This is a likely case of shaken baby syndrome. The defendant pleaded guilty on the basis that he had wilfully ill-treated the victim, X, by shaking and/or physical impact or otherwise. X is a boy who was about 13 months old at the time of the incident.
The facts of the case may be summarised as follows: The defendant is the husband of Ms Lee whom the mother of X engaged to take care of the boy. At the material time, the couple has a daughter two months older than X. Since about one month prior to the incident, X had for most of the time been living with this family.
On the day of the incident, 22 October 2016, Ms Lee took the children out to have fun. The defendant stayed at home. When Ms Lee and the children returned home, she showered her daughter whilst the defendant took care of X. At that time, X cried heavily. When the defendant then gave X a shower, the boy continued crying. Towards the end of the shower, X had difficulty in breathing. Asthma medication which had been prescribed to X was provided to him but no improvement was observed. As X did not drink and not respond to patting, the defendant took him to Kwong Wah Hospital by taxi.
On arrival at the hospital, X was in respiratory failure and in coma. He was found to suffer, inter alia, from bilateral retinal haemorrhage and cerebral oedema but there was no external injury. Feeling suspicious that it was a case of shaken baby, the hospital made a report to the police. The defendant was arrested.
He was interviewed under caution and admitted to have taken care of X at the material time. At that time, he made no statement admitting any mistreatment on X. He said during the shower X continued to cry and somehow started wheezing. He gave asthma medicine to X but there was no improvement.
In a subsequent interview, he accounted for the injuries by mentioning some minor incidents which had taken place. He now admits that he had wilfully ill-treated X by shaking him and/or physical impact or otherwise.
CCTV shows that when they were returning home, X was active and responsive to others. Medical opinion is that he was unlikely to have sustained severe trauma prior to that time. When he arrived at the hospital, he was minimally conscious. He was bed-bound, dependent of non-oral means of feeding and had limited interaction with the environment. Medical opinion is that these should have been caused by shaking X or by physical impact and not a result of accident which the defendant had suggested.
An emergency operation for external ventricular drainage and intracranial pressure monitoring was performed. Bilateral decompressive craniectomies were also performed as X experienced intracranial hypertension.
Prior to the incident, the development of X was appropriate to his age. After the incident, he suffered permanent damage to his nervous system and had a severe development delay with minimal conscious state. He had to have gastronomy feeding. The vision of both of his eyes was very poor. He suffered from spastic quadriplegia and epilepsy. X had his first seizure in October 2016. He later developed signs of cerebral palsy and intellectual disability secondary to traumatic brain injury. There were seizures from time to time every day. Protective helmet was prescribed to X.
X had been admitted to hospital on 11 occasions in 2019 due to respiratory infections, gastroenteritis or urinary tract infection associated with breakthrough seizure. When examined in 2020, medical opinion was that these episodes of infection were likely to recur in view of the underlying medical condition.
X was examined by an orthopaedist in February 2019. He was non-communicable and had bilateral hip dislocation which was a sequelae of cerebral palsy. Thoraco-lumbo-sacral orthoses and ankle foot orthoses were prescribed and fitted on X.
As regards his eyes’ vision, it was very poor when examined in 2018 and the medical opinion was that it was unlikely for his vision to be improved due to the pressure of macular scarring and optic atrophy. When examined in 2020, X was found to have wandering gaze with no vision fixation or following. Cornea and lens were clear. There were stable findings of bilateral pale optic discs, macular scarring and flat retina.
In December 2019, X was examined by an occupational therapist. He was found not able to follow verbal or physical command and not communicable. His bilateral upper limbs had no active control. He has been dependent in activities of daily living.
When assessed in June 2020, X showed global developmental delay, cortical visual impairment and quadriplegic cerebral palsy. In August 2021, X was five years and 11 months old. His weight was 26.9 kilogrammes and height was 115 cm which placed him at respectively 90 to 100 and 70 to 80 percentile rank. While his physical build was comparable to children at his age, his development in other areas was prominently arrested. He could not walk, stand, sit or move his limb on his own. He could not eat or drink through mouth, and gastronomy feeding of nutritious milk was needed to maintain his life. He could not speak of any meaningful word. His intellectual functioning falls into profound intellectual disabilities.
The mother of X is still suffering a range of post-traumatic stress symptoms, particular in the domain of intrusions and increased reactivity. She reported having nightmares and memory intrusions of the event. She is flooded by guilt of entrusting her son to other people. The harm suffered by X had exhausted her physically and psychologically. She has suicidal ideation when ruminating that X might not be able to survive.
I was told that the defendant is 27 years of age. He was born in Guangzhou and came to Hong Kong at the age of one. He completed secondary education and had worked at different times as an estate agent and an electrician at a construction site. He and Ms Lee now have two daughters and a son. The children are at the age of respectively five years, three years and one year. The family had been living in a rented partitioned room. The defendant contributed most of his income in support of his family. His father, now aged 67, is retired. His mother at the age of 57 is working as a cleaning worker.
In mitigation, learned counsel for the defence, Ms Memi Ng, stressed that the defendant is a person without any previous criminal record. He has pleaded guilty at the earliest opportunity and is now in genuine remorse. She asked the court to take into account that this is the first time the defendant has ever committed any offence. The defendant wishes to extend his apology to X and his family.
The defence submitted a letter written by the defendant in which he gave an account of what had happened and expressed remorse. He said he had all along treated X as if he was his natural son. At the material time, it was only in desperation that he shook the boy as he had kept crying to the point that he was short of breath and application of asthma spray on him did not work. He is self-condemned by his conscience as he realised that the boy had suffered much. He also regrets that his conduct had caused suffering to the family of X.
There are also letters written by Ms Lee as well as parents, elder sisters and employer of the defendant. The defendant was said to be a man of good nature, a filial son, a caring brother, a responsible father and husband and a hardworking staff.
Ms Ng provided the court with some circumstantial background information. She told the court that the family of the defendant was under heavy financial stress. To help ease the burden of the defendant, Ms Lee started to take care of X for a daily wage of $500.
Ms Ng also supplemented what the defendant said. She told the court that when the children returned home, the wife gave shower to her daughter. X, who was put in a baby stroller, cried heavily. The defendant thought he was hungry and decided to feed him after his turn for shower since he was worried that X would vomit during shower after taking food. When the daughter finished shower, the defendant, who had experienced taking care of his own child, gave X a shower. Ms Ng said that during the shower, X continued crying vigorously. Suddenly, X started wheezing, his eyes rolled back and he appeared to be short of breath. Then he became unconscious.
Ms Ng said the defendant was in panic. He started to shake X a few times, hoping to resuscitate him but to no avail. He was given the asthma medicine but X’s condition did not improve. In about 10 minutes’ time, the defendant took X to the hospital by taxi.
Ms Ng urged the court to take into account that the ill-treatment was a one-off incident. At the material time, the defendant was in a state of panic. Medicine had been provided to X and when X showed no sign of improvement, the defendant rushed him to the hospital, indicating no delay in taking the boy to have proper medical attention. Ms Ng also urged the court to give the defendant further discount as there had been delay in the present case.
Following an upward adjustment by the legislature in 1995, the maximum sentence for this offence is 10 years’ imprisonment. There is no tariff for the obvious reason that each case has to be considered on its own facts and circumstances.
I have considered the cases submitted by parties. The result in each case is fact-sensitive. Amongst these cases, the case of HKSAR v Chung Kei Yuen, HCCC 51/2018, was a case of baby shaking. The accused in that case had on three different occasions slapped a girl then less than one month old. On two of these occasions, he had also shaken the girl. The judge adopted 8 years as a starting point for each of the offences and at the end ordered the sentences for these three offences to run concurrently.
The purpose of enacting this offence is to protect the vulnerable. The need to deter must be recognised. The stress which people who have the custody and care of children will experience is well-appreciated but at the same time, for the protection of children, there is very important social interest in demanding the exercise of control when child carers perform their function.
In deciding the degree of culpability, the whole surrounding circumstances should be taken into account. Major indicators of culpability include the way the child was mistreated and the resulting harm he suffered. The relationship between the two parties is also relevant. Despite it was the wife of the defendant who was employed to take care of X at the material time, the defendant has assumed the role of the caretaker and was in charge of the boy. X was only slightly over the age of one year. His well-being and fate were entirely in the hands of the defendant. X had no ability at all to resist and no ability even to protest or seek help.
In the circumstances of the present case, I accept that this was a one-off incident of ill-treatment. I also consider the case on the basis that there had been no premeditation on the part of the defendant and no ulterior ill motive in doing what the defendant had done.
It was submitted that the defendant did the act when he failed to control his emotion as X had been crying for some time. There is no strong reason for me to reject this assertion. The violent conduct on the boy took place within a short duration of time. It was not prolonged. No external injuries have been found on the boy.
That said, medical opinion suggests that the injury was likely be caused by violent shaking of the boy. No matter whether the injuries caused was a result of shaking or other form of physical impact, in my judgment, the force applied on the boy was substantial. It led to a very serious consequence. X has suffered very serious permanent harm. It is not exaggeration to say that his life has been ruined.
The conduct of the defendant caused tragic consequence to X. The sentence should have the effect of conveying the message that violent conduct on a child of tender age can cause extreme degree of harm and therefore it must have deterrent effect.
In all the circumstances, I am of the view that only a starting point of 6½ years is sufficient to reflect the nature and seriousness of the case.
The defendant has a clear record and he pleaded guilty before a magistrate. For these factors, he is entitled to a one-third discount.
The present case took place on 22 October 2016. The defendant was arrested two days later. Under caution, he admitted being the person responsible for showering X and taking him to the hospital. The defendant had been released on bail on 25 October 2016 with reporting condition. In July 2017, the bail money was returned to the defendant and he was not required to report anymore.
The defendant was approached by the police in October 2017 but for updating of personal particulars only and there was no arrest. In October 2018, the defendant was not arrested but had attended a video-recorded interview in which he gave a similar version as he did at the time of the previous arrest.
The defendant was arrested again on 5 June 2020, more than three and a half years later, and was eventually charged on 6 June 2020. Ms Ng submitted that the delay was undue and had caused inexplicable anxiety and uncertain suspense over the defendant and his family. Since the unconditional release in July 2017, the defendant and his family had harboured an expectation that the matter had ended and the defendant could plan his family’s affairs on such expectation. Indeed, a younger daughter was born in October 2017 and a son in April 2020. The sudden incarceration of the sole breadwinner of the family has caused undue hardship to the family.
In consideration, I have had regard to relevant cases including HKSAR v Chiu Chi Wing, CACC 243/2012. Ms Ng submitted that the delay was not attributable to any fault on the part of the defendant. Whilst I accept that the defendant did not take any positive step to delay the proceedings, he had never disclosed at any stage of the investigation that he had shaken the boy. As said, it was accepted by both parties that up to the time of the last interview which the defendant attended, there was no indication that the defendant had been made aware of the medical opinion of a possible case of baby shaken syndrome. The interview mainly took the form of questions-and-answers session.
Information provided by the prosecution reveals that the cause of the injuries could not be ascertained from the medical reports initially available despite the doctor who first attended to X was suspicious of a case of shaken baby syndrome. Even in early April 2017, medical opinion could not discount the possibility that X had been injured during a sliding incident which the defendant had told the police in which X had bumped his head. It was by the end of April 2017 that the police obtained the pathologist’s report in which the pathologist stated that the injuries could have been caused by shaking or impact or both.
More firm medical opinion was available in October 2018 and the opinion given after viewing of the CCTV footage was that X was unlikely to have sustained severe trauma before he arrived home. In this regard, Ms Ng informed the court that the CCTV had been obtained by the police in November 2016.
When the defendant was interviewed, at no stage did he mention having shaken the boy. Efforts had to be made to ascertain how the injuries on X had been caused.
Having considered the chronology of events provided by the prosecution, I also accept that it was appropriate and prudent for the prosecution to take time to ascertain the extent of harm X suffered as a result of the incident. I do not find there had been dilatory or neglectful conduct on the part of the investigation authority or the prosecution in the process of this case. Actions which the prosecution had to take were understandably time-consuming, though it appears to me that the progress was a bit slow starting from 2019.
The defendant was released in July 2017. It is the assertion of the defendant that at that time he had not been reminded of the possibility that further actions might be taken against him. Whilst I was told that it is the usual practice for the police to give such advice as there is no record that such step had been taken, I consider the case on the basis of what the defence told me.
At the same time, the defence accepts that the defendant had not been told that no further action would be taken against him. I find that it would have been reasonable for the defendant to form a view of his fate in the light of the development of the matter and such view would have, to a certain degree, affected his planning in life.
As said, in the circumstances of the case, I do not find the defendant can be said to have a reasonable expectation that what he had done to X and the harm he caused would result in no legal consequence to him. I accept that the defendant must have been left in uncertain suspense and labouring a degree of stress which has been prolonged and not a result of any significant fault of the defendant himself.
On the other hand, most of the time spent represented reasonable effort on the part of the prosecution in deciding the appropriate actions to take.
In the whole of the circumstances, I am persuaded to give the defendant a further slight discount of 2 months. In all the circumstances, having regard to the mitigation submission on behalf of the defendant, in my view, this is the extent of discount the defendant is entitled to.
So, defendant, please stand up. For the reasons I have said, I sentence you to an immediate imprisonment term of 4 years and 2 months.