HKSAR v. BAILEY NATASHA MWALE

HCCC 215/2018

[2019] HKCFI 885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 215 OF 2018

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(1) REASONS FOR RULING ON VOIR DIRE

(2) REASONS FOR RULING ON ADMISSIBILITY
OF ASPECTS OF PATHOLOGIST’S REPORT

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INTRODUCTION: THE CHARGE

1.  On 13 February 2019, Bailey Natasha Mwale (“the Accused”) was arraigned on an amended charge of charge of manslaughter.  The particulars of the charge are that on or about 17 October 2017 at Wan Chai, she unlawfully killed an unnamed baby girl.

2.  To that charge the Accused pleaded not guilty.

3.  Two issues have arisen for consideration and which have required decisions by the Court.  The first is the admissibility of the admissions against interest attributed to the Accused and recorded by the police on various dates.  The second issue is whether I ought to direct the exclusion of a passage in the forensic pathologist’s report because it is either irrelevant or because the prejudicial effect of this passage outweighs its probative value.

VOIR DIRE — ADMISSIBILITY OF STATEMENTS

4.  The case for the prosecution is that the Accused made a series of admissions against interest to the police on the date of her arrest and subsequent days.  The prosecution seeks to produce those admissions at trial. The Accused challenged the admissibility of these admissions.  A voir dire was conducted.

5.  On 12 February 2019, following the voir dire, I ruled on the admissibility of certain admissions against interest made by the Accused. At　that time, I indicated that at the conclusion of the trial I would give my reasons for that ruling.  The precise terms of the ruling now form the paragraphs which immediately follow the heading “Ruling: Admissibility of admissions against interest” herein.  What follows are my reasons for giving that ruling.

Why reasons

6.  Speaking generally there is no obligation to give reasons for a ruling determining the admissibility of admissions against interest.  However,the Court of Appeal in HKSAR v Okafor [2012] 1 HKLRD 1041, [2012] 1 HKC 427 held that there will be occasions when it is both necessary and just for reasons to accompany the ruling.  As the Court of Appeal held in HKSARv Okafor (above):

“ The reason should be clear either from what has transpired in the court of trial during the canvassing of the issues, from the nature of the issues themselves, from the evidence or a combination of these; or, indeed, from a reasoned ruling. This means that if the basis of the tribunal’s determination is clear from the circumstances as revealed by the record, there is no need for the provision of reasons; for in such a case the tasks of the adviser and of the appellate tribunal are not obstructed. If the basis for the decision is not clear from the circumstances—which include the evidence, the nature of the challenge, exchanges in the course of the proceedings—then reasons should be provided, otherwise the convicted defendant is effectively deprived of his right of appeal in relation to a material issue in the case.”

As the Court of Appeal noted in that case there are a number of examples of cases which might call for reasons.  These include:

(1)  Where a real issue arises for the exercise of discretion;

(2)  Where the decision turns upon a somewhat difficult or novel issue of law;

(3)  Where there is material and obviously inconsistent or contradictory testimony on an important issue;

(4)  Where a judge finds that there has been some improper behaviour on the part of the investigating authorities but that nonetheless the statement is voluntary; or

(5)  Where an earlier statement against interest is ruled inadmissible or is excluded in the exercise of the tribunal’s discretion but a later one is admitted.

I consider that it is appropriate to give reasons for my decision.

Statements or admissions against interest

7.  The evidence in the present case reveals that on four occasions the Accused made admissions to the police.  They are as follows:

(1)  admissions made orally by the Accused to WDPC 8600, Ms Wu Yuen Man on 18 October 2017 at a room at a boarding house known as the Check Inn in Wan Chai (“the oral admissions”);

(2)  admissions made to WDPC 8600 inside the Admission Room of the Obstetrics & Gynaecology Department of the Queen Mary Hospital at about 10:24 pm on 18 October 2017 and ending at 12:25 am on 19 October 2017 (“the first statement”);

(3)  admissions made to Detective Senior Inspector Cheng Ki Feng on 19 October 2017 in company with WDPC 6665 at 4:55 pm and concluding at 8:55 pm on the same day.  The interview was taken at Room EPAC at the Obstetrics & Gynaecology Department at Queen Mary Hospital (“the second statement”); and

(4)  admissions made to Detective Senior Inspector Cheng Ki Feng and WDPC 8600 at the Wan Chai Police Station at 12:24 pm on 20 October 2017 and concluding at 1:30 pm on the same day (“the third statement”).

The Court was informed that the prosecution does not seek to place before the jury the oral admissions.  Those admissions are, nevertheless, relevant in understanding the process by which the first statement and to a lesser extent,the second and third statements came into being.  The circumstances which existed at the time of the making of the oral admissions are, for the reasons which will shortly appear, highly relevant to aspects of my decisions as to the admissibility of the first, second and third statements.  

8.  Written particulars of objection to the admissibility of the admissions were given by counsel for the Accused.  The essence of those objections is:

(1)  the answers given by the Accused were not voluntary;

(2)  the three statements were conducted in circumstances amounting to oppression and unfairness; and

(3)  the second and third statements breached Rule IV and Direction 1(c) of the Secretary for Security’s Rules and Directions.

Further specifics of those essential objections were outlined in the written notice of objection.  I take the reference in the written objections to the “3 statements” as a reference to the three written statements.

Case for the prosecution

9.  In support of its case for the admission into evidence of the admissions against interest identified earlier in these reasons, the prosecution called five witnesses.  Those witnesses were WDPC 8600, DSI Cheng together with a nurse and two doctors who were concerned with the treatment of the Accused when she was taken to hospital.  Rather than summarising their evidence individually, I propose to deal with their evidence in relation to each individual admission.  While there are common bases for objection, there are considerations which are germane to individual admissions and this appears to be the simplest way to identify the issues and resolve them.

The oral admissions

10.  WDPC 8600 testified that she was briefed that at about 7:15 am on 18 October 2017, a baby had been found at a place somewhere near Hennessy Road and Tonnochy Road in Wan Chai.  She was informed that the baby was dead and the police were investigating the circumstances.  This officer was given a description of the person who was believed to have placed the baby at this location and she went to the Check Inn in Wan Chai as part of those investigations.  She came across the Accused in those premises and at some stage showed her warrant card to the Accused.  The Accused met the description.  There is, in any event, no dispute as to identity.

11.  The Accused and WDPC 8600 spoke to each other in English.  WDPC 8600 asked to see the passport of the Accused which was shown to her.  She asked the Accused why she was in Hong Kong and the Accused told her that she was waiting for a visa go to Australia.

12.  The officer was interested in some clothing which she believed had been worn by the person seen on CCTV and she asked the Accused about that.  The upshot of her enquiries was that the Accused told her she thrown away the dress that she had formerly been wearing. She told the Court that the Accused said to her “I born the baby in the toilet, the baby die, I throw it away in the rear Lane.”

13.  WDPC 8600 said that she then arrested the Accused. She declared arrest in English alleging that the Accused had committed infanticide.  Following the arrest, the Accused was searched and taken to Wan Chai Police Station.  At the scene in the Check Inn, WDPC 8600 told the Court that she did not caution the Accused then and there.  She said that she felt that her English was not good enough for that purpose and that she would wait to administer the caution when she had the assistance of an interpreter.  She agreed that at this stage in the Check Inn she had a sufficient basis to arrest the Accused and that she had the obligation to caution her.  The officer said that she and the Accused arrived at the Police Station at 5:07 pm. 

14.  At the police station, WDPC 8600 showed her exhibit PP 31 which is a Notice to Persons in Police Custody or Involved in Police Enquiries. This document was given to the Accused and sets out some of her rights while in police custody.  As with all notices of this kind issued to the Accused,the notice makes no reference to perhaps the most important right: that an accused person has in this context: the right to silence.  The case for the prosecution is in relation to the right to silence that in each of the three written statements that right was communicated both orally at the commencement and then by means of inviting the Accused (which invitation was accepted in each case) to write out a declaration which, if understood by the Accused restates right silence.  The document was issued at 5:15 pm on 18 October 2017 and the Accused signed on the document to acknowledge that she had read it at 5:25 pm on that date.  The police officer also signed.

15.  WDPC 8600 described the demeanour of the Accused at this stage as very calm.  She said that just by looking at her she did not appear to be feeling unwell.  The Accused was given in to the custody of the Duty Officer at Wan Chai Police Station.  This was done at 5:26 pm.  The officer learned that shortly after that, the Accused had been taken by ambulance to Queen Mary Hospital.

The first statement

16.  When the Accused went to the hospital, she was seen by Dr Lam Ka Mun in the Accident and Emergency Department of Queen Mary Hospital. She saw her at about 7 pm.  She examined the Accused and observed that she had given birth.  She observed some vaginal discharge.  She prepared a brief report which is exhibit P 60.  Dr Lam admitted her to the Obstetric & Gynaecological ward of Queen Mary Hospital.  She indicated that from her standpoint it would have been inappropriate for her to give a stick certificate and that the appropriate course was management within a ward in the hospital.

17.  WDPC 8600 went to the hospital in the company of an English interpreter at around 9 pm.  The officer went to the Obstetrics & Gynaecology Ward.  She was armed with a memorandum from the police which reveal that it was requested that the Accused be interviewed.  The memo is PP 77.  The memo was presented to the nurse who appeared to be in charge and a request was made to interview the Accused.  The Accused met the officer at the admission room of the Obstetrics & Gynaecology Department Ward.  An interview took place commencing at 10:24 pm on 18 October 2017.

18.  WDPC 8600 then proceeded to take a statement which appears to be a hybrid of a post-record of what had earlier occurred and a record of interview. Pausing there, the “post-record” and “record of interview” are pieces of police jargon which are commonly employed.  I mention that because the document on which the record of exchanges between this officer and the Accused is entitled “Record of Interview”.  This was the subject of some cross examination.  It seems to me to be supremely irrelevant whether it was a “post-record” or a “record of interview”.  What is important is whether the Accused was appropriately cautioned, whether, if so, the Accused understood the caution, whether the record thus taken was an accurate and fair representation of what she said and whether in all the circumstances she was able to make an informed choice as to whether to speak or to remain silent.  In short, the finer points (assuming there be any) of the distinction between the two processes is a matter of complete indifference to me and I cannot imagine that, to the extent there are differences, those had any impact on the Accused at all.  The procedure records that WDPC 8600 said to the Accused that she had arrested her for infanticide because she gave birth to a baby last night.  The document records that after that declaration of arrest the Accused said “I born the baby in the toilet, the baby die, I throw it away in the rear Lane.”  The officer testified that in the hospital, the Accused was then cautioned.  The caution is in classical form save to say that it should have said that whatever is said will be put into writing and may be given in evidence.  Be that as it may, the statement also has a record of the Accused writing out a declaration which, if understood by the Accused reinforces the delivery of the caution.  The writing assumes a great significance in the light of the testimony of the Accused which I will outline later.

19.  During the exchanges that followed, the Accused was informed for the first time according to the record that at 7:15 am on 18 October 2017 a woman had found a baby in a polyfoam box next to a rubbish bin at the junction of Hennessy Road and Tonnochy Road and the baby was taken by ambulance to hospital and was found to be dead.  There then followed a series of questions and answers about the personal background of the Accused and the circumstances of the birth of the child.  There are also a series of questions about the disposition of the baby.  At the conclusion of the statement the statement records that the Accused was shown what are now standard police declarations an accused was invited to copy on the record.  This was done by the Accused.  The declaration records that she has been invited to correct etc anything and that the statement is true.

20.  WDPC 8600 and the Accused both appended their signatures on each page and after each question and at the end after the declarations.

21.  It was the testimony of WDPC 8600 that she believed that the Accused was fit to give the interview.  That was her own view and she also believed that she had been given clearance by the doctor in charge of the treatment and management of the Accused in the Obstetrics & Gynaecology Ward to conduct the interview.  She did not speak to the doctor herself but drew the inference that such clearance had been given because the Accused was led into the room where the interview took place by a nurse and it was her experience that this carried with it the implication of medical clearance.  In the event, she was wrong about that.  I do not criticise her for believing she had medical clearance. It was a reasonable inference for her to draw.  Her belief, sincere though I find it to be, does not answer the question as to whether the Accused was fit to participate in an interview.

22.  The nurse in charge, Ms Leung Man Yee an experienced Registered Nurse who was the 3^rd prosecution witness, had taken it upon herself to give the permission.  Ms Leung said that while she had given permission for the interview, she was not clear about the proposed length of the interview.  She did tell the Court that had she been aware that the interview was to last as long as two hours that perhaps she might have consulted one of the doctors on duty.  Nevertheless, she considered that the Accused was, to use her words, suitable for taking a statement.

23.  At the time of the interview it appears that the hospital was aware that the haemoglobin count of the Accused was low and it was intended to give her a transfusion.  The hospital records suggest that she was to be given 2 units of blood product.

24.  Ms Leung testified that she would normally check on patients about once every 30 minutes and her recollection is that she checked on the Accused about 30 minutes after the police left.

25.  The transfusion itself was about 2 or 3 hours later.  Indeed, this can be seen on the hospital notes produced by the Accused.  The transfusion appears to have started at 2:50 am on 19 October 2017.  It appears from the hospital notes that the transfusion did not occur all at once and that the second part of the transfusion commenced at 10:05 am on 19 October 2017.  Possibly the explanation for that can be seen in the entry for that day where it appears that no allergic reaction occurred.  Hospital notes revealed that by 7:30 am on 20 October 2017 the haemoglobin had gone from the level of 5.6 up to 8.6.  By 10 am on that date the hospital notes reveal without apparent irony that the Accused was “Allowed home”.  The Accused was prescribed a course of ferrous sulphate for her anaemia.  That course was to last of the order of 6 to 8 weeks.  On discharge on 20 October 2017 she was also given some paracetamol for pain management.

26.  The prosecution also called Dr Ma Wai Sze who was a specialist gynaecologist and who was one of the team of doctors who treated the Accused in hospital.  She produced a medical report exhibit P 60A.  Her opinion was that the size of the uterus of the Accused suggested a 16-week gestation period but she said that this was an inexact science.

27.  In the course of her testimony, Dr Ma was asked about women who became mentally unbalanced following giving birth to a baby. She said that she was familiar with this but it was comparatively rare.  She said she had had patients like that on occasion.  She said that such patients would manifest emotions such as crying and would sometimes be incoherent in their speech.  She indicated that such patients might also suffer from sleep deprivation.  She was specifically asked whether she observed any manifestation of a mental abnormality in the Accused she said that her observation was no and she noted that none was recorded in the hospital notes. 

28.  During the course of cross-examination, Dr Ma was asked about whether the Accused would need sick leave following her treatment.  In particular she was asked whether she thought that the Accused was fit for a job where that involved deep and intense concentration.  Dr Ma indicated that this would be no problem.

29.  One feature of the first statement is the assertion that it was read over and the Accused was given the opportunity to read over the statement.  Indeed, there are declarations in the hand of the Accused to reinforce this.  If it was true that the Accused read over statement and had it read over to her,while it may not affect the outcome of the admissibility of specific statement,it is capable of having the effect of reinforcing in the mind of the Accused that she had a right to silence because the reading to her and the reading over by herself is capable of having that effect.

The second statement

30.  The second statement was taken by DSI Cheng.  This occurred on 19 October 2017 at 4:55 pm and continued until 8:55 pm.  DSI Cheng went to the hospital with WDPC 6665.  By this stage, the Accused had been in the hospital and under the care of the staff of the hospital for around 24 hours.  According to the staff she had been fed and at least the first transfusion had been completed.  Indeed, on the basis of the hospital records tendered on behalf of the Accused by 6 pm on 19 October 2017 the haemoglobin levels of the Accused had risen as high as 8.6.  (That is to be contrasted with the haemoglobin level at discharge which was recorded at 8.7.)  That level is recorded against the time of 10 am on 20 October 2017.

31.  DSI Cheng told the Court that the Accused was brought to a room with the designation EPAC.  The Accused was brought into that room by a nurse.  He gave her a further Notice to Persons in Police Custody or Involved in Police Enquiries.  That document is exhibit P 46.  It was given to the Accused at 4:46 pm and the Inspector testified that it was read by her and she signed at 4:54 pm.

32.  The interview was conducted in English.

33.  DSI Cheng testified that he was alert to the issue of the condition of the Accused.  He testified that he did ask the Accused whether she was okay.  She indicated to him that she was.  DSI Cheng accepted that nowhere in the record of interview nor in his witness statement had he made a record of this.

34.  Page 2 of the record taken by the Inspector reveals a caution.  After the caution appear the words “Do you understand?  If you understand,please sign for confirmation afterwards.”  No signature appears following that but it may be significant that on the same page at the bottom the Accused wrote the following in her own handwriting.  She wrote:

“ I, Natasha Mwale Bailey, wish to make a statement. I want somebody to write down what I say. I have been told I need not say anything unless I wish to do so and that whatever I say may be given in evidence.”

Then the signature of the Accused appears immediately after that.

35.  The interview then preceded by way of questions to ask about her personal background.  The Accused was then asked about her sexual relations and the identity of her former boyfriend.  The Accused then described how she became aware of her pregnancy.  She then described how she came to Hong Kong and where she lived.  She then described the process of giving birth.  Following that description, she described the process of disposing of the baby.

36.  Following the 59 questions and answers she was invited to read over the statement and correct anything she wished to do so.  The statement includes declarations written in the hand of the Accused.  The statement was tendered as exhibit P 47.

37.  DSI Cheng testified as to the signatures appended by the Accused and himself on the document.  He told the Court that there was the odd mistake in the document and both his initials and the initials of the Accused were placed against the corrections of those mistakes.  When the process was finished, DSI Cheng made a photocopy for the Accused and the Accused acknowledged receipt of the copy.  That can be seen at exhibit P 68.  The officer rejected the proposition that the preamble of the statement where it refers to the baby being “thrown” away was designed to prejudice or oppress the Accused.  The officer said that he was told the case details in Chinese and this was his own translation into English.  It was also suggested that much of the questioning was unnecessary as it had been covered by the earlier interview which had been conducted by WDPC 8600.

38.  It was also suggested to DSI Cheng that he had conflated a number of questions and answers and that he had converted some of those into police jargon.  In the latter case, the example of using 24-hour time as opposed to what some might call ordinary time features in the interview.  It was part of the cross examination that the more accurate version of how the baby was disposed of was that it was “put” in the rubbish container as opposed to “thrown” away.  It nevertheless was suggested that by using the word throw or thrown, the inspector was trying to oppress the Accused.

The third statement

39.  The third statement was taken at the Wan Chai Police Station after the Accused had been discharged from hospital.  The statement reveals a caution administered to the Accused and questions about the course of giving birth to the baby.  It also deals with the disposition of the baby in Wan Chai.  The usual opportunity to alter, correct or amend the statement was accorded to the Accused at the conclusion.  It also includes the usual declarations.

The defence case

The Accused

40.  The Accused testified in the voir dire. It is appropriate to observe that throughout her testimony the Accused presented as an articulate and intelligent woman.  She speaks English as her first language.  She was born in 1994.  She told the court that she was born and raised in Zambia.  In 2013 she went to China and studied Chinese language and then economics.

41.  In 2017 she formed a friendship with a man in Shanghai and believes that she became pregnant by him.  She came to Hong Kong in 2017. The purpose of her visit was to apply to the Australian authorities for a visa to go to Australia.  She told the court that her parents had emigrated to Australia. 

42.  When she came to Hong Kong she had some resources for accommodation but because of the time of the year—commonly known as Golden Week—her resources soon ran out and it was dependent on the assistance of friends and her mother resources.  She was also pregnant and approached Mother’s Choice and the Po Leung Kuk for assistance in that regard.

43.  By 15 October 2017 she was in a very poor financial situation.  She had been, in effect, tossed out of her accommodation at the YesInn but was able to leave her suitcase there.  The leaving of the suitcase becomes of great importance later in this narrative.  On the night of the 15^th, she stayed in a McDonald’s.  There happened to be a typhoon on that occasion and she was awake all night.  She ate at the McDonald’s at the evening of 15 October.  She arranged to stay at the Check Inn and on the receipt of funds from a friend was able to check in in the afternoon.  This particular establishment appears to provide dormitory-style accommodation and she was able to get in the mixed dormitory room after her friend paid online for the accommodation. 

44.  The Accused told the court that she did not eat on the 16^th or 17^th.  She wanted to go to the YesInn to retrieve her suitcase.  While she was in the Check Inn she said that she began experiencing stomach pain and the discomfort associated with diarrhoea.  The pain became worse and she suspect she might be in labour she used the online assistance of Google to try and locate a hospital.  Her problem was that she had $70 at the time and she thought she would have to pay for medical treatment.  She gave birth in a toilet.  She wrapped up the baby and decided to leave the accommodation to try to get to a hospital.  She said that in this regard she was able to walk.  She said that at the time she was lightheaded and nauseous and described impact as feeling like she was walking sided.  When she exited the building where the Check Inn was located she turned right the road.  In the upshot she went into an alley where she sat down and I infer that she proceeded along the alley and got to the main street.  Plainly, this Main Street was Tonnochy Road.  The map which was produced by the parties reveals that the alley runs from Stewart Road in approximate parallel to Hennessy Road and ends up at Tonnochy Road.

45.  The Accused says that as she got to what she characterises the Main Street, panicked and turned back.  She said she was scared and did not know what to do.  As a result, she placed the baby in a rubbish bin.  She then left and went to get her suitcase which he had left at the YesInn which was, so she said, about 10 minutes walk from there.  She told the court that it took her considerably longer than 10 minutes to walk distance to the YesInn in her condition.  She then took the suitcase those premises and returned to the Check Inn the suitcase was on wheels and so she dragged it all that way.

46.  Later on, a police officer came to her.  The first police officer was a uniformed officer and this was in the morning of the 17^th.  That officer left.  Later on, WDPC 8600 attended at her room. The Accused told the court that she was then arrested but specifically denied that she had used the words “I born the baby and threw it away.”  She said amongst other things that she would not use that grammar.

47.  The Accused told the court that she was taken to Wan Chai Police Station and later on to the hospital and attended at the Accident and Emergency area.  She said that she arrived at about at about 6 pm and was examined about an hour later.  By 8:48 pm she was admitted to the Obstetrics& Gynaecology Ward.  She said that she was still experiencing that bleeding.

48.  The Accused said that at the time of the first record of interview at the hospital (which was, of course, taken by WDPC 8600 accompanied by an English interpreter) she had not slept since 15 October and she was exhausted and confused.  The phrase used in court was that she felt like she had “checked out”.  The Accused in this context made the point that she had never been in trouble or arrested before she testified that nobody asked whether she was fit to be interviewed.  The process that she described for this interview which was a process repeated in the other two interviews was that basically she was asked to sign at various places.  She says the contents were never read that and that she did not understand what was going on.  At the conclusion of this first statement she was simply told to sign in various places. 

49.  The Accused told the court that sometime later she reflected on the interviews that she had provided to the police and considered that they were inaccurate and, in the name of providing a proper explanation, on 28 March 2018 she sent a letter to the police.  That letter is exhibited as P 74.  The letter requests a meeting with the police.  It is not clear what proceeded from that point on.

50.  The Accused then underwent two further records of interview.  These were taken in English and interviewing officer was DSI Cheng.  Essentially, these interviews proceeded without explanation of the caution and although the Accused acknowledges that she wrote out effect of the caution in her own handwriting.  She told this Court that she did not understand and did not consider that it applied to her.  She was not, so she said, invited to read the statement at the end nor correct, and alter anything in the statement.

51.  Following the interview process, the Accused was later formally charged and cautioned.  In answer to the caution, she asserted that the baby was dead.

52.  As I have already indicated the Accused was shown a Notice to Persons in Police Custody or Involved in Police Enquiries on a number of different occasions.  As I have already indicated these set out a number of rights including the right to communicate with a lawyer or a relative or friend or to seek medical attention if feeling unwell.  The document that the Accused was shown on each occasion is identical in content and is in English.  While it is fair to say that it is not the easiest document to read and digest, the message of the document is clear.  However, in respect of each of the notices which were given on 18 October 2017 at 5:15 pm by WDPC 8600 at the police station and 10:18 pm on 18 October 2017 at the hospital given by the same officer.  On both occasions the Accused said that contrary to what appears there and contrary to what the officer said she neither read the document nor had it read to her.  She says she was simply asked sign and that essentially although the time between the service of the document and the purported acknowledgement of having read the document are times which vary from about 5 minutes up to 9 minutes, she had no idea what the document meant and was just required to sign on it.  A number of similar notices were given at the instance of DSI Cheng on 19 and 20 October 2017.  Essentially the same circumstances supplied and the Accused said that on no account did she read or was the document explained to her and she simply signed those documents.  She nevertheless requested during the course of the second record of interview to speak to someone other than the police.  She testified that the Inspector said that would be allowed after the record of interview process was complete.

53.  In this regard it is also important to note that unbeknownst to the Accused her mother had come to Hong Kong.  This was clearly prompted by the Accused telling her that she was feeling unwell and in the result, she was reunited with her mother at the police station following the third record of interview which occurred on 20 October 2017.

54.  In my judgement, the Accused is not a person who can be believed on her oath as to critical matters in this case.  I am perfectly prepared to accept her description of events leading up to her coming to Hong Kong and the days which preceded the day on which she gave birth to the baby girl. This carries with it the implication that I am prepared to accept that by the time she came to be in contact with the police and, in particular, WDPC 8600 she was a tired and hungry person.  It has to be recalled that about an hour after the birth, the Accused is seen in the street initially carrying what turned out to be her baby.  She then on her own description went to the YesInn and retrieved her suitcase and returned to the Check Inn.  That would require both an element of physical effort, particularly wheeling her suitcase back to the Check Inn and required an element of decision-making on her part.  It follows from this that it is necessary to be a little bit careful in considering precisely how tired and was when she came to be in contact with the police and later during the course of her giving interviews to the police.  I am prepared to accept that it is reasonably possible that at the time of the first statement she was a tired and stressed out individual.  I am sure she was cautioned during that first interview but I am not sure that she necessarily understood the caution at that stage because of her condition.  For reasons which will shortly appear, while I am sure that the first statement was voluntary, I have decided to exclude it in the exercise of my discretion principally because I am not sure that she sufficiently understood the caution to make an informed choice about whether to speak or to remain silent at this stage.  Frankly, I strongly suspect that she did appreciate these matters.  She can hardly have failed to have appreciated that the police wanted to talk to her about the death of her baby.  She could hardly fail to appreciate that they viewed this with some seriousness and considered that it was appropriate to investigate her in respect of a criminal offence or offences.  That she may not have understood what infanticide meant in law is something I am prepared to accept as true.  She was not the only one.  The police officers did not truly understand.  In my view, it is likely that in relation to the first interview she fully understood what was going on but as I have indicated, applying the burden and standard of proof, I am not sure about this.  I should say that this has little to do with her testimony on the matter.  I have come to this view, in many respects not because of her testimony but in spite of it.

55.  However, I do not believe that what she said about the second and third interviews.  Her medical condition had clearly improved by this stage and I do not believe for one minute her testimony about DSI Cheng not informing her of the caution or that she did not understand what that caution meant.  I am sure she did.

56.  It is right that I pause at this stage to say that there were a substantial number of occasions during the course of the testimony of the Accused where she said things about two police officers which had not been put to them during the course of the cross examination of those officers.  There are a substantial number of examples but one example is that it was never suggested in cross examination of DSI Cheng that he did not read the preamble to the second or third statements to the Accused and did not caution her.  Plainly, the failure to cross examine on that topic was in clear breach of the rule in Browne v Dunn (1893) 6 R 67.  That rule of practice is part of the law of Hong Kong: Lo Chun Nam v HKSAR [2001] 1 HKLRD 180. As a basic rule of fairness the relevant officers should have been given the opportunity to be confronted with the multiple derelictions of duty wherewith they were accused in the testimony of the Accused.  That is not just an issue of fairness.  It deprived the Court of the ability to assess the witnesses in question and to see what their reaction might have been to such accusations.  That, of course might favour the prosecution if, for example, their response was a fair and rational response.  Of course, it is equally possible that on being confronted with such derelictions of duty they may have said something which favoured the Accused.  That, it seems to me, is a central concern of the rule in Browne v Dunn (above).  Although there are suggestions in some of the authorities which consider this rule that it might be that, for example, a failure to observe the rule might be taken as an admission of the fact or topic in respect of which there was no cross examination.  There are suggestions in other cases that it might provide a basis for believing the case of the party who had failed to observe the rule. However, it is clear from the authorities that there may be many reasons why a party may not observe the rule and there are standard shall dangers in making any assumption as to why the rule was breached.  Pausing there, as I made plain in exchanges between the Court and counsel for the Accused, at no stage have I ever considered even the possibility that it was a deliberate breach on the part of counsel.  That remains my position.  However, to make assumptions about the reason for no questions on these critical topics would, in this case, be treading a very dangerous road.  It would have been apparent to all, and, perhaps particularly,counsel for the Accused that I was, to put it mildly, not best pleased by the absence on a substantial number of occasions of cross examination which observe the rule.  Counsel for the prosecution in his thorough and penetrating cross examination of the Accused did not take the matter up with the Accused and, in my judgement, that was almost certainly a perfectly appropriate tactic in the circumstances.  I remain unimpressed but I think it is appropriate to make it plain that on no account has the failure to observe the rule meant that I am more ready to believe relevant witnesses for the prosecution or to disbelieve the Accused.

57.  Many of the conclusions of Dr Wong (see below) were not supported by evidence from the Accused.  For example, Dr Wong lays a degree of stress on the fact that one of the components of the difficulties faced by the Accused would have been feelings for the loss of the child.  There was not a scrap of evidence on that topic from the Accused and I have discounted Dr Wong’s advice in that regard.  I have already mentioned the fact that the Accused said that while she was in pain, she did not place pain at the upper end of the list of the difficulties she was facing.

58.  I perfectly accept that it is possible for a young, well-educated woman who was intelligent and articulate as the Accused manifestly was could get into the kind of state described by her and, in part, described by Dr Wong.  However, once the Accused got past the first statement, I reject entirely her version of events as to those statements she was, in short, a most unimpressive witness and the positions she adopted verged on an insult to the intelligence of the court.  In my judgement, her assertions in relation to the second and third statements that she was, in effect, simply a signing automaton not comprehending what was being said could not possibly be true and I had not the slightest difficulty in disbelieving that.

Dr Vanessa Wong

59.  A medical report prepared by Dr Vanessa Wong was tendered by consent pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221.  Dr Wong is a specialist psychiatrist.  Although it does not appear in the report or the accompanying documentation, I was informed by counsel from the Bar Table without objection that Dr Wong is a well-known psychiatrist with substantial experience in government service.

60.  It is common ground that she did not examine the patient and only considered the list of documents set out in her report.  It is also manifest that she considered the hospital notes because there are some references to facts which could only have come from those.  Nothing turns on this.  The opinions expressed in her reports are, therefore, of necessity, fairly generalised in their nature.

61.  Dr Wong makes the point that giving birth is, in the best of circumstances, both a physically and mentally demanding task.  She takes the view that on the basis of what the Accused said in her records of interview that given her description of the time of the birth it is likely that she would have been awake for about 24 hours a time that she was first interviewed by the police.  As Dr Wong says: “Even if she managed to sleep, it is likely that the quality of sleep would be poor due to the after pain of labour and the emotional distress from the loss of a first born.”  She goes on to say that sleep deprivation of even 17 hours produces deficits in attention, learning and memory, emotional reactivity, and higher-order cognitive processes, such as executive function and decision-making to the equivalent of having a blood alcohol content of 0.05%.

62.  Dr Wong was not informed of the course that the Accused took following the placing of the baby in the rubbish bin.  In particular she was not informed of the walk that the Accused took to the YesInn to collect her suitcase and to wheel that suitcase back to the Check Inn.  On any view, that would take a substantial physical effort and it is not possible in the circumstances to discern how Dr Wong thinks that may have affected her judgement as to the physical condition of the Accused.

63.  Dr Wong’s opinion is that the Accused would likely have been in a sleep deprived state when responding to police questioning for the first interview, thus her ability to make sound decisions and respond in a rational matter may have been compromised.

64.  Further, Dr Wong is of the opinion that labour pain is high on the pain rating scale and this is particularly so for the first experience of giving birth as opposed to subsequent ones.

65.  The opinion of Dr Wong is that Accused was “likely overwhelmed by the experience” of labour that she was unprepared for an educated on and the fear and confusion of enduring through the pain and physical changes to her body may have some degree impaired cognitive function in the days following labour.  The doctor notes the blood pressure and elevated pulse together with the low haemoglobin level of 6.5 g/dL.  As Dr Wong says the normal range for a female is 12.0 to 15.5 g/dL however, Dr Wong does not explain how these would be relevant to the ability of a woman in the position of the Accused to make the critical decisions which I have identified in respect to giving a statement under caution to the police. Dr Wong expressed the opinion (see paragraph 6.2) that:

“ pain, acute blood loss, physical exhaustion from the delivery, intense emotions of losing a child, mental stress of being in an unfamiliar environment and the anxiety from being surrounded by medical staff and police officers speaking amongst themselves in a foreign language are possible explanations for the physical signs of stress that were documented shortly before her first interview by the police. The very nature of being questioned by the police as both physically and mentally demanding and possibly even perceived by the subject as intimidating. These factors would likely have compromised her reasoning ability of the time. Both are physical and mental fitness to consent to being questions should have been assessed by a physician before each interview was conducted to ensure that she was medically cleared to proceed.”

A little later in the report (paragraph 7.2) Dr Wong observes “Feelings of guilt, self-blame, shame and other intense emotions could possibly have club her judgement when probed by the police officer conducting the interview.”  Dr Wong goes on to say that it had a legal representative or social work or a patient advocate present at the time of the interview to ensure that the patient’s rights were protected.

66.  Dr Wong concluded that it was more likely than not that the factors affecting the physical and mental state of the Accused diminished her ability to make informed decisions and her ability to consent to being interviewed should have been examined beforehand.

67.  As I have already observed, it is manifest that Dr Wong did not actually speak to the Accused in forming her opinion.  Further, there were aspects of the opinion which might have been and were not tested in cross examination.  Nevertheless, the foregoing criticisms do not require that the opinions of Dr Wong be ignored or dismissed.  To an extent, they state what is obvious common sense and to that extent the opinions are of relevance and value in the deliberation case.  It is apparent that while there was an element of pain in the hours following the birth, the overall impression I got from the testimony of the Accused on the voir dire was that pain was not uppermost in her considerations.  Further, Dr Wong does not consider the impact of lack of food in approximately 24 hours which preceded the birth of the child and which continued until the Accused was placed in the care of the Queen Mary Hospital.  The other consideration which is, perhaps, the most important is that Dr Wong does not address the change in the condition of the Accused over her time in the hospital.  That is reasonably clear from the hospital notes which Dr Wong must have had to have spoken about the blood pressure pulse rate and haemoglobin levels.  While I am prepared to accept the general observations of Dr Wong as to the impact of the conditions she observed taken together with this young woman facing her first birth and the loss of her child and all that goes with that, in my opinion the observations of Dr Wong are diminished by reason of the obvious fact revealed in the hospital notes and to an extent supported by the testimony of the Accused herself that she did improve over time.

Principles

Voluntariness

68.  The law of Hong Kong requires the prosecution to prove that an admission against interest made by an accused person is voluntary: Secretaryfor Justice v Lam Tat Ming & Anor (2000) 3 HKCFAR 168.  In this context, that means that the prosecution must prove to the criminal standard that such an admission has not been obtained from the Accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression.  The prosecution must prove voluntariness in that sense beyond reasonable doubt: DPP v Ping Lin [1976] AC 574.

69.  In this case, in relation to the issue of voluntariness the central focus of the attack on the admissibility of the series of admissions by the Accused is that they were oppressively obtained.  Generally speaking,the accepted meaning of oppression in this context is either words or conduct by a person in authority which tends to sap and does sap the will of the Accused so that he or she makes the admission or confession and includes questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his or her will crumbles and speaks when otherwise he or she would have stayed silent.  This definition is derived from R v Priestley (1965) 51 Cr App R 1; and R v Prager [1972] 1 All ER 1114, 56 Cr App R 151.  Critically, it was endorsed by Li CJ in Secretary for Justice v Lam Tat Ming & Anor (2000) 3 HKCFAR 168 and HKSAR v Leung Chiu Ming [2001] 1 HKLRD 272, [2001] HKCU 18.  The issue of whether or not in any case there has been oppression that has sapped the will of an accused is essentially a question of fact.  In Burut & Ors v PP of Brunei [1995] 2 HKC 305 Lord Steyn accepted that the test for oppression was “conduct calculated to sap the will of the person being interviewed”.

Exercise of discretion to exclude: general

70.  The Accused contends that the Court ought to exclude the admissions in the exercise of the discretion reposed in a court to exclude an otherwise voluntary statement.  The critical statement of principle in relation to the power of a court to exercise such discretion is to be seen in the decision of the Court of Final Appeal in Secretary for Justice v Lam TatMing & Anor (above).  Those principles are well-known and well understood and I do not propose to recite the observations of Li CJ in that regard.  What is critical is that a variety of circumstances might inform the discretion.  

Breach of Secretary for Security’s Rules and Directions

71.  Fairness in this context is a multi-faceted concept.  A breach of the Secretary for Security’s Rules and Directions is one example—a breach may sometimes justify the exercise of the Court’s discretion to exclude.  Even where no breach of the Rules and Directions is established or one is established is insufficient of itself to justify the exercise of the discretion to exclude admissions against interest, the law still requires that the Court consider the issue of whether such an admission should nevertheless be excluded.

72.  One of the central contentions of the Accused in this regard concerns the timing of the caution by WDPC 8660.

73.  A central value of Hong Kong is the right to silence.  A critical concomitant of that right is that an accused person who is being investigated should be informed of that right.  That there may be members of the Hong Kong community who are well informed of that right cannot be doubted.  However, the Accused in this case is a short-term visitor to Hong Kong.  If ever there was a person who needed to be informed of her right to speak or to remain silent, it was the Accused.

74.  The rule as to when a caution must be applied is to be found in the Rules and Directions issued by the Secretary for Security on 2 October 1992.  Rule II provides that:

“ As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions,relating to that offence.”

That Rule also contains the substance of the caution that must be administered in accordance with the rule.

Health or mental state

75.  The exercise of the discretion might be attracted where the age, mental or physical state of the Accused at the time of the taking of the admission or confession was such as to render the admission or confession unreliable and may render it unfair to admit the confession in evidence.  In the cases, there does not appear to be a unifying principle as to what degree the condition of a person might attract an exercise of the discretion vested in the Court to exclude an admission against interest made by a person whose condition was somehow diminished either permanently or temporarily.  The cases seem to proceed by example.  On that basis, in HKSAR v Lee Sin Sau [2009] 6 HKC 441, Barnes J upheld on appeal against conviction based on an admission against caution where the accused was pregnant at the time of making the admission.  Barnes J did not say that pregnancy would always attract the exclusion of an admission against interest.  Her point was more that in determining whether to admit an admission against interest, the magistrate who tried the case should have considered the matter.  What the case demonstrates is matters of this kind at least merit consideration when determining the admissibility of admissions against interest.

76.  These cases seem to recognise that what might be put at risk by the condition the subject of the Court’s consideration put in jeopardy the ability of the person who made the interview to make an effective decision as to whether to speak or to remain silent or, having chosen to speak, to made rational choices as to what to say or how to say it.  All of the conditions or circumstances might, in appropriate circumstances, attract the exercise of the discretion of the Court to exclude such an admission.  There is no consistent guidance in the authorities as to the degree to which a person is relevantly impaired but it is plain that merely not being at one’s sparkling best is highly unlikely to attract the exercise of such discretion.  It is not difficult to think of examples at the other end of the extreme.  To the extent that there is a unifying theme throughout these authorities is that it is left to the sense of fairness of the Court making the decision and, applying the broad principles articulated in Secretary for Justice v Lam Tat Ming & Anor (above), making such an evaluation against the background of the nature and rationale of the protections accorded to a person in such a position and the legitimate concern that a jury have available to it all relevant evidence.  

Application of facts to the principles

77.  The starting point is that each of the admissions against interest are relevant and provide information about the case which, subject to admissibility, a jury should know in determining whether the Accused is guilty or not guilty of manslaughter.  It is certainly true that some of the information obtained over the course of the contact between the Accused and various police officers is, to an extent, repetitive does not diminish that fact.  It is certainly true that when a comparison is made between the first and second statement that it covers, to an extent, the same ground but it is fair to say that the second statement is by far the more articulate of the two statements.  I make this point because one element of the cross examination of DSI Cheng was the suggestion that he did not need to go over the same ground again.  In my judgement, the product of the second statement when compared with the first statement rather diminishes the impact of this line of cross examination.

78.  What is undeniable is that the Accused was pregnant.  When she became pregnant is not easy to work out because even the most articulate assertion of this in her statements to the police suggests that her last sexual intercourse was in March 2017 and yet her last menstruation was in July 2017.  (See the second statement taken by DSI Cheng, questions 10 and 14.) The Accused (second statement, answer 15) also said that she became aware of her pregnancy in August 2017 because she felt something moving in her abdomen. Perhaps more importantly, the time when labor started appears to have been about 5 pm on 17 October 2017.  It would appear (second statement, answer 25) that labor took about two hours between commencement and delivery.

79.  WDPC 8600 saw the Accused at the place where she was staying at about 4 pm on 18 October 2017, that is, about 21 hours after delivery of the child.  The Accused was in hospital by about 7 pm on 18 October 2017.  That can be seen from the medical report of Dr Lam Ka Mun which is exhibit P 60.  That is about 24 hours after delivery.  The commencement of the statement taken by WDPC 8600 in company with the police interpreter was 10:24 pm that night.  That means this interview took place at about 27 hours after delivery.

80.  Giving birth is a very demanding mental and physical ordeal.  Precisely how that ordeal affects an individual woman no doubt varies to an extent but the mental and physical ordeal cannot be ignored. Further, as Dr Wong observes there is the issue of the loss of the child as a component of the physical and mental ordeal.  When one adds to that the lack of sleep for about 24 hours before the Accused came into contact with WDPC 8600,the absence of food over about the same period and that all of these events which the Accused experienced occurred to, in effect, a stranger in a strange land it is not difficult to obtain the picture of a highly stressed, exhausted and weakened woman facing up to the police and facing up to what she had experienced and done prior to facing up to the police.

81.  Indeed, to her credit, WDPC 8600 appeared to be alert to at least significant aspects of the condition of the Accused and some of the other consequences of giving birth.  As it will soon appear, while there are aspects of what she did which I will criticise later in this judgement, I am firmly of the view that she was a person who was sympathetic to the position and condition of the Accused.  Although it is impossible for me to say with certainty, the impression I gained in this regard was that a component of that concern was because they were both women.  That is not to say that DSI Cheng, a male, was unconcerned.  As will shortly appear, I am firmly convinced he was concerned and manifested that concern.

82.  I am sure that WDPC 8600 appreciated that the physical and mental act of delivering a baby is a demanding and arduous task.  I am sure this was obvious to her shortly after coming into contact with the Accused at the Check Inn in Wan Chai.  I do not think that she was aware that the Accused had not eaten and had not slept for something of the order of 24 hours prior to coming into contact with this officer.  The real issue is whether the Accused was, taken as a whole, in a fit state to make the decision to speak to the officer or to remain silent and, having made the decision to speak, make decisions about what to say and how to say it.  I am sure that the version of WDPC 8600 of events at the room in the Check Inn is true and later at the hospital including the process of taking the statement that she took.  However, my issue is not with the honesty of the officer’s testimony.  I am firmly of the view that WDPC 8600 acted in the fullest good faith and was acting in the honest execution of her duty and was right to arrest the Accused in the manner that she did.  The police, including this officer, were faced with investigating the disposal of a baby girl in a rubbish bin in Wan Chai.  Plainly it was incumbent upon them to find the person who did that and investigate the circumstances of that placement.  Pausing there, it will be doubtlessly observed that I have used the word “placed” as opposed to “threw” or “put”.  The purpose of my choice of words is not a finding of fact but an attempt to relate the event in the most neutral terms.

83.  Clearly, WDPC 8600 did not appreciate the elements of the offence of infanticide.  I accept as true what the officer said in this regard and,in particular that she did not appreciate that the offence involved proof of an act or omission by the mother of the child when the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.  Accordingly, I am sure that it did not form part of the suspicion of the officer that there was this component of mental disturbance.  I readily appreciate that had she believed this at the time that this might call into question her judgement as to whether to ask questions at the time of arrest or at a subsequent stage.  I am sure that such considerations never entered her mind and that her belief as to the true nature of the crime of infanticide was a simplistic and incorrect one involving nothing more than a mother killing her child.

84.  As I say, WDPC 8600 was entirely right to arrest the Accused when she did and the time had come to caution her.  In the event, because of her limitations in the English language, she wished to defer the caution until she had an English interpreter with her.  The consequence of that was that part of what she recorded the Accused as saying was not the product of a caution.  It should have been.

85.  In my view, had I been asked to rule on the admissibility of the oral admissions, I would have concluded that the combination of the physical and mental ordeal of giving birth taken together with the lack of food and sleep and in the manner I have described, made it unfair for the prosecution to adduce or rely on what was said and recorded at the room in the Check Inn.  In my opinion, at that stage the health and circumstances of the Accused meant that she was probably not in a fit condition to make the critical decisions about whether to answer the officer and, if she was to answer what she was to say.  In my judgement, while I do not in any way doubt the honesty or integrity of WDPC 8600, and I do not doubt that she was faithfully executing her duty as a police officer, had the issue need to adjudicated on, I would have held that it would be unsafe to place any reliance on the answers given by the Accused and, therefore, had I been asked to rule I would have said that I was of the opinion that the oral admissions should be excluded from the evidence to be presented to the jury.

86.  When the Accused presented at the hospital she was obviously still in some pain.  That comes from the report of Dr Lam Ka Mun.  Dr Lam was one of the doctors who saw the Accused in the Accident & Emergency Department of Queen Mary Hospital.  The decision was made by Dr Lam to admit the Accused to the Obstetrics & Gynaecology Ward.  Both Dr Lam and the specialist who saw the Accused following her transfer to the Obstetrics & Gynaecology Ward observed vaginal bleeding.  The specialist, Dr Ma Wai Sze also mentioned that the Accused was in pain.  The Accused while testifying that she was in pain certainly gave the impression in the witness box that this was not the principal concern at the time.

87.  Once the Accused was in the Obstetrics & Gynaecology Ward, a range of tests was performed on her and it was noted that her haemoglobin count was low. The hospital notes put that at 5.6 g/dL and she was ordered to be transfused with 2 units of blood.  No evidence was given of the impact on the mental processes of a person in the position of the Accused with a haemoglobin count of 5.6 g/dL. There is nothing in Dr Wong’s report about this.  However, given that haemoglobin is the agent which carries oxygen around the body including the brain, it is not difficult to see that there must have been some impairment in this regard.  I gained the impression from the testimony of the two doctors who gave reports that all other tests were within appropriate limits.  Her haemoglobin count went up to 8.6 g/dL and was 8.7 g/dL on 20 October 2017 at the time of discharge.  Indeed, ferrous sulphate tablets were prescribed for anaemia and it is plain that even the haemoglobin level at discharge needed to be improved.

88.  By the time that WDPC 8600 commenced the first statement, the Accused had only been at the hospital for a few hours.  At the time of the interview, the transfusion of blood had not commenced and, indeed, did not commence for well over two hours after the conclusion of the interview. No evidence was elicited from either Dr Lam the doctor who attended the Accused in the Accident & Emergency area or the specialist in obstetrics and gynaecology Dr Ma as to what the impact of a low blood count might be on a person such as the Accused in her circumstances.  WDPC 8600 told the Court that when she presented at the Obstetrics & Gynaecology Ward to interview the Accused she gave the memo to a nurse.  The purpose of the memo was to inform those concerned with the treatment of the Accused in the hospital that the police wished to interview the Accused.

89.  It is clear that the nurse in charge made her own decision as to whether to permit the interview to go forward.  Although no direct evidence was elicited on the topic, that nurse was a Registered Nurse and appeared to me to be a person of substantial experience.  She was the nurse in charge of the Ward at the time that the police presented.  The Accused brought in to the place where WDPC 8600 was by a nurse.  WDPC 8600 believed that permission to interview the Accused had been given by a doctor.  I do not for one moment doubt that this was her belief even though, in the result, it was erroneous.

90.  In this first interview, the Accused was, for the first time, cautioned and thus informed of her right to speak or to remain silent.  Indeed, early on in the process the Accused was invited to write out a standard police declaration on to the record being taken by the officer.  Immediately following that declaration written by the Accused is her signature.

91.  The testimony of the Accused made it sound like she was, in essence, an automaton and simply signed where she was told to sign and write where she was told to write.  As I have already indicated I do not accept as true what she said.

92.  In my judgement, the Accused was at this stage informed of her right to silence.  It was told to her.  She wrote it out in the declaration.  The real problem is how much she was taking in stage.  At least in relation to this first interview, I think there is some force in the observations of Dr Wong which I have outlined previously.

93.  As I have already detailed, she then proceeded by written question and answer to elicit certain information.  While it is not relevant to the present as to whether or not the assertions made in this record are true, it is certainly true that they are articulate and responsive answers.  Some of the answers are in their nature quite complex.  An example of that is Answer 4 which speaks about her waiting for a Visa application for family reunion with her mother. The choice of words used in later questions and answers also reveal an articulate, relevant and responsive set of answers.  Obviously, that would be easier to judge from a video recorded interview (which this was not) as opposed to questions asked in Chinese, translated into English and answers given in English.  However, even making the fullest allowance for that the Accused articulates the position with clarity.  At the conclusion of the statement, the Accused was able to read it over.  The Accused was given the opportunity to correct, alter or add anything she wished.  Indeed, she herself wrote out a declaration to that effect.  The declaration concludes “The statement is true. I have made it of my own free will.”  Following that we see her signature.

94.  I am sure that there was no coercion and that leaving aside the question of oppression to which I will return momentarily, the Accused was free to say what she said.  The next issue is the issue of whether circumstances in which she gave this statement amounted to oppression or proved that there were no such circumstances as to amount to oppression that it was unfair to permit the prosecution to adduce the statement as evidence and for the jury to see that statement.  I am sure that the prosecution has proved beyond reasonable doubt that the circumstances in which the statement was taken did not amount to oppression within the recognised definition of oppression.

95.  The only remaining issue in relation to the first statement is whether in spite of the findings that I have made as to voluntariness (which includes the issue of oppression) it would have been unfair to permit this first statement to go before a jury.  On the one hand, the statement comes from a woman who about 28 hours before had given birth to a baby.  If she was sleep deprived at the time she was arrested, at the time she was admitted to hospital, in all probability she was a couple of hours more sleep deprived at the time of the interview.  On the other hand, this is a woman who was in a safe environment and was under the care of highly dedicated healthcare professionals.  She had been cleared to give the interview by a person who appeared to me to be a senior and experienced nurse in charge of the Obstetrics & Gynaecology Ward.  That this nurse was not a doctor is stating the obvious but I have no doubt whatever that this nurse carefully considered the issue.  She had been informed of her right to speak or to remain silent and indeed had written out in her own hand her recognition of her knowledge of that right.  One of the things that informs the discretion is that it has the potential to deprive the jury of relevant evidence.  In this case, as I have already observed, the answers given by the Accused are articulate and in some respects complex.  They do not appear to me to be the answers of a person who was at the physical and mental end of her rope and thus to suggest a person who ought not to be asked to deal with the police by way of question-and-answer at this stage.

96.  It will be clear from the foregoing that my decision as to whether or not to exclude the first statement in the exercise of my discretion has not been easy. However, after careful thought and applying the burden and standard of proof, I cannot be sure that even though the Accused was on my findings cautioned and that caution was in clear and classical terms, I cannot be sure that she fully took that in and was thus appropriately equipped to make the important decision as to whether or not to speak or to remain silent and, if having decided to speak determine what to say.  I wish to stress that incoming decision that this first written statement must be excluded, it casts no reflection of any kind on the honesty or professionalism of WDPC 8600.  This decision casts no reflection on the honesty or integrity or professionalism of the Registered Nurse permitted procedure.  If there is an error in case it may be mine in that I can perhaps justly be accused of being ultra-cautious about this issue in relation to this interview.  As I say, this decision is the result of a rigorous application of the burden and standard of proof.  I am sure the statement was voluntary and that there was no oppression.  On the application of that burden and standard of proof I am simply not sure that it is fair to place this record of interview before the jury.

97.  I turn now to consider the second and third statements. The starting point is that I am sure that DSI Cheng was telling me the truth.  (There has been no challenge to the honesty or reliability of the nurse or the two doctors who testified.)  I am satisfied so that I am sure that these two statements were taken voluntarily.  When using the word “voluntarily” in this context I include matters of oppression.  The only additional element of oppression that counsel for the Accused could point to in relation to the third statement was the suggestion that using the word “thrown” in the preamble was itself an attempt to a press the Accused.  The short answer to this suggestion is to look at how she described the placement of the baby.  She uses the word “put” and the officer appears to have continued that in the follow-up questions.  If there was by this means an attempt to oppress it clearly failed miserably.  In both interviews the Accused stuck by her guns and described how she “put” the baby where she did.  If anything, it is a small and marginally important demonstration of the case for the prosecution that this woman was not overwhelmed and articulated her position on the matter.

98.  The only other issue is an issue of fairness. By the time that this statement was taken the Accused had received at least one of the units of blood with which she was transfused.  Plainly she had rested and she had eaten.  I am sure she was still in a degree of pain at the time of the taking of the third statement.  It is clear that while there was some pain it was not great and the Accused said so in her testimony.  While I have serious reservations about the honesty and reliability of some of her testimony, I accept this is true.  

99.  I am sure that the Accused was fully and appropriately informed of her right to speak or to remain silent.  By this time it is clear to me that she was fit to be interviewed and to make the critical decisions that an accused person is required to make against the background of the caution being properly administered.  I reject as untrue the assertion that she was not cautioned and I reject as untrue her assertion that even though she wrote out the words on their plain meaning reveal an understanding that she had been cautioned that she did not understand those words and did not think they applied to her.  As counsel for the prosecution pointed out in the course of his thorough and testing cross examination, the statement wrote out contains the word “I” five times the passage she wrote out and that the notion that she did not appreciate that it applied her is bordering on the absurd.  I reject as wholly untrue the assertions of the Accused that in relation to both the second and third interviews that she simply acted as an automaton and signed where she was told to sign and write out what she was told to write out.  Her answers are clearly intelligent and articulate responses to the questions of DSI Cheng.  While it is true that this also applied to the first interview which I have, on a very fine balance, held to be inadmissible that those answers were intelligent and articulate, the circumstances in this second and third were different and the weight to be attached to the manifest clarity and intelligence of her responses weighs differently in the circumstances.

100.  In relation to the second and third statements it was suggested that it was unfair in the sense that there was the occasional use of police jargon and that certain answers were conflated and made to appear as one answer.  The initial position of DSI Cheng was that no such thing had occurred.  If that is where things had been left, I would have been in a position to doubt the honesty of DSI Cheng.  As the cross-examination proceeded, it became clear that his real position was that he was trying to get down the sense of what the Accused said and, in this regard, may have slipped into police jargon such as the use of 24-hour time as opposed to the description of time normally used in the community.  I accept that as true.  It is accordingly right to say that in literal terms the answer to passages such as the answer attributed to the Accused in answer 25 of the second statement is not completely the words of the Accused.  It seems to me the more important question is whether in spite of the obvious use of police time and the repetition of the year in question that the essence of what the Accused was trying to get across was recorded.  There are other examples.  For each and every example, I am sure that these accurately and fairly reflect what the Accused was trying to communicate to the officer.  Frankly, this point either taken alone or together with other suggested bases for unfairness was a total non-starter.  I perfectly appreciate the concerns which underlie the Secretary for Security’s Rules and Directions, in particular, Rule IV(d). It is pertinent because it provides: “the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters.”  Although, in one sense, Rule IV(d) is freestanding, in the context of this case, it is directly connected to Direction 1(c) which provides that in writing down a statement, the words used should not be translated into “official” vocabulary; this may give a misleading impression of the genuineness of the statement is a perfectly sensible guide and should have been followed.  Nevertheless, for the reasons I have given, I am sure that failure to comply with this rule has not affected the fairness of producing the product of the violation.  The key to the whole process is, in my judgement, concerned with an effective rendering of what an accused says to the police.  I am sure that is what happened here.

101.  The third statement was taken at the police station.  By that stage the Accused had been discharged from hospital and that carries with it the implication that the health professionals were satisfied that she could return to the community. There was certainly nothing oppressive about this statement.  It was arguably repetitive in some respects but in my judgement that did not affect either the voluntariness of the statement or provide a basis for an intervention on the basis of fairness.

Ruling: Admissibility of admissions against interest

102.  I am satisfied to the criminal standard that the first, second and third statements are voluntary in the sense that prosecution must prove to the criminal standard that such an admission has not been obtained from the Accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression.

103.  That leaves me to consider the exercise of the discretion reposed in the court to exclude these statements.  On a strict application of the burden and standard of proof, in the exercise of this discretion, I have concluded that it would not be fair to permit the first statement to go before a jury.  On that basis, I order that the first statement, that is, the admissions made to WDPC 8600 inside the Admission Room of the Obstetrics & Gynaecology Department of the Queen Mary Hospital at about 10:24 pm on 18 October 2017 and ending at 12:25 am on 19 October 2017 be held to be inadmissible.

104.  Applying the same burden and standard of proof, I decline to exercise the fairness discretion so as to exclude the second or third statements. The order of the court is that they be admitted into evidence.

APPLICATION TO EXCLUDE PARTS OF THE PATHOLOGIST’S REPORT

105.  Dr Lam Wai Kwok, a specialist forensic pathologist performed an autopsy on the baby.  His report is exhibit P 61.  The autopsy took place on 20 October 2017. Objection is taken to a passage in the report which counsel for the Accused contends is more prejudicial than probative and that by reason of this it should be excluded.

106.  Dr Lam performed a normal thorough forensic examination.  He described the cause of death as “Unascertained”.  He observed that the baby showed signs of a separate existence with evidence of lung expansion which, as he put it, indicated that the deceased was a live born infant.  There were some minor injuries on the body of the baby which were judged to be minor and non-fatal and could have occurred post mortem.  The conclusion of the forensic report written by Dr Lam is as follows:

“ Considering the present case, the autopsy did not reveal any other significant natural disease or congenital anomaly that could have contributed to the death. Autopsy also did not reveal any evidence to suggest that the death was traumatic in origin. However, it is well documented that some forms of unnatural death, such as suffocation, might not produce any injuries or leave any marks on the body. Therefore, the possibility of such conditions leading to death in this case could not be excluded. As such the cause of death was given as ‘Unascertained’.”

107.  The passage that is objected to by counsel for the Accused is the passage in which Dr Lam indicates that there are some forms of unnatural death which might not show marks including suffocation.  Also it is contended that the passage at the possibility of suffocation cannot be ruled should be excluded.  This application comes against the background of the position of counsel for the Accused that there is no objection to the balance of the report of Dr Lam being shown to the jury when he comes to give evidence.

108.  It is contended by counsel for the defence that the sentences to which reference have been made are speculative and that there is no basis for establishing suffocation as a cause of death, the evidence is more prejudicial than probative.  The prosecution submits that this contention rather misses the point.  There is evidence of the Accused wrapping her baby in a cloth shortly after the birth and within an hour of the birth placing that baby in a shoulder bag and, a few minutes after that, placing it in a wheeled rubbish receptacle. If the baby was alive at this particular time then it would be open to the jury to conclude that the acts I have just described might have caused furcation and, more pertinently, these acts alone or in combination might be characterised as grossly negligent.  That all presupposes that the baby was alive at the time of the acts to which I have just made reference.  That is, in my judgement, a far more substantial hurdle that the prosecution faces.  Nevertheless, in my judgement the opinion of Dr Lam is highly pertinent to the cause of death.  The contention of counsel for the Accused is that to allow this observation by Dr Lam to go before the jury would be to invite speculation and this would result in an unfair trial.

109.  The principles are not in doubt.  The critical issue is the promotion of a fair trial: R v Sang [1980] AC 402; R v Handy [2002] SCC 56. In my judgement, the evidence is relevant to the issues the jury must decide and is a reasonable explanation for a death and any potential prejudice can be easily cured by an appropriate direction.  In my judgement, there is no basis for excluding this potentially quite probative evidence.

CONCLUSION

110.  I thank counsel for both parties for their assistance in this matter.