Facts
This case, very sadly, relates to the death of Heiley, who was about two years old at the material time. The Summary of Facts which both defendants admitted contains the details of the case. To cut a long story short, around early May 2019, as it had been done before, Heiley was left in the care of the defendants. She was at that time healthy without injuries. Whilst Heiley was in the custody, charge or care of the defendants, she slept on a thin mattress on the floor. The two defendants had punished her by various means, including assaulting her with bare hands or with items like rattan stick. Heiley had also been left at home alone on four occasions with iron dog leash tied up on her waist.
On 19 June 2019, the family and Heiley went out for dinner and as revealed by the CCTV footage, the girl appears normal without apparent bruises on her face. At around 3 am on 20 June, D1 took Heiley to the hospital. On arrival at the A&E Department, Heiley was in cardiopulmonary arrest. Multiple bruises and abrasions were noted over various parts of her body. Heiley was also suffering from gross hyperkalaemia with serum potassium level at 12.2 mmol/l. Resuscitation did not yield results and Heiley did not survive.
Medical opinion is that the direct cause of death was head injuries. An autopsy performed on Heiley reveals that there were 34 recent injuries, including bruises and abrasions, of various sizes at Heiley’s head, neck, trunk, upper limbs and lower limbs. There were also 36 scars of various sizes at her head, neck, trunk and limbs. The presence of scars, together with more recent and partially-healed injuries on various parts of her body suggested repeated trauma at different times.
There were multiple deep bruises in the scalp and subarachnoid haemorrhage at the bilateral cerebral hemispheres. External bruises were extensive and appear to have been inflicted by significant forces on multiple sites of the head. There was also autopsy findings of severe traumatic brain injury, which can lead to diffuse axonal injury, with high fatality. There is medical opinion that the extensive bruises on her head and neck regions had been caused after the said dinner.
Heiley was underweight, with only 8 kg in weight. Her height was also below average. These were compatible with underweight and mild to moderate malnourishment. In this case, the malnutrition was most likely to be a result of starvation. Her brain weighed 835 grammes. This was likely related to reduction in body weight.
Her thymus weight decreased markedly to 5 grammes, substantially below average. It could be resulted from stressful conditions due to various causes such as malnutrition, infection, prolonged physical or emotional stress. Medical opinion is that the evolution of thymus weakens the girl’s immunity and correlates with the degree and duration of child abuse and neglect.
Medical history of Heiley shows that her development was normal and appropriate up to the time she was examined at 19 months old. Heiley was born in August 2017. Her development was therefore normal before she was left primarily with the care of the defendants around mid-2019. There was marked deterioration afterwards.
Statements made by the defendants
Both defendants made statements after arrest.
D1
Initially, D1 claimed she had been taking care of Heiley with full attention without abusing her. In a subsequent interview, D1 said the following:
1. When Heiley was naughty, kept crying or urinated on the floor, she could not control her anger and hit her.
2. She has slapped Heiley and had on occasions used rattan stick to hit her hand and leg.
3. She did leave Heiley alone at home, using a metal dog leash to tie her up.
4. On 19 June, when she took the children back to home after attending at hospital, when she was taking the baby trolley off the van, Heiley fell over the seat and she managed to catch the girl at her waist.
5. Heiley appeared sleepy and did not want to walk, and eventually she carried the girl up. At the flat entrance, she put Heiley down so that she could open the door. As soon as she has stepped in the flat, she heard her friend screaming. Then she saw Heiley fell on her back. She did not know whether Heiley was hurt. She gave Heiley a bath and saw three red marks on her waist. Heiley appeared normal.
6. She suspected Heiley had swallowed during the dinner an entire pork soft bone without much chewing.
7. When they were going home after dinner, Heiley appeared tired again and did not want to walk, then D2 picked her up and bring her home. Heiley was entirely strengthless.
8. At home, she bathed Heiley and nothing special happened.
9. At 11.45 pm, she found Heiley had runny nose, her body was cold, looked very pale and was without response.
10. Upon the advice of a friend who came to assist, they tapped on the back of the girl to see if any sputum was blocking her breath. They also tried CPR on the girl, then Heiley was taken to the hospital.
D2
D2 initially claimed he had not even touched Heiley. In a subsequent interview, he said he seldom took care of Heiley as he needed to go to work. He admitted he had slapped Heiley on several occasions, but with moderate force only. He did so as he was angry because Heiley was naughty. The last time he assaulted Heiley was on 19 June. He slapped her twice when he saw her kicking his own daughter and when he told her not to do so, she continued to play toys. As he knew Heiley did not stand very well, he therefore held on to his force.
When they returned home after the dinner, Heiley wanted to use the baby trolley, but they held her arm on each side to pick her up to walk. When they arrived at home, he heard some odd noise coming from Heiley’s mouth. He took her to the bathroom to rinse her mouth and put his hand into her mouth to see if he could get out what was stuck in her throat. Shortly, he was stopped by D1 who then gave the girl a bath. Heiley then went to the bedroom to sleep.
When he heard Heiley making some deep breathing sound, he checked and found her sleeping normally. At about 1 am when he got up to feed his own daughter, he found Heiley’s face very pale, without response. He tapped her several times and pressed on her chest and stomach, trying to release the thing which might have choked in her throat. Eventually, he took Heiley to hospital.
He found Heiley to have sputum and runny nose for two weeks and had given her medicine. It appeared to him that Heiley has walking difficulties as she had late development problem. He did see D1 assault Heiley and use metal chain to tie her up.
The defendants
I was told that D1 is 36 years of age. She completed Form 1 education. Having worked as a cashier for three months, she has been a housewife receiving CSSA. She is divorced and was living with D2 and their daughters. She was, in 2003, put on probation for the offence of possession of a dangerous drug.
D2 is now 33 years of age. He completed Form 4 education and has then worked as a cook, salesman and waiter. At the time of the offence, he was working as a construction site worker. He was, in 2012, put on probation, also for the offence of possession of a dangerous drug.
The two defendants have been living together with their children since 2011. When D1 was in custody, she gave birth to another daughter.
Mitigation submission
In mitigation, learned counsel for D1, Mr Trevor Beel, informed the court that D1 is herself a tragic person who was brought up by her paternal grandparents. She had been mistreated by her father who had later fled to the mainland because he was not able to repay the heavy debt he owed. Her relationship with her four siblings was not good, except a younger brother. Her ex-husband is 10 years older than her. She married him only for the sake of the children they borne. She had a bad relationship with her husband and his family. The couple separated in 2007 and divorced in 2015. Owing to the attitude of the family of her ex-husband, she had not seen her sons for three to four years.
She started to live with another man in 2007 and they had a daughter in 2010. She gave birth to a son in 2011, but he soon died. She became depressed, but she did not seek medical treatment. She then started a relationship with D2 who is three years younger than her. After she had given birth to their second daughter in 2015, within the following three to four years, she had three miscarriages. Her mental state at the same time deteriorated.
In 2018, she became pregnant again. She was advised to stay in bed but she had to look after the two daughters. To ease the situation, they moved in to live with D2’s parents. Her third daughter was born prematurely and the family moved back to their own home.
Her elder daughter did not do well at school and was diagnosed to be suffering from attention deficit hyperactivity disorder. Her second daughter was also diagnosed with ADHD when she started kindergarten. It was very stressful for D1 looking after her own three children. Her situation was difficult, D1 felt useless and became irritable and easily lost her temper.
In around 2011, the family moved to the current abode and got acquainted with Heiley’s mother. On several occasions she helped looked after the elder brothers of Heiley. She agreed to look after the two children because she had heard that otherwise the children would be left unattended. Later, feeling unable to take care of so many children, she stopped taking care of the boys, and as a result, a boy was put into a foster home. Later, around August 2019, she started to look after Heiley overnight. She provided for all of her necessities without any financial assistance from the mother of Heiley.
Heiley had a lot of behavioural problems. She used her nails to scratch her brothers and the daughters of D1. She also bit the third daughter of D1. She had not been toilet trained and was a fussy eater. She was unable to walk properly and often fell and bumped into things, injuring herself. D1 also felt very frustrated looking after her daughters as they did not behave. When she was pregnant again in 2019, her mood was low and she had a feeling of helplessness. She had requested before to be sterilised, but was informed she was too young for the procedure.
On this occasion, she asked for a referral to terminate the pregnancy. Eventually, she gave birth to her fourth daughter in December 2019 whilst on remand.
Her two eldest daughters are now in a foster home. Her first daughter, who is suffering from a kidney problem is in the care of a children’s home. Her fourth daughter is also in foster care.
Mr Beel asked the court to take into account that D1 was looking after Heiley when Heiley’s mother was not able to take care of the child. There is objective evidence that Heiley’s mother had not performed her role in an appropriate manner. Her sons have been taken into foster care.
Under misguided compassion, D1 agreed to look after Heiley in the belief that if she did not do so, Heiley would have to be taken into foster care, as her brothers. D1 failed to appreciate that, objectively, she was not capable emotionally or physically to properly and adequately perform the task. Mr Beel said that as D1 was handicapped by her upbringing and limited level of education, she did not realise she needed to seek help, even though her responsibilities were beyond her physical and mental capabilities.
Mr Beel also submitted that despite the video recording at the congee shop shows no apparent bruises on Heiley’s face, due to the quality of the image, it does not necessarily imply that the multiple bruises later found was a result of what occurred after the meal. He also pointed out that the autopsy report reveals that some bruises were one to two days old, and some were even five to 10 days old. Mr Beel also stressed that there is evidence showing that D1 did, on several occasions, take Heiley for medical attention when the girl was feeling unwell.
D1 did slap or hit Heiley, and on occasions used a rattan stick on her. She did so when Heiley misbehaved and she frankly admitted these acts. Mr Beel asked the court to consider these acts in the light of the stress D1 was suffering in the circumstances, as stated earlier.
D1 left Heiley at home, securing her with a leash because she had to look after so many children and otherwise could not go out.
The defence submitted a letter written by D1 in which she expressed remorse.
Mr Beel also invited the court to take into account the video recording of the congee shop which he submitted showed a normal family setting during the meal. D1 had fed Heiley in a patient and caring manner and there were interactions between Heiley and D1, showing Heiley had no fear towards the defendant.
D2
Learned counsel for D2, Mr Wong, stressed that D2 had pleaded guilty at the earliest opportunity, and also asked the court to take into account that Heiley had a lot of behavioural problems, including those described by Mr Beel.
Mr Wong also asked the court to take into account that Heiley was primarily under the care of D1 who provided for all of Heiley’s necessities without any financial input from the mother. Mr Wong informed the court that D2 was all along in full-time employment and was the sole breadwinner of the family.
Despite being tired after work, he took up the responsibilities of taking care of his own daughters. As Heiley sometimes kicked his daughters and caused them crying, he sometimes was unable to control himself and committed the acts he admitted. Mr Wong asked the court to take into account that the offence was committed when D2 was under tremendous stress.
Mr Wong said D2 is now in full remorse. A letter written by the defendant was produced, in which he reflected on the consequence of his conduct and expressed his remorse.
Mr Wong urged the court to accept that, without the confession of D2, the prosecution would have difficulty proving the allegation against him, but D2 had voluntarily made the admission and eventually pleaded guilty to the charge.
Mr Wong also asked the court to disregard the previous conviction record of D2 which is relatively minor and was of a different nature.
Mr Wong also urged the court to take into account that the children of the two defendants are all of tender age and have been entrusted to foster families.
Consideration
In the present case, there are many indications that the mother of Heiley had not been a caring and responsible parent. Not only that it was not desirable for her to leave Heiley to the care of D1, who was obviously not in a good situation herself, it seems that the mother did not make any financial provision for the care of Heiley and had seldom visited her.
Heiley lost her life when she was under the care or control of the two defendants. The direct cause of death of Heiley was head injuries.
The two defendants have not been charged with more serious offence, probably because it was the assessment of the prosecution that there is insufficient evidence to support a charge of an offence more serious than the present one. With only the information available before me, I am not in a position to say whether the assessment was a generous one. My duty is to consider the appropriate sentence in the light of the offence for which the defendants were convicted, which is in relation to ill-treatment or neglect of a child.
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. The purpose of enacting this offence is to protect the vulnerable. The need to deter must be recognised.
I have considered the cases submitted by parties. The result in each case is fact-sensitive. 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 she suffered. Heiley lost her life. I remind myself that it is not the allegation of the prosecution that either of the defendants has caused this tragic consequence.
Heiley was only around 1½ years old when the defendants took up the responsibility, and was less than two years old when she passed away. Her wellbeing and fate were entirely in the hands of the defendants. She had no ability at all to resist and no ability even to protest or seek help.
Heiley had been subjected to force repeatedly and had been seriously neglected. As a result, she suffered extensive injuries and was in very poor health condition. The defendants had hit Heiley on numerous occasions and sometimes with rattan stick. Old and recent injuries were found on many parts of her body. There were extensive external bruises at the head which indicated that the girl had been subject to significant force on this vulnerable part of her, and at different times.
The opinion from a paediatric neurologist is that the extensive bruises on the head of Heiley and neck regions had been caused after the last dinner, in other words, at that time when both defendants were at home with Heiley. Having considered the whole circumstances as revealed in evidence, and submission of Mr Beel, I accept the opinion. No matter what each of the defendants said under caution in relation to the events occurred on the night was, the injuries indicate that Heiley had been subjected to serious physical abuse at that period of time. Even assuming for a moment that such abuse had been performed by only one of the defendants, in the circumstances the other defendant must have connived with such harmful conduct, or in any case, had not taken any appropriate step to alleviate the ordeal suffered by the girl.
Apart from the physical abuse, Heiley was subjected to other forms of ill-treatment and neglect. Heiley was obviously deprived of proper nutrition. There is medical opinion that Heiley had been placed in a situation of starvation. The general health condition of the girl was poor. There was marked involution of Heiley’s thymus. I accept that the defendants might not be aware of this. Nevertheless, such involution was associated with the mistreatment the girl suffered and has serious impact on the girl’s immunity.
Heiley was in normal stage of development generally when she was 19 months old. There had been rapid deterioration in her health condition during the time she was under the care and control of the defendants. The poor health condition of the girl had gone either unnoticed by the defendants, or had been neglected by them.
Heiley was only provided with a thin mattress on the floor to sleep, irrespective of whether it was a warm or cold day.
At a very young age, Heiley had from time to time been left alone at home and treated in a manner of extreme indignity. Such treatment also put the girl in high potential risk as her movement was restrained.
All this demonstrates the extent and degree of harm caused to Heiley by repeated wrongful acts the defendants had performed on her and a degree of neglect on the part of the defendants.
I was told that the defendant had accepted the responsibility of taking care of Heiley in a situation almost amounting to the girl being deserted by her mother. Counsel had done their best in persuading the court to accept what sort of situation Heiley and the two defendants had been in. The video recording at the congee shop to a certain degree casts a favourable light on the defendants, in particular D1. Be that as it may, the fact remains that substantial degree of harm had been caused to Heiley because of the conduct of the defendants.
My judgment is that this is a serious case of ill-treatment and neglect. Heiley had been subjected to ill-treatment for about six months. Apart from physical and mental suffering because of the use of force on her, the health of Heiley deteriorated significantly, which was a result of malnutrition and stress caused on her. On her last night, significant injuries were inflicted on her. Whilst I fully appreciate the stress which people who have the custody and care of children might experience, but at the same time, for the protection of children, there is a very important social interest in demanding the exercise of control when child carers perform their functions.
The sentence needs to have the effect of conveying the message that violent conduct and severe level of neglect on a child of tender age can cause extreme degree of harm, and therefore, it must have deterrent effect.
As regard the degree of culpability between the two defendants, I accept that D1 was the primary person who had the responsibility of care of Heiley. Both defendants admitted to have used force on Heiley and the admission from D1 discloses use of more significant force on her part and on more occasions. That said, both defendants were living in the same household, each had sufficient opportunity to observe the child. What had been caused to Heiley would not be easily unnoticed. Both defendants must be aware of what generally had happened to Heiley, even if he or she did not, at a particular time, personally perform any illegal act on Heiley, and yet failed to take any reasonable steps to ensure the wellbeing of the girl was properly looked after and further harm could be avoided. As regards what happened to Heiley on the last night, I have already expressed my finding.
Starting Point
I accept that the previous conviction record of the two defendants has little bearing in a sentence in the present case. In all the circumstances, I am of the view that only a starting point of 8 years is sufficient and appropriate for a case of this nature and severity. As said, I do not see there are strong reasons to distinguish between the degree of culpability of the two defendants, and therefore I adopt the same starting point for both of them.
Discount
The defendants pleaded guilty before a magistrate. For this factor, each of them is entitled to a one-third discount. Having considered the whole of the circumstances, and having regard to what ably said by counsel on behalf of the defendants, I am of the view that this is the extent of discount the two defendants are entitled to.
I fully understand that the sentence imposed on the defendants will have negative impact on their children and I do not under-estimate the degree of impact. Nevertheless, having considered precedents, most of which are set out in a section entitled, “Family Circumstances” in the book, “Sentencing in Hong Kong” of Cross and Cheung, in the light of the seriousness of the present case, I do not consider the circumstances justify any further discount.
Defendants, please stand up.
For the said reasons, D1, I sentence you to an immediate imprisonment term of 5 years and 4 months. D2, I sentence you also to an immediate imprisonment term of 5 years and 4 months. Yes. You may take a seat.
I wish to make an observation. I was given to understand that children of Heiley’s original family had been put under foster care. It appears to me that the situation would have reasonably caused concern over the only other child of the family, Heiley. I therefore wonder if there was good reason that the girl was left out without intervention. In the circumstances, I urge the authority to look into the matter and give consideration as to whether there are appropriate steps to take to avoid further similar incidents to occur.