HKSAR v. Monika Zahara

DCCC 48/2019

[2019] HKDC 708

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 48 OF 2019

----------------------

----------------------

------------------------------------

Reasons for Sentence

------------------------------------

1.The defendant has pleaded guilty to three charges arising out of the termination of her own pregnancy in July 2018, and so she is charged with administering a poison to terminate the pregnancy, possession of that poison, and she was here illegally as well so there is a breach of condition of stay.

2.The facts are fairly simple.

3.The defendant had been a domestic helper in Hong Kong.  Her employment had finished on 20 December 2017.  She had remained in Hong Kong, which meant she contravened her condition of stay and, by July of last year, 2018, she had been here in that condition for about seven months. 

4.She became pregnant in May of 2018 by a man she met in Hong Kong.  She was already married in Indonesia and the father of this child was deported from Hong Kong.  She then decided to terminate this pregnancy. 

5.She then appears to have been able to buy Cytotec and misoprostol, both prescription drugs, in Hong Kong, without a prescription. She had administered the drugs to herself and successfully terminated the pregnancy in July 2018.  She had apparently collapsed and was taken to hospital in Tuen Mun, and a placenta was removed, indicating about 12 weeks’ pregnancy.

6.Those are the basic facts of this case.

7.The defendant is a lady of clear record.  She is now 30 years of age.  She was a domestic helper in Hong Kong, terminated in November of 2017.  She has family in Indonesia and will no doubt be returning there once these matters are completed.  She has a son of 8 years old currently living in Indonesia.

8.Turning to the question of sentence.  In respect of the first charge, I have been referred to the case of HKSAR v Tsui Pik Fong, CACC 39/2009, which is a Court of Appeal case about administering poisons to procure abortions.  The case does not deal with self-induced abortions or the principles to be adopted.  Particularly, no reference is made to how far advanced the pregnancy is, which is a determining factor in other jurisdictions. 

9.The court does say, “We do not see these offences ‘as being susceptible to the imposition of a tariff.  The circumstances of the commission of an offence of this nature are so varied.’”  It does observe though that sentences have ranged between 15 months to 3 years’ imprisonment.

10.It does appear to me there is no appellate guidance as to how to approach a case involving self-induced abortion and it would appear to me the major sentencing factor must be how advanced the pregnancy is.

11.Pregnancies in Hong Kong can be lawfully terminated, subject to the conditions by which a doctor must be satisfied of for authorising a termination.  Terminations can be made up to 24 weeks of pregnancy. 

12.I assume the defendant did not go for a lawful termination because of her illegal status in Hong Kong.  The pregnancy appears to have been about 12 weeks advanced, so, should she have chosen to go for a lawful option, it presumably would have been available.  I consider this must put this case into a lower category of seriousness.

13.I note that, in other jurisdictions, sentences for this offence have ranged between a suspended sentence and 8 years’ imprisonment, depending upon the age of the defendant and how advanced the pregnancy is and other factors.

14.I have decided that, on the first charge, I will take a starting point for sentence of 15 months’ imprisonment.  I shall reduce that to 10 months’ imprisonment having regard to the defendant’s plea of guilty.

15.On the second charge, I will take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

16.I shall order that the first and second charges be served concurrently to each other.

17.On the third charge, I will take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

18.I shall order that to be served consecutively to Charges 1 and 2, giving an overall total sentence of imprisonment of 12 months.