HKSAR v. LEUNG SIU FONG

HCCC 256/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 256 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant was convicted after trial of one count of manslaughter of the child, Matthew Lee Man-hin.

Briefly, the facts were that Matthew was born and was initially taken care of by the sister of the defendant. Subsequently, the defendant took Matthew home some time in mid-July and on 25 August, according to what the defendant subsequently told the police, she had entered the room where Matthew was sleeping; the baby was gasping for breath and clenching his fists. She attempted CPR on the baby but there was no response and subsequently she called 999.

According to the Admitted Facts and the evidence of the senior ambulanceman who arrived on the scene, the call was received at 5.44 pm or thereabouts. There is no evidence really of what happened between about the time 4 o’clock in the afternoon to 5.45.

The defendant, in her statement to the police, asserted that she spent the time, 10 minutes, to do CPR on the baby and after five minutes when it was not successful, she called 999. So it is a mystery as to why the ambulance was not summoned earlier.

It is clear from the evidence that was given at the trial that baby Matthew was found to have bruises on his cheeks and these bruises are apparent from the photographs that were produced. According to Dr Lam, who was the fourth prosecution witness, the bruise on the left cheek of baby Matthew was more than one day old and the bruise on the right cheek was fresher and not caused at the same occasion as the bruise on the left cheek.

Dr Lam, who was the pathologist, did an internal examination of baby Matthew and after opening up his skull, found that there was considerable bleeding in the brain. He says that the amount of blood he found, it was difficult to say how long it would have taken to fill the baby’s brain. It could be between a matter of minutes or weeks, depending on the rate of bleeding. Microscopic examination showed that some of the clots were fresh and some of the trauma to the head was a week or two before death.

This leads me to the reports I had asked for after the conviction of the defendant and I note that from the psychologist’s report, Ms Kong’s report, at paragraph 9, the sister of the defendant told Ms Kong that the defendant would hit and pinch and shake the baby Matthew when the baby cried. The defendant also told the psychologist that she felt irritated when the baby cried and claimed that she only hit baby Matthew one or two times only. However, her sister stated that the defendant would hit the baby one or two times every week.

Also Ms Leung, the defendant, had expressed to her sister that she did not like her son and the sister of the defendant and the defendant herself attributed the incident to the unstable emotion which the defendant was undergoing because her mood was affected by the conflict between the defendant’s husband and her elder sister.

The clinical psychologist also did a test on the defendant and found her intelligence fell within the borderline range and said that people with this intellectual level are able to differentiate right from wrong and understand the consequences of their behaviour.

However, Ms Kong was of the opinion that the defendant had poor insight into her emotional problem and did not seek professional assistance and that the unstable mood of the defendant, together with her insomnia and concentration problem as well as self-harm thought, suggested therefore that she may have been suffering from adjustment disorder with depressed mood and that the defendant’s poor coping with the depressed mood showed that her risk of reoffending for the similar offences is moderate. Psychological follow-up on mood management is recommended by Ms Kong.

It is without a doubt that every person who becomes a parent has the moral and legal duty and responsibility to protect their child. It is never easy for a court, at the end of the day, to consider what punishment is merited in cases of this nature for whatever punishment is given, it will never bring back the young life of baby Matthew.

As Mr Mughal correctly pointed out, there is no guideline sentence because the facts, the circumstances, vary considerably. I can only echo the words of Hartmann JA (as he then was) in Secretary for Justice v Chan Man Yam Candy [2011]5 HKC72(CA)where he said that protection of human life is the foremost objective of our system of criminal justice, that 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 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 see no special circumstances in this case that would warrant any special mitigating circumstances. The problem in cases of this kind is that a clear record really does not mean very much. The only thing it means is that the defendant is not prone to act violently in the past to others and that perhaps one can look at it as a particularly special occasion when she has acted out of character. But we must not forget the facts in this case; it was not a spur of the moment action. As the physical injuries indicate, it was not a one-off beating of the child. The injuries indicate that baby Matthew suffered the injuries on more than one occasion.

The defendant was convicted after trial and though I would accept that she has expressed remorse to the probation officer and to the psychologist and that a lot of the evidence in the trial was admitted and that the trial was a short one, however, I do not see that as being circumstances that would fully mitigate the sentence.

As I have said, it remains a mystery as to why the ambulance was not summoned earlier and perhaps if it had been summoned earlier, maybe, only maybe, baby Matthew’s life may not have been lost. But this is just pure speculation.

In sentencing, I have to look at all the facts in this case and the background of the defendant does not bear any great significance. She came, it seems, from a middle class family. She has the support of her sisters and mother, and sometimes her husband. There does not seem to have been anything unusual in her background to mitigate what she has done to baby Matthew. One can only explain, as the psychologist Ms Kong, has said, that she must have been depressed and it affected her mood and therefore resulted in the treatment and death of baby Matthew.

So in all the circumstances, I consider that an appropriate sentence is one of 8 years’ imprisonment.