COURT: The defendant has been convicted after trial by a jury of manslaughter. The facts are well known in that he left his daughter, three-month-old baby, at home and the child died from suffocation aided by dehydration and starvation. It is a family tragedy as defence counsel, Mr Polson, had observed. It is tragic not only for the immediate family, that is the mother and the father of the child, also for the grandparents and relatives.
What is obvious throughout the trial from the prosecution witnesses is that the defendant is a man who loved his baby daughter. He was a caring father and even the mother of the child said that he would accompany the child to see the doctors on check-up or when she was sick and would play with her and feed her and help out when she was busy with the cooking.
What is unfortunate is the fact that the mother of the baby was a young person and she did suffer from mild post-natal depression and felt that she needed to go out and stay out overnight occasionally. On this one occasion, before she left for the mainland the night before, she also stayed out the whole night but she returned home the following afternoon.
And on the night of the incident, on that last night, she suddenly, she said, woke up in the middle of the night at about 3 am and decided to leave home without saying a word to the defendant. She went to the mainland and was incommunicado until the following day. The defendant woke up and found his wife gone, and yet he, despite telephoning relatives, was unable to locate his wife. He sent her messages, he telephoned her many times but was unable to reach her. But yet he still fulfilled his duties to his daughter. He fed her throughout that day when she needed to be fed. And as Mr Polson pointed out, on the evening at about 10 o’clock of that day, after feeding the baby, he was at the end of his tether and decided that he would do the same thing as his wife did in order to scare her.
The defendant also said that he had noticed a Facebook message from his wife that said that she would return home the following day, and so he was reassured, he said, that his wife would be home the following day and therefore he left without telling anyone in order to scare his wife that when she came home, she would see that he was gone. It was a foolish and stupid decision, an irresponsible one to leave a defenceless, little three-month-old baby alone at home. And as fate would have it, his wife, unbeknownst to him, decided that she would stay one more day in the mainland.
And it also transpired during the trial that on the evening of the following day, his wife had sent him a message, asking him what he was eating or what he wanted to eat. So he thought his wife was at home, he said, and asking him what he wanted to eat when he came home. But unbeknownst to him, she was still in the mainland when she sent him that message. So as things transpired, when the wife finally went home, she discovered the baby had died.
It is obvious that the defendant has been remorseful from the very beginning. When he came back to Hong Kong, he was interviewed under caution and he admitted his part in the baby’s death.
Also, I have read the mitigation letters from the defendant’s parents and the defendant’s former wife and also the defendant’s young son, teenage son. The letters spoke of a man who is a responsible son and father. Therefore, as Mr Polson said, his crime this time is completely out of character. It is also clear to me that whatever sentence I impose, this death of his daughter will stay with him and haunt him for the rest of his life.
Having said that, however, as Mr Polson recognised, this court has to send a message to all parents of young children that they cannot leave their young children alone at home. Each parent has to bear the responsibility of taking care and looking after their own children.
I am grateful to both counsel for their assistance in relation to the previous cases that involve the sentencing of defendants who have committed crimes against young children. And also, I am grateful to counsel for the prosecution who has also given me cases from overseas as to the level of sentencing in crimes of this nature.
However, there is no guideline sentencing for crimes of this nature because each case is so different. There was no previous cruelty committed on the child in this case. It was, as I said, a foolish act of the defendant which resulted in such serious consequences. But as a 40-year-old man, he should have known better.
So having taken into account the facts of this case and the serious consequence, including the fact that a message has to be sent out to all parents to deter them from acting in this way, I consider that an appropriate starting-point sentence would be one of 7 years’ imprisonment.
However, it is also a fact that the defendant through his counsel did indicate a willingness to plead guilty at the committal proceedings in July 2019. But at that time, as Mr Polson explained, because the defendant was on legal aid, they still had to have Legal Aid approve the funding to engage an expert witness and to get the report in order to have the basis for a formal offer to the prosecution to consider whether to accept a plea of manslaughter.
Eventually, the expert’s opinion was obtained and then submitted to the Department of Justice. The Department of Justice decided that in the circumstances, they were not going to accept the plea and that is why we had the trial of the defendant for murder. And as Ms Mohamed for the prosecution has explained, the Department of Justice was not wrong in taking their position. So it was not through anyone’s fault that the defendant’s plea initially of manslaughter was not accepted. And in cases of this nature, it is really a factual decision which the Department of Justice is correct to leave it to the jury to decide at the end of the day.
However, I will give the defendant the benefit in that he was prepared to accept his responsibility and plead to manslaughter. So I will give him the full one-third discount in the exceptional circumstances of this case. So that will reduce the initial starting-point sentence to one of 4 years and 10 months. All right. So the defendant will go to prison for 4 years and 10 months.
COURT: Yes, my apologies for getting counsel back but it is my fault because out of a slip of the tongue, the one-third discount brings the sentence down to 4 years and 8 months. So the defendant is sentenced to 4 years and 8 months.