COURT: On 22 March, last month, you were acquitted by a jury of a single count of murder but convicted of the offence of manslaughter by virtue of gross negligence. The proceedings were adjourned to today for the purpose of sentence so as to enable a report to be prepared by the Director of Social Welfare concerning your circumstances and those of your children. That is now to hand.
The circumstances which gave rise to the offence occurred on 12 and 13 February 2011. I do not intend to go into great detail as to the events as they were minutely examined during the course of the trial. In short, at around 9 am on 12 February 2011, you hit your then husband over the head a number of times with a wooden baton. That inflicted injuries to his scalp which resulted in profuse bleeding. There is no dispute that this occurred.
It has at all times been your case that you acted in this manner in order to prevent harm to your youngest child, a boy then about 12 years old. It was your case, and there was some evidence capable of supporting it, that your late husband had taken the child by the throat. Your case was that you perceived a real danger to the life of your son and that it was necessary for you to act in this manner in order to protect him.
It is to be noted, however, that you had claimed that the injuries sustained by your late husband to his head had been inflicted by other persons outside of the family residence on 11 February 2011. This is what, at first, you told various witnesses. There was no truth in these allegations as was clearly demonstrated by the evidence at trial.
It was further your case that at around 1 pm that same day, subsequent to your assault on your late husband, he sustained a fall in the area where he slept which inflicted a further injury to his scalp which also bled profusely.
You claimed that you had applied some form of rudimentary first aid to your late husband’s head and had staunched the bleeding which had been occasioned both by your assault and later by the alleged fall. The evidence showed simply that adhesive plasters had been affixed to your late husband’s wounds. It was your case, which was echoed by your children in their testimony - despite there being significant differences between your and their versions - that your late husband had refused offers to call an ambulance or a doctor. It seems that you did not query these apparent refusals.
The evidence went on to show that early on the morning of 13 February 2011, you went to wake your husband only to discover that he had died during the night. The pathologist testified that his death had been caused by exsanguination. You disputed this as the cause of death. You advanced several other hypotheses, namely a heart attack or the toxic effect of atropine which had been found in his blood, or a combination of those causes.
The pathologist, for compelling reasons, rejected those suggestions when they were put to him. In any event, it remained your position that even if the pathologist were correct as to the cause of death, then the fatal bleeding had occurred from the head injury sustained in the alleged fall and not from the injuries inflicted by you.
In support of the contention that the cause of death was other than loss of blood, the point was made on your behalf that only a limited amount of blood was found on the pillow which had been used by your late husband overnight. As memory serves me, it was suggested during cross-examination that that pillow could not be described as having been soaked with blood with which the witness agreed.
However, it was your version during an interview with the police that, after your assault on your late husband, there was, to use your words “blood everywhere”. It was also your testimony that your assault on him had caused his “face to be full of blood”. It was the evidence of the pathologist that the death of your late husband early on the morning of 13 February, for he estimated the time of death as being around 6 am that day, was consistent with profuse bleeding at the time of your assault.
The verdict of the jury, manslaughter by virtue of gross negligence, could only have been reached if they had either found that the elements of the offence of murder had not been proven or that the prosecution had not disproved your defence of lawful defence. They were directed that, in either of those circumstances, they would go on to consider the alternative verdict. Their verdict means that they must have concluded that you breached your duty of care towards your late husband to a standard so as to amount to criminality.
I wish to make it quite plain to you that the basis upon which the jury convicted you and upon which I am sentencing you is not that you assaulted your husband and caused the injuries but rather that, observing his condition from which the danger to him would have been apparent to you, you sat back and did nothing whatsoever to assist him.
There is no doubt that other than applying adhesive plasters to the head of your late husband at some or other stage, and apparently having suggested summoning medical assistance, you did nothing else whatsoever to assist him. This is despite the fact that you were clearly aware of the profuse blood loss consequent upon your assault. In the light of your own evidence, your suggestion that you did not realise that the injuries were serious cannot be sustainable. You are a mature woman and you are a mother of three children. Loss of blood to the extent that you yourself described as there being blood everywhere and his face being full of blood, cannot have failed to alert you to the very real danger facing your late husband’s life.
The observation in a not dissimilar matter of the Victoria Court of Appeal in Australia is worth repeating:
“...Although it appears from the applicant’s record of interview...that it did not occur to him that she would die if he left her unattended, it is equally clear that he knew that the extent of her loss of blood...was very serious and that it required medical intervention. Indeed, any rational adult human being, no matter how limited their medical knowledge might be, would know instinctively that major blood loss implies a significant risk of death or really serious injury which requires medical intervention.”
Simply to look at the photographs of your late husband’s head injuries graphically illustrates how obvious the severity of his wounds must have been to you at the time or times when you were cleaning him up and affixing the adhesive plasters.
If, indeed, your husband had sustained a fall which created a further injury - and the evidence on that seems to me to be equivocal - and that injury again bled, that could only have served as an additional alarm to you. There is also evidence that your late husband was seen to be bleeding from his head wounds later on the evening of 12 February, at supper time. That would have acted as a further alarm to you. That you say that, on a number of occasions, you offered to secure medical attention for him demonstrates that you realised the severity of his injuries and the need for treatment. Yet, again, you claim you did nothing positive to secure medical attention for him that evening.
Merely to ask someone whom you had assaulted, and who possibly also had sustained a fall, whether he thought that he needed medical attention and meekly to accept his refusal is simply unrealistic and cannot discharge your duty of care towards him. It does not suffice for you to say that he liked being left alone. You were fully aware of his injuries which must have caused you to doubt his ability to make such a decision for himself, yet you did not even so much as summon an ambulance and let the ambulance staff assess your husband’s condition.
The result of the massive blood loss which you have described and the ongoing bleeding observed around dinnertime was such that a reasonable person in your position would have realised that your husband was in real danger of suffering really serious injury, or even death, unless he received appropriate treatment. You simply went to bed despite having seen that he was injured and made no effort even to keep an eye on his condition.
It is against that background that the sentence is to be determined.
The proceedings against you early on took an uncommon course. You instructed your representatives to make an application for your discharge after committal on the count of murder on the basis there was no prima facie case for you to answer. The application was made to, and granted by, a judge of this court.
The prosecution was dissatisfied with that outcome and appealed to the Court of Appeal. The Court of Appeal allowed that appeal. You spent a substantial period of time in custody until your successful application. I have no difficulty in understanding that your initial success on your application would have buoyed your spirits and that the reversal of the decision by the Court of Appeal would have been a disappointment, to put it mildly.
I can also understand, in the circumstances of this case, how your initial but short-lived success may well have coloured your decision as to the course you should follow once the proceedings were once again in train against you.
In its judgment on the successful appeal against your discharge, the Court of Appeal passed several general observations. Of course, when it did so, it did not have the benefit of having heard the evidence and, in particular, of seeing it tested by way of cross-examination. That has now come to pass. There was scant evidence in the trial itself, perhaps as opposed to on the papers where, in any event, there were conflicts between the statements of you and your various children, that your late husband was a man of difficult disposition and temper; rather, the evidence demonstrated him to be a person who preferred simply to be left alone and of whom there were descriptions as being a loving father.
The consequence of the matter proceeding to trial is that your children were subjected to the unenviable task of testifying in the prosecution’s case against their mother, sitting in the dock in the courtroom. That must have been a dreadful experience for each of them following on the death of their father. The fact that they sought to minimise the effect of their evidence against you to the extent of contradicting earlier statements they had made, as well as one another, was an unedifying spectacle even if it were understandable.
This was a situation which you had the opportunity of avoiding but against which you decided. Of course, that was a decision that you were perfectly entitled to make but the fact remains that you consciously chose the course that would subject them to testifying and being cross-examined.
I have had careful regard to the very helpful Social Welfare report prepared at my request. I have also had regard to two mitigation letters, one written by your three children, as well as the submissions made on your behalf by counsel. He particularly urges me that the time which you have already spent in custody is sufficient in the circumstances of this matter. I do not agree.
I do not doubt the sincerity of your children when they express their concerns for their wellbeing and future if you were to be returned to custody. However, it is clear from the Social Welfare report that they will be able to live, together, in your present home with your elder daughter acting as temporary guardian. They will continue to be financially provided with support. There will be intervention from social workers. Psychological and therapeutic services will also be made available to them. They are, and indeed the community of Hong Kong is, fortunate to have such a sophisticated social welfare scheme available.
This being a case of manslaughter, I am not required to identify a starting point and then make whatever allowances may be appropriate. I accept that your failure to secure medical intervention for your late husband puts the level of criminal negligence towards the lower end of the scale, which should be reflected in the sentence.
I judge, in the circumstances which I have outlined, that this is a matter which calls for a period of imprisonment and that the appropriate sentence is one of 4 years’ imprisonment. That is the sentence which you will serve.