R. v. Lee Sau Ping

CACC000189/1995

No. 189 of 1995

(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon Power, Ag. C.J., Mayo, J.A. & P. Chan J.

Date of hearing: 6 September 1995

Date of judgment: 6 September 1995

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J U D G M E N T

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P. Chan, J. (delivering the judgment of the court) :

1. The applicant was charged with the murder of her 5 year old daughter. She pleaded guilty to manslaughter on the ground of diminished responsibility. This plea was accepted. She was convicted and sentenced to 10 years' imprisonment. She now applies to this court for leave to appeal against sentence.

2. The applicant is 28 years of age. She suffers from a mild grade mental retardation since childhood after a brain injury. As the learned judge said, she had an unhappy past history and the learned judge had quite properly taken that into consideration. The father of the victim had asked the applicant to have an abortion before she gave birth to the victim, and when she refused, he deserted her. The applicant later married another man but was ill-treated by him who also left her within a few months. She is presently cohabiting with another man and has a child by him.

3. The applicant had previously abused the victim and had, in fact, been convicted on one occasion of child abuse. The victim was under the care of the Po Leung Kuk. The applicant paid visits to her and took her out from time to time. On the 7th February 1994, the applicant brought the victim out from the Po Leung Kuk. On the next day, she told the social worker in-charge that the victim was taken by a friend to China. A report was therefore made to the police. It was nine days later that the victim was found dead inside a nylon bag near a pier. It was admitted that it was the applicant who put the victim inside the bag, dumped her into the sea and drowned her.

4. It is not in dispute that the applicant had planned this for a few days. After her arrest, she had given a number of versions to the police each contradicting one another. It is fair to say that none of these versions was convincing and was probably rejected by the trial judge and all the medical practitioners who attended her.

5. It is accepted that in sentencing the applicant in a case of this nature, the court is mainly concerned with two determining factors as counsel put it : first, the degree of her responsibility and second, the danger she might pose to the public or other people. These two issues were clearly in the mind of the learned judge.

6. Counsel criticised the learned judge for "departing" from the opinion of Dr Singer who gave evidence on behalf of the defence to the effect that the applicant's responsibility was only moderate. He said that the judge should not have assessed the applicant's degree of responsibility as substantial.

7. It is clear that Dr Singer gave an assessment from a medical point of view of the applicant's condition and he did qualify this in his evidence by saying that he was only expressing an opinion on this matter. The learned judge was dealing with the legal responsibility of the applicant in this offence and was, as my Lord the Acting Chief Justice said, perfectly entitled to come to his own view, taking into account Dr Singer's assessment, all the medical reports and the circumstances of this case. We do not see anything improper in the judge doing this. In fact, there was sufficient material to support the view he took.

8. Almost all the doctors were in consensus in saying that the applicant's decision to kill her daughter was irrational in that there was no apparent motive for doing what she did and that she committed the offence because she must be under the influence of her mild grade mental retardation, resulting in a personality deficiency leading to impulsiveness, irrationality and emotional instability. However, all the doctors were almost unanimous in saying that she was capable of planning such a killing, was capable of carrying out such a plan and was capable of making up various stories to cover up what she did. We think the learned judge was entitled to take account of all these matters in assessing the degree of responsibility of the applicant.

9. Counsel for the applicant also criticised the learned judge for wrongly placing too much emphasis on the element of danger. He submitted that there was danger to one person only and that was the second child of the applicant. With respect, we do not see any substance in this argument. Danger to the public certainly includes danger to the people she knows and danger to the people to whom she is related. As my Lord said, one cannot relate this element of danger to any definite period of imprisonment. It is a factor to be taken into account in imposing an overall sentence. In our view, this was properly taken into account by the learned judge.

10. Finally, counsel submitted that overall the sentence was on the high side and was too harsh on the applicant. The question therefore is whether the sentence is manifestly excessive, bearing in mind all the circumstances of the case. Counsel said that the learned judge did not adopt any starting point and had failed to give sufficient discount for the plea of guilty. It is true that the learned judge did not see fit to indicate any starting point or how much discount was to be given for the plea. This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide-range of sentence, from probation to life imprisonment. A sentencing judge may well feel having taken an overall view of the matter that all he can finally do is to decide on the appropriate sentence. In our view, the learned judge had properly done so in this case. He was entitled to take into account the careful planning of this killing, the ruthless conduct of this applicant on her 5 year old daughter, the manner in which she had executed this plan and her attempts to cover up her wrong doing when she was arrested. As the doctors said, she was only marginally mentally affected. She was well aware of what she had done.

11. In all the circumstances of the case, we do not think the sentence of 10 years' imprisonment is manifestly excessive and there is no reason why we should interfere. The application is therefore refused.

Representation:

Mr A.A. Bruce, D.P.C. (Ag.), for Crown/Respondent

Mr Robert Forrest (assigned by D.L.A.) for Applicant