HKSAR v. C.H.P. AND OTHERS

HCCC 28 /2020 & HCCC 29/2020
[2021] HKCFI 1069

HCCC 28/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 28 OF 2020

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and

HCCC 29/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 29 OF 2020

__________________________________

R E A S O N S   F O R   S E N T E N C E

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1.  This is a serious case of child cruelty.  There are three defendants.  D1 and D2 were jointly charged with the followings:

(1) One count of Murder, the deceased being Z, in HCCC 28/2020;

(2) Two charges of Cruelty to a Child, in relation to two children, Z and X, in HCCC 29/2020.

2.  D3 is charged with four counts of Cruelty to a Child, also in relation to Z and X, in HCCC 28/2020.

3.  D1 and D2 pleaded guilty before a Magistrate to the Cruelty charges and were committed to the Court of First Instance for Sentence.  In relation to the Murder charge they offered to plead guilty to Manslaughter but was not accepted by the Prosecution.  They stood trial for Murder and were both found guilty after trial.

4.  D3 was found guilty of two counts of Cruelty, which allege wilful neglect on her part to the two children.  She was found not guilty for the two counts which allege wilful ill-treatment of the two children.

5.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, personal background of the defendants and mitigation put forward on their behalf.

BACKGROUND

6.  D1 is the natural father of Z, a girl at the age of 5 when she passed away.  He is also the natural father of X, who was at the age of 7 ‑ 8 at the material time.  After having divorced M, the natural mother of the two children, D1 married D2.  D3 is the mother of D2.

7.  After M had moved out of the matrimonial home, the Fu Tai flat, D2 moved in with her daughter Y.  Living there were also the mother and two younger brothers of D1.

8.  After living there for slightly less than a year, in August 2017 the family moved to live with D3, in the Trend Plaza flat.  D1 and D2 then started to ill-treat the two children, X and Z.

FACTS

9.  The facts of the case are revealed in the Summary of Facts for the charges to which D1 and D2 pleaded guilty and the evidence in the trial.

10.  The gist of the facts may be summarized as follows.

As regards Z

11.  Z started to attend a nursery in September 2015.  At that time, she had been toilet-trained without the need to use diapers.  She was also able to maintain proper hygiene and walk properly.  She did not have any special need or require any special care.  During her last days, she had to wear diapers.

12.  In September 2017, Z constantly asked for more food during breakfast.  On a day early that month, a red beating mark was noticed by a teacher on her calf.

13.  On 5 September 2017, injuries and beating marks were found on various parts of her body.

14.  In a meeting with the teachers, D2 admitted that she had beaten up Z as she was not able to take care of herself, including that she was incontinent when she was punished to stand outside her home.  The teachers advised D2 not to adopt such corporal punishment towards the girl.  D2 agreed.

15.  On 13 September, when D2 took Z to the nursery, she told teachers that there were abrasions and bruises on the head of Z, redness on her face and abrasions on her lips.  She accounted for these with innocent reasons.

16.  On 25 September, bruise in Z’s swollen face was noticed.  When queried by the teachers, D2 gave a false excuse.  She was warned that a report would be made if such unacceptable punishment continued.  She promised no more corporal punishment.

17.  Z was absent from nursery often after having moved to live in Trend Plaza flat.  She last attended nursery on 27 October.  On 11 November, D1 made an application to suspend Z from school for two months.  On 2 December D1 applied for her to withdraw from school.

18.  Since October 2017, X and Z were always wearing masks when they went out, but Y did not do so.

19.  On 5 January 2018, in the evening, D1 performed Flying High with Z.  He held her armpits and threw her up with force for a number of times, despite Z cried and asked not to continue.  In the course, D2 said words to the effect that the girl’s head should hit the ceiling.  Y said the head of Z had bumped onto the ceiling heavily.

20.  At around noon on 6 January 2018, Z collapsed at home and D1 made a report.  Z was admitted into a hospital.  When she arrived, she had no pulse and no response.  Resuscitation did not yield result and Z was certified dead at 2:38 pm.

21.  Multiple bruises and wounds all over the body of Z were found upon medical examination. Some were recent, some were old.  There was a total of 58 recent injuries, with 11 bruises and abrasions at the head, 7 bruises at the chest, 6 bruises and abrasions at the trunk and abdomen, and a lot of bruises and abrasions in the four limbs.  There were also 75 scabbed wounds, ulcers and scars, all over the body.  Two abscesses were found on the left shoulder and right knee.  The presence of scabs and scars, together with more recent injuries, indicated that there were repeated trauma on the girl at different times.

22.  The injuries were compatible with being blunt force trauma.  Some injuries were in the form of tram-line bruises and were compatible with being caused by impact with rod-shaped objects of small calibre such as rattan stick.  Some injuries were in the form of linear intradermal bruises and were consistent with contact with relatively pointed objects.

23.  There were confluent deep bruises at scalp which suggested repeated blunt force trauma which could be inflicted by impact with blunt objects or bumping against a hard surface at different times.

24.  Autopsy was performed on Z.  The cause of her death was found to be Septicaemia.  She suffered from infection mainly of Salmonella Enteritidis and also of Staphylococcus aureus in various parts of her body, including her lungs and small intestine.

25.  Weight of her Thymus, which is an important organ for the immune system of a child of her age, reduced to 5 grammes while the normal reference is 16 ‑ 40 grammes for the relevant age group.  The Thymus involution could be resulted from stressful conditions due to various causes such as infection, malnutrition, as well as prolonged physical or emotional stress.

26.  In gist, if Z had not been so ill-treated, she would not have suffered such extent and seriousness of injures and her immune system would not have been impaired. If Z had been provided with proper medical attention, she would not have suffered the infection she had.  If no such infection had taken place, Septicaemia would not have occurred in her.  Even if her health condition had become like that, if timely proper medical attention had been provided to her, she would not have died.

27.  Upon arrest, D1 made statements admitting to have hit the limbs of Z with rattan stick, he said some of her injuries were self‑inflicted and some were result of accident.  He also said, despite the girl had not been taken to see a doctor, the couple had been taking care of her wounds.

28.  D2 denied the injuries on Z had been inflicted by her.

29.  Phone messages between D1 and D2, D2 and D3 as well as D2 and a friend Madam Tsiao revealed some of the happenings and the defendants’ state of mind.

30.  There is direct evidence that D1 and D2 had hit Z with rattan stick, cloth hanger and slippers.  Z had been hit with rattan stick on her hands, feet, soles and buttocks.  D1 had punched her feet and thighs with his fist.

31.  Both of them had punished the two children to stand and copy for long hours.

32.  Besides, both children had been not allowed to eat when they did not behave.  On a few occasions, the children had been deprived of food for several days.  On many occasions, both of them were not allowed to sleep in bed but to sleep in sleeping bag.

As regards X

33.  In January 2015, X was hospitalized for infection.  He recovered uneventfully and was observed to have normal growth and development.  He started primary education in September that year, he did not require any special needs or care.  When the case was discovered, X was underweight and there were medical signs that he had been provided with inadequate food.

34.  On 5 November 2017, X was punished by D2 to stand at a corner at home.  When D1 returned home in the evening, he made X sit on air (無影櫈).  D1 also hit both thighs of X that evening, causing a large patch of bruises on X’s both thighs.

35.  On the following day, teachers noticed that his face was swollen. He even had difficulties walking up the stairs.

36.  On 7 November, he had new injuries and beating marks including bruises at his left eye, face and forehead.

37.  On 13, 15 and another day in November, X told a teacher that he was starving as he did not have food for breakfast.

38.  D1 and D2 had used rattan sticks to hit X.  His limbs, buttocks and palm had been hit.  D1 had also made him lie on the floor face down in order to hit his soles.  If X refused to lie on the floor, D1 stepped on his buttocks and make him do so.

39.  Both defendants had also used slippers to hit his face.

40.  On one occasion, D1 used scissors to poke at X’s chest.  He had also used slippers to hit his face and punched his thighs and eyes with his fist.

41.  On another occasions, having learned that X had told a teacher of the assault, D1 and D2 were furious and hit him.

42.  D1 and D2 had never brought X to see a doctor for his wounds.  D2 applied antiseptic solution and ointment on his wounds.

43.  When X was medically examined in January 2018, he was found to have more than 60 old and new injuries in his head, face, chest, trunk, buttocks and four limbs.  The injuries included haematoma, swelling, bruises, lacerations, scars, necrosis and desquamations of various sizes.  There were slap marks on his face and multiple linear marks by sticks all over his body.  There were also old laceration scars on hands, feet and chest wall likely caused by sharp objects.  There was an infected and necrotic ulcer on his buttocks reflecting that he had received no medical attention or care. Expert opinion is that this ulcer could be produced by repeated beating with rattan stick or slapping with slippers resulting in lacerations over a localized area.

As regards D3

44.  She had to work and on work days only came home after 9 pm.  From the verdict, it is clear that the jury found her to have the custody, charge or care of the two children, and despite they did not find her to have ill-treated the children in the sense of actively abusing them, they found her to have wilfully neglected the children.  The main allegations of the prosecution are that D3 failed to stop the abuse on the two children by the other defendants and failed to provide necessity to them which included food, proper place to sleep and proper medical care for their injuries.

BACKGROUND OF THE DEFENDANTS

45.  All the three defendants did not have any criminal conviction records prior to this case.

D1

46.  He is now 29 years of age.  Having finished education of F5, he had worked in construction site and been employed for unpacking of container.  He also worked part time at night sometimes in a restaurant and sometimes for a removal company.

D2

47.  She is 30 years of age, having received education to F3.  At the material time, she was a full time housewife.

48.  She is the only child in the family.  Her parents divorced when she was very young.  She was raped when she was aged 13 and again when she was 16.  Her first marriage failed because her husband was suspected to have an affair.

D3

49.  She is now 56 years of age.  She had completed education up to F3.  She had worked as factory worker and clinical assistance.  She was an accounting clerk at the time of arrest.  After the arrest, she quit the job and has not been in any employment.

50.  She divorced in 2008 and has only two relatives, namely D2 and Y.  She had not been able to see Y after the incident.

51.  She met a traffic accident in 2012.  She has been attending psychiatric clinic and prescribed with medication some of which enhance sleep.

MITIGATION

52.  The mitigation submissions for the defendants may be summarized as follows.

D1

53.  On behalf of D1, Mr Ng stressed that the family was in difficult situation.  They moved out from Fu Tai flat for the main reason of deterioration in the relationship with other family members of D1 and also difference in the ways of teaching of the children.

54.  There was hope of starting to have a happy family but things did not turn out that way.  The couple was eager to teach the children and to bring them to conform with certain family norms.  They, however, did not adopt the right approach and method. Despite the couple had thought of alternative means, they failed to do so.  In the difficult situation, the couple was in total lack of social support and they did not know the way to seek proper advice, assistance and support.

55.  Whilst accepting what had been performed on the children were wrong, Mr Ng said it was not a case of sadistic abuse and asked the court to accept that it was not out of bad motive.  It was wrong way of teaching and disciplining.

56.  Whilst also accepting that the children had been ill-treated for quite a prolonged period of time, Mr Ng asked the court to take into account that most if not all of the acts, taking individually, can be regarded as not very serious.

57.  He also asked the court to take into account that despite there was Thymus involution and the persistent ill-treatment could have been a significant cause of this, the couple was not aware of it, and the weight and height of Z were within normal range.

D2

58.  Counsel for D2, Mr Lo, echoed what Mr Ng said and stressed that the offer of plea to Manslaughter as well as acceptance of responsibility of the death of Z when she testified demonstrated her remorse.

59.  He urged the court to accept that what had been done were done in the context of teaching and disciplining the children.  He also added that, despite what had been done to the two children, there is evidence to show that there were moments of joy in the family.

60.  Mr Lo also asked the court to take into account that D2 had provided treatment to the injuries of the children and there is evidence showing that the couple was concerned about all the three children.

D3

61.  Counsel for D3, Mr Pun, highlighted that the jury did not find D3 guilty for the counts alleging that she herself had ill-treated the children.

62.  He asked the court to take into account that the time of D3 at home was limited and there were not much occasions during which she had actually seen the ill-treatment by the couple.

63.  Whilst accepting that D3 should have done more, it was not a case that she had done nothing.  Mr Pun reminded the court of the evidence that there were incidents that D3 made effort to stop further abuse and that she showed concern to the children.

64.  Despite D3 did not personally take the children to have medical care, she did urge D2 to do so.  Mr Pun stressed that D3 was in a difficult position because of the worry that if the injuries were discovered the couple would be arrested.  There is also indication that D3 trusted the injuries would heal with the treatment by D2.

65.  Mr Pun also asked the court to take into account that whilst D3 did not plead guilty, her challenge of the evidence was primarily in relation to the allegation of the ill-treatment and therefore she had not prolonged the trial unnecessarily.

CONSIDERATION

66.  The sentence for a conviction of Murder is mandatory life sentence.  My consideration is therefore focused on the charges of Cruelty to a Child for which the defendants have been convicted.

67.  The maximum sentence for the offence is 10 years.  There is no tariff for this offence as obviously each case has to be decided on its own facts.

68.  There are very few sentencing precedents which are of high reference value since cases of a similar nature and degree of severity are rare.  I have had regard to the cases of HKSAR v Lam Wai Man [1999] 3 HKLRD 855, SJ v Lam Lui Yin [2007] 1 HKLRD 248, HKSAR v Wong Wing Man CACC 200/2018 and HKSAR v Wong Wing Man HCCC 76/2017, all submitted by the Prosecution.

69.  This was a case of extreme cruelty to the two children over a period of about five months.

70.  Before considering the case in relation to the individual child, there are matters which apply to both cases and in my view should be taken into account:

(1) There were three children in the family, only X and Z were targeted;

(2) Both children suffered extensive and some very serious injuries;

(3) The ordeal lasted about five months;

(4) D1 and D2 made efforts to deliberately conceal the injuries suffered by both children, including giving untrue account to the schools;

(5) Both children were not taken to receive proper medical attention in circumstances that such action was obviously required;

(6) No such action was taken mainly for the selfish motive of avoiding legal consequence of the wrong doings;

(7) Apart from physical abuse, the children were subject to other forms of indignity punishment such as kneeling down, standing for long time and watching the family have dinner; and

(8) There must have been psychological harm to both children.

71.  On the other hand, I bear in mind that there was tension between D2 and the children, and there were occasions where the children did not behave and have displayed confrontational attitude to the parents in particular D2.  I accept D2 was under stress.

72.  I also bear in mind that there might have been happy moments in the family but in my judgment such episodes were just a few glimpses of consolation in the miserable period of life of the two children.

The case in relation to Z

73.  Undoubtedly both D1 and D2 had contributed directly to some of the injuries suffered by Z but it is impossible to tell who caused which particular injury and at what time.  That said, I am sure that each defendant continued to abuse Z over a period of about five months, knowing that the other defendant had been doing the same.

74.  D2 was the primary person who took care of Z including helping her shower, and therefore there is no reason to think she was not aware of the extent and seriousness of the injuries suffered by Z.  Despite D1 was not in the same position, undoubtedly the injuries in the face and other exposed parts of the body were noticeable by anyone seeing Z.  He himself admitted he did see D2 treating one of the ulcers.  The phone messages between the couple reveal that D1 was given a pretty good idea of what had been happening to Z.  His response on occasion amounted to inciting or encouraging more severe conducts on the girl and his explanation that it was to calm his wife down defies common sense. In addition, the girl must have shown signs of having been physically abused seriously.

75.  I am sure that I can draw the inference that both defendants continued to inflict injuries on Z knowing that she had been suffering from abuse serious in nature and degree, and from time to time inflict injuries repeatedly on the same location sometimes when the injuries had not healed.  The ulcers at the shoulder and the knee were dreadful examples of this sort of conduct.

76.  The assaults on Z were performed not only with bare hands, most of the time rattan stick was used, sometimes slippers and cloth hangers were used.  Such items were applied on various parts of the body of Z.  The inference is that the fragile and vulnerable part of the body, namely the head had been hit with considerable force at different times.  Although there is no direct evidence as to who caused the confluent deep bruises in the head but there is evidence that D1 had used slippers on the face of Z and D2 had used slippers on the head of Z.

77.  Flying High could also be a cause to the bruises in the head, in the light of the evidence of Y that the head of Z had bumped heavily onto the ceiling and the medical opinion that some bruises could have been caused 1 ‑ 2 days prior to the death.

78.  It must also be noted that it is the opinion of the expert that Z should have displayed signs of her serious deterioration in health and it was in this circumstance that Flying High and Imitating Superman were performed on her.  On that evening, she was also told to walk as a mean of punishment.  Then the two children were not allowed to sleep in bed but had to sleep in sleeping bag on the floor instead.

79.  Apart from hitting, Z had been subjected to other abuse including standing and walking punishment, deprivation of food for days, order to kneel down, and tying up of hands.  As on the day prior to her death, from time to time she was not allowed to sleep in bed but in sleeping bag instead.  All these, if not performed by both defendants, were performed by one of them in the presence or knowledge of the other.

80.  Tying up of the girl was said to be done to prevent her from stealing of food and scratching of her wounds.  The allegation of stealing of food makes no sense in the circumstances as Z was only taking food at home when she was deprived of it.  As regarding scratching of wounds, there are many other ways to prevent it and the most effective would have been to provide the girl with proper medical care.

81.  Z had not been taken to see a doctor, in situation where any reasonable man would have appreciated the need for proper and timely medical attention.  Even though treatment had been provided by D2 to Z, the treatment provided was obviously not appropriate and sub-standard, and was performed with the selfish motive of concealing the abuse and the injuries.

The case in relation to X

82.  X was also subject to severe repeated physical abuse during the same period of time. The extensive injuries were caused by the two defendants despite it cannot be said with precision who caused which and at what time, save that there is clear evidence of punching by fist and poking by scissors by D1.

83.  There is also evidence that in serious situations, D1 hit X with rattan stick for more than 30 times.  X had also been punished by physical abuse after the school had been made aware of the ill-treatment on him.  Besides, he had been deprived of food to an extent that he became underweight and displayed medical sign of malnutrition.

84.  There were other forms of punishment including standing and copying for long hours, deprivation of food and sleeping in sleeping bag instead of bed.

85.  Apart from the physical harm, the psychological impact on the boy cannot be ignored. It is quite likely to be long term.  Medical report indicates that he has been followed up by social worker and clinical psychologist.  I have considered asking for an impact report but at the same time was concerned whether it would be in the best interest of the boy to do so.  I was told by the prosecution that X did not want to be interviewed for this purpose.  Having heard submission from Counsel of all parties, no impact report was asked for.  I have indicated that I am minded to consider the case on the basis that there is psychological impact on X, which without the benefit of report I assess to be at least not insignificant.  This assessment is accepted by Counsel.

The case against D3

86.  I am sure that it was the finding of the jury that there had been occasions where D3 was aware of the serious ill-treatment of the two children and did not take steps to prevent the continuation of such conducts and she failed to bring the children to seek medical attention realizing the serious condition each of them was suffering.  These are the more serious allegations the prosecution made against D3 and there is clear evidence in support of these allegations.

THE SENTENCE FOR THE CRUELTY OFFENCE

D1 and D2

87.  What the two defendants did on Z ranks as one of the worst cases of its kind.  In my judgment, only a starting point of 9 years 9 months is sufficient to reflect what the two defendants had done on Z and I do not find there exist good reasons for not applying the same starting point to both of them.  Both counsel for D1 and D2 did not seek to distinguish the culpability between the two defendants.

88.  As regards the charge in relation to X, I am of the view that only a starting point of 9 years is sufficient and appropriate, for both defendants.

89.  Both of them pleaded guilty to the charges at the earliest opportunity, both are entitled to a 1/3 discount for this reason.  I do not consider there is any other matter which justifies a further discount.

90.  The court had heard evidence from the psychiatrist called by the defence that D2 was at the material time suffering from a severe episode of depression and her judgment ability was impaired.  The psychiatrist called by the prosecution was, however, in the opinion that D2 was not suffering from depression nor was her judgment ability materially affected.  I am not in a position to know the finding of the jury in this regard but what is clear from the verdict of the Murder count is that even if D2 was suffering from depression her state of mind was not affected to such extent that she was not able to form the intent to cause Z grievous bodily harm.

91.  In the light of this finding, having regard to the whole circumstances, bearing in mind the previous tragic experience of D2, accepting the stress she had been experiencing, in my judgment she is not entitled to any further discount.

D3

92.  D3 is the mother of D2, mother-in-law of D1 and stood in the capacity of the grand-mother of the two children.  She was found to be a person having the custody, charge or care of the two children.  The ill-treatments on the two children were performed at home.  It is true that the time of her presence at home was limited, especially on work days, and I accept that she was not present during a substantial proportion of incidents where the children were subject to severe abuse, nevertheless there must be incidents that she was present but she did not stop the ill‑treatment on the children.

93.  Irrespective of whether D3 was present during the abuse, it is inconceivable that D3 was not aware of what sort of circumstances the two children were in, in particular as it was for a prolonged period of time.  Not only that some of the injuries on the children would have been obvious to her, for those which might have been covered under clothing it was her failure of duty not to take step to discover the whole picture.  Besides, in the light of the nature, seriousness and location of the injuries, it is reasonable to think that the children must have exhibited some signs arising from the injuries.

94.  In any case, even taking only into account the injuries which must have been obvious to her, D3 should have taken the initiative to take the children for medical attention.

95.  Whilst accepting that D3 had voiced out the medical need to the other defendants it was a serious case of neglect for not taking the children to a doctor, and such neglect took place in circumstances amounting to acquiescence or connivance to the conducts of the other two defendants.  In my judgment, this was her major culpability.

96.  Bearing in mind the relationship between D3 and the two primary culprits, the dilemma D3 faced is understood.  However, her reason for not taking action to stop the extreme conducts of the two defendants and not bringing the children to a doctor was a selfish one.  She was the only person who could have offered help to the children, very young in age, and might have been their only hope, but she for selfish reason decided not to do what she should have done.

97.  In all the circumstances, having regard to the fact that D3 was found not guilty for the charges alleging her ill-treatment to the children, I adopt 4 years as the starting point for the charge in relation to Z.  If D3 did not neglect in her care of the girl, her death could have been avoided.  The evidence is not sufficient for me to find that death, or even the risk of death, of the girl would have been within the contemplation of D3, however, as her neglect had contributed to it, the tragic death of Z is a matter which should not be disregarded.

98.  For the charge in relation to X, I adopt a starting point of 2 ½ years.

99.  D3 did not plead guilty, despite it was submitted on her behalf that she did not particularly challenge the evidence in relation to the allegation for which she is convicted, I do not consider the situation justifies giving her a discount for this reason.

100.  D3 is a person without previous criminal conviction record.  I have considered whether to give her discount for this reason but decided that this is not justified in the light that it was neglect in serious circumstances for a long duration.

101.  All in all, I do not consider there exist sufficient reasons to justify giving any discount to D3.

THE SENTENCES

D1

HCCC 28/2020 –	Count 1: Life imprisonment
HCCC 29/2020 –	Charge 1: 6 ½ years
	Charge 2: 6 years

102.  Taking into account the whole circumstances, having regard to totality, I order 3 years of the sentence for Charge 2 in HCCC 29/2020 to run consecutively to that for Charge 1.  D1 is to serve a total sentence of 9 ½ years in the case of HCCC 29/2020.  I further order this accumulated sentence to run concurrently with the life imprisonment imposed in the case of HCCC 28/2020.

D2

HCCC 28/2020 –	Count 1: Life imprisonment
HCCC 29/2020 –	Charge 1: 6 ½ years
	Charge 2: 6 years

103.  Taking into account the whole circumstances, having regard to totality, I order 3 years of the sentence for Charge 2 in HCCC 29/2020 to run consecutively to that for Charge 1.  D2 is to serve a total sentence of 9 ½ years in the case of HCCC 29/2020. I further order this accumulated sentence to run concurrently with the life imprisonment imposed in the case of HCCC 28/2020.

D3

HCCC 28/2020 –	Count 3: 4 years’ imprisonment
	Count 5: 2 ½ years’ imprisonment

104.  Taking into account the whole circumstances, having regard to totality, I order 1 year of the sentence for Count 5 to run consecutively to that for Count 3.  D3 to serve a total sentence of 5 years’ imprisonment.