HKSAR v. Wong Wing-man, Mandy Alias Wang Xuexin and Another
Read the full judgment text of HCCC 76/2017 on BabelCite. This High Court CFI judgment was delivered on 29 June 2018.
1. This is a grotesquely shocking case of child neglect which is more aptly described as one of child cruelty. It ranks as one of the worst cases of its kind. The jury by unanimous verdicts has found the 1 st and 2 nd defendants guilty of the charges that they faced. The 1 st defendant was found guilty of wilfully neglecting her 7-year-old daughter, Ling Yun Lam, Suki (Yun Lam), who as a result now lies in a vegetative state with permanent brain damage (Count 1). The 1 st defendant was also foun
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HCCC 76/2017 [2018] HKCFI 1484 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 76 OF 2017 _______________
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_______________________ REASONS FOR SENTENCE _______________________ 1.This is a grotesquely shocking case of child neglect which is more aptly described as one of child cruelty. It ranks as one of the worst cases of its kind. The jury by unanimous verdicts has found the 1st and 2nd defendants guilty of the charges that they faced. The 1st defendant was found guilty of wilfully neglecting her 7-year-old daughter, Ling Yun Lam, Suki (Yun Lam), who as a result now lies in a vegetative state with permanent brain damage (Count 1). The 1st defendant was also found guilty of two offences of perverting the course of justice, one which she committed alone, and the other, she committed jointly with the 2nd defendant (Counts 2 and 3). The 2nd defendant was the father of Yun Lam, although not the natural father, and he too was found guilty of the offence of perverting the course of justice he faced together with the 1st defendant (Count 3). The trial proceedings 2.The trial of the defendants lasted a little under 50 days. After the presentation of the prosecution case, both defendants gave and called evidence. In the 2nd defendant’s case, he called psychiatric evidence and the prosecution called psychiatric evidence in rebuttal. 3.The 1st defendant’s defence in relation to Count 1 was that she was not the carer of Yun Lam during the relevant period. She said that it was the 2nd defendant. The 2nd defendant denied that he was the carer. He said that they were separated, that he lived with his mother in a residence in Tsing Yi and that she lived with the children in a residence in Tsuen Wan. 4.The prosecution case was that the carer was the 1st defendant, that she must have been well aware that Yun Lam was being starved, given the length of time that she was being deprived of nutritional food and the loss of weight and the loss of mobility through weakness; that Yun Lam was suffering with wounds and bedsores that were growing in severity and could only be treated by timely medical intervention; and that by not feeding her properly and taking her to a doctor promptly, prolonged and intensified her suffering which would have been self-evident. 5.As to Count 2, the perverting offence against the 1st defendant, the prosecution case was that between 18 and 24 July 2015, she knowingly provided false information relating to the background, medical history and health condition of Yun Lam to Dr Mo Pan, Helen Cheung and Madam Fung Yuet Mei, who were persons to whom such information would be of relevance and interest in relation to police investigation or criminal proceedings of child neglect or abuse in relation to Yun Lam. The prosecution said that the false information to each of these persons was that Yun Lam had been born premature and had congenital developmental defects, that she was unable to walk or talk and was bedridden, that she was cared for by her maternal grandmother in mainland China, and that she recently came to Hong Kong on 24 June 2015. The provision of the false information by her was to prevent or deflect the police investigation or criminal proceedings of child neglect or abuse in relation to Yun Lam. 6.As to Count 3, the joint perverting offence against the 1st defendant and the 2nd defendant, the prosecution case was that between 24 July and 14 September 2015, they knowingly provided false information relating to the background, medical history and health condition of Yun Lam to Helen Cheung, Dr Tsang Yat Ming, Ms Chan Hiu Hiu, WDPC 10313 Wan Fung Yi, DPC 6525 Lui Ka Chun, DPC 3881 Lam Kwan and DPC 53196 Li Lit Hong, who were persons to whom such information would be of relevance and interest in relation to a police investigation or criminal proceedings in the case of child neglect or abuse in relation to Yun Lam. 7.The false information variously provided was that Yun Lam was born prematurely and with congenital developmental problems and defects. She had been kept in an incubator for two months at the hospital after birth. She was unable to walk or talk. She was mentally retarded. She had bedsores on her body because she was bedridden. She could not eat solid foods and had to be fed congee and glucose only. She would play with her excrement and urine and sometimes rub it on her body. The 1st defendant’s mother cared for Yun Lam in mainland China but was unable to cope with Yun Lam and her health deteriorated. The 1st defendant had brought Yun Lam to Hong Kong only recently on 24 June 2015 to help her. It was difficult for the 1st defendant because she had to look after three other children. On 18 July 2015, Yun Lam had eaten congee and while having a shower, she passed out. 8.In the main, this false information was contained in the 1st defendant’s statement to the police dated 12 August 2015, exhibit P23, as well as information that the 1st defendant provided to medical and welfare staff. The 2nd defendant in more general terms provided such false information about the condition of Yun Lam and in a statement he produced to the police during an interview on 14 September 2015, exhibit P43, which had been concocted between the 1st defendant and the 2nd defendant, he added that he was the carer of Yun Lam. 9.The defences of the two defendants in relation to the perverting offences were as follows. In relation to Counts 2 and 3, the 1st defendant’s case was that she only said to the persons in question what she was told to say by the 2nd defendant, and she did so on his instructions because she was in fear of him, and that he would cause her and her twin daughters harm. On this basis, she said she was acting under duress in relation to the two counts of perverting. She also said that she had no intention to pervert the course of justice by what she said. This was rejected by the jury as evidenced by its verdicts. 10.In relation to Count 3, the 2nd defendant said that he was acting under duress as a result of threats of suicide by the 1st defendant, taking with her the twin daughters, the son and his mother, and additional threats from her of harm to his mother, elder sister and brother. He also said that because of his background and circumstances, having had a heart attack, and the guilt that he had as a husband and father for having failing his family, together with his personality and character, and his mental health, being a person of weak character and suffering severe depression, this affected his judgment. As a consequence, he could not resist the pleadings and threats of the 1st defendant in relation to the false statements made to the relevant authorities when he was present with the 1st defendant or when he made them himself. He said that a two-page statement that was produced by him to the police was arranged and created by the 1st defendant, and he did it because of the threats and pressures from the 1st defendant. This was rejected by the jury as evidenced by its verdict. 11.The jury by its verdicts rejected the defences of both defendants, and accepted the prosecution case. The evidence at trial 12.At about 11:17 pm on Saturday, 18 July 2015, Yun Lam was taken by the 1st defendant to the Accident and Emergency Department of Yan Chai Hospital. Yun Lam was seriously ill. She was in a state of cardiac arrest and had stopped breathing. Emergency resuscitation was immediately performed on her by the medical staff which was successful. She had multiple wounds and bruises all over her body and was suffering from severe malnutrition. Medical opinion was that her severe bad state of health had occurred over a protracted period. Her condition of severe malnutrition was most likely caused by starvation either intentionally or through neglect. She had suffered from multiple wounds and other injury, including gangrenous wounds, which were inadequately and improperly treated. She had become very weak due to the prolonged bedridden status and immobility that she was in, which led to a life threatening cardiac arrest. Even though she had been successfully resuscitated, she sustained permanent brain damage. 13.There was no doubt that Yun Lam was the victim of serious neglect or abuse. 14.After Yun Lam was admitted to hospital, the 1st defendant, and later together with the 2nd defendant, embarked on a course of conduct providing false information about the background, medical history and condition of Yun Lam. 15.The 1st defendant provided at various times to various persons, who obviously had an interest in Yun Lam’s condition as a possible case of child abuse, the false information which was essentially that Yun Lam had congenital developmental defects and problems, that she had been badly cared for in mainland China, and that she had only recently arrived in Hong Kong on 24 June 2015. The 2nd defendant went along with these false representations about Yun Lam, and on some occasions agreed to them, and on other occasions repeated them. 16.The uncontested evidence was that Yun Lam came to Hong Kong on 4 November 2014 and attended, albeit with increasing irregularity, a local kindergarten in Tsuen Wan close to the 1st defendant’s residence. Eventually, both the 1st defendant and the 2nd defendant acknowledged that their statements were false, but each claimed that the other had threatened and forced the other to say these things. 17.The 1st defendant was born in Shantou in mainland China on 1 September 1975. It appears that in around October 1997, she got married to Cheng Man Fung in the Mainland, with whom she had twin daughters on 30 August 2000. It is not clear when that marriage dissolved, but in 2005 she was introduced to the 2nd defendant. A year later, she and the 2nd defendant got married in Hong Kong on 19 August 2006. It seems that after they got married, the 1st defendant returned to the Mainland and she and her twin daughters lived with the 1st defendant’s mother. 18.Varying stories have been given as to the 1st defendant’s background during the trial proceedings. She testified that she came from a poor farming family and had little education but eventually worked as a kindergarten teacher. In another account, as contained in her witness statement, exhibit P23, she said that she graduated from Guangzhou University and was a secondary school teacher, teaching Chinese and Mathematics. 19.It emerged during the course of the trial that the 1st defendant had two sets of prior convictions. One on 28 August 1993, for using a false Hong Kong identity card and remaining in Hong Kong having landed unlawfully, for which she was sentenced to concurrent terms of 12 months’ imprisonment, and another on 10 April 2014, for theft, for which she was fined $1,000. 20.It seems that the 1st defendant was introduced to the 2nd defendant in mainland China in 2005. He was at about 40 years of age at the time. He was the youngest of three children. He had not done well at school or at work, and presented himself as a person of fairly low esteem with few friends. He lived with his mother in a public housing unit in Tsing Yi. He had not been previously married. 21.He married the 1st defendant on 19 August 2006. The 1st defendant had twin daughters from a previous marriage. After they got married, he returned to Hong Kong and would visit her and the two daughters in the Mainland every half year. In 2007, he learned that the 1st defendant was pregnant. On 17 February 2008, Yun Lam was born. He did not attend the birth. It later emerged during the course of the trial that he was not the natural father of Yun Lam. The 1st defendant had another child, a boy, who was born in 2009. After the birth of the son, the 2nd defendant then made arrangements for the 1st defendant and the family to obtain one-way permits to come and settle in Hong Kong. 22.In April 2012, the 2nd defendant suffered a heart attack and stopped working. He eventually claimed CSSA together with his mother because of his health problems. 23.The 1st defendant and the family came to settle in Hong Kong in November 2012, but Yun Lam was returned to the Mainland in late December 2012. There was a period when the 1st defendant and the three children lived with the 2nd defendant and his mother at the Tsing Yi residence. However, on 1 April 2013, the 1st defendant and the three children lived apart from the 2nd defendant, having moved into a residence in Tsuen Wan. It appears that during this period there were arguments over the CSSA payments, and eventually the 1st defendant became the agent and then the applicant for the CSSA payments. 24.Eventually, Yun Lam was brought to Hong Kong on 4 November 2014. Despite the denial by the 1st defendant, the jury has found that Yun Lam lived with the 1st defendant at the Tsuen Wan residence. The 1st defendant in her evidence sought to distance herself from having any connection to, or responsibility for the care of, Yun Lam. She also denied that she enrolled Yun Lam into a local kindergarten and that she lived with her in the Tsuen Wan residence. However, the jury by its verdict has found that the defendant did enrol Yun Lam into the local kindergarten in November 2014. The 1st defendant had claimed that it was either the 2nd defendant’s girlfriend (the 2nd defendant having denied that he had a girlfriend), or his elder sister, who enrolled Yun Lam into the kindergarten, but as I said, this was rejected by the jury. Both the deputy principal and the teacher of the kindergarten positively identified the 1st defendant as the mother and the person who brought Yun Lam to the kindergarten and picked her up. The prosecution presented the records of the kindergarten and of the CSSA claims, which evidenced that the 1st defendant was the carer of Yun Lam. The records contained the 1st defendant’s particulars as the contact person for Yun Lam, and that she had made claims for social benefits for Yun Lam, as well as declarations in the relevant CSSA review forms. The true condition of Yun Lam 25.The true condition of Yun Lam before the offence was revealed by the testimony of the teachers at the kindergarten and the records that were kept of her progress and development. Whilst Yun Lam’s attendance at the kindergarten from November 2014 to the end of April 2015 became increasingly infrequent, her progress and development was recorded by her teacher, Madam Tam Choi Yuk. Yun Lam was initially interviewed together with the 1st defendant by the deputy principal, who granted Yun Lam admission to the kindergarten. She testified that she was impressed by Yun Lam as being quite smart. She was able to respond to questions and do simple exercises such as writing Chinese characters and numbers. 26.Yun Lam’s teacher Madam Tam monitored her attendance and progress at the kindergarten. She took photographs of her when engaging in school activities. In the photographs, Yun Lam is seen engaging in sporting activities and participating in class exercises. Her work and drawings were depicted in the photographs. Madam Tam graded Yun Lam as above average, and her work was on occasions highly graded. Meals were arranged for the children and she displayed no appetite problems or eating disorders. 27.From the evidence, Yun Lam presented as a bright young 7-year-old who was doing well at school with nothing physically or mentally wrong with her. 28.The condition of Yun Lam after the offence was revealed by the evidence of the doctors that treated her. Dr Mo described her condition upon arrival at the hospital as pale, pulseless and breathless. He said that she looked cachectic with multiple pressure sores on her elbows, bilateral heels and trochanteric areas; multiple bruises all over her head; desquamation over both heels; and multiple abrasion wounds of different ages over both soles. He was of the opinion that Yun Lam was suffering from severe malnutrition and the likely causes included chronic illnesses and child abuse. He said that the general poor skin conditions with multiple pressure sores and contracted limbs observed, could only be explained by malnutrition plus chronic immobility. Whilst he said the multiple bruises over her head could be secondary condition as a result of Yun Lam’s poor condition, I am satisfied on the evidence that it was as a result of physical abuse. 29.It was an admitted fact that Dr Kwong Ngai Shan was of the opinion that Yun Lam sustained permanent brain damage with significant functional and cognitive impairment. He concluded that Yun Lam’s condition of severe malnutrition was most likely caused by starvation either intentional or through neglect. He also noted that she had suffered from multiple wounds and other injury which were inadequately and improperly treated. 30.Dr Tsang Yat Ming was the treating paediatrician of Yun Lam. He stated that Yun Lam was confused with limited spontaneous movement. She was not able to follow verbal commands. He noted that she had cachexia with hip and knee contractures. Her personal hygiene was poor with skin cracking. There were multiple bedsores over the sacrum and buttocks. Ulcers with gangrenous skin base were noted especially over the left thigh, knee and bilateral feet. He also found she had multiple superficial skin abrasions all around the body. She was malnourished with thin limbs, atrophic muscles and minimal subcutaneous fatty tissues. He explained that the wounds on her body had multiple bacteria for which she was treated with prolonged courses of antibiotics. He said that her bodyweight was 14.8 kilograms and that was two weeks after admission after a period of parenteral nutrition supplementation. 31.He explained that after extensive investigations the likely cause of the wasting was related to reduced oral intake, which could be due to child neglect or abuse. He eliminated any condition or disease for the reduced oral intake. He said that the period of malnutrition was relatively short in nature due to the preservation of height compared to weight. 32.He noted that Yun Lam had multiple wounds especially over her lower limbs. Deep bedsores were noted over sacrum and buttock. The wounds were with signs of infection. As to the wounds, he said:
33.He also noted that Yun Lam had bilateral hip contractures. He said:
34.Dr Tsang was provided information about Yun Lam’s attendance and performance at the kindergarten. After consideration of this material, he said that it suggested that she had no significant developmental delay. He said that this made congenital brain insult unlikely and this correlated with the MRI finding on 9 September 2015. He explained that Yun Lam was malnourished on admission but her body height was preserved, which suggested that the period of malnutrition was relatively short and could have occurred within two to three months. He also noted that Yun Lam had bilateral hip and knee contractures on the day of admission, which suggested a period of immobilisation at least for more than a few weeks prior to admission. He also observed that there was no contracture in the photographs provided by the school teacher of Yun Lam and that she mobilised well in sport performance in kindergarten. He was of the opinion that this suggested that an acute neurological deterioration happened at least a few weeks to months before admission, leading Yun Lam to be immobilised on the bed, causing multiple bed sores and bilateral lower limbs contractures. 35.The doctor was of the opinion that as there was no evidence of past haemorrhage as suggested by the MRI and extensive investigation did not suggest organic causes, brain hypoxia would be the most likely cause of the acute brain insult. He in essence was saying that there had been a previous trauma to the head of Yun Lam and this would indicate that she had been previously physically abused. 36.The doctor was of the opinion that the likely cause of malnutrition was due to reduced oral intake either intentional, or secondarily to impaired swallowing function due to brain damage. He said that there were big infected wounds with gangrenous skin over the left thigh and left anterior calf, which were not typical sites for the development of pressure sores. He said that the wound was dirty and infected and was likely to have been present for at least one to two weeks before admission. He said the cause of infection was likely due to poor hygiene with improper wound care. 37.The doctor explained that Yun Lam was cachexic on admission with significant wasting. He said that the period of malnutrition was relatively short in nature due to the preservation of height compared to weight. He said that this indicated that Yun Lam had adequate nutrition in the past and had significant starvation which resulted in the drop of bodyweight. He was of the view that this could have occurred within a few months. 38.The doctor explained that with severe hypoxia and brain damage, neurological recovery would be grave and that Yun Lam was likely to be in persistent minimal conscious state and that significant cognitive improvement was very unlikely. The false condition of Yun Lam 39.From the moment Yun Lam was admitted to Yan Chai Hospital on 18 July 2015, she was depicted by the 1st and 2nd defendants as a child with physical and mental disabilities. As it transpired, these assertions were false. The 1st defendant conveyed to others that were making inquiries of her that Yun Lam suffered from anorexia nervosa, that she passed out after having congee and taking a shower, that she only recently came to Hong Kong from the Mainland on 24 June 2015, that she was born prematurely, that she had to stay in hospital for two months before she was discharged, that she had developmental delays and problems, that she had difficulty absorbing nutrients and would be fed congee and glucose syrup, that she was unable to walk or talk and was bedridden since birth, that she would play with her own excrement, and that she had been in the care of her maternal grandmother who was unable to feed her and she got thinner and thinner. All these representations were false. 40.The 2nd defendant either agreed with the representations of the 1st defendant or made similar representations himself. He also depicted Yun Lam as a child that was slow and had difficulty walking. Even when he falsely represented that he was the carer of Yun Lam, he still continued with such representations and to some extent also after he admitted that he lied about being the carer. The future condition of Yun Lam 41.An update report has been submitted to the Court from the Caritas Medical Centre dated 7 March 2018 in relation to Yun Lam. It is noted that Yun Lam is currently 10 years old and that after she had been admitted to Princess Margaret Hospital on 19 July 2015, she was transferred to the care of the Caritas Medical Centre on 28 June 2016 and has been under their long term care for her residential and medical needs. It is stated that she has mental retardation and cerebral palsy. 42.She is currently bedbound and dependent fully for her activities of daily living. She has spastic quadriplegic cerebral palsy with marked hypertonia, and she has been put on limb splinting for her hypertonia as well as being prescribed medication. She has been prescribed additional medication to control seizures. She is minimally responsive with no visual following, no verbal communication and not responsive to being called. She is incontinent for micturition and defecation and is on diapers. 43.The report concludes:
44.A further report was submitted to the Court from the Caritas Medical Centre dated 26 June 2018, giving a prognosis and expected life expectancy of Yun Lam. It is reported that she is minimally conscious and with limited response to external stimuli. She is bedbound and has no visual following or spontaneous speech. She needs to be force fed and requires constant oxygen support. She is prone to seizures. She is expected to have poor prognosis in terms of neurological recovery with minimal rehabilitation potentials. She is currently oxygen dependent and her respiratory function is expected to deteriorate with further episodes of infections or pneumonia. The report goes on to state that based on her profound disabilities, her life expectancy will be significantly shortened and according to their clinical experience, majority of children with similar conditions cannot survive beyond the second decade of life. It is added that survival can be further limited by vulnerability to devastating and life-threatening complications from common illnesses as well as other possible forms of death. This report makes for depressing reading, and it appears that Yun Lam is destined for an early death. 45.The future for Yun Lam is grim and what future there is for her will be under constant medical care and review. The life that she could have had, has now been denied, and what life she will have, will most certainly be in a vegetative state in which she will continue to suffer greatly. 46.Yun Lam has suffered the most serious physical and psychological harm as a result of the abuse of her by the 1st defendant. The wilful neglect offence 47.The offence of neglect of a child is provided by section 27(1) of the Offences against the Person Ordinance, Cap 212. It imposes a sentence on conviction on indictment to imprisonment for 10 years. 48.Mr Chun Keung Leung, for the 1st defendant, has submitted two cases concerning the sentencing in relation to the offence of neglect of child. The first case is Secretary for Justice v Lai Wing Wai [1995-2000] HKCLRT 554. The Court of Appeal (Wong and Woo JJA and Yeung J) dismissed an application for review by the Secretary for Justice of a sentence to detention in a training centre of an 18-year-old father who had pleaded guilty to cruelty to his 8-month-old daughter after having hit her to the head, face and limbs with his fist when the child would not stop crying, causing her brain injuries and multiple bruises. The Court stated that in the exceptional circumstances of the case the sentence was acceptable. The Court said that a starting point of 4 years’ imprisonment was most appropriate and with a one-third discount for the defendant’s plea, a sentence of 2 years and 8 months’ imprisonment would result. The Court equated this term of imprisonment with the likely period of detention under the training order. The Court accepted the factors that the sentencing judge had taken into account, that the defendant was under pressure at the time which led to an emotional outburst which was an isolated incident, after which he immediately took the child to hospital. The Court agreed and accepted that there were a range of matters that could be taken into account in the defendant’s favour. 49.The second case is Secretary for Justice v Lam Lui Yin [2007] 1 HKLRD 248. The Court of Appeal (Ma CJHC, Stuart-Moore VP and Lunn J) granted an application for review by the Secretary for Justice of the sentences of 2 years’ imprisonment which were quashed and substituted with sentences of 4 years’ imprisonment on the parents for conviction after trial of the offence of neglect of a child. The victim child was one of triplets who was born prematurely and found to be suffering from congenital heart disease. He had a series of operations and had been hospitalised from birth until he was two. After which he died as a result of head injuries, and it was revealed that he had bruises and abrasions over his body. The Court in that case examined the personal circumstances of the defendants as well as the circumstances of the case and concluded that the sentences properly reflected the gravity of the offence “in the circumstances of this case”. 50.There is little utility in relying on these cases for the purpose of making a comparison with the present case. It is well recognised that comparisons with sentences passed in other cases can sometimes be misleading, because the circumstances of the offence and the offender will be different as between different cases. 51.Mr Duncan Percy, for the prosecution, submitted three cases. The first was R v Lam Wai Mei, 197/1995, 17 August 1995, unreported (Litton, Bokhary and Liu JJA). The appellant in that case was 19 years old at the time of the offence of wilfully neglecting her child, a baby boy. She left him in the care of another person who was separately dealt with in relation to the same offence, who returned the baby to her with punctures all over his body as well as a broken wrist. She did not take the child to a doctor for medical treatment or send him to hospital. Some days later, she returned the child to the care of the same person and when he was taken back, he had on him some 80 punctures plus the broken wrist. He also sustained injuries to his penis and cigarette burns to his back. There were also multiple bruises all over his body. At the time of the appellant’s conviction, the law allowed a maximum sentence of 2 years’ imprisonment. The trial judge adopted as a starting point the maximum penalty of 2 years and allowed for a small discount of 3 months for the appellant’s plea of guilty. The Court upheld the sentence and the judge’s adoption of the maximum penalty as a starting point. 52.The Court stated:
53.The second case was HKSAR v Lam Wai Man [1999] 3 HKLRD 855 (Stuart-Moore VP and Mayo JA). The applicant in that case was a 22-year-old mother of a 20 months old child who pleaded guilty to charges of cruelty to a child and to manslaughter on the ground of gross negligence. She was sentenced to a total of 9 years’ imprisonment. The trial judge adopted a starting point of 9 years for the cruelty offence and one of 12 years for the manslaughter offence, and stated that the totality of the sentence should be 9 years. After giving a discount for her guilty plea, he imposed sentences of 6 and 8 years respectively and ordered that 1 year on the cruelty charge should run consecutively. One of the grounds of appeal against sentence in that case was that the starting points were too high. The Court noted that this was a very grave case of its kind. The cruelty had been ongoing for some time and was deservedly reflected in a partly consecutive sentence. It was noted that legislation has recently increased the maximum sentence for ill-treatment or neglect by those in charge of a child from 2 to 10 years in order to equip the courts to deal with cases as grave as the one before it. 54.The Court held that there was no reason to interfere with the sentences imposed and added that to have found otherwise would be to ignore a cardinal principle of sentencing, namely to take into account the consequences to the victim, who in that case had died at the end of what amounted to various forms of torture spread over a fortnight while he was in the care of the applicant. The baby had large bruises over his face and body and was in a semi-conscious state when rushed to hospital for immediate treatment. The baby was found to be suffering from a critical brain injury and suffered from cardiac arrest and eventually died. A pathology report disclosed multiple injuries to the head and body of the child inflicted over the previous two weeks, including ligature marks, burn marks and cane marks. 55.The sentencing judge found that the applicant was proactive in abusing the child and even though if she did not inflict all the injuries, she bore significant responsibility for them. That was the basis for why he adopted a starting point of 9 years for the cruelty offence. 56.The third case is HKSAR v Lam Wai Shu and Another [2007] HKEC 1788 (Ma CJHC, Stuart-Moore VP and Beeson J). The parents of a 4-month-old girl pleaded guilty to cruelty to a child but were convicted after trial of manslaughter. They were each sentenced to 5 years and 4 months’ imprisonment on the cruelty to a child charge and 10 years’ imprisonment on the manslaughter charge. The mother appealed against her sentence, which the Court confirmed, even though she claimed that the injuries to the child were caused by the father. The Court noted that the sentencing judge had imposed a starting point of 8 years’ imprisonment on the cruelty to a child charge which he reduced by one-third for her guilty plea. The Court dismissed the appeal that the sentence was manifestly excessive. 57.As I have already mentioned, whilst seldom utility can be made by comparing the sentences of different cases because no two cases are exactly alike, it seems to be clear in very serious cases of child neglect that close to the maximum of 10 years’ imprisonment has been adopted as a starting point. 58.Mr Leung in his written submission submits on his analysis of the more serious cases that they involved physical abuse and that whilst it is acknowledged that the present case is a serious child abuse by neglect, he contended that it did not involve physical abuse. 59.I find that Yun Lam was subjected to extensive physical abuse and I will explain this finding in more detail later. The perverting offences 60.The offence of perverting the course of public justice is provided by the common law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. So far as material, section 101I reads:
61.By an amendment to section 101I of the Criminal Procedure Ordinance, in 2008, the ceiling limit of 7 years’ imprisonment was specifically removed for the offence of perverting and was replaced to imprisonment for any term and a fine of any amount. 62.The offence of perverting strikes at the heart of the administration of justice. By its very nature, it is an attempt to impair or prevent the due exercise of the courts to do justice which may result in miscarriages of justice or deflecting the ends of justice. 63.The usual factors to be taken into account when sentencing for the offence of perverting are the seriousness of the substantive offence to which the perverting relates, the degree of persistence of the offender’s conduct and the effect of the offender’s conduct. 64.Where the perverting involves a deception practised on others, factors relevant to sentencing would be the nature of the deception, the length of time during which the deception was maintained, and the seriousness of the consequences of it. 65.In the present case, the perverting was to prevent and deflect the police investigation into a case of child abuse where a prosecution would follow, by persistently providing false and misleading information to various persons over a protracted period. The object of the perverting was to deflect the ends of justice, by concealing the crime of child abuse or neglect and the offender who perpetrated it. (i) Count 2 66.In relation to Count 2, for the period between 18 and 24 July 2015, the jury found the 1st defendant guilty of having perverted the course of justice by providing false information to (a) Dr Mo Pan; (b) Cheung Hoi Len, Helen; and (c) Fung Yuet Mei. 67.The perverting by acts of deception started immediately upon the admission of Yun Lam to hospital, late in the evening of 18 July 2015. 68.The 1st defendant told lies to Dr Mo, the treating doctor, about Yun Lam’s background, having only recently arrived in Hong Kong from mainland China, and the circumstances of Yun Lam’s condition, namely that she was anorexic and fainted at home. 69.The 1st defendant then lied to the social worker who was looking after her and her family, Ms Helen Cheung, on 23 and 24 July 2015. She told her that Yun Lam had lived in mainland China and arrived in Hong Kong in June 2015. She also told her that Yun Lam refused to eat since she was a baby and was very thin and unable to walk. She gave Ms Cheung the impression that Yun Lam had been born with disabilities and required special needs. She further told her that Yun Lam had been born premature, refused to eat and could not walk, and that she played with her faeces which she tried to feed to the 1st defendant. She also told her on that night in question that she had fed Yun Lam who fainted when taking a shower. 70.The 1st defendant further lied to Madam Fung, which was evidenced by the declaration in a review form dated 24 July 2015. In the declaration and to Madam Fung, the 1st defendant said that Yun Lam had quit school on 1 April 2015 because she could not adapt to life in Hong Kong, and that she was sent back to mainland China where her family members would take care of her. (ii) Count 3 71.In relation to Count 3, for the period between 24 July and 14 September 2015, the jury found the 1st defendant guilty of having committed the offence of perverting the course of justice in relation to (a) Helen Cheung; (b) Dr Tsang Yat Ming; (c) Ms Chan Hiu Hiu; (d) WDPC 10313 Wan Fung Yi; (e) DPC 6525 Lui Ka Chun; (f) DPC 3881 Lam Kwan; and (g) DSGT 53196 Li Lit Hong. The jury also found the 2nd defendant guilty of the same offence in relation to the same persons except for (a) Helen Cheung and (d) WDPC 10313 Wan Fung Yi. 72.The jury was required to decide in relation to the persons listed in Count 3 whether the 1st defendant and the 2nd defendant had provided false information to each of them as alleged. The jury by its verdict was not satisfied beyond reasonable doubt that the 2nd defendant provided false information to Helen Cheung or to WDPC 10313 Wan Fung Yi. 73.Based on the evidence, the 1st defendant played a prominent role in the two perverting counts. It is clear that in Count 2, she alone provided false information about Yun Lam, which continued in Count 3 with the 2nd defendant doing this jointly with her. In relation to Helen Cheung, it was the 1st defendant who mainly dealt and communicated with her. 74.On 28 July 2015, there was a meeting at the Princess Margaret Hospital with doctors and social workers in relation to Yun Lam’s condition that the 1st and 2nd defendants were requested to attend. Although Helen Cheung was at the meeting, as were others, including Dr Tsang and Ms Chan Hiu Hiu, that was the extent of the evidence in relation to her. She did not give evidence about the meeting. 75.Dr Tsang and Ms Chan Hiu Hiu did give evidence about the meeting and in relation to what was said and done by both the 1st and 2nd defendants. The jury did find that the 1st and 2nd defendants told lies to Dr Tsang and Ms Chan Hiu Hiu, but as noted, they gave direct evidence on the issue. 76.WDPC 10313 took a statement from the 1st defendant, but the 2nd defendant was not present. That statement I have mentioned was exhibit P23. 77.The jury by its verdict was not satisfied beyond reasonable doubt that the 2nd defendant was a party to the lies that were told to the officer and as recorded in the witness statement. In relation to the interviews of the 2nd defendant with the police, the jury obviously by its verdict was satisfied beyond reasonable doubt that the 1st defendant was a party to the lies being told by the 2nd defendant. The 2nd defendant provided similar false information that had been previously provided by the 1st defendant and in his interview. There was the evidence of the 1st and 2nd defendants attending the New Kam Pik Guesthouse, where pieces of a draft statement, which was eventually produced as a statement by the 2nd defendant to the police, were retrieved. The statement contained an admission by the 2nd defendant that he was the carer of Yun Lam. The jury by its verdict has accepted that this statement was false and that he was not the carer of Yun Lam. The 2nd defendant produced the statement which was false and misleading during the 3rd VRI on 14 September 2015. 78.The 2nd defendant later in the 4th VRI retracted that he was the carer, and admitted that the statement was false and that he had been lying. 79.I find on the evidence that he made these admissions as a result of the weight of the mounting evidence that was being submitted to him by the police, revealing that the information that had been provided by the 1st defendant and himself was clearly false. On this basis, the jury found that the 1st and 2nd defendants told lies to DPC 6525 on 13 and 14 August 2015 and on 14 September 2015, and to DPC 3881 and DSGT 53196 on 7 September 2015. Even though DSGT 53196 did not testify, the VRIs were produced into evidence, which provided a visual and audio recording of the interviews with the 2nd defendant in the presence of the officers. 80.By its verdict, the jury was satisfied beyond reasonable doubt that the 2nd defendant told lies to the officers involved, to which the 1st defendant acted jointly with him. The background and mitigation of the 1st defendant The 1st defendant’s oral submission 81.Mr Leung submitted mitigation on behalf of the 1st defendant. 82.Before I go into the details of his submissions, it is necessary to note the defence case at trial. The 1st defendant’s case was that she was not the carer of Yun Lam, which she vehemently denied in her testimony before the jury. She said it was the 2nd defendant. When the 1st defendant brought Yun Lam to the hospital in a state of cardiac arrest on 18 July 2015, the treating doctor, Dr Mo, testified that she told him, amongst other things, that Yun Lam was suffering from “anorexia nervosa”, a condition she said that Yun Lam had since birth. He said she used that term in Chinese. In her evidence, the 1st defendant denied that she used the expression “anorexia nervosa”. Mr Leung cross-examined Dr Tsang, the treating paediatrician, as to whether 7-year-old Yun Lam was suffering from anorexia to explain her severe state of malnutrition. The doctor rejected the suggestion and gave reasons for doing so. 83.Let me return to the submissions of Mr Leung. He submitted to me that I should accept that Yun Lam was suffering from anorexia or some other illness that prevented her from eating. He was unable to say what this other illness was. He sought to rely on a report of Dr Kwong Ngai Shan, who gave medical opinion evidence of Yun Lam’s condition based on materials that had been supplied to him. His expert report was not put into evidence at trial. Instead, his evidence took the form of an admitted fact as set out in the following paragraphs:
84.Mr Leung’s reliance of Dr Kwong’s report concerned his evaluation of Yun Lam’s state of malnutrition. His submission is not only misconceived but misleading. Dr Kwong addresses the likely causes of malnutrition in this case, stating at the beginning that a number of conditions can give rise to malnutrition. He notes in the following paragraph:
85.Mr Leung relied upon this paragraph to suggest that Yun Lam may have been suffering with some other diseases that prevented her from eating. 86.Dr Kwong goes on to discuss the information and material at his disposal and then concludes:
87.By reference to these other paragraphs, and the admitted fact that Dr Kwong concluded that Yun Lam’s condition of severe malnutrition was most likely caused by starvation either intentional or through neglect, Mr Leung’s submission is without substance. His submission also ignores Dr Tsang’s evidence at trial that Yun Lam’s malnutrition was due to starvation. 88.In any event, the prosecution case was all along that the wilful neglect of Yun Lam was a result of lack of adequate food and sustenance and the failure to provide medical care and aid to Yun Lam. It was on this basis that the jury returned its verdict. 89.Mr Leung, to further support his submission, turned to the video recorded interview of one of the elder twin daughters of the 1st defendant. She did not give evidence at trial and her interview was not in evidence. He sought to rely on passages in this interview where she stated that Yun Lam had been beaten by her, as well as by her mother (the 1st defendant), using a cane because of her naughty behaviour, which she described as putting faeces in a cup and spraying washing powder on rice. The evidence at trial, which the jury obviously accepted by its verdicts, is that the 1st defendant instructed the twin daughters to tell a false story to the authorities about Yun Lam’s condition. Furthermore, the 1st and 2nd defendants in evidence acknowledged that the claim that Yun Lam played with her faeces was not true. This was suggested in order to explain why the wounds on her body were infected and gangrenous. The twin daughter said in the interview that after the beatings, Yun Lam stopped eating. 90.Mr Leung relies on the twin daughter’s statements in her VRI that after Yun Lam had received beatings, she stopped eating, to submit that there was evidence that Yun Lam’s state of malnutrition was not due to intentionally starving her by the 1st defendant. 91.Mr Leung was submitting that the 1st defendant did have the care of Yun Lam during the relevant times, contrary to the defence case that was run at trial, and as a result of Yun Lam being beaten, she stopped eating. He further suggested at one stage during his submission that there were degrees of being beaten, which in this case were not of the serious kind. 92.His point was that the 1st defendant could not be held to account for the malnutrition of Yun Lam by deliberate starvation. 93.I have no hesitation to reject this extraordinary submission in mitigation. Not only is it contrary to the jury’s verdict, but it is also contrary to the defence case and the evidence presented at trial. 94.It seeks to go behind the verdict of the jury that unanimously found the 1st defendant guilty of wilful neglect of Yun Lam as alleged against her by the prosecution. A verdict based on all the evidence. 95.It also seeks to excuse the 1st defendant’s conduct by acknowledging that Yun Lam was beaten in order to avoid the conviction found on not providing Yun Lam with adequate food and sustenance. Even if Yun Lam had stopped eating, it seems Mr Leung’s submission is that it was a result of her being beaten, but far from being mitigation, it means that Yun Lam was left to suffer in this state without providing her with medical care and aid, which was also part of the prosecution case against the 1st defendant. 96.What adds insult to injury, is that the medical evidence revealed that Yun Lam had old fracture injuries to her limbs; that she was observed limping at school and in pain by her teacher on 20 February 2015; and that she had bruises over her face and head when seen by her teacher on the last day at school on 28 April 2015. When the teacher inquired about the injuries on Yun Lam, the 1st defendant withdrew Yun Lam from school using the excuse that she did not adapt to life in Hong Kong and that she returned to the Mainland to live. Instead, Yun Lam was locked away in the flat and not seen or heard of until 18 July 2015, weighing less than 15 kilograms and in a state of cardiac arrest. The evidence at trial was that the social worker who looked after the family, Madam Helen Cheung, was not even aware that Yun Lam was in Hong Kong as early as November 2014. The 1st defendant kept Yun Lam’s existence a closely guarded secret. 97.Mr Leung in his submissions argued that this was not a case of physical abuse. All the evidence is to the contrary. As I have already mentioned, there is the evidence of Dr Tsang of old injuries to Yun Lam. Madam Tam’s evidence is significant. On 20 February 2015, she observed Yun Lam limping. When Madam Tam spoke to Yun Lam about it, she said she went back to the Mainland and climbed a tree and got injured. Yun Lam had not returned to the Mainland during this period. She was clearly made to lie and obviously by the 1st defendant. When the 1st defendant was confronted by Madam Tam about her daughter’s injury, she said she was not well behaved and climbed all over the place. 98.On 28 April 2015, Madam Tam noticed that Yun Lam appeared unhappy and when she sought to comfort her, she recoiled in pain. She noticed that she had bruises to her head and face. When Madam Tam confronted the 1st defendant about the injuries on Yun Lam, she said that she had taken Yun Lam to the Mainland and during their stay she employed someone to take care of her. She said that Yun Lam did not like the person and intentionally put excrement on her bed and that was why that person hit her. This was yet another lie. This was also the last occasion Yun Lam attended school. 99.I find that Yun Lam was subjected to physical abuse, which also included isolating her and keeping her restricted to and hidden in the family home, without the provision of food and sustenance, and without appropriate and timely medical care and aid. This is clearly supported by the evidence and in line with the verdict of the jury. Request for psychiatric report 100.Mr Leung requested that a psychiatric report be obtained in relation to the 1st defendant. I refused the request. I questioned Mr Leung as to the purpose of the report and the practical value of it. He kept on saying that it was required so that we would know what had happened. He mentioned that the 1st defendant had been admitted to Kwai Chung Psychiatric Hospital. This was a reference to her admission to the hospital on 24 August 2015. She had been in an emotional state after Yun Lam had been admitted to hospital. It was suggested that she had been hospitalised because of suicidal tendencies, although she denied this in her evidence. From the evidence presented at trial, it would seem that the 1st defendant’s emotional state emerged because she was fearful of being prosecuted for child abuse. There were instances when she seems to have used as a device emotional outbursts of crying when confronted about Yun Lam’s condition. 101.I inquired of Mr Leung if he had a medical report from the hospital and he said that he did. However, he did not submit it to the Court, claiming that it did not deal with the period of the offence. I note, however, that it did cover the period soon after Yun Lam’s admission to hospital and during the period of the perverting offence with the 2nd defendant. 102.There was no issue of personal inadequacy on the part of the 1st defendant, as the evidence suggested that the other children, the twin daughters and the young son, were well looked after by her. In fact, as part of the defence case, evidence was elicited or produced to support this fact. A psychiatric report may have assisted where there is an issue as to the personal inadequacy of the carer but it was not required in the circumstances of this case. 103.It seems clear to me that the purpose of the psychiatric report was not to obtain expert opinion about the 1st defendant’s mental health, but for her to give yet another account as to what happened in relation to Yun Lam so that it would be in an official report before the Court. It was clearly an abuse and a device to try to put yet another account of the fateful events surrounding the abuse of Yun Lam. The 1st defendant’s written submission 104.At the conclusion of the hearing on 21 June 2018, the sentencing of the defendant was adjourned for Mr Leung to submit further mitigation for the 1st defendant in writing. In his written submission, he sets out the stance of the defence in mitigation. It seemed to change from his oral submission on the previous occasion. 105.He stated that it is accepted that according to the verdict of the jury, the 1st defendant failed to provide medical aid to Yun Lam not only for her wounds and injuries, but also for her state of malnutrition. He urged the Court not to sentence the 1st defendant on the basis that she intentionally did not provide food to Yun Lam, in other words, intentionally starved her. Nor on the basis that the wounds and injuries on Yun Lam were inflicted by the 1st defendant. 106.This seeks to question the jury’s verdict and the factual basis on which she was obviously found guilty given the prosecution case against the two defendants. It clearly ignores the case that was presented against the 1st defendant at trial which she sought to contest. Yun Lam’s condition 107.Mr Leung further questioned the prosecution case which the jury obviously accepted by its verdicts. As to Yun Lam’s condition, he submitted that it was brought about because at some stage she was rendered immobilised and became bedridden. He submitted that although bedsores developed, they were due to the fact that they were not properly treated and that they were infected. He stated that the bedsores developed into serious wounds. This ignores the medical evidence, and in particular the evidence of Dr Tsang, who found that the gangrenous wound on the thigh and other wounds, such as the bruises to the head, were not a result of bedsores. This submission also ignores that the wounds and injuries to Yun Lam were so badly advanced and extensive, that the failure to seek medical care for her meant that she suffered terribly over a protracted period, and eventually resulted in her going into cardiac arrest. 108.He also submitted that according to Dr Tsang, Yun Lam may have been immobile due to acute neurological deterioration, but the reason for it was unknown. Dr Tsang’s evidence was that Yun Lam experienced a trauma or insult to her brain and likely suffered hypoxia. Again, this ignores that Yun Lam received a trauma to her head, resulting in her immobilisation. It would have been apparent to the 1st defendant who was caring for her that she had suffered an injury and was in need of medical care. 109.It should not be overlooked that according to the medical evidence, the state of Yun Lam’s condition and the injuries and the wounds that she had inflicted on her meant that she had been suffering for many months prior to 18 July 2015. In any event, I have found that Yun Lam’s condition was a result of physical abuse. 110.He relied on paragraph 30 of Dr Kwong’s report to submit that the reason for Yun Lam being bedridden was unknown. Whilst the doctor said it was not possible to know whether Yun Lam was bedridden or not after April 2015, he nevertheless noted that from the wounds and bedsores that she suffered, it was expected that there must have been a prolonged duration of Yun Lam being bedridden, where she was kept immobile to cause the pressure effect on her skin and tissues. 111.In any event, in this regard, there is the evidence of Dr Tsang who had given a first hand account of his treatment and dealings with Yun Lam. 112.Dr Kwong’s report was in the form of expert opinion which was not produced at trial, except to be reduced to admitted facts which included his opinion that from his diagnosis of Yun Lam’s injuries, there were strong evidence of child neglect and/or abuse. This highlights the problem when selective references are made to a report without appreciating the entirety of it, and in particular the conclusive findings. Furthermore, Dr Kwong was giving an expert opinion based on the materials that had been supplied to them and did not have the benefit of all the evidence of which the jury had the benefit, and his report had not been presented in evidence before the jury, where it could be appropriately tested and elaborated upon. The lack of food 113.Mr Leung referred to the under-provision of food, which on the evidence is a serious understatement. Yun Lam suffered severe malnutrition as indicated by her gross underweight. She was 14.8 kilograms two weeks after admission, and all the evidence pointed to her being very, very thin when she was admitted to hospital. 114.Mr Leung submitted that if the under-provision of food might be due to some reasons other than it being intentional, the Court should give the 1st defendant the benefit of doubt when passing sentence. He again relied on Dr Kwong’s report at paragraph 10, where he said that because of the lack of information and details of the previous history and circumstances of Yun Lam, there is no clear identifiable organic cause to explain the poor nutrition or state of Yun Lam. He relied on his further statement that poor intake of food and nutrient, either due to insufficient provision or tolerance, was most likely, whether intentionally or secondary to functional impairment, to cause this malnutrition state. In other words, the doctor was saying that poor intake of food and nutrient was the cause for her malnutrition state. 115.Again, the point is made that the doctor’s evidence was not given at trial. Even if it was, together with all the evidence that was presented, and more particularly in light of the jury’s verdict, Yun Lam was deprived of food and nutrition to render her in the state where she was cachexic, wasting away and very thin and to the point that she had a cardiac arrest. I cannot see how it can be suggested that the 1st defendant as the carer of Yun Lam did not intentionally deprive her of food or starve her. 116.The fact remains that the 1st defendant was not feeding her and did not do anything about it, if it was claimed that Yun Lam was not eating. However, this ignores all the evidence and the overall condition of Yun Lam and the period of time that she was suffering and kept hidden in the flat in Tsuen Wan. 117.It was an admitted fact at paragraph 45 of exhibit P86 that Dr Kwong “concluded that Yun Lam’s condition of severe malnutrition was most likely caused by starvation either intentional or through neglect. Yun Lam had also suffered from multiple wounds and other injury which were inadequately and improperly treated. Due to her prolonged bedridden status and immobility, she became very weak which ended up with a life-threatening cardiac arrest on the 18th July 2015.” Yun Lam’s wounds and injuries 118.Mr Leung addressed the wounds and injuries other than those to the brain. He again relied on Dr Kwong’s report, at paragraph 26, where he said most of the wounds and injuries were in the pressure areas overlying bony prominence, but this again ignores the evidence that was presented at trial of Dr Tsang, the account given by Madam Tam that she saw Yun Lam limping and in pain and on another occasion she had bruises to her face and head. She clearly had been assaulted, given the way that she was treated and the injuries that she had over this period of time and how it all resulted for her on 18 July 2015. It also ignores Dr Tsang’s evidence of old fractures to her limbs. It also contradicts the previous submission of Mr Leung that Yun Lam was beaten with a cane by the mother and one of her twin daughters. Comment on the 1st defendant’s mitigation 119.I find the submissions in mitigation for the 1st defendant to display a complete lack of remorse on her part, and an attempt to go behind the verdicts of the jury and to ignore the evidence that the jury obviously accepted. At one stage, the mitigation involved disowning the defence put at trial that the 1st defendant was not the carer, and admitting that she was the carer and seeking to support it by reliance on matters that were not in evidence at trial. 120.The 1st defendant told blatant lies to the medical and welfare staff, and later to the police officers, about the background and condition of Yun Lam. Her lies continued when giving oral testimony during the trial. That was clearly apparent given her evidence and the rejection of it by the jury. Even during her testimony, she was caught out lying about various matters, including that the 2nd defendant was not the natural father of Yun Lam. She said that he was, and when it was apparent that there was DNA evidence refuting the claim, she then admitted that he was not the natural father. I wish to make it abundantly clear that in passing sentence on the offences for which she has been convicted, I am not doing so for the palpable lies that she told in evidence or the defence that she presented, but it needs to be mentioned in order to appreciate this case. 121.In relation to the inquiries and the investigation that were being conducted into Yun Lam’s case, she displayed complete contempt and disrespect for the law and the legal processes. She is a very calculating and devious person. She is also a very callous and cold hearted person as this case has revealed. She played favourites with her children, and Yun Lam was clearly unwanted and unloved by her. Of the harm and suffering inflicted on Yun Lam, the 1st defendant’s cruelty knew no bounds. This is visually depicted by the photographs of Yun Lam after she was admitted to hospital, and the wounds and injuries that she had on her body, and the medical and other evidence as to her overall physical and mental condition. 122.The 1st defendant’s emotional outbursts during the medical inquiries and the police investigation were not out of concern for Yun Lam as claimed by her, but for herself, having realised that her abuse of Yun Lam was gradually being uncovered. There is evidence to suggest that she planned to take Yun Lam to mainland China on 19 July 2015, but because of Yun Lam’s cardiac arrest, her plan was not carried out. 123.It should not be overlooked that the medical and welfare personnel and police officers initially accepted the 1st defendant’s account that Yun Lam had congenital development problems and that she had been badly cared for in the Mainland and only recently came to Hong Kong. So convincing was her performance, that they were concerned for her and gave her support and comfort. But as things added up, the authorities gradually pieced together the truth and established that the information that she and the 2nd defendant had provided about Yun Lam’s condition was false. 124.Mr Leung’s overall submission was that the 1st defendant did not intentionally starve Yun Lam, although he acknowledged that Yun Lam had been neglectfully starved; that the 1st defendant did not inflict the wounds and injuries on Yun Lam; and that there was no physical abuse of Yun Lam by the 1st defendant. He submitted that this was not the most serious case of its kind compared to other cases. I reject this submission without hesitation. 125.Mr Leung was driven to acknowledge that Yun Lam was at least deprived of medical care and aid. He also had to acknowledge, based on the jury’s verdict, that 1st defendant had the care of Yun Lam for the period before she was admitted to hospital, and that during this period Yun Lam sustained the wounds and injuries that were disclosed when she was admitted to hospital on 18 July 2015. He conceded that on that basis, it would have been fairly obvious to the 1st defendant that Yun Lam had sustained horrific wounds and injuries, and was suffering and in need of medical care, and this was denied to her by the 1st defendant, until Yun Lam had to be taken to hospital because she had a cardiac arrest. 126.At one stage, it was noted that Yun Lam was under 15 kilograms when she was admitted to hospital, which would indicate that she was extremely thin, basically skin and bones, and this would have been apparent to the 1st defendant, to which Mr Leung tried to suggest that she was thin but not as bad as clearly was the case. It was pointed out that Yun Lam was removed from school on 28 April 2015 and isolated and hidden in the Tsuen Wan flat. It was during that period that she sustained her wounds and injuries that have already been described, the fact that Yun Lam had gangrenous wounds reveals how bad and serious was her condition. She deteriorated to such an extent that she was close to death. 127.I have no hesitation in concluding that Yun Lam was subjected to sustained and repeated physical abuse of an extreme and serious kind. The evidence was overwhelming and conclusive. The background and mitigation of the 2nd defendant 128.The 2nd defendant’s background and circumstances that have already been mentioned were contained in the psychiatric evidence that was presented as part of the 2nd defendant’s case in relation to Count 3, where his defence was that he was acting under duress. This was rejected by the jury. There was also the evidence from the 2nd defendant about his background and history. 129.Both the 2nd defendant and his mother have submitted letters to the Court. The 2nd defendant states that he was wrong and apologies for what he has done. He further states that he did not have the courage and the wisdom to discover the problem at an earlier stage and to correct the matter immediately. I am not swayed by his comments, as it would have been apparent to him that Yun Lam was seriously ill when she was in hospital on 18 July 2015, yet he embarked on a course of conduct, with total disregard to her wellbeing, by supporting the 1st defendant in her lies and lying himself to the authorities in relation to Yun Lam’s case. He claimed that he felt guilty because he failed as a father, but the evidence revealed that he showed little care or concern for the children during the relevant period. 130.The 2nd defendant’s mother acknowledges that he should be held responsible for what he has done, but asks that her son be treated leniently, as she is elderly and wishes him to be by her side and to support her. 131.Mr James McGowan, on behalf of the 2nd defendant, also submitted that given the background of the relationship between the 2nd defendant and the 1st defendant, and that she was the dominant party amongst them, that this was a factor that should be taken into account as to his culpability for the offence. He submitted that the 2nd defendant was not functioning normally at the time because of his mental state, suffering with depression, and the medication that he was required to take for his heart condition. He submitted that this factor, and also the guilty feeling that he had as having failed as a father, put pressure on him to go along with the 1st defendant in lying to the medical and welfare staff and the police officers. 132.I do not find that his circumstances and mental condition was such that he was forced or pressured into doing what he did. I do not find that he had any real sense of commitment to the family or guilty feeling towards them to explain why he got involved. It seems to me that he was concerned for his own self, just as was the 1st defendant. They both tried to deceive persons making inquiries or investigating a case of child abuse in relation to Yun Lam. His involvement was quite extensive when you consider the lies that he told to the police, and also later producing a statement which he knew to be false. 133.Mr McGowan also pointed out that in producing the statement to the police, where he stated he was the carer of Yun Lam, it was not of any benefit to the 2nd defendant. However, it would have clouded the investigation and focused attention away from the 1st defendant. I find that he eventually owned up to the fact that he was telling lies and that the statement was false because the evidence was building up against him and the 1st defendant, that the information that they provided was untrue. 134.Mr McGowan also asked me to take into account that in relation to Count 3, that the 1st defendant was the prime mover, and that the false statement was produced to take responsibility away from the 1st defendant. He also referred to the defendant’s clear record, his age and his personal circumstances and history. He noted that he has admitted what he has done, but the fact is that he claimed that he was acting under duress which was rejected by the jury. Given the grievousness of the offence, I find that his clear record and personal circumstances do not constitute any meaningful mitigation on his behalf. 135.The 2nd defendant gave an account as to his relationship with the 1st defendant and the children, in particular Yun Lam. It would seem that he was separated from the 1st defendant and living with his mother in Tsing Yi, while the 1st defendant and the children were living in Tsuen Wan. It would also seem that he had contact with them, but far from being the caring or concerned parent that he tried to present, he participated in the deception being practised on the medical and welfare staff and the police officers, knowing full well that Yun Lam was seriously ill with little or any chance of recovery. Whilst the evidence indicates that the 1st defendant was the prime mover in the deception that was being practised on the relevant persons, the 2nd defendant nevertheless played a major role, and his own actions by lying in his interviews and producing a false statement heightened his culpability, especially at the time when he did these things where it was clear that there was a police investigation, and there would be an eventual prosecution for child abuse for what was becoming a clearly obvious case. 136.I have considered the psychiatric reports and the evidence about the background and circumstances of the 2nd defendant that I find there are no mitigating factors that he can rely on in relation to his culpability of such a serious case of perverting. 137.Mr McGowan has submitted a number of authorities in relation to sentencing of cases of perverting. I did not find them useful as a yardstick for the quantum of sentence in the present case. As I have already stated, each case will turn on its own particular circumstances as to the offence and of the offender. 138.In one case that he submitted, R v Reynolds Tunney [2007] 1 Cr App R (S) 91, the Court of Appeal said that the sentence appropriate for offences of perverting depended effectively on three matters. First, the seriousness of the substantive offence to which the perverting of the course of justice related. Secondly, the degree of persistence. Thirdly, the effect of the attempt to pervert the course of justice on the course of justice itself. Here in this case, the offence in question, child abuse or neglect, was a serious offence. The defendants had shown a degree of persistence, although ultimately the 2nd defendant ceased to persist in the lies, but only when the mounting evidence became overwhelming. The attempt to pervert the course of justice was unsuccessful, although the lies at one stage appeared reasonable and in any event involved further inquiry and investigation to uncover the truth. 139.In another case, Attorney General v Yeung Kwong Chi [1989] 1 HKLR 266, the Court of Appeal stated that a normal sentence for an attempt to pervert the course of justice was one of immediate custodial imprisonment. The Court stressed that it was necessary not only to punish and deter such wicked behaviour, but to mark the absolute repugnance with which the public views such deliberate abuse of the criminal process. 140.I bear these principles in mind. The sentence for wilful neglect 141.The maximum sentence after conviction on indictment for the offence of wilful neglect of child is 10 years’ imprisonment. The circumstances and gravity of cases will greatly vary but the facts of this case put it into the category of the worst case of its kind. 142.A crucial factor that must be taken into account when sentencing for this offence is the need to protect the young and the vulnerable, as well as the need to deter abuse or neglect of them. Other crucial factors to be taken into account are the age and circumstances of the child; the relationship between the offender and the child as well as the responsibility the offender had for the child; the nature, degree and duration of the ill-treatment or neglect of the child; the suffering and injury to the child; and the long term prospects it will have on the child both physically and psychologically. 143.This was a case of extreme cruelty to a child over a protracted period. There was deliberate, sadistic and systematic abuse of Yun Lam. The offence was aggravated by the following factors. The 1st defendant targeted one particular child of the family, Yun Lam. She isolated Yun Lam, and prevented her from disclosing or revealing the abuse to which she had been subjected, and from others becoming aware of it. She engaged in deliberate concealment of Yun Lam from the authorities. She failed to seek medical help for Yun Lam in clearly grave and obvious circumstances. She also abused the power and the position of trust as a mother over Yun Lam. The abuse inflicted on Yun Lam has resulted in her suffering severe physical and psychological harm in the most indescribable way. In the short life that is predicted for Yun Lam, she will be under constant medical care for the rest of her life, with severe mental impairment and other serious ailments. 144.This was not an isolated act or single episode of child abuse. It was sustained, and increasing in nature and degree. Yun Lam was subjected to physical and psychological abuse for some time and it increased in intensity and frequency during the period leading up to her admission to hospital on 18 July 2015. The suffering and degradation of Yun Lam was prolonged and severe. 145.This was not a case where the 1st defendant was immature or inadequate as a parent. She presented as a shrewd and determined person who was fully aware of her situation and circumstances, and was able to confidently cope and deal with people and situations. 146.It is hard to imagine a case much worse than this one and it clearly falls within the category of cases for this offence of the worst case of its kind. 147.I adopt a starting point for this offence of 9 years and 6 months’ imprisonment. The sentence for perverting 148.As to Count 2, the 1st defendant knowingly and deliberately made false statements to Dr Mo, Helen Cheung and Madam Fung about Yun Lam’s background and condition, as well as her circumstances, fully aware that she had committed serious child abuse in relation to Yun Lam, that inquiries were being made for this purpose, or information she supplied would be used for this purpose, and that she wished to prevent and deflect a police investigation and criminal prosecution. The perverting that she engaged in was related to a very serious case of child abuse, and her efforts in this regard were to conceal the crime and prevent it from being investigated and prosecuted. Her degree of persistence in the lies that she told were well rehearsed, constant and carefully thought out, so that it appeared to be reasonable and an acceptable explanation for Yun Lam’s condition. She said that Yun Lam had only recently come to Hong Kong and she had been cared for in mainland China, and that she had congenital developmental deformities or defects. She was seeking to give the impression that she had trusted the care of Yun Lam with others in the Mainland and that Yun Lam had only recently come to Hong Kong, so that she would not be held responsible. 149.The effect of the attempt to pervert the course of justice did initially succeed in the sense that the certain persons initially found her explanations reasonable and were concerned about her circumstances, given that she portrayed herself as a single mother looking after three other children. It did deflect the authorities for a while. The perverting was calculating and deliberate, and spread amongst the personnel and officers, who had an interest in Yun Lam’s case, in an effort to have it accepted by them, namely the initial treating doctor, the social worker responsible for the family and the social security assistant that had the records and details of social security benefits and other material in relation to Yun Lam. 150.I adopt a starting point for this offence of 3 years and 6 months’ imprisonment. 151.As to Count 3, this concerned both the 1st and the 2nd defendants. The perverting involved was extensive and diverse, aimed at medical and welfare officers and police officers in relation to the child abuse of Yun Lam, which was sought to be concealed by the 1st and 2nd defendants. The lies formulated initially by the 1st defendant continued and were elaborated upon. The key features being that Yun Lam had only recently arrived in Hong Kong, that she had been badly cared for in mainland China and that she had congenital developmental deformities or defects and other problems. The perverting also included the concealment of her existence in Hong Kong since 4 November 2014 and that she had been cared for by the 1st defendant. It did involve, at one stage, the production of a false statement by the 2nd defendant to shift responsibility for Yun Lam away from the 1st defendant, even though it did not succeed to conceal that a crime of child abuse in relation to Yun Lam had taken place and that the 1st defendant was responsible. 152.As already acknowledged, the jury by its verdict found that the 1st defendant provided false information to all persons listed in the count, and that the 2nd defendant provided false information to all persons except for Helen Cheung and WPC 10313. The statement that the 1st defendant made, exhibit P23, contains a litany of lies but consistent with the lies that she had been telling others about the condition of Yun Lam. For example, she said:
153.This is just an indication of the contents of the statement but it gives an extremely false account of the situation with Yun Lam, providing details that were designed to give an impression that Yun Lam had only recently come to Hong Kong and was in a very poor state of health, that she had since birth, and that the 1st defendant attended to the wellbeing of Yun Lam even though she had to take care of three other children. 154.Another factor that should be borne in mind is that Yun Lam had suffered severe mental impairment after her admission to hospital and was unable to communicate. This would have been known to the 1st and 2nd defendants and so the false information that they were providing about the condition of Yun Lam would not have been exposed either by Yun Lam communicating about her condition or by an examination of her. 155.Overall, the perverting embarked upon by the 1st and 2nd defendants was related to a serious offence as noted with Count 2 of child abuse. The degree of persistence was unrelenting, and the 2nd defendant would appear to have admitted that he was lying because of the insurmountable weight of the information and material that contradicted the information being provided by him to the police. The effect of the perverting was widespread and extensive because the inquiry and investigation had to address the false and misinformation that was being provided by both the 1st and 2nd defendants, and at one stage it was accepted as reasonable by some of the persons involved. 156.I wish to note that I find that the lies told to the medical and welfare staff by the 1st and 2nd defendants were not to address the medical condition of Yun Lam or to assist the medical and welfare staff in that regard, but in order to conceal the crime of child abuse of Yun Lam and the offender of it. 157.I adopt a starting point against the 1st defendant for this offence of 5 years and 9 months’ imprisonment. I have taken into account that she played a predominant role in this joint enterprise and that the jury by its verdict found that she had provided false information to two additional people being Helen Cheung and WPC 10313. 158.I adopt a starting point against the 2nd defendant for this offence of 4 years and 6 months’ imprisonment. I have also taken into account the role that he played in this joint enterprise and his circumstances, but notwithstanding he still played a prominent role in providing false information to the authorities, particularly in his interviews with the police. The sentence imposed on the 1st defendant 159.On Count 1, I sentence the 1st defendant to 9 years and 6 months’ imprisonment. On Count 2, I sentence the 1st defendant to 3 years and 6 months’ imprisonment. On Count 3, I sentence the 1st defendant to 5 years and 9 months’ imprisonment. Counts 2 and 3 concerned the offence of perverting, Count 2 for the period from 18 to 24 July 2015, and Count 3 for the period from 24 July to 14 September 2015. Taking into account the circumstances of the two perverting counts, and bearing in mind the totality principle, I order that the sentence on Count 2 to run concurrently to the sentence on Count 3, and that the concurrent sentences on Counts 2 and 3 of 5 years and 9 months’ imprisonment run consecutively to the sentence on Count 1. I wish to note that I consider that the offence of neglect of child and the perverting offences were separate and distinct. 160.There being no meaningful mitigating factors to warrant any reduction to the sentence of the 1st defendant. I accordingly sentence the 1st defendant to 15 years and 3 months’ imprisonment. The sentence imposed on the 2nd defendant 161.I sentence the 2nd defendant on Count 3 to 4 years and 6 months’ imprisonment. I do not find that there are any meaningful mitigating factors to warrant a further reduction to his sentence, and that will be the sentence that he is ordered to serve in relation to Count 3. The need for reform for offences against children 162.As I have already noted, the maximum sentence for a person convicted for an offence of ill-treatment or neglect of a child under section 27(1) of the Offences against the Person Ordinance, Cap 212, is 10 years’ imprisonment. Previously the maximum sentence was 2 years’ imprisonment, which was increased to the current maximum on 1 September 1995. Some of the cases that have been referred to concern circumstances where the neglected child has died, and as a consequence a manslaughter charge together with a neglect of child charge had been laid against the offender or offenders. 163.In the present case, Yun Lam was severely abused and suffered horrific injuries as a result. She is now in a vegetative state for the rest of her limited life. Whilst she lived after this ordeal, sadly she is unable to live a normal life or even the semblance of one. As revealed by the circumstances of this case, and other cases that have been mentioned, the maximum sentence of 10 years’ imprisonment needs to be reviewed. This punishment does not fit the serious levels of this crime. The frontline personnel in child abuse cases 164.I wish to acknowledge and commend the efforts and dedication of the persons involved in the welfare and care of children who each played a role in this tragic case. 165.Madam Chan Wan Ho, the deputy principal, and Madam Tam Choi Yuk, the teacher, at the Salvation Army Fu Keung Kindergarten, impressed me by their commitment and concern about the welfare of the children at the kindergarten. The progress and development of students were monitored and recorded in every respect. Attendance records, provision of meals and learning development were all carefully recorded and monitored by the school. Even photographs were taken of Yun Lam as to her progress and involvement in activities. They were both quick to observe and respond to possible harm to Yun Lam but were deflected by the 1st defendant who used the excuse that Yun Lam had returned to the Mainland. 166.Madam Cheung Hoi Len, Helen was the social worker with Caritas Family Service. She was the social worker responsible for looking after the 1st defendant and her family. She presented as a caring and concerned person who went out of her way to assist and support the 1st defendant and her family. She attended the home of the 1st defendant and attempted to visit the home during the relevant period of this offence but was dissuaded to do so by the 1st defendant. So effective was the 1st defendant’s isolation of Yun Lam that Madam Cheung knew very little about Yun Lam and did not know that she was in Hong Kong. She ensured that the case was considered for possible child abuse. 167.Madam Fung Yuet Mei was the Senior Social Security Assistant of the Social Welfare Department, who was responsible for the provision of social security benefits to the 1st defendant and her family. She ensured that documents and records in relation to Yun Lam were appropriately copied and kept for security benefit claims on her behalf. 168.The medical staff involved were quick to respond and inquire about the condition of Yun Lam which eventually led to the police investigation of this case. They were extremely diligent and conscientious in their handling of the case. Dr Mo Pan was the treating doctor at Yan Chai Hospital, Dr Tsang Yat Ming was the resident paediatrician at Princess Margaret Hospital and Ms Chan Hiu Hiu was the medical social worker at the Princess Margaret Hospital. 169.The police have a dedicated unit that investigates child abuse and neglect cases. In the present case, the police investigation was led by Senior Inspector Olivia Chong Kwan Wai, who with the assistance of Detective Sergeant 53196 Li Lit Hong, Sergeant 55630 Madam Wong Mei Shan, PC 10313 Madam Wang Fung Yi, DPC 6525 Lui Ka Chun, and DPC 3881 Lam Kwan, investigated this extremely difficult case. They should be commended for their efforts.
Mr Duncan Percy, counsel on fiat, for HKSAR Mr Leung Chun Keung, instructed by Tang & Lee, assigned by Director of Legal Aid, for the 1st defendant Mr James McGowan, instructed by Yung, Yu, Yuen, assigned by Director of Legal Aid, for the 2nd defendant |
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