HKSAR v. LAM WAI SHU AND ANOTHER

CACC 283/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 283 OF 2006

(ON APPEAL FROM HCCC NO. 267 of 2004)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  The applicants (D1 and D2 respectively) were charged with cruelty to a child, contrary to section 27(1) of the Offences against the Person Ordinance, Cap. 212 (count 1) and manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance (count 2).  The victim in both counts was their daughter, Lam Lok-yan, Iris (the deceased) who, at the time of her death, was 4 months and 2 days old.

2.  Both the applicants pleaded guilty on 29 June 2006 to the 1^st count.  Following this, they were convicted, on 10 July 2006, after a trial before Deputy High Court Judge Wright (as he then was) and a jury, on the 2^nd count.  On 11 July 2006, they each received sentences of 5 years and 4 months’ imprisonment on the 1^st count and 10 years’ imprisonment on the 2^nd count to be served concurrently.

3.  D1 and D2 now seek leave to appeal against conviction on the 2^nd count.  In addition, D2 seeks leave to appeal against sentence.

4.  At the outset of the summing up, in a brief account of the issues before the jury, the judge helpfully summarised the essence of the prosecution’s case.  He stated that it was alleged against both of the applicants that the deceased’s death was caused by each of them “either by the commission of an unlawful act, an assault, where the act was one which all sober and reasonable people would inevitably realise would subject [the deceased] to the risk of bodily harm whether the accused realised this or not; or alternatively, by his or her failure to take any action to prevent [the deceased’s] death in circumstances where there was a duty upon each of them to do so; that each was indifferent to an obvious and serious risk to [the deceased’s] life which all sober and reasonable people would inevitably realise; or recognising that that risk existed, chose to run the risk by doing nothing about it”.

5.  D1 did not give evidence.  In a short summary of D2’s testimony, the judge said that D2 had “asserted that such injuries as were sustained by [the deceased] when she was under her control were sustained accidentally”.

The facts

6.  The majority of the factual background to the case was admitted.  The admitted facts, so far as they are relevant, with references to the deceased as ‘Lok-yan’, read:

“	… D2 delivered Lok-yan prematurely at Queen Elizabeth Hospital by Caesarean Section at 31 weeks and 3 days gestation. Due to her prematurity, Lok-yan was admitted at Queen Elizabeth Hospital Paediatric Unit for treatment and observation. She thrived well and was discharged on 12 September 2003.
	3.	D1 and D2 took Lok-yan back to their home situated at Flat B, 3/F, 64A Yen Chow Street, Sham Shui Po, Kowloon. At all material times Lok-yan was taken care of by D1 and D2.
	4.	On 12 November 2003 D1 and D2 brought Lok-yan to West Kowloon Maternal and Child Health Centre for routine immunization. On the same day, Lok-yan suffered from post-vaccination fever, so she was admitted to the Paediatric Ward of Caritas Medical Centre. Apart from the fever, her general condition was good. Lok-yan was discharged on 13 November 2003 and her condition was well.
	5.	Between 13 November and 5 December 2003, Lok-yan was under the sole custody and care of D1 and D2 and they resided at Flat B, 3/F, 64A Yen Chow Street, Sham Shui Po, Kowloon.
	6.	At about 1730 hours on 5 December 2003 Lok-yan was unconscious and she was escorted to Caritas Medical Centre on board an ambulance by D2. At about 1740 hours, Lok-yan was taken to the Accident & Emergency Department of Caritas Medical Centre for emergency treatment. On examination, Lok-yan showed no signs of life. Patches of bruises on her forehead, anterior chest and abdomen wall, laceration wounds on lower lip and at corners of her mouth were found. Eventually, at about 1800 hours, Lok-yan was certified dead by Dr. Leung Chi-keung. Lok-yan’s body was removed to the Kowloon Public Mortuary.
	7.	On 6 December 2003, forensic pathologist Dr. Ng Chung-ki performed an autopsy on Lok-yan at the Kowloon Public Mortuary. He found the following injuries on her:
		External Examination
		(a)	Head : 16 reddish bruises, 2 bluish bruises, 4 scabbed wounds, 1 abrasion and 4 cut wounds on lips
		(b)	Neck : 6 scabbed wounds, and a reddish bruise
		(c)	Trunk : 13 reddish bruises, 2 bluish bruises and multiple punctuate reddish bruises
		(d)	Right Upper Limb : 8 reddish bruises and 1 yellowish bruise
		(e)	Left Upper Limb : 4 reddish bruises and a small scab wound
		(f)	Right Lower Limb : 9 reddish bruises
		(g)	Left Lower Limb : 8 reddish bruises
		Internal Examination
		(a)	Dura : dense and bulging; about 15 ml of blood clots in subdural space, covering upper and lateral surfaces of both cerebral hemispheres
		(b)	Brain : swollen with flattened gyri and filled sulci
		(c)	Trunk : a deep bruise, 1 cm x 1 cm, in subcutaneous tissue of lower back near midline
		(d)	Mouth : an infected gaping tear, 2.5 cm long and 1 cm deep, along junction of upper lip and gum of upper jaw. Another infected tear, 1 cm long, penetrated through mucosa, on lining of oral cavity near left corner of mouth
		(e)	Eyes : both eyes showed extensive retinal haemorrhages and severe vitreous haemorrhages
		(f)	Microscopic examination of the brain revealed changes indicating diffuse axonal injury with widespread axonal swellings and retraction balls in cerebrum, cerebellum and brain stem. Both lungs showed changes of early bronchopneumonia with multiple small consolidations scattered in parenchyma
		According to Dr. Ng, the cause of death was: (i) subdural haemorrhage and diffuse brain injuries and (ii) bronchopneumonia.
	8.	At about 2150 hours on 5 December 2003, DPC 619 arrested D1 for the offence of ‘Murder’ and cautioned him. D1 replied, ‘I do not realize that there were so many wounds on the daughter’s body.’ This was subsequently recorded in the record of interview by DPC 619 and this is produced and marked as Exhibit P64 with certified English translation.” (Appeal bundle pp. V-VII)

7.  The admitted facts also dealt with the video-recorded interviews of D1 and D2.  Translations into English of D1’s interviews were produced as Exhibits P60B and P61B and Exhibit P93B related to D2.

8.  D1’s interviews were summarised in a Summary of Facts as follows:

“	9.	Between 2159 hours and 2335 on 6 December 2003, D1 was interviewed under caution at the video interview room of Cheung Sha Wan Police Station. He took part in the interview and answered questions voluntarily. Under caution, D1 said, inter alia, that it was D2 who usually took care of Lok-yan. He fed her and sometimes bathed her. On the night of 3 December 2003, he had noticed there was an ulcer outside, and cankers inside, Lok-yan’s mouth. He also noticed bruises on her face. He did not however take her to a doctor, but asked D2 to do so.
	10.	Lok-yan frequently cried and he would get irritated. He recalled in late November 2003, he had held Lok-yan up and shook her violently, because she cried and he could not manage to comfort her. He was very tired at that time and wanted her to stop crying. He had lifted her up with both of his hands under her armpits and shaken her 2-3 times. After a while, she had stopped crying. D1 further admitted that when he could not comfort Lok-yan, he would hit her arms, legs and face.
	11.	In a subsequent voluntary interview on 7 December 2003, under caution D1 said, inter alia, that he found Lok-yan was very noisy and this annoyed him. He had hit Lok-yan’s leg and face. He had also turned her upside down to stop her from crying. He recalled he had done this twice at the end of November 2003. He did that in order to scare her.
	12.	Furthermore, D1 admitted to have rolled up a small towel into a piece like a chalk and stuffed it into Lok-yan’s mouth in order to stop her crying. He had done this 2 to 3 times. He had also put a cushion over Lok-yan’s head in order to muffle her voice.
	13.	He also recalled that once, when he was unemployed, he had put Lok-yan outside the doorway because he was very irritated by the noises made by both D2 and the baby. He had also once opened the refrigerator door and tried to scare the baby by putting her inside. He had been stopped by D2.” (Appeal bundle pp. XVII – XVIII)

9.  The Summary of Facts for D2 also contained a brief version of her interview which reads:

“	9.	Between 1308 hours and 1713 on 7 December 2003, D2 was interviewed at the custodial ward of Queen Elizabeth Hospital. She took part in the interview and answered questions voluntarily. Under caution, D2 said, inter alia, that she was a full time housewife who took care of Lok-yan. She noted Lok-yan’s neck had bruises the previous week but she did not know why and did not pay attention to it. She applied some ointment (Hirudoid). She had also seen bruises on Lok-yan’s chest, her right eye and her right arm. About 3 to 4 days earlier, D2 claimed that Lok-yan had bumped her forehead whilst she was playing with her. She had used Hirudoid and boiled egg to heal the resultant bruises. She was not sure if the bruises on the right eye had been caused by this bumping. Believing Lok-yan was ‘alright’, D2 had paid no further attention to it.
	10.	Moreover, shortly before the day of death Lok-yan cried in the pram. D2 said, to shut her up, she had grabbed her foot and shoulder hard and lifted the baby, and had also used ‘unintentional force’ at that time which had caused bruising to the right arm. She claimed she had been under emotional stress at the time.
	11.	D2 said she had checked Lok-yan’s mouth and found there was no abrasion or bleeding. D2 said Lok-yan scratched her lips with fingernails and had thus caused the injuries there.
	12.	On 4 December 2003, when she bathed her, she saw black and blue marks on her body. She was not sure whether these were caused by a stool which she claimed had hit the baby when she fell from the bed, which had also bruised her eye and chest. She also knew there were small patches of bruises on Lok-yan’s forehead.
	13.	D2 had seen D1 slap and put his hand on her neck when Lok-yan cried at night. She had also seen D1 lift up the baby, grab the baby’s neck and gag her with a towel; Lok-yan had struggled and cried terribly hard. She also had seen D1 threaten to put her in the refrigerator.” (Appeal bundle p. XXIII)

10.  In a further set of admitted facts, it was admitted that the deceased was due to be seen at the Queen Elizabeth Specialist Out-Patient Clinic on 4 December 2003 but she failed to attend the clinic.

11.  It is plain from their admissions that both applicants were admitting they had, in various ways, ill-treated or neglected the deceased.  This provided the foundation for their guilty pleas to the 1^st count.

12.  We have also seen the post mortem photographs of the deceased which graphically demonstrate the extent of the abuse to which she had been subjected over the weeks leading up to her death.  This was touched upon by the judge in his sentencing remarks where he said:

“	The size, shape and clustering of the recent bruises were characteristic of bruises caused by forceful gripping or pinching. Given her age, the presence of the bruises was unlikely to be accidental, except when she may have bumped or fallen against something. Nonetheless, the bruises, given their pattern and distribution, were unlikely to have been caused solely by accident.
	The multiple wounds on Lok-yan’s mouth showed obvious signs of healing or infection, indicating that they had probably been produced a few days earlier. There were several superficial cut wounds. One of them, that below the lower lip, had edges which showed distinct serrations. That wound seemed impossible to readily reproduce with common sharp objects. It appears to have been probably caused by an object with a sharp serrated edge being scraped repeatedly across the skin’s surface.
	The injuries on the inside of the mouth had probably been caused by thrusting a hard object into the mouth, with the one on the upper lip being so deep that it had almost reached the nostrils.
	[The pathologist] expressed the opinion that the wounds on the face and inside the mouth were unlikely to have been accidental and repeated that they indicated that Lok-yan had been subjected to various forms of physical abuse before her death.” (Appeal bundle pp. 79-80)

13.  The judge continued by saying that the combined effect of the medical evidence given by the pathologist, Dr Ng and a neuro-pathologist, Dr Squier, demonstrated that this was a “classical case” of child abuse.  Clear signs were found of the deceased having received injuries to her head, estimated to have occurred several weeks prior to her death, and evidence was given that up to ten blows were inflicted upon the deceased’s head within the 48 hours leading up to her death.  These had left bruises but it was not possible to identify which of the bruises related to the fatal blow or blows.

14.  As we have indicated, the 2^nd count was eventually left to the jury on two alternative bases, namely, unlawful act manslaughter or manslaughter by gross negligence.  This was because Dr Ng Chung-ki, the forensic pathologist, had expressed the opinion that none of the actions which the applicants had described during their interviews could have led to the subdural haemorrhages and diffuse brain injuries which caused the death.  These were in his view non-accidental injuries.  Dr Squier, the neuro-pathologist, gave evidence confirming this.

15.  The prosecution alleged, therefore, that one of the applicants had physically committed the assault on the deceased which had led to her death.  In circumstances to which we shall turn shortly, the jury accepted that D2 was guilty of manslaughter by reason of gross negligence.  However, they were not able to agree by a majority of at least five that the culprit responsible for the fatal assault was D1.  Only four of the jury found the more serious alternative proved against D1 which left both applicants ultimately having to be dealt with on the same basis.

Summing up and return of verdicts

16.  In the summing up, the judge directed the jury on the two alternative ways of approaching the allegation of manslaughter by stating:

“

The prosecution puts forward this matter on two distinct bases. It says that, on the evidence, it is open to you to find one or both of the accused guilty on the basis that his or her unlawful act was a substantial cause of the death of Lok-yan. I shall refer to this as ‘the unlawful act’ basis. Or to find one or both of the accused guilty on the basis that his or her failure to act was a substantial cause of her death. I shall refer to this as ‘the gross negligence’ basis. I shall deal with this in more detail shortly. It does not matter in which order you consider the two bases but, in practical terms, it may ease your task if you consider the unlawful act first.” (Appeal bundle p. 5)

17.  The jury had been made aware during the trial that both applicants had pleaded guilty to the 1^st count.  The judge dealt with this aspect of the case before directing the jury on the relevant aspects of manslaughter.  Leaving some of the details of his directions on the law until after he had completed his summary of the evidence, the judge said:

“	If you are satisfied beyond a reasonable doubt that each accused inflicted a blow, or blows, which were fatal, you will convict them and need not consider the gross negligence issue. If you are satisfied beyond a reasonable doubt that one accused inflicted a blow or blows which was fatal, you will convict that accused and then consider the gross negligence issue for the other accused.
	If you cannot be satisfied beyond a reasonable doubt that either accused inflicted a blow or blows which were fatal, you will still consider the gross negligence issue for each accused.
	What you must not do, members of the jury, is say, ‘Well, there was an injury; no one else was caring for the baby, it must have been one of them, therefore it does not matter which of them inflicted the injury’. You have to look at the evidence, bearing in mind the law. Look at the evidence in respect of each accused separately, and only if you are satisfied that he or she either committed the act or was grossly negligent and you are satisfied of the other matters on which I have directed you, only then may you convict him or her of this serious crime of manslaughter.” (Appeal bundle p. 48)

18.  The judge then detailed the difference between the two alternative bases for manslaughter, leaving the jury simply to return verdicts in each case of either guilty or not guilty of manslaughter.  Mr McGowan, who also represented the prosecution in the court below, addressed the judge in the jury’s absence about this.  He made the perfectly proper suggestion that the pro forma questionnaires the jury had been given relating to their verdicts contained no questions which would alert them to the fact that they would be asked for the basis of their verdicts in the event that they convicted of manslaughter.  However, although such a course is normally taken where a special verdict is called for, the judge unfortunately decided that this would not be necessary.  The following dialogue then took place between the judge and Mr McGowan:

“	Court:	… I thought about that and I deliberately left it on that basis because it seems to me that the answer is this. If they come back with a conviction of one and an acquittal of the other, it must mean that that is a conviction on the basis of the unlawful act. If they come back with a conviction of both, then I’m going to have to ask specifically on which basis they have convicted each accused.
		I’m happy, if all three of you want me to ask them the basis – I don’t think it’s proper to put it in the questions - but I’m happy to ask them, and it might be necessary – I’ve been thinking about it from a sentencing point of view - it might be necessary from a sentencing point of view for me to ask them anyway on the basis of whether it was unlawful act or negligence, but I don’t think it needs to go in the questions. I think that’s something we can ask them afterwards.
	Mr McGowan:	Yes, I mean, the thing that flickers through my mind is what happens if some of them think that it’s unlawful acts against D1 and some of them think it’s gross negligence.
	Court:	I think it’s spelt out sufficiently clearly to them that they’ve got -- I mean, I’ve told them any number of times, ‘Consider that, consider that’.
	Mr McGowan:	Right. Well, very well, my Lord. I mean, I just raise it because it is something that ...
	Court:	Yes. I understand your concern but I think it’s relevant -- I see why you raise it but I don’t think it’s right to put it in the questions.” (Appeal bundle p. 60)

19.  Defence counsel were content to have the matter left in the way the judge suggested so long as the jury, assuming they convicted of manslaughter, were asked on what basis they had arrived at their verdict.

20.  The jury retired at 11.35 am and by 3.02 pm they had reached unanimous verdicts of guilty in respect of each applicant.

21.  Mr McGowan’s concerns were, however, well-founded.  In the experience of this court, it is always desirable to forewarn a jury of the questions it will be required to answer in the event that a special verdict is called for and to add these questions to the questionnaire which the jury is ordinarily given.  Rightly, the judge had decided that it was necessary to know the basis of any manslaughter verdict for the purposes of sentencing.  However, whilst the jury were aware of what had to be proved for a manslaughter verdict on one or other basis, they were unfortunately given no warning in the summing up or in their pro forma questionnaires of the further questions they would have to answer if they convicted.  As a result, they were caught completely by surprise when they found themselves being asked about this after returning their verdicts.

22.  The difficulty is best demonstrated by reciting the whole of the relevant portion of the transcript, which takes in the dialogue between the judge and the foreman of the jury, when the stage was reached for the jury to be asked the basis of the verdicts.  This reads:

“	Court:	… Mr Foreman, can you please help me. In respect of the verdict for the 1st accused, Lam Wai-shu, did you reach your verdict of guilty on the basis of the performance of an unlawful act or on the basis of gross negligence?
	Foreman:	Should be the second one.
	Court:	Gross negligence. And in respect of the 2nd accused Chiu Mei-sze, did you reach your verdict on the basis of an unlawful act or on the basis of gross negligence?
	Foreman:	Both.
	Court:	Thank you, Mr Foreman.
	Foreman:	Excuse me, sorry. Should be the second, gross negligence.
	Court:	Gross negligence for both of them?
	Foreman:	Yes.
	Court:	So for each of the accused, you reached your verdict on the basis of gross negligence. Thank you.
	Foreman:	Excuse me, my Lord.
	Court:	Yes.
	Foreman:	Well, for D2, we decide for the guilty is on the second, gross negligence is … (unanimous?) . For D1, do you want me to give you the exact vote on different ones?
	Court:	No, no, I just need to know the terms of your decision. That was on the basis of gross negligence as well. Was it on the terms of gross negligence or the unlawful act?
	Foreman:	For D1 is, one, unlawful act.
	Court:	Thank you. Right, so that - let me make sure that I’ve got this straight. So for the 1st accused, Lam Wai-shu, you found him guilty on the basis of the unlawful act.
	Foreman:	Excuse me, I want to make clear one thing.
	Court:	Yes.
	Foreman:	While let’s say ...
	Court:	No, I just want to know whether it was an unlawful act was the basis of your decision, or gross negligence.
	Foreman:	It’s a combination.
	Court:	Which was it? Was it gross negligence or an unlawful act?
	Foreman:	Unlawful act.
	Court:	And in respect of the 2nd accused, Chiu Mei-sze, was it gross negligence or an unlawful act?
	Foreman:	That’s D2 is gross negligence.” (Appeal bundle pp. 62-64)

23.  The judge was then invited to send the jury out while counsel addressed him.  In the discussion which followed, it was decided that questions relating to the verdicts themselves as well as the special verdicts should be put again.  This was done after the judge said:

“

… I think let’s get them back and find out what they say, what he -- what the foreman says the situation is. Because if he says, well, ‘Yes, it wasn’t unanimous,’ the next question is ‘Was it a five to two or a six to one?’ and if it was, there’s still no problem. If it’s not a five to two or a six to one, then there is a problem.” (Appeal bundle p. 66)

24.  The jury returned to the courtroom at 3.14 pm and there was then the following dialogue between the judge and the foreman of the jury:

“	Court:	Mr Foreman, I’m going to put the same questions to you again because I know those were sprung on you, and as a matter of courtesy to you, I’m going to ask the court interpreter to interpret everything into Cantonese and you’re welcome to give your reply in Cantonese and she’ll interpret it, if necessary, again. And I emphasise I’m doing that simply as a matter of courtesy to you.
		Now, in respect of the 1st accused, Lam Wai-shu, you’ve returned a verdict of guilty. Was that on the basis of the commission of an unlawful act, or on the basis that he was grossly negligent?
	Foreman:	Both of the - - yes, both.
	Court:	Was that a unanimous verdict?
	Foreman:	My Lord, may I have some instruction?
	Court:	Well, did all seven of you vote for guilty?
	Foreman:	Yes.
	Court:	When you say ‘both’, do you mean that all seven of you were satisfied both that he committed an unlawful act and he was grossly negligent?
	Foreman:	Either -- each of us made that decision, either based on unlawful act or gross neglect, but the final decision from everyone is guilty.
	Court:	Well, how many members of the jury voted for guilty on the basis of an unlawful act?
	Foreman:	For D1, four of us unlawful act.
	Court:	And for gross negligence?
	Foreman:	Three, this different people.
	Court:	And for D2?
	Foreman:	For D2, unlawful act is two; for gross negligence is all of us.
	Court:	Well, members of the jury, I’m going to have to ask you to go out again whilst I just have another discussion with counsel.” (Appeal bundle pp. 66-67)

25.  The judge heard from all counsel after this.  D1’s counsel sought the discharge of the jury, whereas, for D2, it was conceded that the verdict should stand as her position was entirely different.  The judge ruled that both guilty verdicts on the count of manslaughter could stand, saying:

“	Yes. In regard to the application by the 1st accused for me not to accept the verdict of the jury, I am satisfied that the charge is one of manslaughter which connotes an unlawful killing. That is the essence of the offence and the jury have indicated that they are unanimously of the view that the conduct of the 1st accused led to the death of Lok-yan.
	In my judgment, the fact that they are not unanimous on the basis of that conduct does not invalidate the verdict. It is a matter which can properly be reflected in sentence. Plainly, the accused will have to be sentenced on the basis most favourable to him in the light of that verdict. I propose to accept both of the verdicts of the jury. (Appeal bundle pp. 72-73)

Grounds of appeal

(1) Concern about jury’s understanding of the summing up

26.  Mr McNamara advanced what amounted to a single ground of appeal arising from the confusion which had occurred after the delivery of the verdicts when the jury was asked to indicate whether they convicted on the basis of ‘unlawful act’ or ‘gross negligence’.  It was submitted that as the jury had been directed in standard terms that they had to be satisfied by at least a majority of five to two of guilt before they could convict either D1 or D2 of manslaughter, the apparent failure of the jury to have achieved this majority on one of the two bases which would justify a manslaughter conviction gave rise to a concern that the jury may have misunderstood other directions given to them.

27.  A similar submission was made by Mr Callaghan on behalf of D2.  He pointed to the jury’s confusion, when faced with questions they had not expected the judge to ask them, together with the fact that the judge had never directed the jury “that they should first of all agree (subject to an acceptable majority) on the basis of an accused’s guilt, (i.e. either ‘unlawful act’ or ‘gross negligence’ manslaughter), before they could convict.  This, he submitted, had led to a verdict in D2’s case which was unsafe or unsatisfactory.

28.  There was no substance in these arguments.  The jury had made it clear, both originally when returning their guilty verdicts and later when the judge asked for clarification as to the basis of these verdicts, that they were unanimous in finding D1 and D2 guilty of manslaughter.  Either basis which had been left to the jury for convicting was sufficient for a manslaughter verdict.  The reason why the judge needed to know the basis of their verdicts was exclusively related to the question of sentence.  If ‘unlawful act’ had been established in either case, no doubt the sentence would have been greater than for manslaughter by ‘gross negligence’.  In the event, as we have said, the judge proceeded to sentence both applicants on an equal footing, thus avoiding any possible unfairness to D1.  D2’s case was straightforward as the jury had unanimously found her guilty on the lesser of the two alternative bases for convicting, albeit two of the jurors were also satisfied that D2 had been guilty on the more serious basis.

29.  Although we were referred to the decision in R v Brown (Kevin) [1984] 79 Cr App R 115 as applied in R v Boreman and Ors [2000] 1 All ER 307, these authorities had no application to the circumstances of this case.  It was held in Boreman and Ors, as set out in the headnote, that “where there are two routes by which a murder may have been committed, and those two routes comprise completely different acts happening at different times, the jury must be unanimous on which act leads them to a decision to convict.  Thus in such a case, the judge should direct the jury that they must agree on the basis of a defendant’s guilt before they can convict him”.  In that case, there was a dispute as to the cause of death.  The victim had suffered multiple injuries but when the body was found it had been badly burnt in a fire which on one version was said to have been accidental resulting from a completely separate incident.

30.  Neither Mr Callaghan nor Mr McNamara suggested that the verdicts which the jury returned were in themselves, on the present facts, unacceptable or unlawful.  Their principal concern was that the jury foreman’s confused responses to the judge reflected a generally unsatisfactory approach to the legal directions they had been given.  From this, it was submitted, it might be inferred that the jury had not understood their duties properly.

31.  We are satisfied that, in this case, the more serious form of manslaughter of which four of the jurors thought D1 was guilty, necessarily included the less serious form of which the remaining jurors were satisfied of D1’s guilt.  To have physically abused the deceased in the way D1 had admitted to the police he had done, clearly also provided evidence covering an allegation of manslaughter by gross negligence.  Accordingly, whilst the judge needed to know the basis on which the jury had convicted of manslaughter so that he could impose an appropriate sentence, looked at from the point of view of the jury, whose duty was to return true verdicts, either basis was sufficient to convict.  The judge had correctly directed the jury on the law so far as it related to manslaughter.  The only deficiency, with respect, was the failure to warn the jury, preferably in writing as well as by word of mouth in the summing up, of the nature of the special verdict they might be called upon to give.

32.  These grounds, therefore, fail.

(2) Directions on the use to which two of D1’s answers in interview could be used in assessing D2’s case

33.  The only other ground of appeal was raised on behalf of D2 alone.  This amounted to a complaint that the jury had been misdirected during the summing up when the judge informed the jury that they could take into account what was said by D1 in an out-of-court record of interview about D2 when they were considering the evidence given by D2.

34.  The direction relating to this complaint was made early in the summing up.  The judge, having generally dealt with the approach to be taken to the evidence given by D2, went on to say:

“

It is for you to decide how much weight, if any, to give to the 2nd accused’s evidence. In doing this, you are entitled to look not only at what she said in court, but also what she said in her interview with the police. In addition, if you were to accept the assertion in the 1st accused’s interview that the 2nd accused had told him, on 3 December, that Lok-yan had rolled around on the floor and hit her head against a corner, sustaining those bruises, that is a matter which you would be entitled to take into account when considering the evidence she gave in court as to how the bruising was sustained.” (Appeal bundle p. 9) (Emphasis added.)

35.  The judge was referring, in the passage just cited, to a part of D1’s account in his interview on 6 December 2003 (against counters 286 and 288 in the transcription).  This reads:

“	[Police]	Why was [the deceased’s face] bruised?
	[D1]	I had asked my wife. My wife then said she [the deceased] had bumped (herself) against a corner of the wall.
	[Police]	She bumped herself against the wall on her own ?
	[D1]	Well, she and-, I was not told how she had bumped herself against the wall. I asked her. She then said, er, once the baby had a roll, that is, she was placed on the floor, placed in the living room, she always rolled herself, that is, stretching (herself) around, and rolling (around), like that …” (Appeal bundle pp. 133-134)

36.  Mr Callaghan made the point in his written submission that the jury were told that these assertions by D1 could be taken into account against D2.  However, this is not what the judge said or implied and, furthermore, it does not accord with the sentiment contained in D1’s answers in the short passage we have cited.  Plainly, D1 was recounting how D2 had informed him about the accidental injuries suffered by the deceased and the judge, rightly or wrongly, had taken this material as being to D2’s advantage.  Indeed, Mr McGowan told us that he had taken notice of this direction at trial but he had decided to make no comment about it as he realised that it was actually intended to help D2.  If we may be forgiven for using a footballing analogy, Mr McGowan had decided to play the ‘advantage’ rule if such was necessary.  Since that time, having examined the transcript of D2’s evidence in detail, he was prepared to concede that the judge’s comment might possibly be taken as highlighting a further inconsistency in D2’s account about how the deceased had suffered bruises on which point she had changed her evidence from time to time.  Also to be remembered in this regard, the pathologist had discounted the possibility of the deceased having suffered serious head injuries by bumping herself against a wall.   Mr McGowan’s concern was, therefore, that although the judge may have directed the jury in this way out of the best of motives, it might not have been a direction which necessarily assisted D2.

37.  We do not consider that the concerns expressed by Mr Callaghan, and by Mr McGowan when answering them, materially affected D2’s case although we take the view that the judge’s comment on this issue would have been better left unspoken.  In the first place, when the judge later gave a summary of D1’s answers to the police contained in Exhibits P60B and P61B which occupied 294 pages in the jury’s bundle, he invited no further comparison with the account given by D2 in her testimony.  Secondly, the basis of D2’s conviction was that she was guilty of manslaughter by reason of gross negligence which involved no finding against her that she had committed an unlawful act of assault on the deceased.  Thirdly, the judge gave proper directions to the jury as to their approach to answers made in out-of-court statements by one defendant which adversely affected the other. The directions he gave were as follows:

“	You will want to approach with care how you take into account the contents of those records of interview. A statement which is made out of court by accused A, implicating accused B and not made in the presence of accused B, is not evidence against accused B. Accused B was not present and is consequently unable to dispute what was said about him or her. So those portions of the records of interview which implicate the co-accused are not evidence against that co-accused and you are to disregard them against that co-accused.
	However, in this case, the state of the knowledge of each accused as to the condition of Lok-yan, what was happening to her, is an issue which you will consider in regard to the gross negligence issue. Consequently, if, in one of those interviews, one accused says that the other accused told him or her something, or that he or she observed the other accused doing something, whilst that is not evidence against the other accused who is said to have done the telling or performed the act, it may be evidence against the accused to whom it is told or who saw the act if you are satisfied that, as a result of being told that information or seeing the act, the accused to whom it is told or who saw the act would have had relevant knowledge as to Lok-yan’s condition or treatment.
	Let me try and illustrate this for you with an example from each accused’s interview. You will recall that, in his second interview, the 1st accused said that if Lok-yan awoke during the night and cried and the 2nd accused was unable to comfort her, the 2nd accused would take her out to the living room and leave her there alone and, on occasions, the 2nd accused would hit Lok-yan. That is not evidence against the 2nd accused that she did those things and you must disregard it in so far as she is concerned because it is made in an out-of-court statement. But it is evidence which, if you accept it, you may take into account when considering the case for and against the 1st accused because it shows his knowledge of the conduct of the 2nd accused and how she was treating Lok-yan.
	Similarly, in the 2nd accused’s interview, she said that she had awoken one night to hear the 1st accused using foul language towards Lok-yan and threatening to strangle her unless she kept quiet. She then heard the sound of a single slap. That is not evidence against the 1st accused that he did those things - I am talking purely about the video interviews now - and you must disregard it in so far as he is concerned because it is made in an out-of-court statement. But it is evidence which, if you accept it, you may take into account when considering the case for and against the 2nd accused because it shows her knowledge of the conduct of the 1st accused, how he was treating Lok-yan.” (Appeal bundle pp.12-13)

38.  Later, the judge briefly reminded the jury of the directions he had given in regard to the approach to be taken to out-of-court statements when he said:

“

I turn now to the content of the two interviews with the 1st accused and the interview with the 2nd accused, all of which were videotaped, which you have seen.  Let me just remind you, in summary, of what I said earlier about these tapes. Firstly, you must consider the whole of the contents of the tapes in deciding where the truth lies and, secondly, what the accused being interviewed said he or she saw the other accused doing or heard the other accused saying is not evidence against that other accused, but may be taken into account by you in considering the state of knowledge of the accused being interviewed.” (Appeal bundle p. 28)

39.  We are satisfied that what was described as a misdirection by Mr Callaghan was, when seen in its full context, a matter of little or no consequence.

40.  Accordingly, this ground fails.

Conclusion

41.  There was a wealth of evidence in support of findings of ‘gross negligence’ manslaughter against both applicants.  In our opinion, the verdicts were neither unsafe nor unsatisfactory and it follows, therefore, that both applications in regard to conviction are dismissed.

Sentence

42.  D2 was not represented on her application for leave to appeal against sentence on counts 1 and 2.

43.  In support of this application, D2 referred to the deceased, in her letter dated 18 June 2006, as “her favourite daughter” who it would have been impossible for her to have killed.  She suggested that she had been let down by various organisations to whom she had turned for help and she blamed D1 for the killing itself.  She said that if she had realised that the deceased was in danger, she would have gone to the hospital with her and, although she had thought of going to the police, she had been deterred from doing so by the threats she had received from D1.

44.  In a more recent letter from the applicant, she again blamed D1 for physically abusing the deceased and for causing her to have a brain haemorrhage.  She blamed her own emotional fluctuations on postnatal depression.

45.  Much of D2’s written submission to us was put forward in mitigation in the court below.  The judge made reference to HKSAR v Lam Wai-man [1999] 3 HKLRD 855, which bore some similarity to the present case.  In that case, this court regarded starting points of 9 years and 12 years’ imprisonment for cruelty to a child and manslaughter, respectively, as being appropriate.

46.  The judge, in the instant case, following a consideration of Lam Wai-man, said:

“	This is a matter in which deterrent sentences are appropriate. People who abuse the young and defenceless must appreciate that robust sentences will follow conviction. The courts have a real duty to protect those who are incapable of protecting themselves …” (Appeal bundle p.82)

47.  The judge then took a starting point of 8 years on the 1^st count which he reduced by a third to reflect D2’s guilty plea.  The sentence of 10 years’ imprisonment on the 2^nd count was subject to no discount.

48.  We have been given no reason to think that the judge’s sentencing was, on either count, manifestly excessive.  The deceased had, to D2’s certain knowledge, been systematically abused in a manner which would leave any normal person, let alone a parent, horrified beyond words. The deceased was covered from head to foot in plainly observable injuries and yet D2 did nothing to protect her child.  This gross neglect on her part has had tragic consequences.

49.  Accordingly, D2’s application in regard to sentence is also dismissed.