HKSAR v. DING YUK KWAN

CACC 24/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 24 OF 2008

(ON APPEAL FROM DCCC NO. 752 OF 2007)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.  This is an application for leave to appeal against sentence.

2.  On 4 December 2007, the applicant pleaded guilty before Judge Mackintosh in the District Court to an offence of cruelty to a child, contrary to section 27(1) of the Offences against the Person Ordinance, Cap 212.  The charge asserted that the applicant on or about 28 March 2006 being a person who had attained the age of 16 years and having the custody charge or care of his son, who was then a child aged four months, wilfully ill-treated the child “… in a manner likely to cause the said child unnecessary suffering or injury to the said child’s health.”

3.  At the date of the offence, the applicant was aged 31 years.  He lived in Tseung Kwan O with his parents, his common-law wife and their two children, namely, the child in question (a boy), as well as a girl who is a little older than the boy.

4.  The applicant was not a person of previous good character and at the time of the offence he was on the run from the police.  He has a string of convictions for offences of dishonesty, but none for any offence of violence.

The facts

5.  The broad facts of the offence are these.  The baby in question was born in November 2005, prematurely.  He suffered from a number of complications, none of which remains of relevance.

6.  On 28 March 2006 the baby was brought to the hospital in Tseung Kwan O by his mother.

7.  The baby suffered three convulsions that day: one at home, witnessed by the mother prior to admission, with loss of consciousness and two further attacks after admission.  The child had bruises over his right periorbital area and a CT scan was performed which showed intracranial haemorrhage.  Petechiae were noticed over the orbital area and nasal region and retinal haemorrhage was suspected.  The child was admitted to the paediatric intensive care unit and haemorrhaging noticed on examination suggested shaken baby syndrome.  On 31 March 2006 an EEG was conducted and that showed diffuse symmetrical cerebral dysfunction and on 6 April 2006 an operation was performed to install a subdural drain.  The child was discharged from hospital on 24 April 2006.

8.  When the applicant was first interviewed, in January 2007, he said that he had dropped the baby onto the floor on the day in question.  However, subsequently he said that at about 1 p.m. on 28 March 2006, the baby had cried and so he had shaken the baby for about half an hour in order to make him asleep.  The baby fell asleep and he put the baby back to bed.  But when the baby cried again, he took the baby up and shook him for about 10 minutes during which time he accidentally dropped the baby, he said, onto the floor.  Afterwards the baby had a seizure and he telephoned his wife who returned home and the couple then took the baby to hospital.

9.  A medical report from a consultant paediatrician was presented to the court to deal with the consequences from the injuries suffered by the child.  Dr Lee, the paediatrician, said that shaken baby syndrome may cause “a myriad of serious disabilities to survivors, including cerebral palsy, mental retardation, vision impairment, communication deficits, behavioural and neuropsychological problems and brain atrophy.”  In this particular case, the child was seen on a number of occasions after discharge from hospital and such injury as had been inflicted had already led to a number of consequences.  These were:

(1)  repeated seizures after the incident – this we take to refer to the seizures on the day of the incident;

(2)  a mild degree of brain atrophy; and

(3)  a mild delay in attaining expected developmental milestones.

The specialist added that:

“Because the effect of the injury was not restricted to the subdural bleeding but had also impacted upon the brain matter, as evidenced by the brain atrophy, the child is at high risk for cognitive and learning impairment, vision and language effects, behavioural and neuropsychological problems.  However it is too early for these sequelae to be seen at this age.  These effects can only be adequately assessed by comprehensive developmental assessment and psychometric testing at a later age.”

There was, he continued, a need to monitor the child for post-traumatic epilepsy although EEG records ten months after the incident were normal.  There was no sign thus far of gross motor disability but further observations were necessary in order to detect any evolving neurological impairment.

10.  He concluded that severe force must have been inflicted to have caused the haemorrhaging detected.

11.  At the date of sentencing for this offence, the applicant was serving a total term of imprisonment of 21 months imposed in January 2007 for a series of unrelated matters, namely, offences of dishonesty, dating from the mid-1990s.

The sentencing

12.  The sentencing judge had the advantage of two reports about the applicant: a probation officer’s report, and a psychological report.

13.  The probation officer’s report suggested that the applicant felt regret for the offence and that he loved his children very much and had said that he had had no intention to harm the child.  The disturbing feature of this report, however, in so far as it is utilized in mitigation, is that the applicant told the probation officer that he had merely carried the baby to comfort it and that the baby had slipped and that that was how the injury resulted.  This was the same account that was apparently first provided to the court but subsequently not pursued.  Whilst it may well be that the baby was dropped at some stage, this story omitted the essence of what had really happened and was an explanation that sought to escape or to minimize culpability.  This tendency on the defendant’s part to minimize responsibility is echoed in the psychologist’s report which noticed the same propensity in relation to the dishonesty offences.  To the psychologist as well, the applicant had denied any force or shaking of the victim.

14.  In his Reasons for Sentence, the sentencing judge recorded the injuries suffered and the circumstances of the offence, noting that the plea was one of guilty towilfully ill-treating the child.  The judge was in no doubt but that the injuries to the child’s brain were caused by severe shaking and, he said, the inevitable inference was that whilst the child was under the applicant’s care and was crying, the applicant lost his temper; and that must have been an act accompanied by menace; but he accepted the submission that it was a momentary anger and that the applicant had not intended to cause the baby harm.  Nonetheless, he found that the potential for such harm must have been obvious to the applicant.  The judge accepted that stress occurred often in the management of a baby but it is, he correctly remarked, “the fundamental duty of any parent or carer to control his behaviour so as to ensure that no harm comes to the utterly defenceless child under his control.”  He noted the potential for future problems because some permanent damage had been caused.  He accepted that the applicant was not normally a person given to acts of violence but emphasized the duty upon the courts to provide protection to young children and therefore to place deterrence as a priority in sentencing for offences of this kind.

15.  The judge took a starting point of 30 months’ imprisonment and, giving credit for the plea of guilty, reduced that by one-third and imposed a sentence of 20 months’ imprisonment for the cruelty offence.

16.  The sentence of 21 months’ imprisonment which the applicant was then serving had been imposed for totally unrelated matters and the judge was satisfied that no adjustment should be made for totality.  Consequently, he ordered the sentence imposed for the cruelty offence to run wholly consecutively to the term which the applicant was serving.

Analysis

17.  There are two grounds of appeal.  The first is that the judge adopted too high a starting point and, the second, that the judge failed adequately to consider the question of totality and ought not in the circumstances to have ordered the sentences to run wholly consecutively.

18.  Reliance is placed by Mr Wong, for the applicant, upon the decision in Secretary for Justice v Lam Lui Yin [2007] 1 HKLRD 248 in that it illustrates by comparison, he argues, how high the sentence was in the present case.  

19.  Lam Lui Yin was a case in which the judge at First Instance had imposed, after trial, a dramatically lenient sentence of two years’ imprisonment for a case of gross maltreatment and neglect by two defendants in relation to a child in their custody.  The Court of Appeal increased the sentence to one of four years’ imprisonment and, with respect, it might be thought, given the facts of the case, that that was itself a remarkably lenient sentence, explicable perhaps because it was a review.  The child in that case was born prematurely and suffered severe health problems in his infancy.  The parents, time and again, failed to take him to follow-up medical appointments.  In due course, the child died as a result of injuries sustained by him to his head.  There was no manslaughter charge, presumably because it could not be proved at whose individual hands the fatal injury or injuries were caused.  Be that as it may, bruising and abrasions had been occasioned to the child on its face and over its entire body.  The court noted that the parents had physically andwilfully abused the child, aged only two years and four months at the time of his death, over a period of months.  He had been subjected to physical abuse “on a large scale” and on top of that, had been deprived of medical care and attention that he needed.  That did not arise from ignorance on the part of the parents, but as a result of a deliberate decision not to take the child for treatment.  It was clear that the child had been subjected to a violent assault which involved the infliction of a massive trauma to his head, the assault that led to his death.  Given that the maximum term for an offence under the relevant section was one of ten years’ imprisonment, and given that on any view this was a very bad case of its kind, one would not have been surprised by a sentence significantly higher than that ultimately imposed on review.

20.  Offences committed contrary to section 27(1) of the Offences against the Person Ordinance will so greatly vary in their background and gravity as well as in the personal circumstances of the perpetrators that they do not lend themselves to guidelines, so that a comparison with other cases is of limited value.  Certainly one case alone, and a review case at that which itself did not undertake a study of other sentences for the like offence, is not to be used as setting a trend; nor could it constitute much assistance for the purpose of an exercise in comparison.

21.  In any event, it is far from the only case for offences under section 27(1) of the Ordinance.  Counsel for the respondent has drawn our attention to a number of other cases apart from Lam Lui Yin, although we repeat that a comparative exercise in this field is of limited utility.  In some other cases, unlike this, the offenders were teenagers and significantly immature.  If one wanted an example of a case that illustrates an approach materially more stringent than Lam Lui Yin, it may be found in HKSAR v Lam Wai Shu and another CACC 283 of 2006, 5 October 2007, unreported, where a starting point of eight years was taken, twice as high as in Lam Lui Yin.  In Lam Wai Shu, the injuries were also widespread.

22.  One starts by recognizing that the maximum term of imprisonment for this offence is one of ten years’ imprisonment, a maximum that was greatly increased by the legislature in 1995, thereby indicating the legislature’s intention that such offences be treated seriously.  Some assessment – and the approach is an art – must be made as to where within the range of seriousness the offence at hand lies and then, amongst all the factors that must be taken into account, are primarily the need to protect the vulnerable and the need to deter.  That those who have the custody and care of children will suffer stress in the performance of that function is well known but there is a societal imperative that demands, for the protection of children, the exercise of control.  A further highly material consideration is the question whether there has been visited upon the child long-term disability or a real danger of it.  The court will take into account as well whether the maltreatment is an isolated act or has been constituted by a course of conduct.  This is nothing like an exhaustive list of factors but merely an indicator of the more obvious ones.

23.  In the present case, although there was no suggestion of a course of conduct over a period of days or months, there was prolonged shaking of the child, in one instance for about half an hour; and the shaking was renewed when the first assault had not had the desired effect.  This is in itself serious conduct.  The immediate consequences to the child were also very serious, causing unconsciousness and convulsions, hospitalization for a month and an operation.  Some permanent long-term damage is discerned, with a high risk of cognitive and learning impairment.  As against that, this was a single incident. 

24.  We are satisfied in the circumstances that the starting point adopted by the sentencing judge cannot be criticized nor can the resulting sentence.  It was not in the least severe.  Indeed it might be said to have been on the light side.

25.  We turn, therefore, finally, to the question of totality.  The imprisonment which the applicant was undergoing at the date upon which he was sentenced for this child cruelty offence, was in relation not only to an altogether different offence or offences but to altogether different offences committed years previously and it is only because the applicant had for some years deliberately avoided trial for the dishonestly offences by not appearing in court when he was supposed to, that he happened to be serving a term of imprisonment for those offences at the time that he came to be sentenced for the offence against his child.  It would have been odd had the judge made any order other than the one he in fact made, namely, that the sentence for the present offence should run wholly consecutively to the sentence he was already serving.

Result

26.  Accordingly, this application for leave to appeal against sentence is dismissed.