HKSAR v. C S K

HCCC 384/2017

[2018] HKCFI 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 384 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant tried to feed his then eight year old daughter with rodenticide mixture after he got himself drunk. He shouted and demanded his son and daughter to die with him by drinking the mixture before he killed himself. His elder sister, who was staying in the flat to take care of the children, intervened and snatched away the glass of liquid and poured it down the drain, and at the same time, the defendant continued to shout, to strangle the daughter to death. He put that into action by strangling her neck, lifting her whole person up from the ground. The defendant’s sister managed to free the daughter away and they locked themselves in a bedroom whilst the defendant continued to kick on the bedroom door demanding the daughter to go out.

Police was called and arrived shortly. The six year old son was present throughout and witnessed the whole incident. The daughter suffered some superficial abrasion over her neck. The son sustained no external injury. Whilst the daughter exhibited some post-traumatic adjustment problem, clinical psychologists found that both children have recovered from the effects of the incident and no psychological intervention is required.

The son has, since the incident, been diagnosed as a student of special needs with borderline intelligence. That probably accounts for his very limited memory of the incident altogether.

The defendant, who has a clear record, pleaded guilty to a charge of wilful assault causing injury to a child, contrary to section 27(1) of the Offences Against the Person Ordinance, Cap 212, which carries with it a maximum sentence of 10 years’ imprisonment.

By way of mitigation, I was told that he had always been a family man; a good father, a filial son and a loving husband. This is also the impression I got from the background report. Counsel submitted that this was an isolated incident caused by financial stress, which was totally out of character. Being in a drunken state, the defendant was momentarily and suddenly overwhelmed with negative emotions when he did the foolish acts, which no doubt will be a blemish to his otherwise unblemished life.

From the letters of mitigation, the family spoke fondly and mercifully for him. The background report shows good family support, and the whole family, including the defendant’s father, and his sister who witnessed the incident, is prepared to forgive him and render whatever support that he requires. The wife and children miss him dearly and long for a family reunion as soon as possible, and the daughter has actually written in, telling me that today is her 10th birthday, and how she longed to be with her father.

Psychiatric report shows that the defendant has no signs of depression and mental disturbance, and the probation officer is of the view that the defendant committed the present offence due to poor stress management and alcoholism. The clinical psychologist views that the offence was related to the defendant’s “maladaptive use of alcohol to cope with stress triggered by financial and family problem. However, with a satisfactory family and social support, and the exercise of self-control over excessive alcohol consumption, risk of reoffending is assessed to be low.

All these mitigations have to be balanced against a duty upon the courts to protect the vulnerable. There is a societal imperative which demands that those who have the custody and care of children to exercise control over their own emotions. Any felonious attempt to harm a child’s life is frowned upon as one of the most dreadful crimes in the criminal calendar. Those who harm a child cannot expect any sympathy from the courts. The defendant has allowed himself to be so influenced by alcohol to be driven to a state where he could do harm to his own children.

In the present case, the defendant did not retreat from what he set out to do. Had it not been for the adult intervention, the consequences could have been disastrous and irreversible. Whilst recognising that this was an isolated and out of character incident, the crime still has been committed and must be punished as it deserves.

On the other hand, over the decades, the courts have manifested a willingness to recognise factual context which provides some basis for understanding the human tragedies that can lead to such a crime. In a case such as the present, where there is material justifying a degree of understanding, and perhaps some sympathy towards the defendant, the task of sentencing is particularly difficult. Apart from evaluating the demands of the criminal justice system, the expectation of the community at large, I am also required to step back to review whether the sentence will be in the best interests of the victim and the family, bearing in mind the disruptive effect a custodial sentence could have on the family life of the victim, and whether that is proportionate to the seriousness of the offence.

Stand up, defendant. You have acted impulsively and irresponsibly. Whatever problem you have in life, you should never vent your emotion against innocent and helpless children. Always remember that as a father, you are the person your children look up to and you set the standard for them. A good father will leave his imprint on his children for the rest of their lives. Alcohol is a solvent, which if addicted to or misused, dissolves marriages, families and careers.

I accept that this was an out of character incident and no permanent disability or psychological damage was done to either of the children. I judge that a 3 year starting point is appropriate in the present case. On your plea you are given the full one-third discount, you go to prison for 2 years, and that is the sentence that I pass.