CRIMINAL CASE NO. 47 OF 2010
COURT: That a baby could starve to death here in modern-day Hong Kong is something that many people would find hard to believe, yet that is what happened to your child whilst she was in your joint care. Despite the provision of social security payments to you, despite the availability of free hospital care, despite advice to attend the Family Service Centre for assistance and support, you failed to spend enough to feed her properly and you let her die without seeking help until it was too late.
Your duty as parents was to nourish and protect that child. In gross breach of that duty, you let her starve to death before your eyes. Her deteriorating condition was not something of which you could have been unaware. You took home a healthy baby weighing 2.89 kilograms in early March of 2009 and you lived together with her and your 2-year-old son in a small public housing flat. By 26 June, she weighed less than she did at birth, only 2.68 kilograms. She should, by then, have weighed more than twice that.
These criminal courts see some wicked things but the photographs taken of your child on the day she died must rank as some of the most distressing. It is almost impossible to understand how you could allow your daughter to reach such a state whilst you fed yourselves and your son.
Your excuse that the lack of a birth certificate stopped you taking her to hospital is worthless. Simply handing over her shrunken body, whilst it still had life, to someone in authority, or even to a stranger with a heart, could have saved her.
You lived in squalor, surrounded by rubbish and used diapers, cockroach infested, the bathroom floor covered with un-drained sewerage, the baby’s bed filthy, her bottle dirty. How could it happen? Your explanation is that there was not enough money to feed her sufficient milk powder.
Putting aside how you allocated your social security, still buying cigarettes, it appears that you, the mother, were entitled to claim more when the baby was born, yet you did not. It appears that you, the father, could have claimed your own social security payments but did not, seeking to support yourself on what was designed for the mother and one son.
What explains this conduct? What is to be punished? Ignorance? Sloth? Drug addiction? Gender bias? Malice? As to drug addiction, there is nothing to suggest that it played any part. I reject malice. The papers reveal that this death was one that hurt you. Notwithstanding that it was your conduct that caused the suffering and loss of life, I can accept that the anguish you exhibited at the end was genuine, and I note that the attitude that allowed these events to unfold also extended to the neglect of your own living conditions.
As to gender bias, I can see that it was the baby with its special dietary needs that was the most vulnerable. You asserted that neither of you had the means to eat well and I can believe it. I do not act on the basis that the neglect of your duty was the greater because the baby was a girl.
As to ignorance, the reports, both social and psychiatric, reveal nothing in either case untoward. Your backgrounds, educational achievements and job histories contain nothing that would explain your conduct. This is not a case where either of you lack the intelligence or mental capacity to deal with family life.
The court is left with the consideration that it was your combined failure of character that allowed this criminal conduct. If a fraction of the attention that was given to your playing of computer games had been given to this baby child, her life would not have been lost.
Whilst there is no tariff for cases like this, judges are not free to impose any sentence they like. The sentence I pass has to be one that fits into the general scheme of sentencing adopted by the courts. Your case must fit with those that involve unwanted death caused by gross negligence.
The range of such sentences is wide, reflecting the diversity of behaviour that can lead to convictions for manslaughter on this basis. Your case is towards the top of the range for the obvious reasons that the duty breached was such a natural and fundamental one, and that its breach involved ongoing omission, the consequences of which were both obvious and dire.
This is manslaughter at a very culpable level but I acknowledge that the culpability lies more in an inexplicable inertia rather than deliberate cruelty, although cruelty there was. I also remember and take into account the fact that you, the mother, were not physically well for much of the time and you were unable to breastfeed, and that you, the father, have suffered mentally since these matters, being diagnosed now with a depressive reaction following the events, prompting attempts to take your own life.
Nine years after trial is the starting point for sentence that I take, reflecting my view that your case is towards the top of the range. Your pleas of guilty earn you a third discount. You will both go to prison for 6 years.
I appreciate that, by imprisoning you, I deprive your other children of parents. However, it is an unavoidable consequence of your conduct. Whilst it is to be regretted, it cannot prevent this court discharging its public duty by marking your sentences with the punishment it merits.
It is tempting to be critical in a case like this of a system that allowed the death of this baby. This family was obviously one that displayed many of the indicators that would spell out risk for their newborn child, not least the binding over of the 1st defendant in relation to an allegation of violence toward an elder child of the 2nd defendant and a connected assessment of child abuse by neglect in respect of the 2nd defendant. This was a family known to the Social Welfare Services, yet there was no home visit after the arrival of the new baby.
However, that temptation to be critical is to be resisted as this court does not have the right information, it is not equipped for the task, and those involved are not here to speak. All this court can do is express the hope that those with the responsibility for these matters look hard at the facts of this sad case.