Li Wang-fat and Another v. The Queen
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CACC001100/1980 Manslaughter and wilful neglect of a child - Case of Sheppard (1980 3A.E.R. 899) applied - For charge of wilful neglect the subjective is required - For Manslaughter charge only objective test for gross negligence is required. On evidence of the case, both appellants, parents of the deceased child, would be found guilty of neglect even on subjective test. Despite misdirection which took place before case of Sheppard was decided on appeal the proviso is applied - Appeal against conviction dismissed. Appeal against sentence is allowed on compassionate ground only for 4 other very young children who had been properly cared for by appellants - Sentence of 5 years reduced to 3 years.
Coram: Li, Silke, JJ.A. and Bewley, J. Date of Judgment: 26th October, 1981 ----------------- JUDGMENT ----------------- Li, J.A.: 1. Both appellants have been convicted of manslaughter and wilful neglect of a child and sentenced respectively for these two offences to five years and two years imprisonment to run concurrently in respect of these offences. They both applied for leave to a single judge against conviction and sentence. The learned judge refused leave to appeal against conviction but granted them leave to appeal against sentence. 2. The first appellant renewed his application for leave to appeal against conviction before this court but not the second appellant. They both applied for legal aid and legal aid was granted to both appellants to appeal against sentence only. 3. In the meanwhile, the learned trial judge, in his usual fairness, address a note to the Registrar of the Supreme Court, drawing our attention to the case of R. v. Sheppard(1) which was not reported at that time of his direction to the jury. He pointed out a misdirection on his part and suggested that conviction of the second count, namely, the charge of wilful neglect, be set aside. 4. At the commencement of this appeal, the first appellant, not knowing anything about the trial judge's note, indicates that he would abandon his application for leave to appeal against conviction. In deference to the learned trial judge, however, we asked Miss Leong, learned counsel for both appellants, whether she was prepared to argue, on behalf of both appellants their application for leave to appeal against conviction in case there might be some points which we had overlooked. As usual she was well prepared to assist the court and she agreed to do so. We are inclined to extend time for the application to the second appellant. We order that legal aid certificate be extended to cover both appellants for their application for leave to appeal against conviction. We accordingly do so. 5. Both appellants were parents of the deceased child, a girl, who died at the age of five years and five months, on the 10th August, 1978. At all material times relating to these two charges, the first appellant, the father of the deceased, was over 27 years of age and the second appellant, the mother, was over 22. They had this girl at the material time under their care and custody. The deceased was a second child of five children. She was born a weakling. Within days of her birth, which was the 23rd March, 1973, she was taken back to the hospital suffering from jaundice. After a few months, she was sent in again for suffering from chest infection. Having regard to the circumstances, it is appreciated that she might be retarded in growth to a certain extent. But it was not until the 6th November, 1976 that something amiss was discovered indicating that there might be something wrong with the treatment she received from her parents. 6. On the 6th November, 1976, the deceased was admitted to Queen Elizabeth Hospital for suffering from drownsiness. She was found by the doctors to be grossly emaciated having the body weight of only 17 1bs. for a girl of 3 years old. That was well below the minimum. A variety of tests was given her. She was found to have no organic or any other disease. Her trouble was underfeeding. When ordinary hospital diet was given her, she consumed her food, according to the words of the doctors, voraciously. She was discharged on the 30th December the same year. By that time, she gained a 9 1bs, having a body weight of 26 1bs. 7. Then on the 15th February, 1978, she was admitted to Princess Margaret Hospital suffering from oedema or swollen ankle and diarrhoea. She was examined. She was found to be emaciated again. Tests were applied to her. No organic or other disease was found. Her body weight on admission was only 22 1bs. She was given hospital diet. She consumed her food in the hospital with enthusiasm. On her discharge on the 13th March, 1978, she weighed 27 ½ 1bs. Perhaps it should be mentioned that on that occasion, she was found to have a fractured tibia which was on the mend. 8. On both occasions, the doctors who attended the child found that she was grossly underfed. The appellants were told. And on both occasions, medical social workers were asked to see the parents, namely, the appellants, to give them advice as to how to feed the child. The last interview was by one medical social worker who visited the home of the child and had a conversation with the second appellant, the mother. The second appellant did show some concern, not so much as to the health and the feeding of the child, but more of her behaviour in her kindergarten school. 9. The headmistress of the kindergarten school, where the child attended for a period of 1 week, said that the child seemed to look aggressively at other children's food and that she was observed to retrieve empty Vitasoy cans from garbage tins to suck the remanents. 10. On 10th August, 1978 the girl was admitted to Princess Margaret Hospital unconscious. The cause of the complaint at that time was that when the parents tried to open her mouth, the child failed to respond. On admission, this child weighed 17 ½ 1bs. She was only ½ 1b. better than she was when she was admitted in Queen Elizabeth Hospital in 1976. She was found to suffer from dehydration and emaciation. Every effort had been tried to resuscitate her. Unfortunately, it was too late. The girl died within hours. 11. Post mortem examination revealed that apart from dehydration and emaciation, there was no other organic disorder. But there were lots of things wrong with her bone structures. She was found to have no less than twelve fractures. Eleven of them were something like two to three weeks old prior to the 10th August. Fractures were found over her jaw, her hands, both arms and her leg. One of the twelve fractures was a recurrent fracture. On top of that, she had lots of bruises over her skull, her nose and her face. The doctor said there were ten and could have been thirty bruised areas. There were so many of them over her skull that it could not be counted. The doctors who examined the x-ray of her bone structures said that some of the fractures could be termed as a classic example of a "battered child". 12. In his evidence, Professor Hutchison said that the child must have starved since 1975 in order to reduce her weight to 17 1bs. by November 1976. In short, she must have been starved between November 1975 to November 1976. There is also medical evidence to suggest that those fractures discovered upon her death, were fractures sustained at least two to three weeks before and that any one or two of those fractures would have set the child screaming for pain when she was touched or at the time when it was sustained. 13. In view of such evidence and in view of the daily opportunity of observation by both appellants of this deceased child, it can hardly be argued that they did not know, and if they knew, they did not deliberately neglect to bring her medical attention. They must know, even for a short period before the 10th August, 1978. It would be a farce to suggest that they did not wilfully underfeed the child for a period at least between 1976 and 1978. The doctor said:
That was not done. 14. Miss Leong, in all propriety, draws our attention to pages 326 and 327 of the transcript in the judge's direction to the jury, in which the judge said:
when he directed the law relating to the term 'wilfully neglectful'. 15. In page 327:
16. Miss Leong suggests that, in view of the case of Sheppard(1) a recent House of Lords' decision, a subjective test would have to be applied. It is not sufficient to say that the standard of a reasonable man should apply. It is incumbent upon the Crown to prove that the appellants deliberately according to their own volition underfed, and neglected to seek medical aid for, the child. These are directions that refer to the charge of wilful neglect. 17. In all fairness, Miss Leong concedes that she cannot have any complaint vis-a-vis the direction on the charge of manslaughter. All she invokes in aid is the judge's remark in his direction that if the jury should acquit the appellants of the second count of wilful neglect, they should also acquit the appellants of the first count of manslaughter. At that time, the learned trial judge thought that both counts required an objective test and manslaughter being a more serious charge and acquittal of the less serious charge automatically involve an acquittal of the more serious charge. However, it is apparent from the Sheppard's Case(1) that in so far as the count of wilful neglect is concerned, a subjective test is required to prove mens rea. The count of manslaughter, however, at common law, as it stands now, requires gross negligence and recklessness depending on the standard of a reasonable man. 18. After all that has been said and done, Mr. Martin directed our attention to a passage in Lord Diplock's judgment at page 904 in which Lord Diplock said:
19. That being the test and applying that test to this evidence of this case, we are of the opinion that it must have been obvious, days if not weeks before the death of the deceased child, to the appellants that she was in need of food and in need of medical attention. They deliberately, persistently, denied her until it was far too late, namely, the 10th August. As a result, not only that the child suffered in health and injury, she also died. For these reasons, despite the misdirection, we are of the opinion that, had the jury been properly directed as to the law that a subjective test was required, the jury would inevitably have returned the same verdict of guilty of wilful neglect. For these reasons, we would apply the proviso and accordingly leave to appeal against conviction in respect of all counts is refused. 20. We now come to the question of sentence. The sentence in respect of the second count is the maximum. The sentence in respect of the first count of manslaughter is by no means too excessive. We find that generally that sentence is proper. However, in her very strong plea in mitigation, Miss Leong directs our attention to the fact that there are still four other children towards whom the appellants had accorded no ill treatment or neglect. They ranged from the age group of three to ten years old. It will be very harsh on them to be deprived entirely of parental care. Apparently, their grandmother, the first appellant's mother, had to give up her job and move from her own residence to the appellants' flat in order to look after these four grandchildren. They are now depending for subsistence on social welfare grants. Needless to say, in a case of such gravity, we have very little sympathy for the appellants themselves. However, having regard to the four young children who will be deprived of their parental care and any relations with the appellants for a long time, we are prepared to temper justice with mercy. For these reasons, we are inclined to reduce the sentence of five years to imprisonment of three years in respect of the first count. We do not interfere with the sentence of the second count because it will be a concurrent sentence. The overall sentence, to our mind, would be proper in the circumstances. Accordingly, the appeal against the sentences allowed to the extent that the sentence of five years for the first count is reduced to three years imprisonment.
Representation: Miss J. Leong & Mr. H.L. Wong (D.L.A.) for appellants Mr. Martin, Crown Counsel for respondent (1) (1980) 3 A.E.R. 899 |
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