SECRETARY FOR JUSTICE v. LAI WING WAI

[English Translation - 英譯本]

CAAR 7/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 7 OF 2000

(ON APPEAL FROM DCCC 249 OF 2000)

___________________

___________________

___________________

JUDGMENT

___________________

Woo JA (delivering the judgment of the Court):

1. This is an application by the Secretary for Justice for review of sentence pursuant to Section 81A of the Criminal Procedure Ordinance(Cap. 221, Laws of Hong Kong.)

2. The Respondent, Lai Wing Wai (“the Defendant”), was charged with cruelty to a child, contrary to Section 27(1) of the Offences Against the Persons Ordinance(Cap. 212, Laws of Hong Kong).

3. The Defendant pleaded guilty to the charge before Judge Poon in the District Court on 2 August 2000.  The facts admitted by the Defendant show that he is the father of the victim and at the time of the offence he was only 18 years of age whereas the victim was a baby girl of less than 8 months old.  In the morning of 3 June 1999, the Defendant, who was then unemployed, was woken up by the victim’s crying.  His wife was still asleep at the time.  The Defendant took up the victim and carried her in his arms, trying to soothe her.  But she kept on crying.  He thus hit her in the head, face and limbs with his right fist, but the victim still kept on crying.  Subsequently the victim’s mother got up and took her away.  At around 2 pm on the same day, the Defendant, his wife and father-in-law took the victim to hospital where a doctor of the Accident and Emergency Department found that the victim looked dull, her eyelids were drooping and the movements of her right upper and lower limbs decreased.  The CAT scan of the victim’s brain showed that she had left subdural haematoma and cerebral oedema.  A neurosurgeon found that there were multiple bruises over the victim’s body including bruises over her left peri-orbital area and left arm.  A recent fracture of the epicondyle of the victim’s left humerus was also found.  Following an operation, the victim required intensive care with ventilator support for 9 days.  According to a medical report dated 25 July 2000, the doctor opined that the victim would have left-sided hemiparesis permanently as a result of the injuries to her left brain.  The victim was discharged from hospital on 4 October 1999 after long-term treatment.  After that she requires regular physiotherapy.  The medical report is of the view that the victim is going to be handicapped both physically and mentally for the rest of her life, her intellectual development would be delayed and she would need special education.  Her eyesight may be affected as a result of the injury to her left eye.

4. Having studied the psychological and psychiatric reports, background report and a report from the Correctional Services Department relating to the Defendant, the judge sentenced the Defendant to detention in a Training Centre.  The Secretary for Justice now applies for review of this sentence.

5. The grounds of this application for review are advanced to this Court by Mr Patrick Cheung on behalf of the Secretary for Justice.  Mr Cheung contends that the judge in passing sentence did not give full consideration to the following aspects:

(1) The gravity of the offence and the consequences to the victim;

(2) The consideration of the public interest and the necessity to impose deterrent sentence in cases of this kind;

(3) The maximum penalty of offences of this kind is 10 years’ imprisonment;

(4) The Training Centre order does not carry sufficient deterrent effect;

(5) Sufficient protection should be given to the most vulnerable people in the community.

Mr Cheung also submits that the judge erred in sentencing the Defendant to Training Centre as she placed too much weight to the age of the Defendant.

6. Mr Cheung also relies on a number of cases to support his arguments.  In R v Nottingham Crown Court, ex-parte DPP [1996] 1 Cr App Rep(s) 283, the English Court of Appeal said: “It was a cardinal principle of sentencing that a court should take into account, when considering the gravity of the offence and the appropriate sentence, the consequences to the victim” (per strait-smith LJ at 288).  In HKSAR v Lam Wai-man [1999] 3 HKLRD 855, Stuart-Moore VP also pointed out at 861 that to take into account the consequences to the victim was a cardinal principle of sentencing.

7. Mr Cheung also relies on R v Prime (1983) 5 Cr App R(S) 127 at p.133, and contends that in sentencing, the court should make it clear that there are certain crimes which society will not tolerate, and so the sentence passed must reflect the abhorrence which right-thinking members of the public have of the offender’s conduct.  Even if one of the important purposes of sentencing is to assist the offender to return to the community, that is not the only objective to be considered.  (See also AG v Law Ying-cheung [1981] HKC 161, 163 per Cons JA.)  In R v Ng Pun-kau(unreported,  30 December 1980,Crim App 849/80), McMullin JA also pointed out that it was accepted practice under public policy considerations to impose substantial terms of imprisonment, even upon young offenders, where a crime of violence was involved.  Mr Cheung also submits that the penalty for offences under Section 27(1) of the Offences Against the Persons Ordinance was amended from two years’ imprisonment to ten years’ on 1 September 1995.  He also relies on R v Lam Wai-mei(unreported, 17 August 1995Crim App 197/95) where it was pointed out that the courts should not ignore the fact that the legislature considered that the maximum penalty for cases of this kind should be raised to 10 years, indicating that it took a very serious view of cases of this kind.  In that case a 19-year-old mother was convicted of cruelty to her two year old son.  About two weeks before the time of the offence, she left her baby in the home of a child-minder.  Later it was found that there were many punctures all over his body and he also suffered a broken wrist.  These puncture were visible.  Later she left her son with the same minder again, and when the baby was taken back by her, he had on him some 80 punctures.  There were multiple bruises all over his body and he had cigarette burns on his back.  The defendant declined the invitation of her co-habitant to take the baby to hospital for treatment and it was not until the following day that the co-habitant took the baby to hospital for treatment.  The case thus came to light.  The trial judge took a starting point of two years, allowing the defendant a discount of 3 months for her plea of guilty.  The defendant was sentenced to 21 months’ imprisonment.  Her appeal was dismissed by the Court of Appeal.

8. In HKSAR v Lam Wai-man (above), the defendant was also charged with cruelty to a child and manslaughter.  The defendant who was then 21 years of age was the mother of a 21-month-old boy.  On 22 October 1997, the defendant took her son to a clinic, where a doctor found that the baby had multiple bruises over his face and body and worse still, he was in a semi-conscious state as a result of brain injury.  The doctor advised that the baby should be rushed to hospital for treatment.  A man who was with the defendant then stated that he had a car outside and no ambulance was needed.  However, on that day the baby was taken back home by the defendant and it was not until the next evening that the baby was taken to hospital.  Although various kinds of emergency treatment were carried out, that could not save the life of the baby who subsequently died on 5 January 1998.  The doctor found that there were multiple injuries and ligature marks, burn marks and cane marks on the baby’s body, and was of the view that these injuries were inflicted in  a prolonged manner over the period of two weeks prior to the admission of the baby to hospital.  The defendant pleaded guilty to the charges and was sentenced to 6 years’ imprisonment for the cruelty offence and 8 years’ for manslaughter.  It was ordered that 1 year of the term of imprisonment on the cruelty offence should run consecutively to the 8 years on manslaughter, amounting to a total of 9 years’ imprisonment.  The Court of Appeal held that the sentences imposed by the judge was appropriate and accordingly dismissed the application for leave to appeal.

9. Mr Jimmy Kwong, for the Defendant, submits to this Court that the trial judge had already taken into account all the sentencing principles now advanced by the Secretary for Justice, i.e., the maximum penalty stipulated by the law, the gravity of the offence, the consequences to the victim, the public interest, the deterrent effect, etc.  Mr Kwong stresses that the Training Centre order is an immediate custodial sentence, the term of which in effect is even longer than the imprisonment of two years and four months stated by Judge Poon (see her reasons below) because the Training Centre order would deprive the Defendant of his liberty for a period ranging from 6 months to 3 years, followed by a period of after-care supervision.  Mr Kwong also stresses that the Defendant had a clear record and is not a man with tendency to use violence.  Mr Kwong also submits that the Defendant should only be punished for his behaviour, not for the effect suffered by the victim.  We do not agree.  Although the Defendant admitted giving only blows to her daughter, he should be aware that in view of her tender age -- just a baby, his blows on her might be very harmful to her and cannot be compared with his blows on an adult.  Hitting his daughter with fist out of a moment of anger and causing her to suffer from permanent disability is a grave matter.

10. In her reasons for sentence, Judge Poon had the following to say:

11. “As the Defendant got married at young age and already has two children, he was unable to adapt himself to these changes within such a short period of time.  Furthermore, all along he alone had to bear the stress and pressure from his work, financial burden and family responsibility.  This, coupled with his deliberate attempts to suppress his negative emotions, led to this tragedy which resulted from an emotional outburst that could not be controlled or stopped.  The report from the Correctional Services Department recommends that the Defendant should be sentenced to the Detention Centre or Training Centre.

12. Under the relevant provisions, the maximum penalty for cruelty to a child is 10 years’ imprisonment.

13. In sentencing, I have considered the background of the Defendant, the mitigation by his counsel, the facts of the case and the relevant authorities.  I accept that the injuries sustained by the victim resulted from an isolated incident and they were not caused by prolonged cruelty or neglect on the part of the Defendant.  In addition, the Defendant did take the victim to hospital for treatment at the earliest opportunity and he did not cause any delay to cover up his crime.

14. The Court of Appeal has indicated that in cases of this kind our society does not tolerate an adult to vent his own emotion on a helpless young child and therefore the court in sentencing must express public antipathy and abhorrence of this sort and cannot disregard public conscience; to condone what the offenders did in cases of this kind amounts to acquiescing in or even encouraging the evil practice of child abuse.  The Defendant injured his own little daughter due to his momentary failure to control his emotions, causing permanent disability to her and depriving her of the right to grow up normally and healthily.  Although counsel for the Defendant submits to this court that in sentencing, the court may consider a Community Service Order and the criteria for the making of such order, I am of the view that, bearing in mind all the factors in the present case, a custodial sentence is the only option.

15. If the offender in a case of this kind is already an adult, I would consider three and a half years to be an appropriate starting point.  After a one-third discount for a plea of guilty, the sentence that an adult offender would receive is two years and four months.  In light of the fact that the Defendant was only at the age of 18 years at the time of the offence and having considered the contents and recommendations of the various reports before me, I would regard the giving of a chance to a young offender for rehabilitation as the major consideration.  I am going to be lenient to the Defendant this time by sentencing him to the Training Centre.  This is because the term he is going to serve in the Training Centre would be closer to the term of two years and four months mentioned above.  In addition, while serving in the Training Centre, the Defendant may be given appropriate counselling and may learn a skill to help him fit in the community and adapt himself to the community and family life again in future.

16. The Defendant is sentenced to the Training Centre on the charge.”

17. It is clear from this that the judge had already considered the sentencing principles pointed out by Mr Cheung.  The only criticism which may be made about the sentence imposed by Judge Poon is that she might have been rather lenient in regarding the giving of a chance to a young offender for rehabilitation as the major consideration.  Having considered all the circumstances of the case, including the circumstances of the Defendant, his relation with the victim and the disability suffered by the victim, this Court is of the view that a starting point of 4 years’ imprisonment is the most appropriate.  However, as the Defendant would be given a one-third discount for his plea of guilty, the result would be a term of imprisonment for two years and eight months.  If his conduct is good inside prison, the period he would be serving would usually be about two-third of the term, i.e., about 21 months.  The relevant legislation provides that the term to be served by an offender in a Training Centre ranges from 6 months to 3 years, depending on whether his performance and progress in the Training Centre are satisfactory (Section 4(2) of the Training Centre Ordinance (Cap. 280)).  Previous experience shows that the shortest period of detention for an offender serving in a Training Centre is 16 months.  During this shortest period of 16 months, like serving the term of imprisonment, the defendant would also lose his liberty.  But in the Training Centre he will be given appropriate counselling and can learn a skill to help him fit in the community and assist him in earning a living and giving financial support to his family in future.  In our view, the gravity of the present case is comparable with that of Lam Wai-mei, but far less than that of Lam Wai-man.  We agree with the argument advanced by Mr Kwong that the Defendant has a good family in which he has a further baby son other than his daughter who was injured in this case.  The Defendant and his wife, together with the two babies, form an integral family although the two little children are at present under the care and supervision of the Social Welfare Department.  It goes without saying that the Defendant feels remorseful for what he has done which resulted in her daughter being handicapped both physically and mentally.  It is already a severe punishment to him that he and his wife have to look after their daughter for the rest of their lives.  In view of the fact that the defendant had no previous conviction; that the commission of this offence stemmed from the fact that he was under all sorts of stresses and pressure of life by reason that he did not complete his studies, got married at a young age and had to do manual work to support his family that he took his daughter to hospital for treatment at the earliest opportunity; that his remorse in this matter is obvious; and that this is the only incident in which his daughter was abused by him out of momentary loss of control of his emotions, Judge Poon should not be criticized for adopting a lenient approach in sentencing.  The court, whilst administering justice rigorously, does show that under appropriate circumstances it is capable of mercy and compassion.  Therefore, we are of the view that in the present case the sentencing approach adopted by Judge Poon and the sentence are acceptable.  The sentence is not against the principles of sentencing, nor is it too lenient or manifestly inadequate.

18. For the above reasons, we refuse the application by the Secretary for Justice.

19. However, we must emphasize that the circumstances in this case are very exceptional.  Most of the victims in cases of this kind are young children who are helpless and vulnerable.  The court should deal with offenders of child abuse with stiff sentences.  If the victim suffers from severe or long-term injury, an immediate custodial sentence of a rather long term would be inevitable and appropriate.  This is not only because the court needs to reflect public abhorrence to cases of this kind and show that it will not tolerate such crimes, but also because the court wishes to prevent and deter the occurrence of such crimes.