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Hksar v Bailey Natasha Mwale

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date19 February 2019
Neutral Citation[2019] HKCFI 472
Year2019
Judgement NumberHCCC215/2018
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC215/2018 HKSAR v. BAILEY NATASHA MWALE

HCCC 215/2018

[2019] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 215 OF 2018

______________

BETWEEN
HKSAR
and
BAILEY Natasha Mwale Accused

______________

Before: Deputy High Court Judge Bruce SC in Court

Dates of Hearing: 14 – 15, 18 and 19 February 2019

Date of Ruling: 19 February 2019

____________________________

RULING OF CASE TO ANSWER

____________________________


INTRODUCTION

1. On 13 February 2019, Bailey Natasha Mwale (“the Accused”) was arraigned on an amended 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. The original arraignment was on 4 February 2019. Nothing turns on the amendment for present purposes.

2. To that charge, the Accused pleaded not guilty. The case for the prosecution has always been that the unlawful killing of the baby girl was caused by an act or acts or omission or omissions amounting to gross negligence. The case for the prosecution has never been on the basis of any other form of manslaughter whether at common law or by statute.

3. Counsel for the Accused submits that there is no case to answer.

CASE FOR THE PROSECUTION

The Accused and her baby

4. The case of the prosecution is that the Accused is a Zambian national.[1] Her primary and secondary education was in Zambia.[2] In recent years, she studied in China.[3] The Accused came to Hong Kong on 5 September 2017 and was, at all material times, lawfully in Hong Kong asa visitor.[4] The Accused was in Hong Kong waiting for the expected grant of a visa to go to Australia to rejoin her mother and stepfather in that country.[5]

5. After her arrival in Hong Kong she stayed in a number of premises. Perhaps most relevant are that she stayed in the YesInn in Causeway Bay and was at the time of the events the subject of the indictment staying at the Check Inn in Hennessy Road, Wan Chai.[6] The Accused had departed the YesInn on 15 October 2017.[7] She had checked in to the Check Inn on 16 October 2017.[8]

6. The Accused became pregnant while she was a student in China.[9] She told police that she became aware of her pregnancy in August 2017.[10] The date of conception is not known although there is some evidence that the baby was near full-term when it was born.[11] In contrast, Dr Ma Wai Sze, a specialist gynaecologist who treated the Accused at Queen Mary Hospital on 18 – 20 October 2017 expressed the view that the uterus of the Accused was, on examination, a 16 week sized, well-contracted uterus. She told the court that estimating the term of the baby from examining the size of the uterus, particularly given the fact that the only real evidence of birth comes from the Accused and that she gave birth at about 7 pm on 17 October 2017 that such a basis for estimating the term of baby was not very reliable.

7. The Accused said to police that:[12]

“ I started to feel painful in my abdomen at around 17:00 hours on 17 October 2017 when I was in the bedroom of the hostel. Then, after around one hour and 45 minutes of pain I felt the painbecome intense so I rushed to the toilet at around 18:45 hours and then after 15 minutes of intense pain inside the toilet I felt the baby coming out from me at around 19:00 hours on 17 October 2017.”

8. The Accused told the police that she noticed the commencement of the pain when she was on her bed at the Check Inn.[13] The Accused said there was no one around when she started to feel pain.[14]

9. Critically, the Accused told police that the baby came out with her umbilical cord detached from her and attached to the baby.[15] (That is borne out by the pathologist report and photographs of the baby taken by the pathologist.) The Accused was asked whether the baby was alive when she first came out. The Accused said:[16] “Yes, she was alive because she hiccupped once.” The Accused said that she did not notice whether the baby opened her eyes or moved because she was scared and “did not see that clearly.” [17] The Accused was asked whether she tried to wake her and tried to test if she had any response such as checking breathing or heartbeat. The Accused said: “I was afraid and so I did not know what to do. I just could remember that she hiccupped once when she first came out from my body.”[18] The Accused told the police that she wrapped the baby in a piece of clothing and put her on a board in the toilet and started to clean herself up in the toilet.[19] Cleaning must have involved cleaning a lot of blood because by the time she got to the Queen Mary Hospital she was diagnosed as needing a transfusion of 2 units of blood.[20]

10. The Accused said that she wrapped the baby in a piece of clothing and went back to her bedroom for the purpose of asking someone to call for an ambulance but no one was there she said that she then put the baby into her bag to go out from the hostel and wanted to take her to the hospital.[21] There is no evidence in the prosecution case as to whether or not there were any staff present in or around the hostel at this time. She said that she took the baby in the bag and left the hostel. She said at the time she felt sick and dizzy.[22] She then walked to the rear lane behind the hostel for a rest. She said that she did not know what to do and took the baby out of the shoulder bag and put the baby in a rubbish bin.[23] The Accused said to the police that the rubbish bin was less than half full and there was some black garbage bags inside. She then put the baby which was wrapped with clothing onto a garbage bag inside the rubbish bin and put another garbage bag surrounding the baby so as to hide the baby from public view.[24] There is a photograph in the series of photographs which comprise P 71 which depicts a large wheeled green rubbish bin in the rear lane the subject of consideration.[25] That is fundamentally consistent with the description by the Accused. The Accused said that she stayed there about 5 minutes.[26]

11. The Accused was asked why she tried to hide the baby in the garbage bin. Her answer was that she did not want to get into trouble.[27] When asked the reason for this she said: “Because I gave birth to the baby but it did not move after she came out. I was afraid that I might have caused her death and did not want other people to get known of it.” (sic)[28]

12. In the second Record of Interview, the issue of whether or not the Accused thought the baby was alive or otherwise and, to an extent, when that was, is more explicitly addressed. The Accused was asked whether when she put her baby in the rubbish bin whether she checked that it was alive. To this she answered: “I had tried to see if the baby had any breathing and heartbeat but I could not feel anything. I tried to move her arms but she had no response.” [29] The Accused was then asked whether she was sure that the baby was dead when she put the baby in the rubbish bin. Her answer was: “No. I am not sure.” [30]

13. The precise time when she conducted this examination of the baby is not revealed in any of the prosecution evidence. There is an element of contradiction in what she says as to the time when she believed the baby was dead. The Accused says at one stage that her motivation for leaving the hostel was to take the baby to hospital. While it is conceivable that she had in mind taking a dead baby to the hospital the more likely state of mind is that she believed or at least hoped that the baby was still alive. As will appear in later passages in these reasons, what she actually believed about the baby being alive or otherwise is of limited relevance.

14. There is available to the prosecution a series of CCTV records taken in various places which depict the Accused leaving the Check Inn and leaving the building in which the Check Inn is located. There are a number of other CCTV locations to which I will refer further later on. In relation to the CCTV which depicts the Accused departing the building in which the Check Inn is located, it is not difficult to see the Accused departing at 7:59 pm.[31] That places her departure at about one hour after the birth. The real lane approximately bisects the buildings on Hennessy Road and Lockhart Road between Stewart Road and Tonnochy Road in Wan Chai. The Accused during the course of her first Record of Interview on 19 October 2017 recognises herself in the stills of the CCTV footage as she emerged from the lane at the Tonnochy Road end, and that places the time at 8:04 pm.[32] There are similar acts of recognition in the second Record of Interview.

15. The Accused says that after she left the rear lane at the TonnochyRoad end, she went to the YesInn (the hostel where she had previously stayed until 15 October 2017) and went there for the purpose of retrieving her luggage which she had left there. She had checked in to the Check Inn with nothing but a handbag.[33] That is confirmed by CCTV records at the YesInn which place the Accused there at 8:44 pm. She is seen leaving the YesInn with some luggage at 9:20 pm the same day. The reason that the Accused gave for this is that she had been permitted to leave her luggage at the YesInn and she wanted to change her clothes. In particular she wanted to change her dress which was smeared with blood. He told police that she changed her dress at the YesInn and threw the original dress in a rubbish bin in the toilet of the YesInn.[34]

16. The Accused said that after she changed her clothes at the YesInn she returned to the Check Inn and went to her room and took a rest. The police came to her about 3:30 pm on 18 October 2017.[35] On that premise, allowing about 30 minutes for the Accused to wheel her suitcase back to the Check Inn...

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