HKSAR v. LEUNG MAN CHUN AND ANOTHER

DCCC 432/2021

[2021] HKDC 1335

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 432 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

D1 faces a charge of "Ill-treatment or neglect of child by a person in charge of that child[1]" (Charge 1). D1 and D2 are jointly charged with an offence of "Possession of apparatuses fit and intended for the inhalation of a dangerous drug" (Charge 2).

2.  D1 pleaded guilty to both charges before me on 7 October 2021.  D2's portion of this case is fixed for mention in the plea court on a later date.

Summary of Facts

3.  At the material time, X was a 3-month-old boy infant.  D1 and D2 are his biological parents.  D1, D2, their daughter and X resided together at the Mongkok address particularized in both charges ("the Flat").

Charge 1

4.  About 1:00 a.m. on 8 July 2020, D1, D2, their daughter and X were sleeping in the Flat on the same bed.  D1 suddenly woke up and found X having turned face down burying his face in the pillow.  X's face was purple with his mouth wide open and his eyes half open.

5.  D1 and D2 took X to Kwong Wah Hospital.  X was certified dead at 3:11 a.m. on the same day.

6.  According to the autopsy report, the medical cause of death of X is unknown. Methamphetamine ("ICE")  was detected in his blood at the level 0.01 μg/ml. ICE was also detected in his urine and stomach contents, indicating consumption by ingestion.  Pathologist Dr. Lam considers it is likely that ICE was taken by X accidentally; a possibility was feeding him with contaminated formula milk.  X's milk bottle was examined by a Government Chemist.  It was found to contain traces of ICE.

7.  In his video recorded interview, D1 admitted, inter alia, that he was an ICE user.  He would put ICE into the ICE pot placed in the kitchen and then consume it in the toilet at home.  X's milk bottle was also kept in the kitchen.  In that afternoon (7 July 2020), D1 consumed ICE at home.  He then fed X using the milk bottle in the same afternoon.  When being told ICE was found in X's body, D1 admitted that he might have been negligent by not washing his hands after consuming ICE.  He forgot if he had washed X's milk bottle on that day.

Charge 2

8.  On 29 October 2020, police officers executed a search warrant at the Flat.  They found 1 packet of suspected dangerous drug, 1 ICE pot and 3 mouthpieces on D1 and D2's bed.

9.  At the scene, D1 admitted under caution that the ICE and the ICE pot were for his own consumption.  He confirmed the same in his subsequent video recorded interview.

10.  A Government Chemist confirmed that the ICE pot and 2 of the 3 mouthpieces contained traces of ICE.

Mitigation & Sentence

11. D1 is 42 and has 7 conviction records, which included 1 "Trafficking" offence. In July 2021, he was sentenced to imprisonment for a total of 2 years and 1 month (in DCCC 912/2020)  for 3 offences dissimilar to those in the present case. His expected release date is September 2022.

12. D1's counsel Ms. Ng informed me that D1 and D2 are not married, but they have a daughter (aged 3). X was born in mid-March 2020. Due to limited space in the Flat, the 4 of them shared the same bed. At the time of his arrest in October 2020, D1 was working at a bone-setter clinic earning $6,000 per month. In mitigation, Ms. Ng submitted that D1 accepts responsibility for causing accidental ingestion of ICE by X. He is remorseful for the tragic consequences brought about by his ICE habit and is determined to stay away from drugs. Regarding D1's daughter, I am told that she is being looked after by D1's mother. A lengthy letter written by D1 was placed before me; its contents are duly noted.

13. There is no sentencing tariff for Charge 1[2]. The facts and seriousness of each ill-treatment of child case vary substantially, ranging from inappropriate corporal punishment to intentional starvation or torture. The harm caused to the child ranges from minor injuries to fatality. The sentence also ranges from Probation Orders to immediate imprisonment.

14. Based on the materials before me, it is plain that D1 caused the ingestion of ICE by X (albeit as a result of his ignorance or negligence). The medical cause of death of X is unknown. I accept there is no evidence showing that X's death was related to ICE or how much actual harm was or could have caused to his health by the ICE in his body. On the other hand, the presence and smoking of ICE in the Flat were no doubt hazardous to an infant's health, which formed the prosecutorial basis of bringing Charge 1 against D1.

15. As expected, the DATC Report revealed that D1 is no longer a drug dependant. When determining the sentence for Charge 1, I cannot ignore fatality being the final outcome, irrespective of the causation. I adopt a starting point of 12 months' imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 8 months' imprisonment for Charge 1.

16. For Charge 2, the usual sentence is 3 months' imprisonment after plea[3]. I have no reason not to follow it. Hence, I adopt a starting point of 4.5 months' imprisonment. With the timely guilty plea, the sentence is reduced to 3 months. I sentence D1 to 3 months' imprisonment for this charge.

17. Having considered the totality principle, I order the sentences for Charges 1 and 2 to run concurrently. Thus, arriving at a total prison term of 8 months. The offences in DCCC 912/2020 are separate and distinct from those in the present case. There is hardly anything I can do in terms of totality. I order the sentences in the present case to run consecutive to those in DCCC 912/2020.