HKSAR v. LI KWAN CHIU

[English Translation - 英譯本]

HCMA 351/2021

[2022] HKCFI 2149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 351 OF 2021

(ON APPEAL FROM FLCC 69 OF 2021)

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J U D G M E N T

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Introduction

1.  The appellant was charged with one count of “wilful neglect by those in charge of a child”[1]. It was alleged in the particulars of offence that on 22 June 2020, at the swimming pool, House No.11, 15^th Street, Hong Lok Yuen, Hong Lok Road, Tai Po, New Territories, in Hong Kong, the appellant, being a person over the age of 16 years who had the custody, charge or care of Li Tsz-tin, Gaston, a child or young person aged 3, did wilfully neglect the said Li Tze-tin, Gaston in a manner likely to cause the said Li Tze-tin, Gaston unnecessary injury to his health.

2.  The appellant denied the charge and was tried before Temporary Magistrate Mr Fung Lim Wai, Henry (“the magistrate”). On 13 July 2021, the magistrate found the appellant guilty of the charge. On the same day, he was sentenced to 2 months’ imprisonment, suspended for 18 months.

3.  The appellant appealed against the conviction[2]. The appeal hearing was originally fixed on 28 June this year. However, due to the pandemic, the court gave direction on 18 May to cancel the oral hearing and to conduct the appeal on paper.

The Prosecution Case

4.  In the trial, most of the facts of the prosecution case were admitted and so it was not necessary to call any witness. The closed-circuit television footage (P3) of the detached house involved in the case and the video-recorded interview of the appellant conducted in Tai Po Police Station (P4) were played and viewed in court. The defence also confirmed that the prosecution was not required to call any witness for cross-examination.

5.  Simply put, at the material time, the appellant, his wife and a domestic helper lived in the house involved in the case. The eldest son and the eldest daughter-in-law had a daughter and a son (who was the deceased in the case, “the grandson”). The appellant was the grandfather of the grandson who was aged 3. The appellant enjoyed a harmonious relationship with his family members. He loved and took great care of his two grandchildren.

6.  On 21 June 2020, the appellant had dinner with his eldest son, eldest daughter-in-law and the two grandchildren in the house. After dinner, the two grandchildren stayed behind to sleep over in the house whereas the eldest son and the eldest daughter-in-law went home. It was planned for the two grandchildren to stay there until 23 June 2020.

7.  At 1535 hours on 22 June 2020, the appellant, his wife and the two grandchildren were swimming and playing in the swimming pool and the inflatable pool in the house. The appellant’s wife and the granddaughter went up to the master bedroom on the third floor to take a shower. At about 1700 hours, the appellant’s wife saw the appellant coming up to the third floor. The appellant asked whether the grandson had come up. The appellant’s wife replied in the negative. The appellant then went downstairs to look for the grandson. At 1700 hours on the same day, the appellant found that the grandson was drowned in the swimming pool and he called the police for help. Unfortunately, after the emergency rescue, the grandson was confirmed dead and the cause of death was drowning.

8.  The grandson was 97cm tall. The shallowest end of the swimming pool of the house was 1.2 metres deep whereas the deepest end was 1.5 metres. The inflatable pool was 30 cm deep.

9.  On 29 June 2020, the police conducted a video-recorded interview with the appellant. Concerning the content of the conversation with the appellant, the court adopted the written submission of the appellant who was represented by the barristers, Mr Sham (and Mr Lai) as summarized below:

(a)  On the afternoon of 20 June 2020, the appellant drove to Tsing Yi to collect his second son, second daughter-in-law and their daughter back to the house to prepare for the Father’s Day celebration on the following day. [3]

(b)  On Sunday 21 June 2020, the appellant arranged with his eldest daughter-in-law for her, the appellant’s eldest son, the grandson, the granddaughter and their domestic helper to be collected at half past eleven in Causeway Bay before he drove to Kwai Chung to pick up his wife. Afterwards, he drove another car with his wife, the grandson, the granddaughter and his son’s domestic helper on board back to the house. When they arrived there, it was around one to two o’clock. [4]

(c)  Back at the house, the children played and had some food. Then, the appellant, his second son, second daughter-in-law, their daughter and the two children of the eldest son (namely the grandson and the granddaughter) all swam in the swimming pool of the house until four to five o’clock.[5]

(d)  Afterwards the grandson and the granddaughter took a nap and had dinner in the house at half past six in the evening. [6]

(e)  After dinner, the appellant drove his eldest son and daughter-in-law, and his second son’s family of three home. The children of the eldest son, namely the grandson and the granddaughter stayed behind to sleep over in the house. The appellant returned home back to the house at about eleven o’clock at night. [7]

(f)  The following day on 22 June 2020, which was the material day, the appellant woke up sometime after six in the morning. Sometime after eight o’clock, the appellant drove his wife and the grandchildren to the nearby McDonald’s for takeaway breakfast. His wife left in Tai Wo Station and the appellant took the grandchildren home for breakfast. [8]

(g)  At about half past ten, the appellant took his grandchildren and the food prepared to the office in Kwai Chung to meet up with his wife. [9]

(h)  After that the appellant drove his wife and the grandchildren back to the house and arrived there at about one to two o’clock. [10]

(i)  Having rested a little, sometime after three o’clock, the appellant, his wife and the grandchildren swam in the swimming pool of the house. The children both put on their arm floaties. Sometime after four o’clock, the granddaughter said she did not want to swim anymore, so the wife took her to the bathroom, leaving behind the appellant and the grandson.

(j)  The grandson had not taken any swimming lesson and he was very afraid of water. Normally even with a float ring, he dared not get into the big swimming pool. To do so, he must have someone carry him in one’s arms. By the time the appellant’s wife and the granddaughter left, the grandson was no longer in the big swimming pool. He was in the inflatable swimming pool. The water of the inflatable pool was very shallow. The water was up to the grandson’s knees when he stood up. The appellant felt it was very safe.

(k)  The grandson told the appellant that he would like to take off the arm floaties. The appellant thought it was fine since the inflatable pool was shallow. Even when the grandson sat down there, the water would be just up to his chest. With the arm floaties on, it was inconvenient for the grandson to move about, so the appellant agreed and removed them for him. The appellant sat at a round table in a chair from a distance of about 8-10 meters away, watching the grandson.

(l)  The appellant said, “I truly had no idea under what circumstances I dozed off.” The appellant knew he dozed off because, at that moment the grandson was still playing in the inflatable pool but once he opened his eyes, everything was so calm and his grandson was no longer in the inflatable pool.

(m)  The appellant thought the grandson had gone upstairs to look for his grandmother (the appellant’s wife), so he went upstairs but his wife said she did not see the grandson. The appellant was very frightened and he immediately charged back into the garden and saw that something was at the bottom of the big swimming pool. He realized that something had gone very wrong. He jumped into the pool. At that moment, the head of the grandson was pointing downwards. Once the appellant had taken hold of the grandson and got him out of the water, he did chest compressions and mouth-to-mouth rescue breathing to him. The appellant’s wife had also come downstairs and understood that the situation was serious. The appellant called the police while his wife continued to give the grandson first aid. They carried on giving first aid to the grandson as instructed by the report centre over the phone. The ambulance arrived in ten-odd minutes and the grandson was taken to the hospital with the appellant also on board. [11]

(n)  The appellant estimated that it was about 1.5-1.6 meters in depth at the deepest side of the big swimming pool.[12]

(o)  The appellant thought the grandson was a very good boy. Unless he was carried by an adult, he would not take the initiative to jump into the water; hence the appellant felt at ease.[13]

(p)  The inflatable pool was less than a meter away from the big swimming pool.[14]

(q)  The appellant further explained that when he was at the round table, he sometimes browsed his mobile phone briefly. “Having taken off the arm floaties, I went back to sit down. I recall that it seems after a short while, I turned my head to take a look at the grandson to see if he was there. On reflection, I certainly knew I had dozed off.” But that was a brief period. I did not recall when I had dozed off. “That was not to say, well, I found myself—I felt completely asleep, for a long time. For me, it’s just in the blink of an eye.” [15]

(r)  The appellant suffered from diabetes, high cholesterol and high blood pressure, and also took medicines, one dose in the morning and another in the evening. When asked if the medicines caused drowsiness, he replied, “Yes. Er, sometimes I—well, the drowsiness that I’m talking about…for example, I—I do drive. But it has never occurred to me that I dozed off while driving.” [16]

(s)  The appellant said there was not much to take care of in the office, so sometimes he dozed off in front of the screen. [17]

(t)  The appellant admitted that life from 20 to 22 June was more tiring than usual because it was very exhausting to play with grandchildren and he also spent a lot of time driving. “I thought this might be a reason—even unknown to myself, that I dozed off—it might be possible.” [18]

(u)  The appellant said, “It was very hot on that day”. The swimming pool of the house was not as big as public swimming pools. The water temperature was very high; “It was very uncomfortable to swim”. On the day, he “did not get into the water much” because he could not stand the temperature. The heat sometimes made one feel “very unclear-minded”; “that is to say, if you were to get into some cold water—you would feel” “refreshed”. [19]

(v)  “On that day, perhaps it’s just hot, the weather”; “On reflection, due to a certain reason unknown to me—er, well, I dozed off—er, in other words—like what I’ve said at the beginning, that I was not aware of that.” [20]

(w)  The grandson had no chronic illness nor was he hyperactive. He was a lively child. [21]

(x)  The appellant enjoyed a very good relationship with his family members. He was very fond of his grandchildren. [22]

The Defence Case

10.  The appellant chose to give evidence. He was almost 69 years old at the time of the trial. He lived with his wife and domestic helper in the house. He was a university graduate running a retail business with his office situated in Kwai Chung. He confirmed that the content of the video-recorded interview (exhibit P4) was true.

11.  The appellant supplemented that prior to the material time, when his wife and granddaughter were getting out of the swimming pool, the grandson was in the inflatable pool. He expressed that he did not find it dangerous when he was in the inflatable pool because it was shallow. Nothing would go wrong even if the grandson sat down. When the grandson asked to have the arm floaties removed because they restricted his movement, the appellant had thought about that and took the view that the grandson would be very safe because he was within his sight and the inflatable pool was shallow. Therefore, he removed the arm floaties for him. He said he sat in the chair shown on the photograph, P2(6)[23] to observe the grandson’s movement and also to browse his mobile phone. He fell asleep unconsciously. It never occurred to him that he would doze off, nor was he aware of the risk of his dozing off. [24]

12.  The appellant said that the placement of the inflatable pool next to the big swimming pool was not a well-planned arrangement, but it was just the way it had been. He did not find it risky because he knew how to swim. He often asked the grandson to be brave enough to get into the water, but he dared not do so, so he thought the grandson was “very fainthearted”. The grandson did not leave the appellant’s sight and was safe. [25]

13.  Regarding the medicines, the appellant said that he never thought about the risk of drowsiness after taking the medicines because he had been on such medication for years, but lived a normal life. He never dozed off when driving even if he needed to drive. The doctor had not told him that taking these medicines would cause drowsiness, nor had he ever felt drowsy after taking the medicines in the past. [26]

14.  The appellant expressed that he had not wilfully neglected the grandson, nor had he thought of or been aware that the grandson’s health would be injured. [27]

15.  Under cross-examination, even though the appellant agreed that driving for long would make him tired, he felt happy when his grandchildren came to his home and he did not take it as a hard job. He emphasized that if he was to ask himself whether his fatigue would make him aware of the danger, his answer would be “no”.[28] He said the grandson felt uncomfortable with the arm floaties and so he helped him to remove them. He thought the grandson was safe because he was watching him. Given the distance between the appellant and the grandson, he could keep things under his control, and he did not think anything would go wrong for the grandson. He expressed that if he thought that something would happen to the grandson, he would definitely not have removed the arm floaties.[29] Under re-examination, he said if he thought there would be a problem taking off the inflatable arm floaties from the grandson, he would definitely not have done so. [30]

The Main Disputes on Facts

16.  The magistrate pointed out that it was not the prosecution’s stance that the appellant wilfully neglected the grandson; instead, it was that the appellant recklessly removed the grandson’s inflatable arm floaties in a manner likely to cause him unnecessary injury to his health.

17.  The magistrate was of the view that the main factual disputes of the case lay on the following:

(1)  At the moment the appellant removed the grandson’s inflatable arm floaties, whether he was aware that his act could or would likely cause the grandson unnecessary injury to his health;

(2)  Assuming that the appellant was aware of that, whether he would have removed the grandson’s inflatable arm floaties knowing the relevant consequence or risk (namely, that would cause unnecessary injury to the grandson’s health);

(3)  Based on the appellant’s knowledge and understanding of the then situation, whether it was unreasonable for him to take the risk and carry on with the act.

18.  The magistrate directed himself that if the appellant, for reasons such as his age or personal characteristics, truly cannot predict or foresee the risk involved in his act, he will not be regarded as having the state of mind required to constitute a particular crime and accordingly cannot be convicted.

Reasons of Conviction

19.  The magistrate directed himself on the effect of the appellant’s good character[31]. Nevertheless, he was of the view that, even if the appellant was found not to be an honest witness on the ground that he had not told the court the whole truth and the part of his evidence in contradiction to the prosecution case was rejected,[32] this would not result in a conviction. The prosecution would still need to prove all the elements[33] of the charge beyond reasonable doubt, including (i) wilful neglect and (ii) in a manner likely to cause the child or young person unnecessary suffering or injury to his health[34].

20.  Based on the evidence of the appellant, the magistrate found that the following:

(1)  The appellant had considered the safety of the grandson and even weighed the relevant risk before deciding to remove the grandson’s arm floaties. Therefore, he believed that the appellant must have thought of the risk[35] of whether the grandson would be “drowned” (that is, injured through submersion in water) if the arm floaties were removed from him.

(2)  The appellant must have also known that since the grandson “could not sit for long”, there would be a risk of him “getting drowned” or getting out of the inflatable swimming pool and/or getting into the adult swimming pool. This was also in line with the appellant’s explanation of why he had to observe the grandson’s behaviour[36].

(3)  Even though the inflatable pool was not deep, the appellant claimed that he would be seated at a distance of about 8 to 10 meters away to observe the grandson’s behaviour. This, at most, would only minimize the risk of the grandson “getting drowned”, but the risk was still there or it would still exist[37].

(4)  Even though the appellant claimed that he would observe the grandson’s behaviour at a distance of about 8 to 10 metres away from him and so he thought the grandson would be safe, the magistrate was of the view that it all depended on whether the appellant was observing the grandson’s behaviour all the time and whether he was able to react in time. The magistrate considered that whether the child was aged 3 or 6, if he was allowed to get into the water, the carer must be with him all the time keeping him company and standing close by him so that he “could grab hold of the child” if an accident happened. Even though the grandson asked to have the arm floaties removed, the appellant should have insisted that he had to put them or other floating devices on. Hence, when the appellant took off the inflatable arm floaties for the grandson and left him on his own, the act would likely cause the grandson unnecessary injury to his health[38].

(5)  Since the grandson was an active and lively child who was playing in the water before the accident, given the background of the appellant, the magistrate believed that the appellant knew that it was impossible for him to rule out the risk that the grandson slipped and fell into the inflatable pool when playing in water, his limbs cramped and caused him to lose his balance, or his body and face turned back into the water or lay down, choking water into his lungs, or leaving the inflatable pool and getting into the adult swimming pool. Therefore, it was unreasonable for the appellant to take the risk of removing the grandson’s inflatable arm floaties and leaving him on his own based on the appellant’s understanding of the then circumstances[39]; and

(6)  The magistrate was of the view that given the appellant’s age, education and life experience, and his knowledge that the grandson would feel hurtful when getting drowned, he must have known that it was dangerous and would affect one’s health when water made its way into one’s body inappropriately. By removing the arm floaties from the grandson, the appellant must have known or was reckless to the consequences of his act[40].

21.  Based on the above, the magistrate found that the prosecution had proved beyond reasonable doubt all the elements of the charge as follows[41]:

(1)  When the appellant removed the grandson’s inflatable arm floaties, it had occurred to him that the grandson would or might be drowned and suffered unnecessary risk of injury to his health;

(2)  Since he had thought of such a risk, he must have known that this risk existed or it might exist;

(3)  He knew that this risk existed or might exist, but still went on to remove the grandson’s inflatable arm floaties;

(4)  Under the circumstances, his act (of carrying on removing the grandson’s inflatable arm floaties) constituted his recklessness in acting under the risk and the consequences brought about by it;

(5)  Based on his understanding of the circumstances, it was unreasonable for him to carry on with his act.

(6)  The health injury brought about by being reckless to act under such risk was definitely “unnecessary”.

Accordingly, the magistrate found the appellant guilty of “wilful neglect by those in charge of a child”.

Grounds of Appeal

22.  The appellant’s perfected grounds of appeal[42] are as follows:

(I)  The magistrate erred in finding the appellant was “reckless” as to the risk of the grandson getting drowned; and

(II)  The magistrate erred in finding the element of “wilful neglect”:

(1)The magistrate erred in taking “removal of the grandson’s inflatable arm floaties” as the basis to find him guilty of neglect;

(2)There was insufficient evidence to support the fact that the appellant consciously decided to neglect the grandson so as to constitute “wilful neglect”.

Legal Principles Governing an Appeal

23.  Magistracy appeals are conducted by way of rehearing based on the evidence before the trial magistrate: Chou Shih Bin v HKSAR[43]. In HKSAR v Ip Chin Kei[44], McWalters J of the Court of First Instance (as he then was) summarised the relevant legal principles as follows:

(1) The appellate court will only depart from a magistrate’s finding of facts or determination of a witness’s credibility if satisfied that it is plainly wrong.

(2) The test in determining whether an error by the magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(3) Absent the appellate court identifying any error by the magistrate, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution, the guilt of the appellant had been proven beyond reasonable doubt, failing which the appeal must be allowed.

24.  Concerning point (1) above, the appellate court must have regard to the fact that the trial magistrate had the advantage of hearing and watching witnesses giving evidence, which the appellate court does not have: Raymond Chen v HKSAR[45]. In general, the credibility and reliability of a witness is a matter for the trial magistrate to assess. As pointed out by Barnes J in HKSAR v Chan Wai Yip Albert[46], when the findings of the trial magistrate are shown to be unreasonable, illogical, or inherently improbable; or that the trial magistrate has misquoted, omitted, failed to consider and analyse any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

25.  On the other hand, if the relevant findings only involved documentary evidence or inferences, the appellate court and the trial magistrate will have an equal advantage to make findings: Chong Ching Yuen v HKSAR[47], see Ting Kwok Keung v Tam Dick Yuen & Ors[48].

The Elements of the Charge

26.  Section 27[49] of the Offences Against the Person Ordinance states as follows:

“27. Ill-treatment or neglect by those in charge of child or young person

(1) If any person over the age of 16 years who has the custody, charge or care of any child or young person under that age wilfully assaults, ill-treats, neglects, abandons or exposes such child or young person or causes or procures such child or young person to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement) such person shall be guilty of an offence and shall be liable—

(a) on conviction on indictment to imprisonment for 10 years; or

(b) on summary conviction to imprisonment for 3 years,

and for the purposes of this section a parent or other person over the age of 16 having the custody, charge or care of a child or young person under that age shall be deemed to have neglected him in a manner likely to cause injury to his health if he fails to provide adequate food, clothing or lodging for the child or young person, or if, being unable otherwise to provide such food, clothing or lodging, he knowingly and wilfully fails to take steps to procure the same to be provided by some authority, society or institution which undertakes to make such provision for necessitous children or young persons.

(2) A person may be convicted of an offence under this section, either on indictment or by a court of summary jurisdiction, notwithstanding that actual suffering or injury to health or the likelihood of such suffering or injury to health was obviated by the action of another person.

(3) A person may be convicted of an offence under this section, either on indictment or by a court of summary jurisdiction, notwithstanding the death of the child or young person in respect of whom the offence is committed.” (Emphasis added)

27.  Both the appellant and the respondent agree that the classic interpretation of the above provision comes from R v Sheppard[50], per Lord Diplock, whose dictum[51] was adopted by the majority[52]:

“ So much for “wilfully” in the context of a positive act. To “neglect” a child is to omit to act, to fail to provide adequately for its needs; and, in the context of section 1 of the Children and Young Persons Act 1933, its physical needs rather than its spiritual, educational, moral or emotional needs. These are dealt with by other legislation. For reasons already given the use of the verb “neglect” cannot, in my view, of itself import into the criminal law the civil law concept of negligence. The actus reus in a case of wilful neglect is simply a failure, for whatever reason, to provide the child whenever it in fact needs medical aid with the medical aid it needs. Such a failure as it seems to me could not be properly described as “wilful” unless the parent either (1) had directed his mind to the question whether there was some risk (though it might fall far short of a probability) that the child’s health might suffer unless he were examined by a doctor and provided with such curative treatment as the examination might reveal as necessary, and had made a conscious decision, for whatever reason, to refrain from arranging for such medical examination; or (2) had so refrained because he did not care whether the child might be in need of medical treatment or not.

  As regards the second state of mind, this imports the concept of recklessness which is a common concept in mens rea in criminal law. It is not to be confused with negligence in the civil law of tort (Andrews v. Director of Public Prosecutions). In speaking of the first state of mind I have referred to the parent’s knowledge of the existence of some risk of injury to health rather than of a probability. The section speaks of an act or omission that is “likely” to cause unnecessary suffering or injury to health. This word is imprecise. It is capable of covering a whole range of possibilities from “it’s on the cards” to “it’s more probable than not”, but having regard to the ordinary parent’s lack of skill in diagnosis and to the very serious consequences which may result from failure to provide a child with timely medical attention, it should in my view be understood as excluding only what would fairly be described as highly unlikely.” (Emphasis added)　

28.  Applying the above to the present case, if the charge was to be proved, I am of the view that the prosecution must prove the following:

(1)  The appellant “neglected” the grandson;

29.  Lord Diplock divided the actus reus of the charge into two categories: positive act and negative omission: the former includes assault, ill-treat, abandon or expose[53]; the latter refers to neglect. According to Lord Diplock, the meaning of neglect is “omit to act, to fail to provide adequately for its needs”, which is not aimed at positive actions, but the defendant’s inaction, which does not adequately meet the needs of the child involved. On this point, Lord Keith of Kinkel also pointed out that “…neglect of a child means, according to the ordinary use of language, a failure to bestow proper care and attention upon the child.” [54]

30.  In addition to the authoritative interpretation of “neglect” by the above two Law Lords, I think this point of view is also consistent with the examples provided by section 27(1) itself which are regarded as “neglect”:

•  The defendant had the custody, charge or care of the child involved but he failed to provide adequate food, clothing or lodging for the child, or

•  If the defendant was unable to provide such food, clothing or lodging, and he knowingly and wilfully failed to take steps to procure the same to be provided by an institution which undertakes to make such provision.

Both of the above examples point to the defendant’s inaction.

(2)  The manner of neglect was “likely” to cause unnecessary injury to his health.

31.  In the context of the present case, it refers to the drowning of the grandson. According to Lord Diplock, it is necessary to take into account whether an average parent lacks the relevant skills and awareness of the seriousness of the relevant risk. “Likely” is not necessarily a high threshold but is used to exclude a highly unlikely one. Lord Keith of Kinkel pointed out that “likely” is not an absolute indicator:

“It is not possible to set any absolute standard, though it might not be difficult to recognise a certain minimum below which no reasonably conscientious parent would fall.”

See: R v Wills[55]:

“Support for a meaning of “likely” which extended beyond probability to something which could well happen (though not merely a bare possibility) was found in Transport Ministry v Simmonds [1973] 1 New Zealand L.R. 359…”

(3)  “Neglect” must be “wilful”.

32.  “Wilful” as the mens rea of the charge is different from “negligence” in civil cases. It refers to the following two different types of mentality; that is, the defendant has directed his mind to the relevant risks, but he still refrained from doing certain things because he—

(i)  had made a conscious decision; or

(ii)  did not care about the need of the child involved.

33.  Lord Diplock seems to have taken item (i) as an “intentional” act and, in item (ii), introduced “recklessness”, a concept usually seen in criminal law. However, both the appellant and the respondent agreed that if the appellant was aware of the existence of the relevant risks but still unreasonably chose to continue to take the risk, it could also be regarded as a kind of “recklessness”. I agree with this; therefore, according to modern case law, if the defendant knew or perceived that the relevant circumstances existed or would exist, or knew or perceived the risk that the relevant result would occur, but he took the risk, and he knew that the risk he took was unreasonable according to his understanding of the circumstances, then his act would amount to “recklessness”: R v G[56]; Attorney General’s Reference (No 3 of 2003)[57]; and Sin Kam Wah v HKSAR[58]. Conversely, if the defendant, because of his age or personal characteristics, in good faith, did not appreciate or foresee the existence of the relevant risks, he should not be convicted. As explained by the Court of Final Appeal in Shum Kwok Sher v HKSAR[59], citing Sheppard:

“In other words, ‘wilfully’ signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act.”

Consideration

Grounds of Appeal (1): Regarding the mentality of the Appellant

34.  Based on the admitted fact that “[the appellant] had a harmonious relationship with his family members and he loved and cared about his two grandchildren very much”[60], I agree with the appellant’s claim that in the circumstances of this case, the appellant does not fall into the category of “intentional neglect” that he “did not take care” of the needs of the grandson. Furthermore, the magistrate clearly ruled that the appellant “had considered the safety of the grandson even weighed the relevant risk before deciding to take off the grandson’s inflatable arm floaties”[61]. Hence, I consider that, as far as inherent probability is concerned, it is precisely because the appellant cared about the safety of the grandson that he observed the grandson’s activities from 8-10 meters away in his chair. Therefore, the key to this case is whether the appellant knew that the grandson was at risk of getting drowned but he still made a conscious decision to take the risk, and whether his decision was unreasonable. As mentioned earlier, even if the prosecution relied on the above-mentioned “recklessness” in form (i) as the criminal intent of the charge faced by the appellant, it must still prove that he subjectively realized that the grandson was at risk of getting drowned but he unreasonably took the risk to take (or not to take) action.

35.  Then, on what evidence and grounds did the magistrate decide that the appellant had deliberately been reckless to the risk of the grandson getting drowned? He put it this way[62]:

“63. Even though the defendant claimed that the inflatable swimming pool was not deep enough for the grandson to be immersed when sitting down, the defendant also said that it would be another matter if the grandson lay down (see the transcript of the video-recorded interview, exhibit P4A, page 62, paragraph 315). The defendant also knew that the grandson was active and he was only three years old. The defendant was an adult, close to 69 with a university degree. He ran a retail business and owned his company. He was a father of two sons and the grandfather of the grandson. He has a wealth of life experience. From the footage of the video-recorded interview, it can be seen that the defendant and the police had a conversation normally. It can be seen from the closed-circuit television footage of the house that before the incident, the grandson often went into the inflatable pool and the swimming pool of the house to splash around. He also walked around the swimming pool. I am satisfied that the defendant knew that his grandson would not just sit and splash around in the inflatable pool, and the height of the inflatable pool could not prevent him from freely getting in or out. The defendant must have known that the grandson would at least move his body around a lot inside the inflatable swimming pool. The defendant must also have known that the grandson was at risk of getting drowned in the water when splashing around in the inflatable pool, or getting out of it and/or taking the risk of entering the adult pool, as it would also be consistent with the defendant’s explanation as to why he thought it was necessary to observe the grandson’s behaviour. Therefore, I believe that the defendant knew that the grandson would or might be at risk of getting drowned, and the defendant knew that the risk existed or might exist.

64. I believe that even though the inflatable swimming pool was not deep and the defendant claimed that he would be observing the grandson’s behaviour from a distance of about 8 to 10 meters away, these factors at most might reduce the risk of the grandson getting drowned but not eliminate the risk that the grandson would or might drown; the risk still existed or might exist.” (emphasis added)

36.  In my opinion, there are two problems with the magistrate’s finding:

(1)  I have no objection to the magistrate’s ruling that the appellant knew that the grandson was at risk of getting drowned and thus, he chose to observe his behaviour from a distance of 8 to 10 meters away from him. However, the crux of the matter is whether it was possible for the appellant to believe in good faith that what he did (observing from 8 to 10 meters away) was sufficient to ensure the safety of the grandson. If so, as mentioned above, the appellant should not have been convicted. There was no direct evidence on this point and the magistrate’s decision was purely inferential. Nevertheless, is his finding the only reasonable inference? I am of the view that there is a reasonable doubt on this point. Furthermore, the magistrate’s inference was not relevant to the appellant’s credibility, so the magistrate did not have any advantage over me.

(2)  The magistrate found that the lack of depth of the water in the inflatable swimming pool and the appellant’s act of observing from 8 to 10 meters away “could not rule out” the risk of the grandson’s drowning. On this point, I believe that an excessively strict and almost absolute standard was adopted. I agree that allowing a young child to play in the water without adult supervision may constitute a “reckless” risk of drowning. However, as the appellant pointed out, any activity could bear risks, yet it was not unreasonable to allow children to engage in risky activities, nor did it legally constitute “recklessness”. The law would not have required it “risk-free”, nor would it have required children’s supervisors to eliminate 100% of any imaginable risk. How can any parent ensure that his child does not face any risk? The magistrate repeatedly said that the risk[63] “could not be prevented”, “could not be ruled out” and “was impossible to be ruled out”. That is not a practically feasible requirement in reality.

37.  In my opinion, any of the above two points will be enough to make the appellant’s conviction unsafe and unsatisfactory.

38.  As to whether the appellant was aware that he would “doze off” and would not be able to take care of the grandson, the magistrate rejected the appellant’s argument and took the view that the appellant should have known, perceived or anticipated the risk of dozing off while sitting in the chair. The relevant findings of the magistrate are as follows[64]:

“(VI) Regarding the defendant’s claim that he did not think about dozing off on the material day the reason given was that he drove to pick up his two sons, as he often did, and he never dozed off while driving. However, the situation of his driving was different from that of his sitting in a chair in the garden. It was hard to compare them because when driving, one must move one’s head, hands and feet. Visually, any driver knows that he must concentrate and pay attention to the traffic conditions on the road and under these circumstances, a driver hardly dozes off. However, when one sits in a chair in the defendant’s situation and environment, one would be making fewer physical gestures than when driving; before the accident, the defendant had played with the grandson for a while. The defendant agreed that playing with the grandson would make him tired, and he had spent a lot of time driving for three consecutive days. The defendant agreed that driving a lot would make him tired. In the video-recorded interview, the defendant also mentioned that the medication he took made him feel drowsy (see the answers to entries 407 to 409 of the video-recorded interview), and the hot weather made him feel unclear-minded (see the answer to entry 477 of the video-recorded interview). The defendant also agreed that the activities or the amount of exercise of the said three consecutive days were more strenuous than usual (see the answer to entries 457 in the video-recorded interview), so he agreed that he felt particularly tired (see the answer to entry 431 in the video-recorded interview) and the chances of him unknowingly dozing off were higher. Having sat down, the defendant browsed his mobile phone. Therefore, according to the defendant’s character, including his personal background, and the fact that his usual leisure lifestyle was different from the three-day activity-packed pattern near the material time, also including the fact that he had considered that the inflatable arm floaties on the grandson’s arms restricted his arms’ movement (see the answer at entry 554 of the video-recorded interview) and the factors that the grandson might not want to play with him, I believe that the defendant knew, perceived or foresaw that when he sat in the chair, there would be a risk of him dozing off. Accordingly, the defendant’s claim that he did not know he would be dozing off in the chair was not credible.” (emphasis added)

39.  In connection with the above, the magistrate explained why he did not admit the appellant’s evidence. On this point, he drew inferences on the one hand, and he had the advantage of hearing and watching the appellant giving his testimony on the other. Therefore, I respect the fact that he refused to accept the appellant’s defence: Pang Ketian Sally v Tam Yuk Hung Annie[65].

40.  However, as the magistrate himself pointed out, his rejection of the appellant’s evidence did not mean that the prosecution was able to prove the appellant’s guilt. In that case, based on the prosecution’s burden of proof, on what evidence did the magistrate rely to come to the only reasonable inference that the appellant knew at the material time that he was in danger of dozing off? The magistrate did not give a clear account in this regard. Judging from the foregoing, it appears that he relied on the following points:

1.  Before the accident, the appellant had played with the grandson for some time and he admitted that playing with the grandson would exhaust him;

2.  At entries 407-409 of the video-recorded interview (P4, transcript P4A), the appellant said that having taken the medicines, he would feel drowsy;

3.  At entry 477, P4A, the appellant said it was a hot day. He could not stand the heat because the hot weather made him feel “very unclear-minded”.

4.  The appellant admitted that the amount of exercise in the three days was higher than normal, so he was more tired; and

5.  The appellant browsed his mobile phone after sitting down.

41.  I disagree with the inference of the magistrate. First of all, none of the above can directly prove that the appellant subjectively knew that he was in danger of dozing off. The judge relied on their cumulative weight to infer that the appellant had such knowledge at that time. However, I do doubt whether the combination of the above matters could prove beyond reasonable doubt that the appellant had the relevant subjective knowledge.

42.  Secondly, I agree that, as a finder of facts, the magistrate had the right to give different weight to various parts of the appellant’s testimony, but this does not mean that he could take it out of context. Irrespective of what the appellant said, one must take into account the context of the relevant entries.

43.  The context of entry 407B of P4A is as follows:[66]

“405B: Well, I usually tell him about, about like checking my prostate. And he was very anxious about my PSA data. If it is over a certain figure, I would possibly have prostate cancer. Well, my emphasis is—excuse me, I’ve forgotten to say that I have diabetes. For this, I am under medication. It should be the case that I had diabetes before I had a problem with my blood pressure.

406A: Um.

407B: But exactly when, I don’t remember. For diabetes, because back then I had medical check-up every year. Once the reading was over a certain figure, well, the doctor would prescribe medicines for me. So, I take a few kinds of medicines every day, once in the morning and once at night. But no matter what I have said, the two batches of medicines are for four things, namely diabetes, cholesterol, high blood pressure and prostate.

408A: Will the medicines cause drowsiness?

409B: Yes. Er, sometimes I—well, the drowsiness that I’m talking about…

410A: Yes.

411B: …for example, I—I do drive.

412A: Yup.

413B: But it has never occurred to me that I dozed off while driving.”

44.  Based on the above context, when the appellant said that the medication would make him drowsy, he referred to the question whether he could drive after taking the medicines. More importantly, the incident happened at around four o’clock, yet there was no evidence at all to show when and what medicines the appellant took on the day, or whether the appellant was under the influence of medicines at that time. Therefore, it was not safe for the magistrate to use the appellant’s answer at 409B entry as one of the reasons for drawing the inference.

45.  The context of entry 477B is as follows:

“473B: Well, er, since our swimming pool was very small, unlike the big public swimming pools, usually the water temperature is very high.

474A: Um.

475B: So it’s uncomfortable for you to swim there.

476A: Um.

477B: So, er when I watched the video, I did watch the 22 June one, er, if my memory serves me right, it seems that I didn’t really get into the water much because I couldn’t stand the heat. Because it’s hot, sometimes it makes you feel very—very—very—very unclear-minded.

478A: Um.

479B: I mean if you’re to get into cold water—the place, you will feel very—very—very fresh…

480A: that is, like, refreshed…

481B: Yes, on that day perhaps the weather was hot.

482A: Yup.

483B: Now thinking over about that time perhaps out of a reason even unknown to myself—er, well dozing—er, I mean—I mean like what I’ve said at the beginning, I was not aware of it until I watched it. I watched the video only after I’d passed it on to the police and oh, it turned out to be ten minutes. Well, but if you asked me, I wouldn’t feel it was ten minutes long.”

Judging from the above, the appellant was talking about the fact that the water in the swimming pool of the house was so hot that he did not want to go into the water. Although the appellant mentioned that the hot weather “sometimes” would make one feel “very unclear-minded”, he did not admit that the hot weather made him feel “very unclear-minded”. The appellant said when he “thought about it afterwards”, the hot weather possibly made him doze off. It was also inappropriate for the magistrate to rely on this unsafe answer to draw his inferences.

46.  ​​Furthermore, as the appellant pointed out in the submission, if a grandfather who loves and cares about his grandson realised that his grandson was at risk of getting drowned and that he himself was at risk of dozing off, would he still take the risk of neglecting him? As the magistrate did not discuss this point in the Statement of Findings, I have no way of knowing whether he had taken it into account.

47.  Based on the above, I consider it unsafe and unsatisfactory for the magistrate to infer that the appellant was aware of the risk of his dozing off at the material time.

Ground of Appeal 2: Whether the Appellant “Neglected”

48.  Due to the decision made on Ground of Appeal (1), I need not deal with Ground of Appeal (2). However, for the sake of completeness, I will express some views on this Ground of Appeal.

49.  As mentioned earlier, “neglect” is an omission, not a positive act. However, the magistrate concluded his Statement of Findings by saying the following:

“86. Under the circumstances, the defendant’s behaviour (that is, carrying on taking off the arm floaties of the grandson) constituted the fact that the defendant acted recklessly of the facts and consequences that might bring about the risk. “

He clearly based his conviction on the “act” of “carrying on taking off the arm floaties of his grandson”, which was incorrect.

50.  I agree with the appellant’s submission that the only circumstance in the present case that may be considered “neglected” is that the appellant fell asleep and was unable to take care of the grandson. However, this in itself was not sufficient to constitute a charge because one must also consider whether the appellant was aware of the chance of his dozing off at the time, but he still insisted on taking the risk and thus putting the grandson at risk of drowning.

Conclusion

51.  The present case was a very unfortunate accident. No one would like to see a child drowned to death. I express my heartfelt sympathy for the appellant’s family, and I also believe that this accident will make the appellant regret his whole life and even difficult for him to face his family. However, whether he should be held criminally liable must be decided on the basis of legal principles and evidence.

52.  Based on my decision stated above, the appellant’s conviction is neither safe nor satisfactory. After reviewing all the evidence in this case by way of rehearing, I consider that there was insufficient evidence to support the appellant’s charge. Accordingly, I allow the appellant’s appeal against conviction and set aside his sentence.

53.  Finally, I would like to thank both parties for their assistance.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.