CRIMINAL CASE NO. 109 OF 2010
She was originally charged with two counts of murder, to which she had offered pleas of manslaughter on that basis. Those pleas had not been accepted by the prosecution and had correctly, in my view, been rejected at that stage.
The defendant killed her two children by giving them half a sleeping tablet in orange juice to ensure that they slept, and then burning charcoal in the bedroom, having turned off her mobile phone and the landline, and sealed the bedroom.
At the time she began to burn the charcoal, there was so much smoke that Fire Services and the police were called. There was a 10-minute delay before the accused opened the door to them. The firemen checked the sitting room and kitchen, but could find no sign of the fire or charcoal. The accused convinced them that the smoke had been caused by her burning paper offerings to the gods.
The firemen unfortunately did not search the two bedrooms, which had closed doors, as they were discouraged from doing so by the accused, who had behaved in an irritated fashion when they came to investigate, and who then asked them not to disturb her sleeping children as they had school next day.
It was most unfortunate that the firemen allowed themselves to be fobbed off in this manner, as it is likely that the children could have been saved by intervention at that time. The officers apparently were fooled by the tidy appearance and apparently rational manner of the accused, so accepted her explanation, and left the premises.
The accused had intended to commit suicide herself because of problems with her relationship with the man to whom she considered herself attached as second wife. She feared that her two children would not be loved or cared for properly after her death either by their biological father, or by her maiden family, so she resolved to kill the children at the same time as herself.
After the firemen and police left, the accused continued with her plan to burn the charcoal, and eventually went to sleep in the room with the children. She awoke some hours later to find her children dead from carbon monoxide poisoning and to the realisation that she had survived.
Autopsies conducted by the Forensic Pathologist established that the two children died of carbon monoxide poisoning. The victim of Charge 1 had 66 per cent saturation; the victim of Charge 2, 46 per cent saturation. The accused suffered carbon monoxide poisoning also, but the saturation level was only 17.5 per cent, significantly below the 70 per cent saturation level at which an adult would normally die. This could have been the result of her having taken an unknown quantity of sleeping pills which reduced her level of respiration, and thus her intake of the carbon monoxide.
At trial in evidence the accused claimed, despite the pleas that she had entered at the outset of the trial, that she had not had any intention to kill her children but only herself, and she maintained that stance during her evidence.
The jury was asked to inform the court, in the event that they concluded that the killings were manslaughter, whether their decision was based on lack of intent to kill or cause grievous bodily harm, or on the basis of diminished responsibility. Clearly, the jury was satisfied that the elements of murder had been established before they went on to consider the diminished responsibility, which was their eventual verdict.
The accused had no previous formal psychiatric history. Psychiatric reports were produced. The first report was obtained about two weeks after the killings, and defence reports were sought only nine months later.
Although there are some inconsistencies and changes in the accused’s account of various events, and although none of the reports contain information independently of that given by the accused herself, there was a consensus by the psychiatrists that she was, in all likelihood, suffering an adjustment disorder at the time of the killings.
The jury clearly considered that the disorder and the stressors under which she was operating at the time showed that her responsibility for her conduct was substantially impaired.
A number of stressors had operated on the accused for the 16 years that she had been in a triangular relationship with the father of her children and his cohabitee, Madam Leung, who was treated by the accused as the first wife. These were set out in detail in the psychiatric reports and in the accused’s evidence at trial.
The accused had three children by Mr Li, who was some 20 years her senior, and she lived with and cared for the two younger children, while the first child, a son, lived with Mr Li and the first wife. The accused did have regular access to the son and maintained a regular sexual relationship with Mr Li, although she and Mr Li did not and never had lived together in a single household.
The triangular relationship was maintained without significant problems, and Mr Li, who is not a poor man, maintained both households. The accused had fears, however, for the future security of her children, and had some concerns as to whether her relationship with Mr Li was becoming more distant.
She began tutoring children for school exams. This was not so much for the extra money but to improve the social contacts of her second son, who was epileptic. She was clearly a good tutor and a conscientious one, as was attested to by parents and pupils who gave character evidence at the trial. The accused charged very modest fees, so was unlikely to be profiting in any substantial way from her work.
A crisis point was reached in the triangular relationship a few days before the killings. In the course of a major argument, the accused was told by the first wife that Mr Li had many other wives and children, and the accused then became concerned that he did not love her or care for her or her children. The first wife also revealed that Mr Li, who operated a shrine for worshippers, was a religious swindler, and that he did not have, as he claimed, the supernatural powers which enabled him to act as liaison between worshippers and the gods.
The accused, who had met Mr Li through the shrine, had been seduced by him in a claimed purification ceremony 16 years before, and she still called him “Master”. Understandably, she found this revelation about his swindling very upsetting.
It was not clear from the evidence, however, whether these allegations about the other wives and children were true or simply a means by which the first wife sought to undermine the relationship between Mr Li and the accused.
The evidence given in court about the shrine and the religious practices sounded all too believable, however, although Mr Li denied being a religious swindler.
The accused feared that what she had been told might be true, and she became obsessed with contacting Mr Li in the hope that he would reassure her that what she had been told was not true. When, soon after the argument, she could not contact Mr Li despite numerous attempts, and when he did not himself ring her to tell her that it was all untrue, she began to show depressive signs which led her eventually to decide to kill herself.
In this state, she decided to commit suicide, but as she considered that only she loved the two children in her care, she decided to kill them also.
Sentences for offences of manslaughter on the grounds of diminished responsibility are always difficult and must, of necessity, be case specific. The range of sentence is from probation orders to life imprisonment, and it is one class of case where it may not be possible or helpful to fix a starting point for sentence. The court must examine what the accused has done, determine the degree of her responsibility at the time, consider whether she might pose a risk or danger to herself or others, consider what retribution is required of her, and what effect the sentence should have in deterring others from following her example.
Society has a right to expect that its adult members, who are the parents, carers and guardians of children, show mature attitudes in dealing with the vicissitudes of their lives, and where matters prove difficult, to seek informed assistance to solve those problems.
It is not possible to countenance or condone a solution which, as in this case and, tragically, many others in Hong Kong, involves killing children to give them a happier life; or to shield them from a world that the perpetrator has found too complex to cope with; or to exact revenge on another party, usually the other parent.
Here, the accused decided to kill her children because she could not think of other ways to deal with her relationship problem other than to commit suicide. She was an intelligent woman, and she was not a young woman at the time. She was well aware of her position, and she could, at any time during the 16-year association with Mr Li, have sought help from the police, social welfare, psychiatrists, a lawyer, or even her own family, who were living, albeit unbeknownst to them, quite close to her.
She chose not to do so, and appears to have been reasonably settled within the triangular relationship, despite the difficulties of running her household as virtually a sole parent and coping with the neighbours’ curiosity about the absent father and husband.
The degree of responsibility for this offence is at quite a high level, in particular with the very calculated way in which the accused dealt with the Fire Services and the police. She had begun her plan. She was interrupted part-way through it, and she made sure that she completed her plan by making sure that the bedrooms were not searched. She also delayed the opening of the door, no doubt to conceal the charcoal and the fire that she was lighting.
Although in later pschiatric reports she claimed that this part of the proceedings were a blur and that she had limited memories of it, her comments to Dr Ho in the first report make it quite clear that she knew what she was doing at that time.
I have had put before me a number of letters from persons who gave evidence of positive good character in respect of this accused, one from a student, five from parents of students, one from a grandparent of a student, two from teachers of her sons’ and daughter’s school, and a letter from a District Councillor. All of them attest to the positive good character of the accused, and I have no reason to doubt that she was a very satisfactory tutor and a very caring one.
I have also looked at the cases referred to by counsel on behalf of the accused, but, as I have said, these cases are fact specific, and each case must be looked at on its own facts.
In this particular case, I take into account the stress factors which operated on the accused, her age, her clear record, her positive good character, the fact that pleas were offered at the beginning of the trial, albeit not accepted; against that, I have to take into account that this was not a spur of the moment event.
The catalyst was her relationship with Li, and she had had opportunities to resolve the situation and remove herself and the children from Mr Li’s influence in the past. There was some degree of preparation in respect of the plan that she conceived to kill herself and the children. She had the opportunity halfway through or part-way through her plan to change her mind. She had the opportunity to stop, but she deliberately ensured that firemen and the police did not see inside the bedrooms. She complained in evidence that she was waiting for a call from Mr Li, but the fact that she turned off the telephones showed that she was intending to go ahead with her plan regardless.
When she recovered and discovered that the children were dead, she did not immediately seek help, but she rang Madam Leung and told her what she had done before; she then made a report to the police.
As I have said, it is not just a question of dealing with the accused in this case. It is also a question of showing society’s abhorrence at what was a deliberate plan to kill children who had no choice about what was happening to them.
The cases that have been cited by defence counsel in most cases involved adults who knew what they were doing, or agreed to what was being done to them.
I consider that this matter should appropriately be dealt with by a custodial sentence. I take into account that there are two children involved. I take into account the pleas, and on each charge I impose a sentence of 7 years’ imprisonment, and order that those sentences will run concurrently.
Defendant's leave to appeal against sentence granted and appeal allowed by Court of Appeal. Please refer to CACC475/2010 dated 20 September 2011