COURT: The defendant had pleaded guilty in the lower court to one count of infanticide, contrary to section 47C of the Offences against the Person Ordinance. And the particulars are that on the 4th day of March 2022, on a footbridge near Lamppost BC1012 on Castle Peak Road, Tsing Lung Tau, Tsuen Wan, New Territories, in Hong Kong, caused the death of her unnamed child, later known as Lee Sum-lok Charlotte, being a child under the age of 12 months, by a wilful act, that is to say, by dropping the said child to the ground from height, but at the time of the act, she had not fully recovered from the effect of giving birth to the said child and by reason thereof the balance of her mind was then disturbed. And the defendant has been committed to this court for sentence.
Upon reading the written mitigation submissions of counsel for the defence I have, on the date of the sentencing, ordered a probation report to be prepared to assist me to determine as to what sentence to impose on the defendant.
Now, the facts as the defendant had admitted to, was that the defendant at the time of the offence was 41 years old and she married her husband in 2013 and she was confirmed to be pregnant in 2021. And she had planned to deliver the child on 22 February 2022 but the child was delivered early by caesarean section on 16 January 2022.
And after the infant was born, both mother and daughter were discharged from the hospital and began living at home with the child’s father and also a foreign domestic helper. And on the day of the incident, in the early hours or at 5.21 am, the defendant had taken the infant in her arms, walked out of the flat, and dropped the infant over the railing of the footbridge. She then, after checking the infant, called 999.
Ambulancemen came on the scene and the baby was rushed to Princess Margaret Hospital where she was certified dead at 10.01 am. Autopsy showed that the infant had died from extensive injuries to the head. And the defendant was arrested at the scene at 6.50 am.
Under caution, the defendant said to the police that because had developed hypertension, she had been advised by the doctor to deliver the baby early. And she discovered that the baby, when born, was only five pounds when she was expecting her to be six pounds at birth. And then she became anxious about taking care of the infant. And she felt exhausted from taking care of the baby and she had to feed the baby overnight.
And in fact she had sought help through WhatsApp and searched the internet for post-natal depression but she was unable to focus in reading the information from the internet. And she had in fact told her husband that she was exhausted because she had not been able to sleep for many days and told her husband that she wanted to kill herself or kill the infant and her husband only told her to relax and not think about that.
So on that day, on that morning when the baby started crying, she was worried that it would wake her husband and therefore she took the baby downstairs. And she said before she dropped the baby over the railing, she apologised to the infant and then subsequently she called 999.
The defendant had been remanded in custody in Siu Lam Psychiatric Centre since her arrest and she had voluntarily stayed in Siu Lam Psychiatric Centre thereafter and did not apply for bail. She has been looked after by the visiting psychiatrist at the Siu Lam Psychiatric Centre and they have prepared a report, in fact several reports, that is Dr Amy Liu and Dr Kimberly Yip.
And both doctors were of the opinion, inter alia, that at the time of the offence, the defendant’s mind was believed to be disturbed by her not having fully recovered from the effect of giving birth or by reason of the effect of lactation. And therefore, after much negotiation, eventually the charge was amended to infanticide.
Up to today, the defendant had voluntarily stayed at Siu Lam Psychiatric Centre because she was anxious to recover as much as possible. And I can only say that this is a very tragic case and as Ms Draycott, the leading counsel for the defendant had submitted, it is a heartrending case.
The birth a baby should be a joyous occasion, but for some women that is actually when the nightmare begins, as in the case for this defendant. The mitigation advanced on behalf of the defendant is that she came from a humble background and since the age of nine, when her father died, her mother single-handedly raised her and her sister by working as a cleaner.
The defendant, to her credit, eventually earned a degree from the Baptist University and in 2013, she became a personal secretary to the chief executive officer of the Garden company and from the various testimonials supplied, she was well-liked by her colleagues and treasured and trusted by her boss.
The defendant had always wanted a family but had delayed starting a family because she was looking after her mother who had dementia since 2015. And so during that period between 2015 to 2020, she had to devote all her extra time to the care of her mother. Until 2020, when the mother was admitted to a care home and it was only after that the defendant became pregnant in 2021.
Unfortunately, her pregnancy was at the time of the COVID pandemic and very unfortunately therefore, she was isolated from the normal support she would have gotten from her friends, colleagues and family. And also the added stress was that she was unable to visit her mother.
So she had several threatened miscarriages during that time and had high blood pressure. So all of these situations added up when after the baby was born, she started blaming herself for the early delivery. Because the baby was underweight, she had to feed the baby every three hours and the infant would scream and would only take the milk which was less than the recommended amount. And added to that was the stress that she was afraid to breastfeed as she could not be sure how to measure the quantity of milk to the infant.
And as Ms Draycott pointed out rightly, the failure of breastfeeding is fraught with anxiety and feelings of inadequacy and that is not understandable to others, and particularly not to the husband. And in fact, her last cry for help was to her husband when she requested to have a night nurse come but her husband refused it.
The mitigation letters has very impressively demonstrated the defendant as a person who is caring and well-loved. Just taking a few examples, her parents-in-law wrote to this court, asking for a lenient sentence because, as her father-in-law said, she has always treated them very well and he considered her to be a daughter. And he said that the defendant was always well-behaved and polite.
Her husband’s brother, the defendant’s husband’s brother testifies in his statement that the defendant is kind and respects the elderly and is always ready to help. On top of that, her sister-in-law also testifies to her kind and caring nature, including her niece-in-law.
And then there is her employer’s letter to this court, also stating that the defendant has always been compassionate and helpful and conscientious and trustworthy. And he stands ready to reemploy her when she is able to start work. Now these are only a few examples of the many letters that this court has received.
Now, the defendant has a clear record and she is of good character as has been testified by so many around her. The doctors at Siu Lam has said that she no longer in-patient care. The remorse of the defendant is evident in the fact that she chose to still remain in custody up to today in Siu Lam Psychiatric Centre and the defendant’s own letter is a testament to the extreme pain and hurt that she feels at losing her baby.
The probation officers’ report is a very comprehensive one and it shows that she has the support of her younger sister, brother-in-law and her friends and colleagues. And it is clear also that should she be given probation, she will be staying with her sister which will be a good environment for the defendant to get her back into a healthy psychological state.
So in this case, there is no exceptional circumstances to prevent this court imposing a probation order. As Zervos J, as he then was, said in HKSAR v Wong Mei Yi [2015] 2 HKLRD page 1112 and page 1116:
“It is an element of the offence that the balance of the mother’s mind was disturbed because she has not recovered from either giving birth to the child or the effect of lactation on her. It is for this reason that custodial sentences are extremely rare for this type of offence and why probation orders are generally imposed, recognising that the mother needs support and supervision rather than punishment. This will of course depend on the facts and circumstances of the individual case.”
And I cannot put it any better than Zervos J, as he then was. And in this case, I consider it therefore appropriate to sentence the defendant to 2 years’ probation with the condition as mentioned by the probation officer.
In closing, I only wish to say this. As the defendant had expressed in her letter to me, her hope that people would pay more attention to postpartum depression which cannot be taken lightly, I would add that I hope more information and advice should be given to not only the expectant mothers but also the fathers. It is most important that the husband is made aware of the changes wrought on a woman’s body by giving birth and each husband should be made aware of what signs to look out for in case his wife develops postpartum depression. As very often, all the father knows to do is to just tell the wife to relax and not to worry, which fails to recognise the tragic plight of his wife.
I am also encouraged by the fact that the defendant in her letter said that she will do some voluntary work in the future. And I would encourage that because the defendant can be a guiding light for all the women who suffers from postpartum depression, that there is a light at the end of the tunnel and that they are not alone.
And the defendant can stand as a guiding angel to those women and then little Charlotte’s death would not be in vain. So that is all I wish to say on this and I wish the defendant the best of luck for her future.
All right. So I will order a probation order for the defendant, as recommended by the probation officer, for 2 years, with the conditions which has already been explained to the defendant.