According to the Summary of Facts which they admitted at the time of their plea and also this morning before me, the 1st and the 2nd defendant (hereinafter referred to as D1 and D2) are married. At the material time they were living together with their 9-month-old son in a flat in Mong Kok. At that time D2 was pregnant.
The victim of this case, a 2½-month-old boy called X, was given birth by his mother, Y. In July 2022, Y entrusted D2 to take care of X temporarily as she and her boyfriend had to work. She also paid D2 $1,000 per week to cover the cost of milk and diapers. After passing over X to D2 in July 2022, Y and her boyfriend had never visited X during his stay with the couple D1 and D2. At the time when X was passed to D2, he did not have any injuries or illnesses.
At around 1.45 am on 13 August 2022, D2 found X unresponsive. Later at around 1.54 am, D1 made a 999 emergency call, saying that X was not breathing and had a lot of phlegm. He also asked the emergency service to hurry up because X looked pale and bruised and his legs were a bit purplish.
Upon arrival of the ambulancemen at about 2.03 am, X was found to have no breathing or pulse and his face was turning black. D1 showed the ambulancemen a piece of tissue with brown liquid, saying that X had previously vomited some brown liquid and that he had been vomiting milk the past two days. X was sent to Kwong Wah Hospital for medical treatment, and he was certified dead at the Accident and Emergency Department at 3.08 am.
Upon police enquiry, D1 stated that they believed X might have been suffering drug withdrawal syndrome because the father of X had a drug habit, and that X had vomited a lot of phlegm when D1 was trying to resuscitate him. D1 also said that he did not notice any injuries on X and he had never seen any injuries on X.
In respect of D2, upon police initial enquiry she said she had checked on X around 1.30 am that night and discovered that his face was bloodless and purplish with liquid on his nose and mouth. She believed that X had choked on milk. She said she had not noticed any surface injuries on X when she picked him up from Y or when she had bathed X around 3.30 pm on 12 August 2022.
Upon autopsy being performed by the forensic pathologist Dr Tony Lam, the direct cause of death was found to be aspiration of vomitus. Dr Lam also found a number of external injuries on the body of X including four bruises on his face and a total of 13 blisters on his face and limbs.
According to the expert opinion of Dr Lam, the bruises on the face were consistent with blunt force injuries and could be inflicted by mechanisms such as contusion by hard objects, forceful gripping, pressing and slapping. The C-shaped bruise on his right temple could be caused by compression by fingernail of a person. The multiple blisters on the face and limbs of X were consistent with thermal injury which could be inflicted by the blowing by the hairdryer. He also confirmed that X was not suffering from any natural disease or injury which could have accounted for his death.
According to the opinion of Dr Lam, aspiration of vomitus which is rich in milk could trigger an inflammatory response in the lungs within a few hours to about half a day. The bruises and blisters suffered by X could have been inflicted within a few days before his death.
Eventually, both the 1st and the 2nd defendants were arrested for the offence of murder. D1 stated under caution that he had blown X with a hairdryer and covered him with a blanket, but he did not know why X had died. D2 stated under caution that she knew that her husband had blown X with a hairdryer but she did not know why X had died.
The police had also seized the CCTV cameras from the bedroom and the living room of the flat. The camera captured footages between 4 and 13 August 2022, depicting a number of specific incidents of assault and ill-treatment committed by D1 and D2 against X.
The footage also showed that D1 and D2 had never been loving or caring to X. They had never played with him or paid much attention to him. They had often scolded him for crying or not drinking milk. There were multiple occasions where D1 and D2 would simply ignore X when he was crying loudly for prolonged periods of time. Most of their attention and affection were directed towards their own son whom they would speak to nicely and handle patiently.
According to the Summary of Facts that was admitted by the two defendants, throughout this period of nine days from 4 to 13 August 2022 there were a total of about 40 incidents of abuse of X.
In respect of D1, he was involved in actions such as, for example, putting his finger wrapped with towel inside the mouth of X, slapping or hitting the face of X forcefully, stuffing the milk bottle into the mouth of X while X was crying, putting a pillow over the face of X, raising his hand to threaten X as if he was going to hit him, causing X to cry even louder and more fiercely. He was also captured by the camera to have thrown X up into the air on three occasions on 9 August. Also on that same day, he tossed X up and down 13 times.
In respect of the 2nd defendant, she was involved in actions such as covering the mouth of X with a tissue or towel, slapping the face, hitting the leg or hitting his face a number of times. She was also involved in the squeezing of his back, the stuffing of the milk bottle into the mouth of X when he was crying, sometimes even shook it inside his mouth. She had patted the back of X forcefully on some occasions and hit his face with the pillow on more than one occasion. On 9 August she had grabbed X and vigorously throwing him up and down for a total of four times.
The most serious abuse occurred in the evening of 12 August 2022 and those abuses were performed by D1, some of them being done in the presence of D2. On that night, at around half past 10 pm, D1 forcefully poked the nose of X with his own index finger, causing X to cry loudly. At the same time he was also saying, “If you want to suffer then I will let you suffer”. Later D1 appeared to be shaking the body of X repeatedly, and X kept kicking his legs and crying loudly.
At a later time, D1 cleaned the inside of the nostrils of X with a cotton bud, and at the same time X cried loudly. Apparently D1 was doing that forcefully. He continued to clean the nostrils of X with the cotton bud and X continued to cry as if he was in pain. Then D1 inserted the cotton bud into the mouth of X which caused X to cough and cry loudly. Then he wiped the mouth of X. His head and face appeared to have turned red.
Later, D1 appeared to have inserted his finger inside the mouth of X. X kept coughing whilst crying. D1 then put the cotton bud inside the mouth of X and X continued to cry. D1 also squeezed X tightly towards his own chest from behind several times. X started screaming and his face turned purplish.
At about 11.08 pm, D1 used a hairdryer to blow hot air towards X’s direction for a total of five times between 11.08 pm and 12.08 am on 13 August 2022. As one could judge from the location of the blisters on the face and the limbs of X, indeed his blowing action directed at the face and limbs of X on that evening. Indeed, for the five occasions that he used a hairdryer to blow hot air at X, the time duration of each occasion increased.
The first time he only did it for 35 seconds. The second time, 56 seconds. The third time, 65 seconds. X continued to cry loudly all along during this time and he screamed fiercely. However, he continued. The fourth time he blew hot air at him for about 1½ minutes. The last time, the duration lasted for nearly 6 minutes which was a long time. For the last time that lasted for about 6 minutes, D2 was nearby. She saw what D1 was doing but she did not do anything to stop him, despite seeing that X was crying fiercely and screaming. From the duration of blowing the hot air, one can tell that his action was deliberate instead of accidental.
Afterwards, in less than an hour’s time, at about 00:07 on 13 August 2022, again the 1st defendant used the hairdryer to blow hot air onto X. Before he used the hairdryer to blow hot air again at about 00:07, he himself told D2 that X got a blister and D2 asked whether it was too hot before. That was before he used the hairdryer to blow hot air against X again for another six times. So, realising that X had developed blisters, he still continued to abuse him, to blow the hot air against him.
On this occasion, he blew the hot air against X again on his face and limbs for a period from 00:08 to 00:15. In respect of those six occasions, the first time lasted for about 1 minute. The second time lasted for about 54 seconds. The third time lasted for 8 seconds. The fourth time lasted for 5 seconds. The fifth time lasted for 1 minute 15 seconds. D2 was there seeing what happened, and D2 also heard the baby screaming fiercely and crying non-stop, but still she did not do anything to stop him. She just ignored the baby. The sixth time lasted for 5½ minutes long.
From the CCTV which I have seen before the mitigation procedure, I could see that on most of those occasions when he was using the hairdryer to blow the hot air onto the face and limbs of X, indeed most of the time his hand remained steady or stable at a particular position, meaning that the hot wind would focus onto one particular area of the baby’s body. That would intensely increase the intensity of the heat that he suffered at the material time, and again, it indicates that his act was deliberate.
Later, at about 1.43 am on 13 August 2022, D2 entered the room and raised the blanket to check on the condition of X. She then had a shock and took a tissue to wipe X off. At 1.48 am, she called D1 who had already left home and told him that X was all pale and was not breathing. Then she left the bedroom to attend to her son. D1 returned home at 1.51 am. He performed CPR on X who was unresponsive. Eventually the ambulancemen were called.
According to the expert opinion of the paediatric specialist Dr Anna Cheng Wai-fun who prepared an expert report on this matter, it is unsafe for an infant to be fed by bottle propping as it can cause choking with the risk of aspiration into the respiratory system especially when the infant is left unattended. If the bottle is placed almost vertically into the infant’s mouth, the milk may flow out too fast, causing the infant to choke or even aspirate the milk into the respiratory system. Also, feeding with milk passing down the pharynx during vigorous crying of the infant can increase the risk of choking and milk aspiration into the respiratory system.
According to Dr Anna Cheng, D2’s act of forcefully burping X in a belly-down position (as one could see from the video) without supporting his neck posed a risk of causing injury to his neck and back and causing pain in X. If X was bringing up a lot of milk then it would also pose a risk of choking.
In respect of D1’s action of inserting a cotton bud into the mouth of X to induce a gag reflex and X kept coughing amidst crying, she was of the opinion that aspiration could have occurred during this episode of vomiting because vomiting after gag reflex posed a risk of aspiration.
In respect of the findings of brownish bruises on the face of X, she said that they were likely to have been inflicted by forceful gripping, pressing or slapping. The C-shaped bruise on the right temple of X was likely to be caused by compression by fingernail of a person. The multiple blisters on the face and limbs of X were likely to be inflicted by hairdryer causing thermal injury when D1 blew the hairdryer at X 11 times. Second-degree burn by heat source in this context had caused the skin of X to form blisters and these kind of burns are very painful.
According to her, X died from aspiration pneumonia which was a result of aspirating vomitus rich in milk into the respiratory system and had caused respiratory failure leading to death. Episodes of aspiration could not be excluded after D1 induced the gag reflex of X at 10.45 pm on 12 August 2022. The prolonged and vigorous crying after a period of severe physical maltreatment by the two defendants could also have caused vomiting which in turn could have led to a significant aspiration for X.
Dr Cheng also stated that the two defendants’ failure to attend to X while he was sleeping alone in the bedroom and covered by a blanket was a failure to check for symptoms of breathing difficulty which may be observed within one hour and almost all within two hours after the significant aspiration.
In his video-recorded interview, D1 stated under caution that:
- He was the godfather of X. Because he was close with the parents of X and they were not familiar with how to take care of children, he himself suggested that X became his godson so that he could teach them how to take care of children. However, D2 was the one usually taking care of X and they would feed X whenever he cried or threw a tantrum.
- X had been vomiting milk through his mouth and nose for the past week, and they believed that X was suffering from drug withdrawal syndrome because the father of X had taken drugs before. They had not taken X to see any doctor because he himself had to work long hours.
- On 12 August 2022, he returned home around 9 pm and was told by D2 that X had vomited milk. So afterwards he wiped the face and neck of X and cleaned the bassinet. As the bassinet was still wet, therefore he used the hairdryer to blow warm air onto the bassinet and blanket to dry them. He did not notice whether he had blown on X but he might have sometimes used hot air instead of warm air.
- As there was milk and phlegm inside the mouth and nose of X, he used a cotton bud to clean the mucus on the inside of his nose so that his breathing would not be obstructed. That was the first time that he had done so. He then inserted the cotton bud against the roof of the mouth of X to make him threw up milk and phlegm so that he would not be suffocated.
- Later he carried X back on his bassinet so that he could sleep, and noticed that the side of the bassinet was not dry yet. So, again he continued to blow dry the wet spot on the bassinet with the hairdryer for 10 to 15 minutes.
- That night he had hit the stomach of X forcefully on one occasion because he found X was noisy and he wanted X to shut up.
- After he left home that night, at around 1.45 am D2 called him saying that X was unresponsive and he was not breathing.
- He had never seen the injuries on the face and ear of X. In respect of the blisters, he might have blown the hairdryer at X but he did not know it at the time.
- D1 suggested that he might have burnt or irritated X with the hairdryer when X was moving about.
In respect of D2, she stated under caution in her video-recorded interviews that:
- She was the only one who had taken care of X on 12 August until D1’s return from work at night. There was nothing unusual about X until around 10.30 pm when he vomited milk.
- Then D1 made X sweat by blowing him with the hairdryer intermittently for about 5 minutes. They think that it would help to clear the drugs inside the system of X. D1 later told her that X had a blister, and she said it might be too hot because the hairdryer could blow hot air.
- D1 also made X threw up so that X could vomit all the phlegm out. However the crying of X was not very different to his normal crying.
- X had been vomiting milk and phlegm about once every other day. She had not brought X to see the doctor because she did not have his birth certificate. She believed X had drug withdrawal syndrome because his father had a drug habit before.
- On that night at around 1 am, she went to check on X and discovered that he was not breathing. He was completely pale with bubbles coming out of his nostrils. She wiped off the bubbles and called D1 as she was very scared.
Both D1 and D2 now accept and admit that between 4 and 13 August 2022 up until the death of X, being persons having the custody, charge or care of X, they wilfully assaulted, ill-treated and neglected X in a manner likely to cause him unnecessary suffering or injury to his health.
In addition, D1 also accepts and admits that on or about 13 August 2022, he unlawfully killed X by gross negligence in that being entrusted by the parents to take care of X, he owed a duty of care to X. In breach of that duty of care, he failed to take reasonable care for the safety of X by: (i) inserting a cotton bud inside his mouth to induce a gag reflex; (ii) blowing a hairdryer towards X which caused him to cry vigorously and rapidly; (iii) failing to attend to X when he was crying vigorously and rapidly for prolonged periods of time; (iv) failing to check on the condition of X when he was left unattended in the bedroom for a prolonged period of time. His aforesaid breach of duty amounted to gross negligence on his part, and his negligence was the substantial cause of death of X.
Coming to the personal background of the two defendants. D1 was 35 years old at the time of the offence, he is now 38 years of age. He has received Form 5 education in Hong Kong. At the time of the offence, he was working as a container terminal communications technician earning a monthly salary of about HK$20,000 per month. At the material time he was married to D2, and together they had a 9-month boy - that was the boy who was living together with them and X at the material time. He also has another son from his ex-girlfriend who is now in the care of social services.
D1 is not a man of clear record. According to his criminal conviction record, he was previously convicted of the offence of assault occasioning actual bodily harm for three times. He was convicted of robbery on one occasion, possession of dangerous drug on one occasion, criminal damage on one occasion, and possession of equipment fit and intended for inhaling dangerous drug for one occasion. Indeed, the present offences were committed while he was on court bail for the criminal damage matter. Also at the time of the present offence he was still serving a binding over order.
According to his criminal record, on 15 April 2021 he was subject to a binding over of $3,000 for 24 months and costs of $300 for wilful neglect of a child. This matter was not treated as a conviction. I was informed by D1’s counsel Mr Hui that this involved leaving his 3-year-old son at home alone for three hours. So at the time of the present offences, he was still serving this binding over order for neglect of a child.
In mitigation, counsel Mr Hui Chun-sing informed me that at the material time D1 was under the mistaken belief that X was suffering from drug withdrawal syndrome, and he wrongfully believed that causing X to sweat could help treating X of the syndrome. That was the explanation given by D1 in his video-recorded interview.
Counsel said this case was not as serious as many other authorities submitted by the prosecution. For example, the case of HKSAR v Lam Wai Man [1999] 3 HKLRD 855 involved a much more serious factual background and wilful failure by the applicant. Counsel urged me to take into account the fact that the defendant pleaded guilty to both charges at an early stage and he is entitled to a one-third discount.
Counsel also rightly agreed that even though no victim impact report was available, grave grievance must have been caused to the family members of X, especially his mother Y. I was informed by the prosecution that no victim impact report was available because the father of X declined to provide one and the prosecution was unable to contact Y, the mother of the boy X.
In respect of the overall sentence for both charges, Mr Hui urged me to take into account the principle of totality and to order part of the sentence for Charge 2 to be served concurrently with the sentence for Charge 1.
Also a letter prepared by D1 was submitted in mitigation. In this letter, D1 said that he felt deep regret and guilty for this matter. He said once he realised that there was something wrong with X, he immediately performed cardiopulmonary resuscitation on X and called the ambulance car so that he could be rescued. He admitted that he himself, by not sending X to hospital at the very first minute, was wrong and it was a mistake, and he said he would never commit this kind of offence again.
Coming to the background of D2. D2, Ms Lam Ka-hei, was 24 years of age at the time of the offence and she is now 27 years old. She is a person of clear record. She has received up to Secondary 4 level education in Hong Kong and she was a housewife at the time of her arrest, married to D1. At that time their son was 9 months old. She was also pregnant at the time. Later after her arrest she gave birth to a daughter in January 2023. She also has a 7-year-old son from her previous marriage.
In mitigation, counsel for D2 Mr Oliver Davies urged me to take into account the fact that D2 is now very remorseful. When she was being remanded in custody, she had taken active steps to improve herself by participating in a number of courses and programmes in order to better equip herself upon discharge.
Mr Davies said at the material time D2 was suffering from postnatal depression and she had been under regular psychiatric follow-up and medication at the Yong Fung Shee Memorial Centre. Because of this condition, her emotional stability and coping ability at the material time were affected.
Counsel urged me to take into account the fact that in most of the authorities submitted by the prosecution, the factual background was of a more serious nature, and a much lenient starting point should be adopted in this case. Counsel pointed out that whatever negligence or conduct performed by D2 in this case, they were not intentional and her liability laid mainly in the failure to provide adequate comfort or supervision when the baby cried, that she failed to seek medical attention when he vomited repeatedly, that she did not take steps to stop or report D1’s inappropriate handling of the child, and also she herself had handled the baby roughly from time to time.
In respect of the authorities submitted, counsel urged me to follow the lenient approach adopted by the sentencing court and the Court of Appeal in the cases of HKSAR v Ding Yuk Kwan [2009] 1 HKC 36, SJ v Lam Lui Yin [2007] 1 HKLRD 248 and HKSAR v Soto Fatimah CACC 116/2008.
Counsel said that the liability of D2 was confined to wilful neglect and ill-treatment, and in fact she was only acting under stress, impatience and poor judgment rather than deliberate cruelty or sustained violence. Counsel asked me to take into account her early plea of guilty, her genuine remorse and her deep regret for this matter.
A total of three mitigation letters were also submitted. One letter was prepared by D2 herself. In that letter she said she has come to recognise her inadequacy in caring for and understanding young children, and asked this court to take into account the fact that she had prolonged separation from her own three young children after her arrest.
Counsel said that at the material time she was a young mother aged only 24, and she was suffering from postnatal depression. Also she was struggling with the demands of childcare, pregnancy and limited emotional and financial support.
The second mitigation letter was prepared by the younger sister of D2 who described her as a kind person who cared for children. The younger sister asked this court to exercise leniency and give an opportunity to allow D2 to turn over a new leaf.
D2’s parents wrote the third mitigation letter expressing their deep understanding of the seriousness of the case. They emphasised that D2 was not a vicious person. They assured the court that they will continue to guide and support her after her release in the future, and asked this court to impose a lenient sentence.
Mr Davies invited this court to consider a starting point of less than 4 years for the sentence of D2, and to exercise discretion in granting her a lenient sentence.
There is no guideline or tariff for the offences of manslaughter or cruelty to a child. In respect of the 2nd charge of cruelty to a child, I do bear in mind the fact that the maximum sentence is one of 10 years’ imprisonment. Indeed it has been substantially raised from the previous maximum sentence of 2 years by the legislation.
Cases like the present one, involving both cruelty to a child and the loss of the life of a child, is a matter in which deterrent sentences are appropriate because people who abuse the young and defenceless must appreciate that robust sentences will follow conviction. The courts have a real duty to protect those who are incapable of protecting themselves.
I agree with defence counsel that in respect of some of the authorities submitted by the prosecution, for example, in the cases of Lam Wai Man and HKSAR v Lam Wai Shu CACC 283/2006, the facts were much more serious than the present case. However I do not agree that the seriousness of this case is similar to the other cases mentioned by counsel. Indeed, one should bear in mind the fact that in sentencing people convicted of offences of cruelty to a child, there is not much point to compare with other cases. The other cases would be of limited value because the offences would vary greatly in their background and gravity.
Amongst all the factors that I have to take into account in sentencing the offence of cruelty to a child, I will need to consider the need to protect the vulnerable and the need to deter other people from doing the same thing. 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: Ding Yuk Kwan.
I will first of all come to the sentencing of D1. Indeed, from the CCTV footages and the Summary of Facts, one could see that he was involved in the violent handling of X from time to time during this nine-day period from 4 to 13 August 2022 especially when the baby was crying.
His action on the evening of 12 August and the small hours of 13 August was particularly serious and violent. He subjected the child to prolonged suffering and heating by blowing him with the hot wind of the hairdryer. The fact that some of the blowing lasted for minutes, coupled with matters that he said at the material time, showed that the action was deliberate.
I have also looked at the photographs of the injuries suffered by X, the victim. I could see that there were multiple large blisters in red colour over his face and limbs. Those blisters covered quite a large area and they were very deep red in colour.
It is my view that D1 took a proactive part in abusing the baby on that particular evening, 12 and 13 August. I also bear in mind the fact that no victim impact statement is available, but one hardly needs to read any victim impact report to understand the grievance suffered by the parents of the baby, especially the mother Y who entrusted X to this couple for care herself in early July.
In respect of D1, I accept the fact mentioned by counsel that after the baby was not responsive, he called the ambulance and also he tried to perform some resuscitation of the baby.
Having taken into account the facts of this case including all the conduct of neglect and abusive conduct that he performed especially on the night of 12 and 13 August, details of his negligence that resulted in the death of the baby, what I saw in the CCTV and the injuries photographs, and taking into account the grievance suffered by the family of the victim, I consider that in respect of the manslaughter charge (Charge 1) the appropriate starting point should be one of 7 years’ imprisonment.
Coming to the personal circumstances of D1. He committed both offences at a time when he was on court bail for another matter, that is for a case of criminal damage of which he was subsequently convicted, and also the offences were committed during the operational period when he was being bound over for neglect of a child in another case.
Taking into account all those matters, I consider that he was a person with disregard for law and order and he could be seen as a persistent offender, especially the fact that committing the offences during court bail is a very serious matter. As such, I consider that the starting point should be enhanced by 6 months to that of 7½ years’ imprisonment.
D1 pleaded guilty at the earliest opportunity. Besides that I do not see any meaningful mitigation factor for him. So, in respect of the charge of manslaughter, he is sentenced to 5 years’ imprisonment.
Coming to the 2nd charge of cruelty to a child. Having considered all the facts of this case especially the inflict of the thermal injury causing blisters all over the face and limbs of the baby, and all his conduct of negligence and positive abusive action throughout those nine days, I consider that the appropriate starting point should be one of 6½ years’ imprisonment, bearing in mind that the maximum sentence is 10 years.
However, he committed this offence while he was on court bail for another matter and during the operational period of a binding over order for cruelty to a child. I consider that for those aggravating features the sentence should be enhanced by 6 months to that of 7 years. So the starting point is one of 7 years’ imprisonment.
He pleaded guilty at an early stage and is entitled to the full one-third discount. So the sentence for the 2nd charge should be one of 4 years and 8 months’ imprisonment.
I do bear in mind the principle of totality and the fact that some of the factual considerations in both counts in fact overlapped. In order to arrive at a fair and just result, I consider that the overall sentence to be served by D1 should be one of 7 years’ imprisonment. So, to achieve this result, I would order that 2 years of the sentence in the 2nd charge to be served consecutively to the sentence in the 1st charge. So the total sentence to be imposed on D1 is one of 7 years’ imprisonment.
In respect of D2, I do bear in mind and I accept counsel’s mitigation that indeed she was not the one who performed the more violent act on the baby X. It was only a matter of rough handling plus the fact that she failed to bring X to medical attention, failed to attend to X when he was crying prolongedly and vigorously, and of course she also failed to stop D1 from his violent and negligent behaviour.
However, on the other hand, I would also bear in mind the fact that she was entrusted by Y, the mother of the baby, to be the main carer of X and that was mainly her responsibility to look after the welfare of X. Even though she did not perform a lot of the violent or rough behaviour on X, as I had said earlier she had slapped the baby or done other things like patting his back etc. The worse of all is that on the evening of 12 and 13 August she was present at some of the times when D1 was using the hairdryer to blow hot air onto the face and limbs of the baby. She was present at the time but she did not take any action to stop D1 and just let him continued his action. After the first blowing for five times, she noted there was a blister on the baby but still she did not stop him from doing that on a second occasion to blow the hot air on the baby for six times. So, taking into account all her responsibility and liability in this matter and having considered the authorities, I consider that the appropriate starting point should be one of 5 years’ imprisonment.
In respect of mitigating features, I do not accept the fact that she was suffering from postnatal depression at the material time would have affected her emotion and stability to an extent that amounts to any meaningful mitigation. One could see clearly from the CCTV footages that her own boy, the 9-year-old boy, was present on some of the occasions when X was being abused. Indeed she behaved normally. There is nothing in the evidence or the footage to suggest that she was so disturbed by her depressive condition that she mishandled or maltreated her own boy. She only did that to X and only allowed D1 to do that to X. Of course the most significant mitigating feature is her plea of guilty at the earliest opportunity. She is entitled to the full one-third discount. As such, I will reduce her sentence to that of 3 years and 4 months’ imprisonment.
On the other hand, I do bear in mind that she was at the time a 24-year-old lady with a clear criminal record. Despite the fact that I do not accept her depressive state as a meaningful mitigation, I would take into account the stress that she was suffering because of her pregnancy, her mental condition and the fact that she was taking care of two infants at the time.
So, taking into account all these matters, I consider it would be appropriate to exercise my discretion to order a further reduction of 2 months from her sentence. Therefore the total sentence to be served by D2 on the 2nd count is 3 years and 2 months’ imprisonment.
So for D1, 7 years’ imprisonment. And for D2, 3 years and 2 months’ imprisonment. Yes.
In respect of D1, as I have mentioned earlier the offences were committed during the operational period of his binding over for another case of wilful neglect of a child. There was a 24-month bind-over period imposed on 15 April 2021. For that matter he was bound over for $3,000. I will order that because of this breach of the binding over order, the $3,000 is to be forfeited.