HKSAR v. L.L.K. AND ANOTHER

DCCC 49/2024

[2025] HKDC 400

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 49 OF 2024

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REASONS FOR SENTENCE

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Plea

1.  Upon the 1^st and 2^nd Defendants (D1 & D2)’s guilty plea and admission of facts, D1 is convicted on the 1^st Charge while D2 is convicted on the 1^st and 2^nd Charges.  The prosecution applied to put in court file the 2^nd Charge against D1 (not to proceed unless with court’s order), I so ordered.  

Admitted facts

2.  D1 (aged 21 at the material times)  gave birth to boy X on 2019-11-10. Since X’s birth, D1 only took care of X for about 6 months before she sent X away under the long-term foster care service provided by the Social Welfare Department (“SWD”).  After that, X had been looked after by different foster families and D1 only visited him twice before 2022-12-24.

3.  Since 2022-10-26, X had been living with Madam HA (PW1)  as his third foster parent in Tin Shui Wai.  X was diagnosed with speech disorder and delayed development and both D1 and D2 were well aware of X’s tender age and conditions (including that X did not know how to express himself)  at all material times.

4.  At all material times, D2 was the boyfriend of D1 and they had a 16-month-old daughter (“Y”)  born out of wedlock and the three of them (i.e. D1, D2 and Y)  resided at a flat in Ngau Tau Kok, Kowloon (“Flat”).  D1 and D2 called Y “Ah B” (阿B/小B)  and they treated her very well.

5.  Shortly before 2022-12-23, D1 made request to the SWD for X (aged 3 at the time)  to reside with her at the Flat during the Christmas holiday.  As a result, arrangement was made for PW1 to hand X over to D1’s sister at around 1500 hours on 2022-12-24.  At the time, X was in good health with no injuries.

Charges 1-2

6.  X resided with D1, D2 and Y between 2022-12-24 and 2023-01-05, both dates inclusive, (“Home Leave Period”)  and during the entire period D1 and D2 were persons over the age of 16 years and they had the custody, charge or care of X.  During the Home Leave Period, D1 and D2 caused X’s injuries stated in paragraph 13 below.

7.  During the Home Leave Period, D1 and D2 habitually called X “rubbish” (垃圾)  and D1 would comment that X was ugly (樣衰)  and disgusting (嘔心)  when she talked about videos or photos of X.  Whilst D1, D2 and Y slept on the bed at the Flat, X was only allowed to sleep on the floor.

Charge 1

8.  During the Home Leave Period, D1 and D2 continuously and wilfully assaulted, ill-treated and neglected X in a manner likely to cause X unnecessary suffering and injury to health, including:

(a)  On 2022-12-25, at about 1640 hours, X was naked and only wearing a diaper despite the cold weather. Whilst wearing the diaper, X defecated and there were feces all over lower part of X’s body at around 1718 hours. At about 1914 hours, X was still naked and he sat on the floor trying to clean up his feces. It was only until about 2010 hours that D1 showered X;

(b)  On 2022-12-26, D1 and D2 starved X by not providing food for X. D1 even sent a WhatsApp message to D2 at about 0727 hours on that day stating “Don’t let that rubbish eat” (唔好比野個垃圾食);

(c)  Between 0832 and 0835 hours on 2022-12-26, D1 took three photos of X and sent them to D2. At the time, X was again naked in the cold weather. His body was wet and he was crying. He was again sitting on the floor with feces over his body;

(d)  On 2022-12-27, at about 0114 hours, D1 and D2 put X inside the toilet and switched off the light for about 30 minutes. At 0142 hours, D1 slapped X forcefully when he was eating, causing at least redness on both sides of X’s face. At 0234 hours, X was not allowed to sleep on the floor or on the bed and he was forced to sleep or lie on a toilet bowl;

(e)  On 2022-12-27, D2 forcefully pulled X’s ears for about one minute and caused redness on X’s ears. He also forcefully hit X’s buttocks and thighs before sending a photo of X depicting redness on X’s buttocks and thighs to D1 via WhatsApp at about 2238 hours;

(f)  On 2022-12-28, D1 got angry at X for putting some toy in a pocket of his trousers and hit X’s face forcefully twice;

(g)  On 2022-12-29, D1 hit X and sent a WhatsApp message to D2 saying: “That rubbish was moving around and talking to himself. He was so fucking noisy. I will fucking beat him up after Ah B woke up” (個垃圾不停係到郁嚟郁塊玩地下又自言自語佢自己醒咗又唸辦法嘈撚住人一陣間小b醒左我就打7佢). D2 had also forcefully slapped X two to three times for messing around with toys and patting the shoe cabinet and caused redness on X’s face and bruises on X’s jaw;

(h)  On 2022-12-31, D1 kicked X off the bed and caused him to fall on the ground and X had bruises on his forehead;

(i)  Between 2022-12-31 and 2023-01-03, D2 hit X who sustained injuries, including more bruises on his forehead, redness and bruises on his face and wounds on his upper body; and

(j)  During the Home Leave Period, D1 and D2 never provided or arranged any medical treatment for X.

Charge 2

9.  On a day unknown between 2022-12-27 and 2023-01-05, both dates inclusive, D2 used a metal ruler to forcefully hit X’s back, threw X and caused his head to bump against a headboard and stepped on X twice after X fell onto the ground (“GBH Incident”).  The GBH Incident caused X grievous bodily harm including acute subdural hemorrhage over left frontal area and retinal hemorrhage on both eyes (see paragraphs 14-15 for details).

Reporting of the case and X’s injuries

10.  On 2022-12-25, D1 contacted PW1 and requested to take care of X for a few more days as her boyfriend (D2)  got COVID-19.  On 2023-01-04, PW1 contacted D1 via WhatsApp and asked whether X was sick.  D1 replied to PW1 and said X probably had a flu as he had a running nose and was coughing.

11.  On 2023-01-05, at about 1256 hours, D1 sent a WhatsApp message to D2 saying “Don’t hit the rubbish these few days.  Just scold him and make him fucking leave.” (呢幾日唔好打個垃圾 用口鬧佢 等佢快撚d走).  Afterwards, D1 contacted PW1 and asked to send X back to PW1.

12.  At around 2230 hours on 2023-01-05, D1 and D2 brought X to PW1.  Upon seeing X, PW1 immediately noticed that there were bruises on X’s forehead.  She pulled down X’s mask and saw some bloodstain on X’s nose.  PW1 asked D1 and D2 what happened to X and they only replied it was normal as X hurt himself when he was stumbling (跌跌撞撞整親，好正常).  While on the way home to PW1’s residence, PW1 found that X had multiple injuries and bruises on his back, both hands, both ears and head.  In the same evening, X also had diarrhea and started vomiting.  PW1 informed D1 of X’s conditions and D1 replied that X got carsick.

13.  At around 2330 hours on 2023-01-05, PW1 brought X to the Accident and Emergency Department of Tin Shui Wai Hospital where computed tomography (“CT”)  of X’s brain revealed acute subdural haemorrhage over left frontal area.  He was then conveyed to the Tuen Mun Hospital for detailed check-up, where X was examined and found to have multiple bruises over face, trunk, four limbs and buttock, including:

(a)  Forehead (2.5 cm semicircular bruises over left frontal head, two 5 mm abrasions over left frontal head, spot bruises over right frontal head, small abrasion over right frontal head);

(b)  Right face (5 mm abrasion over right face, 1 cm x 1 cm purplish bruises over right cheek);

(c)  Right ear (5 mm bruises over right outer pinna);

(d)  Below right ear (three 5 mm linear fresh abrasion scar over right infra-auricular region);

(e)  Left ear (5 mm at crus of helix);

(f)  Left face (three linear abrasions over left face);

(g)  Neck (1 cm linear abrasion over right lateral neck, 1 cm linear abrasion over left later neck);

(h)  Chest (1 cm red abrasion over right infra-clavicular region, 3 mm dried abrasion scar over left supra nipple region);

(i)  Back (2 cm greenish bruise inferior to right scapula, l cm greenish bruises over central back);

(j)  Buttock (one 2 cm and one 1 cm fading bruises over left medial buttock, some fresh red abrasions over right medial buttock);

(k)  Right upper hand (3 mm x 3 mm circumscribed scab over extensor side of right index finger);

(l)  Left upper limb (1 cm bruises over left medial elbow region, one dried scab over left posterior forearm, 1 cm linear abrasion over left lateral forearm); and

(m)  Left lower limb (a small abrasion over left supra-knee region, 5 mm linear abrasion scar over medial left knee, 5 mm greenish bruises over lateral left knee, 3 cm x 1 cm erythema bruises over left medial knee).

14.  On 2023-01-06, urgent CT of X’s brain revealed acute subdural heamorrhage at bilateral high frontal parasagittal regions and along the left tentorium, also with right parietal scalp haematoma.  On the same day, as child abuse against X was clinically suspected, the case was reported by Tuen Mun Hospital.

15.  On 2023-01-07, follow-up CT of X’s brain showed similar thin subdural haematoma at left tentorium and left anterior frontal parasagittal lobe.  On 2023-01-12, progress brain imaging of X showed resolving subdural hematoma.  Further, ophthalmologist assessment showed retinal hemorrhage on both eyes.

16.  At 0230 hours on 2023-01-06, X was admitted to the Paediatric Intensive Care Unit of Tuen Mun Hospital.  On 2023-01-18, X was discharged from the hospital.

Examination of the mobile phone of D1 and D2

WhatsApp records between D1 and D2

17.  The WhatsApp records between D1 and D2 during the Home Leave Period revealed the following:

(a)  D1 and D2 were very caring towards Y and recorded the food she ate daily;

(b)  D1 and D2 habitually called X ‘rubbish’ (垃圾)  in their dialogues from 24 December 2022 (i.e. the first day of the Home Leave Period);

(c)  The various messages D1 sent to D2 in which she called X “asshole” (仆街)  and “rubbish” (垃圾)  and described X as ‘fucking hateful’ (好撚討厭);

(d)  A video in which X called D1 his ‘mommy’ a few times and D1 sent it to D2 and described it as “disgusting” (好嘔心);

(e)  Various messages, photos and/or videos showing X’s injuries, D1 and D2’s assault and ill-treatment on X and also D1 and D2’s hatred towards X, including:

	Date and time of the messages	Description
1	2022-12-25 (1639-2014 hours)	X was captured naked and only wearing a diaper at 1640 hours.  After that, there were feces on X’s body at 1718 hours and he was seen in a photo sitting on the floor trying to clean up at 1914 hours.  Between 2010 hours and 2013 hours, D1 (with a tattoo on her right hand)  showered X.
2	2022-12-26 (0727 hours)	D1 sent a message to D2 saying “Don’t let that rubbish eat” (唔好比野個垃圾食).
3	2022-12-26 (0832-0835 hours)	D1 sent D2 three naked photos of X, one depicting X was wet and crying, the second one depicting X sitting on the floor with feces on his body and the last one depicting X standing inside a shower cubicle.
4	2022-12-26 (1238 hours)	D1 sent a message to D2 saying “Ask that rubbish to come and sleep on the floor” (叫個垃圾入嚟地下瞓覺).
5	2022-12-26 (2309 hours)	D2 sent to D1 a photo of X depicting that X was sleeping on the floor.
6	2022-12-27 (0114 hours)	D1 sent a message to D2 saying “Lock him in the toilet and switch off the light” (困佢入廁所山燈).
7	2022-12-27 (0142 hours)	D1 sent to D2 a video capturing X being slapped when eating.
8	2022-12-27 (0234 hours)	D1 sent to D2 a photo depicting X sleeping or lying on a toilet bowl.
9	2022-12-27 (1644-1650)	D1 sent to D2 photos of X with redness on both sides of X’s face.
10	2022-12-27 (2238 hours)	D2 sent D1 a photo of X depicting redness on X’s buttocks and thighs.
11	2022-12-29 (1410 hours)	D1 sent a message to D2 saying “That rubbish was moving around and talking to himself.  He was so fucking noisy.  I will fucking beat him up after Ah B woke up” (個垃圾不停係到郁嚟郁塊玩地下又自言自語佢自己醒咗又唸辦法嘈撚住人 一陣間小b醒左我就打7佢).
12	2022-12-31 (0006 hours)	D1 sent to D2 a photo of X trying to get on a bed and said to D2 that she kicked X off the bed (比我踢返佢落去).
13	2022-12-31 (1926 hours)	D1 sent to D2 two photos of X with bruises on X’s forehead.
14	2023-1-2 (1243 hours)	D1 sent to D2 a photo of X with more bruises on his forehead, redness on his cheeks and some small wounds on his upper body and she said “So wanna kick him out” (好想掉佢出門).
15	2023-1-2 (1446-1447 hours)	D1 said to D2 “Lock him at room and not let him out” (困個垃圾係房唔帶出去)  and D2 replied “Ah?  It may be a big deal if anything happens” (下有事會好大獲喎).
16	2023-1-2 (1451 hours)	D1 sent to D2 a photo of X with bruises and redness on X’s face.  D2 replied “Wanna die upon seeing him” (見到都想死).
17	2023-1-3 (1324 hours)	D1 sent to D2 a photo of X with bruises and injuries on X’s face.
18	2023-1-4 (1403-1416 hours)	D1 said to D2 “He kept saying Daddy please let me drink’ (佢係咁話嗲哋比我飲水).  D2 replied ‘Just fucking beat him up’ (打柒佢啦).  D1 said ‘Does he even know what is mother and father” (佢到底知唔知咩叫爸爸媽媽).  Both D1 and D2 said X was very disgusting for calling them Daddy and Mummy.
19	2023-1-4 (1648-1655 hours)	D1 said to D2 “I tell you the rubbish is hopeless.  He fucking woke me up a few times” (我同你講條垃圾無得救)  (我訓咁耐嘈撚醒咗我幾次).
20	2023-1-5 (1256 hours)	D1 said to D2 “Don't hit the rubbish these few days.  Just scold him and make him leave” (呢幾日唔好打個垃圾 用口鬧佢 等佢快撚d走).
21	2023-01-5 (1612 hours)	After sending X back to his foster parent (PW1), D1 said to D2 “Ah B is having a fever.  The rubbish was too dirty and carried too much germs” (小b發燒 真係個垃圾太污糟 太多菌).

18.  Never for once did D1 and D2 talk about whether they should provide or arrange medical care to X.

Background of the defendants and mitigation

19.  At the material time, D1 is the mother of X while D2 is the boyfriend/cohabitee of D1.  D1 and D2 are now aged 23 and 26 respectively.  They were aged 21 and 24 at the time of offence.  

20.  Both D1 and D2 are educated up to Form 5 level.  D1 is a housewife and has 3 elder sisters (one is a social worker and another is a nurse).  D2 was unemployed at the material time.  Both of them have clear record.

21.  In mitigation for D1, Mr Davies, counsel for both defendants, stressed that (1)  her timely guilty plea; and (2)  D1 is in an unenviable condition, mother passed away when she was 18, she got pregnant (with X)  after that and X’s blood father deserted them and D1 has been suffering from depression thereafter.  She was a young woman faced with severe adversity.  Her background does not excuse her actions but it does provide important context. 

22.  In mitigation for D2, Mr Davies stressed that (1)  his timely guilty plea; and (2)  he is the sole breadwinner of the family.  D2 was described as a hardworking partner. 

23.  D1 and D2 were both facing difficult situation at the time, it was the height of the COVID-19 pandemic.  D1, D2, X and D1’s elder daughter each contracted COVID-19 in succession before the incident.  D1 was solely responsible for caring all the young children and D1’s emotional distress escalated significantly.  D2 bore the additional financial hardship. 

Sentencing consideration

Child abuse

24.  The maximum sentence for Charge 1 is 10 years’ imprisonment.  It reflects the severity of the charge.  Due to the variety of the factual matrix of the charge, the appellate court did not set out any sentencing tariff.  That said, appellate courts have said in different occasions that the charge normally calls for deterrent sentence in order to send a message to those irresponsible carer or parent and the society adopts zero tolerance on child abuse.  While acknowledging the fact that parents or carers might face emotional stress when looking after children, but adults must control their emotions and avoid doing harmful acts on child.  Sentencing considerations include the child’s background/physical and mental condition, the relationship between the offender and the child, the acts/omissions on the child and their consequence. 

25.  In HKSAR v Ding Yuk Kwan CACC 24/2008, the Court of Appeal stressed that:

“One starts by recognizing that the maximum term of imprisonment for this offence is one of ten years’ imprisonment, a maximum that was greatly increased by the legislature in 1995, thereby indicating the legislature’s intention that such offences be treated seriously. Some assessment – and the approach is an art – must be made as to where within the range of seriousness the offence at hand lies and then, amongst all the factors that must be taken into account, are primarily the need to protect the vulnerable and the need to deter. 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. …”

26.  In Secretary for Justice v Lam Lui Yin [2007] 1 HKLRD 248, the Court of Appeal (Ma CJHC, Stuart-Moore VP and Lunn J)  granted an application for review by the Secretary for Justice of the sentences of 2 years’ imprisonment which were quashed and substituted with sentences of 4 years’ imprisonment on the parents for conviction after trial of the offence of neglect of a child.  The victim child was one of triplets who was born prematurely and found to be suffering from congenital heart disease.  He had a series of operations and had been hospitalised from birth until he was two.  After which he died as a result of head injuries, and it was revealed that he had bruises and abrasions over his body.  

27.  Lam Lui Yin was considered as proper sentence “in the circumstances of the case” in HKSAR v Wong Wing-man Mandy [2018] HKCFI 1484.  The learned Judge Mr Zervos, as he then was, said in para 142 of Mandy Wong’s case:

“A crucial factor that must be taken into account when sentencing for this offence is the need to protect the young and the vulnerable, as well as the need to deter abuse of neglect of them. Other crucial factors to be taken into account are the age and circumstances of the child; the relationship between the offender and the child as well as the responsibility the offender had for the child; the suffering and injury to the child; and the long term prospects will have on the child both physically and psychologically.”

Causing grievous bodily harm with intent

28.  The usual sentence for Charge 2 after trial for this offence is 3 to 12 years’ imprisonment: HKSAR v Chan Chun Tat [2013] 6 HKC 225.

29.  The Court of Appeal in paras 49-50 of Chan Chun Tat gave helpful guidance to a sentencing court when dealing with this sort of case:

“49. … many of the factors to which a court will have regard in determining the gravity of a s 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identify all the relevant factors, the usual ones will be the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as a part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence. Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.”

30.  In HKSAR v Wong Luk Sau CACC 2/2012, the Court of Appeal pointed out that 3 years (as said in Chan Chun Tat)  is not necessarily the minimum sentence for offence of this kind (see also R v Kwok Chi Ming CACC 202/1985, HKSAR v Chow Benjamin CACC 118/2017).

Analysis

31.  Applying the above legal principles into the present case, the aggravating features of Charge 1 include deliberate and repeated assaults on X (aged 3 with medical history of development delay)  by D1 and D2 in about 10 days’ time, causing X to sustain bruises on his forehead, face and wounds on his upper body.  X was targeted as one particular child as child abuse while Y, daughter of D1 and D2 has been treated well.  The CT examination between 5^th January 2023 and 7^th January 2023 reveal the multiple injuries sustained by X.  Worse still, D1 and D2 never provided or arranged medical treatment for X after the assaults.  By Dr Lee Lai-ping’s statement dated 18^th July 2024, the prosecution further provides, inter alia, the cause of X’s injuries and the impact of X’s injuries on his health.  While the brain and eye injuries might result in permanent injury[1], the extent of physical abuse also increased risks of behavioral and psychological problems.  

32.  In sentencing, I take into account these factors: (1)  D1 and D2 are parents (D2 is de facto father of X)  and they were in flagrant breach of power and position as parents; (2)  X not only suffered immediate pain, he sustained multiple injuries with permanent damage; (3)  D1 and D2 did not provide medical care after the assaults; (4)  the assaults took place in about 10 days’ time. While I accepted that D1 and D2 were having immense pressure at the time but it seems they were not entrusted with long term care on X, they had foster parent’s support and X was there for short term home stay only.  This was not an isolated act but joint efforts on child cruelty.  Nothing suggested D1 and D2 were immature as parents.  I will adopt 48 months’ imprisonment as the starting point for Charge 1, which is reduced to 45 months for their clear record, and after further giving one third discount for their early guilty plea, that arrives at 30 months’ imprisonment for Charge 1. 

33.  The above factors are equally applicable to Charge 2 against D2, I will adopt 3 years’ imprisonment for Charge 2.  After deducting one third discount for D2’s guilty plea, it arrives at 2 years’ imprisonment.  Substantial facts of two charges are overlapping, to avoid total sentence being excessive, I order 18 months of Charge 2 be made concurrent with Charge 1, total sentence for D2 is 36 months’ imprisonment.