R. v. LAM WAI MEI

IN THE COURT OF APPEAL

1995, No. 197

(Criminal)

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J U D G M E N T

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Liu JA, giving the judgment of the Court:

1. The appellant who is now 21 was convicted of having willfully neglected her child of two in a manner likely to cause him unnecessary suffering under Section 27(1) of the Offences Against the Person Ordinance. The offence charged related to the conduct or acts of the appellant in April 1993. She was then 19 years old. She was sentenced to 21 months imprisonment. The trial Judge started from the maximum penalty of 2 years, allowing her a small discount of 3 months for her plea of guilty.

2. Three Grounds of Appeal have been advanced on her behalf. Counsel abandons Ground 3, and in substance Ground 2 of the Grounds of Appeal is also abandoned save for counsel's submission that this court should take into account her sense of remorse. However, in giving her a small discount for her plea of guilty the trial judge drew attention to the fact that her plea was a late plea. The trial judge observed on a co-defendant in the same case that the court found in his late plea no real sense of remorse. The same observation applied implicitly to the case of the appellant. There is no substance in the advantage counsel seeks to take of what is left of Ground 2.

3. The remaining ground of appeal is Ground 1. It is complained that the judge was wrong in taking, as a starting point, the maximum penalty set by law. At the time of the appellant's conviction the law allowed a maximum sentence, in the proceedings the appellant faced, of 24 months i.e. 2 years. In the same vein,, our law-makers have thought fit to increase the maximum sentence to 10 years. It is evident that the legislature takes a very serious view of cases of this kind. That is a view which the courts cannot ignore.

4. The appellant has had a tragic personal past. She has a baby. Between 2 to 6 April 1993, she allowed her baby to be left in the care of a child-minder. When the baby was returned to the appellant on the 6 April, there were all over his body a great many punctures. The baby also suffered a broken wrist. At least these punctures were visible. She did not take the baby to a doctor for medical treatment or send him to hospital. On 12 April, she returned the child to the care of the same minder. From 12 April to 14 April, the child was left under his care and custody. On 14 April when the baby was taken back by the appellant, he had on him some 80 punctures plus the broken wrist. He also sustained dreadful injuries to his penis. He had cigarette burns on his back. There were multiple bruises all over his body. The appellant declined the invitation of her co-habitant to take the child to hospital and it was not until 16 April that her co-habitant took the child for treatment. That led to police enquiries and the arrest of the appellant. What the courts must note before resorting to the maximum penalty is clearly and well stated in the R v. Ambler [1976] Crim L R 266 at p. 267:

"(Judges)should consider the worst type that came before the courts and ask if the instant case came within the broad band of that type".

5. On either of the occasions, immediately on the return of the child on 6 April 1993 or 14 April 1993, by not taking her son to a doctor or hospital with all those visible injuries, in our view the appellant clearly came within the broad band of the worst of this type of cases that have come before our courts. Our society does not tolerate this kind of conduct and the court must express public abhorrence in cases of this sort. The judge was right in his approach. Subject to the small discount for a guilty plea, the appellant was rightly visited by the maximum penalty in this case.

6. There is really no room here for any personal inadequacy as that envisaged in the case of Smith [1984] 6 Crim L R (S) 174. But as a measure of caution, at invitation of counsel, this court extended to the appellant an opportunity to be examined by psychiatrists. That opportunity for further enquiries was flatly refused by the appellant. In the circumstances, as the last and only ground in this appeal fails, the appeal stands dismissed.