HKSAR v. TAM HON WAH, KEN

DCCC 119/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 119 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.  This is a case of child cruelty; the victim is only a 3-month old baby girl at the time of the offence, the culprit is her biological father - the defendant, a 40-year-old man. It was the babysitter, Madam Chiang, who discovered an unusual mark on the body of the infant, which led to the investigation by the police.

2.  When the infant was taken to the hospital, the doctors found not only bruises on her, but also broken ribs and symptoms of “Shaken Baby Syndrome”, namely, brain bleeding, retinal hemorrhage and brain swelling.

3.  The defendant admitted to the police that he had shaken his daughter to stop her crying.

4.  The defendant pleaded guilty before me to one count of Ill-treatment of child by a person in charge of that child, contrary to section 27 (1) of the Offences against the Person Ordinance, Cap 212.

Particulars of Offence

Tam Hon Wah, Ken, between 13th day of October 2015 and 19 day of January 2016, both days inclusive, in Hong Kong, being a person over the age of 16 years who had the custody, charge or care of X, a child under the age of 16 years, namely, the age of about three months old, willfully assaulted and ill-treated the said X in a manner likely to cause the said X unnecessary suffering or injury to her health.

Facts

5.  The defendant had been co-habiting with a woman, Madam Yue, who has borne him a baby girl on 13 October 2015. As the couple was both working, they found a babysitter, Madam Chiang from a local charitable group, in December 2015 to look after their daughter during the day. The defendant would take the girl to Madam Chiang’s home in the morning and the mother would collect her in the evening.

6.  The matter came to light as a result of the discovery by Madam Chiang for the first time on 19 January 2016 a bruise mark about the size of a 50-Cent coin near the girl’s private part.  Madam Chiang told the mother about it later in the evening when she came to pick her up, but was amazed by the apathy of the mother. The matter was then brought to the attention of a social worker and eventually involved the police.

7.  The baby girl was taken to a hospital for examination and treatment, and the doctors found the following injuries.

The injuries

Bruise

“There were bruises on the right and left buttocks of the infant”

Neck

“She suffered from neck hypertonia. The girl developed new neurological abnormalities in that she had increased muscle tone of her neck and brisk lower limb jerks, which was a sign of injury to the brain. It’s very likely that the abnormalities would become more full blown as shegrows older, and in the future she might have impairment of movement of her limbs.”

Bone fractures

“4 broken ribs (3 at right posterior rib, 1 at left posterior rib) with callus formation and fracture at right wrist.”

“Shaken Baby Syndrome”

Brain bleeding

“The girl was found to have a full anterior fontanelle and an increase in head circumference, meaning there was a growing lesion in her brain, which was the consequence of bleeding inside the brain after trauma.”

“It was confirmed by the MRI brain scan performed on the girl on 25 February 2016 that there were multiple layers of recent bleeding in the subdural space on both sides of the brain (bilateral subacute subdural hematomas), which may suggest that the brain injury did not just occur once.”

Retinal hemorrhage

“Serial eye examination showed resolving retinal hemorrhage but with persistent optic disc swelling”

Brain swelling

“The girl’s brain had an “enlarged subarachnoid space”, namely, bilateral subdural effusions over both frontoparietal cerebral convexities, measuring about 9mm (right) and 1.2cm (left) in thickness. Ventricles of the brain were slightly prominent. Follow-up CT brain scan on 18th February 2016 revealed increasing subdural effusion over both front-parieto-temporal regions. This effusion was likely the result of bleeding into the subdural space of the brain.”

Doctor’s opinion

“The mode of injury of the rib cage was a face-to-face forceful gripping injury by both hands of an adult. The rib injury plus the brain and eye injury are common in cases of shaken baby syndrome.”

“The findings of subacute subdural hematomas, multiple fractures at atypical sites, bilateral retinal hemorrhage with disk swelling and bruises at atypical sites were compatible with abusive head trauma, which was caused by deliberate forceful shaking of baby for some time. The injury may contribute to subsequent neurological impairment and visual impairment. Future long-term monitoring of neurological and visual development will be required.”

Defendant’s admission

8.  Apart from the defendant’s own version of events, there was no eye-witness in the case who could tell us what really happened. After his arrest, the defendant told the police, among other things, the following:-

(1)- In the morning of 19 January 2016, when he was feeding the girl, he accidentally caused the buttock of the girl to hit a pointed corner of the bed. She cried heavily after the hit, and he thought it was just normal;

(2)- As to the rib fractures and bilateral retinal hemorrhage, he believed that it was caused by his strong hugging of the girl about three months ago as he thought she was cold and need to get warm;

(3)- As to his family relationship with Madame Yue, he was stressed with financial difficulty in maintaining the household. He was also stressed with long working hours and the need to spend time to take care of the girl;

(4)- He was very tired mentally and physically, and as such, in the course of taking care of the girl, he did grab her up and shake her horizontally to stop her from crying. He did not pay attention to his strength in grabbing the girl and he was just constantly shaking her and he was careless in taking care of the girl.”

The current well-being of the girl

9.  The victim is now 2 years old. In her report, Dr. Leung, a pediatrician, wrote that:-

“X remained clinically stable with normal growth and development after discharge from Queen Elizabeth Hospital in January 2016…………….Latest magnetic resonance imaging of the brain on 23^rd June 2016 showed interval reduction in size of bilateral subacute subdural hematomas. However, cerebral atrophic change was noted”

“X was last seen at our neurology clinic on 17^th May 2017. She was well and asymptomatic upon follow up with no active complaint. Her growth and development was appropriated to age………………….”

Background as well as Psychologist’s Reports

10.  The case was adjourned to enable the above-mentioned reports to be prepared on the defendant.

11.  As is mentioned in the background report, Madam Yue, the mother, has left the defendant since May 2017, and in the concluding paragraphs of the report, the probation officer wrote: “…………. Meanwhile, defendant seldom visited X and appeared apathetic towards X’s welfare. Feeling dissatisfied with defendant, Madam Yue separated with him. She was ready to shoulder parental responsibility over X single-handedly.”

12.  The court heard that the defendant only admitted being careless in handling with his daughter and denied any intentional acts of violence towards her, and he also missed his daughter. Insofar as the couple’s relationship is concerned, the mother has decided to break it off and go their separate ways, so at least for the time being the couple isn’t getting back together in the foreseeable future. That would mean the mother would be the sole or main carer of the child victim.

13.  When being interviewed by the psychologist, the defendant admitted that “He has shaken his baby daughter on two occasions in order to stop her crying when his girlfriend was not around. He insisted that he did not mean to injure his daughter. He stated that he was frustrated when he heard his daughter cry.”

14.  In paragraph 11 of the report under a heading “Clinical Impression”, the psychologist wrote:-

“……He was an impulsive, irritable, and reserved person. He was poor in communication. His tolerance of frustration was low. His problem-solving ability was inadequate. It seemed that Mr. Tam (the defendant) was annoyed when he found his 3-month-old daughter crying. Without any experience in childcare, Mr. Tam shook the baby to stop her crying. There was no indication to suggest that Mr. Tam had a history of violent behavior other than the current offence. Mr. Tam expressed remorse for his violent behavior. It appeared that Mr. Tam did not have a direct access to his daughter after the present offence. In view of the nature of the present offence, criminal record, and personality, Mr. Tam’s risk of re-offending was assessed to be low.”

Mitigation

15.  The defendant has one prior conviction of indecent assault in 2005 for which he was given a community order to do unpaid work for 100 hours.

16.  Counsel for the defendant did not have much to put forward in mitigation apart from saying that the defendant has shown genuine remorse for what he had done and emphasizing that the risk of his re-offending is assessed to be low.

17.  In his letter to the court, the defendant once again expressed his remorse and admitted he was not a father worth his salt, but would do his very best to become a competent one.

Reasons

18.  The child victim in the instant case, a 3-month-old infant, falls into the category of what we call “the particularly vulnerable victim”.

19.  It hardly needs telling that handling an infant like this requires extreme care; given their fragile constitution, any mishandling would likely result in serious harm to them.

20.  This is your first child, you might have difficulties in coping with the problems of infancy through lack of experience, but one thing you should never do is to take it out on the baby whenever you get frustrated with it.

21.  Your daughter cannot tell you what her problems are because she cannot talk yet. Perhaps the only means of communication in the circumstances is by way of crying. She might be feeling uncomfortable because she's hungry or feeling too warm or too cold.

22.  I'm no expert in childcare, but I believe their crying is some kind of a signal of something going on about them. You just have to be patient to find out what it was.

23.  You gave an explanation to the police for the rib fractures and retinal hemorrhage of your daughter that “it was caused by your strong hugging of her about three months ago as you thought she was cold and needed to get warm.”

24.  As the doctor who examined your daughter has described the rib fractures with callus formation, that were signs of healing, and it would mean the injuries were sustained some time ago. You said 3 months ago, I am not so sure about that, but certainly the injuries were not recent ones.

25.  Anyone who had suffered broken ribs could tell it was a very painful experience. On the available evidence before the court, nothing was said by the defendant about going to the doctor or hospital when it occurred, and that would mean she was left to suffer the pain for days if not months.

26.  You said because you hugged her too strongly which broke her ribs, I think you used the word “hug” trying to water down the situation. If you had little genuine affection for her, the fact that you cradled her would not have caused injuries to her.

27.  I think it more likely the case that you shook her while you were beside yourself with fury at the crying of your daughter, and it must be a violent one judging by the seriousness of the injury she had suffered.
In fact you had told the psychologist, Dr. Pau, that you had shaken your baby daughter on two occasions in order to stop her crying when your girlfriend was not around.

28.  The injuries suffered by the baby girl, i.e., broken ribs and wrist, brain injuries etc., are undoubtedly very serious amounting to grievous bodily harm. And remember when she sustained the injuries, she was not given any immediate medical help; her suffering was therefore prolonged unnecessarily. The only consolation is the girl has made an almost full recovery, there is no evidence to suggest that she would suffer any permanent disability, but in any event, it has nothing to do with the defendant.

29.  The court views this matter very seriously and in passing sentence, the primary aim is to protect the very young children. I can understand why the defendant did it because of the lack of parenting skills, inability to control emotions etc., but this could never be the excuse. The defendant should know very well shaking an infant could easily cause harm, and even death to the infant.

30.  The facts of the present case are serious, and in my view, warrants the imposition of a custodial sentence. There is no question of depriving the child victim of her sole or main carer by the imprisonment of the defendant, because she is now solely in the mother’s care and the couple is not going to live with each other anymore.

Sentence

31.  Under the current law, people found guilty could face up to 10 years in prison – the maximum term in child cruelty cases.

32.  For the reasons given above, I take 3 years as starting point, and reduce it to 2 years to reflect his plea, and there exists no other reasons justifying a further reduction in sentence, the defendant is therefore sentenced to 2 years’ imprisonment.