persistence. Here, for nine days you kept up the lie that your baby had been abducted from her pram;

(3) thirdly, the effect of the attempts to pervert the course of justice on the course of justice itself. Here, ultimately, you did not succeed, but the days the police worked on your false report meant that more time passed before they began a search for your daughter’s body and much public money was spent as a result of your lie.

37. What is clear from the authorities I have been referred to is that there are no guidelines for this offence.  The actual gravity and seriousness depends upon the circumstances of each individual case and can vary widely.

38. In my view, it is indisputable that this offence is always a serious offence.  The reason you made this false report points to why this is one of the most serious cases for an offence of this nature. 

39. What is relevant is that not only did you intend to hide the death of your baby, the consequence was to spark a long, protracted, emotional and very expensive operation conducted by the police. The public sympathy was palpable and overwhelming.  I do not exaggerate when I say mothers across the territory become fearful for their children’s safety. You made our city the focus of scaremongers. 

40. You say you did not intend the consequences to be so serious.  I rather suspect you were aware but were not concerned.  Your only concern was to convince your baby had been stolen. 

41. I find a lengthy term of imprisonment entirely appropriate in these circumstances.

42. By disposing of your baby in the manner that you did prevented the proper authorities the opportunity to investigate the cause of her death.  Nobody but you knows how she died.  According to you, she stopped breathing in her bed.  You were at a loss as to what to do and, because you did not want it known she had died, you told nobody. 

43. The actions you took after you say she stopped breathing required calm and a certain composure.  The actions you took, the Internet searches you made, the feeding form you continued to fill in are so far removed from how a bereaved mother should act it defies belief.  I am shocked how you callously wrapped her in plastic bags and threw her out in a dustbin outside your door.  You let days lapse and the chances of ever finding your child in a landfill disappear by making a false report days after you said she died.

44. I am acutely aware that it is the prevention of her burial for which you are to be sentenced, not the circumstances of her death, however that may have occurred.  The truth of this will never be known because of your failure to alert the authorities. 

45. Your account of just finding her dead in her bed is, frankly, suspicious.  On the early hours of 17 November, you argued with your boyfriend.  He told you he did not love you.  You threatened him with the safety of his children.  At 1 o’clock of the same day, you made an Internet search entitled “BB no breath”.  Then you say, at 7 or 8 pm later that night, you discovered your daughter had stopped breathing. 

46. I do not personally believe in coincidences like that.  However, I reiterate the truth will never be known now and you are only to be sentenced for this offence and not to be sentenced for some unproven act towards your daughter.  There is no evidence or any basis for making any other findings. 

47. It is your deliberate act and only this act of depriving of the authorities of the opportunity to investigate her death that is relevant.  Any sudden unexplained death must be investigated properly.  By disposing of her body in the way that you did, you prevented this from taking place. 

48. By disposing of your baby in this manner, then making a false report to hide her death, you have shocked the public.  We are a society that respects our dead and mourns the passing of loved ones properly. The majority of this society would not throw a loved pet out with their rubbish.  How a mother could is unimaginable. 

49. There is no tariff for this offence either. However, on these facts, a lengthy term of imprisonment is required to reflect the seriousness of it.

50. Stand up please, defendant.

51. I have taken into account the facts of this case, mitigation put forward, your plea, the background and all the details of all three reports I have obtained.  I have taken into account the costs, the public costs of your lies and actions.

52. For Charge 1, preventing the lawful burial of your daughter, I find a 6-year starting point appropriate.

53. For Charge 2, perverting the course of public justice, I find a 4½-year term of imprisonment starting point appropriate. 

54. You have pleaded guilty.  You are entitled to a discount of one-third.

55. For Charge 1, you are sentenced to 4 years’ imprisonment.

56. For Charge 2, you are sentenced to 3 years’ imprisonment.

57. I have considered the totality principle.  Where there are two or more charges, I must ensure that the overall sentence to be served is appropriate to the culpability of the offender. 

58. In deciding if two sentences should be concurrent or consecutive, I am of the view that totally concurrent sentences are only appropriate for charges that have been committed in the course of a single transaction. 

59. There is a nexus here.  There is a nexus in this case between the two charges.  But what that requires is to give full consideration to the totality principle. 

60. I will order that 1 year of Charge 2 to be served consecutively to Charge 1 and the balance concurrently.  That is a total sentence of 5 years’ imprisonment.