CRIMINAL CASE NO. 319 OF 2011
COURT: The defendant, Lin Jun, was charged with one count of infanticide, contrary to section 47C of the Offences Against the Person Ordinance, Cap. 212. She pleaded guilty before me.
The Summary of Facts
The Summary of Facts disclosed that the defendant, who worked as a kindergarten teacher in Shenzhen, met her husband in 2007, and they got married a year later.
The defendant became pregnant and gave birth to a baby daughter, the deceased, on 27 September 2010 in Hong Kong. After the birth of the deceased, the defendant lived at a housing estate flat with her husband and mother-in-law. Her mother-in-law assisted the defendant in taking care of the deceased.
As the defendant suffered from persistent headache and insomnia, her husband accompanied her to the Tsuen Wan Adventist Hospital for treatment. She was referred to the Psychiatric Department and was prescribed antidepressant medication.
Subsequently, the defendant began writing notes to express her frustration in life and her inability to take care of the deceased. The defendant also wrote notes expressing suicidal thoughts.
On the day in question - that is, 22 March 2011 - at about 1.15 pm, a team of police officers saw the defendant loitering along the shoulder of the Kwai Tsing bridge. The police stopped their patrol vehicle and approached the defendant, who then hurried to the other side of the bridge and attempted to climb over the parapet. The defendant shouted she wanted to die.
After the police successfully brought her to safety, they took her inside the patrol car for further inquiry. The defendant then told the police that she had strangled her baby girl to death.
Another group of police immediately went to the defendant’s home to investigate. They found the deceased lying in a supine position on the bed with her eyes closed. The deceased had neither breath nor pulse. Emergency resuscitation was performed on her, and she was sent to the Princess Margaret Hospital by ambulance. She was certified dead at 1.58 pm on the same day.
The police seized two suicide notes written by the defendant. The gist of the notes was that she wanted to bring the deceased to another world. She would then commit suicide. She also apologised to her husband, and asked him to withdraw RMB100,000 from her bank account in Shenzhen to give to her sister.
After the defendant was brought back to the flat, she was arrested and cautioned. Under caution, the defendant admitted she strangled the deceased at about 11.30 am because she felt that she could not bring up the deceased properly. After she killed the deceased, she took a taxi to Kwai Tsing bridge in order to commit suicide. The defendant confirmed her admission later at a video-recorded interview.
The cause of the deceased’s death was manual strangulation.
The defendant was examined by Dr K W Chow, a visiting psychiatrist of the Siu Lam Psychiatric Centre. Dr Chow was of the opinion that the defendant was suffering from severe depressive episode with psychotic symptoms and the onset of her mood problems started during her postpartum period.
According to the expert opinion of Dr Amy Liu, visiting psychiatrist, the defendant was regarded as “being not fully recovered from the effect of giving birth to the child at the time of the killing”.
The Defendant’s Background
The defendant is a married woman aged 35, with no previous convictionin Hong Kong. She was born and raised in the mainland and met her husband when they both worked in Shenzhen. They got married after one year of courtship. The defendant was pregnant, and the deceased was born in Hong Kong. I was told it was a planned pregnancy.
The defendant stayed in Hong Kong after giving birth, and the defendant’s mother-in-law assisted her with the childcare. Rightly or wrongly, the defendant was under the impression that her mother-in-law did not approve of her way of caring for the child, and she took the deceased back to the mainland.
There was no prior history of mental illness. However, about one month after giving birth, when the defendant took the deceased back to Shenzhen, the defendant started to exhibit symptoms of depression. The defendant found the deceased small in size when compared to other babies. She also found it hard to cope with the deceased all by herself. She had fleeting suicidal moments, but she readily dismissed them, as she missed her husband and the baby.
The defendant later returned to Hong Kong with the baby. The defendant’s husband was so concerned about her that he arranged for her to consult a doctor. Although the defendant was given medication, her compliance was poor. The defendant also defaulted treatment as she found the medical fees too expensive.
Finally, on the day in question, she strangled the deceased and was found by the police when she loitered at the shoulder of the Kwai Tsing bridge.
I have a number of psychiatric reports prepared by both Dr Liu and Dr Chow who had repeatedly examined the defendant at the Siu Lam Psychiatric Centre since her remand there. Dr Amy Liu set out the defendant’s background and information she obtained from the defendant’s husband relating to the defendant. Dr Liu related the defendant’s version of the incident, which basically accords with the Admitted Facts.
During the initial period of the defendant’s remand at the Siu Lam Psychiatric Centre, the defendant presented with severe depressed mood, frequent crying spells, psychomotor retardation, intense guilty feeling, auditory hallucination of babies crying, paranoid idea of being stared by other inmates in an unfriendly way, and odd preoccupation that she was ugly.
She was diagnosed with severe depressive episode with mood congruent psychotic features. She was treated with antidepressant, antipsychotic and tranquilliser. Her mental state slowly improved.
During the recent examination on 26 January 2012, the defendant said she felt marked improvement in her mood after taking medication. There were no psychotic symptoms or psychomotor retardation.
Dr Liu is of the view that the defendant is in an early stage of stabilisation of her mental illness. In view of the seriousness of her mental illness and the offence, a longer period of in-patient treatment for consolidation of treatment and rehabilitation is necessary. Dr Liu recommended a hospital order for unspecified period.
Dr K W Chow also set out the defendant’s personal background and her psychiatric history. He also related the defendant’s account of how the offence occurred, which again basically accorded with the Admitted Facts. According to Dr Chow, the defendant was in a poor mental condition at the early stage when she was remanded in Siu Lam. She was depressed, with negative thoughts. Antidepressant antipsychotic medication was given to her, and her mental condition showed gradual improvement.
When she was examined on 17 February this year, no psychotic features such as delusion or hallucination was elicited, and Dr Chow, like Dr Liu, also recommended a hospital order for unspecified period for the defendant.
I was also provided with a report by Dr Barry Connell dated 13 February this year. He is a doctor employed by the defence. Dr Connell gave a much more detailed description of the defendant’s personal background and what the defendant has said as to the events leading up to the incident. I do not think it necessary to reiterate the same here. Suffice it to say that the defendant felt very stressed and helpless after her baby was born.
As to the mental state of the defendant during examination, Dr Connell said that the defendant showed no evidence of her previous psychotically depressed state, indicating a good response to the treatment to date. She harbours no idea of self harm or harm to others.
Dr Connell believed the defendant responded well to her treatment, and he suggested the defendant would likely need no more than six months’ hospital treatment at the current level of intensity to prepare her for non-hospital life and outpatient continuation of treatment, to include monitoring of her future mental state, and Dr Connell was of the view that the defendant posed no risk to herself or others, and he said from a psychiatric point of view, the defendant should be managed in the least restrictive setting available. That was what Dr Connell said in his report dated 13 February this year.
However, after being shown reports of both Dr Chow and Dr Liu, Dr Connell now accepts that the two doctors have been treating the defendant over a period of time and were clearly having the advantage of carefully charting the defendant’s mental state over time. This is in a further report by him dated 27 February. Dr Connell said he was persuaded by the two doctors’ account of the relative instability of the defendant’s depressive disorder since admission, particularly her deterioration in August last year.
Dr Connell accepted that the defendant is only three months into the remission, and the episode of significant deterioration last summer, after initial improvement, warrants a longer period of treatment and monitoring than what he had previously recommended. Dr Connell said given the protection and safeguards afforded to the defendant by her right to the Mental Health Review Tribunal in due course and the greater information available to him, he found it reasonable to accept the recommendation by both Dr Chow and Dr Liu.
In view of what Dr Connell has said in his last report, there is now no need for me to make any finding as to the opinion or recommendation of these three doctors. All three doctors recommended hospital order without specifying any period.
Mitigation
Miss Dee Crebbin, counsel for the defendant, informed me part of the background of the defendant and the tragic circumstances of how she came to commit the offence, knowing full well that I have already read all the reports with the full background on the defendant.
I was informed, however, that although the defendant’s husband was forgiving and supportive of the defendant initially, he has had a change of heart, and he plans to institute proceedings to divorce the defendant, as he found now he could no longer forgive the defendant. No doubt this change of event is very sad for the defendant.
Miss Crebbin informed me that while she has clearly explained the reasons for the recommendation by all three psychiatrists to the defendant, the defendant nevertheless wishes the court to specify the time limit for the hospital order, as she was afraid that she would be locked up forever. The defendant’s fear might have stemmed from her upbringing in the mainland.
The defendant herself has written to me. There are altogether three letters, one in English, two in Chinese. The defendant informed me of her family background and her mindset when she could not cope with motherhood, and she thought there was something wrong with her baby. She is deeply remorseful for what she has done, and asks for forgiveness. She is prepared to bear the consequences of what she has done. She is willing to receive treatment until she is cured so that she can go back to look after her aged father and be a useful member of the society again. She begs for leniency from this court.
The defendant’s father, elder sister, elder brother and her classmates all wrote to me, asking for leniency on the defendant’s behalf. It can be seen from the contents of these letters, as also submitted by Miss Crebbin, the defendant came from a humble family, but she strived to better herself and did very well with her studies and work.
Her family members seem to think that after receiving treatment for one year, the defendant is ready to go back to continue having treatment in Shenzhen. They all ask me to pass a lighter sentence on the defendant.
The defendant requested to speak to me direct, despite the fact she is being represented by Miss Crebbin. As I was aware of the defendant’s concern in relation to the recommendation of a hospital order without specifying any period, I allowed the defendant to speak to me, and I also explained directly to the defendant the position and the reasons for the recommendation.
Sentence
When deciding what to do with the defendant, I am mindful of what Stuart-Moore, Vice-President at the time, has said in the case of HKSAR v Chiu Yu To [2001] 3 HKC 186:
“Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.”
The defendant’s mental illness was, of course, the root cause of her offence here. I also noted in the case of Tsui Chung Leung, unreported CACC414 of 1979, where Sir Denys Roberts, the Chief Justice then, had said the following:
“In our view, it is proper for a court to issue a mental health order without any period being specified therein unless the medical opinion of psychiatric specialists who have examined the patient is to the effect that the patient can confidently be expected to be fit for release within a specified period. If the doctors cannot express this degree of confidence, it is wiser, both in the interests of the patient and for protection of the public, that the order should have no term attached to it. It will then be for the doctors in charge of the patient to recommend his release to the Governor at the appropriate time.”
Of course, that case was in 1979. That is why it was the Governor; now it would be the CE.
Now, as I have already indicated to the defendant after Miss Crebbin indicated to me that the defendant wished to speak to me direct, a hospital order without specifying any period is not to be equated to a life sentence. If the defendant continues to receive treatment, co‑operates with the doctors, complies with taking of the medication, her condition will further improve.
When the defendant is cured, there is no reason for the psychiatrists to keep her in a psychiatric centre. In any event, there exists a safeguard to the rights of the defendant as a mental patient to have recourse to the Mental Health Review Tribunal in due course relating to her detention at the psychiatric centre under our laws.
Clearly, this is a proper case for me to make a hospital order for an unspecified period for the reasons I have already stated. Therefore, for the offence of infanticide, I authorise the admission of the defendant and her detention at the Siu Lam Psychiatric Centre for an unspecified period.