HKSAR v. Grado Aileen Ongcoy

DCCC 33/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 33 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of preventing the lawful burial of a body, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Chapter 221, Laws of Hong Kong.

Facts

2.The defendant was working as a domestic helper in Hong Kong since 2012.  In April 2016, she worked and resided in the flat of her then employer in Sham Tsang.

3.The defendant became pregnant in August or September 2015.  She did not notify her employer of her pregnancy because she was afraid of losing her job.

4.In the early hours of 21 March 2016, probably between 2 a.m. and 3 a.m., the defendant gave birth to a baby inside her room at her employer’s flat without any medical help or attention.  The baby was born alive since he had cried for a short period of time, but immediately thereafter he stopped not only crying but also breathing.  The defendant tried to revive the baby, but he had no response. The baby died within minutes of his birth.

5.The defendant was scared and confused.  She could not think properly.  Out of panic, she wrapped the baby with materials available inside the flat, including a piece of cloth, plastic bags, diapers and a sanitary pad.  She hid the baby in her room.  In the afternoon of the following day, she took the dead body of the baby to a public female toilet in Castle Peak Road and placed him there. 

6.The baby’s dead body in wrapping was discovered only some 13 days later on 4 April 2016 when it was still placed inside the same toilet.

7.On 11 April 2016, the defendant sought assistance from the Philippine Consulate General and disclosed the offence.  The consulate staff reported to the police.  The defendant made statements under caution admitting the offence and disclosing its details during two video-recorded interviews.

8.An autopsy was conducted.  It was confirmed that the baby was a new born.  There was no indication that his death was caused by physical harms or by application of any toxic substance.  No signs of any specific illness that might cause the death was detected.  The cause of his death was unascertainable.  It was however confirmed that there was no sign of asphyxia.  It meant that the baby had already been dead when he was wrapped up by the defendant.  In short, there was no evidence that the defendant caused the baby’s death.  It was accepted that a new born baby might die for many reasons, and that the account given by the defendant to the police of the baby’s death might be true.

9.The defendant’s employers spoke highly of the defendant, and were emphatic that she was a very good nanny to their young child.

Criminal record

10.The defendant has a clear criminal record.

Personal and family background

11.The defendant is now 37 years old.  She was born in the Philippines and received education there up to Year 3 in a college.  She is single.  She started working in Hong Kong as a domestic helper in 2012.  Her first employment contract was between October 2012 and September 2014, while the second one started in September 2014.  Her last working day was 4 April 2016 which was the day when the dead body of the baby was found.  She stayed with her friend thereafter in Cheung Sha Wan until the time when she was arrested after she had disclosed the offence.  All her family members are now in the Philippines.  Her father and mother are 68 to 69 years old and are working as farmers.  She has one elder brother and one younger brother both have married.  She has a daughter aged 8 who was born out of a relationship between the defendant and her ex-boyfriend who never married the defendant but just deserted her and the child.  The daughter is now being taken care of by the defendant’s parents in the Philippines.  The defendant remitted about HK$2,000 each month back to the Philippines for the support and maintenance of her daughter while she was working in Hong Kong.

Mitigation

12.Mr. Raffell, learned counsel for the prosecution on fiat, informed me that while the defendant’s action was captured by CCTV tape when she placed the dead body of the baby inside the public toilet, the images were of such quality that but for the defendant’s surrender to the Philippines Consulate and voluntary confession of the offence, it would be most likely that the defendant would not be arrested. 

13.Mr. Lam, learned solicitor for the defendant, informed me that the defendant had a second romance in Hong Kong.  She got pregnant.  She intended to keep the baby, but she had not sought medical care or assistance because of the fear of losing her job.  She did not expect the birth of the baby on the day in question.  She intended to keep the baby.  Not only had she done nothing that might have caused the death of the baby, she had tried to revive the baby when he was not breathing.  After the baby’s death, she just did not handle the matter properly when she wrapped the dead body up and placed it in the toilet.  Mr. Lam pointed out that unlike other cases involving the same charge, the defendant had done nothing to dismember, burn or mutilate the dead body of the baby.  Mr. Lam stressed that the defendant was very remorseful.  Her remorse explained why she revealed the matter to the Philippines Consulate, and admitted the offence under caution during two video-recorded interviews.  She had also co-operated fully with the police by taking part in a reconstruction of the offence.  She had also pleaded guilty in Court.  Mr. Lam referred me to the sentences imposed in two cases, i.e. HKSAR v David Maribel Hernandez[1] and HKSAR v Tsang Siu Ching[2], and asked for a sentence as lenient as possible.

14.Mr. Raffell referred to the case of HKSAR v Wong Mei Yi[3] where Zervos J. imposed a sentence of probation for the offence of infanticide.  He reminded this Court that all sorts of sentencing options were open to this Court.

Reasons for sentence

15.The maximum sentence that can be imposed on the defendant for the offence committed by her is 7 years’ imprisonment.  There is however no sentencing tariff.  The sentence must be determined according to the particular facts of each case.

16.In my view, the gravamen of the offence in question is that the law enforcement authorities would not know that a living person (no matter for how long he had lived) has died, and that any investigation into the cause of his death will or may be rendered impossible or very difficult.  Needless to say, if the death is in fact caused by any foul play, this offence may allow the culprit responsible for the death to escape justice.  Furthermore, the offence is also an insult to human dignity.  Every deceased person is entitled to be buried properly and should not be treated as if he were a heap of rubbish to be discarded.  For these reasons, I am of the view that there must be an absolute prohibition against the commission of this offence.  It means that the sentence to be imposed must achieve the dual purposes of not only punishment but also deterrence in both general and specific senses.  Hence, I find that the proper sentencing option to be one of imprisonment.

17.In coming to this finding, I have not lost sight of the case referred to by Mr. Raffell. However, in that case, the young age and immaturity of the defendant were significant reasons that led the learned judge to impose a probation order, but the defendant here was already 36 years old and a mother of a young daughter at the time of the offence.

18.As to the quantum of the prison term, the two cases referred to by Mr. Lam are of little assistance because they involved different factual scenarios, but it must be fair to say that since the defendants in those two cases were somehow criminally responsible for the death of the deceased in addition to the offence of preventing the lawful burial of the dead bodies, the sentence to be imposed on the defendant before me should be lower than those imposed on those defendants. 

19.In this particular case, I also accept that when the defendant disposed of the baby’s dead boy, she did not do so with elaborate planning.  She just used whatever available inside the flat to wrap up the dead body.  It was accepted that she had acted out of confusion and panic.  In addition, she had not done anything like burning or mutilating the dead body with a view to preventing or obstructing any investigation that might be carried out into the cause of the baby’s death in case his corpse was found.

20.Having all these factors in mind, I am of the view that the appropriate starting point of the prison term is 18 month’s imprisonment.  I do not find any aggravating feature in this case that will cause an upward adjustment of the prison term.

21.The defendant has indicated her intention to plead guilty in the earliest possible opportunity.  She is clearly entitled to be given one-third discount of the sentence.  I note that the defendant surrendered herself to the authorities and made full confession to the offence.  I accept that both for these factors, she might not even be charged.  However, there are authorities[4] to the effect that despite these factors, the appropriate discount of the sentence is still one-third.  There is no other mitigating factor.

22.For these reasons, the defendant is sentenced to serve a term of imprisonment for 12 months.

[1] DCCC429/2016

[2] [2001] 1 HKLRD 522

[3] [2015] 2 HKLRD 1112

[4] HKSAR v Ma Ming [2013] 1 HKLRD 813; HKSAR v Chu Kwok Chu [2013] 6 HKC 357