HKSAR v. Ng Lok Wan, Lorraly

CACC000229/2001

CACC 229/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 229 OF 2001

(ON APPEAL FROM HCCC 306 of 2000)

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Coram: Hon Stuart-Moore V-P, Stock JA and Lugar-Mawson J in Court

Date of Hearing: 7 November 2001

Date of Judgment: 7 November 2001

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This is an application for leave to appeal against a sentence imposed after a plea of guilty to an offence of manslaughter. The deceased was a baby aged two months and the applicant was the mother of the child. The applicant was, at the date of the child's death, aged 191/2 years. She was unmarried and was a heroin addict.

The facts

2.The baby girl was born on 11 December 1999. The mother had been consuming heroin during her pregnancy and shortly after the birth the baby developed withdrawal symptoms and for that reason remained an inpatient in the hospital until 31 December 1999. When the child was released she was in good health. The medical social services were informed about the case, but the applicant said that she could cope with the baby and would live with her boyfriend, so apparently there was no follow up by the Social Services nor did the applicant ever contact the Social Welfare Department.

3.The applicant did not take the child home but instead to an elderly caretaker, a Mr Wu, whom the applicant had met some years before and who was her sworn father. On 5 January 2000, that is almost a week after the child was released from hospital, the applicant arrived at Mr Wu's home with the baby, and asked him to take care of the child for a while. She pretended that the child was not hers, and that she had been helping look after the child for somebody else. She then left and did not return until about 14 or 15 January. During the time that the child had been in his care, Mr Wu had no way of contacting the mother, but he looked after the child as best as he could, although without any prior experience of infant care. According to the applicant, she was unemployed, could not provide for the child and had no accommodation. That, she said, was why she had left the child in Mr Wu's care.

4.The applicant next visited the child in early February over the New Year, and then did not return again until 15 February 2000. The baby had remained in good health, except for a severe nappy rash.

5.On 15 February the baby appeared to be unwell, and Mr Wu told the applicant to take the baby to see a doctor. The applicant agreed saying, however, that she needed money to do so and asked for $1,700 which he gave her, she pretending that she was to go off to the hospital; but she did not go there nor did she take the child for medical attention elsewhere. Instead she spent the money on heroin.

6.On 16 February 2000, shortly before 9:30 p.m., the applicant arrived at the Accident and Emergency Unit of Queen Mary Hospital with the baby. A Dr Chan examined the child, who was not breathing and had no blood pressure. He attempted resuscitation but failed, and the child was certified dead at 10:15 p.m.

7.An autopsy was performed. The cause of death was morphine poisoning. There was nothing else wrong with the child that caused her death although the child was grossly dehydrated for lack of sufficient fluids in the preceding 24 hours. Whilst this could eventually have led to death, it was not in fact the cause of death.

The applicant's account

8.The applicant was arrested on 18 February 2000. She admitted to the police that she had taken the baby away from Mr Wu on the pretext of taking the child for medical treatment, but had instead used the money provided for that purpose to buy heroin.

9.The account she gave was that she had slept rough with the baby in a park that night, the night she took the child, which was a winter's night, and spent the next day wandering with the baby around Hong Kong. In the period of about 27 hours, she had consumed heroin on six occasions by "chasing the dragon", that is, by using tin foil to inhale the heroin smoke, each session lasting for about two and a half hours, and conducted in a cubicle of a public toilet with the child lying on her knees. It is not difficult to understand then how this child died, for the applicant's account shows that, for about 15 hours in all, the child was thus exposed to heroin smoke. The child was killed by inhalation of the smoke, passive smoking as it is sometimes called. Morphine is a prime component of heroin, and the cause of death, as we have seen, was morphine poisoning. The applicant told the police that whilst she was inhaling heroin she sometimes turned the baby's head to the side away from the smoke, and sometimes covered the baby's nose with a wet tissue, but that the child could still breath through its mouth. Medical opinion is that the mother's story was consistent with the lethal level of morphine in the deceased's blood.

10.The applicant conceded that the girl was not warmly dressed for sleeping out, and that the only nourishment provided during the period in her care was some Vitasoy milk and water. This, no doubt, is why the child was grossly dehydrated at the time she died. That dehydration, according to the medical evidence, rendered the child more vulnerable, and the reaction to the effects of morphine more rapid; although the child would, from the quantity of heroin inhaled, have died in any event.

11.On the evening of 16 February the applicant went to a MacDonald's Restaurant, gave the baby some milk at about 7 p.m., laid the child down to sleep, and fell asleep herself. When she looked at the child some two hours later, she saw milk flowing out of the baby's nose and mouth. There was no response from the child and so the applicant, realising at last, but too late, that something was seriously wrong, took the baby to Queen Mary Hospital.

The indictment

12.Against that background, the applicant faced an indictment which contained two counts. The first charged cruelty of a child, asserting that the applicant had wilfully neglected the child in a manner likely to cause her unnecessary suffering; the second charged manslaughter of the child. To the second count the applicant pleaded guilty on the first day of trial; and the first count was left on the file. The plea to manslaughter was, we are told, offered on the basis of gross negligence.

The psychologist's report

13.The judge, who had a very difficult sentencing task in this case, had the advantage of two reports. One was from a clinical psychologist, Dr Anita Leung. She interviewed the applicant in June 2001, and the report shows an account by the applicant of a childhood which became unhappy when the marital life of her parents became discordant. She started to play truant, and fell into undesirable company at school, and began to take drugs. When she was aged 16 she was convicted of an offence of theft and was placed on probation. She had treatment for her addiction but, after a break with a boyfriend, she resumed taking drugs. She then came to know a man named Lung by whom she fell pregnant. He was, it seems, aged 26 years and a triad. He was imprisoned ultimately for theft. She says that she went to a methadone clinic to control her symptoms but without success and when the pregnancy was advanced she was taking drugs. She admitted to Dr Leung that she lied to the medical social worker when the child was born by saying that she could take care of the child. She says she had accommodation for a short while but lost it, and that is when she left the child with old Mr Wu. She did not take the child to the doctor when Mr Wu told her to, because she says she did not think seriously about it, and she accepts that she put her own needs before that of the child.

14.Tests performed on the applicant by the psychologist showed her intellectual functioning within the average range, bordering on the low average. Her social comprehension and judgment was said to be adequate; her social maturity moderately low, though not defective; and her sense of social responsibility and ability to cope were relatively weak. It is said that she felt guilty and remorseful for the fate which she visited upon her child. Psychotherapy is recommended.

Other offences: burglary

15.Dr Leung's is a helpful report although we note that the psychologist does not mention, no doubt because it was not drawn to her attention, the offences of burglary for which the applicant was sentenced in November 2000. On 6 November 2000 she pleaded guilty to two counts of burglary in the District Court. Those charges alleged that she had entered a flat in Western District on 17 July 2000, and the same flat again on 19 July 2000. On the first occasion money was stolen and on the second, a batch of audio equipment including a VCD player, a radio, a DVD player, speakers and so on. According to the applicant this was a burglary committed in the company or at the behest of a boyfriend. Her fingerprints were found inside the burgled flat. These burglary offences have recently come before the Court of Appeal, differently constituted, as CACC 483/2000, where the court allowed the appeal to the extent of ordering a term of three years for each burglary, to run concurrently: the total sentence before appeal had been three and a half years. The trial judge in the case with which we are now dealing did not mention the burglary offences, and it follows that he did not say whether the sentence for manslaughter was to run consecutively, or concurrently, or partly one and partly the other to or with the sentences imposed for the burglary offences. It follows, as a matter of law, that the manslaughter sentence and the burglary sentences were to run concurrently.

The Tai Tam report

16.We also have a report by a Ms Tam Po Wan of the Tai Tam Correctional Institute: it is a drug addiction treatment centre suitability report prepared for this case, and we have to say that it is a most excellent report of its kind. It reveals in more detail the growing addiction of this applicant to a variety of drugs, an addiction which continued after the death of the child. Her school performance was initially acceptable, and she was said to be quite clever, though later her performance was poor. The officer writing the report concludes by saying that during her detention prior to sentence the applicant had made an effort in her educational and vocational training, and that there had been a positive change in her. She is no longer a drug dependant.

The judge's approach

17.In sentencing the applicant, the judge referred to the report of the psychologist and its main features, although not to the Tai Tam report. He recited the key features of the history of the case. Whilst on the one hand accepting the fact of her addiction and the compulsion which drives addicts, he noted, on the other, her awareness of the harmful effects on the child of her addiction, as was evident from the child's retention in hospital after its birth to take withdrawal symptoms, and from the manner in which the applicant had made some notional effort to shield the child whilst she, the applicant, was "chasing the dragon" in the day before the child's death. He concluded his remarks as follows:

"... just before the death of your child, you were using the child to obtain money for your drug habit. Notwithstanding that you received a considerable sum of money from that point until your baby died, you fed it on nothing but Vita-soy and water.

On the face of those facts, it would seem that the baby was little more to you than a device to obtain money with which to satisfy your addiction. From the baby's addiction at birth, you knew that drugs could affect your child. From the fact you have turned its head away or placed a damp cloth over its face when you inhaled the vapour of heroin, you knew there was a potential likelihood of it harming your child.

In the face of that, you used it to get money and then used that money, instead of helping the child and feeding it properly, to furnish the drugs to satisfy an addiction which further harmed your baby. You may, as Mr Wu has said, have appeared 'not so smart and a little muddled,' but you knew how to obtain money and use your child to do so.

There are no tariffs for this type of offence. You have pleaded guilty and I take that into consideration. Your background is of little help to you. You knew of the existence of Social Services because you had had contact with them at the hospital. You could have taken your baby back. You could have walked up to any policeman and said, 'I cannot care for this child, please take it'. The fact that you did not, and chose to use it to obtain money for drugs and then to feed it on nothing more than soy milk and water, indicates a callous disregard for your child which must be reflected in the sentence.

I do not propose to set a starting point and say no more than given the nature of the offence and all your circumstances, an appropriate sentence of imprisonment is one of 9 years, and you are sentenced to 9 years' imprisonment." (Tr. pp.2-3)

Submissions

18.The first ground of this application which was originally advanced before us is one with which we can deal swiftly. Ms Moosdeen suggested in her skeleton argument that the judge failed to take a starting point and she cited authority for her complaint. This ignores a significant number of cases in which the court has said that a starting point need not be stated in manslaughter cases, and Ms Moosdeen does not now pursue the point. It was further argued that the judge failed to give sufficient weight to the report of Dr Leung or to the applicant's guilty plea, to the applicant's relatively low intelligence level, to her addiction, to her remorse and to her difficult past.

Analysis

19.There are, as we are sure the judge recognised, difficult tensions in this case. On the one hand we have a young woman who was a drug addict, by definition a person who when the need compels, acts in an irresponsible way in which he or she might very well not act but for the addiction. On the other hand lies the sanctity of life, in this case the life of a child; and because a mere child, thereby entirely dependant upon the conduct of others for its sustenance, and if it cannot rely on parental love, then we are entitled to expect for it, at the very least, basic care. As a matter of policy there must be a decided limit on the extent to which the disabilities that come with addiction can be permitted to mitigate conduct which, by neglect, endangers life. Then, again, we have a case which does not fall within the category of deliberate abuse in the sense of proactive physical beatings or calculated abuse which results in death, even if death is unintended; and the courts do have such cases (for example, Lam Wai Man CACC 118 of 1999, a case which carried a sentence after plea of eight years' imprisonment for manslaughter and six for cruelty to a child with a total of nine years). As against which, this is a case of a mother who knew something of the dangers to which she was putting her child; knew that the child should have been taken for medical attention; and yet utilised that money for her own ends.

20.There is no case of this particular kind with which we can make any useful comparison. As has so often been said, the range of conduct which forms the basis for manslaughter convictions is very wide, so that other cases are frequently of limited, if of any, use. That said, there may be instances where some benefit can be derived from studying the factors which have motivated sentence in other cases: the acts in Lam Wai Man, for example, can, we think, properly be said to be more culpable than in this case. That was a case of a mother who systematically beat her child and then failed to take it to hospital when a doctor said that to do so was urgent and imperative. In Cheung Siu Fai Cr App No. 379/1992 the deliberate giving of methadone to a four year old boy which resulted in the boy's death was said on the facts of the case to merit a starting point (before plea, that is,) of nine or 10 years' imprisonment.

Conclusion

21.This case is, as we say, far from easy to decide, and we recognise the powerful factors which took the judge to the sentence upon which he decided. We do, however, think that the sentence was in all the circumstances too severe. The offence remains a serious one and a substantial term of imprisonment is warranted, but we think that nine years was manifestly excessive. We give the applicant leave to appeal against her conviction and, treating this as the hearing of that appeal, we set aside that sentence and substitute as the sentence for the offence of manslaughter a term of six years' imprisonment.

22.There is, however, another aspect to be addressed, which is the question of the sentences for burglary. We think that a totality for the manslaughter and burglary offences of seven years' imprisonment is appropriate. We therefore order that the term of six years' imprisonment which we have substituted for the manslaughter offence shall start to run after the applicant has served one year of the sentences imposed for the burglary offences, making a total term of seven years' imprisonment.

Representation:

Ms Munira Moosdeen assigned by the Director of Legal Aid for the Applicant

Mr P S Chapman, SADPP and Mr Simon Tam, SGC of the Department of Justice for the Respondent