HKSAR v. Lam Wai Shu and Another
Read the full judgment text of CACC 283/2006 on BabelCite. This Court of Appeal judgment was delivered on 5 October 2007 before Ma CJHC, Stuart-Moore VP, Beeson J.
Criminal law – manslaughter – unlawful act manslaughter – gross negligence manslaughter – child abuse – cruelty to a child – application for leave to appeal against conviction and sentence – four-month-old baby died on 5 December 2003 from subdural haemorrhage, diffuse brain injuries and bronchopneumonia due to systematic physical abuse and neglect by parents – baby was premature and had multiple injuries including bruises, lacerations, retinal haemorrhages and infected mouth wounds – applicants pleaded guilty to cruelty to a child (count 1) and convicted of manslaughter (count 2) after trial before Deputy High Court Judge Wright and jury – jury directed on two alternative bases for manslaughter, namely unlawful act manslaughter and manslaughter by gross negligence – jury returned unanimous verdicts of guilty against both applicants – foreman initially confused when asked to indicate basis of verdict – ultimately four jurors convicted D1 on unlawful act basis and three on gross negligence basis, with all seven convicting D2 on gross negligence basis – whether jury required to be unanimous on basis of manslaughter conviction – no; only unanimity on the verdict of guilty is required where the same conduct could constitute either basis – R v Brown (Kevin) [1984] 79 Cr App R 115 and R v Boreman and Ors [2000] 1 All ER 307 distinguished as those cases involved two completely different acts at different times – judge should have forewarned jury in writing of special verdict questions – whether judge misdirected jury by allowing them to use D1's out-of-court statements in assessing D2's evidence – no; direction was of little or no consequence in its full context and judge gave proper directions on out-of-court statements generally – sentence not manifestly excessive – starting point 8 years for cruelty to a child reduced by one-third to 5 years and 4 months for guilty plea, and 10 years for manslaughter with no discount, sentences to be served concurrently – reference to HKSAR v Lam Wai-man [1999] 3 HKLRD 855 for sentencing principles – applications for leave to appeal against conviction dismissed; D2's application for leave to appeal against sentence also dismissed.
Legal issues: Whether verdicts unsafe due to jury confusion over basis of manslaughter conviction
Outcome: Both applications for leave to appeal against conviction dismissed; D2's application for leave to appeal against sentence also dismissed.
Cited by 7 cases · Cites 1 case
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CACC 283/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 283 OF 2006 (ON APPEAL FROM HCCC NO. 267 of 2004) ____________________ BETWEEN
____________________ Before : Hon Ma C, Stuart-Moore VP and Beeson J Date of Hearing : 4 September 2007 Date of Judgment : 5 October 2007 ______________________ J U D G M E N T ______________________ Stuart-Moore, VP (giving the judgment of the Court): Background 1.The applicants (D1 and D2 respectively) were charged with cruelty to a child, contrary to section 27(1) of the Offences against the Person Ordinance, Cap. 212 (count 1) and manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance (count 2). The victim in both counts was their daughter, Lam Lok-yan, Iris (the deceased) who, at the time of her death, was 4 months and 2 days old. 2.Both the applicants pleaded guilty on 29 June 2006 to the 1st count. Following this, they were convicted, on 10 July 2006, after a trial before Deputy High Court Judge Wright (as he then was) and a jury, on the 2nd count. On 11 July 2006, they each received sentences of 5 years and 4 months’ imprisonment on the 1st count and 10 years’ imprisonment on the 2nd count to be served concurrently. 3.D1 and D2 now seek leave to appeal against conviction on the 2nd count. In addition, D2 seeks leave to appeal against sentence. 4.At the outset of the summing up, in a brief account of the issues before the jury, the judge helpfully summarised the essence of the prosecution’s case. He stated that it was alleged against both of the applicants that the deceased’s death was caused by each of them “either by the commission of an unlawful act, an assault, where the act was one which all sober and reasonable people would inevitably realise would subject [the deceased] to the risk of bodily harm whether the accused realised this or not; or alternatively, by his or her failure to take any action to prevent [the deceased’s] death in circumstances where there was a duty upon each of them to do so; that each was indifferent to an obvious and serious risk to [the deceased’s] life which all sober and reasonable people would inevitably realise; or recognising that that risk existed, chose to run the risk by doing nothing about it”. 5.D1 did not give evidence. In a short summary of D2’s testimony, the judge said that D2 had “asserted that such injuries as were sustained by [the deceased] when she was under her control were sustained accidentally”. The facts 6.The majority of the factual background to the case was admitted. The admitted facts, so far as they are relevant, with references to the deceased as ‘Lok-yan’, read:
7.The admitted facts also dealt with the video-recorded interviews of D1 and D2. Translations into English of D1’s interviews were produced as Exhibits P60B and P61B and Exhibit P93B related to D2. 8.D1’s interviews were summarised in a Summary of Facts as follows:
9.The Summary of Facts for D2 also contained a brief version of her interview which reads:
10.In a further set of admitted facts, it was admitted that the deceased was due to be seen at the Queen Elizabeth Specialist Out-Patient Clinic on 4 December 2003 but she failed to attend the clinic. 11.It is plain from their admissions that both applicants were admitting they had, in various ways, ill-treated or neglected the deceased. This provided the foundation for their guilty pleas to the 1st count. 12.We have also seen the post mortem photographs of the deceased which graphically demonstrate the extent of the abuse to which she had been subjected over the weeks leading up to her death. This was touched upon by the judge in his sentencing remarks where he said:
13.The judge continued by saying that the combined effect of the medical evidence given by the pathologist, Dr Ng and a neuro-pathologist, Dr Squier, demonstrated that this was a “classical case” of child abuse. Clear signs were found of the deceased having received injuries to her head, estimated to have occurred several weeks prior to her death, and evidence was given that up to ten blows were inflicted upon the deceased’s head within the 48 hours leading up to her death. These had left bruises but it was not possible to identify which of the bruises related to the fatal blow or blows. 14.As we have indicated, the 2nd count was eventually left to the jury on two alternative bases, namely, unlawful act manslaughter or manslaughter by gross negligence. This was because Dr Ng Chung-ki, the forensic pathologist, had expressed the opinion that none of the actions which the applicants had described during their interviews could have led to the subdural haemorrhages and diffuse brain injuries which caused the death. These were in his view non-accidental injuries. Dr Squier, the neuro-pathologist, gave evidence confirming this. 15.The prosecution alleged, therefore, that one of the applicants had physically committed the assault on the deceased which had led to her death. In circumstances to which we shall turn shortly, the jury accepted that D2 was guilty of manslaughter by reason of gross negligence. However, they were not able to agree by a majority of at least five that the culprit responsible for the fatal assault was D1. Only four of the jury found the more serious alternative proved against D1 which left both applicants ultimately having to be dealt with on the same basis. Summing up and return of verdicts 16.In the summing up, the judge directed the jury on the two alternative ways of approaching the allegation of manslaughter by stating:
17.The jury had been made aware during the trial that both applicants had pleaded guilty to the 1st count. The judge dealt with this aspect of the case before directing the jury on the relevant aspects of manslaughter. Leaving some of the details of his directions on the law until after he had completed his summary of the evidence, the judge said:
18.The judge then detailed the difference between the two alternative bases for manslaughter, leaving the jury simply to return verdicts in each case of either guilty or not guilty of manslaughter. Mr McGowan, who also represented the prosecution in the court below, addressed the judge in the jury’s absence about this. He made the perfectly proper suggestion that the pro forma questionnaires the jury had been given relating to their verdicts contained no questions which would alert them to the fact that they would be asked for the basis of their verdicts in the event that they convicted of manslaughter. However, although such a course is normally taken where a special verdict is called for, the judge unfortunately decided that this would not be necessary. The following dialogue then took place between the judge and Mr McGowan:
19.Defence counsel were content to have the matter left in the way the judge suggested so long as the jury, assuming they convicted of manslaughter, were asked on what basis they had arrived at their verdict. 20.The jury retired at 11.35 am and by 3.02 pm they had reached unanimous verdicts of guilty in respect of each applicant. 21.Mr McGowan’s concerns were, however, well-founded. In the experience of this court, it is always desirable to forewarn a jury of the questions it will be required to answer in the event that a special verdict is called for and to add these questions to the questionnaire which the jury is ordinarily given. Rightly, the judge had decided that it was necessary to know the basis of any manslaughter verdict for the purposes of sentencing. However, whilst the jury were aware of what had to be proved for a manslaughter verdict on one or other basis, they were unfortunately given no warning in the summing up or in their pro forma questionnaires of the further questions they would have to answer if they convicted. As a result, they were caught completely by surprise when they found themselves being asked about this after returning their verdicts. 22.The difficulty is best demonstrated by reciting the whole of the relevant portion of the transcript, which takes in the dialogue between the judge and the foreman of the jury, when the stage was reached for the jury to be asked the basis of the verdicts. This reads:
23.The judge was then invited to send the jury out while counsel addressed him. In the discussion which followed, it was decided that questions relating to the verdicts themselves as well as the special verdicts should be put again. This was done after the judge said:
24.The jury returned to the courtroom at 3.14 pm and there was then the following dialogue between the judge and the foreman of the jury:
25.The judge heard from all counsel after this. D1’s counsel sought the discharge of the jury, whereas, for D2, it was conceded that the verdict should stand as her position was entirely different. The judge ruled that both guilty verdicts on the count of manslaughter could stand, saying:
Grounds of appeal (1) Concern about jury’s understanding of the summing up 26.Mr McNamara advanced what amounted to a single ground of appeal arising from the confusion which had occurred after the delivery of the verdicts when the jury was asked to indicate whether they convicted on the basis of ‘unlawful act’ or ‘gross negligence’. It was submitted that as the jury had been directed in standard terms that they had to be satisfied by at least a majority of five to two of guilt before they could convict either D1 or D2 of manslaughter, the apparent failure of the jury to have achieved this majority on one of the two bases which would justify a manslaughter conviction gave rise to a concern that the jury may have misunderstood other directions given to them. 27.A similar submission was made by Mr Callaghan on behalf of D2. He pointed to the jury’s confusion, when faced with questions they had not expected the judge to ask them, together with the fact that the judge had never directed the jury “that they should first of all agree (subject to an acceptable majority) on the basis of an accused’s guilt, (i.e. either ‘unlawful act’ or ‘gross negligence’ manslaughter), before they could convict. This, he submitted, had led to a verdict in D2’s case which was unsafe or unsatisfactory. 28.There was no substance in these arguments. The jury had made it clear, both originally when returning their guilty verdicts and later when the judge asked for clarification as to the basis of these verdicts, that they were unanimous in finding D1 and D2 guilty of manslaughter. Either basis which had been left to the jury for convicting was sufficient for a manslaughter verdict. The reason why the judge needed to know the basis of their verdicts was exclusively related to the question of sentence. If ‘unlawful act’ had been established in either case, no doubt the sentence would have been greater than for manslaughter by ‘gross negligence’. In the event, as we have said, the judge proceeded to sentence both applicants on an equal footing, thus avoiding any possible unfairness to D1. D2’s case was straightforward as the jury had unanimously found her guilty on the lesser of the two alternative bases for convicting, albeit two of the jurors were also satisfied that D2 had been guilty on the more serious basis. 29.Although we were referred to the decision in R v Brown (Kevin) [1984] 79 Cr App R 115 as applied in R v Boreman and Ors [2000] 1 All ER 307, these authorities had no application to the circumstances of this case. It was held in Boreman and Ors, as set out in the headnote, that “where there are two routes by which a murder may have been committed, and those two routes comprise completely different acts happening at different times, the jury must be unanimous on which act leads them to a decision to convict. Thus in such a case, the judge should direct the jury that they must agree on the basis of a defendant’s guilt before they can convict him”. In that case, there was a dispute as to the cause of death. The victim had suffered multiple injuries but when the body was found it had been badly burnt in a fire which on one version was said to have been accidental resulting from a completely separate incident. 30.Neither Mr Callaghan nor Mr McNamara suggested that the verdicts which the jury returned were in themselves, on the present facts, unacceptable or unlawful. Their principal concern was that the jury foreman’s confused responses to the judge reflected a generally unsatisfactory approach to the legal directions they had been given. From this, it was submitted, it might be inferred that the jury had not understood their duties properly. 31.We are satisfied that, in this case, the more serious form of manslaughter of which four of the jurors thought D1 was guilty, necessarily included the less serious form of which the remaining jurors were satisfied of D1’s guilt. To have physically abused the deceased in the way D1 had admitted to the police he had done, clearly also provided evidence covering an allegation of manslaughter by gross negligence. Accordingly, whilst the judge needed to know the basis on which the jury had convicted of manslaughter so that he could impose an appropriate sentence, looked at from the point of view of the jury, whose duty was to return true verdicts, either basis was sufficient to convict. The judge had correctly directed the jury on the law so far as it related to manslaughter. The only deficiency, with respect, was the failure to warn the jury, preferably in writing as well as by word of mouth in the summing up, of the nature of the special verdict they might be called upon to give. 32.These grounds, therefore, fail. (2) Directions on the use to which two of D1’s answers in interview could be used in assessing D2’s case 33.The only other ground of appeal was raised on behalf of D2 alone. This amounted to a complaint that the jury had been misdirected during the summing up when the judge informed the jury that they could take into account what was said by D1 in an out-of-court record of interview about D2 when they were considering the evidence given by D2. 34.The direction relating to this complaint was made early in the summing up. The judge, having generally dealt with the approach to be taken to the evidence given by D2, went on to say:
35.The judge was referring, in the passage just cited, to a part of D1’s account in his interview on 6 December 2003 (against counters 286 and 288 in the transcription). This reads:
36.Mr Callaghan made the point in his written submission that the jury were told that these assertions by D1 could be taken into account against D2. However, this is not what the judge said or implied and, furthermore, it does not accord with the sentiment contained in D1’s answers in the short passage we have cited. Plainly, D1 was recounting how D2 had informed him about the accidental injuries suffered by the deceased and the judge, rightly or wrongly, had taken this material as being to D2’s advantage. Indeed, Mr McGowan told us that he had taken notice of this direction at trial but he had decided to make no comment about it as he realised that it was actually intended to help D2. If we may be forgiven for using a footballing analogy, Mr McGowan had decided to play the ‘advantage’ rule if such was necessary. Since that time, having examined the transcript of D2’s evidence in detail, he was prepared to concede that the judge’s comment might possibly be taken as highlighting a further inconsistency in D2’s account about how the deceased had suffered bruises on which point she had changed her evidence from time to time. Also to be remembered in this regard, the pathologist had discounted the possibility of the deceased having suffered serious head injuries by bumping herself against a wall. Mr McGowan’s concern was, therefore, that although the judge may have directed the jury in this way out of the best of motives, it might not have been a direction which necessarily assisted D2. 37.We do not consider that the concerns expressed by Mr Callaghan, and by Mr McGowan when answering them, materially affected D2’s case although we take the view that the judge’s comment on this issue would have been better left unspoken. In the first place, when the judge later gave a summary of D1’s answers to the police contained in Exhibits P60B and P61B which occupied 294 pages in the jury’s bundle, he invited no further comparison with the account given by D2 in her testimony. Secondly, the basis of D2’s conviction was that she was guilty of manslaughter by reason of gross negligence which involved no finding against her that she had committed an unlawful act of assault on the deceased. Thirdly, the judge gave proper directions to the jury as to their approach to answers made in out-of-court statements by one defendant which adversely affected the other. The directions he gave were as follows:
38.Later, the judge briefly reminded the jury of the directions he had given in regard to the approach to be taken to out-of-court statements when he said:
39.We are satisfied that what was described as a misdirection by Mr Callaghan was, when seen in its full context, a matter of little or no consequence. 40.Accordingly, this ground fails. Conclusion 41.There was a wealth of evidence in support of findings of ‘gross negligence’ manslaughter against both applicants. In our opinion, the verdicts were neither unsafe nor unsatisfactory and it follows, therefore, that both applications in regard to conviction are dismissed. Sentence 42.D2 was not represented on her application for leave to appeal against sentence on counts 1 and 2. 43.In support of this application, D2 referred to the deceased, in her letter dated 18 June 2006, as “her favourite daughter” who it would have been impossible for her to have killed. She suggested that she had been let down by various organisations to whom she had turned for help and she blamed D1 for the killing itself. She said that if she had realised that the deceased was in danger, she would have gone to the hospital with her and, although she had thought of going to the police, she had been deterred from doing so by the threats she had received from D1. 44.In a more recent letter from the applicant, she again blamed D1 for physically abusing the deceased and for causing her to have a brain haemorrhage. She blamed her own emotional fluctuations on postnatal depression. 45.Much of D2’s written submission to us was put forward in mitigation in the court below. The judge made reference to HKSAR v Lam Wai-man [1999] 3 HKLRD 855, which bore some similarity to the present case. In that case, this court regarded starting points of 9 years and 12 years’ imprisonment for cruelty to a child and manslaughter, respectively, as being appropriate. 46.The judge, in the instant case, following a consideration of Lam Wai-man, said:
47.The judge then took a starting point of 8 years on the 1st count which he reduced by a third to reflect D2’s guilty plea. The sentence of 10 years’ imprisonment on the 2nd count was subject to no discount. 48.We have been given no reason to think that the judge’s sentencing was, on either count, manifestly excessive. The deceased had, to D2’s certain knowledge, been systematically abused in a manner which would leave any normal person, let alone a parent, horrified beyond words. The deceased was covered from head to foot in plainly observable injuries and yet D2 did nothing to protect her child. This gross neglect on her part has had tragic consequences. 49.Accordingly, D2’s application in regard to sentence is also dismissed.
Mr James McGowan, counsel on fiat, and Ms Winnie Lam Tak Wing, SGC (Ag.), for the Respondent. Mr John McNamara, instructed by Messrs W K To & Co., assigned by Director of Legal Aid, for the 1st Applicant (D1). Mr Peter Callaghan, instructed by Messrs Michael Cheuk, Wong & Kee, assigned by Director of Legal Aid, for the 2nd Applicant (D2) (re: conviction). The 2nd Applicant (D2), in person (re: sentence). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment