HKSAR v. Bailey Natasha Mwale

HCCC 215/2018

[2019] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 215 OF 2018

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Before: Deputy High Court Judge Bruce SC in Court

Dates of Hearing: 14 – 15, 18 and 19 February 2019

Date of Ruling: 19 February 2019

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RULING OF CASE TO ANSWER

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INTRODUCTION

1.On 13 February 2019, Bailey Natasha Mwale (“the Accused”) was arraigned on an amended charge of manslaughter.  The particulars of the charge are that on or about 17 October 2017 at Wan Chai, she unlawfully killed an unnamed baby girl.  The original arraignment was on 4 February 2019.  Nothing turns on the amendment for present purposes.

2.To that charge, the Accused pleaded not guilty.  The case for the prosecution has always been that the unlawful killing of the baby girl was caused by an act or acts or omission or omissions amounting to gross negligence.  The case for the prosecution has never been on the basis of any other form of manslaughter whether at common law or by statute.

3.Counsel for the Accused submits that there is no case to answer.

CASE FOR THE PROSECUTION

The Accused and her baby

4.The case of the prosecution is that the Accused is a Zambian national.[1]  Her primary and secondary education was in Zambia.[2]  In recent years, she studied in China.[3]  The Accused came to Hong Kong on 5 September 2017 and was, at all material times, lawfully in Hong Kong asa visitor.[4]  The Accused was in Hong Kong waiting for the expected grant of a visa to go to Australia to rejoin her mother and stepfather in that country.[5]

5.After her arrival in Hong Kong she stayed in a number of premises. Perhaps most relevant are that she stayed in the YesInn in Causeway Bay and was at the time of the events the subject of the indictment staying at the Check Inn in Hennessy Road, Wan Chai.[6]  The Accused had departed the YesInn on 15 October 2017.[7] She had checked in to the Check Inn on 16 October 2017.[8]

6.The Accused became pregnant while she was a student in China.[9]  She told police that she became aware of her pregnancy in August 2017.[10]  The date of conception is not known although there is some evidence that the baby was near full-term when it was born.[11]  In contrast, Dr Ma Wai Sze, a specialist gynaecologist who treated the Accused at Queen Mary Hospital on 18 – 20 October 2017 expressed the view that the uterus of the Accused was, on examination, a 16 week sized, well-contracted uterus.  She told the court that estimating the term of the baby from examining the size of the uterus, particularly given the fact that the only real evidence of birth comes from the Accused and that she gave birth at about 7 pm on 17 October 2017 that such a basis for estimating the term of baby was not very reliable.

7.The Accused said to police that:[12]

“ I started to feel painful in my abdomen at around 17:00 hours on 17 October 2017 when I was in the bedroom of the hostel. Then, after around one hour and 45 minutes of pain I felt the painbecome intense so I rushed to the toilet at around 18:45 hours and then after 15 minutes of intense pain inside the toilet I felt the baby coming out from me at around 19:00 hours on 17 October 2017.”

8.The Accused told the police that she noticed the commencement of the pain when she was on her bed at the Check Inn.[13]  The Accused said there was no one around when she started to feel pain.[14]

9.Critically, the Accused told police that the baby came out with her umbilical cord detached from her and attached to the baby.[15]  (That is borne out by the pathologist report and photographs of the baby taken by the pathologist.)  The Accused was asked whether the baby was alive when she first came out.  The Accused said:[16] “Yes, she was alive because she hiccupped once.”  The Accused said that she did not notice whether the baby opened her eyes or moved because she was scared and “did not see that clearly.” [17]  The Accused was asked whether she tried to wake her and tried to test if she had any response such as checking breathing or heartbeat.  The Accused said: “I was afraid and so I did not know what to do.  I just could remember that she hiccupped once when she first came out from my body.”[18]  The Accused told the police that she wrapped the baby in a piece of clothing and put her on a board in the toilet and started to clean herself up in the toilet.[19]  Cleaning must have involved cleaning a lot of blood because by the time she got to the Queen Mary Hospital she was diagnosed as needing a transfusion of 2 units of blood.[20]

10.The Accused said that she wrapped the baby in a piece of clothing and went back to her bedroom for the purpose of asking someone to call for an ambulance but no one was there she said that she then put the baby into her bag to go out from the hostel and wanted to take her to the hospital.[21]  There is no evidence in the prosecution case as to whether or not there were any staff present in or around the hostel at this time.  She said that she took the baby in the bag and left the hostel.  She said at the time she felt sick and dizzy.[22]  She then walked to the rear lane behind the hostel for a rest.  She said that she did not know what to do and took the baby out of the shoulder bag and put the baby in a rubbish bin.[23]  The Accused said to the police that the rubbish bin was less than half full and there was some black garbage bags inside.  She then put the baby which was wrapped with clothing onto a garbage bag inside the rubbish bin and put another garbage bag surrounding the baby so as to hide the baby from public view.[24]  There is a photograph in the series of photographs which comprise P 71 which depicts a large wheeled green rubbish bin in the rear lane the subject of consideration.[25]  That is fundamentally consistent with the description by the Accused.  The Accused said that she stayed there about 5 minutes.[26]

11.The Accused was asked why she tried to hide the baby in the garbage bin.  Her answer was that she did not want to get into trouble.[27] When asked the reason for this she said: “Because I gave birth to the baby but it did not move after she came out.  I was afraid that I might have caused her death and did not want other people to get known of it.” (sic)[28]

12.In the second Record of Interview, the issue of whether or not the Accused thought the baby was alive or otherwise and, to an extent, when that was, is more explicitly addressed.  The Accused was asked whether when she put her baby in the rubbish bin whether she checked that it was alive.  To this she answered: “I had tried to see if the baby had any breathing and heartbeat but I could not feel anything.  I tried to move her arms but she had no response.” [29]  The Accused was then asked whether she was sure that the baby was dead when she put the baby in the rubbish bin.  Her answer was: “No.  I am not sure.” [30]

13.The precise time when she conducted this examination of the baby is not revealed in any of the prosecution evidence.  There is an element of contradiction in what she says as to the time when she believed the baby was dead.  The Accused says at one stage that her motivation for leaving the hostel was to take the baby to hospital.  While it is conceivable that she had in mind taking a dead baby to the hospital the more likely state of mind is that she believed or at least hoped that the baby was still alive.  As will appear in later passages in these reasons, what she actually believed about the baby being alive or otherwise is of limited relevance.

14.There is available to the prosecution a series of CCTV records taken in various places which depict the Accused leaving the Check Inn and leaving the building in which the Check Inn is located.  There are a number of other CCTV locations to which I will refer further later on.  In relation to the CCTV which depicts the Accused departing the building in which the Check Inn is located, it is not difficult to see the Accused departing at 7:59 pm.[31]  That places her departure at about one hour after the birth.  The real lane approximately bisects the buildings on Hennessy Road and Lockhart Road between Stewart Road and Tonnochy Road in Wan Chai.  The Accused during the course of her first Record of Interview on 19 October 2017 recognises herself in the stills of the CCTV footage as she emerged from the lane at the Tonnochy Road end, and that places the time at 8:04 pm.[32] There are similar acts of recognition in the second Record of Interview.

15.The Accused says that after she left the rear lane at the TonnochyRoad end, she went to the YesInn (the hostel where she had previously stayed until 15 October 2017) and went there for the purpose of retrieving her luggage which she had left there.  She had checked in to the Check Inn with nothing but a handbag.[33]  That is confirmed by CCTV records at the YesInn which place the Accused there at 8:44 pm.  She is seen leaving the YesInn with some luggage at 9:20 pm the same day.  The reason that the Accused gave for this is that she had been permitted to leave her luggage at the YesInn and she wanted to change her clothes.  In particular she wanted to change her dress which was smeared with blood.  He told police that she changed her dress at the YesInn and threw the original dress in a rubbish bin in the toilet of the YesInn.[34]

16.The Accused said that after she changed her clothes at the YesInn she returned to the Check Inn and went to her room and took a rest.  The police came to her about 3:30 pm on 18 October 2017.[35]  On that premise, allowing about 30 minutes for the Accused to wheel her suitcase back to the Check Inn from the YesInn, she must have been at the Check Inn resting for about 17 – 18 hours.

The baby is found

17.Another part of the narrative describes events in the early hours of 18 October 2017.  The second prosecution witness, Mr Chang Siu Hong, testified that he worked as a part-time cleaning worker and was doing so at about 1:45 am on 18 October 2017.  He was working in the rear lane between Stewart Road and Tonnochy Road and part of his duties included cleaning out a green rubbish bin which is adjacent to the Yoshinoya karaoke establishment.  Prior to that, he had found a white foam box which became exhibit P1 and he had carried it on his trolley into the back alley.[36]  He came to the green rubbish bin and as he was doing so, he said that he touched a piece of cloth inside the rubbish bin.

18.Mr Chang told the jury that he skewed over the green rubbish bin and used his shovel to scoop the item in the rubbish bin onto the ground and then into the white box which he had earlier purloined.  He carried the item in the white box on his trolley and put the white box next to an orange litter bin located on the north-east corner of Hennessy Road and Tonnochy Road.  Mr Chang said that he could not see what the object was because it was dark, and he said it was quite heavy and he said it was soft.  He suspected that it was a dead cat or dead dog as he had had the experience of people depositing such items in the bins for which he was responsible in the course of his duties.  He said from the time that he put it into the white box on his trolley until he took the object and placed it corner of Hennessy Road and Tonnochy Road the object did not move nor did it emit any sound.

19.At around 7:30 am on 18 October 2017, another cleaning worker by the name of Mr Chung Hung Fu, who was the third prosecution witness, was a person employed to clean the orange rubbish bins, including the one at the corner of Hennessy and Tonnochy Road.  He noticed that in the course of his duties in relation to this rubbish bin that he saw what he thought to be a plastic doll.  He left the object lying there next to a white foam box which he agreed was exhibit P1.  He saw the doll and went about his duties.  He agreed that the object that he thought was a doll made no sound and made no movement.

20.Shortly after this event observed by the third prosecution witness,a lady named Ms Ip Yuk Yu who was an assistant at the newspaper stall on the north-western corner of Hennessy Road and Tonnochy Road.  She was the first prosecution witness.  She told the court that she had commenced duty at this newspaper stand about 4 am.  Indeed, she said that part of her job was to deliver newspapers to various establishments on behalf of the newspaper stall and had passed by the orange rubbish bin on the opposite corner in the course of her deliveries.  At about 7:30 am a lady approached the newspaper stall and told Ms Ip that there was a baby near the rubbish bin was on the north-east corner of Hennessy Road and Tonnochy Road.  This woman was, apparently, on her way to work, so Ms Ip went over to investigate.  She saw a dark-skinned black-haired baby with its umbilical cord still attached lying on the road next to the orange rubbish bin.  She said that the baby was not moving or making any sound and that it was lying on its side in what she described as a crooked shape.  She summoned the police and emergency services. Ms Ip confirmed that there were no bloodstains and she remained at the scene to assist the police. She was not able to say how or when the baby was placed there.  She pointed out that for a large part of the time she was there, including when she walked past the scene where the baby was ultimately found that it was for the most part still dark.

21.An ambulance officer, Mr Wong Ka Wai, who was the fourth prosecution witness, testified that he and his crew were summoned to attend the scene.  Mr Wong is an ambulance officer of 17 years’ experience and he attempted, with the assistance of one of his crew members, to apply CPR to the baby.  He told the court that there is a special technique for babies and that was used.  At no stage did he ever see the baby move or respond either before or after the application of CPR.  The ambulance officers took the baby to the Ruttonjee Hospital which is, of course, only a short way away. During the course of the journey Mr Wong and his colleague continue to apply CPR to the baby with no response.

Certification of death

22.At the hospital, the baby was handed to staff of the Accident & Emergency Department.  The baby was attended by Dr Lam Ho Yin at the Accident & Emergency Department.  The records of the hospital reveal that the baby was admitted at 7:42 am and that Dr Lam attended the baby a minute later.  He observed that the baby weighed 2.58 kg and had its umbilical cord still attached.  He observed that it was cold and had no spontaneous movement.  No obvious wounds were found.  The baby was assessed on the Glasgow Coma Scale at 3/15.  The Glasgow Coma Scale is a well-known neurological scale which is designed to give information in a reliable and objective way of recording the conscious state of a person.  Dr Lam found that the pupils of the baby were fixed and dilated and that there was no spontaneous breathing and pulse.  The Doll’s Sign was negative and the baby was described as in prolonged asystole.  The Doll’s Sign is a well-established measure of the response of the eyes to stimulus.  Asystole is the description of a cardiac rhythm with no discernible electrical activity.  It is a well recognised sign that the heart is not functioning.  Dr Lam certifiedthe baby to be dead at 7:44 am. It was transferred to Victoria Public Mortuary.

Arrest of the Accused

23.A police investigation commenced as soon as the police arrived at the scene at the corner of Hennessy Road and Tonnochy Road.  In the afternoon of 18 October 2017, the Accused was arrested after she was found at her room in the Check Inn.

24.She was taken to the Queen Mary Hospital and was admitted to the Obstetrics & Gynaecology Ward.  It was there that Detective Senior Inspector Cheng interviewed her on 19 October 2018.  Following her discharge from Queen Mary Hospital, the Accused was taken in custody back to the Wan Chai Police Station and at 12:24 pm she gave a further Record of Interview to this officer.  While DSI Cheng was the subject of extensive cross examination about the propriety of the two interviews of the Accused, I do not consider it necessary to traverse that cross examination for the purpose of these reasons.  The reason for this is that the Accused clearly made admissions against interest in both Records of Interview and it would be open to the jury with a proper direction to consider that which was said by the Accused in both of these interviews was true.  For what it is worth, in my opinion DSI Cheng was an impressive witness and was, in my opinion, utterly unshaken in cross-examination.  I should add in this context that the police officers who were present at one or other of these interviews were also cross-examined to an extent and, once again, although it is not necessary for me to either traverse the cross examination or make a finding of fact, I can simply say that the testimony of these witnesses was well capable of belief. For what it is worth, I found them largely unshaken in cross-examination.

Forensic analysis

25.Forensic analysis confirmed that the Accused was the mother of the deceased baby girl.[37]

Treatment of the Accused in hospital

26.As has already been mentioned, the Accused was taken by the police in an ambulance to Queen Mary Hospital where she presented at the Accident & Emergency Department.  She was admitted to the Obstetrics & Gynaecology Ward where she was treated by a team of doctors including Dr Ma Wai Sze.  The report of this Doctor was one of the reports read under section 65B of the Criminal Procedure Ordinance.  It was exhibited as P 60A.  In her testimony it was revealed that Dr Ma was a specialist obstetrician and gynaecologist and had been practising in this specialty since 2006.  Her formal specialist qualifications came in 2011.  She was eminently qualified to give opinions on matters within this specialty.  In that opinion, Dr Ma mentioned that the Accused had told hospital staff that the Accused had a positive pregnancy test in August 2017.  Quite what that test was, how it was performed and the basis for believing that the Accused was pregnant was never revealed.  Dr Ma described the birth process as follows:

“ [The Accused] experienced abdominal tightening with diarrhoea2 days before admission. The abdominal pain worsened one dayafter and there was a leaking sensation, followed by spontaneous passage of foetus and placenta. After delivery of the foetus, no foetal movement was noted and she left it in the alley.”

It implies no criticism of Dr Ma that she did not say when that absence of foetal movement took place.

27.In the course of her testimony, Dr Ma said that it is possible that the vaginal bleeding observed by the Accused was not menstruating but it was a bleeding associated with pregnancy.  This would be consistent with pregnancy consistent with a full or close to full term birth in mid-October 2017.  Dr Ma told the court that it would be desirable for the Accused to have had a prenatal checkup and not to do so would be unusual.  It was not clear to me whether she was speaking in the context of the ordinary Hong Kong experience.  She did say that a prenatal checkup would assess the health of the foetus which might impact on decisions in relation to the circumstances in which the baby was delivered.  She said that it is highly desirable for there to be medical assistance or at least a midwife to assist with the birth.  In cross-examination, Dr Ma told the court that she was aware of cases where a woman alone had safely delivered a baby in a taxi.  She also told the court that in terms of safety for the delivery of a baby a head first as opposed to feet first delivery was safe.  She told the court that if there was partial breathing on the part of the baby after delivery that resuscitation would be an option.  In answer to a question from the Court, Dr Ma said that if the umbilical cord was severed in the course of the delivery there was a risk of severe bleeding of the baby.

Autopsy

28.Dr Lam Wai Kwok, a specialist forensic pathologist performedan autopsy on the baby. His report is exhibit P 61.  It was admitted by consent.  The autopsy took place on 20 October 2017.  Dr Lam is a registered medical practitioner and specialist forensic pathologist of impressive credentials.  I had no hesitation in accepting him as an expert witness.  Dr Lam found the baby to be a newborn baby girl of 2.5 kg in weight.  The baby appeared to be normal and Dr Lam considered from his examination that the body parameters were comparable with an average size baby of about 38 to 40 weeks gestation.  That is, of course, the full term.  There were no signs of any congenital abnormalities.

29.Dr Lam performed a normal thorough forensic examination.  He described the cause of death as “Unascertained”.  He observed that the baby showed signs of a separate existence with evidence of lung expansion which, as he put it, indicated that the deceased was a live born infant.  There were some minor injuries on the body of the baby which were judged to be minor and non-fatal and could have occurred post mortem.  The conclusion of the forensic report written by Dr Lam is as follows:

“ Considering the present case, the autopsy did not reveal any other significant natural disease or congenital anomaly that could have contributed to the death. Autopsy also did not reveal any evidence to suggest that the death was traumatic in origin. However, it is well documented that some forms of unnatural death, such as suffocation, might not produce any injuries or leave any marks on the body. Therefore, the possibility of such conditions leading to death in this case could not be excluded. As such the cause of death was given as ‘Unascertained’.”

In his report, Dr Lam gave no opinion as to the time of death of the baby.  Nowhere in his report or in his oral testimony was there any suggestion that he had concluded that the baby bled to death following the tearing of the umbilical cord.  There is no reference to this issue in the report of Dr Beh Swan Lip to which reference will be made shortly.  For completeness, there is no reference to the cause of death in the brief note from the Accident & Emergency doctor who examined the baby and certified it to dead.

30.In his oral evidence, Dr Lam substantially confirmed his written opinion.  He, perhaps, went a little bit further and said that it is at least possible that the child having been born only had a brief existence.  In answer to questions in cross-examination, he put that time of existence as a very, very few minutes.

31.At the request of the defence, the prosecution read the medical report of Dr Beh Swan Lip to the jury pursuant to section 65B of the Criminal Procedure Ordinance.[38] That then becomes evidence in the prosecution case.  Dr Beh is a well-known and highly-experienced forensic pathologist who practised in Hong Kong for many years.  Generally, he agrees with the views of Dr Lam.  However he says that the baby could have been born alive and the examination of the baby’s lungs revealed some air.  However, he noted that the lungs showed some signs of expansion but, he said that these signs were minimal and no expansion in the majority of areas of the lungs was revealed.  He also expressed the view that there could have been some blood loss from the baby through the untied umbilical cord.  His conclusion was that the birth was unusually rapid and it did not appear that the baby survived long after birth he thought that suffocation was unlikely.  While it is true that the only source of information that Dr Beh had for the rapidity of the birth is the Accused, she is the only person who can speak to that in this case.  The only conceivable contrary view comes from the times imprinted on the CCTV for the Check Inn would seem to suggest that the Accused went into the toilet at about 18:26 hours and emerged at 1956 hours.  (That does not directly challenge the rapidity of thebirth as such but is inconsistent with what the Accused said in her interviews about only going into the toilet when the more intense process of labour occurred.  It might, to an extent, circumstantially point to a slightly earlier realisation on the part of the Accused that she was in labour and, as a result, might have summoned help.) 

Other evidence of time of death

32.Other than some of the things that were said by the Accused in her Records of Interview, is very little other evidence in the prosecution case as to the time of death.  There is, as I have already noted, some slight evidence which may provide a modicum information as to that in that the worker who moved the baby out of the garbage bin and into the white poly foam box said that although the object was soft there was no sound or movement.  The cleaning worker who saw what he characterised as a doll saw no movement when he cleaned the orange rubbish bin at the north-east corner of Hennessy and Tonnochy Road at about 7:30 am.  Although Mr Wong, the ambulance officer was appropriately cautious in his evidence what he described strongly suggested that the baby was dead when he saw it and commenced CPR at the scene and on the way to the hospital.  The baby was described as cold in the observations of the doctor (also a Dr Lam) who certified death at the Ruttonjee Hospital.  However, that is as far as it goes.

SUBMISSIONS: NO CASE TO ANSWER

Particulars given

33.There is a context in relation to the submissions made on behalf of the Accused.  Those representing the Accused asked the Prosecution to particularise the acts of gross negligence which form the basis of the prosecution case. Although the answer to that question is not answered in a direct way, the particulars given are as follows:[39]

(1)  She [the Accused] knew she was pregnant;

(2)  Sought no medical help after knowing she was pregnant;

(3)  Whilst going into labour she sought no assistance;

(4)  She had labour symptoms one day prior to birth;

(5)  She sought no assistance after giving birth, and went into labour alone in the toilet of her guesthouse;

(6)  Gave birth at 7 am and already seen heading towards rear lane around an hour later;

(7)  Rather than seeking any kind of assistance from emergency services or the guesthouse staff, she proceeded to put the infant in a rubbish bin in a dirty street;

(8)  She was not sure if the infant was dead when she put into bin;

(9)  She then went off to another guesthouse.

The letter continues: “Dealing with the whole matter in this manner we say was grossly negligent.”  The position is that the case for the prosecution would appear to be that the combined effect of each of these particulars makes the conduct grossly negligent.

Submissions by the Accused

34.On behalf of the Accused, submissions were made that on the evidence adduced by the prosecution there was no case to answer.  It was submitted that, to the extent that events preceding the birth are concerned, there is no evidence fit to go to the jury that there was any act or omission which could be characterised as gross negligence and even if that were so, there is no evidence that any such act or omission caused the death of the baby.  In relation to the events which followed the birth, while it was recognised that some of the acts could be characterised as grossly negligent, given that there was no evidence of the time of death or the cause of death, even if there were acts of gross negligence, they were not capable of being proved to have caused the death of the baby and there is no evidence that at the time of those acts the baby was alive.

Submissions in reply by the prosecution

35.The case for the prosecution is that if you look at all of the particulars taken together they amount a case of gross negligence.  The prosecution add to that that there is clear evidence of the indifference of the Accused to the life of the child.  The prosecution points in this regard to the original but apparently abandoned consideration of abortion.  The prosecution also points to the time that the Accused had in Hong Kong which amounted to something of the order of 5 weeks in which she could have made the appropriate enquiries and obtain the prenatal care that she obviously should have got.  The prosecution then say, consistent with the particulars given, and which have been already described that the minute that she was aware that labour pains had set in she should have summoned help. The prosecution say that the baby could have lived for some time and the jury might find that have happened and that some of the activities of the Accused such as the wrapping of the baby and the leaving of it for something of the order of 45 minutes while the Accused cleaned herself and the toilet up as acts of gross negligence which caused the death of the baby.

36.As I say, the prosecution points to a combination of events rather than individual events amounting to gross negligence.

PRINCIPLES

Test for case to answer

37.The principles which govern the determination of whether or not there is a case to answer are well-known. They are, with respect, perhaps best articulated by the Court of Appeal in AG v Li Fook Shiu[40] where it was said:

“ In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment: but what a jury ‘could, may or might’ properly conclude in the future.

If elaboration of the approach explained in Galbraith is called forwe are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:

(1) is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) is the evidence of primary facts of a quality permitting a juryto accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established?  If he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”

These principles have been widely regarded as articulating the same test as R v Galbraith [1981] 1 WLR 1039, 73 Cr App R 124.  That may be seen in HKSAR v Wu Wing Kit & Ye Fang (No 2) [2016] 3 HKLRD 533, §127 but it is, perhaps, pertinent that Lunn VP for the Court cited the passage cited immediately above from AG v Li Fook Shiu.

38.These principles recognise the primacy of the jury as the tribunal of fact and recognise the high degree of respect which must be accorded to that primacy.  This is articulated with unmistakable clarity in R v Galbraith (above).  The principles demand of the Judge a high degree of rigour in applying the principles perhaps particularly when determining that there is no case to answer.  The approach should as follows:[41]

(1)  It is for the jury to determine whether evidence is, or is not, sufficient to establish guilt; it is not for the Judge to predict what the jury will find.

(2)  If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds.

(3)  Questions of credibility and weight must, in all but exceptionalcases, be determined by the jury.  For the purposes of argument, the prosecution case must be taken at its highest.

(4)  Where the prosecution case depends on inferences, the focus is on whether the evidence, if accepted by the jury, establishes facts that are capable of supporting those inferences.  Whether those inferences should be drawn, or not, is also a matter for the jury.

This is not a case in which credibility is material except in the most minor and, for the purposes of these reasons, irrelevant way.

39.These principles involve no exercise of discretion.  If the state of the evidence falls short of the standards which I have articulated, bearing in mind the manner in which the analysis must proceed, then there is only one conclusion: that there is no case to answer.  If it does not fall short in this manner, the case must proceed to the jury.

Elements of the offence

40.The elements of the offence of gross negligence manslaughter have recently been restated by the Court of Appeal in HKSAR v Lai Chun Ho.[42]

41.The conclusion of the Court of Appeal in HKSAR v Lai Chun Ho (above) is as follows:[43]

“ In conclusion, our answer to the Question of Law reserved is that ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ is to be proved on the objective reasonable man test only, in accordance with the terms of this judgment. The prosecution is not required to prove that the defendant was subjectively aware of the obvious and serious risk of death to the deceased. Accordingly, the proper direction in each case should be based upon that set out in Direction 63A of the Hong Kong Judicial Institute’s Specimen Directions in Jury Trials.”

42.Direction 63A of the Hong Kong Judicial Institute’s Specimen Directions in Jury Trials is as follows:[44]

“ Before you may convict the defendant of the offence of manslaughter by reason of gross negligence [……] you must be satisfied so that you are sure of the following ingredients:

(1) that the defendant owed a duty of care to the victim;

(2) that the defendant was in breach of that duty of care;

(3) that the breach of the duty of care caused the death of the victim; and

(4) that the breach of the duty of care constituted gross negligence, in that the circumstances were such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death so that you, the jury, consider the defendants actions justify a criminal conviction.

It is for you to decide which facts you find proved: whether or not there was a duty of care owed by the defendant to the victim; whether or not there was a breach of that duty of care by the defendant; whether or not that breach caused the death of the victim and whether or not a breach of the duty of care owed by the defendant to the victim constituted gross negligence that justifies a criminal conviction.”

43.The Court is aware that in that case, the Court of Appeal has certified that there exists in the decision of the Court of Appeal a point of law of great and general importance.  The issue in relation to that point of law might best be seen in the decision of Barnes J in HKSAR v Lai Shui Yin.[45]  For the purposes of this determination of the issue of whether there is a case to answer I will take the law as I find it from HKSAR v Lai Chun Ho (above).  Even if the Court of Final Appeal grants leave to appeal and revises the law of gross negligence manslaughter in accordance with the approach of Barnes J in HKSAR v Lai Shui Yin (above), given the real issue for determination in this case, that possible future determination by the Court of Final Appeal could have no conceivable impact on this ruling.

Causation

44.Causation in murder and manslaughter cases can best be seen in the Specimen Directions and is as follows:[46]

“ The law is that before you may find the defendant guilty of [murder/manslaughter] one of the matters about which you mustbe sure is that the [defendant’s act][the act to which the defendant was party] was a significant cause of [the death of X].

It is not necessary for the prosecution to prove that the [defendant’s] act was the only cause of death. Nor is it necessary for the prosecution to prove that the act was the main cause of death. But the prosecution must prove that the act was one of the causes of the death of X and was one that was more than a minimal cause. So if you were to find that that the defendant‘s act contributed only in some trivial way in causing death, or that that might be the case, then the defendant must be acquitted of [murder/manslaughter of X].

[Furthermore, it suffices for the prosecution to prove that the act accelerated death. If the act brought forward the time of death, the law regards the act as a cause of death, so long however as the act of the defendant contributed to death in more than a trivial or minimal way.]

What is meant by ‘a trivial or minimal way’?  We are all going to die sometime.  Killing is a mere acceleration of death.  A factor which produces a trivial acceleration of death is said not to be acause of death.  So if the prosecution establishes a cause of deathwhich is only a trivial acceleration of, or a trivial contribution to,the deceased‘s death, then the prosecution has not proved that the defendant committed an act that was a cause of death.”

Life in being

45.It is also relevant that there is authority for the proposition that, in order for there to be a culpable killing, there must be a killing of what is ometimes described as “a life in being”.  Archbold Hong Kong (2019 Ed) §20‑2 says that a “life in being” is a human being which is born into the world in a living state with its own blood circulation.[47]  In R v Handley,[48] it is said that a child is born alive when it exists as a live person, breathing and living by reason of its breathing through its own lungs alone “without deriving any of its living or power of living by or through any connection with its mother”.  More recently, in R v Hutty,[49] Barry J set out the test at common law in Victoria as follows:

“ A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or of manslaughteror of infanticide, that the child should have an existence separatefrom an independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs.” (emphasis added)

There are some authorities which say that the child need not necessarily have drawn its first breath to be characterised as born alive if it has not taken its actual first breath.  It is not necessary to consider this perhaps difficult medical and philosophical issue because there is clearly evidence that the jury could accept from both the Accused (the baby hiccupped) and from the forensic opinion of Dr Lam Wai Kwok that the baby had breathed.

Whether conduct which occurred before the baby was born could be relevant

46.The view of Barry J in R v Hutty (above), so far as manslaughter is concerned would provide a negative answer, but that is at odds with the decision of the House of Lords in Attorney-General’s Reference (No 3 of 1994).[50]  In that case, a person (referred to in the speeches in the House of Lords as B) who knew that a woman was pregnant, stabbed her affecting the foetus that she was carrying.  B was charged with and convicted of an offence of unlawful wounding and was sentenced for that.  The baby was born but just over 100 days later and died of the injuries it had received in the womb.  B was charged with murder.  At trial the judge held that B could not be convicted of murder or manslaughter.  He was, accordingly, acquitted.  The prosecuting authorities applied to the English Court of Appeal by way of an Attorney-General’s Reference.  The Court of Appeal held that B could, in the circumstances, be charged with and convicted of either murder or manslaughter.[51]  That person appealed against the ruling of the Court of Appeal to the House of Lords.[52]  In the result, following a speech delivered by Lord Hope of Craighead, with whom the House agreed, it was held that B could not be convicted of murder but could be convicted of manslaughter.

47.Lord Hope considered first the status and position of the foetus. He observed:[53]

“ The Court of Appeal [1996] Q.B. 581 held that a foetus before birth must be taken to be an integral part of the mother, in the same way as her arm or her leg. It was for this reason that they said that the requisite intent to be proved in the case of murder, if the child was subsequently born alive and then died, was an intention to kill or to cause really serious bodily injury to the mother. I am not satisfied that this is the correct approach. The creation of an embryo from which a foetus is developed requires the bringing together of genetic material from the father as well as from the mother. The science of human fertilisation and embryology has now been developed to the point where the embryo may be created outside the mother and then placed inside her as a live embryo. This practice, not now uncommon in cases of infertility … serves to remind us that an embryo is in reality a separate organism from the mother in the moment of its conception. This individuality is retained by it throughout its development until it achieves an independent existence on being born. So the foetus cannot be regarded as an integral part of the mother in the sense indicated by the Court of Appeal, notwithstanding its dependence upon the mother for its survival until birth.”

His Lordship then went on to consider the position with respect to manslaughter.  He observed:[54]

“ The mental element which is required to establish the crime of manslaughter is different from that which is required for murder. The difference may be regarded as one of degree where there is only one victim of the criminal act done by the defendant, and he intended to cause harm to the victim. In that case the only issue is whether the crime is that of murder or of manslaughter. But in the present case, where there were two alleged victims — the mother who was stabbed, to whom B intended to cause harm, and the child who was born later and then died, to whom noharm was intended—the question is not simply one of degree. An analysis is needed of the nature of the intention which requires to be established in the case of each of these two crimes.”

His Lordship appears to have made it plain that he was not just speaking about unlawful and dangerous act manslaughter but manslaughter by gross negligence.  The language of his Lordship in this regard is unmistakable.  His Lordship observed:[55]

“ [I]t is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result.”

His Lordship concluded:[56]

“ I think, then, that the position can be summarised in this way. The intention which must be discovered is an intention to do an act which is unlawful and dangerous. In this case the act which had to be shown to be an unlawful and dangerous act was the stabbing of the child’s mother. There can be no doubt that all sober and reasonable people would regard that act, within the appropriate meaning of this term, as dangerous. It is plain that it was unlawful as it was done with the intention of causing her injury. As B intended to commit that act, all the ingredients necessary for mens rea in regard to the crime of manslaughter were established, irrespective of who was the ultimate victim of it. The fact that the child whom the mother was carrying at the time was born alive and then died as a result of the stabbing is all that was needed for the offence of manslaughter when actus reus for that crime was completed by the child’s death. The question, once all the other elements are satisfied, is simply one of causation. The defendant must accept all the consequences of his act, so long as the jury are satisfied that he did what he did intentionally, that what he did was unlawful and that, applying the correct test, it was also dangerous. The death of the child was unintentional, but the nature and quality of the act which caused it was such that it was criminal and therefore punishable. In my opinion that is sufficient for the offence of manslaughter. There is no need to look to the doctrine of transferred malice fora solution to the problem raised by this case so far as manslaughter is concerned.”

48.Although Attorney-General’s Reference (No 3 of 1994) (above) in the consideration of manslaughter was primarily focusing on unlawful and dangerous act manslaughter it is clear to me that Lord Hope clearly intended his observations to extend to manslaughter by reason of gross negligence.  There is no reason in law or principle to assert to the contrary.  It is readily conceivable that there could be cases where either the mother (who was pregnant) or some other person would act in a way which was grossly negligent and cause the foetus such injury as to cause the death of the baby.  Dangerous driving and dangerous sporting activities could conceivably be examples.

49.The matter was considered by the Supreme Court of Canada in R v Sullivan & Anor.[57]  In that case, the Court was dealing with an appeal which concerned two midwives who attended a home birth at the request of the birthing mother and, if I may be permitted to put this fairly basically, got themselves into trouble when the head of the foetus protruded from the mothers vagina but the mother stopped labour at this point.  They undertook some further efforts at this stage but ultimately emergency services were called and the child was born at a hospital but, sadly, was dead.  The two midwives were charged with, amongst other things, a statutory equivalent of gross negligence manslaughter.  In the offence the conduct must be directed with respect to a “person” and the definition of “person” in the statute required the person to be a person in being, in other words, born alive.  Accordingly, the Supreme Court held, per Lamer CJ:[58]

“ It is clear from the wording of s. 206 [of the Canadian Criminal Code] that a foetus is not a ‘human being’ for the purposes of the Code. However, R.E.A.L. Women has argued that ‘person’ and ‘human being’ are not equivalent terms within the Code. The argument was made that ‘person’ is broader than ‘human being’ because ‘person’ includes a foetus, while ‘human being’ does not. I have not been persuaded by any of the textual arguments put forward to support this position.

The Court of Appeal has, in my view, reviewed and analyzed thelaw on this point in a very thorough manner. The terms ‘person’and ‘human being’ were used interchangeably in the pre-1954 homicide provisions. The question then becomes, is there any reason to conclude that the 1953–54 Criminal Code revision gavenew meaning to these terms? The Court of Appeal has concluded that the introduction of the criminal negligence provisions by Parliament in 1954 (via An Act Respecting the Criminal Law, S.C. 1953–54, c. 51, s. 192) was not intended to change the long established meaning of the word ‘person’. Indeed, the House of Commons Debates [p. 2423] indicate that when the criminal negligence provisions were considered in committee on February 25, 1954, the members did not address the fact that the sections employed the term ‘person’ as opposed to ‘human being’. Moreover, when the revised homicide provisions were considered in committee, the members did not address the fact that these provisions employed the term ‘human being’ while the criminal negligence provisions employed the term ‘person’. In fact, the revisions were agreed to rather quickly following a short discussion regarding the concept of criminal negligence.

Accordingly, I agree with the Court of Appeal that the introductionof the criminal negligence provisions by Parliament in 1954 wasnot intended to change the meaning of ‘person’ and that the term, as used in s. 203 of the Code, is synonymous with the term ‘human being’.  Therefore, according to s. 206, the child of [the mother] was not a ‘person’ within the meaning of s. 203 and Sullivan and Lemay cannot be convicted of criminal negligence causing death to another person.”

50.The issue as to the scope of criminal liability for an assault on a mother which has an impact on a foetus was also considered by the Court of Criminal Appeal of New South Wales in R v King.[59]  The factual basis of the proceedings that reached the Court of Criminal Appeal were that the Respondent and a Ms Flick engaged in a single act of consensual sexual intercourse after which Ms Flick became pregnant.  The Respondent sought to persuade Ms Flick to have an abortion, but she refused.  The Respondent offered to pay others to assault the complainant, including hitting her in the stomach, but they refused.  On 20 August 2002, when the pregnancy was between 23 and 24 weeks, the Respondent attacked Ms Flick.  This included kicking her in the stomach and stomping on her stomach about half a dozen times.  Ms Flick was taken to hospital immediately, where an ultrasound was performed.  No foetal heartbeat was detected.  The foetus was delivered stillborn on 23 August 2002.

51.At trial, the matter was determined by way of a stay of proceedings. However, the trial judge proceeded upon the basis that the evidence would include observations that the placenta when delivered was pale and had a retro-placental clot on its edge measuring 80 × 20 × 20 millimetres.  Expert opinion evidence would be called by the Crown that the complainant had suffered an abruption of the placenta at the site of this clot.  The medical expert would give evidence for the Crown that the foetus had lost its blood or exsanguinated because of the abruption of the placenta.  The evidence would further be that the force applied by the Accused to the complainant’s abdomen had caused this abruption of the placenta, leading to the demise of the foetus through exsanguination.[60]  The trial judge concluded that on the evidence there was no doubt that there was really serious bodily harm occasioned to the foetus as a result of the Accusedassaulting the complainant.  The foetus bled to death following the abruptionof the placenta and, this occurred at the site of the abruption.  The foetus was stillborn however and did not take a breath outside the uterus.  The Court of Criminal Appeal noted that there were injuries on Ms Flick but that they didnot amount to grievous bodily harm.[61]  The Respondent (the proceedings by which the case got to the Court of Criminal Appeal are irrelevantly — for present purposes — complicated) was charged with wounding with intent to cause grievous bodily harm.  The averment in the indictment made it plain that the allegation was that grievous bodily harm was caused to the foetus by the Respondent.

52.The judgment of the Court of Criminal Appeal was delivered bySpigelman CJ.  He recognised that case gave rise to an important point of principle.  He said thatthe issue is whether or not the death of a foetus is capable of constituting grievous bodily harm to a pregnant mother.[62]  In an extensive review of the authorities Spigelman CJ followed and substantially agreed with the reasoning of Lord Hope in Attorney-General’s Reference (No 3 of 1994) (above).  His Honour concluded:[63]

“ The aggravated forms of assault reflect the community’s legitimate concern to control violence between persons. The greater the degree of injury, as compared with the result of common assault, the greater the community’s concern. Where such enhanced injury is inflicted on a foetus only, I can see no reason why the aggravated form of offence should depend on whether the foetus is born alive. The purpose of the law is best served by acknowledging that, relevantly, the foetus is part of the mother.”

53.There is a consideration of some of the issues in the present casein the Supreme Court of Hong Kong in R v Kwok Chak Ming.[64]  In that case, the Accused stabbed a pregnant woman and penetrated her uterus and the foetus died of the wounds received.  The foetus was born and died, having breathed, shortly after birth.  The Accused was charged with murder.  In the Supreme Court, Jennings J held that where a child is born alive but dies from an injury received before it was born, it could be murder but where a child dies in the womb it could not be murder. Accordingly, Jennings J held that there was a case to answer for murder.  On appeal,[65] the Full Court agreed with the views of Jennings J.  The Full Court observed:[66]

“ In our view, when a baby is born alive but subsequently dies as a result of injury inflicted on it whilst in its mother’s womb, the person inflicting those injuries may, when the other ingredients of murder or manslaughter are present, be convicted of such a crime in respect of that child. It is, in our view, immaterial that, in such circumstances, the malice aforethought may have been directed against the mother rather than the child. The principle that where A, intending to kill or seriously injure B. unintentionally but, in pursuit of that purpose, kills C may be indicted for the murder of C, applies, we think, with equal force even where C was only an embryo or foetus at the time when themalice was manifested and the injury inflicted but is subsequently born alive and dies of the injury.”

The rationale of the Full Court appears to be upon the basis of transferred malice which the House of Lords in Attorney-General’s Reference (No 3 of 1994) (above) explicitly rejected as far as manslaughter was concerned, Lord Hope holding that it did not truly arise.

54.In my judgement, the applicable law is to be derived from the speech of Lord Hope in Attorney-General’s Reference (No 3 of 1994) (above).  In short, a person can be guilty of manslaughter by way of gross negligence if the elements of this form of manslaughter are proved to have existed when the child was still in the womb.  There is no question that a mother would owe a duty of care to the unborn child just as she owed one the moment it was born, if born alive.  Thus, if it can be proved that that the breach of the duty of care caused the death of the foetus or baby as the case may be; and that the breach of the duty of care constituted gross negligence, in that the circumstances were such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death so that the jury consider the defendant’s actions justify a criminal conviction.  Thus, it is open to the prosecution to present a case of gross negligence of the kind I have just referred to on the part of the Accused in this case which predated the birth.  However, that act or omission which could be characterised as gross negligence would have to be proved to have caused the death of the baby.

Alternative offences

55.There are a number of offences which might, in some respects, be regarded as alternatives in the sense that they might have been charged.  Obviously, the offence of infanticide was a candidate but, in the circumstances, it is not difficult to imagine why the prosecution chose not to present its caseon that basis.  This is because there is no suggestion of a relevant disturbance of mind as contemplated in section 47C of the Offences Against the Person Ordinance, Cap 212.  In any event, that plainly deals with events post-birth.  Further, section 47B of that Ordinance, the offense of child destruction deals with pre-birth issues but the state of mind that the prosecution has to prove to establish such an offence is manifestly not present in the present case.  Further, section 27 of the Ordnance which prohibits assaults, treatment, neglect, abandonment or exposure such child or young person or causes or procures such child or young person to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his health has precisely the same problem as has been identified in this case: there is no evidence of the time of death for the cause of death of the child.  Accordingly, this is manifestly not a candidate consideration.  Finally, there is the offence contrary to section 48 of the Ordinance which penalises any person who in any manner disposes of the dead body of a child with intent to conceal the fact of its birth, whether the child died before, or during, or after birth, commits an offence and is liable on conviction to imprisonment for 2 years.  Indeed, in the course of exchanges between the Court and counsel in the present case, the issue of liability under this offence has been raised.  However, the offence is summary only because it does not come within section 14A of the Criminal Procedure Ordinance, Cap 221 because, where a provision in an Ordinance creates or results in the creation of an offence, the offence so created is deemed to be summary only unless the words ‘upon indictment’ or ‘on indictment’ appear in the provision creating the offence.

ISSUES FOR DETERMINATION

56.The issues for determination in the present case arise because the prosecution cannot prove either the time of death or the cause of death. However, both in relation to pre-birth conduct or omissions and post-birth conduct or omissions there also arises an issue of whether the conduct was such as to be characterised as gross negligence as that phrase is understood in the law of gross negligence manslaughter.  Thus, for example in relation to conduct which precedes the birth, there are real issues as to whether the conduct or omissions on the part of the Accused could be characterised as grossly negligent and even if a jury properly directed could conclude that those acts or omissions were grossly negligent, the next issue that would arise is whether those acts or omissions caused the death of the baby.  Those issues arise in relation to events following the birth of the child however, some of the acts of the Accused could readily be viewed as acts which a jury not only could but almost certainly would view as grossly negligent.  In this regard, I have in mind the placing of the baby in the carry bag and placing it the garbage receptacle.  In my view, a jury would have not the slightest problem in the world in concluding that this was grossly negligent and exposed the baby to the risk of suffocation or exposure or, heaven forbid, worse.  Plainly, a properly directed jury could and, in my judgement, almost certainly would conclude that if the baby was alive at that time, such acts of gross negligence caused the death of the baby.  However, the critical issue in relation to matters which occurred after the Accused delivered the baby is when the baby actually died. If at the time of placing the baby in the carry bag and dumping it in the garbage receptacle the baby was dead it would not matter for the purpose of the law whether or not the act was grossly negligent.  It may be, and in my very strongly held view, would be characterised as seriously reprehensible but would not be manslaughter.

DETERMINATION

57.The issue falls to be determined by reference to how the prosecution put its case.  As I have already noted earlier in these reasons, the prosecution puts its case on the following basis:

(1)  She [the Accused] knew she was pregnant;

(2)  Sought no medical help after knowing she was pregnant;

(3)  Whilst going into labour she sought no assistance;

(4)  She had labour symptoms one day prior to birth;

(5)  She sought no assistance after giving birth, and went into labour alone in the toilet of her guesthouse;

(6)  Gave birth at 7 am and already seen heading towards rear lane around an hour later;

(7)  Rather than seeking any kind of assistance from emergency services or the guesthouse staff, he proceeded to put the infant in a rubbish bin in a dirty street;

(8)  She was not sure if the infant was dead when she put into bin;

(9)  She then went off to another guesthouse.

58.Working backwards for a moment, the proposition that the Accused simply went off to another guesthouse after she emerged from the lane could not, on any view, be an act of gross negligence or conceivably contribute to the death of the baby.  The point being made by the prosecution is that the Accused was indifferent to the fate of her child.  However, in my opinion, it takes the case for the prosecution, either taken together with other matters or by itself, nowhere.  It contributes nothing, in my opinion, to the issue of whether or not the Accused was grossly negligent.  That is an objective issue and separate to her intentions, thoughts or feelings.  It is true that it might explain gross negligence but it does nothing to prove it.  In my opinion, on no account could the jury possibly use this as a basis to convict the Accused of gross negligence manslaughter.

59.It is clear from the Records of Interview that the Accused knew she was pregnant from at least August 2017.  Whether or not there was a pregnancy test as reported by the medical report of Dr Ma is largely irrelevant.  She knew she was pregnant.  Of course, it would have been desirable for the Accused to seek prenatal medical assistance.  Many, if not most women in Hong Kong would do so and to do so would clearly be a desirable thing.  However, until a very few weeks before the actual birth the Accused was not a woman in Hong Kong.  There is no evidence as to how available such care is in Shanghai.  The Accused was in Shanghai until early September when she came to Hong Kong.  It must be accepted that had she received a prenatal checkup there was a reasonable prospect that she might be better informed as to the due date of the baby.  However, viewing this issue individually, it is difficult to see how the failure to do so could be characterised as gross negligence and, even if it could be so characterised, that could be demonstrated to have caused the death of the baby.  There is noevidence as to whether this labour was the inevitable product of a pregnancy in the sense that this was, in essence, the last act of this set of circumstances as opposed to a sudden and unexpected labour.  Although there was no direct evidence on the topic, it is a matter of which judicial notice can safely be taken that sometimes women who are not full-term go into labour unexpectedly.  That is at least implicit from the agreement of Dr Ma in cross examination as to the suggestion that sometimes women might give birth perfectly safely in a taxi.  Equally, such circumstances might lead to a tragic outcome.

60.It is also suggested that the Accused had labour symptoms one day before the date of the birth.  The only conceivable source of this information is what is recorded in the medical report of Dr Ma, the specialist gynaecologist who was part of a team of medical professionals who treated the Accused at the Queen Mary Hospital.  Certainly, there is nothing in the Records of Interview given to the police by the Accused which would support this contention.  What Dr Ma actually says in her report is “She experienced abdominal tightening with diarrhoea 2 days before admission.”  In order for that to be significant there would have to be evidence that the Accused appreciated that this was labour pains.  There is not a scrap of evidence which would support such a proposition.

61.The case for the prosecution is that the Accused was grossly negligent and that this gross negligence caused the death of the baby in that once labour pains set in that the Accused did not summon help.  The prosecution’s case is that there was available staff at the hostel to summon assistance.  Once again, there is not a scrap of evidence as to what, if any staff were around at the relevant time. It may be that the Accused could have asked a stranger to summon help.  All of this is highly speculative.  There were certainly people at the hostel.  Maybe they would have assisted.  Maybe they would not have.  She should have tried.

62.The prosecution makes the point that the conduct of the Accused and the omissions of the Accused prior to the birth and once labour had started could be taken together seen by the jury as grossly negligent. There is some refinement of that proposition in that counsel for the prosecution accepts that once the intense labour pains commence there is little that could reasonably be expected of the Accused in terms of summoning help. The prosecution accepts that assuming that the Accused had got the prenatal care and medical advice, that she should have got had the baby gone to term there still remains the possibility of an unexpected entry into labour which could be something of a real emergency and the prosecution cannot say that this was not the case in the present situation.  On that premise, that would cut down the scope for an attribution of gross negligence on the part of the Accused.  That would leave as the time for analysis of gross negligence the time at which the Accused went into labour unexpectedly but was still capable of summoning help.  Of course, an unexpected labour may occur anywhere including the scenario posited in the cross-examination of doctors by counsel for the Accused of a woman giving birth in a taxi.  So, putting the point bluntly, on the premise that this was an unexpected labour, gross negligence has to be measured by the circumstances in which a woman found herself at the time of what was possibly unexpected labour.  While I personally could not characterise this as gross negligence I cannot say that applying the test which the law requires of me that a jury properly directed could not come to the conclusion that the failure to summon assistance was grossly negligent.

63.The real problem seems to me that whichever framework for analysis that the prosecution employs, the issue is causation.  There remains no evidence as to what caused the death of this baby.  As has been identified, there is a gap in the evidence as to the time of death safe to say that the view of Dr Lam was that the likely life of this baby was viewed in seconds or possibly a very, very few minutes.  There is no evidence that the child bled to death even though the umbilical cord was accidentally severed during or immediately following the birth in a manner unknown.  All the Accused says about that in her Record of Interview (there is no other evidence) is that when she delivered the baby she noted that the umbilical cord was severed.  Clearly, as Dr Ma observed, that might expose the baby to the possibility of bleeding to death if the umbilicus was not appropriately tied off or clamped.  However, Dr Lam made no mention of blood loss as a possible cause of the death of this baby.  Common sense and experience would demonstrate that had there been any blood loss of significance, that would have been detected by Dr Lam.  The prosecution argues that the baby might have lived longer than the expert medical evidence supported.  In some respects, the observations of the Accused might, if they were considered in a certain light, support that possibility.  However, the belief of the Accused as to whether or not the child was alive does not take the matter very far.  However, her observations could just conceivably, theoretically support the conclusion that the baby was alive longer than the doctors thought.  However, in none of the passages upon which the prosecution rely is there anything to point to time of the observations of the Accused.  For example, at one point, the Accused said that she checked the pulse, breath and movement of the child and found nothing.  The problem with that is there is no evidence as to when that checking took place.  In other words, the observations of the Accused which could conceivably be prayed in aid of a longer life of the baby do not reveal either expressly or impliedly a timeframe.

64.The prosecution criticised the Accused for placing the baby on a “board” in the bathroom.  It is not entirely plain what the Accused meant by that.  However, it is argued that this was grossly negligent and if the child was still alive at this stage, the inattention to the child at this point was grossly negligent and could have caused the death of the child.  All of this assumes that the child was alive at that stage.  On this there is no evidence on which a properly directed jury could rely.  In my judgement, the critical failure of the prosecution case returns always to the propositions that there is no evidence of cause of death and precious little evidence of time of death.

65.I accept fully that the jury are entitled to reject the opinions of the experts.  However, in my judgement, if that were to be done there is nothing to be put in its place.

66.In my judgement, the Accused has no case to answer on the indictment that she faces.  First of all, so far as the acts of the Accused whichpreceded the birth of the child, I do not think that there is any basis on whicha jury, properly directed, could may or might conclude that any of those acts caused the death of the baby.  This is because the opinion of the forensic pathologist Dr Lam demonstrates that there is no ascertained cause of death.  Accordingly, there is no basis upon which it can be said that any of those identified acts which precede the birth could have caused the death.  In any event, let it be assumed that in accordance with the items of gross negligence alleged by the prosecution that the Accused had consulted a doctor prior to the birth.  We simply do not know what advice might have been given apart from the fact that it would be prudent to go to the hospital to deliver the baby. Equally, attending for pre-natal advice is undoubtedly a good thing.  What it might have told the Accused is unknown.  Accordingly, it is speculative in the extreme to suggest that this caused the death of the baby.  Even if all of the items which the prosecution say amount to gross negligence were taken together, I fail to see how a jury could may or may say that they caused the death of the baby. Further, I do not think that any of the acts identified by the prosecution which predate the birth could be characterised as gross negligence, although, as I have said, my view does not count and what matters the possible jury view.  They could conceivably say this was gross negligence.

67.A prenatal checkup was certainly desirable.  However, there are many women in the world who do not have the benefit of this advice and I simply do not understand how it can be said that the failure to get the relevant advice is an act of gross negligence.  That is, however, just my opinion.

68.In relation to the events which, in a sense, bridge the pregnancy and the birth such as going into labour, there is the suggestion that as soon as the Accused went into labour, she should have caused efforts to be made to get help such as calling for an ambulance.  In this regard, I take no account of her ignorance of the Hong Kong system although that might be said to be harsh.  I view the matter upon the basis that we assume that as soon as she realised she was in labour the Accused could have summoned an ambulance and the ambulance people have attended promptly and taken her to a hospital.  There is the issue of when the Accused realised she was in labour.  What she had until the last 30 minutes was abdominal pains and while in retrospect it is clear that these were labour pains, it is a little difficult to say that looking forward rather than backward.  In her records of interview she does not describe labour pains but abdominal pain.  In other words, looking retrospectively it is tolerably clear that these were labour pains.  However, in determining the negligence or otherwise of the Accused one has to look prospectively.  In other words, at the time she had the pains should she have realised that labour was upon her and she needed to summon help.  Certainly, the last half-hour of what we now know to be the labour process was clearly labour pains.  However, the problem remains that even if she had got to a hospital promptly by reason of the highly diligent ambulance service available to everybody in Hong Kong including visitors and assuming that she and the baby received the best of care in the hospital — a valid assumption in Hong Kong — given we do not know what caused the death of the baby it cannot be said that in these circumstances a jury could may or might conclude that the baby would have been born alive and survived any act or omission on the part of the Accused which could be characterised as grossly negligent.  Again, the problem is that we simply do not know what caused the death of the baby.

69.Moving into the post-birth timeframe, the absence of information about the cause of death means that we cannot say what the act or acts or omission or omissions of the Accused (assuming them to have been grossly negligent) caused the death of the baby. In any event, we do not know when the baby died.  If the baby died shortly after the hiccough, the prosecution cannot show any act which was grossly negligent prior to that which caused the death of the baby.  As I have already indicated, there are a number of acts by the Accused relating to taking the baby away and depositing it in the manner that has been so graphically described which could be easily characterised as grossly negligent and could have caused the death of the baby.  However, there is no evidence that the baby was alive the time of these egregious acts.

70.For these reasons, I am driven to the conclusion that the Accusedhas no case to answer.  Accordingly, when the matter next comes before the jury I will direct them that the only verdict that they can return is a verdict of acquittal.

Mr Leslie James Parry, counsel on fiat, for HKSAR

Mr Ian Hastings Polson, instructed by Morley Chow Seto, assigned by Director of Legal Aid, for the accused