HKSAR v. YU SO MEE

DCCC510/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 510 OF 2009

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Reasons for Sentence

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The Charge and Plea

1.   The defendant, Madam Yu So-mee, pleaded guilty before me to one charge of ill-treatment by a person in charge of a child, contrary to Section 27(1) of the Offences against the Persons Ordinance, and admitted the facts.

The Facts

2.   PW1, boy Ip Tsz-pan, was born on 5 July 2000. At the material time, he was 8 years old. PW1 lives with his father, Mr Ip Hon-nam, and his mother, the defendant, at the premises in Shatin. The defendant co-habited with Mr Ip since 1998 and they are not married.

3.   On 25 April this year, the defendant’s sister received a letter from the defendant in which the defendant stated that she was going to commit suicide. As a result, the defendant’s sister made a report to the police and, the officers attended the flat at 5.25 pm on 25 April.

4.   Upon arrival at the flat, the officers noticed there was a strong burnt charcoal smell. They found burned charcoal ashes inside the container and a packet of charcoal were found in the defendant’s bedroom. Windows in the flat were open and PW1 had a burn mark on his hand.

5.   The defendant was arrested for the offence of cruelty to a child. The defendant admitted under caution that at about 1 am she decided to commit suicide with PW1 due to financial and family issues. She admitted what she did was wrong and she would not do it again. Both the defendant and PW1 were sent to the hospital for treatment.

6.   PW1 was interviewed by the police. He told the police that at about 9.30 pm on the 24 April, the defendant told him to sleep in her bedroom and the defendant slept by his side.

7.   Around 1 am on the 25th, he was woken up by the defendant, who fed him with four tablets of children panadol. The defendant also took six tablets of panadol in the morning.

8.   PW1 slept until around 1.30 am and he was woken up by some ‘tat-tat’ sound. He asked the defendant why she burned charcoal but the defendant gave a strange reply. He asked the defendant if he could pour water to stop the burning but was stopped by the defendant.

9.   PW1 found the door of the bedroom, the bathroom and all the windows closed, which was unusual because the doors of the bathroom and the bedroom were normally left open when they were sleeping.

10.   After going to the toilet, PW1 fell and hit himself against the charcoal container which was placed near the bed. The defendant comforted him and told him to sleep.

11.   Later, when PW1 woke up after noon time, he found himself sleeping on the sofa in the sitting room with the defendant. He vomited three to four times and he told the defendant that he was unwell.

12.   They watched television and ate some food until the arrival of the police.

13.   After receiving the letter from the defendant at about 1.30 pm on 25 April, the defendant’s sister and brother tried to contact the defendant by phone but with no response. The defendant sent a message to them at about 4 pm to the effect that she could not solve her problems. However, as her son was feeling pain when they attempted to commit suicide, the defendant gave up.

14.   Mr Ip, the father of PW1, stated that he and the defendant had lived together for 9 years. The defendant had been a housewife after giving birth to PW1 in year 2000. They had close family relationship and they seldom had any dispute. He had no idea why the defendant committed suicide.

15.   In November 2008, he found the defendant owed a debt of around $300,000. The defendant told him that the debt was for her family and the family would pay off the debt within the next 3 months. Mr Ip believed in what the defendant said.

16.   The defendant told the police in two cautioned interviews that she tried to commit suicide with her son because of financial and family problems. She owed a debt of about $1.5 million and was afraid that her husband would know about it. Further, she suspected her husband was having an affair.

17.   She was under a lot of pressure from looking after her son. As her husband did not treat her well, she frequently went shopping and incurred a heavy debt. She was afraid that her husband would leave her if he found out.

18.   She burned about five to six pieces of charcoal in a basin at around 1.30 am on the 25th. As she could not fall asleep and was awake, she noticed the charcoal was almost burnt out, hence, she added charcoal four times. By 6.30 am, PW1 woke up and said he was not feeling well and the defendant did not want to harm her son, so she opened the door and windows of the bedroom, the balcony windows and switched on the fan in the bathroom.

19.   She carried her son to the living room and wrote suicidal notes to Mr Ip and her son and she decided to jump from height. She only stopped after thinking that her son would become an orphan.

20.   She then slept with her son in the living room until about noon time. She fed PW1 with bread and they watched television together. She replied messages to her siblings at about 2 to 3 pm.

21.   She admitted that she had fed PW1 with two tablets of children panadol before he went to bed because PW1 was not feeling well.

22.   Suicidal notes respectively written to PW1, Mr Ip, the defendant’s brother, sister and PW1’s tutor were seized. The contents revealed that the defendant was unhappy with her relationship with Mr Ip and had incurred a heavy debt. She had no choice but to commit suicide.

23.   The adverse effects of burning charcoal in a confined space are mainly due to inhalation of carbon monoxide produced by incomplete combustion of charcoal. Old and very young children are usually more susceptible to the effects of carbon monoxide poisoning.

Antecedent

24.   The defendant is now 41 years old and she has a clear record. She received education up to Form 3. She is in a good health but she appears to suffer from adjustment disorder.

Pre-sentencing Reports

25.   I called for a probation officer’s report, two psychiatrist reports, psychologist report and a victim impact report before sentence.

26.   I have before me two psychiatrist reports prepared by Dr Robyn Ho dated 8 May and 2 July 2009. I have also before me two psychiatrist’s reports prepared by Dr Lee Ting-chun dated 8 May and 30 June this year. I will not recite the details of the reports in any great detail.

27.   Dr Ho, in her last report dated 2 July, at paragraphs 8 and 9 of her report stated as follows:

“Yu’s mental state has been stable during her remand at SLPC despite no medication has been prescribed. She strongly denied further suicidal thoughts and had not displayed any suicidal gestures. However, there are many discrepancies with her history compared with collateral information. She usually became evasive when she was asked to explain these discrepancies. She is an unreliable historian. Her insight is poor and her prognosis is guarded. She continues to pose a risk to suicide.

Although in-patient psychiatric treatment is not considered necessary at this juncture, I would strongly recommend that she will continue follow-up in psychiatric outpatients for further observation. She is mentally fit to serve any sentence that the court deemed appropriate.”

28.   Dr Lee in her second report dated 30 June 2009 stated at paragraph 11:

“The defendant is an unreliable historian. As there are still many uncertainties, full assessment of her risk of re-attempting suicide is impossible at the moment. She remains mentally stable during her remand at SLPC. No depressive symptom or suicidal gestures was noted. There are no ground for a Hospital Order at this juncture. I would suggest her to be followed up in the Psychiatric Outpatient Clinic for further observation for her mental state.”

29.   Miss Michelle Liu, clinical psychologist, in the psychologist report prepared for the defendant stated at paragraph 14 and 15 that:

Paragraph 14,

“This is the first time that Mrs Yu committed suicide and an offence. Assessment results suggest that she is a reserved person who has experienced emotional distress for several years. In the face of stress, she tends to resort to escape and emotional avoidance strategies. As a result, she has failed to resolve her problems constructively. Prior to the indexed offence, she seems to have experienced worsening financial and relationship problems. It is possible that she resorted to self-injurious behaviours as a solution to a perceived unbearable stress.

I have the impression that she committed suicide with the son because she did not want to abandon him into the world that she was living. Her inadequate problem- solving ability also played a part in the present offence.”

30.   Paragraph 15,

“There is no clear sign indicating that Miss Yu is suffering from major psychopathology at present. She has revealed no significant depressive feature or suicidal ideation. She is not impressed to be prone to abusive or violent behaviours towards her child. She has impressed to have rather weak emotion management and problem solving ability. It is deemed that if she fails to handle the stress and tension arises from her intimate relationship, she may have the possibility to act emotionally and impulsively again.

Having the support from her siblings is a protective factor to her. I believe that providing her with psychological services in the aftermath of her suicide, targeting her emotion management and problem solving ability is beneficial to her rehabilitation. However, her motivation for such services is not high at this juncture. Besides, social worker’s assistance in helping her to handle her financial crisis and helping the couple to achieve a consensus about their relationship is also essential. If she is going to take care of her son again, providing professional monitoring and support to her about child caring is deemed crucial to the prevention of re-offending in the future.”

31.   Miss Anna Yuen, clinical psychologist, in the psychological report prepared for the victim, i.e., PW1, said at paragraph 10 of the report:

“An analysis of the peripheral observation test findings and information provided by the client and informant suggest that the boy’s current functioning does not apparently differ from his pre-morbid functioning.

All along, he is a cheerful and carefree boy who has a secure attachment with his mother. For the charcoal burning incident, he does not see it as suicide or harm inflicting and his understanding is limited to fake reason like dust removal. Although he did suffer from physical discomfort at that time, he did not feel fearful, intimidated or psychologically painful. He has no worries for his safety now.

The available information reflects that he does not suffer from post-traumatic stress or mood disturbances. His present concern appears to be more on the separation with his mother but not so much on the incident or the threat associated. He worries about when he can reunite with his mother, whom he trusted as the most reliable parental figure, while her presence and care would bring him strong sense of security and mutual affection.

As he does not suffer any psychopathology, there is no need for a psychological treatment.”

32.   Mr Cheng in his probation officer’s report dated 6 July 2009 stated at paragraph 9:

“The accused is known to be an introvert person with a limited social circle in the past. She rarely shared her feelings and discussed with others when she had personal difficulties. Hence, she might be prone to become irrational under persistent pressure.

Being suspicious that her co-habitant had affairs with other women, she frequently made use of her credit cards for spending in the past and gradually accumulated a huge debt with which she found it difficult to cope.

During the time her co-habitant was away from home for a trip, she had the idea of killing herself and her son by burning charcoal when she found herself in a desperate position, feeling that her co-habitant had other women outside and he was no longer concerned about her, while she also found herself unable to manage her debt.

It was quite fortunate that her son complained of his discomfort at the critical moment before falling in an unconscious state and she was able to turn on the right track to give up the idea of killing herself and her son.

In the course of enquiry, she regretted for what she had done and hoped that she would be able to take care of her son upon release from gaol custody in due course.”

33.   Mr Cheng, in his further probation officer’s report dated 6 July said:

“In view of the serious nature of the offence, the undersigned considers that probation supervision is not an appropriate measure in this case and hence, the accused had not been recommended for probation supervision in the probation officer’s report submitted earlier.”

34.   On 6 July, the proceedings was further adjourned to today for a CSO report. The defendant is considered to be a suitable person to perform work under Community Service Order. Mr Cheng stated in the report that CSO with total hours of work in the range between 180 and 240 is suggested, taking into consideration the nature of the offence and the capability of the accused to perform unpaid work. The accused has shown willingness to take up unpaid work under a Community Service Order as a means of reparation for her offence.

35.   Mr Cheng also remarked in the report that as the co-habitant of the accused has moved away from the previous residence at Ma On Shan to reside at Ho Man Tin with the child on 22 June 2009, the defendant would like to live with her elder sister at Mongkok upon her release from goal custody, and the elder sister, Madam Yu, has also shown willingness to receive the defendant in her residence.

Discussion

36.   I would be stating the obvious to say that the offence of ill-treatment by those in charge of a child is a serious offence. The defendant’s son was only 8 years old and he was almost killed by the defendant in her attempt to commit suicide with her son.

37.   The defendant is the mother of the victim and had the care and custody of the victim at the time. Instead of taking good care of her son and protect him against all dangers, the defendant sought to commit suicide with her son.

38.   It goes without saying that the offence that the defendant committed was serious, but the facts of the present case were very different from those ordinary cases of child abuse.

39.   In the present case, the defendant, the mother of the victim, tried to commit suicide with her son, who all along loves the defendant. The information before me shows that the son loved the mother just as much as the mother loved the son.

40.   No doubt, the incident in question was an isolated one. It appears to me that the defendant has been a caring and loving mother in the past and she can be a loving and caring mother in the years to come.

41.   It appears to me that the defendant has learnt a bitter lesson through her remand at Siu Lam and almost 3 months’ separation from her son.

42.   The defendant is certainly in need of external assistance. It is regrettable that probation supervision is not recommended in her case. Otherwise, through the co-ordination and supervision of the probation officer, the defendant can receive help from clinical psychologists and, if necessary, psychiatrists.

43.   In as much as the defendant’s problems stemmed from her poor problem solving ability, her problems can be addressed properly under probation supervision.

44.   I do not think a term of imprisonment, be it immediate or a suspended one, serves any deterrent purpose. A term of imprisonment cannot deter those who are determined to kill themselves with their children.

45.   For the rehabilitation of the defendant, it would be better for the defendant to reform herself in open environment. The defendant can receive outpatient treatment at the Psychiatric Clinic with all the support and care from her family members. With the appropriate external guidance from professionals and some family support, it appears that the chance that the defendant would engage in such irresponsible conduct in the future would be lessened.

46.   For the punishment of the conduct of the crime that the defendant committed, whilst I reckon that a term of immediate imprisonment is the normal sentence for real child abuses, on the facts before me, I am prepared to depart from the normal course as I do not see the present case as a usual child abuse case.

47.   I am satisfied that the defendant is a suitable person to perform work under a CSO. I am also satisfied that a CSO for 240 hours, being the maximum number of hours that the defendant can be sentenced to perform unpaid work under such order, is appropriate. It reflects the serious nature of the offence and the public disapproval of the defendant’s conduct.

48.   In sentencing the defendant to CSO, I have taken into consideration the interests of the son. I think that the proper course for me to take in the present case is to adopt a rehabilitative approach in sentencing the defendant. A CSO is a suitable means to help the defendant to start afresh in open setting.

49.   In sentencing the defendant to CSO, I have also taken into consideration the peculiar circumstances of this case and the bond between the mother and the son before and after the incident. It is of course not the court’s intention to set down any precedent or send out any message that CSO is the normal sentence for child abuse offences.

Sentence

50.   For the reasons given, I place the defendant under Community Service Order and the defendant is required to perform unpaid work for a total of 240 hours.