HKSAR v. Lam Wai Man

CACC000118/1999

CACC118/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 1999

(ON APPEAL FROM HCCC 170 OF 1998)

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Coram: Hon. Stuart-Moore, V.-P. and Mayo, J.A.

Date of Hearing: 22 September 1999

Date of Judgment: 22 September 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 25th February 1999, having pleaded guilty to charges of cruelty to a child and manslaughter, the Applicant, then aged 22, was sentenced by Stock J. to periods of imprisonment amounting in total to nine years. The Applicant now seeks leave to appeal against this sentence.

2. The charge of cruelty to a child, contrary to section 27(1) of the Offences Against the Person Ordinance, Cap. 212, alleged that the Applicant:

"between the 1st day of November, 1997 and the 24th day of December, 1997 in Hong Kong, being a person who had attained the age of 16 years and having the custody, charge or care of one Cheung Lap-yin, a child under the age of 16 years, wilfully ill-treated the said child in a manner likely to cause the said child unnecessary suffering or injury to his health."

3. The second charge of manslaughter alleged that the Applicant unlawfully killed Cheung Lap-yin (the victim) on 5th January 1998.

4. The victim, born on 10th March, 1996, was 21 months old at the time of his death. The Applicant was his mother. In December 1996, the Applicant went to live at a different address to the victim's father. The victim remained with his father who employed a child-minder to look after him.

5. Almost a year later, in November 1997, the Applicant was given the father's consent to take the victim to stay with her for a short while. However, she later refused the father's request to return the victim to him. By December 1997, the victim had still not been returned to the safe custody of his father. The sad facts reveal that during the time the victim was under the control of the Applicant, he had been frequently subjected to acts of extreme cruelty.

6. Matters came to a head on 22nd December 1997 when the Applicant presented herself at the surgery of a doctor. She burst into the consultation room carrying the victim and in the company of a man of about the same age as herself. Dr. Chiu's examination of the victim revealed that he was breathing but his eyes were wide open and staring. He did not respond in anyway to the doctor and he was apparently in a semi-conscious state. The doctor observed that there were large bruises on the boy's forehead and both sides of his face and that there were bruises on the child's abdomen and on his back and cane marks on both calves. The doctor questioned the adult about how the injuries had been caused and the Applicant said that two or three days earlier the boy had fallen off a small tricycle and injured his face. The Applicant then admitted that she had caned the child when he was naughty. The doctor was suspicious about how the victim had sustained his injuries and, although he did not believe the child's life was in immediate danger, the doctor did find evidence that the victim was suffering from a serious brain injury and that he was in critical condition. Dr. Chiu advised that the child should be rushed to Yan Chai Hospital for immediate treatment. He said that he would call an ambulance but, at that stage, the male who had arrived with the Applicant suddenly grabbed the victim saying that he had a car outside so that no ambulance was needed. He rushed out of the surgery with the victim and the Applicant. The doctor naturally presumed that the couple would take the victim to hospital immediately as they had been instructed. In fact, the Applicant did not follow Dr. Chiu's instructions and, instead of taking the victim to hospital for treatment, she took him back to the house where she was living.

7. Shortly after 7 p.m. on the following day, 23rd December 1997, a doctor was called to the Emergency Room of Yan Chai Hospital to examine a critically ill child who turned out to be the victim. At this time the Applicant was with the child. The doctor found that the victim had suffered a cardiac arrest and had no breathing, pulse or heartbeat. The doctor also noticed that the victim had multiple injuries all over his body. After emergency treatment, the doctor managed to restore the child's heartbeat but the victim remained in a comatose state. After X-rays had been done and a CT scan had been taken, the victim was sent to the Intensive Care Unit for further management. Serious brain damage was revealed. The doctor then questioned the Applicant about how all the victim's injuries had occurred. She reiterated the story she had told Dr. Chiu about the child falling off his tricycle. On this occasion, she did not admit to caning the child. She said that she did not know how the child had suffered such marks, suggesting when she said that that the marks were already there when she collected the child from his father on 2nd November. She made no mention to the hospital doctor about her visit the previous day to a doctor's surgery.

8. A report of suspected child abuse was made to police and, as a result, a forensic pathologist, Dr. Poon Wai-ming, was called to the Intensive Care Unit of the hospital to examine the victim on 24th December. Dr. Poon found multiple injuries over the child's head, torso and limbs. These injuries had clearly been caused in different ways and were of varying ages and severity but all of the injuries had occurred within the previous one to two weeks. Other than many large and small bruises and abrasions, Dr. Poon also found evidence of ligature marks indicating that the child had been tied up around the top of his arms and his ankles. In addition, he found burn marks on the sole of one foot and cane marks on the forearms, buttocks and lower limbs.

9. After the victim's death on 5th January 1998, Dr. Poon conducted a post-mortem examination. In his report, he set out details of 36 separate external injuries found on the victim's body. The internal examination showed that the brain was severely damaged and swollen. Dr. Poon found that the head injuries were the cause of death. He found nothing else wrong with the child other than the head and brain injuries which could have accounted for the cardiac arrest suffered by the child on 23rd December.

10. After the hospital doctor had made a report to the police, the Applicant herself was questioned by a police officer in the hospital. She repeated her story of the fall from a tricycle explaining that it had occurred in a park outside her house. On this occasion, she did admit that she had been the person who had caned the child when he was naughty.

11. The Applicant was arrested. She made a number of statements thereafter. She told the police that since she had left her husband she had been renting a room in a house with a family. The Applicant admitted that she was responsible for looking after her son, feeding, dressing and bathing him. Again, she admitted caning the victim when he was naughty and admitted tying him with nylon string to the bed or into a push chair to restrain him when he was disobedient, for as long as two hours at a time. She gave various explanations for the other injuries suffered by the victim, saying that he had bruises on his head from falling off the tricycle, from bumping into furniture and falling onto the ground. The Applicant denied ever hitting her son, other than caning him, although she said she pushed him once on 18th December and he had fallen over and bumped his bead with no serious result. She also denied that she had ever seen anyone else who lived in the house ill-treat the victim.

12. The Applicant admitted to police that she had taken the victim to Dr. Chiu on 22nd December. She did that because the victim, she said, looked pale and seemed short of breath. She admitted that she had been advised to take him to hospital. However, she denied that the doctor had stressed the case was so serious and so she had taken the child home instead. The Applicant also described the victim as having been "perfectly alright" once he got home. During the following day, 23rd December, he was eating and playing and interacting with others quite normally. It was not until 6.30 p.m. that he appeared to be unable to breathe.

13. The prosecution's case in the admitted facts was put in this way:

"If the defendant was not actually responsible for inflicting the fatal injury, she certainly failed to prevent the injury being inflicted or to alter the circumstances in which the fatal injury came to be inflicted.

The medical experts also state that it was not possible for the child to have been fully conscious and able to eat and play on 23rd December 1997 as described by the Applicant. They base their opinions on the serious state of the child when seen by Dr. Chiu on 22nd December, the child's totally collapsed state when admitted to Yan Chai Hospital some twenty four hours later from which he never recovered consciousness and the subsequent findings of severe brain damage. The experts say that at best, the child would have been very drowsy and just lying down in a state of semi-consciousness.

The doctors further state that if the brain injury had been treated in hospital immediately after it had been detected by Dr. Chiu on 22nd December, the child would have had a 70-80% chance of survival but that by the time the defendant did take her son to hospital the chance of his life being saved was negligible, only in the region of 5%."

14. It goes without saying that the medical evidence demonstrated that this was a classic case of child abuse. The majority of the injuries which had been found were non-accidentally caused, and the number, pattern and age of the numerous injuries indicated that the child had been physically abused over a period of at least one or two weeks. There was evidence from the post-mortem of at least five separate impacts of the head. The fatal brain injury may have been caused by one or more severe blows, possibly with an element of shaking. The forensic pathologist was able to give examples of the sort of impact required to cause such diffuse brain injury. These included hitting or beating the head with a hard object or hitting the child's head forcefully against a hard surface such as a wall. The findings of retinal haemorrhage, subdural haemorrhage and diffuse axonal injury as seen in this victim were associated with high acceleration - deceleration injury. This simply means that the victim's head had been propelled forward with force causing the 'acceleration' and then had suddenly decelerated as it suffered a blunt impact against a hard object.

15. The Applicant pleaded guilty to the cruelty charge on 19th January 1999. Originally she pleaded not guilty to manslaughter but, on 21st January 1999 her plea of guilty to this charge on the ground of "gross negligence" was accepted. The judge took nine years as an appropriate starting point for the cruelty offence and twelve years for the manslaughter stating that he felt the totality of the sentences should be nine years. Accordingly, giving appropriate discounts for the pleas of guilty, he imposed six years for the first offence and eight years for the second and ordered that one year on charge 1 should run consecutively to the eight years he had imposed on the manslaughter charge.

16. Mr. McGowan, on behalf of the Applicant, principally submits that the starting points taken by the judge were too high and that the judge erred in the course he adopted by ordering that part of the sentence for the offence of cruelty should be consecutive. Although he gave little emphasis to this argument, Mr. McGowan submitted also that no discount was given for good character. Dealing straightaway with the latter submission, the Applicant was given the full discount for her pleas of guilty which in the present circumstances was quite sufficient to take account of character considerations.

17. Mr. McGowan, in advancing his argument that the sentence was wrong in principle or manifestly excessive, sought to illustrate the point he was making by a comparison with a number of other cases. There were, of course, very few examples of grave abuse by a mother to her child in the same category as this. We gained little assistance from the cases which were cited.

18. It is abundantly plain that the judge assessed with the greatest care the Applicant's culpability. He said when passing sentence:

".... this is not just a case of a mother standing by and failing to prevent or to remove a child from the scene of assault by another. It is a case in which you were pro-active in abusing the boy and you created or you assisted in creating the atmosphere of abuse which this unfortunate child was made to endure.

In my judgment, therefore, even if you did not yourself inflict all the injuries which were found upon the boy, you bear significant responsibility for them in any event. The injuries were extensive; his body was covered in injuries. His head, his face, his inner lip, shoulders, chest, knees, buttocks and burn marks to the soles of his feet - there are 36 items referred to by the pathologist ..... and even some of those individual items describe more than one injury.

The suggestions made by you and by your boyfriend that the child was prone to rebelliousness and to throwing himself about and falling and hurting himself by accident are suggestions which are contradicted by the medical evidence ..... as well as by the evidence of the boy's health and behaviour before he was moved into your household. I reject the suggestion that the injuries were caused by the child falling off a toy vehicle or by hitting his head against a cabinet or any such accidental fall. The injuries were deliberately caused."

19. Earlier the judge had said:

"For the purpose of the exercise of sentencing you, I am bound to assume in your favour that you were not the sole assailant of this child and I do not sentence you on the footing that you struck the blow which caused the child's death."

20. In dealing with the manslaughter, the judge later said:

"The act of gross negligence in not having this child treated was a grave dereliction of your duty. I am also bound to take into account, as I have previously intimated, the context in which the injuries which you failed to have treated occurred, namely that those injuries were deliberate injuries; you knew they were deliberate; and you yourself had created or significantly contributed to the climate of abuse in which those deliberate injuries were caused."

21. This was a very grave case of its kind. The cruelty had been ongoing for some time and was deservedly reflected in a partly consecutive sentence. Legislation has in recent years increased the maximum sentence for ill-treatment or neglect by those in charge of a child from two years to ten years in order to enable the courts to be equipped to deal with cases as grave as this one. We have found no reason of any kind to interfere with the sentences imposed. To find otherwise, in circumstances such as these would be, as Miss Ho submitted on behalf of the Respondent, to ignore a cardinal principle of sentencing which is to take into account the consequences to the victim. There can be no shrinking from the plain fact that this very young victim eventually died at the end of what amounts to various forms of torture spread over about a fortnight while he was in the care of the Applicant. The sentencing judge took this into account when concluding that the Applicant was deserving of a sentence for cruelty after trial which was only a year short of the maximum. He was fully entitled to do so. The starting point for manslaughter in such circumstances was justifiably longer. The judge's approach to the sentences he imposed was, in our view, entirely appropriate.

22. The application is dismissed.

Representation:

Miss Winnie Ho, S.G.C. for D.P.P./Respondent

Mr. James McGowan instructed by Messrs. Wong, Packwood & Co. for Applicant.