Secretary for Justice v. Lam Lui Yin and Another

CAAR 5/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5 OF 2006

(ON APPEAL FROM DCCC NO. 850 OF 2005)

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BETWEEN

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Before: Hon Ma CJHC, Stuart-Moore VP & Lunn J in Court

Date of Hearing: 8 December 2006

Date of Handing Down Judgment: 15 December 2006

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.On 6 April 2006, the Respondents were convicted after trial in the District Court of the offence of ill-treatment or neglect of a child in their custody, charge or care, contrary to section 27(1) of the Offences against the Person Ordinance, Cap.212.  On 4 May 2006, Judge Whaley sentenced them to terms of imprisonment of 2 years each.  The Applicant (the Secretary for Justice) now seeks a review of these sentences under section 81A of the Criminal Procedure Ordinance, Cap.221, on the grounds that they are manifestly inadequate or wrong in principle.  The 1st Respondent is aged 38, the 2nd Respondent 33.  Both did not have any previous convictions.

2.The facts are tragic.  On 7 February 2004, a child (Lam Bok-yam) died as a result of injuries sustained by him to the head, this causing a “very severe subdural haemorrhage and diffuse brain swelling which were likely to have been sustained within 18 hours of his death”.  The Respondents were his parents who had the custody, charge and care of Bok-yam.

3.Bok-yam was born on 3 October 2001, one of triplets.  Born prematurely, he was found to be suffering from congenital heart disease.  He had to undergo cardiac operations when he was only 6 days old, at 6 months he had heart lesions repaired and at 9 months he had to undergo thoracic surgery.  He went from hospital to hospital.  He developed chest infections and although his condition stabilized when he was 15 months old, he continued to have chronic lung and airway diseases.  Physiotherapy and occupational therapy were required.  From his birth until December 2003, Bok-yam was hospitalized.  He was finally discharged from Queen Elizabeth Hospital on 22 December 2003 when he was able to go home.  He was fitted with a nasogastric tube.  He could only walk if supported by one hand.  Follow-up treatments were needed in view of Bok-yam’s medical history and arrangements were made for him to attend Queen Elizabeth Hospital’s Respiratory Clinic and Cardiac Clinic, the Hong Kong Eye Hospital and Grantham Hospital.  As the Judge observed, he missed all follow-up appointments.  His parents did not take him.  It is appropriate to note that Dr Li Shuk Han, the senior medical officer in charge of the team of paediatricians who cared for Bok-yam at Queen Elizabeth Hospital checked the computer records and noticed that Bok-yam had not kept his follow-up appointments.  As a result, she spoke to the 2nd Respondent on the telephone in late January and was assured that Bok-yam was allright and that the failure to take Bok-yam to his appointments came about because she was so busy.  The next scheduled appointment was for 6 February 2004, but that was re-scheduled at the request of the 2nd Respondent to 20 February 2004.

4.Following Bok-yam’s death, an autopsy was performed by Dr Yu Hon Wai on 9 February 2004.  His findings were summarized by the Judge in his Reasons for Verdict in the following passages : -

“33.     As far as the head and facial area of the deceased was concerned, Dr Yu found eight bruises, excluding three findings of para-mortem bruises numbers (4), (6) and (12).  Apart from those three para-mortem bruises, there were eight bruises to the head and face; and 22 abrasions, more or less equally distributed on the left and right side of the face; also a recent linear abrasion on the left lower jaw.

34.       As far as the deceased’s upper limbs were concerned, he found more than nine bruises on various parts of the upper limbs – namely the left and right arms and hands – and two scabbed needle marks on the back of his left hand.  On the deceased’s left lower limb, he found five individual bruises, plus multiple purplish bruises on the left leg and adjoining foot, and a small recent abrasion on the front of the lower left leg and upper surface of the foot.  On the deceased’s right lower limb, he found nine individual bruises, plus several small purplish bruises, five by three centimetres in extent.  Those were on the right lower leg and adjoining foot.  Also, eight abrasions.

35.       The internal examination revealed extensive deep reddish bruising to the deceased’s scalp on the back of the top of his head, with a collection of 20 millilitres of reddish blood and blood clots, and patchy fibrosis on the inner surface of the scalp.  There were 100 millilitres of reddish fluid subdural haemorrhage, namely a bleeding beneath the outer covering of the brain, accumulated mainly in the middle and back part of the base of the skull.  The brain was diffusely swollen, congested and oedematous; that is swollen, full of water.”

The photographs we have seen show a body covered in bruises and abrasions.

5.The cause of death was, as stated above, due to injuries to the head.  These injuries were sustained, it was opined, by an assault on Bok-yam by a heavy blunt impact to his head within 18 hours of death.  Dr Yu was of the view that the injuries were likely caused by an assault rather than other causes.  The fact that there was retinal haemorrhaging in both eyes supported this (retinal haemorrhaging is apparently often seen in cases of child abuse).

6.The bruising and abrasions found on the boy’s face and body were extensive.  This is abundantly clear from Dr Yu’s report and from the photographs that are before us.  It had been contended by the Respondents in statements made to the police (neither gave evidence at trial) that Bok-yam was prone to falling and to bruising, but Dr Yu (whose evidence was accepted by the Judge) was of the view that there were simply too many bruises to be explained by accidental bumps or falls.  Bok-yam did not have a bleeding tendency either since he was not taking any anti-coagulant medicines.  This latter fact was significant in that it enabled the subdural haemorrhaging to be attributable to an assault.  After learning that Bok-yam did not take any anti-coagulant drugs, Dr Yu changed his initial observations of “no obvious signs of child abuse” to “a high likelihood of child abuse”.

7.The Respondents disputed the charge at trial.  Section 27(1) of the Offences against the Person Ordinance states : -

“27.   Ill-treatment or neglect by those in charge of child or young person

(1) If any person over the age of 16 years who has the custody, charge or care of any child or young person under that age wilfully assaults, ill-treats, neglects, abandons or exposes such child or young person or causes or procures such child or young person to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement) such person shall be guilty of an offence and shall be liable -

(a)    on conviction on indictment to imprisonment for 10 years; or

(b)   on summary conviction to imprisonment for 3 years,

and for the purposes of this section a parent or other person over the age of 16 having the custody, charge or care of a child or young person under that age shall be deemed to have neglected him in a manner likely to cause injury to his health if he fails to provide adequate food, clothing or lodging for the child or young person, or if, being unable otherwise to provide such food, clothing or lodging, he knowingly and wilfully fails to take steps to procure the same to be provided by some authority, society or institution which undertakes to make such provision for necessitous children or young persons.”

8.In arriving at his verdict that the Respondents were guilty of the charge, the Judge (in clear and comprehensive Reasons for Verdict) first referred to the Respondents’ failure to arrange proper medical care for Bok-yam.  In view of the bruises and abrasions to his body, the Respondents ought to have appreciated that Bok-yam needed medical attention.  He did not get any.  Further, we have already alluded to the follow-up treatments that he needed after he left hospitalized care.  Again, these did not take place.  Lastly, the Judge took into account the failure to get any medical care for Bok-yam when he sustained the head injuries that eventually led to his death.  All this amounted to wilful neglect for the purposes of section 27.

9.The Judge then turned to the aspect of wilful ill-treatment.  Here, he identified three aspects : -

(1)        The bruises and abrasions on Bok-yam’s limbs and body.

(2)        The bruises and abrasions on his cheeks,

(3)        The internal injuries, namely, the severe subdural haemorrhaging in the skull and the bruising on his scalp.

10.Regarding the first category of injuries, the Judge dismissed the claim that Bok-yam was more susceptible to bruising than a normal child.  He was satisfied that the Respondents had beaten him excessively and had wilfully ill-treated him.  He said this : -

“123.   As far as the general visible bruises and injuries on the deceased’s body were concerned, I am satisfied beyond a reasonable doubt on all the evidence that, in reality, the defendants had gone considerably further and employed considerably more force in their physical chastisements and punishments of Bok-yam when he was being ‘naughty’ than the moderate chastisement which they admitted to.  This, in my view, is the only reasonable inference to be drawn from all the evidence, and it explains how all the bruises and abrasions in question had been sustained by Bok-yam before his death.

124.     In doing so, I am satisfied that the defendants did wilfully ill-treat Bok-yam in a manner likely to cause him unnecessary suffering or injury to his health.  There can be no doubt, in my view, that they did so wilfully.”

11.In relation to the bruises and abrasions on Bok-yam’s cheeks, the Judge found that these were sustained when he refused to open his mouth to allow the 2nd Respondent to brush his teeth, with the result that she squeezed his cheeks hard with her fingers to force him to open his mouth.  The Judge found that excessive force was used.  The Judge said this : -

“108.   On all the evidence, I am satisfied beyond a reasonable doubt that the bruises and abrasions on the deceased’s cheeks were caused by the 2nd defendant using excessive force to grip and squeeze his cheeks with her fingers in order to force him to open his mouth.  No doubt, her nails sometimes caused the abrasions which Dr Yu observed within some of the bruises.

109.     I am also satisfied beyond a reasonable doubt that in doing so, she did wilfully mis-treat Bok-yam in a manner likely to cause him unnecessary suffering or injury to his health.”

The Judge did not, however, hold the 1st Respondent responsible for these injuries.

12.The third category of injuries was of course the most serious as these injuries were the immediate ones that caused Bok-yam’s death.  Here, the Judge was not satisfied on the evidence and up to the requisite standard whether it was the 1st Respondent or the 2nd Respondent or both of them who inflicted the injuries.  Although it was clear that Bok-yam had been subjected to “a violent assault or assaults which involved the infliction of a massive trauma to his head” that led to his death and that there was no doubt that this was caused by either the 1st Respondent or the 2nd Respondent, or both of them, the Judge found it impossible to find on the evidence just who was responsible : one, the other or both.

13.In sentencing the Respondents, the Judge took into account the findings of fact he had made.  There are, however, three matters of note in this context : -

(1)        First, the Judge took into account the overall picture which was that the Respondents had used excessive force on a child who was just over 2 years old when he died.

(2)        Secondly, he also took into account the fact that the Respondents should have sought help to enable Bok-yam to have been properly looked after.  For example, his regular medical check-ups were missed for no good reason.  The 2nd Respondent said that she was unable to take Bok-yam for medical check-ups since she could not leave the other two children on their own.  Yet, help must have been available to enable her to do this if she had really been willing.  The Judge provided the following explanation : -

“Indeed, so puzzling was this carefully maintained isolation that I find it difficult to avoid the conclusion that the reason they defaulted on all the follow-up appointments and did not call upon any of the help and expertise that was so readily available to them, was that they knew that any doctor nurse or social worker would have immediately been alarmed when they saw all the bruises and injuries on Bok-yam’s person and would naturally have investigated the situation and asked for an explanation.”

(3)        Thirdly, in sentencing the Respondents, the Judge felt he had to put to one side the fact that the head injuries sustained by Bok-yam were caused by one or both of them.  This therefore left the regular beatings and the squeezing of the cheeks, which the Judge classified (in his words) “on the less serious side of the scale of such contraventions”.

14.Mr Kevin Zervos SC (for the Secretary for Justice) has urged upon us that the Judge erred in classifying the offence committed by the Respondents as being “on the less serious side”.  He submitted that this was an extremely serious case of child abuse and that there had to be regard to the fact that the maximum sentence for this offence is 10 years’ imprisonment.

15.Against this, Mr Bruce Tse (for the Respondents) has submitted that the Respondents cannot be regarded as being “wicked” parents.  He reminded us that the Judge accepted it was more difficult, in view of Bok-yam’s condition, to look after him especially with two other children to care for as well.  There also had to be factored in the fact that the other two children would be deprived of their parents while the Respondents were in prison (although they are being looked after at the moment by relatives).  We were also reminded of the testimony of a social worker who gave evidence at trial (Ms Chan Man Ka – PW5).  Ms Chan described the 2nd Respondent as a person who was genuinely concerned about Bok-yam and who cared very much for her children.  However, Ms Chan’s assessment was largely based on her observations of the 2nd Respondent before Bok-yam went home on 22 December 2003.  She largely dropped out of the picture after this although she did speak to the 2nd Respondent by phone on 31 December 2003.  We have also read very touching letters from the Respondents’ closest relatives.  There is also a letter dated 11 April 2006 from Dr Gracemary Leung, a clinical psychologist who works at the Personal Development and Counselling Centre at the University of Hong Kong.  She is also a relative of the Respondents.  She referred to the possibility of the 2nd Respondent suffering from postpartum (that is, post-natal) depression.  This was a possibility that was also raised in the 2nd Respondent’s probation report that was prepared for the purposes of sentencing.  The Judge regarded this aspect as only a theoretical possibility and we have no reason to doubt his assessment.

16.Notwithstanding the submissions ably made Mr Tse in favour of the Respondents, we are of the view that the sentences passed on the Respondents were manifestly inadequate and should be increased to 4 years’ imprisonment : -

(1)        This was a case of parents having physically abused and wilfully ill-treated a child on more than just isolated occasions.  It had continually taken place over a period of months.  Bok-yam was a child who at the time of his death was just 2 years 4 months old.  The Respondents knew that he required more care and understanding than a normal healthy child.  Born with heart and lung diseases, he had been in hospital for over 2 years.  When he went home in December 2003, he deserved to be well looked after rather than being subjected to the complete opposite.

(2)        Not only was Bok-yam subjected to physical abuse on a large scale, he was also deprived of the medical care and attention he evidently needed.  We have already mentioned the follow-up treatments he had to attend, but he was deprived of that by the Respondents.  This was not a case of ignorance : the Respondents deliberately chose not to take Bok-yam for treatment and for no good reason at all (in fact quite the opposite).

(3)        In summary, this case involved a boy who naturally placed the trust of looking after him on those who were responsible for his welfare, his parents.  They have sadly let him down.  Dr Li Shuk Han, to whom we have earlier referred, described him as a “lovely boy, playful and active”.  All the doctors and nurses at the hospital related to him and bonded with him.  Bok-yam deserved better at home.  Instead, he was subjected to neglect and ill-treatment.

17.For the above reasons, we quash the sentences of 2 years’ imprisonment imposed by the court below and pass a sentence of 4 years’ imprisonment for each of the Respondents.  These sentences properly reflect the gravity of the offence in the circumstances of this case.

Mr Kevin P Zervos SC & Ms Kathie Cheung of the Department of Justice for the Applicant

Mr Bruce C H Tse, instructed by Messrs C K Mok & Co for the 1st & 2nd Respondents