HKSAR v. David Maribel Hernandez

DCCC 429/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 429 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges. The first is a breach of condition of stay, the second is administering a poison with intent to procure miscarriage, and the third charge is preventing the lawful burial of a body. The charges appear to arise out of a self-administered termination of her own pregnancy by the defendant.

2.In June of 2012 the defendant entered Hong Kong as a domestic helper and was permitted to work in that capacity and stay in Hong Kong until 3 July 2014.  She remained in Hong Kong after that permission to stay expired.

3.In January of 2016 the defendant was staying with a friend.  She collapsed to the floor with bleeding.  She was sent to the Pamela Youde Nethersole Eastern Hospital, where it was discovered that she had been pregnant for eight months and had self-administered medication to terminate the pregnancy and the delivery of what is described as the body or the baby had been disposed of by placing in a plastic bag.

4.The defendant remained in hospital for three days.  She made an extensive video recorded interview later, which forms the basis of the case against her. 

5.She admitted her presence in Hong Kong since 2012 as a domestic helper and also staying on after her permission to stay had expired.

6.In May of 2015 she discovered her pregnancy.  In January of 2016 she bought what she described as abortion pills.  The pill itself is called “Cytotec”, which contains misoprostol which could be used for anti-ulcer treatment and also termination of pregnancy.  She bought these from a pharmacy in Tsim Sha Tsui; she was unable to say which one.  As a result of taking the medication, birth was induced.  She was not able to see any sound or movement from the foetus.  She delivered the baby herself.  The baby was disposed of in a black plastic bag, dumping it in a rubbish bin nearby.

7.Some more details were given about the pills. She bought 12 tablets.  She had shown a photograph of Cytotec, been given them.  Cytotec, of course, is a prescription drug in Hong Kong.  She should not have been given these pills for that without prescription.  To do so is a serious breach of the obligation of the pharmacist. 

8.The police searched in North Point and in a landfill with a view to locating the body, but it was never located.

9.The background of the defendant is set out in her antecedent statement and also her background report.  She is aged 37.  She is born in the Philippines.  She has an education up to college level in the Philippines.  Despite that, she works as a domestic helper in Hong Kong.  She has two children, a son aged 11 and a daughter aged 13, who are in the care of maternal grandparents in the Philippines.  It is clear the defendant has been away from her children for a considerable period of time now.

10.She now realises how serious the matter was. She hopes to return to her homeland for family reunion. 

11.Of significance, of course, is the fact that she is of clear record in Hong Kong.

12.The defendant faces one Immigration offence and two offences relating to the termination of pregnancy.  As far as the overstay is concerned, it is for quite a lengthy period.  She had overstayed from 3 July 2014 to 5 January 2016.  Normally, such a lengthy overstaying period will be visited by a sentence of imprisonment.

13.I consider that, as far as this offence is concerned, I will take a starting point of 3 months’ imprisonment, reducing it to 2 months’ imprisonment to represent her plea of guilty.

14.As far as the second and third charges are concerned, I consider that they are intimately related one to the other.  The administering of a poison to procure a miscarriage, of course, is a serious offence and in this case was made more serious by the disposal of the body, meaning that a proper investigation could never take place.

15.The defendant is unusual in that the offence involves a self-administered termination of pregnancy and, in circumstances where the framework of the access of a person to medication such as this is controlled by law, the defendant should not have been in a position to purchase these drugs without a prescription from a doctor.

16.In the case of HKSAR v Tsui Pik Fong, that is, [2009] HKCA 334, the Court of Appeal did consider sentences for Section 46 of Cap 212, the second charge.  It said that: 

“Nor do we see offences of this nature as being susceptible to the imposition of a tariff for sentencing purposes.”

They said:

“The circumstances of the commission of an offence of this nature are so varied, the offence being one which is intensely personal in nature, as not to admit the categorisation of factors which is determinative of an appropriate sentence.”

17.It is clear from that that there is no tariff. There is no guideline sentence which could meet these offences.

18.I do note from that case that sentences of between 18 months to 3 years’ imprisonment for a single offence had been imposed, but all those cases involve a position where the person who was prosecuted was the supplier of the medication, not the person who took it or the person who used that.  In fact, in the case of Tsui Pik Fong, the person who took the medication was not prosecuted. 

19.Nevertheless, this is a serious offence.  Women should not be encouraged to do this, especially at the late stage of pregnancy that the defendant found herself.

20.There is no evidence that what is described as a baby but was a foetus was viable on birth and I must bear that in mind when sentencing.  If it had been, a very different approach should be taken.

21.Nevertheless, I consider that the broad range of sentencing set out in the case of Tsui Pik Fong is an appropriate guideline for these circumstances.

22.As I say, it is unusual in that this case is both the perpetuator and, to a certain extent, the victim of her own crime. 

23.The gravity of the offence here lies in the late stage of pregnancy at which the termination took place; also, the disposal of the body of the child.

24.What I shall do is see these offences as intimately linked and pass the same sentence on both charges.  I do not see how the sentence on the third charge could be higher than that on the second charge and again authorities in relation to the third charge that have been presented to me involve the disposal of bodies where much more serious offences have been committed, such as murder.

25.In respect of both the second and third charge, I shall take a starting point at 2 years’ imprisonment. 

26.I shall reduce this to 16 months’ imprisonment for the defendant’s plea of guilty. 

27.I shall reduce that by a further 2 months to represent the fact that the prosecution of the offences is largely dependent on the defendant’s video recorded interviews.  Her full admissions, in my view, this should be acknowledged and will reduce the sentences on both those charges by a further 2 months.

28.So the sentences will read as follows:

(1) on the first charge, a sentence of 2 months’ imprisonment;

(2) on the second and third charges, a sentence of 14 months’ imprisonment on each.

29.I consider that it is appropriate and correct in regard to overall totality to order that the sentences on the second and third charges run concurrently to one another, but consecutively to the sentence on the first charge.

30.This gives an overall sentence of 16 months’ imprisonment for these offences.