HKSAR v. L. S. T.

HCCC 318/2024

[2026] HKCFI 4451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 318 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges on 30 September 2024 before a magistrate at Eastern Magistracy.

2.  As a result of her pleas of guilty she was committed to the Court of First Instance for sentence.

The charges

3.  Charge 1 was a charge of manslaughter by gross negligence contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance Cap. 212.

4.  The defendant admitted that on 2 September 2022, she unlawfully killed “Z” by gross negligence in that as a mother and carer of Z her son she breached that duty of care and caused the death of Z because she:-

(a) failed to ensure Z had adequate food and nutrition intake;

(b) failed to properly assess and monitor the health condition of Z; and

(c) failed to ensure that Z received proper and timely medical attention.

5.  Charge 2 was a charge of Cruelty to a child contrary to section 27(1) of the Offences against the Person Ordinance Cap. 212.

6.  The defendant admitted between a day unknown in 2022 and 2 September 2022 in Hong Kong having the custody and care of Z her son aged 5 years old, willfully assaulted, ill-treated and neglected Z in manner which caused him unnecessary suffering and injury to his health. 

Introduction

7.  The defendant, unlawfully killed Z her son at age 5 years and 4 months old.  This is a horrid, devastating, heart breaking and tragic case of Z being subjected to regular and prolong cruelty, violence, deprivation of food, drink, play, education and social interaction by his mother, the defendant.

8.  Upon Z’s death, he was found covered in injuries.  He was emaciated to a state of skin and bones.  The commission of these cruel and calculated acts of cruelty and neglect expose a savage nature utterly devoid of the empathy inherent to motherhood. 

Background Facts and restoration of the children to Defendant’s care

9.  The defendant has given birth to four children, X, Z, Y and V. 

10.  X a daughter was the first born in 2014 when the defendant was aged 26. The father of whom is unknown.  X was sent to Children’s Residential Home (“CRH”) in around 2017 as the defendant was unfit to take care of X in view of her substance abuse problem.

11.  Z (the deceased) was born in April 2017.  The defendant was 29 years of age.  Z’s father was a Vietnamese male called Dinh who was the defendant’s boyfriend. 

12.  Upon Z’s birth he was required to remain in hospital for 57 days as he tested positive for drugs and suffered from symptoms of substance withdrawal as a result of the defendant’s consumption of drugs during her pregnancy. 

13.  Upon Z’s discharge from hospital he was sent to foster care because the defendant was unfit to take care of him because of her substance abuse.  Whilst Z was in foster care, when he was 9-months old, he suffered retinal and cerebral hemorrhages due to shaken baby syndrome.  He was hence sent to CRH in April 2018.  He was later assessed to have global development delay.  The delay might have been the result of brain injury due to substance withdrawal and shaken baby syndrome. 

14.  In May 2019 the defendant gave birth to a son Y.  The defendant was 31 years old.  Y’s father was Dinh.  Soon thereafter Y was sent to CRH because the defendant was unfit to take care of Y because of her substance abuse.

15.  The defendant was recalled to Drug Addiction Treatment Centre (“DATC”) for drug detoxification treatment from 16 August 2019 to 18 November 2019.  During that period and after her discharge from DATC the defendant indicated to the case social worker she was eager to take care of the Z and her 2 other children and reunite the family.  The social worker sought the opinion from a medical officer regarding the defendant’s fitness and intention to restore the children to the defendant’s care at home one by one.  

16.  In December 2019 the medical officer of the Comprehensive Child Development Service (CCDS), Kwai Chung Hospital advised that the defendant was capable of providing adequate appropriate care to her children including taking the children to attend medical appointments but needed to be under supervision.

17.  Z and X were granted regular home leave from the CRH with the defendant and Dinh.  After observation by the social workers from Family and Child Protective Services Unit (Kwun Tong) (“FCPSU(KT)”) it was their opinion the defendant and Dinh were capable in caring adequately for Z. 

18.  From August 2020, Z was restored home to live with the defendant and Dinh.  Following Z’s home restoration, the case social worker continued to assess the progress and found the defendant made appropriate and adequate preparations for X’s return.  X was formally discharged from foster care service for family reunion in August 2021. 

19.  Y commenced regular home leaves from the foster home since October 2021 to facilitate his gradual family reunion.  It was observed that Y had no adjustment irregularities with the family and Z and X. 

20.  In view of the defendant’s positive attitude, availability of adequate family support as well as the stable condition of Z and X after home restoration, Y was discharged from the foster care service for family reunion on 27 April 2022. 

21.  Between August 2019 and June 2022 collateral contacts and home visits by case social workers were made.  It was observed by the social workers that the defendant and Dinh were actively involved and cooperative in the welfare arrangement of the three children.

22.  In mid-November 2021 the social worker of Z’s nursery school contacted the case social worker and informed the latter of Z’s unsatisfactory attendance between September and November 2021 and the teacher once noticed a bruise mark on Z’s forehead when he resumed face to face class.  The defendant claimed it was not caused by her or other family members but that she also found it in the morning when Z woke up. 

23.  On 1 December 2021 the school social worker and the case social worker had home visits at both at Lai Chi Kok and Skek Kip Mei abodes where the defendant and Z were seen.  The defendant explained Z’s absence from school was due to the fact that she did not want to risk exposing Z to Covid-19 and she had close contacts and liaison with Z’s school teacher all along.

24.  On 27 May 2022, when face to face classes had resumed.  In a phone conversation with the case social worker the defendant claimed that she had difficulty taking Z to school.  She claimed she could not take Z to school as he had to finish his breakfast before he was willing to leave home and she could not force him out of home as she was afraid to hurt Z.  The case worker duly gave her support and advise in handling the matters. 

25.  In early June 2022, the school social worker and school personnel contacted the case social worker, sharing about the defendant’s difficulty to bring Z to school and their worries about Z’s care. 

26.  During the home visit on 8 June 2022, the caseworker met the defendant and Z at the abode in Shek Kip Mei Street.  The case worker also met Y and D2 at the abode in Lai Chi Kok Road.  While X was at school.  The case worker stated in her witness statement the following:-

“Y and Z were sitting on the bed in the bedroom with the defendant’s sister. Y and Z were watching a show on the ipad placed on a small table. Both Y and Z were moving around looking energetic. There were no visible injuries on their faces. They were dressed properly. Although the corridor of the room was cluttered there was no unpleasant smell.

In the chat, the defendant brought up that the deceased often lost his temper at home, and urinated and defecated on bed. ”

27.  Regarding the behaviour problem of Z, the case social worker offered the defendant further residential care for Z but this was resisted as Z had suffered from injury under foster care before.  Upon further counselling in June 2022 the defendant agreed to waitlist for a small placement in a small group home for Z as a back-up arrangement. 

28.  In summary the case social worker said there were no irregularities were noted on Z and Y who appeared normal in June 2022. 

29.  As the social worker of FCPSU(KT) was of the opinion the child abuse elements of the case had subsided while the family was in need of support and counselling in childcare, the case was referred to the Mong Kok Integrated Family Service Centre of Yang Memorial Methodist Social Service (MKIFSC) for follow-up service on 16 June 2022. 

30.  After MKIFSC received the referral from FCPSU(KT) on 22 August 2022 the case social worker saw the defendant but not the three children as they were not with the defendant.  The defendant agreed that case social worker would meet the three children the following week.

31.  The defendant told the case worker she was very patient and mentioned that Z often hit his head against things and urinated and defecated everywhere.  In view of that, pads had been taped to the walls in the hope that Z would not suffer from injury. Since her sister and Dinh were also caring for Z, the situation was manageable.  The defendant said that she felt very guilty for doing drugs previously and hoped that she could compensate for her past by treating her children right. 

32.  The case worker from MKIFSC contacted Z’s nursery school on 31 August 2022 and learnt that Z was absent from school in August 2022 and failed to reach the defendant and hence did not know the reason for his absence.  The case worker called the defendant on 1 September 2022 informing her she wanted to learn about the situation of the children going to school.  The defendant said it was not a convenient time for a phone call and to call her the following day.  On 2 September in the afternoon the case worker called the defendant but there was no answer.  On 3 September 2022 she learnt from the news about the death of Z. 

33.  The case worker from MKIFSC never saw Z or the two other children.

Z’s non-attendance at Nursery school

34.  On 1 September 2020, when Z was around 3 years old, he was arranged to attend a nursery school (the “School”) through the referral of the Social Welfare Department. Yet, Z only attended the School on only 38 out of 126 days in academic year 2020-2021, and on only 36 out of 141 days in academic year 2021-2022.  Z’s teacher last saw Z physically in school on 27 January 2022.  Thereafter, the teacher and Z had only online lessons until mid-May 2022.  After the School resumed physical classes in mid-May 2022, Z had never attended school again. 

35.  In X’s video recorded interview (X’s VRI) on 4 September 2022 X stated that her mother the defendant did not let Z to attend “ZOOM” class as the defendant was afraid to let others see Z.  The defendant lied to teachers on why Z did not attend “ZOOM” class by falsely claiming that Z was sick. 

36.  The defendant’s friend, Ms Lau, frequently visited the defendant and brought X for outings. Ms Lau observed that the defendant favored X and Y and tended to neglect Z.  The defendant also told Ms Lau that she did not like Z.  When Z refused to sleep at night, she would tie up Z’s limbs to restrain his movement.  The defendant had also punished Z by hitting his palm using a cane or slapping Z’s face.  When Ms Lau saw Z in February 2022, she observed that Z had become significantly thinner and that Z had bruises on his limbs.  Ms Lau had already reminded Z not to hit Z again, and that she should seek the assistance of social welfare organizations. 

Report to the defendant’s friend and the police by the defendant of Z’s death

37.  At around 12:38 a.m. on 3 September 2022, Ms Lau received a call from the defendant and told her, inter alia, that she had hit her son to death, and that she blamed herself for not listening to Ms Lau.  The defendant was crying at the same time. 

38.  At around 1 a.m. on 3 September 2022, the police received a report from the defendant claiming that her son had died.  Officers of the Emergency Unit Kowloon West were deployed to respond to her call.  Upon arrival on the floor on which the Flat was situated at 1:05 a.m., the police officers saw the defendant standing on a canopy outside the window of the Flat. Some police officers tried to calm the defendant down. 

39.  As the Flat was locked, police officers and firemen had to break into the Flat.  The Flat consisted of a living room, a bedroom, a toilet and kitchen.  PC 12694 grabbed the defendant through the window, and the defendant eventually returned to safety.  PC 11658 saw Z lying on the bed inside the bedroom facing upwards.  Z was unconscious with a darkened face, eyes slightly opened and mouth opened; he was covered by a blanket up to his neck.  Z was taken to Kwong Wah Hospital by an ambulance, cardiopulmonary resuscitation (“CPR”) was performed on Z during the journey. 

40.  At 1:31 am Z arrived at the hospital   He had no signs of life upon arrival at the Accident and Emergency Department.  Multiple bruising over Z’s face, trunk and limbs were observed.  Z’s electrocardiogram showed asystole and CPR was continued but there was no return of spontaneous circulation.  Z was certified dead at 2:01 a.m. on 3 September 2022. 

Arrest and VRI of the defendant

41.  At 7:30 a.m. on 4 September 2022, the defendant was arrested in Princess Margaret Hospital.  At the time of her arrest, she was pregnant with V who was born in (custody) in January 2023. 

VRI of the defendant

42.  The defendant was brought to the police station in the afternoon of her arrest.  A cautioned interview was conducted with the defendant, in the presence of her social worker, between 4:20 p.m. and 6:57 p.m., in which she asserted, inter alia, the following: 

(ii) At around 2 pm on 2 September 2022, she went to bed with Z. When she woke up she claimed between 4:49 pm and 5:30 pm (after looking at her phone records) she discovered that Z had died. She saw Z was lying face up on the bed with his eyes opened. She checked Z and found that he was unresponsive and his body was stone cold, she could not find any heartbeat.

(iii) At that time no one else was in the Flat so she called her elder sister. Her sister returned to the Flat with X and Y, the defendant told her sister that she needed to rest and did not allow X and Y into the bedroom because she did not want X and Y to see Z. The defendant told her sister to bring X and Y to their mother’s house. After X, Y and her sister left the Flat the defendant called Ms Lau to tell her Z had died and asked Lau to take care of X.

43.  The defendant admitted in the cautioned interview that:-

(i) She would sometime hit Z on his palm(s) and buttocks with cane or clothes hanger when Z was disobedient;

(ii) She observed that Z was getting thinner suddenly. She admitted that Z had been too thin. She did not take Z to the doctor for this as she was not aware of the seriousness;

(iii) She admitted that she had caned Z on his waist and arm two days ago as Z had urinated causing sister to slip and fall;

(iv) She admitted that she had lied to the school for not taking Z to school; she would tell the school that Z was with his grandmother and therefore could not attend school.

44.  The defendant denied causing the injuries seen on Z.

(i) When asked about the injuries on Z’s head, she denied that she had hit Z’s head and

(ii) When asked about the injuries on Z’s penis, she claimed that those injuries were inflicted by himself.

Autopsy of Z

45.  An autopsy was performed on 6 September 2022.  At that time of the autopsy Z was aged 5 years and 4 months old.  Z’s direct medical cause of death was severe malnutrition caused by starvation and neglect. 

46.  The pathologist found amongst others:-

(i) Z died sometime between 2 – 3 September 2022;

(ii) Z was 100 cm tall and weighed only 9.7 kg;

(ii) Extreme emaciation with reduced body and organ weight as a result of loss of subcutaneous adipose tissue and adipose tissue surrounding internal organs;

(iii) Atrophy of internal organs and atrophy of muscles and nearly all organs except the brain reduced in weight;

(iv) Characteristics features included loss of buccal fat pad over the face and the skin appeared to be wrinkled due to loss of subcutaneous tissue; there were also protruding ribs, protruding iliac crests, a scaphoid abdomen, winging of scapula, presence of lanugo hair, empty GI tract and presence of faecolith, which may indicate concomitant dehydration.

(v) External examination revealed that Z had suffered from 129 external injuries (scars, bruises, abrasions, etc.) all over his body. A number of these abrasions already developed signs of healing, they could have been inflicted at least a few days or so prior to death.

47.  The pathologist opined that:-

(i) the reddish bruises could be inflicted by blunt force impact. The injuries were fresh and appeared to be inflicted within 1 to 2 days prior to death. The presence of tramline bruises on the chest and lower limb was a recent blunt impact by a rod-like object.

(ii) The multiple injuries suggested that Z may have suffered from, inter alia, trichotillomania (an urge to pull one’s hair) and abusive mechanisms (such as force feeding, gagging, gripping, and violent rubbing or a direct blow to the lip).

(iii) based on the extent and location of the injuries, the overall pattern was highly suggestive of assaults by means of blunt force over a certain period prior to death and were unlikely to be solely accidental or self-inflicted in nature.

Pediatrics Expert Opinion

48.  An expert report was obtained from Dr Chan Kwok Ning, an expert in general pediatrics. He opined, inter alia, that:-

(i) Z’s last recorded height in January 2020 was 90 cm (at the 25^th centile) when he was at the age of 2 years and 9 months. His body length as measured during autopsy was 100 cm, below the 3rd centile. Z’s height growth had slowed down during the last 1001 days before his death.

(ii) Z’s last recorded weight in January 2020 was 14.6 kg (at the 75th-90th centile) when he was at the age of 2 years and 9 months. Yet, his body weight as measured during autopsy was only 9.7 kg, which was way below the 3rd centile (around 14 kg). Z’s weight growth had regressed during the last 1001 days before his death.

(iii) If Z’s growth trajectory had remained unchanged, he would have weighed around 20 kg at the age of 5 years and 4 months. His final weight was only about half of his expected weight.

(iv) Prolonged food shortage would cause slow height growth and reversal in weight growth. In general, the more severe the starvation, the greater is the reversal in weight growth and the greater the discrepancy between the height and weight centile.

(v) The estimated caloric deficit for Z was equivalent to having no food for a period of between 61 days and 91 days.

(vi) Autopsy findings also show that (a) Z’s gut was empty of food residues and his large bowel was loaded with dry fecal masses, suggesting that he had not eaten and had not moved his bowel for days before his death; and that (b) all the internal organs of Z had atrophied, suggesting that starvation must have gone on for a long time.

(vii) Z suffered a multitude of physical injuries, 129 of them were still visible at autopsy. The number of injuries, which distributed widely from head to toe, reflected the ferocity of beatings that Z had suffered.

(viii) Evidence of child abuse and neglect included:

(a) Prolonged starvation;

(b) Extensive physical injuries found on the body of Z, which were all non-accidental in nature and could not have been self-inflicted;

(c) Torn labial frenulum which could have been resulted from force-feeding or, more rarely, from severe blow to the mouth;

(d) Circumferential abrasion on penis, the appearance of which was consistent with having a string tied onto the penis of Z and/or inappropriately placing the penis of the child through the neck of a bottle;

(e) Failure to seek medical attention for Z’s weight loss and eating problems;

(f) Failure to send Z to school; and

(g) Prolonged isolation in a small bedroom, which was a form of neglect and emotional deprivation.

Background/ Mitigation

49.  I have taken into account the points of mitigation by the defendant’s counsel Mr David Boyton.  I have read the letters in mitigation written by the defendant, the defendant’s daughter X, the defendant’s brother the defendant’s friend, Ms Lin and Reverend Poon and Reverend Lam.    I have also given consideration to the defendant’s medical report and the two psychiatric and psychologist reports which this Court called for prior to sentencing. 

50.  The defendant is now 37 years of age.  She was born in Mainland China on 24 November 1988 and came to Hong Kong in 1998.  The defendant was educated in Hong Kong up to secondary Form 4.  She is the sixth amongst seven siblings. Her parents are divorced and live in Hong Kong.  Her father is retired in his 80’s and her mother in her 70’s. 

51.  She had previously worked as a waitress, salesperson (shoes) and a promoter.   At the time of her arrest, she was unemployed.  She had been unemployed since the birth of her eldest child and been on CSSA intermittently.

52.  In January 2023, whilst on remand for the present case the defendant gave birth to another daughter V.  The daughter is in Vietnam and being looked after by her former boyfriend’s family.  The child is due to return to Hong Kong this month.

53.  Since the defendant’s remand, the medical authorities have discovered a hereditary liver disease that the defendant is suffering from and now requires regular medication.

Criminal record

54.  She has 2 criminal records for Possession of Dangerous Drugs in 2018. She was sentenced to DATC for both offences, the latter order was made on 13 February 2018. 

The defendant’s medical report dated 1 June 2026

55.  The defendant’s medical report was compiled by Dr Yip Hiu Yan Yanny a resident doctor at the Kwai Chung Hospital.  The majority of what is stated in the defendant’s medical report have been referred to in more detail in the two psychiatrists report.

Psychiatrist reports

56.  The psychiatric reports were compiled by Dr Dorothy Tang and Dr Yip Kimberly Kin Yan. 

57.  The contents of the two reports can be summarized as follows.  The defendant started using heroin at the age of 18 years and methamphetamine since 2019. Her last dose of methamphetamine was the day before her arrest. In her teens she took cannabis and MDMA. 

58.  She was formally known to mental health services in 2006 for over dosing on 90 tablets of Panadol after having taken various illicit substances.  She was impressed to be suffering from adjustment disorder, mental and behavioural disorder due to multiple drug use.  She defaulted after she was discharged.

59.  The defendant was assessed by a psychiatrist after she gave birth to X in March 2014, she admitted to the continued use of heroin.  She was certified to be mentally unfit for childcare.  She was referred to the Comprehensive Child Development Service (“CCDS”) clinic of Kwai Chung Hospital (“KCH”) in September 2014.  She was last seen in September 2014 and eventually defaulted follow up since October 2015. 

60.  She resurfaced to mental health services at CCDS in April 2017 after giving birth to Z when she reported to still be an active heroin and methadone user.  She was assessed unfit for childcare due to her continued use of drugs. She reactivated her CCDS follow up in 2018 but had irregular attendance and eventually defaulted follow up since 2020. 

61.  The defendant reported increasing child care stress in 2022 after all 3 children moved back to live with her.  She reported difficulty with Z’s behavioural problems and reinstated her use of methamphetamine since June 2022 as a result.  She admitted she would become more irritable with Z especially after she had taken methamphetamine.  She admitted to have given Z corporal punishment but denied having done so with her other children.

62.  After calling the police when she found Z was dead, she climbed out of the window and wished to jump from height as she felt guilty for killing her son and wished him to die.  She admitted last hitting Z on his arms and legs a few days before her arrest. 

63.  After her arrest and since her remand on 5 September 2022 she received regular psychiatric follow up at the CCDS Clinic of KCH. 

64.  She was documented to be largely mentally stable, and was not on any anti-depressants from March 2023 to January 2026.  An anti‑depressant (Trazodone) was started in January 2026 in view of her mood fluctuations related to the legal case and worries over her children. She was last seen at the CCDS clinic of KCH on 30 June 2026. Her mood was documented to have fluctuated with worries about her daughter going to a children’s home, and worries about sentencing.  Her sleep and appetite were maintained. She was not suicidal. She was not psychotic.

Opinion and recommendation

65.  The defendant is diagnosed with history of adjustment disorder, mental and behavioural disorder, due to stimulant use, harmful use, mental and behavioural disorder, due to alcohol, harmful use, and history of polysubstance use.  The defendant had been mentally stable in the past few years since her remand, and while abstinent from illicit substance use.  In‑patient psychiatric treatment would not be necessary.  Out-patient psychiatric follow-up would be recommended.

Psychological report

66.  The clinical psychologist David L.Y. Wong opined that the defendant’s risk of reoffending of similar violent acts fell into the moderate range at this juncture.  Contributing factors included her longstanding substance use, low self-esteem, maladaptive emotional regulation strategies, limited coping strategies, poor living situation, problematic intimate relationship, limited social support, and significant parental stress.  However, her history of substance abuses and use of physical punishment, isolation, and strict restrictions in parenting raise serious concerns. Without vigorous changes, ongoing support and supervision, other children could be at risk due to her limited parenting capacity, children’s unmet developmental needs, and unfavourable family and environmental factors.

67.  He noted that the defendant appeared to have significant difficulties in her role as a mother, particularly in managing caregiving stress and responding to Z’s special needs. Overall, the defendant’s parenting capacity appears to have been significantly compromised by chronic substance misuse, poor emotional regulation, poor living environment, and limited coping skills.  Her relapse to substance use, together with limited support and difficulty accepting help and advices, appears to have reduced her ability to provide safe and responsive care to her children.  Her risk of reoffending of similar violent acts, as assessed in the current assessment, falls within the moderate range.  However, the past history of her substance abuse, and using corporal punishment, isolation, and restrictive practices raise serious concerns about the risk of future harm to other children in the absence of sustained intervention, supervision, and support.

68.  Regular psychological follow-ups are recommended as part of her substance misuse treatment, including relapse-prevention work.  She would also benefit from psychological intervention to help her manage negative emotions, build healthy relationships, improve her parenting and coping skills, and rebuild her self-esteem.  Regular drug monitoring, career planning and practical parenting support would also be beneficial.  

69.  Any future contact with, or caregiving responsibility for her children should be carefully assessed and supported through close supervision where necessary, with the active involvement of appropriate family members and/or social services.

The defendant’s letter in mitigation

70.  In the defendant’s letter of mitigation the defendant stated she is feeling a “deep sense of remorse, pain and self reproach for her mistake which has driven her to reflect profoundly on her failed past” since her incarceration in September 2022.  She claimed she was ignorant with only Form 4 education.  At the time of the offence, she was pregnant with her fourth child, her family finances were disrupted because of the Covid pandemic, her frequent conflicts with her boy-friend Dinh (and father of Z, Y and V) left her overwhelmed which ultimately led to her neglect of Z.  She claimed she lacked the wisdom to properly handle Z’s medical issues.  When Z vomited she believed blindly that it was due to Z’s excessive activity after meals therefore failed to take him to see a doctor.  Despite her emotional stress and pressure she felt, she refused to seek assistance from social workers fearing she would lose her children.  She forced herself to pretend everything was normal.  She states that she detests herself nor can she ever forgive herself.  However she has now found Christ and she can turn over a new leaf.  She prays for a chance at a new life, an opportunity to reform herself to return to society and to her family. She feels ashamed for the negative impact she has brought upon society. Regarding this, she is fully willing to bear her legal responsibilities and accept punishment.  She begs the Court to grant maximum leniency in sentencing, to give her a second chance so that she may return home as early as possible to resume her responsibilities as a mother and a daughter and promises never to re‑offend.

Other letters in mitigation

71.  The defendant’s daughter X states she misses her mother deeply.  She has seen a complete change in her mother since her remand. 

72.  The crux of the other letters in mitigation is that the defendant is deeply remorseful to the pain she caused Z, however during her four odd years of remand her outlook on life has undergone a significant transformation.  She has learnt to be more a person of principles and helping those around her.  Her transformation is earnest and genuine.  They request for a chance for the defendant to reintegrate into society make up for her past mistakes and begin anew and for the court to impose a lenient sentence. 

Cases and factors for consideration in sentencing

73.  A number of cases have been submitted to this court to consider. Of those Mr Boyton has submitted that the often cited case of HKSAR v. Lam Wai Man [1999] 3 HKLRD 855 is a good reference point, as in the present matter, that case involved a defendant who pleaded guilty to similarly charged offences of ‘manslaughter’ and ‘cruelty to a child’. 

74.  The facts of Lam Wai Man are as follows.  Lam, a mother and a male took her 21-month-old son to a doctor. The doctor noticed that there were severe injuries on the child’s head and body and was in a semi-conscious state suffering from a critical brain injury.  Since he was suspicious about how the injuries had come about, and could see that the child had suffered a severe brain injury and was in critical condition, he advised that the child should be rushed to hospital for immediate treatment and said he would summon an ambulance.  However instead of taking the child to the hospital the defendant took him back home. Only on the following day was the child taken to the hospital.  When the doctor examined the child, the doctor noticed that the child was not breathing, had no pulse or heartbeat and had multiple wounds all over his body.  The child’s heartbeat was restored but he remained in a comatose state until his death a few days later.

75.  The Court of Appeal[1] regarded starting points of 9 years and 12 years’ imprisonment for ‘cruelty to a child’ and ‘manslaughter’, respectively, as being appropriate. 

76.  In Lam, the guilty plea reduced those sentences to 6 and 8 years, respectively and 1 year of the ‘cruelty to a child’ was ordered to run consecutively to the ‘manslaughter’, which resulted in a final sentence of 9 years’ imprisonment.

77.  Lam was referred to by the Court of Appeal in a later case of HKSAR v Wong Wing Man, Mandy and another [2020] HKCA 534 where Macrae VP reiterated what was stated in Lam [2] the cardinal principal of sentencing is to consider the consequences to the victim.  There can be no shirking from the fact that a very young victim died from various.

78.  The case of Wong Wing Man, Mandy has not been referred to by either counsel for the prosecution or the defence.  The facts of that case is strikingly similar to the present case but the child in that case did not die but was left in a vegetative state with permanent brain damage as a result of the defendant the mother of the child and the second defendant her husband. 

79.  The maximum penalty for the offence of cruelty to a child is 10 years imprisonment.  In that case the defendants were charged only with cruelty to a child.  The Court of Appeal regarded the starting point of 9 years 6 months imprisonment as an appropriate sentence for the offence of cruelty to a child.

80.  Another case cited was an Australian case of BW v The Queen (2011) 218 A Crim R 10 [2011] NSWCCA 176.

Discussion

81.  In cases such as these as the court of appeal has affirmed time and again, there is little utility in comparisons with sentences passed in other cases.  Each case will turn on its own particular facts of the offence and the offender.  However it is noted that in Wong Wing Man Mandy and in BW the facts of those cases are comparatively similar to the present save that in Wong Wing Man Mandy the child did not die.

82.  In Wong Wing Man Mandy, the facts were as follows. The defendant took her daughter aged 7 years to the accident and emergency department at the hospital.  The defendant had custody of the child for about 8 months prior to taking her to hospital.  At the time, the child was unconscious and had to be pushed in a pram.  She had suffered a cardiac arrest, was not breathing and had no pulse.  Tubes were immediately inserted into her windpipe and her heartbeat was restored, but she required the assistance of a ventilator to maintain consciousness. 

83.  The doctor described the child’s condition when she was admitted as pale, breathless and without a measurable pulse.  She had muscular atrophy, fatigue, loss of appetite, multiple pressure sores on her elbows and heels, along with bruises all over her head and abrasion wounds over the soles of her feet.  His initial observation was that the child was suffering from severe malnutrition, with the likely cause being chronic illness and child abuse.  It was his evidence that the child’s poor skin condition, multiple pressure sores and the contracted state of her limbs, could only be explained by chronic immobility.  He said this was something only usually seen in elderly patients.

84.  The defendant had willfully neglected her child by failing to provide her with adequate food, sustenance and medical aid.  The medical evidence clearly established that the child was a victim of starvation and neglect, as evidenced by her wounds, bedsores and general condition.

85.  The defendants were sentenced by Zervos J[3] (as he then was).  His reasons for sentence are highly persuasive and I have taken them and what Macrae VP stated in that appeal into account. 

86.  In the present case the defendant apart from the charge of cruelty to a child is also charged with manslaughter.  I bear in mind that for the offence of manslaughter the maximum penalty is one of life imprisonment.  The maximum penalty is intended for cases falling within the worst category and its seriousness.  I consider the range of the defendant’s conduct covered by this offence falls within the upper end.  In this case the criminal negligence involved a high risk of death, not just of serious bodily har.  It would have been obvious to the defendant her deliberate starvation of Z would cause his death. 

87.  I reiterate what is said at the beginning of my reasons for sentence.  This is a horrid, devastating, heart breaking and tragic case of Z being subjected to regular and prolong cruelty, violence, deprivation of food, drink, play, education and social interaction by his mother, the defendant.

88.  Upon Z’s death, he was found covered in injuries.  He was emaciated to a state of skin and bones.  The commission of these cruel and calculated acts of cruelty and neglect expose a savage nature utterly devoid of the empathy inherent to motherhood.  It is appalling and unfathomable at how a mother can be so cruel to do that to her own child.  The defendant’s drug addiction is no excuse.  The defendant’s other children X and Y living with her were not treated in the same manner. 

89.  Being in the 25th centile (or percentile) for height means that if you lined up 100 healthy children of the exact same age and biological sex in order from shortest to tallest, your child would be number 25 in line.  As a result Z was taller than 25% of children their same age and sex.  Shorter than 75% of children their same age and sex.

90.  His final weight at his death was only 9.7 kg it was far below the 3^rd centile of around 14 kg.  He was less than half his weight about 2 years previously when he was 2 years 9 months old. 

91.  The defendant act of starving Z to death is not merely an act of violence it is a protracted, cold-blooded annihilation carried out with the patience of a torturer.  Such a person is not driven by a flash of rage but by a profound and chilling nullity of conscience.  The starvation was over a prolonged period to the severity that it completed stunted his growth Z was only 10 cm taller than when he was 2 years 9 months that is about 3 years later. 

92.  The stomach-turning photos of Z show the extreme state of emaciation. He was a little child that was skeletal, almost bare bones and skin.  The defendant was fully accountable for his deliberate starvation. 

93.  In January 2022 the defendant’s friend Ms Lau noticed that Z was thin.  The social workers saw Z respectively on:

i. 1 December 2021[4];

ii. In April 2022[5] and

iii. In June 2022[6]

It is incomprehensible that when the social workers saw Z they were unable to observe a skinny and stunted Z. Their observations were over the period of the 1001 days (just over 2 and half years) referred by the pediatric doctor as to the effect on Z’s height and weight which was noticeable abnormal condition. The last visit was a mere 3 months before Z died from starvation. It strains the imagination to think that Z’s life may have been spared.

94.  The defendant isolated Z in the bedroom she would not let him off the bed, she tied up limbs to restrain his movement.  In X’s VRI she stated that the defendant would trap Z on the bed. The defendant also told Z that she would hit him if he left the bed.  The defendant and Z slept in the bedroom whilst the defendant’s elder sister, X and Y slept in the living room.  Z mostly stayed in the bedroom and she seldom played with Z as the defendant forbade it. Z was only allowed to leave the bedroom a few times a week. Z would sometimes have his meals and even urinate in the bedroom. 

95.  It is clear from Z’s injuries the defendant beat him with frequency.  The injuries found on his body upon his death were fresh and appeared to be inflicted within 1 to 2 days prior to death.

96.  This was not an isolated act or a single episode of child abuse or neglect.  A defenceless Z was subjected to physical and psychological abuse for a long time by the defendant whose cruelty knew no bounds. 

97.  For the reasons stated above I wholly reject the defendant’s claim that she was ignorant because of her limited education and that she lacked the wisdom to properly handle Z’s medical issues.  This is not a case of ignorance as the other children were looked after by her.  The defendant deliberately concealed Z from his teachers at school by removing him from attendance.  She was well aware that if the authorities knew of Z he would be withdrawn from her care.  She was calculating and sadistic in her actions. 

98.  In Wong Wing Man Mandy Zervos J stated [7]:

“142. A crucial factor that must be taken into account when sentencing for this offence is the need to protect the young and the vulnerable, as well as the need to deter abuse or neglect of them. Other crucial factors to be taken into account are the age and circumstances of the child; the relationship between the offender and the child as well as the responsibility the offender had for the child; the nature, degree and duration of the ill-treatment or neglect of the child; the suffering and injury to the child; and the long term prospects it will have on the child both physically and psychologically.

143. This was a case of extreme cruelty to a child over a protracted period. There was deliberate, sadistic and systematic abuse of Yun Lam. The offence was aggravated by the following factors. The 1st defendant targeted one particular child of the family, Yun Lam. She isolated Yun Lam, and prevented her from disclosing or revealing the abuse to which she had been subjected, and from others becoming aware of it. She engaged in deliberate concealment of Yun Lam from the authorities. She failed to seek medical help for Yun Lam in clearly grave and obvious circumstances. She also abused the power and the position of trust as a mother over Yun Lam.

….

146 It is hard to imagine a case much worse than this one and it clearly falls within the category of cases for this offence of the worst case of its kind.”

99.  Sadly and unfortunately this is yet another such case.  I take into account and adopt the factors observed by Zervos J[8].

100.  This was a case of extreme cruelty to a child however over an extremely lengthy period of time.  It was a deliberate, sadistic and systematic abuse of Z.  The aggravating factors in this case was that the defendant isolated Z from his siblings and school.  She deliberately concealed him. He was a prisoner in his room barbarously confined to small bed as a living space.  She deliberately starved him to death.  She abused her power and position of trust as Z’s mother.  The injuries inflicted were all over his body including his penis. 

101.  The defendant plea of guilty demonstrates her remorse but her pleas in the light of the catastrophic suffering she inflicted on Z carries little weight.  She is instrumental in what can only be a very lengthy custodial term.

102.  The objective gravity of this offence comes within the worst category of the crime of gross negligence manslaughter.  The defendant showed no care for Z’s wellbeing and reflected a fundamental, cruel and abject failure to love and care for a mentally disabled child.  I can envisage nothing worse than the present case. 

103.  I have regard that the maximum penalty is one of life imprisonment.  I bear in mind the sentence must be proportional to the criminality of the defendant. In the present case it is necessary for general deterrence and punishment making the defendant accountable for and denouncing her actions and inactions. Having considered all the circumstances, the defendant is sentenced to the following:-

Sentence

104.  Charge 1 – had the defendant been convicted after trial I would have adopted a starting point of 30 years imprisonment.  As the defendant pleaded guilty at the earliest opportunity, she is entitled to a discount of one third of the starting point, resulting in a sentence of 20 years imprisonment.

105.  Charge 2 – had the defendant been convicted after trial I would have adopted a starting point of 9 years and 6 months imprisonment.  As the defendant pleaded guilty at the earliest opportunity, she is entitled to a discount of one third of the starting point, resulting in a sentence of 6 years and 4 months imprisonment.

106.  The Court of Appeal in Lam Wai Man[9] affirmed that a partly consecutive sentence was appropriate in the gravest cases of its kind.  This is one such case. 

107.  I have born in mind the principle of totality.  In the circumstances of this grave case, I order that 2 years of charge 2 is to run consecutive to charge 1 the remainder to run concurrently.

108.  The defendant is sentenced to a total term of 22 years imprisonment.