The defendant was originally committed for trial and indicted on one count of manslaughter. However, prior to the Case Management Hearing on 8 February 2024, Mr Mitchell, counsel on fiat, in his customary fairness, wrote to court and informed that, for reasons which I will come to in due course, the prosecution was prepared to accept a plea to the statutory alternative charge of concealing the birth of a child, contrary to section 48 of the Offences against the Person Ordinance, Cap 212, in satisfaction of the indictment. The proposal was confirmed as agreeable by Mr Ma and with him Ms Or, counsel for the defence, at the Case Management Hearing.
This court, having heard counsel and having considered the provision of section 47D of the Offences against the Person Ordinance, was satisfied that the proposal was a proper course to be adopted in this case. As a result, on 5 April 2024, the defendant pleaded not guilty to manslaughter but guilty to concealing the birth of a child before this court. After the defendant’s admission of the Summary of Facts prepared by the prosecution, she was convicted accordingly. In order to learn more about the defendant and her family background and out of abundance of caution, this court adjourned the defendant’s sentence pending her probation report. The defendant was warned, however, that all sentencing options were open.
Facts
I am not going to repeat in full the facts which have been set out in the Summary of Facts. Shortly stated, the defendant, who was aged 21 at the time, was living with her mother on the second floor of a village house on Lantau Island. In the small hours of 1 February 2020, inside the toilet of the village house, the defendant gave birth prematurely to a daughter (the “deceased”) with an estimated gestation age of 28 to 32 weeks. Following the birth, the defendant threw the deceased out of the toilet window and the latter landed in an alleyway between the premises and an adjoining village house. At about 10.30 am, a passer-by discovered the body of the deceased. A report was then made, which led to the defendant’s arrest.
Under caution, the defendant told the police, among other things, that she worked as a part-time receptionist at a playground in Tai Kok Tsui where she came to know a Pakistani male (“M”). In mid-July 2019, the two of them had sex and several weeks later the defendant discovered that she was pregnant. She spoke to her superior at work about it but not to her mother. In early September 2019, the defendant went to North Lantau Hospital after suffering abdominal pain and was advised about the legal time limit for having an abortion. However, she had not decided whether to keep the child and she returned to the Philippines to visit some relatives instead. In October 2019, the defendant made a second visit to the North Lantau Hospital after noticing some bleeding from her vagina. She was advised to be admitted to Princess Margaret Hospital for follow up. However, she discharged herself without being admitted and against medical advice for the fear that her mother would become aware of the pregnancy. Then, there was a third visit to the North Lantau Hospital in December 2019 and again the defendant refused to take the medical advice of a follow up.
According to the defendant, eventually at some time past 3 o’clock in the morning on 1 February 2020, the defendant, having sat on the toilet bowl for about 10 minutes, gave birth to the deceased. It was a vertex presentation, that is, head first, and upon delivery the deceased dropped head first into the toilet bowl. However, the deceased did not cry or give any response. The defendant, having washed herself, cleaned and washed the deceased. The latter, however, remained unresponsive. Thus, the defendant checked the deceased for a heartbeat but could not feel any. As a result, she wrapped the deceased in a piece of clothing (the “Blouse”) and disposed of the latter through the toilet window. The defendant knew she had done wrong, but she had not called for an ambulance as her mind was blank. She did not think such act would harm the baby as she believed it was dead.
The forensic pathologist, who conducted a post-mortem on the deceased, noted that there was no evidence to suggest that there had been spontaneous breathing after birth since the lungs showed insufficient expansion of air entering into the lungs. However, this did not exclude shallow breaths. On the other hand, the autopsy showed head injuries, including scalp bruising, skull fracture, facial bruising, subdural haemorrhage, subarachnoid haemorrhage, pulmonary haemorrhage, heart and kidney haemorrhage that accounted for the deceased’s death. It was opined that the presence of the above injuries suggested presence of blood circulation at the time when they were inflicted. Therefore, it appears that the cause of death was multiple injuries.
Based on the above evidence, the defendant was charged with manslaughter in that she was grossly negligent in not seeking medical or other assistance after the birth of the deceased. However, upon further clarifications sought by the prosecution, the forensic pathologist opined that even had the defendant exercised due care and called for an ambulance, it is likely that the deceased would have died before receiving medical intervention. Moreover, the forensic pathologist could not rule out the practical possibilities that the deceased was either stillborn, that is, death at birth, or that she was already dead when she was thrown from the window. In short, there was insufficient evidence to prove that the defendant had caused the death of the deceased.
On the other hand, the defendant accepted that she intentionally concealed her pregnancy and the birth of the deceased from her mother, who remained unaware of the same until the police conducted investigation. On this basis, the prosecution accepts the defendant’s plea to the alternative charge of concealing the birth of a child.
Antecedent
The defendant was born in the Philippines where she completed her high school education. The defendant had attended the first year of a bachelor programme in a college in the Philippines in 2016. According to the probation report, the defendant’s parents had separated. In 2017, the defendant came to Hong Kong and lived with her mother and her younger sister whilst her father and her elder sister remained in the Philippines. Between 2017 and 2020, the defendant has successively worked as receptionist in playgrounds and customer care representative in a fitness centre, during which time, she studied part-time and obtained a Diploma in Fashion Drawing, Pattern Cutting and Dressmaking.
The defendant was aged 21 at the time of the offence and is now aged 25. The defendant has no previous conviction.
Probation Report
I am given to understand by Mr Ma that the probation report has been explained to and agreed by the defendant and the defendant agrees to the recommendation made therein. The probation officer is of the view that it is likely that the offence occurred due to the defendant’s avoidant attitude towards seeking help, poor problem-solving ability under stress and lack of legal knowledge as to how to deal with the corpse of the baby. The probation officer says that the defendant showed remorse and had learned a bitter lesson. She deeply regretted disappointing her mother and felt immense guilt towards her baby. A counselling-oriented probation order for a period of 12 months is recommended as likely to be conducive to the defendant’s reform.
Sentence
As previously mentioned, it is a feature of the present case that there is insufficient evidence to prove that the defendant had caused or in any way responsible for the death of the deceased. It is on this basis that the defendant has to be sentenced. The offence of concealing the birth of a child carries a maximum sentence of 2 years’ imprisonment and is summary in nature. There is no sentencing tariff for this offence and the appropriate sentence would depend on the facts of the case and the circumstances of the accused. I noted that before the defendant was granted bail on 21 June 2022, she had been detained in custody for 22½ months.
As to the gravamen of the offence, I am of the view that the government no doubt has a legitimate interest in being informed of the birth of a child within the region. More importantly, a new-born baby is most vulnerable in that it depends entirely on others, especially its parents, for survival. Concealment of the birth of a child gives rise to the attendant risk that the child may not receive the proper and adequate care, sustenance, provision and protection, which are all necessary for its survival. There is also the risk that a child may become the victim of human trafficking.
And in case the baby was dead, the concealment of its birth might result in the baby not having a proper burial. It might prevent the authorities from looking into the cause of death.
I have considered the two sentencing cases, namely, HKSAR v Grado Aileen Ongcoy, DCCC 33/2017, and HKSAR v David Maribel Hernandez, DCCC 429/2016, referred to by the prosecution in both of which a term of imprisonment was imposed for a charge of preventing the lawful burial of a baby, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. However, I do not find those cases very helpful for the present purpose for the following reasons:
(1) they are not binding on this court, and
(2) whilst those two cases bear some factual similarities to the present one, I note that the Common Law charge is indictable and carries a maximum sentence of 7 years’ imprisonment. This is in contrast to the present case, which is summary in nature, carrying a maximum imprisonment term of 2 years.
For this reason, cases of concealing birth of a child are routinely dealt with in the Magistrates’ Courts. Besides, there are also case authorities for the proposition that the offence under consideration is not regarded by the legislature as being serious. See, for example, R v C [1998] 98 A Crim R 531.
(3) The accused in the District Court cases were both mature adult women with children and they were very different from the defendant now before me.
I accept that at the time the defendant was similar to the accused in HKSAR v Lee Yin Fong, HCCC 293/2008, young, unsophisticated and with limited coping skills. In order not to let her mother know about the pregnancy, the defendant foolishly refused to seek any help, medical or otherwise, and therefore placed herself in a situation of desperation. Whilst the defendant’s conduct might have resulted in the deceased not having a proper burial as a person, I accepted that that was not the defendant’s intention. Otherwise, she would have disposed of the body of the deceased in a more secretive way. But rather I find that the defendant just reacted in panic and did not think carefully as to what should be done. And similar to the case of HKSAR v Wong Mei Yi [2015] 2 HKLRD 1112, although the defendant might have behaved immaturely and irresponsibly, she was under the stress of birth. She needed help, not prison.
I give full weight to the probation report. I accept that the defendant now realises that she had done wrong. I trust that Mr Ma has said all that could be said on the defendant’s behalf. Whilst I do not rule out a conditional discharge order as a sentencing option for this type of offence, I consider that an individualistic approach for sentencing should be adopted for this type of offence and I do not accept that it is an appropriate sentencing option for this defendant. I note that the defendant has already been in custody for almost 2 years, which is the maximum imprisonment term for the offence. Although that period of detention is not strictly speaking a term of imprisonment, I believe that the defendant has been punished enough for her misdeeds. I also believe that the trauma of the incident would be with her for the rest of her life. I accept what is said in the probation report that the defendant needs counselling to help her to reform.
Therefore, I sentence the defendant to probation for a period of 12 months with the following conditions:
(i) the defendant shall be of good behaviour and keep the peace;
(ii) the defendant is to keep in touch with the supervising probation officer;
(iii) the defendant shall reside with her mother and shall remain at the place of residence every night from 12 midnight to 6 am in the next morning unless with the prior approval of the supervising probation officer;
(iv) the defendant shall receive scheduled unannounced visits from the supervising probation officer at her place of residence as and when the officer sees fit;
(v) the defendant shall study or work as agreed by the supervising probation officer;
(vi) the defendant shall participate in such rehabilitation groups/programmes and activities the supervising probation officer deems conducive to the defendant’s rehabilitation as directed; and
(vii) the defendant shall receive such counselling session and, if the supervising probation officer considers necessary, together with the defendant’s mother, as arranged by the supervising probation officer.
Now, defendant, I ask you again whether you agree to the above conditions.
ACCUSED: Yes. Yes.
COURT: All right. The defendant confirms that she agrees to the above conditions.