Secretary for Justice v. Chan Man Yum Candy

CAAR 1/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2010

(ON APPEAL FROM HCCC NO. 183 OF 2009)

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BETWEEN

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Before: Hon Hartmann JA, Fok JA and Lunn J in Court

Date of Hearing: 17 June 2011

Date of Handing Down Judgment: 14 July 2011

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.This is an application made under s. 81A of the Criminal Procedure Ordinance, Cap. 221, for the review of a sentence, leave to apply out of time having been granted on 27 January 2010.

2.On 16 November 2009, the respondent in this application, Ms Chan, pleaded guilty in the Court of First Instance before Mrs Justice Barnes to one count of manslaughter, namely, to the unlawful killing of her 13-month-old adopted daughter, Fu Najuan, who had been given the new name Chan Yin Tung.

3.On 4 January 2010, at the time of sentencing, the judge had before her various reports:

(i)   two reports, dated 29 September and 5 November 2009 from Dr Roger MK Ng, a consultant psychiatrist at Kowloon Hospital;

(ii)   a report, dated 8 December 2009, from Ms Yvonne KS Lee, a clinical psychologist; and

(iii)   a report, dated 9 December 2009 from Dr WK Choi, an Associate Consultant Psychiatrist.

4.After considering those reports as to the state of Ms Chan’s mental health at the time when she committed the offence, the judge sentenced Ms Chan to a term of three years probation subject to the following conditions.  First, that Ms Chan be of good behaviour and keep the peace.  Second, that she keep in contact with her probation officer in accordance with the officer’s instructions and, if required, receive home visits from the officer.  Third, that she continue to attend regular psychiatric follow-up treatment and receive psychological counselling as directed by her probation officer.  Fourth, that she participate in such therapeutic and social support programs as her probation officer should direct.

5.It is in respect of this sentence that the application for review is brought, the submission being made on behalf of the Secretary for Justice that it is manifestly inadequate and/or wrong in principle.

Background

6.In March 2008, Ms Chan adopted Fu Najuan from an orphanage in the Mainland and on 2 August 2008, all necessary formalities being completed, was able to bring the child to Hong Kong to live with her.

7.At the time when she brought the child to Hong Kong, Ms Chan was 50 years of age and unmarried.

8.While Ms Chan had been successful in her career, most of it spent working in Japan as an interpreter, her personal life had been a disappointment for her.  As a young woman she had undergone the trauma of being raped.  There followed several failed romances.  Her hopes for a contented married life with children did not materialise.

9.Being sufficiently financially secure, Ms Chan did not need to work.  She therefore spent considerable time with her church group, undertaking various forms of charity work including caring for the very young and the elderly.  However, as she explained to her probation officer and to her psychologist, she was anxious for a child, for someone to love and care for; a companion in her later years.  It was for those reasons that she adopted the baby girl.

10.There is no doubt that Ms Chan took on her new responsibilities with utmost seriousness.  It appears to have been within her character to do so.  In a report dated 8 December 2009, Ms K.S. Lee, the clinical psychologist, described Ms Chan as being “industrious, efficient, disciplined and orderly.”  So that she would have sufficient space in her apartment, Ms Chan arranged for her parents to move out and live elsewhere.  A domestic helper was employed.  Regrettably, Ms Chan was not happy with the caring skills of the helper and terminated her employment.  A second domestic helper was dealt with in the same way.  Thereafter, she took on the full-time caring role herself, doing so with the help of her mother.  There were however problems: profound ones.

11.First, when the child was brought to Hong Kong she was, according to all reports, badly undernourished.  This appears to have been compounded by the fact that the child had difficulty keeping food down.  She would cry often and loudly.  In the result, there were numerous visits to doctors.  Ms Chan’s brother is cited in the report of the clinical psychologist describing the “fatigue and stress” experienced by his sister.  Ms Chan was clearly under stress.  There were, for example, arguments with her parents over issues of child care although, as a result of Ms Chan’s care, the child’s general well-being began to improve.

12.Second, as a result of the economic upheavals that took place in 2008, Ms Chan saw a substantial reduction in her savings, this being an added stress factor.

13.Third, during 2008, both before and after the arrival into Ms Chan’s life of her adopted daughter, Ms Chan’s family became increasingly concerned as to her general emotional health.  In the result, although initially resistant to the idea, Ms Chan agreed to seek medical help.  On 12 August 2008, she went to the General Outpatient Clinic of Kwong Wah Hospital.  In a report dated 29 September 2009, Dr M.K. Ng, a consultant psychiatrist, recorded the fact that she attended the hospital on that date complaining of “reduced sleep, increased talkativeness, agitation and inflated self-esteem for one or two years”.  She was given an appointment to see a psychiatrist on 19 November 2008.  Tragically, Ms Chan unlawfully caused the death of her child before that appointment could be kept.

14.By way of further background, at the hearing of the application, Mr Zervos SC, for the Secretary for Justice, provided the Court with a memorandum from the Kwong Wah Hospital dated 4 November 2008, which was not before the judge, but which detailed Ms Chan’s attendance at that hospital on 12 August 2008 and her referral to a psychiatrist at Kowloon Hospital for definitive diagnosis.  The memorandum noted her attendance at the Kwong Wah Hospital on 26 August 2008 and the fact that she had failed to meet a medical social worker.  A second referral was made by that hospital. There is no dispute that she failed to keep that appointment as well.

15.As to the death of the child, the circumstances are as follows.  On 13 October 2008, Ms Chan was in Shenzhen seeking to obtain repayment of a loan.  It appears that she was unsuccessful.  She returned to Hong Kong in the early evening to collect the child from her mother.  An argument over the feeding of the child took place.  Ms Chan then took the child to her apartment.  On the return to the apartment, it appears that the child was in a state of distress.

16.The manner in which Ms Chan caused the death of her child was witnessed from another building by a Mr Lau Ho Yin.  The statement of facts filed by the prosecution at trial and agreed to by Ms Chan described what was seen by the witness at around 10.10 that night:

“He saw the defendant holding the baby girl upside down in mid-air with her hands and then threw the baby girl onto the ground. At that time the baby girl was around three feet away from the ground. After throwing the baby girl onto the ground, the defendant, once again, lifted up the baby girl’s legs and hung her upside down. She then shook the baby girl up and down for around four to five times.

Afterwards, the defendant moved the baby girl to another room within the same flat and put her somewhere near the window area. Around one minute later, Lau Ho Yin saw the defendant lifting up the baby girl’s legs, hanging her upside down again, and threw the baby girl onto the ground when she walked to the sitting room. Once again, the defendant then held the baby girl’s legs, hung her upside down and threw her down on the ground. She repeated this action for around seven to eight times.

Later Lau Ho Yin saw the defendant bring the baby girl to the toilet area of the flat and rub the baby girl’s breasts with both of her hands for over ten times.  She then moved her mouth towards the baby girl’s mouth for around a minute, looking like she was undergoing artificial respiration for the baby girl.  Afterwards, the defendant wrapped the baby girl with a towel ...”

17.The agreed statement of facts reveals that the defendant entered the Accident and Emergency Department of the nearby Kwong Wah Hospital at 10.28 that night seeking medical help.  From the time when Ms Chan was first witnessed abusing her child until her arrival at the hospital, a period of approximately 18 minutes had passed.

18.The child remained hospitalised until 18 October 2008 when it was confirmed that she was brain dead and, with Ms Chan’s consent, the life support machinery was switched off.

19.The attack on the child had been of the utmost severity, a fact confirmed by the autopsy which, among other injuries, revealed four fractures of the skull.

20.When Ms Chan took the child to the hospital she did not give the true cause of its condition.  Initially, she said the child had fallen off a bed.  However, when interviewed by the police under caution she admitted her actions, expressing her remorse.  She attempted to explain how she had been driven to such appalling acts.  She said that she had returned home from Shenzhen in an exhausted state.  The child, she said, was deep in distress, she kept crying in a piercing manner.  It was impossible to get her to sleep.  She said that suddenly she lost control of her emotions.  However, when she saw that the child was unconscious – clearly then being aware of the full implications of her acts – she said that she attempted to revive the child with artificial respiration.  When this proved unsuccessful, knowing the urgency of the matter, she did not dial 999 but instead went directly to the hospital in the vicinity.

21.All her life, up until that moment, the applicant had been industrious and law-abiding, working often for the less fortunate.  Those who knew her, said that, despite the difficulties she may have had with the child, Ms Chan had a deep bond of affection with her.  There was no indication whatsoever of any earlier abuse of a child.  How then was the inexplicable to be explained?

22.Ms Chan kept her appointment at Kowloon Hospital on 19 November 2008.  Dr Albert Tsang diagnosed her as suffering from “bipolar affective disorder, current episode depressed, mild-to-moderate”.  She was prescribed medication and on his recommendation transferred to Siu Lam psychiatric centre for psychiatric care.

23.While Ms Chan was held in prison on remand – a period of just over six months – she was seen on a number of occasions by Dr W.K. Choi, a visiting psychiatrist.  In his report of 9 December 2009, Dr Choi said the following concerning his first examination:

“… at that time [I] found that she was grandiose, overfriendly and very animated. She was in a much labile and elated mood state. She said she was very happy, just felt like bird singing. She spoke in loud voice and fast pace. She repeatedly interrupted into the doctor’s questions inappropriately and her speech was difficult to stop and follow at times. She was diagnosed as suffering from Bipolar Affective Disorder, Current Episode Manic, and was treated with antipsychotic and mood stabilising medication. Her mood gradually improved with the treatment provided.”

24.As to the nature of the disorder, Dr Choi said that bipolar affective disorder is “a major and serious psychiatric disorder that can have potential of relapse.”

25.As to the cause of Ms Chan’s actions, Dr Choi was of the opinion that:

“Her aggressive acts at the material time of the offence could likely be the end-result of her extreme frustrations at that time, and the significant impairment of impulse control that was directly caused by the active manic symptoms.”

26.He observed that, while Ms Chan complained about the side-effects of the drug regime, she complied with it.  In the result, her illness was under satisfactory control and was in remission.

27.Following her release on bail on 27 April 2009, Ms Chan resumed her treatment at the Kowloon Hospital where she attended regular consultations.  On 7 September 2009 she was transferred to the Community Psychiatric Team under the care of Dr Roger MK Ng.

28.In her report of 8 December 2009, the clinical psychologist, Ms K.S. Lee, noted that Ms Chan accepted that she was the author of the violent acts that had caused the death of a child and was ready for the legal consequences.  She was of the view that Ms Chan’s remorse was “genuine and deep”. 

29.That being said, Ms Lee was of the view that Ms Chan did not have sufficient insight into the seriousness of her illness, a weakness that would have to be guarded against.

30.Ms Lee explained the circumstances of Ms Chan’s actions in the following terms:

“Present infanticide occurred when her bipolar affective disorder was left undiagnosed, unattended and unmanaged.”

31.Finally, since it had been some 18 months since Ms Chan was sentenced to probation, the court called for and was provided with an updated probation report, the report being dated 16 June 2011.  

32.In matters of review of sentence, certainly where there has been extensive delay in bringing the review before the Court of Appeal, as in the present case, the extent to which the offender has complied with any non-custodial order and has been successful in matters of rehabilitation is of relevance.  Even if the Court of Appeal considers a sentence to have been manifestly inadequate, it has a discretion under s. 81A read with s. 81B of the Criminal Procedure Ordinance whether to exercise its powers.  There may be occasions when in light of subsequent events a sentence can be justified or in which the Court would consider it unfair to the offender to increase the sentence.  See Attorney General’s Reference (No. 4 of 1989) (1990) WLR 41, at 46D.

33.As to the contents of the updated probation report, the reporting officer said that Ms Chan has complied with all the terms of the probation order.  The officer’s general prognosis is optimistic.  The officer concluded his report by saying:

“To sum up, the Probationer had complied with the special condition of the Probation Order that she should have regular attendance in psychiatric clinic and clinical psychologist’s appointments. Her emotional/mental condition was reportedly settled under medication treatment. Despite she allegedly experienced the frequent sleepiness and tiredness in the daytime caused by the side-effects of the medications, she was able to do the household chores, handle her investments/speculations on stock market, and maintain regular attendance in church’s activities. It appeared that the Probationer had recovered satisfactorily in her mental condition and rehabilitated well socially with the support of her family and church members.”

Delay

34.In speaking of the updated probation report, we should at this juncture express our concern at the fact that this application for review of sentence has taken so long to come before us for consideration.

35.The application was out of time by only a matter of days.  The reason for the delay was understandable.  That does not give ground for particular concern.

36.What does concern us, however, is the fact that after the filing of the application dated 26 January 2010, it has taken some 17 months for the matter to be heard.  Ms Chan has had to endure that very lengthy period of uncertainty as to whether she will retain her liberty or receive a sentence of imprisonment.

37.We questioned the delay during the course of the hearing and were advised as to its reasons.  We do not seek to point the finger of blame.  Ms Chan was unrepresented until her solicitors gave notice to the court on 10 June 2010 that they represented her.  Some delay, but not of a substantial nature, followed because of the need for those solicitors to have translations made into English of documents.  Although the case was referred for listing on 15 September 2010 it was not listed until 29 October 2010 and the first available date was fixed, namely 17 June 2011.  That is a lamentable state of affairs in a case of this nature.

The judge’s Reasons for Sentence

38.In a full judgment, Mrs Justice Barnes set out in detail how it was that the child came to her death on the night of 13 October 2009.  She noted the extent of the injuries that had been sustained by the child.  She took full cognizance of the nature of the violent acts committed by Ms Chan. The offence committed, she said, one that had resulted in the loss of the life of a baby girl, was “very serious” and if Ms Chan had not been suffering from a mental illness at the time of the death a heavy sentence would have been imposed.

39.The judge recognised, however, that there were special circumstances in the case.  She took into account that Ms Chan was a person who had been willing to help others and who loved children.  The judge continued:

“… since she suffers from mental illness, and unfortunately has not been able to receive treatment on time, under influence of her mental illness, pressure and distress, she committed the offence of manslaughter on the crying baby. This is an extremely unfortunate incident. The defendant killed the baby girl whom she loves very much due to the aforesaid reasons, and in her heart, I accept that she is being tortured mentally.”

40.In light of these mitigating circumstances, the judge decided that the order of probation, the details of which we have set out earlier in this judgment, was the appropriate order to make.  In doing so however the judge recognized that such an order was rare.  She said:

“I, of course, understand that manslaughter is a very serious offence. A probation order is rare under such situation. However, I really believe that this case is a tragedy. If the defendant could have received psychiatric treatment on time at that time, this tragedy might not have happened.”

The issue to be determined in this application

41.It is agreed that the issue in this review is whether the sentence imposed by Mrs Justice Barnes was in some manner wrong in principle or was so lenient as to fall outside the range of sentences which the judge, applying her mind to the relevant factors, could reasonably consider appropriate: Attorney General’s Reference (No. 4 of 1989) cited above.

The grounds of application

42.The submission that the sentence of three years probation imposed by the judge was manifestly inadequate and/or wrong in principle was based on the following grounds.

43.First, a probation order did not mark sufficiently the gravity of the offence, given the seriousness of the violent acts which cause the death of the child.  Ms Chan’s offending was serious and was such as to call for condign punishment.

44.Second, the offence of manslaughter of this type calls for a determinate sentence of imprisonment, its proper length depending on the judge’s assessment of the degree of the offender’s residual responsibility for the killing and also to the period of time, if any, during which the offender might continue to be a danger to the public.  In the present case, Ms Chan’s residual responsibility, in killing the child by repeatedly throwing her onto the floor, far exceeded that found by the judge.

45.Third, the probation order imposed by the judge failed to have any or any sufficient regard to a number of aggravating features, namely, that a life was lost, the life being that of a child under the care and protection of Ms Chan who stood in loco parentis to the child and that there was in this case a need for both retributive and denunciatory punishment.

Discussion

46.We start with recognition of two primary facts.  First is the fact that the protection of human life is a foremost objective of our system of criminal justice.  As such, when a life is taken unlawfully, as it was in the present instance, the community is entitled to expect that the conduct be denounced by a punishment that is appropriate to the circumstances.  Second is the fact that in our society, as in all compassionate societies, particular recognition is given to the need to protect the vulnerable.  That is why special concern is aroused when an infant child dies at the hands of one of its parents, the very person entrusted to protect and nurture that child.

47.That being said, without in any way undermining the importance of those two primary facts, it must be recognised that the offence of manslaughter encompasses such a variety of circumstances and degrees of culpability that it is simply not possible to define any particular tariff or range of sentences.  Indeed, even the comparison of one case with another is invariably of limited value.  For that reason, it has been said from time to time that manslaughter is the most protean of crimes: infinitely variable.

48.Within the common law, while it may be exceptional, it is not therefore unheard-of for a person convicted of manslaughter of a child within his or her care, to be found to have such limited culpability that a sentence other than imprisonment is imposed.

49.A number of cases were referred to us in which a sentence other than imprisonment was imposed.  Within this jurisdiction, two cases were cited.

50.The first Hong Kong authority referred to us was the 1986 decision of this Court in R v Ku Yi Fun (unreported) CACC 30/1986.

51.The defendant was a mother of three children.  In order to maintain the family, her husband being unwilling to work, she had to take work home herself as well as looking to the welfare of the family.  As the court recognised, although there was no evidence of any psychiatric disorder, the day-to-day pressures on her were great.

52.The victim was the youngest of her children, a girl of just four years of age.  On the day in question, all three children were doing their homework.  The defendant criticised her youngest child for failing to do her homework properly.  The child repeated her poor performance.  The defendant then struck her.  When the child cried, in a sudden outburst of temper the defendant gave her a kick, knocking her back against a chair.  A short time later the child fainted.  The defendant immediately took the child to a clinic but did not reveal that she had assaulted the child.  The doctor who treated the child found that there were a number of bruises on her body.  Shortly thereafter the child died.

53.The defendant pleaded guilty to manslaughter and was sentenced at first instance to imprisonment for four years and six months.  On appeal, by a majority, this Court quashed the sentence and ordered that the defendant be placed on probation for a period of three years.  By that time, as the Court noted, the defendant had been in custody for a period of some eight months.

54.Li VP, giving the judgment of the Court, observed:

“The offence is one which is entirely out of character. She is hard-working. As her husband was lazy, she had to do work to support the family. Finding the burden-unbearable, she asked for social assistance. She was too proud to go to her relatives or parents for financial help and even regarded receiving welfare assistance as a shame. Throughout the years she was harbouring all the grievances within herself until that unfortunate afternoon when she lost control of herself.

In light of her particular circumstances, we are prepared to temper justice with mercy.  In a moment’s mistake she was deprived of a child she loved.  Her two surviving children would be deprived of their mother’s care for 4½ years.  On the other hand this is a brutal killing which calls for some form of punishment to reflect disapproval.”

55.The Court took particular note of the fact that there had been no earlier maltreatment of her children by the defendant and that the attack on the daughter had been an event without precedent.  In this regard, Li VP said:

“A most important factor, however, is that there had been no instance of abuse prior to the incident. This was a case of a sudden breakdown and loss of control, instantly regretted. There is nothing to suggest that the applicant would not be a good mother to her other two children in future.”

56.The second Hong Kong authority was that of R v Cheng Ping Mui (unreported) CACC 540/1989, in which an order of two years probation was imposed on a young woman who had caused the death of her newborn child delivered by her in private without the knowledge of any other persons and in circumstances of great stress.  The matter went on appeal, the appeal being against conviction.  The appeal was successful.  Accordingly, the question of sentence did not arise.  But it is nevertheless to be observed that the Court of Appeal chose not to make any adverse comment as to the sentence imposed.

57.R v Bibiana Chi Li [2000] NSWSC 1088 is an example arising out of the Australian jurisdiction.

58.The defendant was recognised to be at all times a caring and devoted mother who killed her child whilst “so severely depressed as to verge upon being insane”.  She killed her child so that she would not leave him behind when she herself died, it being her intent to commit suicide.

59.Sitting in the Supreme Court of New South Wales, James J made an order directing the defendant to enter into a good behaviour bond for a term of five years.  In so doing, the judge said:

“There is no basis for future dangerousness in the sense of possible criminal behaviour. There is little basis for general deterrent in terms of denunciation. The general deterrent requirement of sentencing may be met in the context that this woman has, with the contrition associated with her realisation of the crime she has committed, pleaded guilty and evidenced her contrition. For this she will receive full credit, both for contrition and for plea. Her conduct is denounced by her plea, by the Court, in convicting her, and by the sentence which I will now pass. She realises what she has done and its appalling consequences.”

60.The judge concluded:

“This has been, as I remarked at the commencement of these reasons, an appalling tragedy. It is not in the interests of the community that the consequences of the course the court has had to take should exacerbate the tragedy any further. To sentence you to full-time imprisonment would, in my view, have had that course. I do not expect, and indeed the evidence is clear, that I should not expect, that you will ever be brought before a court again.”

61.In the course of his submissions, Mr Bell SC, who appeared for Ms Chan, referred us to the authority of R v Chambers (1983) 5 Cr App R. (S) 190 in which the Court Appeal in England, in considering the appropriate sentence to be imposed in manslaughter cases in which the offender is found to be of diminished responsibility, made the following observations:

“In diminished responsibility cases there are various courses open to a judge. His choice of the right course will depend on the state of the evidence and the material before him. If the psychiatric reports recommend and justify it, and there are no contrary indications, he will make a hospital order. Where a hospital order is not recommended, or is not appropriate, and the defendant constitutes a danger to the public for an unpredictable period of time, the right sentence will, in all probabilities, be one of life imprisonment.

In cases where the evidence indicates that the accused’s responsibility for his acts was so grossly impaired that his degree of responsibility for them was minimal, then a lenient course will be open to the judge. Provided there is no danger of repetition of violence, it will usually be possible to make such an order as will give the accused his freedom, possibly with some supervision.

There will however be cases in which there is no proper basis for a hospital order; but in which the accused’s degree of responsibility is not minimal.  In such cases the judge should pass a determinate sentence of imprisonment, the length of which will depend on two factors: his assessment of the degree of the accused’s  responsibility and his view as to the period of time, if any, for which the accused will continue to be a danger to the public.” [our emphasis]

62.As Mr Bell pointed out, although in the present case the basis upon which a charge of manslaughter was brought was never articulated, the circumstances point clearly to the inference that the charge must have been brought on the basis that Ms Chan, suffering at the time from bipolar affective disorder in its manic phase, a major and serious psychiatric disorder, was suffering from an abnormality of mind as to impair her mental responsibility for her acts.  In this regard, it is to be noted that on several occasions, Mrs Justice Barnes referred to Ms Chan’s “mental illness”.

63.In light of these authorities, it is clear that in appropriate cases, even though they will be rare, it is open to a judge to impose a sentence on an offender in the position of Ms Chan other than a sentence of imprisonment. Accordingly, we do not see that the sentence imposed in the present case was wrong in principle.

64.However, as we understood Mr Zervos, who appeared on behalf of the Secretary for Justice, the principal ground of review is based on the submission that the sentence was manifestly inadequate.  Indeed, Mr Zervos advanced the proposition that, on the facts of this case, the sentence was so inadequate as itself to indicate an error on the part of the judge.

65.Mr Zervos submitted that, although the judge made reference to the violent circumstances in which the child came to her death, it must have been the case that, in assessing an appropriate sentence, the judge for all practical purposes set those circumstances aside, looking only to mitigating factors.  We do not agree.  As we have said, the reasons for sentence given by the judge were full.  In those reasons, the judge set out in detail the nature of the violence perpetrated upon the child.  There was no avoidance of its severity.

66.But what the judge was entitled to take into account, and clearly did take into account, was the psychiatric evidence that the actions of Ms Chan, as violent as they were, were the culmination of her extreme frustrations at a time when there was a significant impairment of her impulse controls.  For those few terrible moments, herself the victim of a major psychiatric disorder, Ms Chan acted entirely out of character and then, when consciousness of the reality of her actions returned, immediately took steps to revive the child.

67.Determining sentence in cases of this kind is one of the greatest difficulty.  It is an unenviable task for any judge.

68.In the present case, as Mr Zervos said, the life of a child was taken in circumstances of considerable violence.  More than that, it was taken by the person entrusted by society with the care and protection of the child.  Such conduct must be denounced by an appropriate sentence.  In all but the most exceptional cases an appropriate sentence would be one of imprisonment.

69.But in the present case, as the sentencing judge accepted, the very person who brought the life of the child to an end loved that child.  There was no previous history of abuse.  Up until that moment, Ms Chan’s life, even if filled with personal disappointment, had been exemplary in the care that she gave to her family and to others.  Ms Chan was suffering from a major psychiatric disorder, one that at the time was “undiagnosed, unattended and unmanaged”.  She was not to blame for becoming ill.  It had not arisen as a result of self abuse; its cause was not to be found in drug addiction or alcoholism.

70.It was also relevant that Ms Chan had spent some six months’ imprisonment on remand, only obtaining bail when her bipolar disorder was satisfactorily under control.

71.It is in the context of those mitigating circumstances that the judge came to the difficult determination that in the circumstances of this case there was little room for any meaningful form of retribution against Ms Chan.  Equally, this was not a case which required either personal or general deterrence.

72.Another court may perhaps have imposed a limited term of imprisonment.  Certainly, as we have already said, it will only be very rarely when offences of this kind escape with anything less than imprisonment.

73.But our criminal law has always accepted that there will be cases when a logical and considered exercise of compassion will better protect the interests of our society than some other sterner course.  The judge found this to be such a case.  In our opinion, she was entitled to do so while remaining within the range of her discretion.

74.Accordingly, for the reasons given, the application for review must be dismissed.  There will be no variation of the sentence imposed.  Costs will follow the event.

Mr Kevin Zervos SC, DPP and Mr David Leung, SPP of the Department of Justice, for the Applicant

Mr Adrian Bell SC and Mr Bruce Lau, instructed by Messrs Anthony Kwan & Co., for the Respondent