HKSAR v. L.S.Y.

DCCC 772/2020

[2021] HKDC 704

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 772 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant was convicted of a charge of common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212 (1^st charge), a charge of causing grievous bodily harm with intent contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 (2^nd charge), and a charge of attempted causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 and section 159G of the Crimes Ordinance, Cap 200 (3^rd charge), on her own plea and agreement to amended Summary of Facts.

Facts

2.  At the material times the defendant lived with her husband and the two children, a boy, X, aged 7 and a girl, Y, aged 10, at a flat in a public housing estate unit.

1^st charge

3.  At dinner time in the evening on or about 10 February 2020, the defendant scolded X for eating too slowly.  She then asked her husband to hit X or else she would splash hot water on X.  Her husband, therefore, hit X with a toy golf club.  The defendant then went to the kitchen and poured a cup of hot water from the electric hot water dispenser where water was usually kept at 80°C.  Her husband told her not to do it.

4.  When she came out of the kitchen, X kept pushing the cup away as he did not want her to scald him with hot water.  In the end the defendant spilt the hot water onto the left side of X’s forehead and face. X was in pain and felt unhappy.  The husband then brought X to the toilet to rinse his burns with cold water.  When the defendant was outside the toilet, she told X that there was now a “Zhong Wuyen” (“鐘無艷”) in the family.  X was upset when he heard it.

2^nd and 3^rd charges

5.  In the afternoon on 12 February 2020, the defendant, X and Y, were the only persons inside the flat.  The defendant was arguing with her husband over the phone while X and Y were watching TV in the living room. 

6.  The defendant accused her husband of lying to her.  She then went to the kitchen and started pouring a cup of hot water from the hot water dispenser.  Once X and Y heard her pouring the hot water, they were frightened and ran immediately to X’s bedroom.  They pushed the chair against the door and hid by squatting beneath the chair.  X covered himself with a thin blanket and Y covered herself with a cushion.

7.  The defendant who was still on the phone with her husband entered X’s bedroom.  She placed the phone on the desk and turned on the video call function with a camera facing Y.  She then poured hot water over Y’s head and asked her husband whether he still wanted to give her the same answer.  As Y was holding a cushion over her head, only some of the water dripped onto her scalp.  Some of the hot water also splashed onto X’s shoulder.  Both X and Y felt pain and were terrified.

8.  The defendant then got another cup of hot water from the kitchen and tried to pour it over X twice.  However, she was unsuccessful as X kept pushing the cup away.  X ran out of the bedroom and the defendant chased him around the flat.  The defendant then asked X to go to the toilet.  When X was going to the toilet, the defendant splashed the cup of hot water onto the middle part of X’s back causing him extreme pain.  X was very upset and kept crying.  The defendant then rinsed the scalds and blisters on X’s back with water.  She also threatened to rinse X with hot water if he continued screaming. 

9.  At around 3:10 pm that day, the police received an emergency call from a neighbour of the family who heard X and Y screaming for help and crying loudly inside the flat.  Police officers arrived at the flat at around 3:18 pm and the defendant answered the door.  X and Y were found inside the flat with scalds seen on X’s back and Y’s head.  X and Y were both incoherent and kept shivering and crying that they were in pain.  The defendant was then arrested.

10.  X and Y were then sent to hospital for treatment.  X was found to suffer from 6% of total body surface area partial thickness burn over his lower back (around 20 cm x 20 cm) and 1% total body surface area superficial burn over his left parietal region, both of which were managed by daily dressing.  He was discharged on 25 February 2020, ie 13 days later.

11.  Y was found to suffer from a scald lesion of 3 cm x 1 cm on the vertex scalp which was red and mildly tender on palpation. She was discharged on 19 February 2020, ie 7 days later.

Criminal record

12.  The defendant has a clear record. 

Mitigation

13.  The defendant is aged 37, married with 2 young children, ie the victims in this case.  The defendant used to be a full-time worker, but after the birth of her first child, she became a full-time housewife.  Subsequent to arrest in this case, she returned to live with her mother in Tai Po and her 2 children are being looked after by the sister of her father-in-law.

14.  It was submitted that the defendant was a victim of school bullying in her secondary school days, and later when the bullying came to light her parents changed school for her, but she still failed to make any friends because of her introvert behaviour.  It was said that after she left school, she entered into a youth employment and training program and has since been working in different jobs.

15.  When the defendant was 19, she met her then boyfriend, now the husband.  He was the son of a proprietor of a small-sized floor tiles company.  The defendant always wished him to be independent by working on his own without relying on his father.  It was said that her encouragement to the husband was misunderstood by his family as the defendant’s attempt to alienate the relationship between father and son.  Her husband’s family did not accept her and urged him to leave the defendant.

16.  Later, the defendant got pregnant and they got married, but the defendant was upset because no guests or relatives from her husband’s family came to the wedding banquet.  The defendant’s relationship with her husband and his family remained poor after the marriage.  Her husband, according to what was submitted, always stood on his family’s side whenever argument occurred.  As the size of the family got bigger, the family faced financial stress.  There were frequent quarrels between the husband and the defendant over money matters.  It was said that during argument the husband would always ignore the defendant and return to his parents’ home, and the defendant had to go to the parents-in-law’s place with the kids to beg her husband to return home.

17.  It was said by defence counsel that the defendant cared for the family.  Every day she was the first one to get up and the last one to go to sleep.  She also had to do housework, teach kids the homework and remind her husband what to do in the next morning.  Both kids also require extra attention as the elder daughter, Y, had delayed speech problem and requires service from a speech therapist, while the younger son, X, was having problem of ADHD and autism.  He was unable to concentrate on schoolwork, always created trouble at school and would also hit his elder sister all the time.  It was said that the defendant felt exhausted in taking care of the family. 

18.  The defendant has applied for both Community Care Fund and Working Family Allowance for the family as the income of her husband could not realistically support the expenses of the family.  The family also had to repay the husband’s aunt the sum of $200,000 being the loan for decorations for the flat.  As a result, the family could not make ends meet.  It was further submitted that instead of seeking more job opportunities, the husband spent most of his time on video games and staying up late in bed.

19.  The husband also borrowed another sum of $100,000 from his father and bought a lorry van to work as a self-employed driver, but he failed to get enough job orders.  Therefore the defendant had to take the initiative to look for job orders for her husband by phone and via internet. But her husband put up excuses and evaded working. 

20.  As a result, the defendant became very careful in spending money and required her husband to give her all his income so that she could keep track of the expenditure.  She turned suspicious as she felt her husband had been spending much more than he should and saved some money secretly.  There was always arguments between the parties over money.

21.  For 1^st charge, it was submitted that the defendant committed the offence as she then felt irritated and annoyed as she found her son was not behaving well and her husband had failed to assist in monitoring the situation.  She then lost her temper and splashed the cup of hot water over her son’s face.  She assisted her husband in rinsing the injuries with cold water in the bathroom later.

22.  For 2^nd and 3^rd charges, the defendant had a quarrel with her husband over the phone again over money matters.  She said she thought her husband was not honest by telling lies.  It was said that she hung up the phone, but her husband did not give up and she was increasingly provoked.  As a result of her loss of faith in her husband, the hatred against him, the financial problem and accumulated pressure, the defendant had a sudden outburst of anger.  On the spur of moment she lost control and committed the offences.

23.  It was said that she felt extremely remorseful afterwards and rinsed the injuries with cold water before police arrived.

24.  Defence counsel said that the defendant pleaded guilty at the earliest opportunity and is, therefore, entitled to the full one-third sentencing discount. 

25.  It is also submitted that the 2 children had already forgiven their mother.  The defendant has been separated from the children over 14 months and the children miss the defendant.

26.  It was said that before the present case the defendant had a clear record, and that she was a loving mother with an unblemished character. 

27.  It is also submitted that the degree of injuries on the victims was not the most serious of its kind, and that they have recovered well from the injuries and there is no sign of permanent disability and injury.  It was said the defendant understands that pain and suffering had been caused to the 2 victims.  She feels extremely remorseful and ashamed about her acts.  She also undertakes not to repeat those events.

28.  It is also submitted that the present offences were not premeditated and no vital weapon was used.  It is said that on the spur of the moment, the defendant spontaneously turned all her hatred against her husband to vent on her kids.  Defence counsel submitted the most severe punishment to the defendant would be the punishment to her conscience that she had hurt her children and such injuries had led to their sufferings and the long separation between the kids and the mother.

29.  It is also submitted that according to Dr Benjamin Lai, the defendant was suffering from adjustment disorder with mixed anxiety and depressed mood.  She was recommended to receive psychiatric treatment so as to learn more effective means to cope with stressors including the financial issue of the family, care of her two children, relationship issues with her parents-in-law, and other factors.

30.  It is submitted that these offences were committed when the defendant was unaware of her own illness.  It is also said the defendant undertakes to visit a psychiatrist on regular basis and to undergo treatments that doctors may think fit, and that she should be given the chance to receive the treatments.  The chance for her recommitting the offences would be significantly reduced.

31.  Defence counsel referred this court to 香港特別行政區 訴 倪荷玉[1] and 香港特別行政區 訴 曾炳坤[2].

32.  He further reiterated the defendant has a clear record, has shown remorse, committed the offence out of anger, is forgiven by the victims, suffered from psychiatric illness, the offence is not premeditated, and the injuries are not the most serious of its kind.

33.  He urged this court to consider the totality principle in sentencing.

34.  He also submitted to court mitigation letters from the defendant, her husband, the 2 victims, the defendant’s family members and a family friend, as well as a marriage counsellor.  He also lodged with court the medical report of the defendant prepared by Dr Benjamin Lai, a psychiatrist. 

35.  Before sentencing, this court has called for a psychiatric report and a psychological report on the defendant, victim impact assessment report, updated photos of injuries of the 2 victims and their updated medical report.

Mitigation letters

36.  The mitigation letters support the submission by defence counsel that the victims are asking the court to be lenient on their mother so that their mother could return home.  They said they need their mother for support and protection.  Family members and family friend said that the defendant is a devoted mother and wife and was very stressed when looking after the 2 children as well as managing the tight finance of the family while the husband is not the most studious in his self-employed business.  They all said the defendant committed the offence due to poor management in mood control. They asked this court to be lenient on the defendant.

37.  This court noted that a school social worker, Ms Ho, while saying in her letter dated 29 January 2021 that the defendant was very concerned of the study of the 2 children and had always prepared good food for the children for consumption at school, had failed in her letter to tell of the past incidents of established or suspected child abuse on the children by the defendant.  Her letter said the children were close to their mother and their memory of the mother is happy and sweet, and that they felt lost in the absence of their mother.

38.  It was said that the daughter, Y, has to confide her secrets to a doll, and the boy, X, spends much time in video games after their separation from their mother.  This letter also said the defendant felt remorseful and though presently, the defendant did not fully realise the seriousness of her harm to the children.

39.  None of the letters in mitigation mention or disclose the past established or suspected child abuse incidents against these children.  Writers of these letters were either not well informed or they were not totally full and frank with the court when writing.

Psychiatric reports

40.  There are 2 psychiatric reports on the defendant before this court. 

41.  Dr Benjamin Lai had examined the defendant in his clinic for a total of 7.5 hours over 4 sessions.  This report says that in the year 2015, the family had been seeing social worker as the defendant was said to be noisy at home and loud in teaching her children.  X was diagnosed be suffering from Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD), and had to receive medication from psychiatric clinic.

42.  In the year 2016, the defendant had bitten the children causing bruises.  The school suspected child abuse and the same was clarified after the defendant explained that she was merely playing games with the children. 

43.  The defendant also told Dr Lai that the daughter was scalded by hot water when she took bath, and one side of her face was scalded as she forgot to check the temperature of the water.  It was said that as she did not know how to manage the wound, she might have massaged the scald wound while using cold water to run over the wound.  As a result, skin came off.  The daughter returned to school the next day and the defendant was asked to see a social worker.  The defendant said this was not a case of child abuse.

44.  The defendant also told Dr Lai that before the offence, she was concerned about the finance of the family.  She had arguments with her husband over money and she felt great stress.  She became irritable and impatient especially when it was noisy.  She would lose temper and throw things around when irritable. 

45.  The defendant told Dr Lai that on 10 February 2020, ie the date of the 1^st charge, the husband said that the son X was eating too slow, and the husband threatened to hit the son with toy golf club.  The defendant told Dr Lai that she then took the son to the kitchen in order to get a cup of warm water for him.  As the son complained that the water was too hot, she gave him a cup of hot water and a cup of cold water, and asked her son to touch them in turn to feel the difference in temperature. 

46.  The defendant said she was holding the lower part of the cup and her son was holding the upper part of the cup.  The son pushed the cup of hot water away and some hot water spilt on his face.  The husband entered the kitchen and scolded the son and the son said he did not do so intentionally.  The defendant said they were very noisy, she could not stand the noisiness and she might have released or pushed away the hot water which resulted in injury to the left forehead of the son.

47.  As for her account to Dr Lai of the incident on 12 February 2020, ie the date of the 2^nd and 3^rd offences, she said she had prepared 2 cups of hot water and was on the phone arguing with her husband.  Children were there playing noisily.  She became very irritated and was about to explode.  She recalled throwing a cup of hot water in the son’s room.  She also threw another cup of hot water towards the son. She said she later flushed the cold water over the wound of the son in the toilet and asked the daughter to call her husband to return home.  Later, police came and arrested her.

48.  The version of the incidents on both 10 February 2020 and 12 February 2020 given to Dr Lai were entirely different from what the defendant had agreed in the Amended Summary of Facts.  This court is, therefore, unable to consider them as truthful account of what happened. Clearly, the defendant had not been telling Dr Lai the truth. 

49.  Her version or her explanation given to Dr Lai regarding the previous suspected child abuse incidents detected by the school are also far from convincing. 

50.  In paragraph 78 of the report of Dr Lai, Dr Lai says, “Based on her (meaning the defendant) information on the days of the alleged offences in February 2020, she was suffering from adjustment disorder and she was under significant stressors.” 

51.  In paragraph 79 of the report, Dr Lai says the defendant requires psychiatric treatment.  Both psychiatric medicine and psychotherapy are required. 

52.  As Dr Lai’s diagnosis was clearly based on the defendant’s information which was an incorrect account of the incidents, this court has reservation to accept such diagnosis.

53.  This court also noted that there is no evidence before this court that since the diagnosis by Dr Lai, the defendant had been receiving any psychiatric treatment.

54.  Now coming to the psychiatric report prepared by Dr Leung ordered by the court.  The background information in this report is largely correct that X suffered from ADHD and childhood autism, and Y suffered from dyslexia and requires regular remedial treatment at school.  The family was under very tight financial stress.  The defendant had the obsessive personality.

55.  In view of the incidents and the immediate reaction of the children on seeing the defendant fetching hot water, this court is unable to agree that the defendant is an even-tempered person. 

56.  The court would accept that she kept the house clean and spotless, she was responsible for all household chores with little help from her husband, and that she was the main carer of the children, looking after their daily lives and schoolwork.  While it was said the defendant’s relationship with the children was warm, the same must be subject to their fear of the defendant when she was angry or agitated. 

57.  Again, the defendant gave a different account of what happened on 10 February 2020.  She said she tried to teach X the difference between warm and hot water, not the hot and cold water as she told Dr Lai.  The scenario given by her was different again from the Amended Summary of Facts and also the scenario she told Dr Lai.  She told Dr Leung that X struggled, and hot water spilt onto him.

58.  As for 12 February 2020 incident, the defendant said she was quarrelling with her husband over the phone while the children were making a loud noise.  She was agitated, overwhelmed and exploded.  She impulsively splashed the hot water onto her children without second thought. She said she felt sorry immediately afterwards. 

59.  This was again different from the Amended Summary of Facts.  In fact, the children were said to be watching television whilst she was arguing with the husband over the phone.  When the defendant went to the kitchen and started pouring hot water, the children immediately were frightened.  They ran into X’s bedroom and pushed a chair against the door and hid themselves by squatting under the chair.  Both X and Y covered themselves with blanket and cushion respectively. 

60.  It was not on impulse that the defendant threw the hot water to the children, as she told the 2 psychiatrists.  Rather, the defendant then still on the phone with her husband entered the X’s room, put the phone on the desk, turned on the video call function with camera facing Y. She then poured hot water over Y’s head and further asked her husband if he would give her the same answer.  It was fortunate there was a cushion over Y’s head, only some hot water dripped onto her scalp and some splashed on X’s shoulder.

61.  The defendant did not stop there and then she got another cup of water from the kitchen.  One should note that some time is required to fill up 2 cups with hot water from a hot water dispenser.  The defendant again tried to pour hot water over X twice.  X pushed the cup away and ran out of the bedroom.  The defendant persisted in attacking X and continued to chase him around the flat.  She asked X to go to the toilet and when X complied she splashed another cup of hot water onto his back.

62.  Again, the defendant was not forthcoming in telling Dr Leung what actually happened on 12 February 2020.  It must be noted that apart from the foregoing, when the defendant further assaulted X on 12 February, X was still having all these blisters and scald injuries on his face and forehead, yet the defendant had persisted in attacking X when these injuries are visible. 

63.  Dr Leung, based on the information given to him by the defendant, said that there is no past history of child abuse.  This is again a mistake because he had not been told the truth.  Dr Leung said that the defendant is not suffering from formal mental disorder. 

64.  Clearly, both psychiatrists were fed by the defendant with inaccurate account as to what actually happened on both incidents as well as the past history of child abuse which clearly affected their judgment and diagnosis of the defendant.

65.  Considering this psychiatric reports in the light of the above, the court is of the view and agrees with the conclusion by Dr Leung that the defendant was not suffering from any mental disorder at the time of the offence.  She was just irritated at time of the 1^st offence that the child eat too slow, and on the 2^nd and 3^rd offence time that she was unhappy with the husband telling a lie to her. 

Psychological report

66.  The psychologist noted that the defendant gave a very long account of her efforts in taking care of the family and criticised her husband’s family member, including her husband.  She complained to her husband for not communicating with her, not supportive enough and was stupid and that she needed to assist him in decision making.  The defendant believed that she had good control over the children and denied needs to seek help for her parenting skill.

67.  It was said that the defendant used reward and punishment to train the children’s discipline.  She would shout at the children and verbally threaten them, making them frightened when they misbehaved.  It was said that she was evasive in talking about the offences and give plausible accounts for her behaviour. 

68.  According to the report, after Dr Lai’s diagnosis of the defendant, the defendant did not receive active psychiatric follow-up or medication for treatment.  She was referred to Christian group for counselling to handle her marital dispute. 

69.  It was said in this report that the defendant offered different accounts as to what happened on 10 February and 12 February 2020. 

70.  For the 10 February incident, the defendant admitted having threatened to pour hot water to the son but denied having true intention.  The defendant said when the son refused to drink his cup of warm water, she went to the kitchen to get a cup of hot water to the son to prove that the son was making excuse.  As the son pushed the hot water away, water spilt onto his face and forehead.

71.  For the 12 February 2020 incident, the defendant said she wanted to drink water to cool herself down during the quarrel, but got provoked by the children making noise.  She poured 2 cups of hot water towards the children but denied again having the intention to hurt them.  She said the son screamed after she poured the first cup of hot water.  She admitted asking the son to go to the toilet and poured on him the second cup of hot water, but she said she did so on impulse. 

72.  The defendant was said by this psychologist to be a stubborn lady with limited insight into her own problems.  She is of obsessive compulsive personality and had excessive preoccupation with orderliness and rules, and expected others to fulfil her needs and expectations.  It was said that she was also sensitive to criticism, and her rebellious and egocentric attitude could easily lead to conflicts with others.

73.  The psychologist said she could not rule out that the defendant was using the offending behaviour to ventilate her frustration of being confronted by her children and husband, and her constant use of threats to hurt children in exchange for their obedience, as demonstrated by her offending behaviour, was of concern.  It was also said that in view of her limited insight, personality profile, poor parenting skills, maladaptive stress coping skills and absence of support, her risk of reoffending similar nature offence was assessed to be moderate, with reference to Historical, Clinical Risk Management-20 (Version 3), a commonly used appraisal tool for violent offending.  

74.  It was said that psychological intervention on her handling of stress as well as interpersonal relationship skills would be conducive to her rehabilitation.

Medical report of Y

75.  Medical report of Y dated 17 March 2020 from Dr Kathleen Tsoi disclosed that Y had a history of established physical abuse by the defendant in 2017.  Y had speech delay and the defendant wanted to train her speaking by pinching her cheek leading to bilateral cheek bruises.  Multidisciplinary case conference was held with Child and Protection order obtained and custodian care of the child was given to the maternal grandmother.  Later, she was reintroduced to live with her parents.  She was admitted to hospital again on 8 to 9 October 2019 for suspected child abuse by the defendant due to scald injury.  The case nature was determined to be high risk but not established as child abuse.

76.  In the present case, Y had a scald lesion 3 cm x 1 cm over the vertex scalp.  It was erythematous and was mildly tender on palpation.  There were also 2 patches of old scald injury in the right lower quadrant of abdomen and over the right anterior thigh, each 3 cm x 4 cm in area.  Multiple spots of hyperpigmentation was noted over lateral aspect of right knee which might be due to old scald of injury.

77.  During hospital stay, Y reported that the defendant had poured boiling water onto her multiple times before, when the defendant was unhappy, over her abdomen, right thigh, right knee and left cubital region. They did not seek medical treatment further and only performed dressing for them.

Medical reports of X

78.  Medical report of X dated 30 March 2020 from Dr Teresa Tan shows that on 12 February 2020, X told that he was splashed with boiling water by the defendant 2 days before and again on the same day as 12 February 2020. 

79.  He was noted to have 1% total body surface area superficial burn over his left parietal region and 6% total body surface area partial thickness burn over his lower back.

80.  Another medical report on X dated 6 April 2020 revised the injury on 12 February 2020 to 10% superficial partial thickness burn over lower back. 

81.  As for the most updated medical report of X dated 23 April 2021, it was said on physical examination that X was found to have 1% TBSA erythema over left parietal region and 1 x 1 cm scar over the preauricular area, 6% TBSA partial thickness burn over lower back.

Victim impact assessment report

82.  Ms Fan Tsz Chin, the clinical psychologist, stated that the defendant was a major carer for the children, X and Y, and that the children had close bonds with the mother.  However, the defendant had prior records of both established and suspected child abuses, suggesting that the defendant might resort to inappropriate punishment that would endanger the children’s safety when she got frustrated by events such as children’s daily routine and schooling issues as well as marital conflicts. 

83.  X and Y are now well settled living with a paternal grandaunt, but they feel bored and restricted as the parenting style is different and the academic performance of Y dropped.

84.  Both X and Y avoided to mention any emotional distress or physical injury caused by the offences.  They just presented positive comments about the defendant.  For example, X said the defendant was never angry which was, of course, inconsistent with the facts.  They did not have concrete ideas on how to prevent further injuries at home.  They just expressed that their concern was the mother would not be punished for the offences and they were worried of their mother.

85.  It is said that unless the legal proceedings are over, would the children feel safe to explore the possible psychological impacts of the incident and the physical injuries on them.  It is said that if the defendant is sent to jail, the psychotherapy would focus on further exploring and supporting the children to overcome the possible impacts as well as addressing the parent-child bondage.

86.  It is said, however, that if the defendant should return home, then the need to protect the children from further risk of harm should be explicitly addressed and childcare effectiveness should be closely monitored.  The defendant should also receive help in emotional regulation and proper parenting means.  The father’s participation will also be indispensable.

Discussion

87.  This court has carefully considered all that was said on behalf of the defendant including considering all the authorities cited and all that is before this court. 

88.  It has always been said that the courts have a particular responsibility to protect children and that violence towards children needs be deterred, and as said by Lord Lane CJ in the case of R v Durkin[3] “this sort of behaviour will result in condign punishment.”

89.  It is also said that there is a need for the courts to protect the vulnerable and to deter abuse[4].

90.  Further, the European Court of Human Rights noted in the case of RK and AK v United Kingdom[5]:-

“Child abuse is also a form of criminal conduct peculiarly hard to combat, because it is extremely difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of child abuse is the parent the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child’s history.”

91.  In this case the victims are young children of age 7 and 10.

1^st charge

92.  Any person convicted of this charge shall be liable to imprisonment for 1 year. 

93.  The defendant is the main carer and mother of the victim, X, who was only 7 at the time.  Before the actual commission of the offence she warned the husband that she would splash hot water on X unless he hit X as she found X eating too slow.  Despite the husband did hit X with a toy golf club and asking her not to do so, she went to the kitchen to fetch the hot water and tried to pour it onto the son.  It was when X pushed the cup away to avoid the defendant scalding him, the hot water spilt onto the left side of his forehead and face.  According to the agreed facts, the defendant even laughed at X and described him as a “鐘無艷”.  This happened, obviously, when X was screaming in pain. 

94.  This is the most serious of its kind of common assault.  Assault by hot water can do a lot of harm.  Firstly, there is a breach of trust.  As the main carer of X, the defendant caused the assault on X in the privacy of his home.  X is a vulnerable victim, a child known to be suffering from ADHD.  There was no provocation.  Her complaint is merely that he ate too slow.  The defendant also had time to reflect and cool down after she sounded the oral warning to the husband, and after the husband’s warning to her not to do so, but she still proceeded to commit the offence.

95.  The fact that she laughed at X after seeing him in pain and seeing the injury on his face and the forehead, indicated that she was not remorseful at the time or upset at her own act.

96.  Injury to X was 1% of the total body surface area superficial burn over left parietal region and according to the latest medical report, a scar of 1 cm x 1 cm is now still there 14 months after the event. 

97.  Photo 29 in the photo album book 1 was taken 2 days after this offence.  The same showed the severe burn injuries on the left forehead and left side face of X.  Apart from the redness of skin, part of the skin was peeling off.  Luckily, the injury in the forehead just extended a little bit below the left eyebrow and did not extend further and extensively to the left eyelid or the eye.

98.  From the recent photo of X taken on 14 April 2021, X appeared to have largely recovered from the injury save that there is the scar left and the scar is, according to the photo, covered by the hair on the sideburn.  But according to the latest medical report, there is still 1% TBSA erythema over left parietal region.

99.  Considering the nature and circumstances of the assault, breach of trust by the main carer in the privacy of his home, the victim being a vulnerable victim of tender age, the lack of provocation from X at the time, the existence of the time gap between her warning to the husband and the actual pouring of hot water onto X, the response of the defendant to injury to X when he was screaming in pain with noticeable burn on his forehead and left side of the face, obviously, this court finds that the maximum sentence of 12 months’ imprisonment appropriate in the circumstances.

100.  This court also finds that in view of the severity of the assault on the child, the present charge does not adequately reflect the severity of the offence.  Nevertheless, the defendant has pleaded guilty, and she is entitled to the full one-third sentencing discount.  She is therefore sentenced to 8 months’ imprisonment for this offence. 

101.  The defendant used to be, strictly, a woman of a clear record.  For this reason, the court would discount her sentence further by 1 month to 7 months’ imprisonment for this offence.

2^nd charge

102.  Upon conviction on indictment, a person guilty of this offence is liable to imprisonment for life. 

103.  There is no sentencing guideline set for this offence and the appropriate sentence to each case would vary very much depending on the specific circumstances of the case as the facts can differ a lot.  It is observed by the Court of Appeal in the case of HKSAR v Yuen Wai Kui[6], that the usual sentence for this offence ranges between 3 years and 12 years’ imprisonment. 

104.  The Court of Appeal in the case of HKSAR v Chan Chun Tat[7]provided a list of non-exhaustive factors relevant to the sentencing of the present offence:-

(a)  The extent to which the assault was premeditated;

(b)  The reasons or motivation underlying the assault upon the victim;

(c)  The mental or emotional state of the assailant at the time of the assault;

(d)  Whether alcohol or drugs contributed to the actions of the assailant;

(e)  Whether the assault was committed by the assailant alone or as part of a group;

(f)  The type of weapons employed;

(g)  The level of force or aggression and persistence with which the assault pressed home;

(h)  The injuries caused to the victim; and

(i)  The effect of the assault upon the victim and those close to him or her.

105.  The defendant committed this offence on X 2 days after committing the 1^st charge offence on X.  The facts of this offence indicated even more persistence in the defendant in injuring the child, X.  Had the child not been running away from the defendant’s assault, he would be injured much more seriously.  The defendant did not end her assault on X after pouring the first cup of hot water.  She further attacked the child after he conformed to her request to go to toilet.

106.  One must not forget that the child, X, still has his forehead and left face scalded with skin blister from the previous attack by the defendnat on him 2 days before at the time of this attack.  These injuries are all visible on his face and forehead and despite this, the defendant persisted in attacking him. 

107.  The pain and the fright on the tender aged child arising from such vicious attack from his own mother in their home no doubt caused him traumatic experience.  According to the agreed facts, neighbour heard the screams and when the police arrived, the children were incoherent and shivering with terror.

108.  Another aggravating feature was that before committing the offence, the defendant consciously switched on the video mode of the phone, directing the camera to the victims, making sure that the husband could see what she was doing.  Although, one could say that the offence was not a premeditated act, the defendant did not commit the offence on the spur of the moment as such.  It took time to fill up the 2 cups of hot water from the dispenser and she had thought of turning on the video mode of the phone before committing the offence. 

109.  Obviously, she also had to force her way into X’s bedroom where the children hid themselves under the chair placed against the room door.  Despite all these efforts, X failed to escape from her attack. This must have been very terrifying to a child being harmed by one’s own mother inside the supposedly safe haven for a child, home. 

110.  It must also be very painful by reason of the wounding.  Photo 30 and 31 of photo album 1 showed the severity and extensiveness of the scald injury on the back of X.  The injury was described as 6%, and later 10% and later revised to 6% total body surface area partial thickness burn over lower back. 

111.  Recent photo taken on 14 April 2021, 14 months after the event, shows the dark pigmentation of the extensive area at the back of X.  X must have suffered a lot both during the incident and during the long recovery process for this scalding injury.  If the dark pigmentation does not go away, it would also affect X’s self-confidence and esteem in future whenever his back is exposed.

112.  Again, the victim in this case is of tender age, a vulnerable victim.  There is a breach of trust by the main carer, and when the offence was committed inside the home, the victim has nowhere to turn to.  The defendant was obviously malicious and very persistent in causing these injuries on X.  Again, her threat to use hot water when rinsing the scalds and blisters on X’s back indicated that even when X suffered these injuries and was screaming in pain, she was not remorseful as to what she had done.

113.  It is clear from the victim impact assessment reports that the victims in this case are very protective of their mother and they avoided to mention emotional distress from the event or the physical injuries from the attacks to the extent that they said the mother was never angry. 

114.  This court is convinced that it is traumatic to anyone being subject to hot water attacks, let alone attacks on a child of tender age by his own mother at home.

115.  Although the defendant said she was remorseful for what she had done, this court noted from her 3 pages handwritten letter in mitigation that she wrote mostly to tell of her own contribution and devotion to the family, the stress she was facing at the material times, the inadequacy of her husband and the effect of the separation from the children on her from her own perspective because of the commission of the offences.  There was not a single word on her concern for the scald injuries or psychological impact of these incidents on the victims, nor was there any mention of concrete plans disclosed by her as to how to prevent reoccurrence of these incidents.

116.  This court, of course, has noted that from the mitigation letter by the marriage counsellor that her service was engaged by the defendant in the meantime. 

117.  In this mitigation letter, the defendant just said that she blamed herself for not controlling her temper, and hoped that the husband would be more studious and caring for the children so that the children could physically and mentally continue to be happy as before and the family can reunite.

118.  It is evident that she does not really appreciate her own serious shortcomings and has limited insight into her own problems.  The fact that she gave inaccurate exculpatory account of the happenings of the 2 incidents to the experts indicated limited remorse. This court agrees with the clinical psychologist, Shirley NA, that the defendant is a stubborn lady with limited insight into her own problem.  She also had feature of obsessive compulsive personality and that her chance of reoffending similar offence was moderate.

119.  Whilst this court acknowledges the stress that she was in during the years of caring for X and Y, both children requiring special attention, nevertheless, the defendant had inflicted these injuries on X when there was no provocation from X and when her temper or her dissatisfaction did not arise from X.  The defendant was just at that time dissatisfied with the answer from the husband on the phone.  As conceded by defence counsel in mitigation, she had vented her anger and frustration on the child because of the unsatisfying answer from the husband on the phone.  She had made sure that the husband witnessed her attack on the children.  This appeared to be an attempt on her part to exert her control over the husband at the cost of the injury to children. 

120.  Considering the very horrific circumstances in the commission of this offence against X and, as said, the duty of this court to send a clear message to all those who is guilty of child abuse, that the sentence imposed must be of deterrent nature.  Even having regard to the fact the defendant used to be a lady of good character, the court adopts a sentencing starting point of 3 years and 6 months’ imprisonment for this charge.

121.  Again, the defendant is entitled to full one-third sentencing discount by reason of the guilty plea.  She used to be a woman of clear record (though with established child abuse history), this court further discounts her sentence by 3 months to 2 years 1 month’ imprisonment for this charge.

3^rd charge

122.  The circumstances under which the defendant committed this offence is the same as the 2^nd charge offence.  The defendant poured the hot water over Y’s head.  Luckily, as Y had placed the cushion over her head, only some of the water dripped onto her scalp.  She suffered 1% superficial burn over vertex of scalp.  There was 3 cm x 1 cm scald lesion over the vertex scalp.  Y was only aged 10 at the time of offence. 

123.  It must be very malicious and extremely ill will on the part of the defendant to pour hot water over anyone’s head, let alone her own daughter.  Had Y failed to protect herself with the cushion, the injury to her would be much more serious.  It is probable that her eyes, face and body would be disfigured or even maimed, which necessarily caused serious adverse impact on Y’s well-being as appearance, in particular to a female, is important in the self-esteem and confidence for a girl when she grows up.

124.  The reports before this court disclose past established or suspected abuse by the defendant on Y.  The medical report of Y did disclose multiple history of the defendant pouring hot water on Y in the past and the photos in photo album 1 also support the existence of such scald injuries in different areas of the body of Y.  Contents of these medical reports have not been disputed by the defendant.  The court would treat all these as only the background in sentencing the defendant in respect of the 3^rd offence.

125.  Although, the actual injury inflicted on Y was less severe than X in the 2^nd charge, the potential injury to Y could be much more serious had Y not used the cushion to cover her head.  But for the much less actual physical injury to Y and at the time of the commission of this offence Y did not possess the same sort of fresh visible scald injury on the face as X did, the criminality of the defendant in the commission of this offence is still very serious.

126.  Again, as said in the 2^nd charge, the defendant was persistent in attacking Y as Y was already hiding in X’s room, squatting under the chair pushed against the door when the defendant went into the room and attacked her.  Again, the aggravating feature in the defendant turning on the video mode of the phone directing the camera against Y is present in this offence.

127.  Considering the circumstances of this case and the need for the court to protect a vulnerable victim, the need to impose deterrent sentence to prevent such reoccurrence of child abuse, even considering the clear record of the defendant, the sentencing starting point for this offence is 2 years’ imprisonment. 

128.  Again, the same is discounted to 16 months imprisonment by reason of her guilty plea.  The same is again discounted further by 2 months by reason of her previous good character to 14 months’ imprisonment.

129.  Now, coming to consider the totality principle, the 2^nd charge offence and the 3^rd charge offence occurred on the same day, in fact, during the same incident.  The commission of the 3^rd offence obviously adds to the culpability of the 2^nd offence as the victims are different, while the 1^st charge offence occurred 2 days before. 

130.  Considering the overall culpability of the defendant in the whole case, this court considers that the total sentence of 2 years 6 months’ imprisonment after plea is a just and proportionate sentence.  Accordingly, 3 months’ imprisonment of the 1^st charge and 2 months’ imprisonment of the 3^rd charge are to run consecutive to the sentence in the 2^nd charge, whilst the rest of the sentence for these charges are to run concurrent to the sentence in the 2^nd charge.

131.  The defendant is sentenced to a total of 2 years 6 months’ imprisonment.

132.  This court must point out that young children are vulnerable members of our society, they need protection from all members of society.  This court must thank the good neighbour for reporting this matter to the police after they heard the screams, shouts and cries from the helpless victims.  Otherwise, the child abuse would not come to light and would probably be continued.

133.  The occurrence of the 1^st charge offence took place in the presence of the children’s father who had clearly failed in his duty in protecting the children.  He had also failed to take the child, X, for medical treatment after the injury was inflicted.  According to the medical report of Dr Kathleen Tsoi, there were multiple old scald injuries on different parts of the body of Y.  These are clearly shown in photos 24, 25, 26, 27 and 28, of photo album 1.  As parent for Y, the father has clearly failed in his duty to prevent further scalding injury to the child. 

134.  This court warns the husband that should he not shoulder his responsibility as the father to prevent reoccurrence of these incidents in future, he might probably face criminal prosecution in future for child abuse by way of neglect. 

135.  Further, despite the case of child abuse against Y was established in the year 2017 and highly suspected case of child abuse in the year 2019, the further occurrence of the many scald injury incidents were not detected all these times by those who had regular contact with Y.  There clearly is room for much improvement from those supervising the welfare of Y. This court urges those responsible to afford these vulnerable children more attention to prevent and to safeguard their well-being.  They should more readily come forward and report any suspected child abuse case to prevent further tragedies to these children.

136.  Lastly, the victims should also receive appropriate psychotherapy or education so that they are aware that they are not the cause of the imprisonment of their mother.  They are the victims.