COURT: The defendant was tried for the murder of her grandson, Endless Cheng Ting-hin, but after the most anxious debate overnight by the jury they could only return a verdict of four to three. In the circumstances I could only discharge the jury.
I accept that the accused had all along pleaded guilty to manslaughter or willing to plead guilty to manslaughter on the basis of diminished responsibility and in view of the jury’s decision, Mr Arthur, very properly, had further discussions with the Department of Justice and the decision was made to accept the plea, thus obviating the need for a second trial.
In light of that, prior to sentencing I have called for an up‑to‑date psychiatric report on the defendant as to whether she required further institutional psychiatric care and sentencing was adjourned for the report.
Dr Amy Liu, visiting psychiatrist at Siu Lam Psychiatric Centre, had written a most comprehensive report which has assisted me greatly in understanding the complexities behind the defendant’s killing of Endless Cheng Ting-hin, for which this court is most grateful. Dr Liu’s opinion is that the defendant no longer need inpatient psychiatric treatment and only requires outpatient follow-up treatment.
This is a most tragic case and it beholds me to go into a little detail about the circumstances which led to the most unfortunate loss of life of a young six-year-old, happy and lively boy whose only fault, it seems, was to be born.
The story began way before Endless Cheng Ting-hin was born. His grandma, the defendant, having married young had two daughters and one son who died of leukaemia at the age of two. Her younger daughter was the mother of Endless Cheng Ting-hin. As with many families the marriage of the defendant ended when her husband left her and she brought up the girls on her own, a hard life but not unusual in Hong Kong and many other cities.
In 1993, the defendant was briefly admitted to the Prince of Wales Hospital psychiatric unit but was only diagnosed with brief reactive psychosis precipitated by her personality, strong religious belief and background psychosocial stress. She was discharged without medication. She was subsequently seen as an outpatient for depression from 1997 and given antidepressants. She attended follow up regularly and when she was last seen by Dr Mak at the Prince of Wales Hospital psychiatric division, on 2 January 2018, her mood symptoms responded to medication but she was bothered readily, succumbed readily to stress.
Endless Cheng Ting-hin was born in 2012 and from birth was taken care of by the defendant although the mother of Endless Cheng Ting-hin knew that the defendant had poor medication compliance. As Endless Cheng Ting-hin grew older the job of looking after him fell squarely on the defendant’s shoulders. By that time the mother of Endless Cheng Ting-hin had moved out to live with her boyfriend and from here the stories of mother and daughter diverge.
According to the defendant, as was told to her colleagues where she worked, her daughter, that is, Endless’ mother did not help her with Endless’ schoolwork ever since he went into primary school. She told her colleagues that when she telephoned her daughter to help, her daughter would reject her. However, Endless’ mother said to Dr Liu that she would return home every day for three to four hours except on days when she had to work overtime. Whatever was the truth there was no doubt that the defendant felt she was overburdened, not only with taking care of Endless’ daily needs and his schooling, but also financially, she had to do three jobs to earn enough living expenses for herself and her grandson. Those, no doubt, were major stresses in her life.
At the beginning of March, the defendant had already stopped taking her medication, but apart from her loss of weight and sleeplessness and poor appetite, as Dr Liu noted she was able to attend the school meeting on 16 March, the day before the killing, and participate in the outing with her boyfriend and Endless on 17 March. So Dr Liu questioned if she was indeed going through a severe depressive episode. This was in paragraph 34 of Dr Liu’s report.
Dr Liu, helpfully, also drew comparisons between the defendant’s 1993 episode and the present offence, in paragraphs 25 to 28 of her report. In brief, in the 1993 episode when she was admitted to the psychiatric unit of the Prince of Wales Hospital from 19 February to 4 March, she had strong suicidal and homicidal idea, low mood and suddenly believed to die with her two-and-a-half-year-old daughter was best in order to get rid of her daughter having to suffer from asthma. So as I have said, she was then diagnosed with brief reactive psychosis precipitated by her strong personality, strong religious belief and background psychosocial stress. No medication was given.
Interestingly, Dr Liu noted that on 25 February 1993, Dr Kwong, the supervisor psychiatrist, had said that it was probably a brief reactive psychosis but he noted the psychotic phase was too short and can also be viewed as a crisis reaction in a lady who felt unsupported by her family. As Dr Liu noted, the remarkable resemblance between the two episodes, the one in 1993 and this offence, should be noted.
At paragraph 28, she said in 1993 she was worried that the asthmatic disease of her daughter could be transmitted to her and at the time of Endless’ death she believed he was abnormal as he fell short of her standard, that is, running around and sliding up and down his chair. Secondly, that the defendant developed homicidal idea within a very short time in both episodes, in 1993 within two days, in 2018 it solidified on 16 March, that is, one day before the killing. Also, there is a similarity, in that, both intended victims were young and highly vulnerable children.
Dr Liu also justifiably questioned the diagnosis that the defendant was delusional because of her depressive illness. She was of the opinion that it was not a logical conclusion to draw because that doctor only saw the defendant in January and February 2020, which was over a year after the offence when the defendant’s depressive illness had been adequately treated but the defendant still persisted in her belief that Endless Cheng Ting-hin was abnormal. It was a genuine belief, as Dr Liu said, considering the defendant’s background, personality difficulties and her own exacting standards on right or wrong, and thus not delusional.
Finally, paragraph 36 of Dr Liu’s report is worthy of note, where she said that the 1993 episode was only a brief psychotic disorder. It revealed that even when significant mental problem was absent her exceptionally maladaptive coping was observed with tendency of quickly resorting to extreme ways to tackle her stress, for example, to die with someone else. The very short time between the onset of stress to the development of homicidal idea is extremely worrying, she said, and it could reflect a lack of empathy and self-restraint by either morality or legal system.
These indeed echoed the observed personality difficulties and strong sense of entitlement, for more than once she expressed her view that her responsibility should be lesser comparing to those who harm people outside the family. Undoubtedly this twisted view of morality and sense of entitlement should not be reinforced.
In summary, Dr Liu continued to say, “In summary, apart from the depressive illness she suffered at the material time of the index offence there was a number of other contributing factors to come homicidal ideation and behaviour. These include personality problems, tendency to adopt extreme measures to handle her stress, an atypical understanding on morality and legal responsibility and her strong sense of entitlement”. So that is why Dr Liu concluded that the defendant does not need inpatient treatment.
Now, in mitigation Mr Sherry has said everything he could possibly say on behalf of the defendant, including the fact that there is no chance of her reoffending and that the stressor has been removed and therefore she should no longer be incarcerated and given a chance at rehabilitation by being sentenced to probation.
Mr Sherry started by saying that the defendant has a long history of mental illness and, as I have detailed above as can be seen from Dr Liu’s report, defendant is not a long-term sufferer of mental illness as we generally know it. There are different types of mental illness. Some are more severe than others, but in this case her illness is also mixed up with a personality disorder.
I do agree that there is no question that the defendant was a caring grandmother and did love her grandson. Mr Sherry, in his submission, also questioned that the prosecution should have accepted her plea at the earliest possible stage instead of having to make her go through a trial.
Having read all the psychiatric reports, both the defence psychiatrists and the prosecution psychiatrists, I cannot agree with Mr Sherry that it was unnecessary to bring the defendant to trial, for I firmly believe that the psychiatric opinions were such that whether the defendant was suffering from diminished responsibility was indeed a jury question and that belief at that time had been borne out by Dr Liu’s latest report which extensively set out the background and complexities of the diagnosis.
There were many letters also submitted to the court that indicated that the defendant will have a strong social network of support once she has completed her sentence and that, contrary to what Endless’ mother said that she is a difficult person, it does not appear so from the mitigating letters submitted, especially from her colleagues at work.
I have to here mention that one of the letters is from the Honourable Fernando Cheung, a Legislative Councillor, pleading for support for children with special educational needs, are based on what the defendant told him about her grandson. I thank Mr Cheung for his work in trying to help the community’s vulnerable special needs children and their carers, which is a totally worthy cause.
However, in this case, Endless Cheng Ting-hin was not a child of special needs. According to the evidence of witnesses at the trial given by his teacher and counsellor, Endless Cheng Ting-hin was a lively and a happy boy of six. Of course he had issues which every growing boy of his age would have and particularly in this case being looked after by a grandma with her personality disorders and her strict sense of what is normal and abnormal behaviour.
Such difficulties must indeed have been difficult for an adult to cope with, let alone a little boy of six. So his acting out in front of others is probably a six-year-old’s way of reacting to something he did not understand. I have to say this because in fairness to Endless Cheng Ting-hin he was not abnormal and was, on the contrary, well-liked by his school friends and by all accounts a happy and normal boy.
Now, sentencing in these types of cases are by its very nature extremely difficult. Each case is different and sentences range from probation to life imprisonment. As I go through in my mind what an appropriate sentence is, I bear in mind the words of Hartmann J, in the case of SJ v Chan Man Yum, which was quoted by the Court of Appeal in the Lee Fung Yee case submitted by Mr Sherry, where Hartmann J said that:
“In sentencing, the court must consider that, (a) protection of human life is a foremost objective of our system of criminal justice. The community is entitled to expect that the conduct of unlawfully taking a life be denounced by a punishment that is appropriate to the circumstances, and (b) particular recognition is given to the need to protect the vulnerable. Special concern is aroused when an infant child dies at the hands of one of its parents, the very person entrusted to protect and nurture that child”.
I am of the view that despite her moderate or severe depressive disorder diagnosed by the different psychiatrists in this case, her responsibility for this crime is a high one.
I wish to note also that at paragraph 20 of Dr Liu’s report, citing Dr Ho’s report, that the defendant’s eldest daughter told her that the defendant mentioned to her that she bit her own arm as she did not want to be transferred out of Siu Lam Psychiatric Centre during the trial, but once she knew of the verdict on 18 June 2020, she requested to be transferred out of Siu Lam Psychiatric Centre.
During her stay in Siu Lam Psychiatric Centre, Dr Liu observed she talked more about the verdict and sentence she wished and comparatively less about the victim or any remorse. At the sentencing phase there is always a tendency to swing the pendulum as far as possible in favour of the defendant and less about the victim and his suffering.
I also bear in mind that on the day of the killing as the events unfolded, the defendant had happily spent the day with her boyfriend and Endless Cheng Ting-hin and during this journey she bought a knife which she said was for to kill herself with. And then in the bus she told Endless to telephone his mother and tell his mother not to come to visit as they intended to have dinner in Central with her boyfriend before going home.
That was never the intention of her boyfriend to have dinner with them as he had to go to work and the plan was actually for him to put both the defendant and Endless Cheng Ting-hin on the bus heading for home. They did board the bus but the defendant then alighted in Wan Chai and carried Cheng Ting-hin into a hotel giving the excuse, when she was giving evidence in court, that she had stomach problem and was looking for a toilet. She did cut the strap of the backpack in order to strangle Endless Cheng Ting-hin at one stage but stopped herself doing that, and it was only later on when Cheng Ting-hin was asleep that she strangled him.
I tend to think that these facts do tell us one thing, that it was not a spur-of-the-moment act but indeed done with forethought and some degree of planning. So taking everything into consideration, including the many cases that Mr Sherry had submitted, and as far as my view is concerned, the cases are interesting reading but, ultimately, each case has to be considered on its own facts.
I therefore consider that in this case a starting point of 7½ years’ imprisonment is reasonable and giving the
defendant one‑third off for her early plea I reduce it to 5 years’ imprisonment.