CRIMINAL CASE NO. 432 OF 2010
COURT: This defendant pleaded guilty at committal on 17 December 2010 to one charge of Manslaughter, contrary to Common Law and punishable under section 7 of the Offences Against the Person Ordinance, Cap. 212.
The particulars of the offence allege that on 22 April 2010, the defendant unlawfully killed Janus Gurung. The victim was the son of the defendant and his wife, and at the time of his death was aged 2½ months. His date of birth was 16 January 2010.
On 1 February 2011, the defendant confirmed his earlier plea and confirmed too the facts that he had admitted before the Magistrate when he entered his original plea. Sentence was adjourned until 3 March 2011 in order to obtain an updated psychiatric report. That has been obtained and explained to the defendant.
The facts show that the deceased was the first child of the family. He had been born full-term by Caesarean section and at birth weighed 3.3 kilograms. There were no antenatal or postnatal problems, and the health of the deceased was unremarkable.
On 11 April 2010, at 2025 pm, the defendant and his wife brought the unconscious bady to the A&E Department of the Ruttonjee Hospital. Dr Wong Mei-kam examined him and found he was unconscious, cyanosed and not breathing, but still had a pulse. He was resuscitated and intubated. The doctor saw a scalp haematoma over the left side of his head, a 4 to 5‑centimetre bruise on the left side of the abdomen, and an x‑ray revealed a fractured skull and rib fractures.
Dr Wong concluded that the baby had suffered serious injuries and was in a critical condition, so transferred him to Queen Mary Hospital for emergency treatment.
When Dr Wong asked the defendant how the injuries had occurred, he was told that he had accidentally dropped the baby on the floor.
The deceased was transferred to Accident & Emergency at Queen Mary Hospital at about 2240 hours and was attended by a trauma team in the Paediatric Intensive Care Unit. The deceased had no spontaneous respiration. His pupils were fixed and dilated. He had bruising to the left parietal skull region, skull fractures, epidural and subdural haemorrhages, and severe cerebral oedema with obliteration of both lateral ventricles of the brain.
A CT scan was done and showed multiple fractures of the ribs with callus formations on the right fourth, fifth and sixth ribs and on the left fourth rib. Fresh fractures were seen on the right third rib and the left third, fifth, sixth, seventh and eighth ribs. Part of the spleen was lacerated, and an X‑ray showed there was a fracture over the left parietal bone and the right occipital region. There were bruises to the abdomen, a scalp haematoma and suspected left retinal haemorrhage.
The deceased’s condition was assessed as critical, and the doctors concluded that the multiple injuries had been inflicted at different times. An ophthalmologist later examined the deceased and found in addition that there was a vitreous haemorrhage in his left eye and that the pupils of both eyes were fixed and dilated. These symptoms could indicate intracranial haemorrhage and/or shaken baby syndrome.
Despite intensive medical care and attention, the deceased’s condition did not improve but deteriorated. He had no spontaneous movement, no response to pain stimulation, no cough or gag reflex, and his pupils remained fixed and dilated.
The deceased was certified dead on 22 April 2010 at 1251 hours.
On 27 April 2010, the Forensic Pathologist performed an autopsy and confirmed the subdural and epidural haematomas, cerebral oedema, skull fractures, multiple rib fractures, a lacerated spleen and multiple organ failure. There were fractures to the vault and base of the skull, extradural and subdural haemorrhaging, subarachnoid haemorrhage, hypoxic brain, and fractured ribs.
The cause of death was given as “Fractured Skull with Brain Injury”.
In his report, the Forensic Pathologist opined that the injuries on the head of the deceased were the result of an impact against a hard object. The rib fractures and rib fractures with callus formation showed acute and chronic injuries. The injuries were of different ages and inflicted at different times.
Additional medical opinions were provided after further inquiry. Dr Choi concluded that the injury to the brain was acute and likely to have been inflicted on the same day as the admission or, at most, one to two days before the admission.
The Forensic Pathologist, after watching the reconstruction of the first Video Interview with the defendant, concluded that the head injuries occurred on the day of the admission and were consistent with what was demonstrated by the defendant in the video reconstruction.
Dr Choi considered that the time of infliction of the new rib fractures – that is, the fractures without a callus – could vary from the date of the admission to several weeks before. The older fractures – those with a callus – were likely to be more than two to three weeks old, as this was the minimal time after which a callus could be detected on an X-ray.
The Forensic Pathologist, having watched the reconstruction and the interview, considered that it was unlikely that the callused fractured ribs could have been the result of an injury three days prior to the admission as the defendant had claimed. It was his opinion that it was far more likely to have occurred at an interval of perhaps two weeks before, if not longer.
The defendant was interviewed first on 12 April 2010, having been cautioned for the offence of child abuse. He said he was on leave on 11 April. He was at home watching television and he drank a large bottle of beer. His wife returned home at about 1830 hours, bringing a female friend who also had a young baby. The friend left at 2000 hours, and the defendant was left alone with his baby son.
He claimed he was tipsy because he had finished the bottle of beer. He said he wanted to feed the baby, and put his left hand across the back of the baby’s waist. He lifted the baby, intending to swing and/or propel the baby into the cot. Unexpectedly, the baby’s head bumped against the wooden side of the cot, and the baby dropped to the floor. The defendant picked him up and put him against his shoulder and patted his back with great force because he was drunk.
It was his contention that the baby had bumped his head against the edge of the bed, and although the defendant stuck his foot out to try and catch the baby, the baby still fell. At that time, the defendant said the baby was unconscious and his body was stiff. He was unable to say which part of the body had struck the floor. The defendant said he did not notice any banging sound, any bleeding or any crying, but saw that the baby was unconscious. His wife returned. At that time, the defendant was pushing the baby’s chest to apply resuscitation.
The baby was taken by taxi to the hospital. The defendant said he did not tell the doctors about his propelling or throwing of the baby into the cot because he was frightened.
He admitted that on a separate occasion, three days before, he had punched the baby’s chest. He revealed that fact after the police had told him about the broken ribs, the bruises to the abdomen and the internal haemorrhaging of the pancreas.
In relation to that earlier incident, the defendant said he was very drunk and punched the baby with his fists while the baby was lying face upwards on the bed. Both punches were thrown with all his might, and he noticed that the baby had a “painful expression”, but stopped crying. That night, his wife saw the bruises but apparently thought it was nothing unusual.
The defendant said that his reason for punching the baby was because the baby cried, and this annoyed him. He said that on 11 April 2010, he really hit the baby many times, but did not remember what part he hit, or how he had hit him.
The defendant demonstrated on a videotaped reconstruction, using a doll representing the baby, what he said he had done on 8 April and 11 April 2010. On 8 April he had hit the deceased on two separate occasions, one after the other. He was watching television and had drunk a lot of alcohol. He heard the baby crying, and thumped the baby once, using a hammering motion from up to down with his closed fist. He returned to watch the television, but soon after, the baby cried again, so the accused hit him again with the same motion. He described the deceased at that time as having a “pained, abnormal expression.”
On 11 April 2010, the defendant said he heard the deceased crying in the bedroom. He went in, and struck the baby once on the body. The video reconstruction showed that he used his left hand to lift the baby from the back waist, intending to get him into the cot next to the bed. The video appeared to show that the baby came out of his hand, struck the side of the cot, and fell to the ground. The defendant demonstrated that he stuck out a foot to try and catch the baby.
He picked up and held the baby, patting him forcefully on the back. The defendant said he did not know what he intended to achieve by patting with such force. He said that he then discovered the baby was unconscious and abnormal.
The defendant admits and accepts that he deliberately assaulted the deceased on 11 April 2010, which caused a number of injuries, including the head injuries which led to the deceased’s death. He also admitted and accepted that he had committed other deliberate assaults on the deceased prior to 11 April 2010, and the results of those actions are shown in the medical findings.
Psychiatric reports were obtained at the time of these offences. In April 2010 the defendant was examined by two visiting psychiatrists, Dr Choi Wing-kit and Dr Lui Sing-heung, while he was detained at Siu Lam Psychiatric Centre. Their main task was to see whether the defendant was fit to plead, and they concluded that he was. Their psychiatric conclusions were very similar.
The defendant and his wife were both reluctant participants in a marriage arranged by their parents in India in 2005. The defendant said he had wanted to continue with his studies and his then job as a teacher. In 2006 the couple came to Hong Kong as the defendant’s parents-in-law were resident here. The defendant worked as a waiter, then as a bartender, but began drinking himself.
In 2008, the defendant recalls he was feeling ill, and his wife took him to a doctor, who referred him to a private psychiatrist. That psychiatrist reportedly found that he was mentally fit, but that he must stop his heavy drinking. There was otherwise no history of abuse of drugs, or mental illness.
The defendant was not prepared to have a child. The pregnancy was not planned, but his parents-in-law did not agree to the abortion that was suggested. They promised the couple support with child care, but six weeks after the child was born, the in-laws returned to India.
Both psychiatrists considered that the defendant was mentally stable and did not require psychiatric intervention. However, they noted that he appeared to have had problems adjusting to marriage and life in Hong Kong.
The defendant resented the baby, and continued to drink heavily after the baby was born. He describes his resentment and anger in his Video Interview, and he claimed at one point to have seen the baby as a personification of evil.
The defendant was a man of 28 at the time of the offence. He was educated, albeit not to such a high degree as he might have wished. He resented the baby, and was angry with him, an explicable but immature attitude, which caused him to treat his son well at times but not at others.
Quite clearly, by these attacks he intended to cause harm and assuage his frustration. From what he told the police and the psychiatrists, he claimed he was very drunk at the time of each of the incidents he refers to in his interviews.
The evidence of previous fractures shows that the baby must have been in a great deal of pain and distress at whatever time they were inflicted. The dreadful injuries were inflicted by one of the two primary carers, from whom the child had the right to expect protection and care. The first incident, whether three days before or two to three weeks before, was recounted in a very graphic manner, and shows the deliberation with which the defendant acted.
It is not clear whether or to what extent the defendant’s wife was aware of her son’s injuries or how and by whom they had been caused. The defendant said several times in his video interviews that his wife did not know about the injuries, although he suggested that in the later incident, when she did discover marks on the body of her son, she did nothing about them as she considered them unremarkable.
This was a case where an adult male, fuelled by his own heavy drinking – drinking about which he had been warned – inflicted serious injuries on his son because he was angry at that son’s existence.
The courts must take a very severe view of acts of this nature committed in the manner that they were. Society, through the courts, tries to ensure that children are protected, and when that protection is ignored, abused, or removed by the parent or parents, the court must consider sentences of specific and general deterrence.
Manslaughter, it is said, is one case where a court cannot easily or conscientiously impose a starting point as if the facts of manslaughter situations are so numerous that precedent cases are of little help in assessing sentence.
In considering this sentence I have taken into account the unattractive facts of the case. I have noted that it was a very serious attack on a baby aged 2½ months. I have watched the video of the reconstruction and noted the demonstration by the defendant, although given the severity of the injuries, it appears more likely that they were caused by the defendant throwing the baby against the floor or the cot, rather than, as he claims, by an accidental dropping of the baby.
The accidental nature of the injuries as claimed by the defendant is given the lie by his account of forcibly patting the baby’s back, which appears to have been done with such vigour that fresh fractures were caused to the ribs.
The only mitigation in this case is the defendant’s plea of guilty, and in sentencing I take that into account.
After considering the psychiatric reports obtained by the Magistrate and also the updated report, I am satisfied that the defendant was not suffering from any psychiatric condition at the time he killed his son. He may have been drinking too much and too often, but according to his account of seeing the psychiatrist in private practice, he had been warned about that drinking, but chose to continue with it, with the catastrophic result that he killed his son.
He inflicted blows on this baby that an adult would have been unlikely to have withstood without pain, and handled him so roughly and carelessly that he dropped him while throwing him or manhandling him into the cot. What he described as his way of taking out his frustration and anger on his son, knowing that what he was doing was wrong, shows he could have been in no doubt that his actions would cause physical harm to the child.
Taking all these matters into account and noting the need for general and specific deterrence, I sentence the defendant to 10 years’ imprisonment.