THE QUEEN v. KU YI-FUN

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. This is a very sad case. In a fit of temper the applicant killed her own daughter and was convicted of manslaughter on her own plea.

2. The victim was not quite four years old. She was the youngest child of the three in the family. Her father, was a man who had no appetite for hard work. His employment was irregular. The applicant herself had to take work home in order to augment the family income. The victim had to be put under the care of the applicant's elder sister. She was a tremendous help to the family. Shortly before the killing the victim had been returned to her parents, thus finding herself in a less familiar environment. That did not affect the relationship between a parent and a child.

3. The applicant worked hard. She also had to supervise the schooling of all three children. The victim at that time was studying in the kindergarten. The incident occurred in July when all three children were on summer vacation and doing their homework. On the 23rd July last year the victim was found to have performed her homework very poorly.

4. The applicant insisted the victim should do her homework properly. She failed. Obviously the applicant had repressed her feeling for a long time. The incident caused the outburst that afternoon. As the victim repeated her poor performance the applicant hit her. The girl cried. The applicant gave her a kick, causing her to hit against a sofa or a chair. A little later the victim fainted. The victim was then taken to a clinic. At that time the applicant did not reveal that she had kicked the child. When the doctor found that the victim had no less than twenty-five bruises on her body, she was then transferred to a hospital. Either on the way or on arrival at the hospital she was found dead.

5. On such facts that the applicant was originally charged with murder. Subsequently the charge was changed to that of manslaughter to which she pleaded guilty. All that could be said in her favour as well as the family circumstances were considered by the sentencing judge. The judge did not consider the case was fit for a probation officer's report. It was a serious case. The judge considered all aspects of sentencing policy. Taking into consideration various authorities and Thomas on the Principles of Sentencing, he sentenced the applicant to imprisonment for 4½ years.

6. Another division of this Court ordered a probation officer's report on an application for leave to appeal against sentence. The report is very thorough. The report revealed that the applicant was brought up in a working family and well treated. She got on well with her family members, in particular, her elder sister who eventually was the person who took care of the victim for some time. She has a passive personality and mild temperament. The offence is one which is entirely out of character. She is hardworking. As her husband was lazy, she had to do work to support the family. Finding the burden unbearable she asked for social assistance. She was too proud to go to her relatives or parents for financial help, and even regarded receiving welfare assistance as a shame. Throughout the years she was harbouring all the grievances within herself until that unfortunate afternoon when she lost control of herself.

7. In the light of her particular circumstances, we are prepared to temper justice with mercy. In a moment's mistake she was deprived of a child she loved. Her two surviving children would be deprived of their mother's care for 4½ years. On the other hand this is a brutal killing, which calls for some form of punishment to reflect disapproval.

8. We take into consideration that there had been no mal-treatment of any of the children throughout the years. Various other cases have been cited. In the case of Ng Sheung Kwan ⁽¹⁾ the accused pleaded guilty to manslaughter of the three year old girl. There had been previous ill-treatment. The deceased also received beatings from time to time, resulting in many bruises on her body. The sentence upon the accused in that case was two years imprisonment. In another case a young girl was under fed over a number of years. Eventually she died. The parent was sentenced to a period of imprisonment for three years.

9. In the case of Tong Lai Hing ⁽²⁾ a 23 years old mother killed a child of 3. The child was beaten up by the mother and suffered a fractured skull. The mother was convicted of manslaughter. It was found that she had an appalling family history in the sense that she herself was subjected to very harsh treatment and severe beatings during childhood. She took that as a norm. When she disciplined her own child she adopted the same standard. She was in need of psychiatric assistance for this reason although not insane. She was placed on probation. Having regard to the facts of this case we are of the opinion that 4½ years' sentence is too high. The question is whether we should temper justice with mercy to such an extent as to put her on probation. A third member of this division would rather reduce the custodial sentence. However, having discussed this very very difficult case amongst ourselves, we find that if we err at all, we would rather err on the side of leniency.

10. A most important factor, however, is that there had been no instance of abuse prior to the incident. This was a case of a sudden breakdown and loss of control, instantly regretted. There is nothing to suggest that the applicant would not be a good mother to her other two children in future.

11. We observed that the applicant had been in custody for some eight months. By majority, we grant leave to appeal. The appeal is allowed to the extent that the sentence of 4½ years is set aside and we order that she be placed on probation to be of good. behaviour for a period of three years.

(1)    (1974) HKLR 482

(2)    H.C. Case 37 of 1982