April 2022 | HK Lawyer

Infanticide In Hong Kong

The Infanticide Provision

This article will look into infanticide, a relatively uncommon but nevertheless important criminal
justice issue. In Hong Kong, the infanticide provision is set out in section 47C of the Offences
against the Person Ordinance (Cap.212) as follows:-

“Where a woman by any wilful act or omission causes the death of her child being a child under
the age of 12 months but at the time of the act or omission 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, then,
notwithstanding that the circumstances were such that but for the provisions of this section the
offence would have amounted to murder, she shall be guilty of infanticide, and shall be liable to
be punished as if she were guilty of manslaughter.”

Recent Caselaw

The caselaw below illustrate how the infanticide provision has been used in Hong Kong in recent
years.

HKSAR v. Lee Yin-fong (HCCC No.293 of 2008)

The defendant was a 32-year-old woman who pleaded guilty to one charge of infanticide. She
had suffered since her birth from a reduction in her mental capacity, which had resulted in her
being assessed as falling in the category of mild-grade mental retardation.

Dr Robyn Ho in her report opined that the balance of the defendant’s mind was significantly
disturbed at the material time as a result from the acute mental and physical stress of delivering
a baby by herself, as well as her mild-grade mental retardation. She had not fully recovered from
the effect of giving birth to the child at the time of the alleged offence.

Given that suitable arrangements were made to assist the defendant, the judge made an order
for the defendant to be placed under the supervision of a probation officer for a period of 3
years.

HKSAR v. Gonzales Cherry Ann Carranza (HCCC No.142 of 2010)

The defendant, a Filipina national aged 29 years, pleaded guilty to one charge of infanticide. She
was a domestic helper in Hong Kong. The particulars of the charge were that she caused the
death of her child by her wilful act in throwing him out the window of premises where she was
living at the time.

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

Without an employment contract the defendant had no right to stay in Hong Kong. She also
wished to return to her home and family in the Philippines. Hence, probation order was not an

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option. The judge was also of the view that a suspended sentence was not appropriate in this
type of case.

After taking into account the usual discount for a plea of guilty the defendant could be regarded
as having served the equivalent of an 18-month sentence of imprisonment, or a longer sentence
than that if one took into account the discount for good behaviour given whilst a person in
custody. Hence, the judge imposed a sentence of imprisonment of such length as to allow the
defendant to be released immediately from prison.

HKSAR v. Chong Ching-yuet (HCCC No. 98 of 2011)

The defendant pleaded guilty to one charge of infanticide and was put on probation for 2 years
with the special conditions set out in the probation report. However, she had not complied with
those conditions. A further probation report did not recommend a further probation order.

Given that the defendant was pregnant again, the judge imposed a prison term of 24 months,
which was of such duration that, taking into account the time she had already spent in custody,
would result in her release soon after she had given birth with the help of the medical facilities
provided in prison, and for her to arrange for the baby’s care by others, which was what she
had indicated she intended, before she came out and had to fend for herself.

HKSAR v. Lin Jun (HCCC No.319 of 2011 and CACC No.135 of 2012)

The defendant pleaded guilty to one charge of infanticide. Under caution, she admitted that she
strangled her child because she felt that she could not bring up her child properly. After she
killed her child, she attempted to commit suicide.

Dr K W 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. Another expert Dr Amy Liu regarded the defendant as being not fully
recovered from the effect of giving birth to the child at the time of the killing. Dr Barry Connell, a
doctor employed by the defence, also prepared a report. All three doctors recommended
hospital order without specifying any period.

Hence, the judge authorised the admission of the defendant and her detention at the Siu Lam
Psychiatric Centre for an unspecified period.

The defendant sought leave to appeal and asked that the hospital order should be limited in
time. The Court of Appeal dismissed her application.

HKSAR v. Wong Mei-yi (HCCC No.374 of 2014)

The defendant was 20 years of age, unmarried and alone when she gave birth to her child in the
toilet of her parents’ home. She put him inside a waste disposal bin in the lift lobby on the 3rd
floor outside her parents’ home. The forensic pathologist was of the opinion that the cause of
death was multiple injuries, which was consistent with the account of the baby falling from the
3rd floor disposal shute down to the ground floor refuse room.

Dr Peter Yu in his report opined that following the delivery the defendant suffered shock and
fear, and the adverse effects of severe pain and heavy blood loss. At the time of the offence, she
had not recovered from the effect of giving birth and her mind was disturbed. He believed that
the defendant might benefit from psychosocial treatment. He recommended a probation order
for a suitable period.

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However, the probation officer did not recommend a probation order. He depicted the
defendant as a young woman who had hitherto lived a self-indulgent and irresponsible life. She
had not worked since she left school when she was 13 or 14 years of age and in that time
appeared to have been a regular drug abuser. His assessment of her was very critical, noting that
she was untruthful and evasive when discussing her past behaviour and current situation. He
doubted her sincerity to reform.

Nonetheless, despite the views from the probation officer, the judge put the defendant on
probation for 3 years with additional conditions to give teeth to the probation order.

The Rationale Underpinning the Infanticide Provision

The infanticide provision is meant to be a compassionate criminal law response to the tragic
circumstances which result in a mother killing her child. However, there has been increasing
criticism of our current infanticide law.

Firstly, there has been limited evidence supporting the proposition that lactation causes mental
disorders in new mothers. Hence, the artificial biological relationship between mental
impairment and childbirth required by the infanticide provision has come under constant
criticism for distorting the reality of most infanticide cases and encouraging experts to distort
their diagnoses to satisfy the elements of the infanticide provision. It is recommended that the
reference to lactation be dropped from the infanticide provision.

Also, it is argued that our current infanticide law is too limited in scope. There has been
increasing recognition that social stresses accompanying childbirth can cause mental
disturbances in new mothers as their particular role in caring for and raising young children can
be isolating and unsupported. Such stresses may persist beyond the year following childbirth.
Hence, a woman’s mind can be disturbed by circumstances consequent upon or exacerbated
by, but not necessarily caused by, the birth of the child, and such mental disturbances do not
cease automatically once a child turns 1.

Furthermore, it is argued that if the stresses of child rearing are primarily responsible for causing
mental disturbances, there is no reason to limit the infanticide provision to biological mothers.
Biological fathers have increasingly assumed the role of primary caregivers. Similarly, adoptive
parents can succumb to similar pressures as well and should be able to resort to the defence.

The Relationship Between Infanticide and Diminished Responsibility

The expert evidence nowadays tends to focus on the totality of a woman’s mental state, rather
than solely on postnatal depression. It is not unusual that the defendants of infanticide have
more than one type of psychiatric condition. These women often have experienced violence or
trauma during their childhood or in their adult relationships. They may also have a lengthy
history of psychiatric disorders or addiction.

Hence, there is a clear overlap between the defence of infanticide and that of diminished
responsibility. In Hong Kong, the defence of diminished responsibility is provided under section
3 of the Homicide Ordinance (Cap.339) as follows:-

“(1) Where a person kills or is a party to the killing of another, he shall not be convicted of
murder if he was suffering from such abnormality of mind (whether arising from a condition of
arrested or retarded development of mind or any inherent causes or induced by disease or

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injury) as substantially impaired his mental responsibility for his acts and omissions in doing or
being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by
virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or as accessory, to be
convicted of murder shall be liable instead to be convicted of manslaughter.”

It is argued that “disturbance of mind” for the defence of infanticide is a lower threshold than
that of “abnormality of mind” for the defence of diminished responsibility. Thus, infanticide
convictions could be based on mental states that do not necessarily reach the statutory
definition of mental disorders.

Furthermore, it is also suggested that the defence of diminished responsibility can already spare
those women who kill their children and who have mental illness resulting from postpartum
depression or psychosis or social stresses from the harshness of murder convictions. Hence, the
infanticide provision should be repealed.

Conclusion

Even though infanticide is a relatively uncommon offence, it deserves our attention since it
illustrates the difficulties in using law to provide remedy for a complex social or medical issue.
An examination of the current infanticide law in Hong Kong clearly points to the need for
reforms.

As mentioned above, there are various directions for reforms. However, before we can formulate
any plans for reforms, certainly more research is necessary to assist the general public and the
legal community to better understand the experiences of women who struggle in their maternal
role and how such struggles lead to violence against their children.

Acknowledgement

While conducting research for this article, the author benefits greatly from the following
articles:-

“Maternal Infanticide and Filicide in a Psychiatric Custodial Institution in Hong Kong” by Dr

Dorothy Tang and Dr Bonnie Siu, published in East Asian Archives of Psychiatry, Volume 28(4)
(2018), p.139-143.
“Mothers Who Kill: The Forensic Use and Judicial Reception of Evidence of Postnatal
Depression and Other Psychiatric Disorders in Australian Filicide Cases” by Lorana Bartels and
Patricia Easteal AM, published in Melbourne University Law Review, Volume 37(2) (2013), p.297-
341.
“Rationalizing Infanticide: A Medico-Legal Assessment of the Criminal Code’s Child Homicide
Offence” by Sanjeev Anand, published in Alberta Law Review, Volume 47(3) (2010), p.705-728.

Source: https://www.hk-lawyer.org/content/infanticide-hong-kong

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2022 年四月

香港的殺嬰罪

有關殺嬰的條文

本文將研究殺嬰，這是一個較不常見但很重要的刑事司法問題。在香港，有關殺嬰的條文載於《侵害人
身罪條例》（第 212 章）第 47C 條，內容如下：

「任何女子如因故意作為或不作為導致其不足 12 個月大的嬰兒死亡，而在該作為或不作為發生時，該
女子仍因未從分娩該嬰兒的影響中完全復原，或因分娩該嬰兒後泌乳的影響，而致精神不平衡，則即使
按有關情況，其罪行如非因本條規定應屬謀殺罪，該女子亦只屬犯殺嬰罪，並可處以刑罰，猶如已犯誤
殺罪一樣。」

近期的案例

以下案例說明近年香港如何應用有關殺嬰的條文。

HKSAR v. Lee Yin-fong (HCCC No.293 of 2008)

被告是一名 32 歲的女士，她承認一項殺嬰罪。她自出生起就有智力問題，被評估為輕度弱智。

Robyn Ho 醫生在報告中認為，由於分娩對被告的精神和身體造成巨大壓力，且被告為輕度弱智，被告
的在案發時精神嚴重不平衡。案發時，被告未完全從分娩的影響中恢復過來。

鑑於有關方面已作出適當安排協助被告，法官判被告接受感化主任為期 3 年的監管。

HKSAR v. Gonzales Cherry Ann Carranza (HCCC No.142 of 2010)

被告是一名 29 歲的菲律賓人，她承認一項殺嬰罪。她在香港當家庭傭工，被控故意把她的孩子從當時
住所的窗戶扔出，導致孩子死亡。

被告人聘請的精神科醫生 Peter Yu 醫生認為，案發在分娩後一小時內，被告尚未完全從分娩的影響中

恢復過來，精神不平衡。被告嚴重身心疲憊。她失血過多，承受了很大的痛苦。她的身體因陰道撕裂而
受到創傷。

被告沒有僱傭合約在身，無權留在香港。她亦希望回到菲律賓的家人身邊。因此，感化令並不是一個選
擇。法官亦認為，緩刑對這類案件並不合適。

法官考慮到認罪減刑後，被告可以被視為已被監禁 18 個月，或更長的刑期假如考慮到在服刑期間行為
良好的刑期扣減。因此，法官判被告一個可以令她即時出獄的刑期。

HKSAR v. Chong Ching-yuet (HCCC No. 98 of 2011)

被告承認一項殺嬰罪，被判接受感化兩年，期間須遵守感化報告中的特殊條件。然而，被告沒有遵守這
些條件。後續的感化報告不建議再判感化令。

鑑於被告再次懷孕，法官判處 24 個月監禁。由於被告已被拘留了一段時間，在監獄提供的醫療設施協
助下分娩後不久，被告的刑期便會屆滿。被告表示希望安排他人照顧嬰兒，以便她出獄後謀生。

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HKSAR v. Lin Jun (HCCC No.319 of 2011 and CACC No.135 of 2012)

被告承認一項殺嬰罪。她在警誡下承認勒死了她的孩子，因為她覺得自己無法正確地撫養孩子。殺死孩
子後，她企圖自殺。

K W Chow 醫生認為，被告人患有嚴重抑鬱症，有精神病症狀，她的情緒問題在產後開始出現。另一位
專家 Amy Liu 醫生認為，被告在犯案時還未完全從生孩子的影響中恢復過來。辯方聘請的 Barry
Connell 醫生也準備了一份報告。三位醫生都建議判沒有指定期限的住院令。

因此，法官判被告關押小欖精神病治療中心，沒有指定期限。

被告尋求上訴許可，要求住院令有期限。上訴法庭駁回了她的申請。

HKSAR v. Wong Mei-yi (HCCC No.374 of 2014)

被告 20 歲，未婚，在父母家的廁所獨自生下孩子。她把嬰兒棄置於父母家外三樓電梯大堂的垃圾箱。
法醫病理學家認為，嬰兒的死因是多處受傷，這與嬰兒從三樓垃圾槽掉落地下垃圾房的說法一致。

Peter Yu 醫生在報告中認為，被告在分娩後遭受震驚和恐懼，並受劇痛和大量失血影響。案發時，她還
未從分娩的影響中恢復過來，精神不平衡。他認為被告可能會得益於心理治療。他建議判適當期限的感
化令。

然而，感化官並不建議判感化令。他表示，被告過著自我放縱和不負責任的生活，自 13 或 14 歲輟學後
便沒有工作過，期間似乎有吸毒的習慣。他對被告的評價非常具批判性，指她在談論過去的行為和現在
的情況時不誠實和迴避。他質疑被告改過的誠意。

儘管感化官提出了意見，法官仍判被告接受感化 3 年，附以額外的條件去增強感化令的效用。

殺嬰條文背後的邏輯依據

殺嬰條文旨在對導致母親殺死孩子的悲慘情況，在刑事司法層面上作出富有同情心的回應。然而，對現
行的殺嬰法的批評越來越多。

首先，泌乳導致新任母親精神不平衡的證據有限。因此，殺嬰條文下所需要關於精神不平衡與分娩之間
的人為生物學關係，一直受到批評，因為它歪曲了大多數殺嬰案的現實，並鼓勵專家歪曲他們的診斷，
以滿足殺嬰條文所需要的原素。因此，有專家建議殺嬰條文刪除提及泌乳的部分。

此外，有人認為現行的殺嬰法範圍太局限。人們越來越認識到，伴隨分娩而來的社會壓力，會導致新任
媽媽出現精神不平衡，因為她們在照顧和撫養幼兒方面可以很孤立和得不到支持。這種壓力可能會持續
到分娩後一年以上。因此，女性的精神可能會因為孩子出生後的情況而受到影響或惡化，但不一定是由
孩子的出生引起，而這種精神不平衡不會在孩子滿一歲後自動停止。

此外，有人認為，如果養育孩子的壓力是導致精神不平衡的主要原因，那麼殺嬰條文就沒有理由只限於
親生母親。親生父親越來越多承擔主要照顧者的角色。同樣，養父母也可能受到類似的壓力，所以應該
能夠以此作為辯護。

殺嬰與減責的關係

現在的專家證據傾向關注女性的整體精神狀態，而不是僅僅關注產後抑鬱。殺嬰的被告患有一種以上精
神疾病的情況並不罕見。這些婦女在童年或成年關係中，經常遭受暴力或創傷。她們也可能有長期的精
神疾病或成癮記錄。

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因此，殺嬰罪的辯護與減責之間，存在明顯的重疊。在香港，《殺人罪行條例》（第 339 章）第 3 條規
定了減責的抗辯如下：

「(1)凡任何人在殺死或參與殺死他人時屬神志失常(不論是由心智發育停頓或遲緩，或與生俱來的因素，
或疾病或受傷所引起的)，而其程度足以使其對殺人或參與殺人時的作為及不作為的意識責任大為減輕，
則該人不得被裁定犯謀殺罪。

(2)在謀殺罪的檢控中，證明被控人憑藉本條不可被裁定犯謀殺罪的舉證責任，在於辯方。

(3)任何人若非因本條規定原可被裁定犯謀殺罪(不論作為主犯或從犯)，則可轉而被裁定犯誤殺罪。」

有人認為，作為殺嬰罪抗辯理由的「精神不平衡」，比作為減責抗辯理由的「神志失常」的門檻低。因
此，殺嬰罪的判決可以基於不一定達到法定定義下的精神障礙的精神狀態判定有罪。

此外，亦有人認為，減責的抗辯已能讓因產後抑鬱或精神病或社會壓力而殺害孩子的婦女，免被判處嚴
重的謀殺罪。因此，殺嬰條文應予廢除。

結論

儘管殺嬰是較不常見的罪行，但它值得我們關注，因此它說明了利用法律為複雜的社會或醫療問題提供
補救，是很困難的。香港現行有關殺嬰的條文明顯地是需要改革。

如上所述，改革有多種方向。然而，在制定任何改革計劃之前，我們需要進行更多研究，以協助公眾和
法律界了解婦女作為母親的掙扎，以及這些掙扎如何導致她們對子女作出暴力行為。

鳴謝