HKSAR v. Gonzales Cherry Ann Carranza

HCCC 142/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 142 OF 2010

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Before: Hon Beeson J in Court

Dates of Hearing: 7 and 11 October 2010

Date of Reasons for Sentence: 11 October 2010 at 9:55 a.m.

Offence: Infanticide (殺嬰)

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty on 7 October 2010 to one charge of Infanticide, contrary to section 47C of the Offences against the Person ordinance, Cap 212. The particulars of the charge were that she caused the death of her child, an unnamed baby boy under the age of 12 months, by her wilful act in throwing him out the window of premises where she was living at the time, but that at the time of the act she had not fully recovered from the effects of giving birth to the child and for that reason the balance of her mind was at that time disturbed.

2.The defendant, a Filipina national, aged 29 years, has been working as a domestic helper in Hong Kong sine November 2003. She had completed two contracts with the same employer and was on the point of starting a third contract. It appeared that she and her employers had a good relationship. The defendant was a college graduate in the Philippines but through lack of work of a type for which she was educated, she had been working as a domestic helper.

3.On 8 November 2009 the body of a newborn baby boy was discovered hanging from a laundry rack outside premises on the 8^th floor of the building where defendant resided in a flat on the 15^th floor. A report was made to police who investigated and at 0108 am on 9 November 2009 the accused answered the door to police and was asked if she knew anything about a newborn baby thrown from a height.

4.The defendant stated “It was me who threw the baby down to the street. At about 6 or 7 am on Sunday I gave birth to a baby in the toilet. It did not move or make any noise. I thought it was dead. I was so scared and I did not know what to do. I threw it out of the toilet window.”

5.The defendant was arrested for the offence of Infanticide and under caution replied, “I threw the baby down”. She was admitted to hospital and examined. The doctor found signs of delivery, but there was minimal vaginal bleeding and no abdominal pain or fever. Based on the date of the defendant’s last menstrual period it was estimated initially that the baby was about 34 weeks and 4 days of gestation at the time of delivery. The defendant was discharged from hospital three days later. She was remanded in custody and has been in custody since 9 November 2009 the day of her arrest.

6.Police recorded an interview with the defendant. She said she had had sexual intercourse in April 2009, but that although her periods had stopped since that time she did not think that she was pregnant because her menstruation in ordinary circumstances was very irregular often at 3 to 4 months intervals and her last period was 11 April 2009.

7.She was not aware the she was pregnant until the baby was born on 8 November 2009. It was her first pregnancy and she said she had had no symptoms prior to that time. Later she told a psychiatrist, Doctor Peter Yu, in answer to his questions, that she might have felt the baby move but put it down to hunger pangs. She had had no morning sickness nor food cravings, she did not put on any weight.

8.On the day she gave birth she said she had no prior signs of delivery. She had what she believed was a stomach-ache which began on the evening of 7 November 2009 and in the morning she asked to see a doctor. At about 6 am or 7 am she felt the need to defaecate and sat on the toilet for a short period. She thought she had defaecated, but she saw a lot of blood in the toilet bowl. She flushed the toilet and it was at that stage that she actually saw the baby. She did not see the baby move or cry and she said she picked up and threw it out the window about two minutes from the time when she first saw it. The defendant did not think of reporting to the police.

Cause of Death of Infant

9.An autopsy was conducted on the male newborn on 9 November 2009. The Forensic Pathologist put the time of death at about half a day before the medical examination which was done at the scene on 8 November 2009 at 1120 pm. The umbilical cord was still attached to the baby’s body but had been severed with an irregular margin at the other end. There were multiple injuries on the body, mainly on the left face and groin areas. The measurements of the body were compatible with a gestation age of about 32 weeks. The Forensic Pathologist considered that having regard to the maturity of the baby, the absence of any signs of intrauterine death and the absence of any congenital abnormality, that the baby was capable of being born alive. The cause of death was given as “multiple injuries” which were consistent with having been caused by the baby falling from a height.

Psychiatrist’s Findings

10.Dr Peter Yu, a psychiatrist engaged by those representing the defendant, examined and interviewed the defendant with the help of a Tagalog interpreter, over the course of 1½ hours. He read the indictment, the committal bundle, an instruction letter and other correspondence. He viewed the photographs. Subsequently he prepared a detailed report which was produced to the court.

11.He considered that the unconscious mind of the defendant had repressed the possibility of her being pregnant from her conscious mind. This was not denial but a mental protective mechanism, which ensured against her having a nervous breakdown.

12.The defendant had not considered that she might be pregnant, particularly in the absence of more obvious symptoms such as morning sickness, or swelling of the abdomen. Her employers had not noticed any unusual mental changes or any physical indications of pregnancy prior to the delivery. On the evening of 7 November 2009 when the defendant went into labour she thought simply that she had a stomach-ache and she took painkillers to deal with it. Only after the infant was born did she realise she was pregnant.

13.The infant was not carried to term and weighed only 1.33 kg. As it was covered in blood at the time of delivery the psychiatrist considered that it would appear to be very different from any previous concept of a baby that the defendant might have had. She told Dr Yu she did not know whether the infant had delivered head or feet first. She said that she did not see the baby move or hear it cry and thought it was dead. She said her sight was blurred and she started to shake – she was very scared. Shortly thereafter, feeling very frightened, she threw the infant out the bathroom window. She did not know how the umbilical cord was severed.

14.Despite her college education, the defendant did not appear to be very sophisticated, nor did she appear to have more than rudimentary knowledge about conception and childbirth. She did know who the father of her child was, but at the time she became pregnant she was not in a long-term relationship with him – nor was there any real prospect of that relationship developing further.

15.Dr Yu was of the view that at the time of the alleged offence, which was within an hour after the delivery, the balance of the defendant’s mind was disturbed because she had not fully recovered from the effect of giving birth to the baby. She had suffered severe physical and mental exhaustion. She had lost a lot of blood and suffered a lot of pain. Her body was traumatized from the effects of a vaginal tear.

Consideration of sentence

16.In considering sentence infanticide falls to be sentenced as for manslaughter offences and similarly to manslaughter presents particular difficulties on sentencing as the degree of culpability is highly variable and the range of sentence is very wide. It is difficult or impossible to set a starting point for sentences of imprisonment and the entire range of non‑custodial sentences is available depending on the facts of an individual case.

17.Mr Keith Oderberg, of counsel, who represented the defendant has referred me to a comparable case where, on very similar facts, Wright J imposed a Probation Order. Ms Laura Ng who appears today for the Secretary for Justice was involved in that case before Wright J. (HKSAR v Lee Yin Ling, HCCC 293/2008)

18.I was advised that in the course of Wright J dealing with sentence in Lee Yin Ling, defence counsel referred the court to a case R v Sainsbury (1989)11Cri App R (5)533 which showed that in the UK for the 10 years up to 1989, of 59 cases of infanticide which were recorded as having been dealt with by the courts none attracted a custodial sentence.

19.In four cases of infanticide in Hong Kong since 2002, now five if one includes that case sentenced by Wright J, four were made the subject of probation orders and one by the woman being sent back to her home country.

20.After hearing mitigation I adjourned this case so that I could consider the circumstances of the offence and review the psychiatric report with a view, possibly, to obtaining a psychologist’s report before sentence. Having read the psychiatric report I do not consider that a psychologist’s report would provide any additional assistance in this case.

21.Dr Yu has confirmed that the defendant has no psychiatric problems and is not in need of psychiatric treatment. In the ordinary course of events I would consider following what appears to be a well-trodden path and impose a probation order, but the defendant has been here in Hong Kong since 2003 only because she was working as a domestic helper. Without such a contract she has no right to stay in Hong Kong. Not unnaturally in the aftermath of this tragic incident she wishes to return to her home and family in the Philippines.

22.While technically it might be possible to impose a probation order, its effect would be rendered nugatory as the supervising officer would be unable adequately to fulfil the requirements of the order for supervision on a probationer who is resident in the Philippines or indeed anywhere else outside Hong Kong. The court should not make pointless or hollow orders of this nature.

23.I also considered imposing a short sentence of imprisonment and then suspending it, but I am of the view that a suspended sentence is not appropriate in this type of case, even if a sentence of imprisonment were desirable or proper. The defendant has been remanded in custody since her arrest on 9 November 2009, a period of almost 12 months. After taking into account the usual discount for a plea of guilty the defendant can be regarded as having served the equivalent of an 18-month sentence of imprisonment, or a longer sentence than that if one takes into account the discount for good behaviour given whilst a person in custody.

24.Taking into account the plea of guilty, all the circumstances of the offence, the personal details of the defendant and the findings of the psychiatrist I am of the view that this matter can be dealt with properly by imposing a sentence of imprisonment of such length as to allow this defendant to be released immediately from prison. Accordingly I impose such a sentence.

Ms Laura Ng, SPP, for the Director of Prosecution, for the Applicant

Mr Keith John Oderberg, instructed by Messrs Knigh & Ho, assigned by DLA, for the accused