HKSAR v. Leung Hui Man, Candy

DCCC 952/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 952 OF 2014

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Neglect of child by a person in charge of that child" (Charge 1) and 1 charge of "Possession of a dangerous drug" (Charge 2).

Summary of Facts

2.The defendant gave birth to male infant WONG Lok-man ("Lok-man") on 4 April 2014.  She was his sole caretaker.  The defendant, Lok-man and his then 1.5-year-old elder brother ("Lok-lung") resided at a public housing unit in Shek Lei (I) Estate ("the Flat").

3.In response to a 999 call made by the defendant, ambulancemen arrived at the Flat about 9:20 pm on 23 May 2014.  They found Lok-man lying in bed without breath or heartbeat.  He was conveyed to Yan Chai Hospital, but was certified dead at 9:58 pm.  Milk was aspirated from his mouth during resuscitation.

4.The Flat was searched and the Police found a plastic bag (later found to contain 0.12 gramme of a crystalline solid containing methamphetamine hydrochloride), some straws and a few lighters from a kitchen cabinet.  There were also milk bottles in the kitchen.

5.The defendant initially told the Police that she found Lok-man unconscious after she took a shower.  CCTV footage, however, revealed that she had left the Flat for more than 3 hours before this tragic event.

Post-death Findings

6.Traces of ketamine and methamphetamine were detected in Lok-man's blood and urine.  Government Chemist, however, considered it difficult to determine the concentration of the dangerous drugs because of the unknown quantity of body fluids, which could be changed significantly under different circumstances.

7.The milk bottles seized from the Flat were examined.  No significant findings in relation to common drugs and poisons were obtained from the bottles or the liquids contained inside.

8.Regarding the ketamine and methamphetamine found in Lok-man's body fluids, forensic pathologist Dr. CHIAO takes the view that it is doubtful whether the drugs have caused any significant adverse effects on Lok-man at such low levels.  Dr. CHIAO commented that the significance of the drugs to the cause of death could not be ascertained based on the autopsy findings alone.  He concluded that the medical cause of death of Lok-man was "Unascertained".  Since no injection mark was found on the body and no dangerous drug residue was found in the milk bottles, Dr. CHIAO considers that the drugs could have entered Lok-man's body through breast-feeding or inhaling of second-hand smoke.  Since only traces of the drugs were detected in Lok-man's blood, it is possible that he absorbed the drugs through the skin, following contact with contaminated surfaces or clothing.

Admissions

9.On 24 May 2014, the defendant admitted under caution that the "ICE" found in the Flat belonged to her.  The last time she smoked "ICE" was a week before, and she did so in the kitchen.

10.In her video-recorded interview, the defendant stated that on 23 May 2014, she left home with Lok-lung about 5:45 pm.  Her mother drove them to a shopping centre to get a rice box.  She drove them back to Shek Ning House about 7:00 pm.  The defendant remained downstairs to text her friends and to feed Lok-lung.  She returned to the Flat about 8:00 pm.  When she checked Lok-man she found his hands and feet cold.  She admitted having smoked "ICE" in the kitchen, but would switch on the exhaust fan and open the windows whilst smoking.  The last time she smoked "ICE" was 2 days before 23 May. The defendant did not know why ketamine was found in Lok-man's blood and urine samples.  She did not breastfeed him; he was bottle-fed with formula milk since birth.

Mitigation & Sentence

11.The defendant is 33 and divorced. She has 7 conviction records, which are mainly "Theft" offences. In June 2014, she was sentenced to a Drug Addiction Treatment Centre for "Theft (Shoplifting)" and "simple possession".[1] She was discharged on 15 December 2014 and continued to be remanded in jail custody. In other words, for the present case, she has already spent at least 3 months in jail custody.

12.Defence counsel Ms. CHEUNG informed me that the defendant got married at the age of 16. She has a son ("Ho-tin", now 16 years old) from that marriage. The marriage only lasted for a few years and the defendant met a boyfriend ("WONG") in 2009. They have 2 sons (Lok-man, the deceased; and Lok-lung, who is now 2). Ms. CHEUNG submitted that WONG had physically abused the defendant. When she was 6 months pregnant with Lok-man, she evicted WONG out of their home, but he kept coming back. In April 2014 (the day before Lok-man was born), WONG returned toharass the defendant again.

13.The defendant relied on social welfare. She had no money but had to look after 3 children. WONG physically abused her and she was stressed out. As a result, she took drugs to relieve her stress. She managed to stay clean when she was pregnant with Lok-man.

14.Ms. CHEUNG explained that at the time of the offence, the defendant was unable to find anyone to look after Lok-man so that she could leave the Flat for a little while. She foolishly left Lok-man (who was then sleeping) at home. After her mother dropped her off at the housing estate, the defendant received a phone call from WONG which caused her to be in distress; she therefore texted her friend in the park to discuss about WONG. Finally, Ms. CHEUNG submitted that the defendant has lost a son, which is a lifelong regret for her.

15.Mitigation letters written by the defendant, her mother and younger sister were placed before me; their contents are duly noted.

16.As expected, the DATC Report revealed that the defendant is no longer a drug dependant. The contents of her Background Report are basically in line with the information given by Ms. CHEUNG during mitigation. The Welfare Report on Ho-tin and Lok-lung indicated that they are under the proper care of their maternal family members.

17.There is no sentencing tariff for Charge 1.[2] The facts and seriousness of each case varies substantially, ranging from tipping over a vase in the living room to falling out of a window from a high-rise building. The harm caused to the child ranges from minor injuries to fatality. The sentence also ranges from Probation Orders to immediate imprisonment.

18.In the present case, the defendant did not carry out any positive act to cause the death of Lok-man, except leaving him unattended for a few hours. Both the medical and factual causes of death are unknown. The presence and smoking of "ICE" in the Flat were no doubt undesirable to an infant's health. There is, however, no evidence to show that Lok-man's death was related to ketamine or "ICE". It is also unknown (and would seem to remain so) whether Lok-man's life could have been saved had the defendant not left him alone in the Flat, although common sense tells us that the chances of saving him probably would have been increased had she remained at home.

19.When determining the sentence for Charge 1, I must bear in mind fatality being the final outcome. I adopt a starting point of 12 months' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 8 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for Charge 1 is 8 months' imprisonment.

20.For Charge 2, I adopt a starting point of 6 months' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 4 months.

21.Having considered the totality principle, I order the sentence of both charges to run concurrently; thereby arriving at a total prison term of 8 months.