CRIMINAL CASE NO. 80 OF 2009
COURT: I do not intend to keep you in suspense and I intend therefore to announce the sentence I will pass and then give the reasons. You may be seated whilst I give the reasons.
I have decided that it is not necessary, nor appropriate, to impose a term of life imprisonment in your case. I believe the appropriate sentence is a term of imprisonment in the case of each count. The total terms will be 10 years’ imprisonment. Now, please take a seat.
On 10 September 2009, the defendant was arraigned on an amended indictment. She was charged as follows.
The 1st count statement of offence, attempted murder.
2nd count an alternative to the 1st count, causing grievous bodily harm with intent.
3rd count, manslaughter.
On the 1st count she pleaded not guilty. To the 2nd count, the alternative to the 1st count, she pleaded guilty. To the 3rd count she pleaded guilty.
The prosecution were prepared to accept those pleas in satisfaction of the indictment and a Summary of Facts was read and agreed to by the defendant. That Summary of Facts in its entirety will form part of my reasons for sentence. For the purposes of this afternoon I will refer to parts of it.
Prior to these offences, Ms Lee Mei-ling, who I’ll refer to as Ms Lee, was a pregnant lady expected to deliver of her child on 19 October 2008. Whilst Ms Lee was surfing the Internet she found a website called, “Babykingdom” in which there was a forum discussing pregnancy and child-raising. In the forum persons were offering as gifts products for newborn babies.
A person who provided the name “Minnie Tong Tong” was offering products such as baby’s beds and feeding bottles. Minnie Tong Tong was, in fact, the name used by Leung Sin‑ting, the defendant, in this forum. Ms Lee and Minnie Tong Tong exchanged contact details.
At about 11.30 am on 16 September 2008 the defendant, that is, Minnie Tong Tong contacted Ms Lee through the Internet. The defendant asked Ms Lee whether she had time to collect some children’s clothing, a cot, milk bottles and other items that day.
They agreed to meet in Fanling and from there went by taxi to the defendant’s home. Ms Lee mentioned to the defendant that her expected date of confinement was about 19 October 2008. The defendant said that her own baby would be born two days later.
Ms Lee chose two bags of baby accessories including clothes; quilts and milk bottles. The defendant said that these were gifts for her and they need not be returned. Ms Lee later walked out of the flat with the two bags of items and waited for a lift. At that time, the defendant, told Ms Lee that she had a cot and asked her to have a look to see whether it would suit her requirements.
Ms Lee and the defendant went back inside the flat and into the master bedroom. Ms Lee measured the cot and found that it was suitable. After looking at some other items Ms Lee said that she would come back and take the cot later.
Ms Lee intended to leave the flat. Then the defendant said that her back, waist and abdomen were not well. The defendant and Ms Lee sat on the sofa. At the time the defendant used an electric portable massager to massage herself. Then the defendant asked Ms Lee to massage her back and waist.
After a while the defendant said that the massage was not working. The defendant stood up and held the massager in her hand and walked about. The defendant was heard to be making sounds like “si si” and “Oh no, oh no.” She had a pained expression on her face. Ms Lee suggested calling an ambulance. The defendant appeared to call for an ambulance on her mobile telephone.
Suddenly, Ms Lee felt her right shoulder had been struck. She turned around and saw the defendant holding the massager in both hands. She apologised and said that the massager had slipped from her hands.
Ms Lee then went to the kitchen to get some water for her. They chatted, the defendant turned on the television. Ms Lee advised the defendant to contact her family members. She apparently spoke to someone on her mobile telephone. She told Ms Lee that her family members usually returned at about 7 pm and as it was about 6.45, Ms Lee decided to sit for a while with the defendant.
To distract the defendant, Ms Lee read a baby book, watched television and talked with her. The defendant said that her family members would be late because the car was out of order and Ms Lee suggested that the defendant go to the Prince of Wales Hospital by taxi.
During her stay in the flat, Ms Lee talked about the feeling of the growth of her baby in her abdomen. Whilst chatting, Ms Lee’s foetus kicked her. She asked the defendant to stroke her abdomen and feel her abdomen. Ms Lee also mentioned that the foetus was a boy.
The defendant talked about the physiological effects of pregnancy such as breast enlargement, waist shoulder and abdominal pain. She kept walking around the flat with the massager murmuring “painful, painful”. It was, by this time about 7.30 pm. Ms Lee had resolved to stay together with the defendant until an ambulance or the family members had arrived.
Suddenly the defendant stood in front of Ms Lee and shouted, “I was scared”. Then their bodies came into contact with one another. Ms Lee tried to comfort the defendant but it was at this point in time that the defendant, using the cord from the portable electric massaging device attempted to strangle Ms Lee.
She placed the wire of this device around Ms Lee’s neck and pulled it tight. They struggled and finally, Ms Lee lost consciousness.
When she awoke she was under a cabinet in the kitchen and she had a pain in her abdomen. In the interim, the defendant’s husband had arrived at the flat. He called an ambulance and when those ambulance officers arrived, the husband directed them to the lower cabinet beneath the stove in the kitchen where Ms Lee was lying with a black dress pulled up to her waist.
The ambulance officer Ms LEE was breathing and had a pulse. She had a little blood and saliva on her mouth. Her eyes were swollen and there was a light red mark on her neck about 5 to 6 inches long. Further, he saw that she had a cut wound of some 4 to 5 inches vertically below the navel which had been administered with a sharp instrument.
He described her abdomen as “being cut open”. He could see yellow fat and there was a little blood but the internal organs were not then visible. The ambulance officer attended to this wound and gave Ms Lee oxygen. She was taken to an ambulance.
As it transpires the defendant was also taken in the same ambulance. Asked by one of the ambulance officers how it was that Ms Lee suffered her injuries, the defendant told him that she had cut herself with a knife which she had been using to cut cookies.
The police investigation revealed that the defendant had, for several months prior to the attack upon Ms Lee, maintained that she was, herself, pregnant.
The police investigation also revealed a number of things about her behaviour prior to this day. She had been working at an office in Kwai Chung. A Ms Ho Wing-shan was one of her colleagues. In October 2007, Ho reported to the company and to her colleagues that she was pregnant. The defendant congratulated her and said that she herself was pregnant in early December. The defendant often discussed with Ms Ho about taking care of her baby and child-rearing. In January 2008, the defendant said that she also had a male foetus. Ho told the defendant that she had a female foetus. Ho did not suspect anything unusual about the defendant’s pregnancy as her abdomen, by this time, appeared to be large.
On 4 October 2007 and 4 February 2008, ultrasound checking was performed by doctors on Ho’s baby. On each occasion Ho was given the ultrasound images on a compact disk for her retention and viewing. Ho took those disks to work and showed the images to the defendant and to others of her colleagues. The defendant, had, having observed these returned the disks back to Ho.
On 15 April 2008, staff at Fotomax Metroplaza received an order from the defendant to develop photographs. The defendant inserted the memory stick into a self-service photo ordering station and chose photographs that she wanted to develop. All of the photographs chosen were baby ultasonograms. The defendant paid by credit card and an invoice was issued to her.
At some stage the defendant had told colleagues at the office that her expected date for confinement was mid-September 2008. On 5 June 2008, the defendant sent an email to her manager that in early September that year she would be on maternity leave and requested that the company arrange her maternity leave for a period from two weeks before the expected date of confinement to eight weeks after the actual date of confinement.
On 26 August 2008, the manager of the administration department asked the defendant to provide a leave certificate. The defendant said that she would have a follow-up check on the 2nd or 4th of September and would hand over the certificate to the company. She asked to proceed on maternity leave from 30 August.
Eventually the defendant provided to the company a copy of a pregnancy test certificate from a Dr Wong Chi-kwong, who later confirmed the certificate was issued by him on 12 January 2008. The certificate indicated that the defendant was pregnant on 8 December 2007 and that her expected date of confinement was 13 September of 2008.
Returning to the attack upon Ms Lee. The defendant was interviewed by the police over a number of days. She gave various accounts of the events of that day. Those accounts were, in part, contradictory. Eventually however she told the police that she had strangled Ms Lee and in so doing rendered her unconscious. She told the police that she had “carelessly used the wire of the massaging machine at home to put pressure on her neck.”
She told the police that she gave Ms Lee a knife to cut cookies. Ms Lee’s body suddenly suffered from cramp and it was Ms Lee herself who stabbed her own abdomen with the knife. This was one of the accounts that she had given to the police.
In a video recorded interview, she said amongst other things, that Ms Lee had continually asked the defendant to touch her belly. She said that as she had had a miscarriage some one to two weeks prior to this, she believed that this had released unhappy feelings and this had hurt her. The defendant said that she felt that “Ms Lee was showing off her happiness.”
The defendant said “that it was so easy for Ms Lee to have a home and a baby whereas the defendant came from an unhappy family and background and it was difficult for her to get what she deserved, even though she worked wholeheartedly.”
The defendant said of her reaction to Ms Lee’s happiness and the request for her to touch her belly, “My palms started to sweat. My legs started to become weak. I started to shiver all over.” Ms Lee continued to ask her to touch her belly. The defendant did not know what she was doing and said “maybe she strangled and hurt Ms Lee.” When the defendant saw the colour of her face change, she said she wanted to let go but she had no control over her hands and legs and as a consequence Ms Lee fell on to the floor. She told the police that she picked up a knife and saw Ms Lee having cramps in her arms and legs and starting to become stiff. She said she helped Ms Lee to the kitchen and gave her a glass of water.
In this account she recounted how it was that her husband came home and rang the doorbell. She told the police that she tried to hide Ms Lee but failed. The matter had been disclosed. She told her husband that Ms Lee had hurt herself and it was her husband who telephoned the police.
Eventually, in another account given over this period, the defendant said that when Ms Lee was unconscious after having been strangled, she had wanted to touch Ms Lee’s belly. She told the police that she did this for one or two minutes and she said, at that time, that she had the compulsion to take the baby out. She said she wanted to do this “out of jealousy.”
The defendant said that she “wanted him to be my baby” but afterwards she said, “The thought just flashed in my mind. I did not have that thought later.” In another account the defendant said that Ms Lee had repeatedly demonstrated to her how happy she was. She, the defendant, thought it was impossible for her. The defendant said that she did not know why but suddenly she had an evil idea and wanted to see the baby. She got the glove and knife and made a cut. Then she immediately thought of what she was doing and threw everything away.
The defendant, in this account, said that she did think of taking the baby, but “After I thought it over carefully, it was no use and he was not the baby of her and her husband.” She did say in this account, that the location below the belly button was the place which was cut by her and that she had seen caesarean section operations being performed on television.
She also said, in this account, that when she made the cut she saw that Ms Lee was still alive and could hear her breathing.
Both Ms Lee and the defendant were examined by the government pathologist. In the case of the defendant he found various bruises, abrasions and tenderness on parts of her body which were consistent with her having been involved in a fierce struggle. One of the critical observations he did make in addition to the above was that she was not pregnant.
In the Summary of Facts the injuries sustained by Ms Lee are set out in detail. These will be included in my reasons for sentence but they clearly indicated ligature strangulation of the neck and an abdominal laceration, as earlier described.
Ms Lee was, taken to the hospital by ambulance. She was then in a critical condition by reason of her injuries. She was placed in intensive care. Given the advanced state of her pregnancy, the doctors who were treating her decided that an emergency caesarean section was needed to deliver the baby.
The baby was delivered and resuscitated immediately after delivery and transferred, to the neonatal intensive care unit. That baby was named Siu Tsz-yeung, who is the person named in the 3rd count. Ms Lee remained in intensive care for some four days and was transferred out on 20 September.
The forensic pathologist’s examination of Ms Lee, as I have earlier indicated, was that she had been strangled and that the injuries to her abdomen were serious and potentially fatal. Further the baby boy sadly suffered from irreversible brain damage as a direct consequence of the pre-natal hypotension of his mother. This was, in direct consequence of the asphyxia and the abdominal wound. The Strangulation of Ms Lee and the wound to her abdomen had direct and ultimate impact on the viability of the child she was carrying.
It was some six months later that the child succumbed to a number of complications which were directly referable to that state. He died ultimately on 17 March 2009.
During the days after the attack upon Ms Lee, the police investigation revealed a number of matters, some of which I have already averted to. In addition, however, they investigated her computer. The laptop was examined and from whatever trace that remained, it was evident that searches on the Internet had been performed with the following words on the following days.
On 4 September 2008: “missing person”.
5 September 2008: “wish to get pregnant...but very difficult to get pregnant.”
6 September 2008: “caesarean”; “method of caesarean”; “advantages and disadvantages of caesarean section”; “under what conditions will a caesarean section be performed?”; “delivery at home”; “a woman with expired 2-way permit had a delivery at home in Tuen Mun”; “certificate proving birth at the hospital”; “a girl had a delivery at home and was involved in throwing the baby down to the street”; “delivery stitch”; “course of caesarean”; “the course that Theobe underwent caesarean on the night of 97/4/7 - very gory.”
Another search on 7 September 2008 was of the following subjects: “a question about missing person”; “surely stitching will follow delivery”; “course of delivery”; “hydroxybutyrate”; “delivery scissors”; “cut the lower (part during) giving birth to a baby.”
On 8 September the following searches were made: “make (somebody) fall into a coma”; “coma causing”; “I wish to know whether or not smelling a lot of thinner (...) health”; “coma caused by thinner”; “coma”; “turpentine”; “collapse”; “chloroform.” And various other searches of similar nature.
On 16 September the following was searched: “cause coma”; “bash head”; “could bashing one’s head really cause one to fall into a coma”; “has my girlfriend a miscarriage”; “make a person fall into a coma”; “what medicine makes a person fall into a coma”; “the size of molecule of chloroform, alcohol and paraffin.” Another search was “chloroform.”
Another search was: “if a person who is sleeping soundly happens to smell chloroform will he/she fall into a coma?” And finally: “where can chloroform be bought in the New Territories? I need the detail.”
Returning now to 10 September 2009 and the pleas of guilty entered by the defendant and the Summary of Facts which was then read. On that day, I adjourned the further hearing of sentencing of the defendant to 27 October and requested that psychiatric and psychologist reports be prepared. I ordered that those reports be filed on or before 21 October.
In discussions with counsel both for the prosecution and the defendant, I indicated that I was concerned to determine whether or not the defendant was a suitable person for a hospital order, pursuant to section 45 of the Mental Health Ordinance.
On 17 September 2009, which was prior to the return date and subsequent to the pleas of guilty and the reading of the Summary of Facts, Messrs Foo & Li, solicitors, filed on behalf of the defendant, a psychiatric report dated 27 July 2009. That report had been prepared by Professor Dominic Lee Fat-chi.
Pursuant to my orders, reports by Dr S H Lui, from the Siu Lam Psychiatric Centre dated 15 October 2009, Dr W K Choi from the Siu Lam Psychiatric Centre, dated 19 October 2009 and Ms Michelle W S Yu, Clinical psychologist from the Correctional Services Department dated 20 October 2009 were filed. It is necessary, in the course of this sentencing, to refer in detail to those reports.
The first of which is that of Dr S H Lui, dated 15 October. Dr Lui had interviewed the defendant as I had requested. He had seen her previously in his capacity at the Siu Lam Psychiatric Centre some time shortly after the defendant had been arrested.
This is what he said in his report and I quote paragraph 2:
“Leung says of the index charges, she was overwhelmed by an intense feeling of jealousy when invited by the victim, in her late pregnancy, to stroke her tummy. The baby inside was said to be moving. Leung claims that she was actually shaking with anguish after she touched the other woman for the third time. She admits to have crossed the electric cord behind the woman’s neck. Claims the massager happened to be in her hand. Asked about the injury she inflicted on the victim’s abdomen, Leung says it was because the woman hit her while struggling. She makes it a point that it was only a very light cut. The knife again happened to be on a tray nearby.”
Paragraph 3:
“Leung insists the violence was not planned. Asked about the Internet searches she had made shortly before the said offences, she explained that she had thought she needed chloroform as a glue to make a plastic box as a present to her husband for him to put models in while the rest of the searches, “method of caesarean”, “causing coma” etc, she dismisses as just out of curiosity. She adds that she had invited other pregnant women to her home before the victim and all she wanted was ostensibly to give away the baby things she had. She reports normal everyday functioning in the period leading up to the incident.”
To paragraph 4 Dr Lui reported this:
“Leung was born in Hong Kong. Parents divorced. Brought up by her paternal grandparents along with aunts and uncles. She remembers she had always felt jealous towards other children who appeared well loved. She acknowledged that aged 5 she had once held a knife in anger on seeing a new born baby being held lovingly in her grandparent’s hands. Leung says she had had an induced abortion as a schoolgirl in her late teens. She married at 21. Suffered a miscarriage the next year and like this time, she had pretended to everyone that she was still expecting.”
Continuing and I quote:
“The latest examination here, 21 September and 12 October 2009, found Leung spontaneous, articulate of stable mood and not showing signs of mental illness. She recalled after her said abortion and miscarriages, she had, for some time, seemed to hear a baby cry at night. She said she had not heard such baby cry now for eight months. She reported no suicidal thoughts and considered herself an optimist. She told of her previous self-harm behaviour such as cutting her arm and about her frustration and not trying to kill herself. As to her marriage, she said she and her husband had agreed rightly so to leave their options open.”
And this was Dr Lui’s opinion:
“Leung may be described as having a disturbed personality marked by jealousy for which she can be calculating, dishonest and going to extremes to get what she wanted. Since character traits are generally enduring, Leung will pose some risk to the community but probably only in the context of having children. While she may have encountered adjustment difficulties following her last miscarriage and experience mood and other symptoms, such as insomnia, she is currently well and without complaints. There is no indication for psychiatric treatment or hospital order.”
Dr Choi’s report dated 19 October describes in part a similar background. At paragraph 4 he says this:
“Leung strongly denied that her acts in the offences were planned beforehand asserting that she was overwhelmed and confused by the moment of extreme sadness at that time after being repeatedly invited by the victim to stroke on the victim’s abdomen. She admitted to have strangulated the victim and the victim also kicked her too. She felt confused and then picked up a knife nearby on a small table near the sofa in the front of her and then stabbed on to the victim’s abdomen. She said she didn’t actually select where to cut. She denied intentions to take the baby out; she said she couldn’t see any blood coming out. She saw the victim lying on the floor and she was still conscious. The victim asked for water and she then brought her to the kitchen to get water. Just about that time, her husband came back and she was frightened. She pushed the victim into the cupboard.
Regarding the words she had searched in her computer, she casually said that she only searched them out of curiosity. For her searching on the details of chloroform she said that her husband loved to display his models and she wanted to make a plastic showcase for him as his birthday gift. She said she learnt from a man that chloroform is required to stick plastic plates together and therefore she wanted to ask where she could buy chloroform.”
His opinion was this:
“Leung does not currently suffer from any active psychiatric symptoms. Psychiatric treatment is not indicated. Personality problems are prominent and, up until now, she still keeps on giving plausible explanations. Her accounts on what has happened have changed many times. They also seem to be carefully tailored according to her needs at different times and situations. Given the enduring nature of her personality problems, she will continuously pose risk to the community especially when her intra-psychic conflicts on her yearning for a child cannot be resolved.”
Ms Michelle W S Yu was a clinical psychologist attached to the Correctional Services Department. Had, on the 22nd and 23rd of September of last year, administered to the defendant what are described as “a battery of psychological tests” to assess her intellectual functioning and her personality.
In her interview with the defendant which formed part of her assessment the defendant told her that:
“She was the only child in the family. Her mother gave birth to her at 16 years of age. She recalled that her mother had spent much time on mah-jong and neglected her. Her father was often absent at home. As a child she witnessed her parents having a lot of conflicts. She vividly recalled that when she was five years old, her parents talked about divorce and they did not want to live with her. Since then, she had never seen her mother again.
The major caretakers were her paternal grandparents. Although they treated her well she had the feeling she was a burden and an unwanted child. Allegedly she reacted strongly whenever her grandmother hugged the younger cousins because she felt that the cousins had snatched away all the love from the grandmother. She seldom saw her father who remarried some years later. Although the father was able to satisfy her material needs, she did not feel happy at all.”
Paragraph 5:
“Ms Leung wanted to have her own family since very young. Reportedly she had an unplanned pregnancy with her ex-boyfriend at 18 years of age but he eventually deserted her for her best friend. She had an abortion and this incident was unknown to her present husband. She recalled the abortion as a horrible experience and she harboured guilt feelings for harming her foetus. As alleged, she occasionally heard baby cries at night and this phenomenon lasted until early 2004 when she again became pregnant.
At 21 years old, Ms Leung married her present husband after three months of dating. She was pregnant around early 2004. She miscarried two months later. She said that she covered up her first miscarriage until her husband discovered it some time later. She explained that she did not tell her husband the truth because he was preoccupied by playing computer games. She also felt upset and blamed herself for losing the baby. As reported, her mother-in-law fainted from hearing the news and her husband had spent much time taking care of his mother leaving her alone at night. The baby cry returned. She said that her mother-in-law, who wanted to have a grandson very much, blamed her for the miscarriage. She felt stress yet she was able to recognise that her paternal grandparents had given solace to her.
In the following years she had tried various means to increase the chance for future pregnancy. She had consulted Chinese Medical Practitioners and Gynaecologists. Ms Leung said that she was eventually pregnant in early 2008 and she’d got a pregnancy test certificate from her doctor. Her family members were very happy about this piece of news. She also informed her colleagues about it. Yet, in around February 2008, she found again that she had miscarried. She had not undergone a further medical check-up because she wanted to avoid hearing the doctor pronounce the death of the unborn child.
She did not tell anyone about her miscarriage and pretended that she was still expecting. She said that it was the only solution she could think of. She worried that her family members would blame her for her miscarriage. She shared that she wanted her husband to help her out but he spent much time on computer games. She felt that she was not important to him. She said she felt hurt and lonely in the face of her miscarriage.”
Later on in the report she described the defendant saying she had visited a forum discussing child bearing and child-raising and that she had done this even after she miscarried. When she was in her maternity leave in early September 2008, she began to post messages in the forum saying that she wanted to give away some baby stuff. She explained to the psychologist - that once she gave away all the baby stuff she would be determined to let her husband know about her miscarriage. Three to four expecting mothers had approached her. She recounted that prior to this offence a woman came to her flat and collected some baby stuff. She reported having no intention to harm that expecting mother and her foetus.
The defendant further went on to tell the psychologist other matters and I am now reading from paragraph 11.
“This was the first time that Ms Leung was convicted of a criminal offence. She said that she had already pleaded for the index offence. As alleged on the material day the victim went to her home to collect some baby stuff. She recalled having told the victim that she had a miscarriage. Then the victim asked Ms Leung to touch her abdomen because it would bring some luck to her. Ms Leung said that she withdrew her hands but the victim insisted. Reportedly Ms Leung felt annoyed and got a headache.
Ms Leung wanted the victim to stop talking and she strangled the victim with the cord of a hand-held massage machine. During their struggle, Ms Leung saw a knife on the table and used it to slash the victim’s abdomen once. She claimed that the victim’s abdomen was the most noticeable part of her body. She denied having the intention to hurt the victim, to kill her or to take out her baby. She was not sure if she did it out of anger.
She said that later she took the victim into the kitchen to get some water. She admitted pushing the victim inside the kitchen cabinet when her husband went home because she did not want him to see what had happened. She recalled that at that moment she wondered why she had to suffer and why she could not get the things that should belong to her. She also wondered why the victim had to tell her something so joyous when she felt so painful.”
Regarding the police investigation into her computer, Ms Leung told the psychologist that her computer search history had no relevance to the index offence. She claimed that she searched for chloroform because she wanted a PVC display box for her husband and she knew that chloroform could glue PVC materials. The subsequent searches were said to be originated from this search history. She reported that she wanted to know her mother’s whereabouts, thus she watched an online television programme about missing persons. Besides she said that she was a frequenter to the forum discussing child bearing so she wanted to know more about caesarean section.
Under the heading, “Clinical Impression” the psychologist says as follows:
“The current assessment results reveal that Ms Leung is a sensitive and dependant person who yearns for love and external approval. She fears abandonment. Such a personality profile seems to originate from her unhappy childhood. Bringing up in a broken family with little parental love and nurturance she feels insecure and demands constant emotional support from her significant others. As a child she was envious of the love that other children had got. Although she was loved by her paternal grandparents she could not get rid of a strong feeling that she was an unwanted child.
In her childhood she strived to be a good child in order to solicit praise and recognition from others. In her late teens she was deserted by her ex-boyfriend and betrayed by a close friend. She also aborted a baby. Such sad events possibly further deepened her sense of victimisation and increased her anxiety about losing important persons in her life.
With such a background, Ms Leung got married at an early age intending to build a happy and warm family of her own. She also hoped to be a good mother and to develop close bonding which she failed to get when she was a child.
Unfortunately she appeared to have experienced escalating marital problems in the past few years. She might have been vigilant to signs of rejection, reactive to criticism and dependent on her husband.
According to her husband he felt stressed and became more distant to her. Possibly his behaviour might set off a vicious cycle which increased her anxiety of losing his affection and further strained the marital relationship. Worse still she had almost no friend to share her negative feelings with.
In 2004 she had a miscarriage and she concealed it from her family members. On the other hand she seems to have had difficulty to resolve this loss and harbours much guilt feelings. With flimsy coping ability, deception and excuses are possibly used as a defence to diminish her personal failings and to avoid facing the perceived harsh reality she has been sensitive to and resentful about other people’s blame on her.”
Turning to paragraph 18 of that report it reads as follows:
“Regarding the indexed offence, Ms Leung denied that it was a pre-planned act. She also denied having any malicious intention in her behaviour. It has been difficult to ascertain the motive behind her offending behaviour at this juncture. Nevertheless it is believed that her unresolved grief at her miscarriage, jealousy towards the victim, strong sense of self-pity and her poor coping ability are some contributing factors.
Clinically Ms Leung is not suffering from any active mental illness at present. She has led a law abiding life all along and she is not anti-social. Her propensity to general violent behaviour is impressed not high. As delineated above, she has deep seated personality difficulties and weak coping ability which have interfered her adaptive functioning especially her inter-personal and intimate relationship.
If such problems persist and her coping ability remains flimsy, it is believed that she will still have the risk to react to life’s crises and emotional difficulties in an abhorrent and impulsive manner. At present she shows some remorse for her offence and has some insight into her psychological difficulties. She has expressed willingness to receive psychological intervention.”
Ms Yu’s conclusions and recommendations were as follows:
“The current assessment results reveal that Ms Leung is not suffering from any active mental illness at present. She’s not anti-social and her propensity to general violent behaviour is not high. She is a sensitive and dependent person who yearns for love and external approval. She fears abandonment.
Throughout her life she has harboured much resentment about her misfortune. All along she has deep seated personality difficulties and weak coping ability which have interfered with her adaptive functioning, especially her inter-personal and intimate relationships. She suffered from a miscarriage prior to the index offence. It is believed that her unresolved grief of her miscarriage, jealousy towards the victim, strong sense of self pity and poor coping ability are some contributing factors to the index offence.
If her deep seated personality problems persist and her coping ability remains flimsy, it is believed that she will still have the risk to react to her life’s crises and emotional difficulties in an abhorrent and impulsive manner.
In view of the above, I find that providing her with psychological treatment targeting her grief at the repeated loss of her unborn children, deep seated personality difficulty and weak coping abilities is important to her rehabilitation. She shows some remorse for her offence and she has shown adequate motivation for psychological intervention.”
Having considered these reports and that of Professor Lee, which I will return to shortly, I considered that I needed further information before proceeding to sentence the defendant. With the agreement of the defendant’s counsel and with no objection from the prosecution, I adjourned the further hearing to 25 November. I directed that further reports be prepared and that they address specifically the risk of the defendant re-offending and the nature and the extent of possible treatment.
I was also concerned that the diagnosis contained in the report of Professor Lee appeared to be in conflict with that of the two Government psychiatrists. In the report that I have referred to earlier, Professor Lee said as follows - and I am reading from paragraph 1.1:
“I was instructed by Messrs Foo & Li, solicitors, to conduct an examination on Ms Leung Sin-ting in relation to an alleged offence of attempted murder and grievous bodily harm. Instructions were received in a letter dated 8 July 2007. I visited the accused for one and a half hours at the Tai Lam Centre for Women.”
At paragraph 7 he provided the following diagnosis:
“Based on my assessment, as well as the history provided by the accused, I am of the opinion that the accused suffered from major depressive disorder which was severe with psychotic features. She was affected by the major depressive disorder at the time of the act.”
At paragraph 7.3 he said:
“The accused’s major depressive disorder falls at the most severe end of the spectrum. She had the full range of depressive symptoms as well as suicidal ideations, self laceration, auditory hallucinations. Auditory hallucinations, like other psychotic symptoms signify a loss of contact with reality. Psychotic symptoms generally reflect that the depression is severe.”
He said:
“The major depressive disorder was well set-in before the incident. It probably began at around the time when the accused had the termination of pregnancy in 2001. The depression ran a fluctuating course. It deteriorated after the miscarriage, the last one being approximately a few months prior to the incident. At the material time the depression was so severe that the accused suffered from suicidal ideas.”
He went on to say this:
“The diagnosis of a major depressive disorder is based on the symptoms reported by the patient. Thus far no investigation is available to confirm the diagnosis.”
At paragraph 9.4 he said:
“Major depressive disorder is a treatable mental condition. In an uncomplicated case remission could be achieved in about three months. After the remission six months of consolidation therapy is often required. It would be in the accused’s health benefit to receive treatment at the Siu Lam Psychiatric Centre rather than at a prison.”
This report was prepared before the defendant agreed the admitted facts, which objectively demonstrate that there may have been some degree of premeditation in the defendant’s acts of that day.
That possibility is not addressed in this report and diagnosis, nor is the relationship between her depression and her conduct. I was concerned to know the response of the other psychiatrist to this diagnosis and Professor Lee’s recommendation. I note that there has been no follow-up to this report and no supplementary report has been prepared by Professor Lee on the defendant’s behalf.
Mr McGowan does not now seek to rely upon his diagnosis, nor his recommendations, beyond the fact that the other psychiatrists have noted that she may have been suffering from a degree of depression at the time of the offences. I consider this to be a proper course for Mr McGowan to adopt.
Had the defendant been suffering from a psychiatric condition, as Professor Lee has suggested, I have no doubt that the other three psychiatrists who have provided reports in this matter would have detected this. I therefore propose to disregard Professor Lee’s conclusions and his recommendations, other than to acknowledge, as the other psychiatrists have, that she was suffering from a degree of depression.
Consequent upon my request for further information further reports were obtained. Dr S H Lui filed a short supplemental report on 23 November 2009. On the subject of the likelihood of the defendant re-offending he said this, paragraph 2:
“The chances of Leung re-offending and her going to such extremes again may be not very high should she learn from experience and if so recommended improve upon the guidance of a clinical psychologist in prison. As character traits are enduring and her psychological disturbance is severe that will take time. Future risks will be in the context of relationships and of having children.”
Paragraph 3:
“While Leung suffered personality difficulties, adjustment problems and mood fluctuations mostly in relation to family and child bearing, she had remained well at work and in daily functioning. Worries about the sentencing apart, she currently exhibits no sign of depressive illness and there is no indication for psychiatric treatment. At the time of the index offences, Leung faced exposure of her deception as her supposed pregnancy neared term. She was of a calculating nature and the notion of obtaining a baby from someone else by whatever means probably had been on her mind. The eventual act of violence could have been driven also by jealousy and other emotions during her encounter with the victim.”
Dr W K Choi, in a supplementary report dated 23 November and in direct response to my request for additional assistance as to the likelihood of the defendant re-offending said this and I refer to paragraph 3:
“Upon further clarification on the circumstances leading to the present offences, Leung now admits that she might have thought about taking the baby out from the victim’s tummy at that time but such thought was only short-lasting because she knew it was wrong to do so. She said she had thought about different ways to obtain a child, including adopting one from China but she strongly denied that her acts in the offences were planned beforehand. Leung emphasised that she was very emotional and confused at that time because she perceived that the victim was showing off her happiness to her and she thought making her most unbearable at that time was that: ‘If my baby were still alive it should be of the same size and maturity as hers.’”
Said Dr Choi.
“...having a thought of obtaining a baby by whatever means probably had been in her mind for some time prior to the occurrence of the present offences and the violent acts were also likely driven by the complicated and intense emotions during her encounter with the victim.”
He said, paragraph 5:
“As I have mentioned in my last report, given her enduring personality problems her risk of re-offending is there especially if her intra-psychic conflicts on yearning for a child cannot be resolved. The risk after release cannot be accurately predicted at this juncture as it will fluctuate and change and be influenced by a lot of environmental and psychological factors and her progress. For example whether she can learn from the adverse experiences and whether she will have the insight and appropriate mindset to benefit from psychological treatment and whether she can handle her interpersonal relationship in a more mature way in the future.”
Paragraph 7 he said:
“I agree that Leung could have been suffering from some depressive symptoms after being forced to accept the dismay of repeated miscarriages as well as the stresses coming from her deliberate attempts of hiding the truth from her family. However, the severity of the symptoms should not be very serious. Judging from her husband’s report of her behaviour and her self report on her job performance during the period of time the symptoms had also been gradually resolved after the lie was uncovered and she was removed from the stress enduring environment. She does not suffer from any active psychiatric disorder now thus psychiatric treatment is not necessary. However, she should be continuously seen by clinical psychologists for long-term psychotherapy.”
The supplementary report by the clinical psychologist, Ms Yu contains the following relevant observations. She said this:
“I saw her for re-assessment in Siu Lam Psychiatric Centre on 4 November 2009. When preparing the present report the HCR/20 a risk assessment instrument for violence was utilised to facilitate the evaluation of her re-offending risk. Besides Ms Vivian Mak, clinical psychologist of the Tai Lam Centre for Women was contacted for information about the psychological intervention Ms Leung had received during her remand period.”
Under the heading, “The gravity, nature and degree of the risks of re-offending in some manner or form after serving a custodial term of imprisonment or otherwise and being released therefrom” the psychologist said:
“As revealed by the HCR/20 Ms Leung has several historical factors that may place her at higher risk for future violence. These include her problematic marital relationship, early childhood maladjustment and presence of personality difficulties. She also shows some signs of impulsivity and emotional instability.
There are several significant risk factors that she does not have which include a history of serious aggressive behaviour since early adolescence, anti-social personality and substance abuse problems.
There are some protective factors that may lower her risk of re-offending including her insight into her own emotional difficulties, her willingness to receive psychological services and the lack of active symptoms of major mental illness at present.”
At paragraph 3 she said this:
“Based on the results of the HCR/20 as well as the specific risk and protective factors that have been considered, it is deemed that Ms Leung’s propensity to general violence behaviour is not high. However, it is difficult to have a precise prediction of the potential risk for violence that she will pose the community after serving a custodial term of imprisonment. It is because whether a person will re-offend is likely to be affected by a variety of factors, including those mentioned in the above paragraph and also some situational factors that cannot be known ahead of time. In her case her marital relationship and her response to psychological intervention are some examples of unforeseeable situational factors.
At present, I am of the opinion that if her personality difficulties persist and her coping ability remains weak she will have more difficulties adjusting to future circumstances. In such a way she will have the risk to react to her life crises including child bearing issues and emotional difficulties in an abhorrent and impulsive manner. That reads, “She will have to risk.”
Her conclusion is contained in paragraph 10 of this report.
“Given that Ms Leung’s personality difficulties are rather entrenched, they are expected to be resistant to change. She is thus less likely to derive substantial benefits from short-term psychotherapy.
According to Ms Vivian Mak, clinical psychologist at the Tai Lam Centre for Women, Ms Leung had received psychological intervention for about 10 months between December 2008 and September 2009 during her remand period.
Her self harm risk, unhappy past history, marital relationship and grief at the loss of her baby were discussed during these sessions. Ms Leung was impressed to be motivated to receive psychological services, yet her condition was noted to be fluctuating and much hinged on her relationship with her husband.
In view of her previous treatment response in Tai Lam Centre for Women, it is deemed that extended psychological intervention is necessary for Ms Leung to obtain and maintain the possible positive change. At this juncture it is difficult to determine how much therapy is adequate as her treatment response will be a function of a number of factors including the emergence of potential triggers that could possibly lead to life crises and existent exacerbation.”
Given the complexity of the issues that are raised in the various reports, and having discussed the matter with counsel, and having accepted and appreciated that at least a half a day was required for the hearing of the mitigation and the sentencing process in this matter, I adjourned the hearing of 25 November until 28 January this year with half day reserved. This was to both accommodate counsel’s diaries and my own. However, the matter was unable to proceed on that day as the defendant’s solicitors had sought and had obtained another psychiatric report. The matter was mentioned on 3 February and the hearing date for today was fixed.
On 4 March 2010 the report of Dr Chan Kwok-tung psychiatrist, was filed on behalf of the defendant. Dr Chan was also provided with a large amount of material. It is noteworthy that he was also provided with the admitted facts and the various reports of Doctors Lui, Choi and Ms Yu, the psychologist.
Dr Chan’s report includes an extensive account of the background to the offences.
His diagnosis; was “Ms Leung had an adjustment disorder. It was in the form of pathological grief reaction towards the repeated miscarriages. It was presented with sustained depressed emotion and some behavioural disturbances.
Adjustment disorder is a reactive state arising in the period of adaptation to a significant life change or a stressful life event. The manifestations vary and include depressed mood, anxiety or worry, a feeling of inability to cope, plan ahead or continue in the present situation as well as some degree of disability in the performance of daily routine.
It is possible that Ms Leung had a mild adjustment disorder already after her first miscarriage in 2004 and three to four years later, when hit by the second miscarriage, she adjusted to it even worse because the only hope for her to regain the husband and his parent’s approval or acceptance had lost.
She was obviously unable to cope with the miscarriage. She had a strong denial for the loss at first, thus she concealed the fact of miscarriage by pretending as long as she was not discovered.
She knew she will be discovered eventually but she didn’t know how to cope otherwise. It is not uncommon for people in deep grief to experience transient hallucination especially when the emotion is intense.
Individual predisposition or vulnerability plays an important role in the risk of occurrence and the shaping of the manifestations of adjustment disorders.
I agree with Ms Michelle Yu, the clinical psychologist of the Correctional Services Department in her report dated 20 October 2009 saying that she has deep seated personality difficulties and weak coping ability which have interfered with her adaptive functioning.”
He said:
“She has a sensitive personality. She cares about people; cares about how other people think of her or accept her. She is sensitive because she has a low self esteem which resulted from her broken family and unhappy childhood. She does not have a good sense of security or trust of people because she said she has been deceived by the people she trusted the most, including her husband - ‘He said he will look after me after our marriage but he didn’t.’”
And.
“She avoids being hurt again by avoiding intimate relationships. Her coping ability is extremely weak. The most frequently used defence mechanism by her is denial; by covering up problems and by delaying the consequences. She said she can’t afford to make mistakes because she was feared of catastrophic consequences but it seems that she keeps making mistakes for major decisions.”
Of her current mental state he said this:
“She does not have an active mental illness at the current stage. Her personality difficulties can be enduring, personality difficulties or disorders are hardly curable but that stress, coping skills and habits of thinking can be improved with long-term psychological treatment.”
He made the following comments on the Internet searches to which I have already averted.
“She said she doesn’t know why she searched for those words on the Internet except for chloroform. I find it difficult to believe. I don’t think she has a severe psychotic illness or an epileptic condition to make her unaware of what she was doing.
It is possible that she searched for those words under a deep subconscious need to have a baby but it appears equally possible that she searched those words deliberately to plan a series of actions.
If the latter is the case I will find it quite extreme or even bizarre for a person who had received adequate level of education, though the bizarreness could be partially explained by her social isolation and the strong desperate emotions at the time of the revelation of her lies was close.”
He said this as to the mental state at the time of the offence:
“As the date for the expected delivery was close, she might have become more anxious, feared, depressed and desperate. Her emotion was further stimulated by the victim because the latter had forced her to admit the loss of the baby.
The victim’s friendly gestures had been misinterpreted by the defendant as humiliation and showing off. I believe she had carried the series of acts under mixed and strong emotions which had probably made her a bit confused as well, and yet it was not severe enough to impair her rational judgment about her acts were right or wrong.”
He made some comments on the Government doctor’s reports at paragraph 38 and 39 of his report:
“Of the observation by Dr W K Choi that ‘Personality problems are prominent and up until now she still keeps on giving plausible explanations. Her accounts on what has happened has changed many times and they also seem to be carefully tailored according to her needs at different times and situations.’”
Dr Chan said:
“It appeared that the client’s best or maybe only way of coping is to deny and delay consequences, just like she pretended the pregnancy, or she pushed the victim’s body into the cupboard. She has a tendency to keep covering until it is revealed.
Apart from the possibility of deliberate lying, it can be also an unconscious habit of handling all of her difficult situations. It is in her personality.”
Of the report of Dr S H Lui’s observations that, ‘Since character traits are generally enduring Leung will pose some risk to the community but probably only in the context of having children.’”
Dr Chan said this:
“I agree that Ms Leung has enduring problems in her personality therefore she needs long-term psychological therapy. Until she has shown significant improvement in social functioning and stress coping she may still have risks to herself as well as others especially when being pushed to her emotional or coping limits, thus not just only in the context of having children.”
As to the risk of re-offending, Dr Chan said:
“I believe that the index offences were made under the context of a complex interplay of the defendant’s past experience; her personality difficulties, her relationship with her husband, her in-laws and some situational factors. Thus to predict the risk of re-offending of the same group of offences will be an over-simplified attempt. However, as I have mentioned earlier, that until she has shown significant improvement in social functioning and stress coping, she may still have risks of damage to herself as well as others, especially when being pushed to her emotional or coping limits. The degree of risk can be moderate to high depending on what kind of impasse she has.”
Like all of the others, he took the view that long-term psychological therapy was the mainstay of her treatment going forward. He expected that this psychological therapy would continue for the whole of her adult life. Her mental status would need to be regularly and carefully monitored.
During the course of the various hearings in this matter, I have, at the outset, indicated to the defendant’s counsel, Mr McGowan, that I was concerned as to the long-term risk that the defendant posed to society. Both of the offences to which she has pleaded guilty have maximum penalties of life imprisonment.
I also indicated that, given the circumstances of the commission of these offences, taken together with the admitted facts and the ongoing risks resulting from the defendant’s diagnosed condition, namely that her adjustment disorder, is a condition not amenable to treatment by way of a hospital order, I indicated that one of the sentencing considerations open to me was the possibility of imposing a discretionary life term of imprisonment.
It is by reason of that indication that I have been greatly assisted by the material that has been placed before me by Mr McGowan and in the various reports. There can be, in my mind, no doubt, that the first of the three conditions for the imposition of a discretionary life term of imprisonment as laid down in R v Hodgson which is reported in 52 Criminal Appeal Reports 113 at 114, is established in the instant case.
That condition is this:
“Where the offence or offences were, in themselves, grave enough to require a very long sentence.”
In reaching this conclusion I consider that the only reasonable inference to be drawn from the facts admitted by defendant is that there was, at least in the days leading up to the attack upon the victim in Count 1, a plan by the defendant to lure her or another pregnant woman to her home.
Her conduct, taken together with the revelations made when her computer searches were analysed clearly indicates that having reached the stage in her sham pregnancy, when she would either have to reveal the charade or produce a child, the scenario described by Dr Chan in his report as “bizarre” was, at the very least, one of the possibilities that must have been going through her mind at the time.
Mr McGowan submits that because there was at least one other pregnant woman who had visited the defendant in similar circumstances prior to the commission of the offence, and that she was not attacked by the defendant, this suggests that on this occasion her actions were spontaneous, impulsive and not premeditated. I do not agree.
The Internet searches in the days leading up to the attack were, it would appear, not random. The rending unconscious of the victim was not, in my opinion, a random act. The very location of the wound inflicted upon the victim’s abdomen speaks for itself. I cannot say that the defendant had been all along determined to pursue this course. I can say that from all of the evidence that this was one of the options that she unquestionably had been considering in the days leading up to the commission of the offence. It is, in my opinion, a view that Dr Chan appears to acknowledge.
Whilst I agree that she may have not lured the victim specifically to her premises on that day with that intention in mind, it was one of the options, that she had been considering. She may not have reached a stage in her charade where this was the only option but certainly it was, in my opinion, one which was being considered by her.
The attack upon the victim was ferocious and sustained. When she was rendered unconscious the defendant took to her abdomen with a knife. The purpose of this is likewise a conclusion that is irresistible. She intended, at that time, to remove the victim’s unborn child from the womb.
It was not, as the prosecution accepts an intention on her part to kill the victim, or indeed, the unborn child. Nevertheless in the case of the victim it was clearly an intention to cause to her grievous bodily harm which is precisely what has occurred.
Thus I was satisfied that the first of the Hodgson criteria were established. As to the third of the Hodgson’s criteria, which is this:
“Where, if offences were to be committed to others in the future by a defendant the consequences to others might be especially injurious.”
Of this condition I would also have been satisfied given the defendant’s background. The defendant has demonstrated the propensity for extreme violence. Were she to offend in the future in similar circumstances as to these, I would have been satisfied the risk of violence to others was real and established.
Where I have been troubled, and why I have ultimately determined that it is not appropriate to impose a discretionary life term upon the defendant, is as to the second of the conditions identified in Hodgson for the imposition of such a sentence. That condition is as follows:
“Where it appear from the nature of the offences or from the history of the offender that he or she was a person of unstable character, likely to commit offences of this nature in the future.
In the Attorney General’s reference 32 of 1996 which is reported in 1997 1 Criminal Appeal Reports Sentencing at 261, Lord Bingham, the then Chief Justice, said that the crucial question to be asked was, ‘Whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate period.’”
Applying that test in the instant case I am unable to say that this is what this defendant represents. There is a risk of re-offending. That is true. That risk may well be indeterminate. That is equally true. To predict the degree of the risk is, as all of the experts have said, not an easy task.
Much will be determined by two things it would appear. One is her response to ongoing psychological therapy which, at present, she is receiving in the Correctional Services framework. I am told by Mr McGowan, on her behalf, that this is voluntary and that she will continue with this. All of the doctors agree that long-term psychotherapy is called for. All the doctors agree that her personality difficulties are entrenched.
The second factor is her ability to cope when returned into society which, as all of the experts have agreed, will in part be dependant upon the support that she receives. Support professionally, support from her family, support from her husband and support generally. It is apparent from all of the material that has been placed before me that she will have that support as and when that time arises.
This has been an extremely difficult sentencing exercise. The competing options are finely balanced. I am, however, ultimately satisfied that a fixed term of imprisonment in respect of each charge is the appropriate course. No other options, in my opinion, are realistic.
The next matter is then the appropriate term. Section 17 wounding charge is, to my mind, standing alone a very serious offence. The consequences, tragic as they were, could have been far worse notwithstanding that the victim has recovered from her ordeal. The circumstances of the offence, when taken together with the injuries sustained by her, place this at the upper end of the scale of seriousness.
In my opinion a starting point for sentence for this offence of 12 years is warranted after trial and giving to the defendant the full one-third discount for her pleas of guilty, I impose a term of imprisonment of 8 years.
For the manslaughter charge, in my opinion, a sentence of 5 years is appropriate. I believe in the interests of totality, that it is appropriate to order that 2 years of that sentence be consecutive to the sentence on Count 2.
So the sentence on Count 3 which is the manslaughter charge is 5 years. The sentence on Count 2 is 8 years and 2 years of the sentence on Count 3 will be consecutive to the sentence on Count 2, making a total term of 10 years’ imprisonment.
One other matter, Mr McGowan, I will recommend, whilst I cannot make specific orders, that your client does receive ongoing psychotherapy during the course of her incarceration.