HKSAR v. Wong Wing Man, Mandy Alias Wang Xuexin and Another
Read the full judgment text of CACC 200/2018 on BabelCite. This Court of Appeal judgment was delivered on 30 June 2020.
1. On 12 June 2018, the 1 st applicant was convicted after trial before Zervos J (as he then was) and a jury of wilfully neglecting a child under the age of 16 years, namely her own daughter then aged 7, in a manner likely to cause her unnecessary suffering or injury to her health, contrary to section 27(1) of the Offences against the Person Ordinance, Cap 212. As a result of the applicant’s neglect, the unfortunate child is in a vegetative state and has permanent brain damage (Count 1). The 1
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CACC 200 /2018 [2020] HKCA 534 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 200 OF 2018 (ON APPEAL FROM HCCC NO 76 OF 2017) ________________________
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________________________ J U D G M E N T ________________________ A. Introduction 1.On 12 June 2018, the 1st applicant was convicted after trial before Zervos J (as he then was) and a jury of wilfully neglecting a child under the age of 16 years, namely her own daughter then aged 7, in a manner likely to cause her unnecessary suffering or injury to her health, contrary to section 27(1) of the Offences against the Person Ordinance, Cap 212. As a result of the applicant’s neglect, the unfortunate child is in a vegetative state and has permanent brain damage (Count 1). The 1st applicant was, in addition, found guilty, also unanimously, of one count of doing acts tending and intended to pervert the court of public justice (Count 2); and another joint count of doing acts tending and intended to pervert the course of public justice (Count 3). Both latter counts were contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. 2.The 2nd applicant was the 1st applicant’s husband, although not the biological father of the child in question. He was charged jointly under Count 3 and was also found guilty by unanimous verdict. 3.The 1st applicant was sentenced to an overall period of 15 years and 3 months’ imprisonment. The individual sentences comprised 9½ years’ imprisonment on Count 1; 3½ years’ imprisonment on Count 2; and 5 years and 9 months’ imprisonment on Count 3. The sentences on Counts 2 and 3 were ordered to run wholly concurrently with each other, thus making 5 years and 9 months’ imprisonment as between them, but consecutively to the 9½ years’ imprisonment on Count 1, thereby totalling 15 years and 3 months’ imprisonment in all. The 2nd applicant was sentenced to 4½ years’ imprisonment on Count 3. 4.Both applicants have sought leave to appeal against conviction and sentence. On 12 June 2020, having heard argument from the parties, I reserved judgment and said I would hand down my decision in due course. This, therefore, is my decision and the reasons therefor. 5.The trial lasted some 50 days and arose, in the opening words of the Judge when sentencing the applicants, out of “a grotesquely shocking case of child neglect”, more aptly described as a case of “child cruelty”, which “ranks as one of the worst cases of its kind”[1]. Some 23 witnesses in all were called and the Judge’s summing‑up occupied over 300 pages of transcript. His sentencing reasons run to no less than 34 pages of transcript. 6.Both applicants gave evidence at trial and essentially blamed each other. The harm done to the child, Ling Yun-lam (also, and hereinafter, known as “Suki”), was not disputed. Although the 2nd applicant was not indicted on Count 1, one of the main issues at trial was which defendant was caring for Suki from April 2015 to 18 July 2015. The 1st applicant alleged it was the 2nd applicant; the 2nd applicant alleged it was the 1st applicant. Both applicants relied on the defence of duress; the 1st applicant in respect of Counts 2 and 3, the 2nd applicant in respect of Count 3. The 1st applicant claimed she had been acting under duress from the 2nd applicant when she lied to various authorities about the condition and circumstances of the child. The 2nd applicant, for his part, claimed that he was threatened by, and frightened of, the 1st applicant, and so was acting under duress from her when he lied to the authorities about the child. B. The facts 7.At 11:17 pm on Saturday 18 July 2015, the 1st applicant brought Suki, who was her youngest daughter, to the Accident and Emergency Department of the Yan Chai Hospital in Tsuen Wan, New Territories. At the time, Suki was unconscious and had to be pushed in a pram. She had suffered a cardiac arrest, was not breathing and had no pulse. Tubes were immediately inserted into her windpipe and her heartbeat was restored, but she required the assistance of a ventilator to maintain consciousness. She was subsequently transferred to the Intensive Care Unit at Princess Margaret Hospital. 8.Whilst she was being resuscitated at Yan Chai Hospital, the 1st applicant remained in a nearby cubicle. Dr Mo Pan (PW1) took the opportunity to speak to the 1st applicant, who told him that Suki had been suffering from anorexia nervosa for years in the Mainland, without being attended to by any doctors. She said Suki had only recently arrived in Hong Kong from the Mainland, since when her condition had deteriorated. She said that, before arriving at the hospital that night, Suki had eaten congee at about 9 pm. She had then had a shower before collapsing at about 10 pm, as a result of which the 1st applicant brought the child to hospital. 9.Dr Mo Pan described Suki’s condition when she was admitted as pale, breathless and without a measurable pulse. She had muscular atrophy, fatigue, loss of appetite, multiple pressure sores on her elbows and heels, along with bruises all over her head and abrasion wounds over the soles of her feet. Dr Mo Pan’s initial observation was that Suki was suffering from severe malnutrition, with the likely cause being chronic illness and child abuse. It was his evidence that Suki’s poor skin condition, multiple pressure sores and the contracted state of her limbs, could only be explained by chronic immobility. He said this was something only usually seen in elderly patients. 10.A social welfare officer at Princess Margaret Hospital, Ms Chan Hiu-hiu (PW4), went to visit Suki in hospital the day after her admission. Later that afternoon, Ms Chan interviewed the 1st applicant to find out more details about Suki’s condition. The 1st applicant told her, inter alia, that she had been in Hong Kong for two years, having arrived from the Mainland. She was a part-time cashier, and had another son at home[2]. When asked about Suki’s condition, she broke down and the interview was discontinued. 11.On 28 July 2015, another interview was conducted, this time with the 1st and 2nd applicants. Also present were two paediatricians, including Dr Tsang Yat-ming (PW6). The 1st applicant told those present, inter alia, that Suki was born prematurely in a small village on the Mainland. She weighed only 1.5 kilogrammes at birth and was a sickly child. Dr Tsang asked why Suki was so thin. The 1st applicant answered that when Suki was born, a doctor had told them that she had developmental delays and problems in absorbing nutrition. Dr Tsang asked about Suki’s ability to walk and the 1st applicant told him that Suki could barely move her body and was unable to walk. Dr Tsang queried why there were so many injuries on Suki’s body. The 1st applicant explained that Suki would play with her own excrement, which caused her itchiness. When asked why medical help had not been sought earlier for Suki, the 1st applicant maintained that when Suki was born, they had taken her to see a doctor, who told them that the child had congenital development problems. Dr Tsang then asked the 2nd applicant whether he knew of Suki’s condition and if he had anything to add. He responded that Suki had all along been taken care of by the 1st applicant and the child’s maternal grandmother. At the end of the meeting, Dr Tsang told both applicants that there were many doubts in the case and that he might be referring the matter to the police. 12.A psychological assessment was made of Suki on 17 August and 4 December 2015 by Dr Angela Sze (PW2), a clinical psychologist. Suki made no meaningful gestural or verbal responses when her name was called, when she was talked to or when her hands were held. Dr Sze’s opinion was that Suki had profound levels of intellectual disability. It was the opinion of Dr Kwong Ngai-shan (PW21), that because of her prolonged bedridden status and immobility, Suki had become very weak resulting in a life-threating cardiac arrest on 18 July 2015. C.1 The prosecution case 13.It was the prosecution case that the 1st applicant had custody and care of Suki from 4 November 2014 until she was hospitalized on 18 July 2015. Throughout that time, the 1st applicant had wilfully neglected Suki by failing to provide her with adequate food, sustenance and medical aid[3]. The medical evidence clearly established that Suki was a victim of starvation and neglect, as evidenced by her wounds, bedsores and general condition[4]. 14.The prosecution invited the jury to draw the only reasonable inference that the 1st applicant was the carer of Suki during the relevant period[5]. They maintained that the 1st applicant, as carer, would have been well aware that Suki was in a continual state of starvation, was not receiving proper nutrition, was losing weight, so much so that she had lost the ability to move, and was suffering from wounds and bed sores that needed treatment. It was the prosecution case that the 1st applicant did not take Suki to the doctor promptly when she should have done in order for her to receive proper medical treatment[6]. 15.After Suki had been taken to hospital on 18 July 2015, the prosecution alleged that the 1st applicant then did a series of acts tending and intended to pervert the course of public justice. Between 18 and 24 July 2015, she knowingly provided false information relating to Suki’s background, medical history and health condition to Dr Mo Pan, Ms Cheung Hoi-len, Helen (PW3), a social worker with Caritas Hong Kong, and Ms Fung Yeut-mei (PW5), a senior Social Security Assistant with the Social Welfare Department. The various pieces of false information provided, which she knew to be untrue, were essentially that Suki had been born prematurely; had congenital developmental defects; was unable to walk or talk; was bedridden; had been cared for by her maternal grandmother on the Mainland; and had only recently arrived in Hong Kong in June 2015. The prosecution alleged that this information was provided with the intention of perverting the course of public justice, by preventing or deflecting a police investigation or criminal proceedings for child neglect or abuse (Count 2). 16.The prosecution alleged that the 1st applicant and 2nd applicant had jointly done a further series of acts between 24 July and 14 September 2015, intending to pervert the course of public justice, by knowingly providing false information, which they knew to be untrue, to persons for whom such information would have been relevant in a police investigation, namely Ms Cheung Hoi-len, Helen, Dr Tsang Yat-ming, Ms Chan Hiu-hiu and four named police officers. The information in this Count included what had been said in an elaborate two-page statement written in Chinese by the 2nd applicant at the 1st applicant’s behest on 13 September 2015 (Exhibit P43), in which he claimed, in addition to Suki’s other alleged ailments and problems, that he was Suki’s carer; which statement the 2nd applicant admitted, in a subsequent video recorded interview, was false (Count 3). 17.The prosecution placed reliance on the evidence of Dr Tsang, who, in his third medical report (Exhibit P5(A)), confirmed that Suki’s various conditions were not ones that she was born with. He suggested that congenital brain insult was unlikely. He explained the period of malnourishment was relatively short, possibly two to three months[7]. His evidence was that Suki had bilateral hip and knee contractures on the day of admission, suggesting a period of immobilisation for some weeks prior to her admission. He then went on to point out that there was no contracture in the photograph provided by Suki’s school teacher, and she had been suitably mobile when playing sports at Kindergarten. He was, therefore, of the opinion that an acute neurological deterioration had occurred at least a few weeks or months prior to Suki’s admission on 18 July 2015. Since there was no evidence of past haemorrhage in the MRI scans, and extensive investigation of Suki did not point to any organic causes, his view was that brain hypoxia was the most likely cause of the acute damage to the brain[8]. 18.As to the cause of malnutrition, Dr Tsang believed this was likely related to reduced oral intake. The large infected wounds with gangrenous skin on Suki’s left eye and left anterior calf were not typical sites for the development of pressure sores. The cause of infection was likely due to poor hygiene when the wounds became dirty and infected[9]. 19.In terms of the prospects of recovery, Dr Tsang testified that, because of severe hypoxia and brain damage, neurological recovery was not likely, Suki would be in a persistent minimally conscious state and significant improvement was very unlikely[10]. 20.Ms Chan Wah-ho (PW7) gave evidence about Suki’s attendance at the Salvation Army Fu Keung Kindergarten. This evidence was led in order to establish that the 1st applicant was the child’s primary carer. Ms Chan described the enrolment procedure for admission for pupils at the kindergarten. An application form was produced (Exhibit P15), which had been completed and returned to the kindergarten. Ms Chan would then arrange an interview with Suki and her parents. The 1st applicant attended the interview on 11 November 2014, at which Ms Chan formed the impression that Suki was “quite smart” and concluded that she was suitable to be enrolled at the kindergarten[11]. 21.Ms Chan also gave evidence about Suki’s attendance at the kindergarten. She testified that Suki had consistently attended the school until about December 2014, after which her attendance became sporadic. Ms Chan made enquiries of the 1st applicant on three or four occasions about Suki’s absences, her last enquiry being on 28 April 2015, when the 1st applicant told Ms Chan that Suki had been taken back to the Mainland to be cared for by a relative. She explained that she would see Suki being picked up and dropped off at the school by the 1st applicant three or four times a week. The 1st applicant would quite regularly contact the school to say that Suki would be quitting school, which caused Ms Chan to contact the 1st applicant to remind her of the conditions of the Education Department voucher[12]. 22.Ms Tam Choi Yuk (PW8) was the class teacher at the kindergarten. She had first met Suki on 12 November 2015, and was her teacher throughout her time at the school. She explained how Suki would be dropped off and picked up, and how the person collecting a child required a special card. She confirmed that Suki was always collected by the same person between November 2014 and April 2015, and that that person was the 1st applicant[13]. 23.WDPC 10313, Ms Wan Fung-yi (PW13), was the police officer who obtained a witness statement from the applicant (Exhibit P23). It was taken at the 1st applicant’s home and took about 1½ hours to complete. In cross‑examination by counsel for the 2nd applicant, the officer confirmed that the 1st applicant had not denied that Suki lived with her[14]. 24.It was subsequently put to the 1st applicant in cross‑examination that she had filled in a CSSA review form dated 24 July 2015, stating that Suki had been removed from school from 1 April 2015 because she could not adapt to the living environment of Hong Kong. The form went on to state that Suki was sent back to the Mainland, where her family members would take care of her. On being questioned about this form, the 1st applicant eventually alleged that she was acting under the instructions of the 2nd applicant when completing it[15]. 25.Suki’s admission to hospital attracted considerable media attention. The press began monitoring both of the 1st and 2nd applicants’ respective homes. The prosecution questioned the 1st applicant about her staying at a guest house with the 2nd applicant on 12 and 13 September 2015, which was prior to the applicants being interviewed by the police on 14 September 2015[16]. The obvious inference the prosecution invited the jury to draw from this fact was that the 1st and 2nd applicants were acting in concert with one another, and the defence of duress was a recent invention. 26.Photographs of ointments for treating skin conditions found at the applicant’s flat, which were alleged to have been used to treat Suki’s open sores, were also produced as part of the prosecution case; although this purpose was denied by the 1st applicant in cross‑examination[17]. Also produced was Suki’s pre-school activity notebook (Exhibit P25), seized from the 1st applicant’s home on 7 September 2015. In cross-examination, the 1st applicant denied having seen it before, insisting that the 2nd applicant, who had keys to her flat, had planted it there[18]. C.2 The voir dire 27.The prosecution sought to adduce into evidence a statement made by the 1st applicant on 12 August 2015 (Exhibit P23), in which she had said, inter alia[19]:
The statement then went on to describe other developmental problems Suki was suggested to have had, including rubbing herself with her own excrement and biting herself. 28.The prosecution relied on this statement for two purposes: first, as an admission by the 1st applicant that she was the child’s carer immediately before Suki’s admission to hospital; secondly, as real evidence of the false information provided to various persons under Counts 2 and 3. Accordingly, it also formed part of the actus reus for those Counts concerning the 1st applicant. 29.The 1st applicant opposed the admissibility of this statement on two grounds: first, she was not cautioned; secondly, she could not read traditional Chinese, and therefore could not fully understand what was written. The Judge ruled the statement admissible and declined to exercise his discretion to exclude it[20]. D. The defence case D.1 The 1st applicant’s defence 30.The 1st applicant contended that the 2nd applicant, and not she, was the carer of Suki. She testified that she was frightened of her husband, because he had previously assaulted and threatened her. Further, he had made her say things about Suki’s background in order to cover up what had really happened to the child. 31.The 1st applicant claimed that the 2nd applicant had continually maltreated her. When, for example, they had applied for CSSA in 2013, the 2nd applicant had allegedly abused her for having spoken to social services about family matters. He had assaulted the twin children and threatened to kill them all if they had to go to a doctor[21]. She claimed that the 2nd applicant had driven them all out of the house in about March 2013, forcing them to move into a flat in Tsuen Wan on 1 April 2013. It was her evidence that on 4 November 2014, she took Suki to the 2nd applicant’s residence in Tsing Yi and handed her over to him[22]. 32.The 1st applicant denied that she had filled in the enrolment form for the kindergarten (Exhibit P15). All the handwriting was that of the 2nd applicant, who had completed the form. She claimed that the 2nd applicant had told her to take Suki to the kindergarten, since it would be a loss of face for him if people found out he was on social security. On a handful of occasions between November 2014 and March 2015, she accepted that she had taken Suki to school, but it was always at the 2nd applicant’s instigation[23]. On those occasions that she picked Suki up from kindergarten, she would take Suki to a bus stop and hand her over to the 2nd applicant[24]. Of the CSSA applications for social security for Suki, she signed the forms on the instruction of the 2nd applicant[25]. 33.The 1st applicant maintained that the 2nd applicant told her Suki had been withdrawn from school because every time she was taken to school she would cry, refuse to eat and not do as she was told. The 2nd applicant then warned her that if she told the social worker or the police that Suki had been withdrawn from school, he would assault her. She accepted that she did make some visits to Suki before 18 July 2015, on which occasion she took gifts and the child appeared fine and well-cared for. However, she claimed that Suki did not like her very much and leaned more towards the 2nd applicant, although she would always hug and kiss her. She claimed that she had tried to persuade the 2nd applicant to put Suki back into the kindergarten but he resisted[26]. On her last visit in early June 2015, the 2nd applicant refused to let her into the flat but, instead, violently assaulted and threatened her, as a result of which she was really scared and did not return[27]. D.1.1 Bringing Suki to hospital on 18 July 2015 34.On the night of 18 July 2015, the 1st applicant said she was at home in Tsuen Wan with her twin daughters and son, when she received a call from the 2nd applicant telling her that Suki had suffered from a bout of car sickness. She asked what was the matter and the 2nd applicant told her to come and see Suki for herself. The 2nd applicant sounded scared and nervous and she reassured him that car sickness was normal. The 2nd applicant then suggested that they should meet at a particular bus stop. When she arrived at the bus stop, the 2nd applicant was there with Suki and a pram, and he instructed her to take Suki to the Accident and Emergency Department of the hospital. In the meantime, he would go to Tsing Yi to retrieve Suki’s identity documents. The 1st applicant said she patted Suki’s head but there was no response. She felt at a complete loss. The 2nd applicant had told her that if the doctors asked any questions, she was to lie and say Suki had taken congee and fainted. She then took Suki to hospital, handed her over to the doctors, and passed out[28]. D.1.2 Events after Suki had been admitted to hospital 35.The 1st applicant claimed that the 2nd applicant had called her on 24 July 2015 and told her to go to the CSSA office in Tsuen Wan. He instructed her to tell social services that Suki had been withdrawn from school in April 2015 and returned to the Mainland. She then saw Ms Fung and repeated what she had been told to say[29]. 36.The 1st applicant was asked in cross-examination how she could have let the 2nd applicant look after the child when, according to her, he had threatened her children, lied to her, assaulted her, and stolen from her. Her response was that the 2nd applicant had told her he was sorry and he would change[30]. D.1.3 Witnesses called by the 1st applicant 37.The 1st applicant called four witnesses in order to establish that they had not seen the 1st applicant with Suki. Mr Chan Kam-tau (DW2) had worked as a watchman at the place where she lived for almost eleven years. He testified that he had not seen the 1st applicant in the company of a 7-year-old girl entering or leaving the building. In cross‑examination, however, he agreed that a young girl could have been living in the 1st applicant’s flat without him knowing about it[31]. 38.Ms Chan Wai-fong (DW3), an acquaintance of the 1st applicant, had visited the 1st applicant’s home on various occasions. Prior to mid-July 2015, she said she would visit her home two or three times a month. She knew the 1st applicant had twins and a younger son. When she was asked about another “third daughter”, she said she had heard of this other child but had not seen her[32]. 39.Mr Wong Lun-fai (DW4), a resident of Cheuk Ming Mansion, had seen the 1st applicant, but she was only ever with three children, namely, twin daughters and a son[33]. Finally, Mr Yeung Wai-keung (DW5), also a resident of Cheuk Ming Mansion also said he had not seen the 1st applicant with a little girl. He thought the 1st applicant had two older children and a younger son, but had not seen her in the company of a younger daughter[34]. D.2 The 2nd applicant’s defence 40.The 2nd applicant denied ever having hit the 1st applicant. He said the 1st applicant had found the kindergarten for Suki and enrolled her there. He had never picked Suki up, or dropped her off, at the kindergarten[35]. The last time he saw Suki, before she was taken into hospital, was on 23 June 2015 at the 1st applicant’s home, although, in cross-examination, he changed the date to sometime towards the end of April 2015. He said he could not remember seeing Suki more than ten times between November 2014 and July 2015. However, he maintained that each time he saw her, it was at the 1st applicant’s Tsuen Wan residence[36]. 41.He claimed that the 1st applicant had told him to admit being Suki’s carer, her reason being that she had a previous conviction, and if prosecuted again she would be severely punished; whereas he had a clear record[37]. If anyone asked, he was to say that Suki had a history of hitting herself and liked to play with her own excrement and urine; and that Suki was born prematurely and, as such, had low intelligence[38]. 42.He was asked about staying in guest houses with the 1st applicant after Suki had been admitted to hospital, so as to avoid media attention. It was in one of the guest houses on about 12 or 13 September 2015, that the 1st applicant told him to say he had abused Suki. She had threatened to commit suicide if he did not do as she asked[39]. 43.The 2nd applicant confirmed, at the joint meeting with the doctors and social workers, that the 1st applicant had told Dr Tsang that Suki was born prematurely and with bad health, along with a host of other ailments such as developmental delay, difficulty absorbing nutrients, and a refusal to eat solid foods[40]. 44.He said that on 11 August 2015, he had met with the 1st applicant in a park, where they discussed her plan to persuade the social workers that Suki was congenitally disabled. He said the 1st applicant was putting pressure on him to admit he was the carer of Suki so that she could avoid responsibility[41]. 45.The 2nd applicant called a psychiatrist in private practice, Dr Choi Wing-kit (DW7), to give evidence as to his own mental health. Dr Choi considered that the 2nd applicant had been suffering from a prolonged and persistent depressive disorder, with the result that he was more susceptible to the repeated “begging and persuasions” of the 1st applicant[42]. However, this was refuted by a prosecution witness in rebuttal, Dr Gabriel Hung Bing-kei (PW15), who considered that the 2nd applicant was not suffering from any mental illness[43]. E. Additional argument and affirmations filed by the 2nd applicant 46.Mr McGowan, who represented the 2nd applicant at the trial below and in this application for leave, filed, on 22 May 2020, amended perfected grounds of appeal against sentence and an amended written argument against sentence; together with an affirmation by his instructing solicitor, Ms Kelly Ho, in support of an application to file a psychological report on the 2nd applicant, dated 18 April 2018, compiled by Dr Wong Chee-wing, a specialist in clinical psychology; and an affirmation by the 2nd applicant’s sister, Ms Ling Siu-yuen. 47.Mr McGowan’s amended perfected grounds of appeal and written argument against sentence largely cover the same points made in his original grounds and argument, albeit with minor amendments. In his latest written submissions, however, emphasis is placed on mental impairment and its role in potentially reducing the moral culpability of an offender. E.1 The affirmation of Ms Kelly Ho in support of adducing fresh evidence 48.Ms Ho has endeavoured to explain why the evidence of Dr Wong was not adduced at trial. She says that Mr McGowan, as trial counsel, considered it was not reasonably arguable that the jury required expert assistance as to the intellectual abilities of the 2nd applicant in reaching their decision. Nevertheless, Ms Ho affirms that Dr Wong’s evidence is now relevant to the 2nd applicant’s appeal against sentence and should be admitted in the interests of justice. 49.Paragraph 13 of Dr Wong’s report details, inter alia, the 2nd applicant’s low IQ, his low self-esteem and his insomnia. Dr Wong considers that the 2nd applicant’s “wilful acts leading up to the material charge laid against him … could be attributable to (his) consequential simple-mindedness or gullibility”. Paragraph 14 charts the 2nd applicant’s difficulties in growing up and his current health conditions, which include anxiety, depression and chronic heart disease. 50.Upon analysis, Dr Wong’s report deals with many of the points made by Dr Choi Wing-kit at trial. In his report adduced at trial (Exhibit D9), for example, Dr Choi described the 2nd applicant as a “very primitive man”, whose intellectual inadequacy was plainly evident. He described the 2nd applicant as clinically depressed, having suffered from years of unemployment and family problems. The enormous stress caused by the police investigation had caused him to worry about Suki’s physical condition and the emotional stability and safety of his wife and children. Dr Choi’s report concluded with the statement[44]:
E.2 The admissibility of Dr Wong’s report 51.It is not necessary for me to decide at this stage whether Dr Wong’s report should be admitted into evidence: that will be a matter for the Court of Appeal. As Ms Ho makes clear, at paragraph 2 of her affirmation, it is only sought to introduce the report in respect of sentence, not conviction. However, I will in due course approach the report by asking whether it fulfils the conditions of section 83V of the Criminal Procedure Ordinance, and whether, when viewed on a de bene esse basis, it leads to a reasonably arguable ground of appeal against sentence[45]. F. The current condition of Suki 52.I should point out at this juncture that an updated medical report on Suki was provided for the purposes of this leave application. The child is currently being cared for by the Department of Paediatrics at the Caritas Medical Centre in Sham Shui Po, Kowloon, where she has been a long term resident since June 2016. The associate consultant, Dr Lau Wai-ling, has explained that since her admission, Suki has been minimally conscious with limited response to external stimuli. There has been no obvious improvement, and she has profound levels of mental retardation. She requires 24-hour care and has to be fed through a tube. Dr Lau considers that she has a poor prognosis, since the neurological damage she has suffered is permanent and irreversible. G. The 1st applicant’s appeal against conviction G.1 The 1st applicant’s grounds of appeal against both conviction and sentence 53.Against this factual background which I have endeavoured to summarise, Mr HY Wong, on behalf of the 1st applicant, advances five grounds of appeal against conviction and one ground of appeal against sentence. They may be summarised as follows:
G.2 The 2nd applicant’s grounds of appeal against conviction and sentence 54.The 2nd applicant advances one ground of appeal against conviction, namely that the Judge did not properly direct the jury on the elements of duress. Although the complaint, as with the 1st applicant, also engages the Specimen Directions on duress, it is concerned with the absence of the word “not” in the oral directions, although the word was included in the written directions handed to the jury. 55.The 2nd applicant further advances five grounds of appeal against sentence, the fifth of which is the general ground that the sentence is wrong in principle and/or manifestly excessive. The other grounds may be summarised as follows:
G.3 The 1st applicant’s submissions (Ground 1) 56.This ground is couched in terms of the lack of appropriate directions on inferences, but also seems to embrace a complaint about the fairness of the Judge’s summing-up. 57.Mr Wong’s argument proceeds as follows. The 1st applicant called a number of witnesses who testified that they had never seen a child fitting Suki’s description at the 1st applicant’s residence in Tsuen Wan. The flat in Tsuen Wan was very small; a fact which was not disputed by either the prosecution or defence. The 1st applicant therefore contends that the Judge, having directed the jury on circumstantial evidence and the drawing of inferences, nonetheless did not specifically direct the jury as to the inherent improbability of “just how it was possible for the applicant to conceal the existence of the child in the small unit from 13 November 2014 up to 18 July 2015 and more critically, from 28 April to 18 July 2015”[46]. Accordingly, it is said that such an inherent improbability was just “glossed over”[47] by the Judge. 58.Mr Wong relies on HKSAR v Nguyen Anh Nga[48] where the Court of Final Appeal emphasised the importance, in appropriate cases, of a judge drawing the jury’s attention to the defence case and identifying the evidence which the defence contended could rebut the inference of guilt. Counsel lays particular emphasis upon the following passage[49]:
59.The Judge’s directions on the drawing of inferences, in full, were these[50]:
60.The 1st applicant’s complaint is that nowhere in the above passages did the Judge mention how small the flat was and the difficulties the 1st applicant would have had in concealing the existence of Suki. It will be noted, however, that the Judge did specifically refer to the evidence of the 1st applicant’s witnesses, who had never seen her in the company of a young girl of Suki’s age, as evidence relied upon by the defence to rebut the prosecution’s inference. G.3.1 Discussion (Ground 1) 61.An immediate hurdle for Mr Wong to overcome on this ground, as he acknowledged before me in argument, is that nowhere in his predecessor’s closing speech was the point made that, because of the cramped conditions of the flat, it would have been inherently difficult or impossible to conceal the presence of Suki. Mr Wong was driven to arguing that, nevertheless, the judge should have mentioned it in the interests of a fair trial. 62.Notwithstanding the specific reference to the defence witnesses’ evidence, he further complains that the Judge failed to “summarise, let alone identify, the defence evidence which may rebut the inference of guilt and disputed inferences”[51]. Counsel relied on the judgment in HKSAR v Jitsatta Chosita[52], where the Court of Appeal held[53]:
63.Mr Wong argues that the following example is demonstrative of his point. The police evidence was that they found an activity book and documents from the Student Financial Assistance Agency at the 1st applicant’s flat during a search. The 1st applicant contended that these documents were plainly discoverable yet, prior to the police seizing them, they had already conducted searches of her flat on 12 August and 5 September 2015 and not found them. Her allegation was that the 2nd applicant had planted them in her flat in the interim[54]. However, it is submitted that all the learned judge told the jury was “now on the other hand, the defence say that primary facts that the prosecution relied on have not been proved or are questionable. You will remember (defence counsel) in his closing address discussed that with you”[55]. Thus, says Mr Wong, the judge failed to identify and summarise evidence which might have rebutted an adverse inference. 64.However, Mr Wong has, with respect, rather overlooked what the Judge later had to say on this very point[56]:
65.This ground of appeal is not accurately pleaded nor reasonably arguable. G.4 The 1st applicant’s submissions (Ground 2) 66.The 1st applicant submits, as indeed was argued on her behalf at the voir dire, that the Judge should have ruled her witness statement (Exhibit P23) inadmissible for two reasons: firstly, the police did not caution the applicant before the statement was taken; secondly, since the 1st applicant does not read traditional Chinese, in which the statement was written, she was deprived of her right to read what was recorded. 67.The Judge reasoned in his ruling on admissibility at the conclusion of the voir dire[57] that:
G.4.1 Discussion (Ground 2) 68.It is not apparent from Mr Wong’s written or oral submissions why the Judge was wrong to have ruled as he did, or where the Judge went wrong in the exercise of his discretion. I cannot see any serious attempt to argue that the Judge was wrong to find as he did on the evidence, given that it was essentially a fact-finding exercise. 69.Mr Wong has further tried to suggest, although this seems to be part of Ground 3 as well, that duress by the 2nd applicant may also have been a factor behind the 1st applicant’s signing of Exhibit 23. Again, this matter was never argued by Mr Wong’s predecessor at the trial, nor was it the 1st applicant’s evidence on the voir dire. It is somewhat astonishing that Mr Wong should now seek to argue a basis for excluding the statement which was never even mounted at trial. If the suggestion is that the Judge could have revisited his ruling in the light of later evidence, the fact is he was never asked to revisit it by trial counsel, whom Mr Wong has made no attempt to contact to ask why not. Given the way the proceedings were conducted by trial counsel, whose competence Mr Wong does not impugn, this ground of appeal does not even approach the threshold of reasonable arguability. G.5 The 1st applicant’s submissions (Ground 3) 70.As has just been touched upon, Mr Wong submits that whilst the 1st applicant was challenging the admissibility of Exhibit P23 on the grounds of police impropriety, she was also opposing its admissibility on the basis of duress by the 2nd applicant. He argues that the judge failed to give the jury a suitably worded Mushtaq direction to cater for both circumstances of oppression. G.5.1 Discussion (Ground 3) 71.As I have already observed, this matter was not raised in the written grounds of objection to the admissibility of Exhibit P23[58], which made no complaint of any duress or impropriety emanating from the 2nd applicant. In fact, the 2nd applicant was not even mentioned, even by implication. Likewise, in the evidence and transcript of counsel’s address on behalf of the 1st applicant on the special issue, there was no mention of the 2nd applicant allegedly exerting pressure on her. It was simply never an issue raised during the voir dire at all. 72.It is further not correct for Mr Wong to say that the Judge did not give a suitable Mushtaq direction: for he clearly did[59]:
73.If the contention is that there was other impropriety by way of duress by the 2nd applicant, which called for a modified or extended Mushtaq direction, that was not the applicant’s case during the voir dire, nor was it suggested by defence counsel at any stage of the voir dire, nor did defence counsel request such a direction. In any event, as Mr Percy observes, the 2nd applicant was not a person in authority in law and was not even in the room when Exhibit P23 came into being. The foundation for this ground of appeal is not made out and is not reasonably arguable. G.6 The 1st applicant’s submissions (Ground 4) 74.The gravamen of the complaint by the 1st applicant is that the Judge, when directing the jury in relation to duress, directed that they should also take into account (i) whether the 1st applicant failed to take the opportunity to escape and (ii) placed herself in a position where she was likely to be subjected to threats. It is Mr Wong’s contention that it was only necessary for the Judge to direct the jury in terms of (i) and (ii) when dealing with duress by threats: such limitations had no application to duress by circumstances. He maintains that duress, so far as the 1st applicant is concerned, was being run on both bases and therefore, inasmuch as the Judge’s direction invited them to have regard to limitations (i) and (ii) and failed to distinguish between the two forms of duress, it was a misdirection. G.6.1 Discussion (Ground 4) 75.Again, no enquiry has been made by Mr Wong as to his predecessor’s position during the trial. I have therefore found it necessary to obtain a transcript of the relevant exchanges between all counsel at trial and the Judge on 12 June 2018, which was the day before the summing-up commenced. The transcript will be added to the Appeal Bundle. Having perused these exchanges, two matters immediately become clear. First, defence counsel at trial agreed with the Judge’s proposed written directions on duress; secondly, and rather more pertinently in view of the argument now raised, when asked by the Judge whether the basis of his case was that the 1st applicant “was driven to do what she did by acts of violence and threats towards her and her twin daughters by the 2nd defendant”, defence counsel at trial responded “Exactly”[60]. 76.I have also examined the 1st applicant’s evidence, as well as defence counsel’s closing address to the jury and it is plain that the applicant’s case was one of duress by threats from the 2nd applicant: it was not one of duress by circumstances. That was certainly the view of Mr Wong’s predecessor as trial counsel. By contrast, it is also clear from the same exchanges between the Judge and Mr McGowan, then also acting for the 2nd applicant, that his case was both duress by threats and duress by circumstances[61]. 77.I do not regard Ground 4 as reasonably arguable. G.7 The 1st applicant’s submissions (Ground 5) 78.Mr Wong submits that the 10 photographs of Suki taken upon her admission to hospital (Exhibit P29(1-10)), as well as the 10 photographs of her some three weeks after admission (Exhibit P30(1-10)), were inadmissible, since their prejudicial effect outweighed their probative value. His foundation for so saying is that the photographs depicted Suki’s appalling physical condition, something that obviously distressed the jury, “was wholly unnecessary and did not advance the prosecution’s case”[62]. G.7.1 Discussion (Ground 5) 79.Mr Wong faces a number of formidable obstacles in advancing this as a reasonably arguable ground of appeal. First, the photographs were introduced by way of Admitted Facts, agreed to by all counsel involved at trial, including Mr Wong’s predecessor as defence counsel[63]. Secondly, there was never any application by anyone for their exclusion. Thirdly, the Judge gave strong and repeated directions to the jury not to be influenced emotionally by the evidence they had seen, both at the time when the forelady of the jury sent her note to the Judge[64] and during the summing-up[65]. Fourthly, defence counsel at trial made it clear, following the forelady’s note, that he was not applying to have her or the jury discharged[66]. 80.There has been no suggestion that defence counsel at trial was flagrantly incompetent in admitting this evidence, or in reacting to the forelady’s note as he did. With respect, criminal cases sometimes throw up deeply tragic and distasteful aspects of life in the community around us. Jurors are members of that community and cannot be expected to be cossetted from the circumstances with which they have to deal and of which, as ordinary citizens, they must and should be aware. Similarly, jurors are assumed to be faithful to the directions they receive as to how to treat certain evidence. In any event, it was the 1st applicant’s case that she was not responsible for Suki’s condition. This ground is not reasonably arguable. G.8 Failure to consult trial counsel 81.In addressing Mr Wong’s grounds of appeal, I have already observed that Mr Wong has made no attempt to consult his predecessor as trial counsel in respect of Grounds 1, 2 and 3 (so far as the duress issue is said to have impacted on the admissibility of Exhibit P23), 4 or 5. Yet, all grounds impliedly or expressly impugn the decisions his predecessor took at trial. This is wholly unacceptable and well illustrates the pervasive culture of appeals in Hong Kong, where fresh counsel on appeal complain too readily about things which were done or not done at trial, without any proper understanding of, or interest in finding out, why. When Mr Wong was challenged by the Court as to why he had not made the necessary enquiries, he retreated to the familiar mantra that the “fairness of the trial” trumped all other considerations. With respect, that is not a valid answer, and it is certainly no answer to a duty which is now cast firmly on appellate counsel. I would remind appellate counsel of what was said by the Court in HKSAR v Apelete (No 1)[67]:
G.9 The 1st applicant’s grounds of appeal against sentence 82.The Judge adopted a starting point of 9½ years’ imprisonment in respect of Count 1, and starting points of 3½ years imprisonment on Count 2 and 5 years and 9 months’ imprisonment on Count 3. The two sentences on Counts 2 and 3 were ordered to run concurrently with each other but consecutively to the sentence on Count 1, making an overall sentence of 15 years and 3 months’ imprisonment. 83.Mr Wong cites the case of HKSAR v Lam Wai Man[68], where the defendant had received a starting point of 9 years’ imprisonment for an offence contrary to section 27(1) of the Offences Against the Person Ordinance, and 12 years for an offence of manslaughter. Making the sentences partly concurrent and partly consecutive, the overall sentence passed upon her after she had pleaded guilty was 9 years’ imprisonment; a sentence the Court upheld as entirely appropriate. 84.Lam Wai Man was another case of extreme cruelty towards a child. In that case, the applicant and a male took her 21-month-old son to a doctor. The doctor noticed that there were severe injuries on the child’s head, abdomen and back, as well as cane marks to both calves. Since he was suspicious about how the injuries had come about, and could see that the child had suffered a severe brain injury and was in critical condition, he advised that the child should be taken immediately to Yan Chai Hospital for which he would summon an ambulance. The male suddenly grabbed the child, saying that he had a car outside and no ambulance was needed. However, neither he nor the applicant took the child to hospital. They only did so on the following day, when the examining doctors noticed that the child, who had no breathing, pulse or heartbeat, had multiple wounds all over his body. The child’s heartbeat was restored but he remained in a comatose state until his death a few days later. 85.A post mortem examination revealed 36 separate external injuries to the child body, including five blows to the head. His brain was severely damaged and swollen, the head injuries being found to be the cause of death. In agreeing with the sentencing judge’s approach, the Court held[69]:
86.Having looked at its facts, it is unclear what advantage Mr Wong seeks to derive from the decision in Lam Wai Man other than that the overall starting point, where the child died as a result of the applicant’s cruelty, was 12 years’ imprisonment, whereas in the present case, where the child has effectively been left in a vegetative state with profound, permanent and irreversible brain damage for the rest of her limited life as a result of the applicant’s cruelty, the applicant received 9½ years’ imprisonment after trial. In Lam Wai Man, of course, there were no further counts of perverting the course of public justice to cover up her actions and mislead the authorities, the applicant having accepted that she alone was responsible for looking after and disciplining her child. 87.The Judge in the present case was in fact referred to Lam Wai Man and other authorities when sentencing, and had this to say[70]:
88.Mr Wong’s complaint is the Judge may have been unduly swayed by his view that the maximum sentence of 10 years provided by section 27(1) of the Offences Against the Person Ordinance did not do justice to the seriousness of the crime. If so, it would have been wrong of him to make up for that deficiency by ordering the sentences on Counts 2 and 3 to run entirely consecutively to Count 1. The genesis of Mr Wong’s complaint in this regard is said to be found in the Judge’s sentencing remarks[71]:
G.9.1 Respondent’s submissions in respect of the 1st applicant’s appeal against sentence 89.The respondent submits that throughout the course of the trial, no remorse or shame whatsoever was shown by the 1st applicant, nor was there any mitigation to justify a reduction in sentence from an entirely appropriate starting point of 9½ years’ imprisonment for this offence. 90.Mr Percy emphasises the following particular factors to be considered by a court when sentencing for this offence, which factors were in fact identified by the Judge: the need to protect the young and vulnerable, as well as deter like-minded individuals from abusing and neglecting the young and vulnerable; the age and background of the victim; the relationship between the offender and the child; the responsibility of the offender to the child; the nature, degree and duration of the ill-treatment of the child; the suffering of the child and the long term effects the abuse will have on the child both physically and psychologically[72]. 91.The Judge also noted a number of aggravating factors when sentencing the 1st applicant, prefacing his remarks by saying, “This was a case of extreme cruelty to a child over a protracted period. There was deliberate sadistic and systematic abuse of Yun-Lam”[73]. Such aggravating factors were these: only one particular child in the family was targeted (the Judge poignantly described Suki during mitigation as the unwanted “Cinderella child”[74]); the 1st applicant isolated Suki, effectively preventing her from disclosing or revealing her abuse to others and preventing others from becoming aware of that abuse; she deliberately concealed Suki from the authorities; she failed to seek medical help; she abused her power and position of authority as Suki’s mother; the abuse inflicted has “resulted in (Suki) suffering severe physical and psychological harm in the most indescribable way”[75]. 92.As for the 1st applicant’s contention that the Judge was unduly swayed by his view that the sentencing maximum for the offence was too low, Mr Percy submits this is purely speculative on Mr Wong’s part. Moreover, he maintains that the Judge was correct in principle to order the sentences on Counts 2 and 3 to run entirely consecutively to the sentence imposed on Count 1, since they formed a separate and distinct category of offence. G.9.2 Discussion, the 1st applicant’s leave to appeal against sentence (Ground 1) 93.The Judge formed the view that this was a shocking and horrific case of “deliberate, sadistic and systematic abuse”[76] of a young defenceless child by a mother whom he described as “very calculating and devious … very callous and cold-hearted”, and “whose cruelty knew no bounds”[77]. I cannot see the Court of Appeal disagreeing with his assessment, given that he was in the best position to make it, having presided over the trial for some 50 days. Mr Wong wisely takes no issue, in the circumstances, with the individual starting point in respect of Count 1. His complaint is with the concurrent sentence on Counts 2 and 3 of a total of 5 years 9 months’ imprisonment being ordered to run wholly consecutively to the sentence on Count 1, which he suggests was done because the Judge viewed the maximum sentence available on Count 1 as too short. In so doing, the Judge infringed the principle of totality. 94.I do not see any basis whatsoever for saying that the Judge has effectively manipulated the sentence to get round what he regarded as the inadequacy of the maximum penalty for Count 1. Moreover, it is clear that the judge did have the principle of totality in mind[78]:
It should be observed that Counts 2 and 3 in fact concerned representations by the 1st applicant to different people[79] at different periods of time in different ways. Nevertheless, the Judge reasoned that the sentences on each count could be ordered to run wholly concurrently with each other under the principle of totality. The fact remains that Counts 2 and 3 were a separate and distinct category of offence from Count 1 and the Judge was entitled to order their sentences to run wholly consecutively to the sentence on Count 1, as long as he recognised the principle of totality; which clearly he must have done, because he specifically referred to it. 95.At the end of the day, however the Judge went about his task, the Court of Appeal will look at the ultimate sentence and ask itself whether 15 years 3 months’ imprisonment after trial was manifestly excessive and/or wrong in principle for the 1st applicant’s criminality involved. I do not regard it as reasonably arguable that the overall sentence passed on the 1st applicant after trial for the criminality involved was manifestly excessive and/or wrong in principle. 96.Accordingly, leave to appeal against sentence is refused. H. The 2nd applicant’s appeal against conviction H.1 The 2nd applicant’s grounds of appeal (Ground 1) 97.Mr McGowan’s complaint in respect of the Judge’s direction on duress is somewhat different from that of Mr Wong. The basis of his sole ground of appeal against conviction is that the Judge omitted the word ‘not’ from the following passage:
Accordingly, it is said that the Judge has not followed the relevant part of Specimen Direction 49. Although Mr McGowan says he regrets that he did not himself notice the mistake at trial[81], he has not attempted to argue, in either his grounds of appeal or his written or oral arguments, why it is material and how it has affected the safety of the conviction; other than to suggest, rather vaguely, that the jury might have been confused. H.1.1 Discussion (Ground 1) 98.Whilst it is correct that the word “not” is absent from the Judge’s oral direction, it is clearly present in the last sentence of the relevant written direction, namely Sheet 5[82], which was handed to the jury and was physically in front of them when he was going through his oral directions in the summing‑up. The relevant part of the direction in the written hand-out reads as follows:
99.Since the Judge was plainly giving his oral directions when the written direction in Sheet 5 was physically in front of the jury, it would have been obvious to them, as it ought to have been to counsel, that this was a mere slip of the tongue, so obvious that nobody ever thought it necessary to raise the matter with the Judge. Not only would it have been obvious, it was inconsequential. If taken at face value, the jury were being told orally that if they were sure that either applicant had an opportunity to escape, duress would not apply and the applicant was guilty; but if they were sure that either applicant had an opportunity to escape, and nonetheless failed to take it, duress would still apply and the applicant was not guilty. The oral direction did not make sense: the written one did. 100.But even if the jury were only listening to the Judge’s oral direction and all of them ignored the written hand-out altogether, they would have understood from the impugned oral direction that if they were sure the applicant failed to take the opportunity to escape, duress would apply and they must acquit; which, if anything, was favourable to the applicants. Anyone listening to what was on the face of it an apparent nonsense would have queried it. No one ever did, including counsel, which rather suggests that it was such an obvious slip of the tongue that it did not merit further comment. I do not see this ground as reasonably arguable. 101.For the sake of completeness, there was a further complaint in respect of Sheet 5, made by both applicants, although in somewhat diffident terms. It was said that there was a confusing duplication of the direction on duress in the written hand-out (and oral direction), namely:
102.As I have mentioned, the Judge’s proposed written directions were given to counsel the day before he summed up to the jury and they were invited to comment on those directions. Some minor amendments were suggested, yet no one saw fit to complain in any way about the direction that is now impugned. Even if there was a duplication, I cannot see how it mattered or how, in particular, it was disadvantageous to the applicants. There is nothing in this point that comes near to a reasonably arguable ground of appeal. H.2 Question of law or mixed law and fact? 103.Although counsel for neither applicant has sought to argue that the alleged misdirections in respect of duress are questions of law for which leave is not required, I should say that I have considered the matter myself. In respect of the 1st applicant’s ground, the alleged misdirection depends on the evidence as to whether this was a case of duress by threats or duress by circumstances, or both. Since I am of the view, as was the Judge and defence counsel at trial, that this was clearly a case of the former and not the latter, the point of law therefore depends for its validity on the facts: accordingly, it is a question of mixed law and fact requiring leave of a Single Judge. 104.As for the 2nd applicant’s ground, the error complained of was so obviously a departure from the written hand-out, and so clearly a slip of the tongue by the Judge, that neither Mr McGowan nor anyone else, including the jury, would have been remotely confused by it, had they even noticed it. It does not, to my mind, come anywhere near establishing a valid ground of appeal fit for the attention of the Court of Appeal. H.3 Submissions of the 2nd applicant, leave to appeal against sentence (Grounds 1 and 2) 105.These grounds in effect cover the same area and are concerned with the role by the 2nd applicant, given the 1st applicant’s personality and the duress to which he allegedly felt subjected, and the Judge’s treatment of the psychiatric evidence. 106.To briefly rehearse the evidence, Dr Choi Wing-kit’s evidence on behalf of the 2nd applicant was that he had started to have permanent depressive disorder and symptoms of anxiety since mid-2012; that he had a strong sense of worthlessness and guilt and blamed himself for not being a good husband and father; that since Suki had been admitted to hospital he was diagnosed as suffering from depression and had been taking anti‑depressant medication. Dr Choi considered that the 2nd applicant was so compromised by his medical condition that it would have made him susceptible to the 1st applicant’s influence. It was Dr Hung Bing-hei, Gabriel’s opinion, on the other hand, that the 2nd applicant did not suffer from any depressive disorder at the time of the offence. 107.Mr McGowan’s complaint is that Dr Choi’s opinion, whilst duress had been rejected by the jury (as evidenced by their unanimous verdict), was nonetheless relevant to mitigation. He takes issue with this particular finding of the Judge, when sentencing[83]:
Counsel further relies on the report of a psychologist, Dr Wong Chee-wing, which, although not produced at trial, was broadly supportive of Dr Choi’s conclusions. H.3.1 Discussion (Grounds 1 and 2) 108.Since the applicant is taking issue with a finding of the Judge following a 50-day trial, it is worth noting the following exchange between the Judge and counsel during mitigation[84]:
109.The Judge then took issue with the sincerity of the 2nd defendant’s claim that he felt inadequate as a father and asked why someone who claimed to feel so inadequate would lie in respect of Suki’s condition[85]:
110.The theme of the alleged threats from the 1st applicant to the 2nd applicant was then again put forward by Mr McGowan in mitigation. He submitted the 2nd applicant was worried about what would happen to the rest of the family were the 1st applicant to commit suicide, as the 2nd applicant had claimed the 1st applicant might. The Judge pointed out that the notion of such threats had been rejected by the jury[86]. There then followed this exchange between counsel and the Judge[87]:
111.I have referred in some detail to these exchanges between the court and counsel during mitigation, and, it should be said, there were many others, in order to demonstrate that the arguments being put forward under these grounds of appeal were specifically discussed during mitigation and addressed in the Judge’s full and extensive Reasons for Sentence. As I have already pointed out, the Judge was in the best position to assess the true reasons and motive for the 2nd applicant’s actions, having presided over this lengthy trial and having heard from the applicant and various expert witnesses. I cannot see the Court of Appeal disagreeing with that very careful assessment. I do not find these grounds reasonably arguable. H.3.2 Application to adduce fresh evidence from Dr Wong Chee-wing 112.It is here that I should say something about the adducing of fresh evidence in the form of the psychological report of Dr Wong Chee-wing, dated 18 April 2018. The date is significant because plainly Dr Wong’s report was available and in counsel’s hands well before the 2nd applicant was called upon to present his defence. As a matter of record, the 2nd applicant’s evidence commenced on 17 May 2018. Given that fact alone, I would have thought it will be difficult for the 2nd applicant to satisfy section 83V(2)(b) of the Criminal Procedure Ordinance. Moreover, given the overlap of Dr Wong’s report with Dr Choi’s evidence, which I have earlier mentioned[88], the 2nd applicant might have further difficulty in disabusing a Court of Appeal of the conclusion “that the evidence, if received, would not afford any ground for allowing the appeal”, within the meaning of section 83V(2). That, however, must ultimately be a matter for the Court of Appeal. All I shall say at this stage is that, even at its highest, and viewing the contents of Dr Wong’s report on a de bene esse basis, I do not see that this fresh evidence enhances the reasonable arguability of Grounds 1 and 2. H.4 Submissions of the 2nd applicant, leave to appeal against sentence (Ground 3) 113.Mr McGowan makes two discrete points under this ground of appeal. Firstly, he says it is significant that the 2nd applicant admitted that he lied under caution; however, he did not persist with his deceit in court. He draws a comparison between the 2nd applicant’s sentence of 4½ years’ imprisonment and that of the appellant in the English case of R v Tunney[89], where the appellant’s sentence was reduced from 3 years’ to 2½ years’ imprisonment on appeal. 114.Secondly, Mr McGowan complains that “judicial recognition of both ‘matrimonial loyalty’ and the importance of parents to young children (both factors motivating A2) are matters which should have been acknowledged in determining his sentence”[90]. Reference is made in support of this proposition to another English case, namely R v Whitehead[91]. H.4.1 Discussion (Ground 3) 115.The submissions advanced under this ground of appeal are, with respect, extraordinary. Firstly, Mr McGowan submits that the applicant should receive credit for not perjuring himself, when he has effectively claimed on oath (a claim the jury found to be false) to have been acting under duress in order to avoid conviction for perverting the course of public justice. His admission that he was lying was, therefore, an essential part of his defence of duress, which was rejected by the jury and by the Judge. In any event, as Mr Percy puts it, a lack of aggravation does not translate into mitigation. I do not see how the case of Tunney helps. 116.Secondly, it would be equally extraordinary, and arguably wrong in principle, for the Judge to have given the 2nd applicant a discount for being motivated to lie to the authorities out of love for his children, when the lies were also perpetrated with a view to covering up the abuse of another child who had suffered so cruelly at the hands of his wife. This was an argument which the Judge specifically addressed when it was suggested in mitigation that the 2nd applicant was remorseful[92]. The Judge said this[93]:
117.The Judge has fully, and on the face of it correctly, dealt with this point and I do not consider the ground reasonably arguable. H.5 Submissions of the 2nd applicant, leave to appeal against sentence (Ground 4) 118.Ground 4 avers that the circumstances of the 2nd applicant’s mother have become such as to merit a humanitarian re-consideration of his sentence. Mr McGowan submits that the mother, who is suffering from dementia, and who was heavily dependent on the 2nd applicant until his incarceration, is being looked after by the 2nd applicant’s sister. Having surrendered their public housing unit (which was also the 2nd applicant’s home) and moved to a small HOS unit purchased by his sister, she is finding it increasingly difficult to cope with their mother, whose quality of life has markedly deteriorated. 119.In support of this ground of appeal, the 2nd applicant has applied, by notice of motion dated 21 May 2020, for leave to file an affirmation from the 2nd applicant’s sister. This affirmation seeks to explain the issues faced by the sister in looking after the 2nd applicant’s mother in her deteriorating state. H.5.1 Discussion (Ground 4) 120.The circumstances of the applicant’s mother are indeed unfortunate. However, it is by no means unusual for families to suffer greatly in various different ways when a member of the family upon whom they rely is sent to prison. Unfortunately, the courts cannot be deflected by such considerations from imposing proper sentences for serious offences, particularly where issues of public deterrence are engaged. The applicant will in the normal course serve 3 years of his sentence of 4½ years’ imprisonment, assuming good behaviour. He has already served 2 years. 121.I do not consider this to be a reasonably arguable ground of appeal. The admissibility of the affirmation of Ms Ling Siu-yuen as fresh evidence, in accordance with the terms of section 83V of the Criminal Procedure Ordinance, will be a matter for the Court of Appeal. For my part, at this stage, I do not see that it adds to the reasonable arguability of Ground 4. H.6 Is the sentence passed on the 2nd applicant otherwise wrong in principle and/or manifestly excessive? 122.Since Ground 5 is a catch-all ground that the sentence passed on the 2nd applicant is wrong in principle and/or manifestly excessive, I have considered whether there is a reasonable ground of appeal that 4½ years’ imprisonment after a contested trial was manifestly excessive, given the 2nd applicant’s criminality. It was a severe sentence, but it was an extremely serious example of the offence, in which the 2nd applicant lied, both orally and in writing (viz. Exhibit P43), to a doctor, social workers and police officers knowing full well that a child had been cruelly treated, and singled out for cruel treatment, by his wife and was now lying bedridden, incapacitated and in a vegetative state in hospital. I doubt, frankly, that any appellate Court would regard it as other than a thoroughly despicable offence. 123.The Judge scrupulously considered the mitigation and sentence in great detail and with obvious care. As I have said, the Reasons for Sentence alone run to 34 pages of transcript, and, from the log record of the Judge’s Clerk, took more than 2 hours for the Judge to deliver in open court. The trial itself took some 50 days and, obviously, the Judge was in the best possible position, having heard all the evidence, including the two applicants, to determine their culpability, and their relative culpability. It is noteworthy that the Judge gave the 2nd applicant a lesser sentence on Count 3 than he did the 1st applicant. I do not see any reasonable grounds of appeal against sentence by the 2nd applicant. I. Conclusion 124.The applications for leave to appeal against both conviction and sentence by both applicants are refused. Having refused leave, I should advise each of them that they have the right to renew all or any of their grounds of appeal against either conviction or sentence. However, I should also warn each of them that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his or her appeal, if the Court were to come to the view that there was no justification for the renewal of the particular application.
Mr Duncan Percy and Ms Josephine Chiu, counsel on fiat, instructed by the Department of Justice, for the Respondent Mr H Y Wong, instructed by H Y Leung & Co LLP, assigned by the Director of Legal Aid, for the 1st Applicant Mr James McGowan, instructed by Yung, Yu, Yuen & Co, assigned by the Director of Legal Aid, for the 2nd Applicant [1] AB, p 402P-R. [2] In fact, the 1st applicant was also mother to a pair of twin girls at home. [3] AB, p 35G-K. [4] AB, p 35K-M. [5] AB, p 35M-N. [6] AB, p 35N-S. [7] AB, pp 100R-101C. [8] AB, p 101A-K. [9] AB, p 101R-V. [10] AB, p 102A-D. [11] AB, pp 107P-108B. [12] AB, p 112D-H. [13] AB, p 114A-C. [14] AB, p 150L-M. [15] AB, p 199B-F. [16] AB, p 202D-T. [17] AB, p 213E-H. [18] AB, p 212M-P. [19] AB, pp 811-812. [20] AB, pp 499-502. [21] AB, p 158E-V. [22] AB, p 163O-R. [23] AB, p 164A-Q. [24] AB, p 165L-M. [25] AB, p 166E-J. [26] AB, pp 167-169. [27] AB, p 171P-S. [28] AB, pp 172-173. [29] AB, pp 176S-177D. [30] AB, p 193G-M. [31] AB, p 223P-R. [32] AB, p 225F-I. [33] AB, p 227L-T. [34] AB, p 228H-V. [35] AB, p 258C-E. [36] AB, p 258O-Q. [37] AB, p 242E-G. [38] AB, p 242A-U. [39] AB, p 247K-V. [40] AB, pp 264K-265D. [41] AB, p 265G-L. [42] AB, p 289C-F. [43] AB, p 292A-G. [44] AB, p 855. [45] Para 112 infra. [46] The 1st applicant’s written submissions, para 10. [47] Ibid., para 11. [48] HKSAR v Nguyen Anh Nga [2017] 20 HKCFAR 149. [49] Ibid.,at [39]. [50] AB, pp 62D-65I. [51] The 1st applicant’s written submissions, para 12. [52] HKSAR v Jitsatta Chosita (unrep., CACC 443/2011, 14 November 2012). [53] Ibid., at [29]. [54] AB, p 739A-E. [55] AB, p 64P-R. [56] AB, pp 212N-213E. [57] AB, p 502A-E. [58] AB, pp 749-750. [59] AB, p 143F-H. [60] Further transcript for 12 June 2018, p 37L-P. [61] Further transcript for 12 June 2018, p 37P-U. [62] The 1st applicant’s submissions, para 23. [63] AB, p 28, paras 35 and 36. [64] AB, p 519C-L. [65] AB, pp 41T-42G. [66] AB, p 508T-U. [67] HKSAR v Apelete [2019] 5 HKLRD 574, at [69]. [68] HKSAR v Lam Wai Man [1999] 3 HKLRD 855. [69] Ibid., at 861A-D. [70] AB, p 416C-E. [71] AB, p 435F-L. [72] AB, p 431C-G. [73] AB, p 431H-I. [74] AB, p 340D-E. [75] AB, p 431I-M. [76] AB, p 431H-I. [77] AB, pp 426U-427C. [78] AB, p 434N-R. [79] Save for Ms Cheung Hoi-len, Helen, who is common to both Count 2 and Count 3. [80] AB, p 60B-E. [81] The 2nd applicant’s written argument, dated 14 February 2020, para 8. [82] AB, p 765. [83] AB, p 430E-G. [84] AB, pp 378D-379C. [85] AB, p 383S-T. [86] AB, p 386H-I. [87] AB, pp 386S-387R. [88] Para 50 supra. [89] R v Tunney [2007] 1 Cr App R (S) 91. [90] The 2nd applicant’s amended written argument against sentence, dated 19 May 2020, para 32. [91] R v Whitehead[1996] 1 Cr App R (S). [92] AB, p 372R-S. [93] AB, p 373A-N. |
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