Woman who assaulted four-year-old granted motion to appeal her sentence
The B.C. Supreme Court has given a woman who was convicted of assaulting a four-year-old boy a chance to fight potential deportation.
Feng Eng, who has permanent resident status, but has not become a Canadian citizen since immigrating to Canada from China in 1992, pleaded guilty in June 2016 to one assault causing bodily harm and assault with a weapon.
The offences are related to an incident on July 1, 2015, when the boy and his grandmother were in the backyard of a B.C. residence where Eng, a mother of two adult children who is now in her mid50s, lived.
Angered by the noise they were causing, Eng seized a kitchen knife with a 12-inch blade, ran outside and attacked the boy, who is identified only with the initials D.W. in a court ruling on the case.
The grandmother tried to intervene, but suffered cuts to her hand when she tried to grab the knife from Eng.
Hearing the screams, D.W.’s father came running, tackled Eng and took the knife from her.
D.W. suffered serious physical injuries, spending seven days in the hospital and requiring stitches to the front, back and side of his head.
Eng, who had a history of serious mental illness going back at least 15 to 20 years, was sentenced to six months less a day in jail.
The sentencing judge had received submissions that if a sentence of six months or more was imposed, Eng would be inadmissible to Canada and could potentially be subject to a deportation order and have no right to appeal that order.
The judge also noted that Eng had credit for pre-sentence custody amounting to 5½ months, but said that the sentence should not be looked at as an actual sentence of 11½ months minus the 5½ months.
Eng appealed the sentence, but abandoned that appeal in October 2017, when the Crown advised her that it intended to have the sentence increased.
She was released from prison on Oct. 31, 2017, but shortly afterward was served notice that immigration authorities might seek to have her removed from Canada.
In February, the Canada Border Services Agency issued a report recommending she have an admissibility hearing with the report writer being of the opinion that she was inadmissible.
She met with a new lawyer and learned that under the pertinent immigration regime and authorities, an offender’s credited presentence custody period is considered together with their actual sentence in determining the term of imprisonment.
In other words, her total sentence for the purposes of determining her right to appeal a deportation order was 11½ months, not the six months less a day jail term.
She sought clarification from the sentencing judge, who is not identified in the B.C. Supreme Court ruling, but was told that the matter would be left with the immigration authorities to decide the effect of his sentence. Eng got the immigration matter adjourned and filed a motion seeking to have her sentence appeal reinstated.
In his ruling, B.C. Supreme Court Justice Peter Voith said he was unable to determine with any measure of confidence whether the sentencing judge gave her an effective sentence of 11½ months. Voith said it was clear that the Crown and defence at the sentencing hearing did not understand the immigration regime or how pre-sentence custody should be considered.
“The sentencing judge, in turn and not surprisingly, does not appear, respectfully, to have fully understood the potential consequences that he determined was appropriate.”
The judge allowed the sentence appeal to be reinstated, noting that Eng had been in Canada for more than 25 years, had no other criminal record and had her husband and children living with her.
“She was not advised of, and did not properly understand, the potential consequences of her abandoning her sentencing appeal.
“In such circumstances, I do not think right-thinking members of the public would be disturbed by Ms. Eng pursuing her appeal or would believe that the interests of justice were not being served.”