HKSAR v. TAM SIU SAN

DCCC 621/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 621 OF 2013

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Reasons for Sentence

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1.  This defendant has pleaded guilty to one charge of ill‑treatment of a child by a person in charge of that child. That child is the defendant’s youngest daughter who at the time of the offence was 3 months old. Particulars of the offence are that the defendant wilfully ill-treated the baby in a manner likely to cause the baby unnecessary suffering or injury to her health by shaking her.

2.  After the defendant’s plea and upon hearing mitigation on the last occasion, I adjourned sentence to today.  I ordered several reports including a Probation officer’s report, psychiatrist’s and a psychologist’s report and lastly a Social Welfare Department report relating to the welfare of children under the defendant’s care.  I have had sight today of all reports except for the psychologist’s report.  Through no fault of her own, the defendant has not yet seen a psychologist, the first appointment date is in two weeks time.  However, I do not intend to adjourn the sentence again, I have enough details and professional opinion in the reports before me to sentence today. 

3.  This offence took place on 6 October 2012 and it came to light the next day when the defendant brought her daughter to North District Hospital.  The hospital after examining the child discovered that she had subdural haemorrhage and retinal haemorrhage.  It was suspected that the child had been shaken and the authorities were alerted.  When the defendant was interviewed, she admitted that she had shook the child several times.  What came to light was that on the date of the offence, the defendant was caring for three sick children under the age of three.  Not only were all the children unwell, her husband was sick and asleep at the time of the offence.  The youngest, the victim, would not stop crying and coughing.  The defendant tried to clear the phlegm from her chest.  She failed to soothe the baby and the baby continued to cry.  At this moment the defendant became, in her own words, very frustrated and shook the baby.  Her actions were enough to cause the baby to suffer the injuries I have just referred to.  As soon as the defendant and her husband were aware the baby was not well, they took her to the hospital immediately.  

4.  By way of background, the defendant is 38 years old.  She has five children.  Two were born from her first marriage and are now teenagers.  She divorced her first husband in 2009.  It was a very unhappy marriage and the two children of that marriage were in the care of her ex-husband.  After the divorce, she wanted to maintain contact with them but in fact had to do that secretly behind her ex-husband’s back.  Their relationship was satisfactory but it is clear that recently she has become much closer to her daughter who is 15.  The defendant then met her second husband in Shenzhen.  He is not a Hong Kong resident and can only come to Hong Kong on a two-way permit.  They, after meeting, very soon had their first daughter, in fact they now have three children.  The first was born in 2010, the second was born in 2011 and the victim of this offence was born in 2012.  So the defendant has three very young children under the age of three.  She is the main carer. She returned to live in Hong Kong.  Her husband is supportive but cannot work in Hong Kong nor is eligible for any public assistance so he tries his best to earn money on the Mainland with casual work and come and visit and stay as often as possible to help the defendant.  The defendant since returning with children has been living on public assistance.

5.  At the time of the offence, they were living in a very old building in very poor living conditions.  In fact because the conditions were so poor, the Social Welfare Department re-housed them on compassionate grounds earlier this year.  In fact the Social Welfare Department has been very involved since this family and this offence came to light.

6.  From the reports before the offence date but after she gave birth to three young children, there seemed to have been no issue in the family.  However, it did transpire that having three young children and being the sole main carer did lead to very stressful circumstances as well as some financial hardship.  It also transpired that the defendant probably was suffering from depression before the offence.  She certainly exhibited those symptoms associated with depression and since the offence has been receiving treatment and has been diagnosed with a depressive disorder.  It is also very clear from the reports and the defendant’s plea that she is very remorseful.  She obviously loves her children, she has sought help for her depression and is very cooperative with the Social Welfare Department.  Not only is she cooperative, her husband, the father of these children is also very cooperative.

7.  Luckily, this victim, the baby, is recovering well.  The doctors say that the child’s development is normal.  Whether or not she has any retinal issues cannot yet be determined, time will tell, but the doctors are very pleased with her health and development.  The Social Welfare Department says that the baby has been living in a children’s home.  The defendant has access whenever she can visit and it has been noted that the maternal bond is strong with this baby.  It has also been noted that there is a strong sibling bond when the other two young children visit.  However, Social Welfare officers are of the view that residential care will continue for some time and the defendant is willing to follow any plan the Social Welfare Department proposes and accept counselling.  Social Welfare Department make it clear that they are preparing the family for a future reunion.

8.  The Probation officer’s report again like the Social Welfare report is very detailed, I will not repeat these details.  Clearly, the defendant is not going to re-offend.  She is disappointed in herself and accepts that this tragic mistake is of her own doing but luckily the consequences have not been so serious.  What is important is she is very motivated to get treatment; to accept professional care and guidance.  The Probation officer calls it “an isolated incident” and I agree.

9.  Having viewed these reports, considered the professional opinion of the Probation officer and the psychiatrist as well as the attention given to the family by the Social Welfare Department which is exemplary, and accepting the Probation officer’s ultimate opinion and conclusion, for this offence I will follow that report and impose a 12 month term of probation. 

10.  There will be conditions that she will comply with, any condition the Probation officer deems necessary in the next 12 months, but in particular receive any psychiatric or psychological treatment as directed.  Defendant must understand that if the Probation officer is not satisfied with the defendant’s behaviour on probation, the Probation officer is entitled to refer this case back to court and the court does have, if the court accepts the Probation order has been breached, the court does have the power to re-sentence.

Do you understand that?

DEFENDANT: Understood.