The Queen v. Chau Ming Cheong

CACC001011A/1982

BETWEEN

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Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 13th May, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. We dismissed the applicant's application for leave to appeal against conviction on the 30th of March this year. Mr. van Buuren appears again this morning on behalf of his client in respect of the sentence. It is unnecessary to recapitulate the circumstances of the case which was a very serious case of child battering resulting in the death of one of twin children of the applicant and his wife. This court however accepted that the part taken by the applicant in that sorry affair was a passive part. His culpability was that of a weak and indecisive man who seemed at all stages, over a prolonged period of ill-treatment, quite incapable of taking any appropriate action to prevent his wife from ill-using the child in a quite outrageous fashion.

2. The Judge imposed sentences of 7 years on both the husband and the wife. In doing so he said he had considered the English cases and all the matters in mitigation put before him but had come to the conclusion that both must serve a substantial term of imprisonment.

3. We are satisfied that a distinction ought to have been made between the cases of the husband and the wife. If a sentence of five years had been imposed upon the husband in the first instance it would have been difficult to have said that that was wrong, we have however before us this morning the background reports and a further plea in mitigation.

4. We are aware that the grand-parents of the twin children proved of considerable assistance to this unfortunate family and shouldered a considerable responsibility for the deceased child during the earlier part of her life. That imposed upon them a fairly considerable strain both financial and in the way of psychological stress.

5. While in custody the mother gave birth to a third child, a boy who is now about 7 months of age and is being cared for in a nursery. Both the boy and the surviving twin are under the supervision of the Social Welfare Department but the surviving twin is in the immediate care and custody of the grand parents.

6. We accept that this situation imposes a strain upon the grand parents who run a newspaper store and who are not in very affluent circumstances.

7. We consider that the welfare of the family is, in all the circumstances, a matter of paramount importance. In particular the case of the small boy concerns us. He has now been for some months in care and out of the family atmosphere. Although we are satisfied that that care is, at the present time, good and adequate and that he is thriving under it; we think it would be unfortunate that he should be left there for a very long time and become institutionalised and bereft of the kind of family influences which are necessary for the healthy growth of children particularly in their younger years. That factor coupled with the present hardship imposed upon the grand-parents disposes us to take a considerably more lenient view than would otherwise have been the case.

8. The applicant has already been in custody for some 15 months. We think in all the circumstances that the application should be granted and the appeal allowed. We set aside the sentence of 7 years and for that we substitute a term of three years which should mean that the applicant, taking into account the normal period of remission should be at liberty some 8 months from the present date. We are doing this so that the family unit may be reconstituted in the near future. We are told that, apart from the fact that he has still possession of the premises in which he and his wife and the children formerly resided, the applicant will be able to return to work and contribute something in the region of  $3,000 to the family support and further that he will be able to enlist the services of a young sister, who is at present helping her parents with their newspaper business, who will be able to reside with the children and have them in her care while the applicant is absent at work.

Representation:

Brian van Buuren (Wong, Hui & Souza) for Appellant.

A.P. Duckett for Respondent/Crown.