HKSAR v. F.S.L and Another

DCCC 335/2022

[2023] HKDC 1653

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 335 OF 2022

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Reasons for Sentence

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1.Upon plea bargaining, D1 pleaded guilty to Charge 2 which is an alternative to Charge 1. He was convicted accordingly. Charges 3 and 4 were left on court file.

2.D2 faced only one count and her trial was concluded with her conviction. The Court called for X’s updated medical report and the victim assessment report, together with the psychologist report of D2. D1 and D2 will be sentenced today, 1 November. 

The Brief Facts of the Case against D1 (Charge 2 only)

The Prosecution Case

3.The victim girl X was born on 22 August 2014. 

4.D1 and D2, X’s mother, became lovers in December 2019.  X first met D1 in 2019. Since January 2020, D1 moved to live together with D2 and X in a flat in North Point. X was taken care of by D1 and D2. 

5.On a day unknown in May 2020 at evening time, D2 was showering X in the bathroom of the said flat. When the phone rang, D2 turned off the tap and placed the showerhead on the showerhead holder and left the bathroom to answer the phone call. 

6.D1 suddenly entered the bathroom. D1 turned on the hot water tap with his left hand and held the showerhead with his right hand. D1 showered X’s body with hot water. As the water was too hot, it burned X’s skin to the extent that the skin, mainly on the right half of X’s body, later got peeled off. X felt very painful and was scared. She cried and wanted to turn off the tap.  However, D1 prevented X from touching the tap. X was very scared and yelled at D1 to turn off the tap, but D1 did not do so. X screamed that she was painful. 

7.D2 entered into the bathroom upon hearing X’s yelling.  D1 immediately adjusted the tap to cold water. X showered her injuries with cold water by herself. Consequently, X’s torso, thighs and arms got extensive scalding injuries. 

8.Later, D1 went out to buy some ointment for burns to treat X’s injuries. D1 and D2 applied only the ointment to treat X’s injuries for about one week. 

9.On 6 July 2020, a report to the police was made. 

10.On 6 July 2020, X was admitted to the QE hospital. It was found that X had an old scald injury with poor healing with extensive involvement of right face and neck, right shoulder and arm, right upper back, right chest and abdomen (the area measuring about 15cm x 15cm)  and left foot dorsum (the area measuring 2cm x 2cm). Wound swab revealed infection.  X’s wound got improved after medical treatment.  X was discharged on 16 July 2020 (see photo album, MFI-1). 

11.Further medical report provided the following observations/findings: 

(1)  The caretakers of X should have sought immediate medical treatment after the incident. The delay in proper scald wound management might result in wound infection and poor wound healing. From the observation during X’s admission to hospital on 6 July 2020, the scald wound was not healed and there were multiple blisters and serous discharge. There was also superimposed infection to the wound. It showed that the wound care was inadequate. The wound only improved after proper medical care. A course of oral antibiotic was given to treat the wound infection.

(2)  X’s wound was extensive involving a large area over right upper chest, back and shoulder area.

(3)  X did not receive proper and adequate treatment for the scald injury which resulted in persistent discharge and poor wound healing around 2 months after the incident. The wound should have been handled by medical professionals. As such, the welfare of X was compromised when she did not receive timely wound management.

12.D1 moved out from the flat on 2 July 2020.  D1 and D2 were arrested on 10 November and 16 November 2020 respectively.

13.The police examined one of D1’s mobile phone and discovered a photo of the ointment and 3 photos of X’s injuries (out of which 2 photos are the same). The photos were taken between 26 and 31 May 2020 (marked as MFI-2). 

The Case against D2 (Charge 3 only)

14.The facts of the case in detail against D2 can be found in the Reasons for Verdict which was delivered on 17 October 2023. 

15.The period of offence was from May 2020 to 6 July 2020, over one month whereas D1 was charged for the day the scalding incident was perpetrated, namely, on a date in May 2020. 

16.The Court called for X’s updated medical report and assessment report plus D2’s psychological report. 

D1’s Mitigation

17.D1 was born in Hong Kong in 1974 and is now aged 49.  D1 is divorced and has a son who is 16 years old.  D1’s education level is up to Form 5.  He served as a police officer for some 23 years till May 2021. In 2020, D1 has a mini-stroke and has to take medications for his heart problems. 

18.In October 2022, D1 was sentenced to 48 months in CFI for various offences relating to conduct of indecency towards a child under 16 (HCCC 251/2021). D1 also pleaded guilty to 24 counts of fraud and one count of theft in the District Court and was sentenced to 24 months, with 4 months to run concurrently with the sentence in HCCC 251/2021. 

19.Relating to the present offence, the Defence submitted that at the material time, X was left unattended in the bathroom. Upon entering the bathroom, D1 observed that X was already undressed, and he decided to help her to a shower. It was said D1 proceeded to turn on the hot water tap and sprayed X’s body without checking the water temperature. Unfortunately, he was unprepared for the high water temperature and it burned X’s skin. 

20.The Defence further added that “within seconds, D1 adjusted the tap to cold water and asked D2 to attend to X whilst he left the premises to purchase ointments.” (paragraph 30 of the mitigation). It was also said D1 took the photo of X’s injury (MFI-2(2))  because he wanted to show it to the landlord to show that the boiler was defective.  He did send it to the landlord via WhatsApp as per photo at MFI-2(4). The Defence said it was D1’s reckless that caused X’s injury.  D1 sought immediate rectification by adjusting the water temperature.  Hence, the Defence submitted that “without evidence of the actual water temperature at the material time, the possibility that the injuries was a result of D1’s recklessness cannot be ruled out.” (paragraph 33 of the mitigation). 

21.D1 accepted that he has caused trauma and injuries to X.  The duration of the incident was short.  D1 went to buy medical stuff to treat X immediately which “reflects that his malicious intent was fleeting.”

22.The Defence also urged the court to consider the totality principle as D1 is currently serving a long jail term. 

D2’s Mitigation

23.It was submitted that D2 came from a humble background and left school after completing Form 5.  She obtained a diploma in beauty care and has been working in the field.  D2 was a person of clear record.  She is 33 years of age and divorced. 

24.D2 was able to receive a letter of support from her ex-husband who now shoulders the responsibility of taking care of X.  X also provided a drawing and stated that she does not blame her mother. 

25.The Defence submitted that D2 found herself in a position where she was not able to act logically and give proper care to her daughter.  D2 was isolated by D1 from her friends and family.  The Defence further states that, “imprisonment would possibly cause her to declare herself bankrupt and this may allow her to start afresh.” (paragraph 12 of the mitigation). The Defence submitted that D2 has already suffered from the absence of being with her child, and she has a close bond with X. 

26.The Defence submitted the mitigation letters prepared by D2, D2’s ex-husband, D2’s parents, D2’s brother and sister-in-law, D2’s friends (a total of 8 letters)  and also a drawing from X. 

27.Today, Defence counsel said D2 has about 10 relatives attending court to show their support. 

Sentence

D1 – F.S.L

28.Cruelty may well be one of the evil human nature, but it is shocking to see a man could treat a 5-year-old daughter of his cohabitee and lover in such a torturous evil act.  

29.In my view, what D1 did to X should be classified as a wounding with intent case (commonly refer to as wounding 17)  of which the maximum sentence is life imprisonment. Upon plea bargaining, now D1 pleaded guilty to the alternative charge of ill-treatment or neglect of child under section 27(1)  of the Offences against the Person Ordinance which carries a maximum sentence of 10 years.  Two counts of ill-treatment or neglect were left on court file. 

30.Extensive injuries can be seen from the photos taken by the person (Counsel for D1 said the photos were taken by D2).  It can be inferred that the offence was committed on 26 May 2020 when the photo of the ointment was taken.  It is not difficult to imagine the pain and the agony that X suffered at the material time. 

31.Defence counsel said D1 was reckless in scalding X. That is a contradiction to the particulars of the offence of Charge 2 as the Prosecution stated clearly that D1 wilfully assaulted, ill-treated and neglected X. D1 had been living in the flat in North Point since January 2020.  That means D1 had been using the shower tap for taking shower in the flat for more than 5 months.  The shower tap as shown in the photo is not difficult to use.  He should know how the shower tap works, which side for hot water and which side for cold water. 

32.D1 had never showered X before.  That brings to the question as to why this time he took the initiative to shower X when he knew full well that X was being showered by D2 and was naked at that time.  No one asked D1 to do so. 

33.Worst still, when X was burnt by the hot water, D1 did not allow X to turn off the tap.  How can that be considered as a reckless act?  It is clear that D1 deliberately wanted to see X to suffer longer. 

34.Defence counsel submitted that there was no evidence of the actual water temperature, hence the possibility that the incident was caused by D1’s reckless act cannot be ruled.  That utterly defies common sense.  Anyone who see the photos taken by D2 shortly after the incident and the photos of X taken in early July would have no difficulty to see the effect of the hot water temperature. 

35.When asked, the Prosecution said there was no evidence to show that there was a feud or quarrel between D1 and D2 at that time.  D1 was not affected by alcohol and drugs.  X was not being naughty when taking a shower. But suddenly D1 took the chance, when D2 was leaving the bathroom temporarily, to shower X with hot water, presumably just for fun and for satisfying his sadistic nature. 

36.There is no excuse for D1 to commit the act.  I do not accept that D1 was reckless as submitted by the Defence counsel. 

37.D1 had a bad criminal record, but legally speaking D1 had a clear record at the time he committed the present offence in May 2020.  He was not on police bail in May 2020. 

38.D1 is now aged 49 and served as a police officer from June 1998 to May 2020.  D1 had been absent from duty since September 2019 and was dismissed from the Police Force and removed from interdiction effective on 15 May 2020. In passing, I am puzzled to see why an officer who was absent from duty since September 2019 could only be removed from interdiction in May 2020.  That also means, I suppose, D1 was still on payroll and received certain percentage of his salary for at least 8 months, even though he might not be in full pay. 

39.D1 was arrested for the present offence on 10 November 2020.  He separated with his ex-wife in 2018 and they have a son aged 16. 

40.D1 had a total of 29 convictions, and is now serving a jail term of 68 months (48 months plus 20 months)  relating to his 2 cases: HCCC 251/2021 and DCCC 496/2021. These 2 cases show abundantly how wicked D1 can be.  That is especially true in those indecency conduct cases. The fact that D1 had been a police officer for over 20 years adds gravity to those crimes he committed. 

41.I cannot see D1’s remorsefulness. It is obvious that he wants to “capitalise” the benefits of having his sentences in his previous HC case and DC case to be taken into account with the present sentence.  He wants to maximize the totality principle to his advantage. 

42.In my view, it is wrong to convey a message to society that the more crimes one committed, the more discount in sentence that he can get. 

43.In HKSAR v Wong Wing Man Mandy HCCC 76/2017, the court remarked that “a crucial factor that must be taken into account when sentencing for this offence is the need to protect the young and the vulnerable, as well as the need to deter abuse or neglect of them.  Other crucial factors to be taken into account are the age and circumstances of the child; the relationship between the offender and the child as well as the responsibility the offender had for the child; the nature, degree and duration of the ill-treatment or neglect of the child, the suffering and injury to the child and the long term prospects it will have on the child both physically and psychologically.” 

44.D1 had been working as a police officer for over 20 years.  He should be the one occupying a key role in law enforcement. And yet he had misguided, unduly influenced and exploited D2 physically, sentimentally and financially.  That is also an aggravating factor.

45.The updated medical report of X dated 20 October 2023 states that, “in conclusion, X recovered well from the scald injury without any functional loss.  However, cosmetic effect is significant and the scars will not be resolved completely by itself.”. The doctor also noted that X’s father reported that X developed secondary nocturnal enuresis (bed wetting)  after the scald injury. 

46.The victim assessment report remarked that “results of the present examination revealed X’s post-traumatic stress responses that reached clinical significance.  X’s avoidance, ambivalence and mistrust in her relationships with care takers appeared to hinder X in expressing the impact of the incident.”. It is recommended that case worker to work with X’s family members on the child-care arrangement, to ensure X can securely attach with her major carer, and psychotherapy is considered helpful. 

47.What D1 did, even though it was an one-off incident, is not just a tragedy to X, it is also a tragedy to D2 who is the natural mother of X. 

48.The Prosecution said that the charges against D1 had been amended and they accepted that D1 has in fact indicated his guilty plea at the earliest opportunity.  As such, Defence counsel said D1 should get the normal one-third discount in sentence. 

49.Taking all factors into consideration, I would adopt a starting point of 3½ years’ (42 months)  imprisonment.  With one-third discount, the sentence is reduced to 28 months. As I mentioned earlier, it is unjust to give more discount in sentence to those criminals who repeatedly commit other crimes.  The nature of the present offence is different, and it was committed at different time and with another victim. As such, I order that this imprisonment term of 28 months is to be served consecutively to D1’s current sentence. 

D2’s Sentence

50.In her mitigation letter, D2 said her family background was not good and she started to work when she was 18.  She became acquainted with D1 in October 2019 after divorce.  D1 treated her well and saw X as his own daughter.  They moved to the flat in North Point in January 2020 and D2 said it was the time when her nightmare began. D1 deleted her Facebook and Instagram accounts, changed her phone number and eventually cut off all her contact with the world outside.  D1 told her everyday that D2 was being tracked and monitored and was spelled by someone.  D1 exploited her financially.  She felt she was like being falsely imprisoned at home.  D1 became her belief and she trusted everything he said. 

51.It was only when D1 was arrested on 2 July 2020 that she realised she was cheated. She was very upset to see X had to stay in the hospital for more than 10 days.  She blamed herself for causing X’s injury whenever she saw X’s wounds.  She feels very guilty for leaving a wound on X because of her stupidity.  She is truly remorseful, and has not seen X for almost 2½ years.  She misses X. 

52.D2’s ex-husband said he was shocked and in deep grievance when he learned of X’s tragedy and painful experience.  D2 has deep remorse and will put extra effort to take care of X.  D2 had used the wrong way to handle the matter.  He hopes the court can pass a lenient sentence.

53.D2’s parents in the mitigation letter said they are heartbroken to see the injuries of their granddaughter.  Their daughter (D2)  got scammed with all the money and incurred more debts too.  Since the incident, D2 hardly smiled.  She misses X dearly. X also misses her mother.  They believed D2 was remorseful. X is most innocent and D2 is also a victim too. 

54.X’s drawing depicts a crying face of a child with tears.  The Chinese words read she does not blame her mother and hopes her mother can be forgiven. 

55.The updated medical report states that X developed secondary nocturnal enuresis.  All the wounds were healed with scarring issues. The surface was irregular and some mildly raised hypertrophic tissue. X’s right upper limb function was normal. Range of movement was unaffected.  It was concluded that X recovered well from the scald injury without any functional loss. 

56.However, cosmetic effect is significant and the scars will not resolve completely by itself. 

57.The assessment report states that X expressed resistance to seek help from adults, fearing that she would be overwhelmed by them if she disclosed anything.  X vaguely mentioned that she has fear and a tense relationship with her stepmother, expressing concerns about being hit with clothes hanger or belt. X also articulated her desire to live with her mother once she was released from prison, although she knows that her father would not support her choice. X is suffering from bed wetting after the incident. 

58.The report remarks that results suggested that X’s post-traumatic stress responses reached a clinically significant level. X avoided to discuss the impact of the incident and the experience of intrusive memories related to the incident. It was impressed that X’s father is insensitive to X’s emotional needs, and the current family dynamics did not seem to allow X to establish stable and healthy attachment relationships with her caregivers. X’s ambivalence and mistrust in her relationships with adults persisted which could impede her recovery from the child maltreatment incident. 

59.It is recommended that case worker to work with X’s family members on the child-care arrangement, to ensure X can securely attach to her major carer. Psychotherapy is considered helpful to X. 

60.In D2’s psychological report (dated 27 October 2023), the clinical psychologist stated that D2 was in an abusive and manipulative relationship with D1.  D2 over-trusted and relied on her partner that she was not able to make a sound judgment without the influence of D1 when the injury of X happened. D2 had a clear record and her risk of re-offending was deemed low.  It is suggested that psychological service on enhancing assertiveness in relationship and improving self-esteem would be beneficial to D2. 

61.Again, I cannot see any deep remorse from D2 when all along she blamed D1 being the fraudster both sentimentally, emotionally and financially.  D2’s mitigation letter of one and a half page long did not even mention the pain and suffering of her adorable daughter X for over one month after the tragic incident. 

62.The psychological report of D2 stated that when interviewed, D2 showed no difficulties in understanding the questions posed to her, and no signs of mood or psychotic disorders were observed.  D2 was not known to any psychiatric service before.  She admitted one self-harm attempt by slashing about one month after the incident as D2 felt depressed and hopeless. The test results suggested that D2’s intellectual ability fell into the average range.  She had no difficulty to differentiating right from wrong. It was remarked that D2 was impressed to be under psychological abuse by D1 during their relationship. Being in an abusive relationship made D2 feel depressed and anxious, have low esteem, and lose a sense of control. She accepted many unreasonable arrangements by D1 without suspicion.  The cut off from family and friends worsened the situation as D2 could not get enough social support from truly reliable persons. It was concluded that D2 was in an abusive and manipulative relationship with D1.  She over-trusted and relied on her partner that she was not able to make a sound judgment without the influence of D1 when the injury of her daughter happened. D2’s risk of re-offending was deemed low. 

63.There is no sentencing guideline relating to this offence. 

64.What D1 did to X in late May 2020 was a double tragedy to X.  X got scald and left without proper medical wound treatment for over one month. And X’s natural mother was charged with ill-treatment and neglect and got convicted.

65.X misses her mother and even submitted a drawing as attached to the mitigation bundle to show her affection towards her mother.  It depicts a crying face with lots of tears.  It shows X’s affection towards her mother despite what she got from her mother during the material period.  X wrote she does not blame her mother, and asks the Judge to forgive her mother.

66.It is heartbreaking to see a young girl could pardon her mother in this perspective, and it is also touching to see the kind-heartedness of X. 

67.But from what was reported in the psychological report and D2’s mitigation letter, she still maintains a deep sense of denial.  She claims that it was because of her upbringing and her disposition that caused her to rely on and be cheated by D1.  She seems to suggest that her role during the material period was secondary.  D1 was the one to blame, not her. In my view, it is obvious that D2 just cannot face the reality and the nefarious nature of the offence.

68.If one looks at the photo taken shortly after the incident, X’s injury is horrible.  Her skin was scalded to the extent that part of her skin was like a large piece of a skin-coloured plastic sheet attached to part of her body.  X got no proper medical treatment for over one month.  X developed a mild fever a few days after the incident. The various medical reports, including the updated one, speak volumes about X’s scald and wound. X did not provoke D1 to hurt her. 

69.X had to be hospitalised for 10 days in early July, and was taken care of by wound nurses. 

70.How could a reasonable person treat a child like that?  How could a reasonable mother treat her only child like that?  One wonders.  X is an adorable and good-looking girl, and I believe when she grows up and reaches adulthood, she may have to undergo certain cosmetic surgery. 

71.Taking all factors into account, I consider that it is necessary to give a sentence of deterrent effect to show the gravity of the offence.  I would adopt a starting point of 1½ years (18 months). D2 was convicted after trial and should not have any discount in sentence.  That said, I am sympathetic to X and am convinced that D2 would not re-offend. Given a powerful support from D2’s family and relatives, particularly, her own daughter X, I am sure D2 will ask for psychological service to enhance her assertiveness in relationship, as suggested.  Hence, I will reduce the sentence by 3 months, and send D2 to prison for 15 months.  

Postscript

72.Although any defendant in a criminal trial has a choice to choose one of the official languages to be used at trial (see section 5 of the Official Languages Ordinance, Cap 5), it is prudent for the Prosecution to insist and make the application that for this kind of offence, it is better to use Chinese as the medium. It is particularly the case if the victim is a local child, in the present case, a girl aged 5, and the defendants and those potential Prosecution witness and defence witnesses are all local Chinese who, I suppose, are not proficient in English. To this end, the court respected the performance of Mr Boyton and his junior, Defence counsel for D2 in this case. 

73.The problem is when this case was first brought to District Court for plea on 12 May 2020, no mention was made by any party that this case should be heard in Chinese. On that occasion, D2 was represented by Ms Koo of Counsel.  On 7 July 2022 and 18 August 2022 respectively, D2 was represented by Mr Leung of Counsel.  Again, no mention was made about the use of language.  It was only on the 4^th appearance on 29 September 2022 that the case was listed to be heard in English. Whilst I do respect the performance of Mr Boyton and his junior, Defence counsel for D2 in the trial, I have to view the trial proceedings in a broader perspective as the child victim, aged about 6 by then, gave her videoed interview in Chinese and would be cross-examined by Mr Boyton in English. That is not a desirable state of affair as fairness should be done to all parties concerned, and that covers the possibility of any difficulties in interpreting the actual meaning and words used by one party.