Regina v Hong [2004] SBHC 33; HC-CRC 174 of 2003 (28 April 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 174 of 2003

REGINA

-v-

GULA HONG

HIGH COURT OF SOLOMON ISLANDS
(F.O. KABUI, J.).

Date of Hearing: 26 April, 2004 at Gizo.
Date of Sentence: 28 April, 2004.

J. Cauchi and H. Kausimae for the Crown.
E. Garo for the Accused.

SENTENCE

F.O. Kabui, J.: You were charged with the offence of infanticide, contrary to section 206 of the Penal Code Act (Cap. 26) “the Code” in the first place. The Prosecution however amended the charge to that of concealment of birth, contrary to section 220 of the Code to which you pleaded guilty. I accordingly entered a guilty plea on your own plea and convicted you of the offence of concealment of birth as charged. I adjourned the hearing to pass sentence on you today. I do so now.

The offence of concealment of birth of a child in terms of section 220 of the Code is a misdemeanour. A misdemeanour is an offence which is not a felony being an offence which carries a penalty of imprisonment for 3 years or more in terms of section 4 of the Code. Section 220 of the Code does not stipulate the penalty for a misdemeanour under that section so that section 41 of the Code applies. That is, the penalty for a misdemeanour under section 220 is imprisonment for a term not exceeding 2 years or with a fine or both imprisonment and a fine. This is the parameters within which I must act in this case. Your Counsel, Miss Garo, cited section 24(3) of the Code which gives the Court discretion to impose a custodial sentence. Your Counsel urged me to consider a fine as the alternative punishment for you than imposing a custodial sentence. The decision of imposing a fine in lieu of a custodial sentence is a matter for the discretion of the court. Before I decide what punishment I should impose on you, I feel I should say something about concealment of birth as an offence in the criminal law in Solomon Islands. My research has not thrown up any precedents in this jurisdiction other than the offence of infanticide. In R. v. Hilda Tiu, Criminal Case No. 2 of 1982, the accused was sentenced to 12 months imprisonment, 6 months of which were suspended. In R v. Anna Katea, Criminal Case No. 35 of 1996, the accused was sentenced to 2 months imprisonment. In Imiyo Wamela v. The State [1982] P.N.G.L.R 269, the accused was sentenced to 10 months imprisonment. These are however punishments for the offence of infanticide. Concealment of birth is of course a lesser offence than infanticide but still is a serious offence nevertheless for which you can be imprisoned.

Concealment of birth was first created a statutory offence in 1623 in England. The offence at that time was limited to illegitimate children being born alive but the bodies disposed of to conceal death. The object was to include women who would have escaped prosecution for murder owing to the difficulty in proving that the child was alive at birth. Section 60 of the Offences against the Person Act, 1861 is the provision upon which section 220 of the Code is based for the same reason for creating the offence of concealment of birth in the first place in 1623, and onwards. However, the position since 1861 onwards is that the limitation to illegitimate child is gone and section 220 applies equally where the child is illegitimate or not. The reason for the reduction of the charge from infanticide to concealment of birth is obviously that the death of your child could not be directly attributed to any deliberate act on your part in terms of section 206 of the Code. The facts produced by the Prosecution in your case do speak for themselves on the charge of concealment of birth. You pleaded guilty and you have no previous conviction against your name. You are a person of good character. You co-operated with the Police in the investigation of the offence. You committed the offence some 11 months before you were charged in the High Court for the same. You are now working and earning a living in Gizo and a member of the United Church Youth Group being a young person yourself. I have studied the facts presented to the Court by the Prosecution. The shame that your pregnancy had brought upon you within your community and amongst your relatives must have been intense so as to have prompted you to behave in the manner you did on the day you committed the offence. The act of getting rid of the body of your child by wrapping it up and placing it on a rubbish heap so as to appear that no birth had taken place is the offence you committed against the law. The alternative was for you to have asked for assistance but you had chosen not to in your case. You did what you did because you thought the baby was not breathing and probably assumed that it was already dead. You had suffered a great deal by choosing to go it alone. The stinging labour pains you underwent, the loss of blood that followed and the effect of them on you must have been a terrible experience without the love of the father of that child and relatives. The numbers of stiches to repair you being 12 in total do speak for itself. You have suffered enough already. Section 24(3) of the Penal Code cited by your Counsel does seem to apply to cases where the punishment prescribed by law is imprisonment per se or that a fine in lieu of imprisonment may be imposed or a fine may be imposed in addition to a term of imprisonment. However, section 41 of the Code is cast different from cases envisaged by section 24(3) cited above which do exist in the Code. How I read section 41 of the Code is that I can impose a custodial sentence on you or fine you or impose on you a custodial sentence as well as a fine. I will not send you to prison. I will fine you. You will pay a fine of $50.00 by 4:30 pm today in default of which you will go to prison for 2 months. I order accordingly. You may now leave the dock. I hope you have learnt from your mistake.

F.O. Kabui
Puisne Judge