區域法院（刑事）HH Judge Stanley Chan31/10/2023[2023] HKDC 1653
DCCC335/2022
A DCCC 335/2022 A
[2023] HKDC 1653
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 335 OF 2022
C C
----------------------
D D
HKSAR
E v E
F.S.L (D1)
F F
W.N.M (D2)
G ---------------------- G
Before: HH Judge Stanley Chan
H Date: 1 November 2023 H
Present: Ms Gladys Chan, Senior Public Prosecutor of the
I
Department of Justice, for HKSAR I
Ms Manyi Tsang, leading Mr Kelvin C H Yu, instructed
by HK&JY Solicitors, assigned by DLA, for the 1st
J defendant J
Mr David Boyton, leading Ms Pao Pak-yiu Peggy, instructed
by CPH Legal, for the 2 nd defendant
K Offence: (2) & (3) Ill-treatment or neglect of child by person in K
charge of that child (看管兒童的人虐待或忽略兒童)
L L
---------------------
M Reasons for Sentence M
---------------------
N N
O 1. Upon plea bargaining, D1 pleaded guilty to Charge 2 which O
is an alternative to Charge 1. He was convicted accordingly.
P P
Charges 3 and 4 were left on court file.
Q Q
2. D2 faced only one count and her trial was concluded with
R her conviction. The Court called for X’s updated medical report R
and the victim assessment report, together with the psychologist
S S
report of D2. D1 and D2 will be sentenced today, 1 November.
T T
U U
CRT32/1.11.2023/TB 1 DCCC 335/2022(2)/Sentence
V V
A The Brief Facts of the Case against D1 (Charge 2 only) A
B B
The Prosecution Case
C 3. The victim girl X was born on 22 August 2014. C
D D
4. D1 and D2, X’s mother, became lovers in December 2019.
E X first met D1 in 2019. Since January 2020, D1 moved to live E
together with D2 and X in a flat in North Point. X was taken care
F of by D1 and D2. F
G G
5. On a day unknown in May 2020 at evening time, D2 was
H
showering X in the bathroom of the said flat. When the phone rang, H
D2 turned off the tap and placed the showerhead on the showerhead
I holder and left the bathroom to answer the phone call. I
J J
6. D1 suddenly entered the bathroom. D1 turned on the hot
water tap with his left hand and held the showerhead with his right
K K
hand. D1 showered X’s body with hot water. As the water was too
L hot, it burned X’s skin to the extent that the skin, mainly on the L
right half of X’s body, later got peeled off. X felt very painful
M and was scared. She cried and wanted to turn off the tap. However, M
D1 prevented X from touching the tap. X was very scared and yelled
N N
at D1 to turn off the tap, but D1 did not do so. X screamed that
O
she was painful. O
P 7. D2 entered into the bathroom upon hearing X’s yelling. P
D1 immediately adjusted the tap to cold water. X showered her
Q Q
injuries with cold water by herself. Consequently, X’s torso,
thighs and arms got extensive scalding injuries.
R R
S 8. Later, D1 went out to buy some ointment for burns to S
treat X’s injuries. D1 and D2 applied only the ointment to treat
T X’s injuries for about one week. T
U U
CRT32/1.11.2023/TB 2 DCCC 335/2022(2)/Sentence
V V
A 9. On 6 July 2020, a report to the police was made. A
B B
10. On 6 July 2020, X was admitted to the QE hospital. It
C
was found that X had an old scald injury with poor healing with C
extensive involvement of right face and neck, right shoulder and
D arm, right upper back, right chest and abdomen (the area measuring D
about 15cm x 15cm) and left foot dorsum (the area measuring
E E
2cm x 2cm). Wound swab revealed infection. X’s wound got improved
after medical treatment. X was discharged on 16 July 2020 (see
F F
photo album, MFI-1).
G G
11. Further medical report provided the following
H observations/findings: H
I I
(1) The caretakers of X should have sought immediate
J
medical treatment after the incident. The delay in J
proper scald wound management might result in wound
K infection and poor wound healing. From the K
observation during X’s admission to hospital on
L L
6 July 2020, the scald wound was not healed and
there were multiple blisters and serous discharge.
M M
There was also superimposed infection to the wound.
N It showed that the wound care was inadequate. The N
wound only improved after proper medical care. A
O course of oral antibiotic was given to treat the O
wound infection.
P P
Q
(2) X’s wound was extensive involving a large area over Q
right upper chest, back and shoulder area.
R R
(3) X did not receive proper and adequate treatment for
S S
the scald injury which resulted in persistent
discharge and poor wound healing around 2 months
T T
after the incident. The wound should have been
U handled by medical professionals. As such, the U
CRT32/1.11.2023/TB 3 DCCC 335/2022(2)/Sentence
V V
A welfare of X was compromised when she did not A
receive timely wound management.
B B
C
12. D1 moved out from the flat on 2 July 2020. D1 and D2 C
were arrested on 10 November and 16 November 2020 respectively.
D D
13. The police examined one of D1’s mobile phone and
E E
discovered a photo of the ointment and 3 photos of X’s injuries
(out of which 2 photos are the same). The photos were taken between
F F
26 and 31 May 2020 (marked as MFI-2).
G G
H
The Case against D2 (Charge 3 only) H
14. The facts of the case in detail against D2 can be found
I I
in the Reasons for Verdict which was delivered on 17 October 2023.
J J
15. The period of offence was from May 2020 to 6 July 2020,
K over one month whereas D1 was charged for the day the scalding K
incident was perpetrated, namely, on a date in May 2020.
L L
M
16. The Court called for X’s updated medical report and M
assessment report plus D2’s psychological report.
N N
D1’s Mitigation
O O
17. D1 was born in Hong Kong in 1974 and is now aged 49. D1
P P
is divorced and has a son who is 16 years old. D1’s education
Q
level is up to Form 5. He served as a police officer for some Q
23 years till May 2021. In 2020, D1 has a mini-stroke and has to
R take medications for his heart problems. R
S 18. In October 2022, D1 was sentenced to 48 months in CFI S
for various offences relating to conduct of indecency towards a
T child under 16 (HCCC 251/2021). D1 also pleaded guilty to 24 counts T
of fraud and one count of theft in the District Court and was
U U
CRT32/1.11.2023/TB 4 DCCC 335/2022(2)/Sentence
V V
A sentenced to 24 months, with 4 months to run concurrently with the A
sentence in HCCC 251/2021.
B B
C 19. Relating to the present offence, the Defence submitted C
that at the material time, X was left unattended in the bathroom.
D D
Upon entering the bathroom, D1 observed that X was already
undressed, and he decided to help her to a shower. It was said D1
E E
proceeded to turn on the hot water tap and sprayed X’s body without
F checking the water temperature. Unfortunately, he was unprepared F
for the high water temperature and it burned X’s skin.
G G
20. The Defence further added that “within seconds, D1
H H
adjusted the tap to cold water and asked D2 to attend to X whilst
I
he left the premises to purchase ointments.” (paragraph 30 of the I
mitigation). It was also said D1 took the photo of X’s injury
J (MFI-2(2)) because he wanted to show it to the landlord to show J
that the boiler was defective. He did send it to the landlord via
K K
WhatsApp as per photo at MFI-2(4). The Defence said it was D1’s
reckless that caused X’s injury. D1 sought immediate rectification
L L
by adjusting the water temperature. Hence, the Defence submitted
M that “without evidence of the actual water temperature at the M
material time, the possibility that the injuries was a result of
N D1’s recklessness cannot be ruled out.” (paragraph 33 of the N
mitigation).
O O
P
21. D1 accepted that he has caused trauma and injuries to X. P
The duration of the incident was short. D1 went to buy medical
Q stuff to treat X immediately which “reflects that his malicious Q
intent was fleeting.”
R R
22. The Defence also urged the court to consider the totality
S S
principle as D1 is currently serving a long jail term.
T T
U U
CRT32/1.11.2023/TB 5 DCCC 335/2022(2)/Sentence
V V
A D2’s Mitigation A
B 23. It was submitted that D2 came from a humble background B
and left school after completing Form 5. She obtained a diploma
C C
in beauty care and has been working in the field. D2 was a person
of clear record. She is 33 years of age and divorced.
D D
E 24. D2 was able to receive a letter of support from her E
ex-husband who now shoulders the responsibility of taking care of
F F
X. X also provided a drawing and stated that she does not blame
G
her mother. G
H 25. The Defence submitted that D2 found herself in a position H
where she was not able to act logically and give proper care to
I I
her daughter. D2 was isolated by D1 from her friends and family.
The Defence further states that, “imprisonment would possibly
J J
cause her to declare herself bankrupt and this may allow her to
K start afresh.” (paragraph 12 of the mitigation). The Defence K
submitted that D2 has already suffered from the absence of being
L with her child, and she has a close bond with X. L
M M
26. The Defence submitted the mitigation letters prepared by
N
D2, D2’s ex-husband, D2’s parents, D2’s brother and sister-in-law, N
D2’s friends (a total of 8 letters) and also a drawing from X.
O O
27. Today, Defence counsel said D2 has about 10 relatives
P P
attending court to show their support.
Q Q
Sentence
R R
D1 – F.S.L
S S
28. Cruelty may well be one of the evil human nature, but it
T is shocking to see a man could treat a 5-year-old daughter of his T
cohabitee and lover in such a torturous evil act.
U U
CRT32/1.11.2023/TB 6 DCCC 335/2022(2)/Sentence
V V
A A
B
29. In my view, what D1 did to X should be classified as a B
wounding with intent case (commonly refer to as wounding 17) of
C which the maximum sentence is life imprisonment. Upon plea C
bargaining, now D1 pleaded guilty to the alternative charge of
D D
ill-treatment or neglect of child under section 27(1) of the
Offences against the Person Ordinance which carries a maximum
E E
sentence of 10 years. Two counts of ill-treatment or neglect were
F left on court file. F
G 30. Extensive injuries can be seen from the photos taken by G
the person (Counsel for D1 said the photos were taken by D2). It
H H
can be inferred that the offence was committed on 26 May 2020 when
I
the photo of the ointment was taken. It is not difficult to I
imagine the pain and the agony that X suffered at the material
J time. J
K K
31. Defence counsel said D1 was reckless in scalding X. That
is a contradiction to the particulars of the offence of Charge 2
L L
as the Prosecution stated clearly that D1 wilfully assaulted, ill-
M treated and neglected X. D1 had been living in the flat in North M
Point since January 2020. That means D1 had been using the shower
N tap for taking shower in the flat for more than 5 months. The N
shower tap as shown in the photo is not difficult to use. He
O O
should know how the shower tap works, which side for hot water and
P
which side for cold water. P
Q 32. D1 had never showered X before. That brings to the Q
question as to why this time he took the initiative to shower X
R R
when he knew full well that X was being showered by D2 and was
naked at that time. No one asked D1 to do so.
S S
T 33. Worst still, when X was burnt by the hot water, D1 did T
not allow X to turn off the tap. How can that be considered as a
U U
CRT32/1.11.2023/TB 7 DCCC 335/2022(2)/Sentence
V V
A reckless act? It is clear that D1 deliberately wanted to see X to A
suffer longer.
B B
C
34. Defence counsel submitted that there was no evidence of C
the actual water temperature, hence the possibility that the
D incident was caused by D1’s reckless act cannot be ruled. That D
utterly defies common sense. Anyone who see the photos taken by
E E
D2 shortly after the incident and the photos of X taken in early
July would have no difficulty to see the effect of the hot water
F F
temperature.
G G
35. When asked, the Prosecution said there was no evidence
H to show that there was a feud or quarrel between D1 and D2 at that H
time. D1 was not affected by alcohol and drugs. X was not being
I I
naughty when taking a shower. But suddenly D1 took the chance,
J
when D2 was leaving the bathroom temporarily, to shower X with hot J
water, presumably just for fun and for satisfying his sadistic
K nature. K
L L
36. There is no excuse for D1 to commit the act. I do not
accept that D1 was reckless as submitted by the Defence counsel.
M M
N 37. D1 had a bad criminal record, but legally speaking D1 N
had a clear record at the time he committed the present offence in
O May 2020. He was not on police bail in May 2020. O
P P
38. D1 is now aged 49 and served as a police officer from
Q
June 1998 to May 2020. D1 had been absent from duty since September Q
2019 and was dismissed from the Police Force and removed from
R interdiction effective on 15 May 2020. In passing, I am puzzled to R
see why an officer who was absent from duty since September 2019
S S
could only be removed from interdiction in May 2020. That also
means, I suppose, D1 was still on payroll and received certain
T T
percentage of his salary for at least 8 months, even though he
U might not be in full pay. U
CRT32/1.11.2023/TB 8 DCCC 335/2022(2)/Sentence
V V
A A
39. D1 was arrested for the present offence on 10 November
B B
2020. He separated with his ex-wife in 2018 and they have a son
C
aged 16. C
D 40. D1 had a total of 29 convictions, and is now serving a D
jail term of 68 months (48 months plus 20 months) relating to his
E E
2 cases: HCCC 251/2021 and DCCC 496/2021. These 2 cases show
abundantly how wicked D1 can be. That is especially true in those
F F
indecency conduct cases. The fact that D1 had been a police
G officer for over 20 years adds gravity to those crimes he G
committed.
H H
41. I cannot see D1’s remorsefulness. It is obvious that he
I I
wants to “capitalise” the benefits of having his sentences in his
J
previous HC case and DC case to be taken into account with the J
present sentence. He wants to maximize the totality principle to
K his advantage. K
L L
42. In my view, it is wrong to convey a message to society
that the more crimes one committed, the more discount in sentence
M M
that he can get.
N N
43. In HKSAR v Wong Wing Man Mandy HCCC 76/2017, the court
O remarked that “a crucial factor that must be taken into account O
when sentencing for this offence is the need to protect the young
P P
and the vulnerable, as well as the need to deter abuse or neglect
Q
of them. Other crucial factors to be taken into account are the Q
age and circumstances of the child; the relationship between the
R offender and the child as well as the responsibility the offender R
had for the child; the nature, degree and duration of the ill-
S S
treatment or neglect of the child, the suffering and injury to the
child and the long term prospects it will have on the child both
T T
physically and psychologically.”
U U
CRT32/1.11.2023/TB 9 DCCC 335/2022(2)/Sentence
V V
A 44. D1 had been working as a police officer for over A
20 years. He should be the one occupying a key role in law
B B
enforcement. And yet he had misguided, unduly influenced and
C
exploited D2 physically, sentimentally and financially. That is C
also an aggravating factor.
D D
45. The updated medical report of X dated 20 October 2023
E E
states that, “in conclusion, X recovered well from the scald injury
without any functional loss. However, cosmetic effect is
F F
significant and the scars will not be resolved completely by
G itself.”. The doctor also noted that X’s father reported that X G
developed secondary nocturnal enuresis (bed wetting) after the
H scald injury. H
I I
46. The victim assessment report remarked that “results of
J
the present examination revealed X’s post-traumatic stress J
responses that reached clinical significance. X’s avoidance,
K ambivalence and mistrust in her relationships with care takers K
appeared to hinder X in expressing the impact of the incident.”.
L L
It is recommended that case worker to work with X’s family members
on the child-care arrangement, to ensure X can securely attach
M M
with her major carer, and psychotherapy is considered helpful.
N N
47. What D1 did, even though it was an one-off incident, is
O not just a tragedy to X, it is also a tragedy to D2 who is the O
natural mother of X.
P P
Q
48. The Prosecution said that the charges against D1 had Q
been amended and they accepted that D1 has in fact indicated his
R guilty plea at the earliest opportunity. As such, Defence counsel R
said D1 should get the normal one-third discount in sentence.
S S
49. Taking all factors into consideration, I would adopt a
T T
starting point of 3½ years’ (42 months) imprisonment. With
U one-third discount, the sentence is reduced to 28 months. As I U
CRT32/1.11.2023/TB 10 DCCC 335/2022(2)/Sentence
V V
A mentioned earlier, it is unjust to give more discount in sentence A
to those criminals who repeatedly commit other crimes. The nature
B B
of the present offence is different, and it was committed at
C
different time and with another victim. As such, I order that this C
imprisonment term of 28 months is to be served consecutively to
D D1’s current sentence. D
E E
D2’s Sentence
F F
50. In her mitigation letter, D2 said her family background
G
was not good and she started to work when she was 18. She became G
acquainted with D1 in October 2019 after divorce. D1 treated her
H well and saw X as his own daughter. They moved to the flat in H
North Point in January 2020 and D2 said it was the time when her
I I
nightmare began. D1 deleted her Facebook and Instagram accounts,
changed her phone number and eventually cut off all her contact
J J
with the world outside. D1 told her everyday that D2 was being
K tracked and monitored and was spelled by someone. D1 exploited K
her financially. She felt she was like being falsely imprisoned
L at home. D1 became her belief and she trusted everything he said. L
M 51. It was only when D1 was arrested on 2 July 2020 that she M
realised she was cheated. She was very upset to see X had to stay
N N
in the hospital for more than 10 days. She blamed herself for
causing X’s injury whenever she saw X’s wounds. She feels very
O O
guilty for leaving a wound on X because of her stupidity. She is
P truly remorseful, and has not seen X for almost 2½ years. She P
misses X.
Q Q
R
52. D2’s ex-husband said he was shocked and in deep grievance R
when he learned of X’s tragedy and painful experience. D2 has
S deep remorse and will put extra effort to take care of X. D2 had S
used the wrong way to handle the matter. He hopes the court can
T T
pass a lenient sentence.
U U
CRT32/1.11.2023/TB 11 DCCC 335/2022(2)/Sentence
V V
A 53. D2’s parents in the mitigation letter said they are A
heartbroken to see the injuries of their granddaughter. Their
B B
daughter (D2) got scammed with all the money and incurred more
C
debts too. Since the incident, D2 hardly smiled. She misses X C
dearly. X also misses her mother. They believed D2 was remorseful.
D X is most innocent and D2 is also a victim too. D
E E
54. X’s drawing depicts a crying face of a child with tears.
The Chinese words read she does not blame her mother and hopes her
F F
mother can be forgiven.
G G
55. The updated medical report states that X developed
H secondary nocturnal enuresis. All the wounds were healed with H
scarring issues. The surface was irregular and some mildly raised
I I
hypertrophic tissue. X’s right upper limb function was normal.
J
Range of movement was unaffected. It was concluded that X J
recovered well from the scald injury without any functional loss.
K K
56. However, cosmetic effect is significant and the scars
L L
will not resolve completely by itself.
M M
57. The assessment report states that X expressed resistance
N to seek help from adults, fearing that she would be overwhelmed by N
them if she disclosed anything. X vaguely mentioned that she has
O fear and a tense relationship with her stepmother, expressing O
concerns about being hit with clothes hanger or belt. X also
P P
articulated her desire to live with her mother once she was
Q
released from prison, although she knows that her father would not Q
support her choice. X is suffering from bed wetting after the
R incident. R
S S
58. The report remarks that results suggested that X’s post-
traumatic stress responses reached a clinically significant level.
T T
X avoided to discuss the impact of the incident and the experience
U of intrusive memories related to the incident. It was impressed U
CRT32/1.11.2023/TB 12 DCCC 335/2022(2)/Sentence
V V
A that X’s father is insensitive to X’s emotional needs, and the A
current family dynamics did not seem to allow X to establish stable
B B
and healthy attachment relationships with her caregivers. X’s
C
ambivalence and mistrust in her relationships with adults C
persisted which could impede her recovery from the child
D maltreatment incident. D
E E
59. It is recommended that case worker to work with X’s
family members on the child-care arrangement, to ensure X can
F F
securely attach to her major carer. Psychotherapy is considered
G helpful to X. G
H 60. In D2’s psychological report (dated 27 October 2023), H
the clinical psychologist stated that D2 was in an abusive and
I I
manipulative relationship with D1. D2 over-trusted and relied on
J
her partner that she was not able to make a sound judgment without J
the influence of D1 when the injury of X happened. D2 had a clear
K record and her risk of re-offending was deemed low. It is K
suggested that psychological service on enhancing assertiveness in
L L
relationship and improving self-esteem would be beneficial to D2.
M M
61. Again, I cannot see any deep remorse from D2 when all
N along she blamed D1 being the fraudster both sentimentally, N
emotionally and financially. D2’s mitigation letter of one and a
O half page long did not even mention the pain and suffering of her O
adorable daughter X for over one month after the tragic incident.
P P
Q
62. The psychological report of D2 stated that when Q
interviewed, D2 showed no difficulties in understanding the
R questions posed to her, and no signs of mood or psychotic disorders R
were observed. D2 was not known to any psychiatric service before.
S S
She admitted one self-harm attempt by slashing about one month
after the incident as D2 felt depressed and hopeless. The test
T T
results suggested that D2’s intellectual ability fell into the
U average range. She had no difficulty to differentiating right U
CRT32/1.11.2023/TB 13 DCCC 335/2022(2)/Sentence
V V
A from wrong. It was remarked that D2 was impressed to be under A
psychological abuse by D1 during their relationship. Being in an
B B
abusive relationship made D2 feel depressed and anxious, have low
C
esteem, and lose a sense of control. She accepted many unreasonable C
arrangements by D1 without suspicion. The cut off from family and
D friends worsened the situation as D2 could not get enough social D
support from truly reliable persons. It was concluded that D2 was
E E
in an abusive and manipulative relationship with D1. She over-
trusted and relied on her partner that she was not able to make a
F F
sound judgment without the influence of D1 when the injury of her
G daughter happened. D2’s risk of re-offending was deemed low. G
H 63. There is no sentencing guideline relating to this H
offence.
I I
J
64. What D1 did to X in late May 2020 was a double tragedy J
to X. X got scald and left without proper medical wound treatment
K for over one month. And X’s natural mother was charged with ill- K
treatment and neglect and got convicted.
L L
65. X misses her mother and even submitted a drawing as
M M
attached to the mitigation bundle to show her affection towards
N her mother. It depicts a crying face with lots of tears. It shows N
X’s affection towards her mother despite what she got from her
O mother during the material period. X wrote she does not blame her O
mother, and asks the Judge to forgive her mother.
P P
Q
66. It is heartbreaking to see a young girl could pardon her Q
mother in this perspective, and it is also touching to see the
R kind-heartedness of X. R
S S
67. But from what was reported in the psychological report
and D2’s mitigation letter, she still maintains a deep sense of
T T
denial. She claims that it was because of her upbringing and her
U disposition that caused her to rely on and be cheated by D1. She U
CRT32/1.11.2023/TB 14 DCCC 335/2022(2)/Sentence
V V
A seems to suggest that her role during the material period was A
secondary. D1 was the one to blame, not her. In my view, it is
B B
obvious that D2 just cannot face the reality and the nefarious
C
nature of the offence. C
D 68. If one looks at the photo taken shortly after the D
incident, X’s injury is horrible. Her skin was scalded to the
E E
extent that part of her skin was like a large piece of a skin-
coloured plastic sheet attached to part of her body. X got no
F F
proper medical treatment for over one month. X developed a mild
G fever a few days after the incident. The various medical reports, G
including the updated one, speak volumes about X’s scald and wound.
H X did not provoke D1 to hurt her. H
I I
69. X had to be hospitalised for 10 days in early July, and
J
was taken care of by wound nurses. J
K 70. How could a reasonable person treat a child like that? K
How could a reasonable mother treat her only child like that? One
L L
wonders. X is an adorable and good-looking girl, and I believe
when she grows up and reaches adulthood, she may have to undergo
M M
certain cosmetic surgery.
N N
71. Taking all factors into account, I consider that it is
O necessary to give a sentence of deterrent effect to show the O
gravity of the offence. I would adopt a starting point of 1½ years
P P
(18 months). D2 was convicted after trial and should not have any
Q
discount in sentence. That said, I am sympathetic to X and am Q
convinced that D2 would not re-offend. Given a powerful support
R from D2’s family and relatives, particularly, her own daughter X, R
I am sure D2 will ask for psychological service to enhance her
S S
assertiveness in relationship, as suggested. Hence, I will reduce
the sentence by 3 months, and send D2 to prison for 15 months.
T T
U U
CRT32/1.11.2023/TB 15 DCCC 335/2022(2)/Sentence
V V
A Postscript A
B 72. Although any defendant in a criminal trial has a choice B
to choose one of the official languages to be used at trial
C C
(see section 5 of the Official Languages Ordinance, Cap 5), it is
prudent for the Prosecution to insist and make the application
D D
that for this kind of offence, it is better to use Chinese as the
E medium. It is particularly the case if the victim is a local child, E
in the present case, a girl aged 5, and the defendants and those
F potential Prosecution witness and defence witnesses are all local F
Chinese who, I suppose, are not proficient in English. To this
G G
end, the court respected the performance of Mr Boyton and his
H
junior, Defence counsel for D2 in this case. H
I 73. The problem is when this case was first brought to I
District Court for plea on 12 May 2020, no mention was made by any
J J
party that this case should be heard in Chinese. On that occasion,
D2 was represented by Ms Koo of Counsel. On 7 July 2022 and 18
K K
August 2022 respectively, D2 was represented by Mr Leung of
L Counsel. Again, no mention was made about the use of language. L
It was only on the 4th appearance on 29 September 2022 that the
M case was listed to be heard in English. Whilst I do respect the M
performance of Mr Boyton and his junior, Defence counsel for D2 in
N N
the trial, I have to view the trial proceedings in a broader
O
perspective as the child victim, aged about 6 by then, gave her O
videoed interview in Chinese and would be cross-examined by Mr
P Boyton in English. That is not a desirable state of affair as P
fairness should be done to all parties concerned, and that covers
Q Q
the possibility of any difficulties in interpreting the actual
meaning and words used by one party.
R R
S S
T T
(Stanley Chan)
U District Judge U
CRT32/1.11.2023/TB 16 DCCC 335/2022(2)/Sentence
V V
A DCCC 335/2022 A
[2023] HKDC 1653
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 335 OF 2022
C C
----------------------
D D
HKSAR
E v E
F.S.L (D1)
F F
W.N.M (D2)
G ---------------------- G
Before: HH Judge Stanley Chan
H Date: 1 November 2023 H
Present: Ms Gladys Chan, Senior Public Prosecutor of the
I
Department of Justice, for HKSAR I
Ms Manyi Tsang, leading Mr Kelvin C H Yu, instructed
by HK&JY Solicitors, assigned by DLA, for the 1st
J defendant J
Mr David Boyton, leading Ms Pao Pak-yiu Peggy, instructed
by CPH Legal, for the 2 nd defendant
K Offence: (2) & (3) Ill-treatment or neglect of child by person in K
charge of that child (看管兒童的人虐待或忽略兒童)
L L
---------------------
M Reasons for Sentence M
---------------------
N N
O 1. Upon plea bargaining, D1 pleaded guilty to Charge 2 which O
is an alternative to Charge 1. He was convicted accordingly.
P P
Charges 3 and 4 were left on court file.
Q Q
2. D2 faced only one count and her trial was concluded with
R her conviction. The Court called for X’s updated medical report R
and the victim assessment report, together with the psychologist
S S
report of D2. D1 and D2 will be sentenced today, 1 November.
T T
U U
CRT32/1.11.2023/TB 1 DCCC 335/2022(2)/Sentence
V V
A The Brief Facts of the Case against D1 (Charge 2 only) A
B B
The Prosecution Case
C 3. The victim girl X was born on 22 August 2014. C
D D
4. D1 and D2, X’s mother, became lovers in December 2019.
E X first met D1 in 2019. Since January 2020, D1 moved to live E
together with D2 and X in a flat in North Point. X was taken care
F of by D1 and D2. F
G G
5. On a day unknown in May 2020 at evening time, D2 was
H
showering X in the bathroom of the said flat. When the phone rang, H
D2 turned off the tap and placed the showerhead on the showerhead
I holder and left the bathroom to answer the phone call. I
J J
6. D1 suddenly entered the bathroom. D1 turned on the hot
water tap with his left hand and held the showerhead with his right
K K
hand. D1 showered X’s body with hot water. As the water was too
L hot, it burned X’s skin to the extent that the skin, mainly on the L
right half of X’s body, later got peeled off. X felt very painful
M and was scared. She cried and wanted to turn off the tap. However, M
D1 prevented X from touching the tap. X was very scared and yelled
N N
at D1 to turn off the tap, but D1 did not do so. X screamed that
O
she was painful. O
P 7. D2 entered into the bathroom upon hearing X’s yelling. P
D1 immediately adjusted the tap to cold water. X showered her
Q Q
injuries with cold water by herself. Consequently, X’s torso,
thighs and arms got extensive scalding injuries.
R R
S 8. Later, D1 went out to buy some ointment for burns to S
treat X’s injuries. D1 and D2 applied only the ointment to treat
T X’s injuries for about one week. T
U U
CRT32/1.11.2023/TB 2 DCCC 335/2022(2)/Sentence
V V
A 9. On 6 July 2020, a report to the police was made. A
B B
10. On 6 July 2020, X was admitted to the QE hospital. It
C
was found that X had an old scald injury with poor healing with C
extensive involvement of right face and neck, right shoulder and
D arm, right upper back, right chest and abdomen (the area measuring D
about 15cm x 15cm) and left foot dorsum (the area measuring
E E
2cm x 2cm). Wound swab revealed infection. X’s wound got improved
after medical treatment. X was discharged on 16 July 2020 (see
F F
photo album, MFI-1).
G G
11. Further medical report provided the following
H observations/findings: H
I I
(1) The caretakers of X should have sought immediate
J
medical treatment after the incident. The delay in J
proper scald wound management might result in wound
K infection and poor wound healing. From the K
observation during X’s admission to hospital on
L L
6 July 2020, the scald wound was not healed and
there were multiple blisters and serous discharge.
M M
There was also superimposed infection to the wound.
N It showed that the wound care was inadequate. The N
wound only improved after proper medical care. A
O course of oral antibiotic was given to treat the O
wound infection.
P P
Q
(2) X’s wound was extensive involving a large area over Q
right upper chest, back and shoulder area.
R R
(3) X did not receive proper and adequate treatment for
S S
the scald injury which resulted in persistent
discharge and poor wound healing around 2 months
T T
after the incident. The wound should have been
U handled by medical professionals. As such, the U
CRT32/1.11.2023/TB 3 DCCC 335/2022(2)/Sentence
V V
A welfare of X was compromised when she did not A
receive timely wound management.
B B
C
12. D1 moved out from the flat on 2 July 2020. D1 and D2 C
were arrested on 10 November and 16 November 2020 respectively.
D D
13. The police examined one of D1’s mobile phone and
E E
discovered a photo of the ointment and 3 photos of X’s injuries
(out of which 2 photos are the same). The photos were taken between
F F
26 and 31 May 2020 (marked as MFI-2).
G G
H
The Case against D2 (Charge 3 only) H
14. The facts of the case in detail against D2 can be found
I I
in the Reasons for Verdict which was delivered on 17 October 2023.
J J
15. The period of offence was from May 2020 to 6 July 2020,
K over one month whereas D1 was charged for the day the scalding K
incident was perpetrated, namely, on a date in May 2020.
L L
M
16. The Court called for X’s updated medical report and M
assessment report plus D2’s psychological report.
N N
D1’s Mitigation
O O
17. D1 was born in Hong Kong in 1974 and is now aged 49. D1
P P
is divorced and has a son who is 16 years old. D1’s education
Q
level is up to Form 5. He served as a police officer for some Q
23 years till May 2021. In 2020, D1 has a mini-stroke and has to
R take medications for his heart problems. R
S 18. In October 2022, D1 was sentenced to 48 months in CFI S
for various offences relating to conduct of indecency towards a
T child under 16 (HCCC 251/2021). D1 also pleaded guilty to 24 counts T
of fraud and one count of theft in the District Court and was
U U
CRT32/1.11.2023/TB 4 DCCC 335/2022(2)/Sentence
V V
A sentenced to 24 months, with 4 months to run concurrently with the A
sentence in HCCC 251/2021.
B B
C 19. Relating to the present offence, the Defence submitted C
that at the material time, X was left unattended in the bathroom.
D D
Upon entering the bathroom, D1 observed that X was already
undressed, and he decided to help her to a shower. It was said D1
E E
proceeded to turn on the hot water tap and sprayed X’s body without
F checking the water temperature. Unfortunately, he was unprepared F
for the high water temperature and it burned X’s skin.
G G
20. The Defence further added that “within seconds, D1
H H
adjusted the tap to cold water and asked D2 to attend to X whilst
I
he left the premises to purchase ointments.” (paragraph 30 of the I
mitigation). It was also said D1 took the photo of X’s injury
J (MFI-2(2)) because he wanted to show it to the landlord to show J
that the boiler was defective. He did send it to the landlord via
K K
WhatsApp as per photo at MFI-2(4). The Defence said it was D1’s
reckless that caused X’s injury. D1 sought immediate rectification
L L
by adjusting the water temperature. Hence, the Defence submitted
M that “without evidence of the actual water temperature at the M
material time, the possibility that the injuries was a result of
N D1’s recklessness cannot be ruled out.” (paragraph 33 of the N
mitigation).
O O
P
21. D1 accepted that he has caused trauma and injuries to X. P
The duration of the incident was short. D1 went to buy medical
Q stuff to treat X immediately which “reflects that his malicious Q
intent was fleeting.”
R R
22. The Defence also urged the court to consider the totality
S S
principle as D1 is currently serving a long jail term.
T T
U U
CRT32/1.11.2023/TB 5 DCCC 335/2022(2)/Sentence
V V
A D2’s Mitigation A
B 23. It was submitted that D2 came from a humble background B
and left school after completing Form 5. She obtained a diploma
C C
in beauty care and has been working in the field. D2 was a person
of clear record. She is 33 years of age and divorced.
D D
E 24. D2 was able to receive a letter of support from her E
ex-husband who now shoulders the responsibility of taking care of
F F
X. X also provided a drawing and stated that she does not blame
G
her mother. G
H 25. The Defence submitted that D2 found herself in a position H
where she was not able to act logically and give proper care to
I I
her daughter. D2 was isolated by D1 from her friends and family.
The Defence further states that, “imprisonment would possibly
J J
cause her to declare herself bankrupt and this may allow her to
K start afresh.” (paragraph 12 of the mitigation). The Defence K
submitted that D2 has already suffered from the absence of being
L with her child, and she has a close bond with X. L
M M
26. The Defence submitted the mitigation letters prepared by
N
D2, D2’s ex-husband, D2’s parents, D2’s brother and sister-in-law, N
D2’s friends (a total of 8 letters) and also a drawing from X.
O O
27. Today, Defence counsel said D2 has about 10 relatives
P P
attending court to show their support.
Q Q
Sentence
R R
D1 – F.S.L
S S
28. Cruelty may well be one of the evil human nature, but it
T is shocking to see a man could treat a 5-year-old daughter of his T
cohabitee and lover in such a torturous evil act.
U U
CRT32/1.11.2023/TB 6 DCCC 335/2022(2)/Sentence
V V
A A
B
29. In my view, what D1 did to X should be classified as a B
wounding with intent case (commonly refer to as wounding 17) of
C which the maximum sentence is life imprisonment. Upon plea C
bargaining, now D1 pleaded guilty to the alternative charge of
D D
ill-treatment or neglect of child under section 27(1) of the
Offences against the Person Ordinance which carries a maximum
E E
sentence of 10 years. Two counts of ill-treatment or neglect were
F left on court file. F
G 30. Extensive injuries can be seen from the photos taken by G
the person (Counsel for D1 said the photos were taken by D2). It
H H
can be inferred that the offence was committed on 26 May 2020 when
I
the photo of the ointment was taken. It is not difficult to I
imagine the pain and the agony that X suffered at the material
J time. J
K K
31. Defence counsel said D1 was reckless in scalding X. That
is a contradiction to the particulars of the offence of Charge 2
L L
as the Prosecution stated clearly that D1 wilfully assaulted, ill-
M treated and neglected X. D1 had been living in the flat in North M
Point since January 2020. That means D1 had been using the shower
N tap for taking shower in the flat for more than 5 months. The N
shower tap as shown in the photo is not difficult to use. He
O O
should know how the shower tap works, which side for hot water and
P
which side for cold water. P
Q 32. D1 had never showered X before. That brings to the Q
question as to why this time he took the initiative to shower X
R R
when he knew full well that X was being showered by D2 and was
naked at that time. No one asked D1 to do so.
S S
T 33. Worst still, when X was burnt by the hot water, D1 did T
not allow X to turn off the tap. How can that be considered as a
U U
CRT32/1.11.2023/TB 7 DCCC 335/2022(2)/Sentence
V V
A reckless act? It is clear that D1 deliberately wanted to see X to A
suffer longer.
B B
C
34. Defence counsel submitted that there was no evidence of C
the actual water temperature, hence the possibility that the
D incident was caused by D1’s reckless act cannot be ruled. That D
utterly defies common sense. Anyone who see the photos taken by
E E
D2 shortly after the incident and the photos of X taken in early
July would have no difficulty to see the effect of the hot water
F F
temperature.
G G
35. When asked, the Prosecution said there was no evidence
H to show that there was a feud or quarrel between D1 and D2 at that H
time. D1 was not affected by alcohol and drugs. X was not being
I I
naughty when taking a shower. But suddenly D1 took the chance,
J
when D2 was leaving the bathroom temporarily, to shower X with hot J
water, presumably just for fun and for satisfying his sadistic
K nature. K
L L
36. There is no excuse for D1 to commit the act. I do not
accept that D1 was reckless as submitted by the Defence counsel.
M M
N 37. D1 had a bad criminal record, but legally speaking D1 N
had a clear record at the time he committed the present offence in
O May 2020. He was not on police bail in May 2020. O
P P
38. D1 is now aged 49 and served as a police officer from
Q
June 1998 to May 2020. D1 had been absent from duty since September Q
2019 and was dismissed from the Police Force and removed from
R interdiction effective on 15 May 2020. In passing, I am puzzled to R
see why an officer who was absent from duty since September 2019
S S
could only be removed from interdiction in May 2020. That also
means, I suppose, D1 was still on payroll and received certain
T T
percentage of his salary for at least 8 months, even though he
U might not be in full pay. U
CRT32/1.11.2023/TB 8 DCCC 335/2022(2)/Sentence
V V
A A
39. D1 was arrested for the present offence on 10 November
B B
2020. He separated with his ex-wife in 2018 and they have a son
C
aged 16. C
D 40. D1 had a total of 29 convictions, and is now serving a D
jail term of 68 months (48 months plus 20 months) relating to his
E E
2 cases: HCCC 251/2021 and DCCC 496/2021. These 2 cases show
abundantly how wicked D1 can be. That is especially true in those
F F
indecency conduct cases. The fact that D1 had been a police
G officer for over 20 years adds gravity to those crimes he G
committed.
H H
41. I cannot see D1’s remorsefulness. It is obvious that he
I I
wants to “capitalise” the benefits of having his sentences in his
J
previous HC case and DC case to be taken into account with the J
present sentence. He wants to maximize the totality principle to
K his advantage. K
L L
42. In my view, it is wrong to convey a message to society
that the more crimes one committed, the more discount in sentence
M M
that he can get.
N N
43. In HKSAR v Wong Wing Man Mandy HCCC 76/2017, the court
O remarked that “a crucial factor that must be taken into account O
when sentencing for this offence is the need to protect the young
P P
and the vulnerable, as well as the need to deter abuse or neglect
Q
of them. Other crucial factors to be taken into account are the Q
age and circumstances of the child; the relationship between the
R offender and the child as well as the responsibility the offender R
had for the child; the nature, degree and duration of the ill-
S S
treatment or neglect of the child, the suffering and injury to the
child and the long term prospects it will have on the child both
T T
physically and psychologically.”
U U
CRT32/1.11.2023/TB 9 DCCC 335/2022(2)/Sentence
V V
A 44. D1 had been working as a police officer for over A
20 years. He should be the one occupying a key role in law
B B
enforcement. And yet he had misguided, unduly influenced and
C
exploited D2 physically, sentimentally and financially. That is C
also an aggravating factor.
D D
45. The updated medical report of X dated 20 October 2023
E E
states that, “in conclusion, X recovered well from the scald injury
without any functional loss. However, cosmetic effect is
F F
significant and the scars will not be resolved completely by
G itself.”. The doctor also noted that X’s father reported that X G
developed secondary nocturnal enuresis (bed wetting) after the
H scald injury. H
I I
46. The victim assessment report remarked that “results of
J
the present examination revealed X’s post-traumatic stress J
responses that reached clinical significance. X’s avoidance,
K ambivalence and mistrust in her relationships with care takers K
appeared to hinder X in expressing the impact of the incident.”.
L L
It is recommended that case worker to work with X’s family members
on the child-care arrangement, to ensure X can securely attach
M M
with her major carer, and psychotherapy is considered helpful.
N N
47. What D1 did, even though it was an one-off incident, is
O not just a tragedy to X, it is also a tragedy to D2 who is the O
natural mother of X.
P P
Q
48. The Prosecution said that the charges against D1 had Q
been amended and they accepted that D1 has in fact indicated his
R guilty plea at the earliest opportunity. As such, Defence counsel R
said D1 should get the normal one-third discount in sentence.
S S
49. Taking all factors into consideration, I would adopt a
T T
starting point of 3½ years’ (42 months) imprisonment. With
U one-third discount, the sentence is reduced to 28 months. As I U
CRT32/1.11.2023/TB 10 DCCC 335/2022(2)/Sentence
V V
A mentioned earlier, it is unjust to give more discount in sentence A
to those criminals who repeatedly commit other crimes. The nature
B B
of the present offence is different, and it was committed at
C
different time and with another victim. As such, I order that this C
imprisonment term of 28 months is to be served consecutively to
D D1’s current sentence. D
E E
D2’s Sentence
F F
50. In her mitigation letter, D2 said her family background
G
was not good and she started to work when she was 18. She became G
acquainted with D1 in October 2019 after divorce. D1 treated her
H well and saw X as his own daughter. They moved to the flat in H
North Point in January 2020 and D2 said it was the time when her
I I
nightmare began. D1 deleted her Facebook and Instagram accounts,
changed her phone number and eventually cut off all her contact
J J
with the world outside. D1 told her everyday that D2 was being
K tracked and monitored and was spelled by someone. D1 exploited K
her financially. She felt she was like being falsely imprisoned
L at home. D1 became her belief and she trusted everything he said. L
M 51. It was only when D1 was arrested on 2 July 2020 that she M
realised she was cheated. She was very upset to see X had to stay
N N
in the hospital for more than 10 days. She blamed herself for
causing X’s injury whenever she saw X’s wounds. She feels very
O O
guilty for leaving a wound on X because of her stupidity. She is
P truly remorseful, and has not seen X for almost 2½ years. She P
misses X.
Q Q
R
52. D2’s ex-husband said he was shocked and in deep grievance R
when he learned of X’s tragedy and painful experience. D2 has
S deep remorse and will put extra effort to take care of X. D2 had S
used the wrong way to handle the matter. He hopes the court can
T T
pass a lenient sentence.
U U
CRT32/1.11.2023/TB 11 DCCC 335/2022(2)/Sentence
V V
A 53. D2’s parents in the mitigation letter said they are A
heartbroken to see the injuries of their granddaughter. Their
B B
daughter (D2) got scammed with all the money and incurred more
C
debts too. Since the incident, D2 hardly smiled. She misses X C
dearly. X also misses her mother. They believed D2 was remorseful.
D X is most innocent and D2 is also a victim too. D
E E
54. X’s drawing depicts a crying face of a child with tears.
The Chinese words read she does not blame her mother and hopes her
F F
mother can be forgiven.
G G
55. The updated medical report states that X developed
H secondary nocturnal enuresis. All the wounds were healed with H
scarring issues. The surface was irregular and some mildly raised
I I
hypertrophic tissue. X’s right upper limb function was normal.
J
Range of movement was unaffected. It was concluded that X J
recovered well from the scald injury without any functional loss.
K K
56. However, cosmetic effect is significant and the scars
L L
will not resolve completely by itself.
M M
57. The assessment report states that X expressed resistance
N to seek help from adults, fearing that she would be overwhelmed by N
them if she disclosed anything. X vaguely mentioned that she has
O fear and a tense relationship with her stepmother, expressing O
concerns about being hit with clothes hanger or belt. X also
P P
articulated her desire to live with her mother once she was
Q
released from prison, although she knows that her father would not Q
support her choice. X is suffering from bed wetting after the
R incident. R
S S
58. The report remarks that results suggested that X’s post-
traumatic stress responses reached a clinically significant level.
T T
X avoided to discuss the impact of the incident and the experience
U of intrusive memories related to the incident. It was impressed U
CRT32/1.11.2023/TB 12 DCCC 335/2022(2)/Sentence
V V
A that X’s father is insensitive to X’s emotional needs, and the A
current family dynamics did not seem to allow X to establish stable
B B
and healthy attachment relationships with her caregivers. X’s
C
ambivalence and mistrust in her relationships with adults C
persisted which could impede her recovery from the child
D maltreatment incident. D
E E
59. It is recommended that case worker to work with X’s
family members on the child-care arrangement, to ensure X can
F F
securely attach to her major carer. Psychotherapy is considered
G helpful to X. G
H 60. In D2’s psychological report (dated 27 October 2023), H
the clinical psychologist stated that D2 was in an abusive and
I I
manipulative relationship with D1. D2 over-trusted and relied on
J
her partner that she was not able to make a sound judgment without J
the influence of D1 when the injury of X happened. D2 had a clear
K record and her risk of re-offending was deemed low. It is K
suggested that psychological service on enhancing assertiveness in
L L
relationship and improving self-esteem would be beneficial to D2.
M M
61. Again, I cannot see any deep remorse from D2 when all
N along she blamed D1 being the fraudster both sentimentally, N
emotionally and financially. D2’s mitigation letter of one and a
O half page long did not even mention the pain and suffering of her O
adorable daughter X for over one month after the tragic incident.
P P
Q
62. The psychological report of D2 stated that when Q
interviewed, D2 showed no difficulties in understanding the
R questions posed to her, and no signs of mood or psychotic disorders R
were observed. D2 was not known to any psychiatric service before.
S S
She admitted one self-harm attempt by slashing about one month
after the incident as D2 felt depressed and hopeless. The test
T T
results suggested that D2’s intellectual ability fell into the
U average range. She had no difficulty to differentiating right U
CRT32/1.11.2023/TB 13 DCCC 335/2022(2)/Sentence
V V
A from wrong. It was remarked that D2 was impressed to be under A
psychological abuse by D1 during their relationship. Being in an
B B
abusive relationship made D2 feel depressed and anxious, have low
C
esteem, and lose a sense of control. She accepted many unreasonable C
arrangements by D1 without suspicion. The cut off from family and
D friends worsened the situation as D2 could not get enough social D
support from truly reliable persons. It was concluded that D2 was
E E
in an abusive and manipulative relationship with D1. She over-
trusted and relied on her partner that she was not able to make a
F F
sound judgment without the influence of D1 when the injury of her
G daughter happened. D2’s risk of re-offending was deemed low. G
H 63. There is no sentencing guideline relating to this H
offence.
I I
J
64. What D1 did to X in late May 2020 was a double tragedy J
to X. X got scald and left without proper medical wound treatment
K for over one month. And X’s natural mother was charged with ill- K
treatment and neglect and got convicted.
L L
65. X misses her mother and even submitted a drawing as
M M
attached to the mitigation bundle to show her affection towards
N her mother. It depicts a crying face with lots of tears. It shows N
X’s affection towards her mother despite what she got from her
O mother during the material period. X wrote she does not blame her O
mother, and asks the Judge to forgive her mother.
P P
Q
66. It is heartbreaking to see a young girl could pardon her Q
mother in this perspective, and it is also touching to see the
R kind-heartedness of X. R
S S
67. But from what was reported in the psychological report
and D2’s mitigation letter, she still maintains a deep sense of
T T
denial. She claims that it was because of her upbringing and her
U disposition that caused her to rely on and be cheated by D1. She U
CRT32/1.11.2023/TB 14 DCCC 335/2022(2)/Sentence
V V
A seems to suggest that her role during the material period was A
secondary. D1 was the one to blame, not her. In my view, it is
B B
obvious that D2 just cannot face the reality and the nefarious
C
nature of the offence. C
D 68. If one looks at the photo taken shortly after the D
incident, X’s injury is horrible. Her skin was scalded to the
E E
extent that part of her skin was like a large piece of a skin-
coloured plastic sheet attached to part of her body. X got no
F F
proper medical treatment for over one month. X developed a mild
G fever a few days after the incident. The various medical reports, G
including the updated one, speak volumes about X’s scald and wound.
H X did not provoke D1 to hurt her. H
I I
69. X had to be hospitalised for 10 days in early July, and
J
was taken care of by wound nurses. J
K 70. How could a reasonable person treat a child like that? K
How could a reasonable mother treat her only child like that? One
L L
wonders. X is an adorable and good-looking girl, and I believe
when she grows up and reaches adulthood, she may have to undergo
M M
certain cosmetic surgery.
N N
71. Taking all factors into account, I consider that it is
O necessary to give a sentence of deterrent effect to show the O
gravity of the offence. I would adopt a starting point of 1½ years
P P
(18 months). D2 was convicted after trial and should not have any
Q
discount in sentence. That said, I am sympathetic to X and am Q
convinced that D2 would not re-offend. Given a powerful support
R from D2’s family and relatives, particularly, her own daughter X, R
I am sure D2 will ask for psychological service to enhance her
S S
assertiveness in relationship, as suggested. Hence, I will reduce
the sentence by 3 months, and send D2 to prison for 15 months.
T T
U U
CRT32/1.11.2023/TB 15 DCCC 335/2022(2)/Sentence
V V
A Postscript A
B 72. Although any defendant in a criminal trial has a choice B
to choose one of the official languages to be used at trial
C C
(see section 5 of the Official Languages Ordinance, Cap 5), it is
prudent for the Prosecution to insist and make the application
D D
that for this kind of offence, it is better to use Chinese as the
E medium. It is particularly the case if the victim is a local child, E
in the present case, a girl aged 5, and the defendants and those
F potential Prosecution witness and defence witnesses are all local F
Chinese who, I suppose, are not proficient in English. To this
G G
end, the court respected the performance of Mr Boyton and his
H
junior, Defence counsel for D2 in this case. H
I 73. The problem is when this case was first brought to I
District Court for plea on 12 May 2020, no mention was made by any
J J
party that this case should be heard in Chinese. On that occasion,
D2 was represented by Ms Koo of Counsel. On 7 July 2022 and 18
K K
August 2022 respectively, D2 was represented by Mr Leung of
L Counsel. Again, no mention was made about the use of language. L
It was only on the 4th appearance on 29 September 2022 that the
M case was listed to be heard in English. Whilst I do respect the M
performance of Mr Boyton and his junior, Defence counsel for D2 in
N N
the trial, I have to view the trial proceedings in a broader
O
perspective as the child victim, aged about 6 by then, gave her O
videoed interview in Chinese and would be cross-examined by Mr
P Boyton in English. That is not a desirable state of affair as P
fairness should be done to all parties concerned, and that covers
Q Q
the possibility of any difficulties in interpreting the actual
meaning and words used by one party.
R R
S S
T T
(Stanley Chan)
U District Judge U
CRT32/1.11.2023/TB 16 DCCC 335/2022(2)/Sentence
V V