HKSAR v. LEUNG YEE KWAN

CACC 382/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 382 OF 2001

(ON APPEAL FROM DCCC 233 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 28 August 2001, following a ten-day trial in the District Court before Deputy Judge Law, the Applicant, aged 28, was convicted on six charges alleging assault in varying degrees on the same victim and a further charge of doing acts tending and intended to pervert the course of public justice. In all, the Applicant was sentenced to three and a half years' imprisonment.

2. The Applicant now seeks leave to appeal against conviction.

Prosecution's Case

3. The prosecution's case was straightforward. The victim was an Indonesian domestic helper who had been employed by the Applicant just over a month before the first assault in this alleged series of assaults upon her. These were all said to have occurred in the Applicant's flat in Sha Tin.

4. The first charge related to common assault on 28 August 2000. The next four assaults alleged that the victim suffered actual bodily harm. These offences were said to have been committed between 8 September 2000 and 10 October 2000.

5. The sixth and last offence of violence was by far the most serious. This took place on 11 October 2000 when it was alleged that the Applicant caused grievous bodily harm to the victim with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212.

6. The last charge alleged that the Applicant "repeatedly threatened" the victim that she would "cause someone to kill the (victim's) husband and children" if the victim disclosed to anyone the true cause of her injuries. These threats were said to have been made at the hospital where the victim had been taken following the last assault upon her.

7. It is unnecessary in the light of the grounds of appeal to go into detail about the precise nature of the assaults on the victim or the threats made at the hospital. It suffices to say that over a period of forty-five days it was alleged that she was subjected to considerable physical abuse. Principally, this was done by kicking and hitting the victim on sensitive parts of her body accompanied by humiliating demands that she should kneel, squat or lie down on the floor before having punishment meted out to her.

8. The last attack on the victim was so severe that after she had gone out to obtain medicine from her employment agency in Central, she collapsed on the KCR station platform. The victim later became aware that she had been taken to hospital. She found that the Applicant was holding her hand when she regained her senses. The Applicant's threats were allegedly made to persuade the victim to give a false account of how she had received her injuries.

9. Medical evidence (and photographs) revealed that the victim's body was covered with bruises. Some of these injuries were caused at different times. A CT scan revealed that there was a rupture to the liver causing internal bleeding and that there was a hairline fracture to a rib. The internal bleeding arising from the injury to the liver was potentially life-threatening.

Defence

10. The Applicant elected to give evidence. She denied, as she had earlier done to the police, having inflicted any physical injury to the victim and she also denied threatening the victim at hospital as to the consequences of speaking the truth about how she had come to receive her injuries. The judge found the Applicant's testimony to be "evasive" and "unreasonable and unbelievable".

11. The only other witness called for the defence was a caretaker called Yiu Chuen-chung who added nothing to the Applicant's case.

The application

12. Four grounds of appeal were advanced on the Applicant's behalf to suggest that the convictions were unsafe or unsatisfactory.

13. In the first of these, it was submitted that the prosecutor at trial breached the terms of section 54(1)(b) of the Criminal Procedure Ordinance, Cap. 221, amounting to a material irregularity. The section, so far as it is relevant to these proceedings, provides:

"54. Competency of witnesses in criminal cases

(1) Every person charged with an offence, and the wife or husband as the case may be of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person:

Provided as follows-

(a) ...

(b) the failure of any person charged with an offence, or of the wife or husband as the case may be of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution; ..."

14. It was contended by Mr Wong Man-kit, SC, appearing for the Applicant, that the prosecutor had repeatedly commented on the Applicant's failure to call her husband leading to the comment in the written closing speech for the prosecution to the effect that the only witness called to support the Applicant's evidence was Yiu Chuen-chung. It was submitted that this in fact amounted to a comment that the Applicant had failed to call her husband.

15. A perusal of the cross-examination conducted by prosecuting counsel reveals that on a number of occasions the Applicant was asked whether the things she had described would also have been seen or noticed by her husband. No objection of any kind was taken to these questions by experienced counsel for the defence. Often the Applicant replied in the affirmative. Towards the end of cross-examination, the Applicant replied:

"My husband can be a witness at any time." (Appeal bundle p. 252)

In the event, the Applicant's husband was never called and the prosecutor made no comment in his final speech on the failure by the defence to call him. The prosecutor did, however, in the passage to which we briefly referred earlier, pour scorn on the defence calling Yiu Chuen-chung, whose worthless evidence had added nothing to their case, when he said that this was the only witness called "from amongst all the witnesses one might have expected to hear from to support the defendant's case in whole or in part ...." In the course of cross-examination, the prosecutor had extracted the names and identities of others besides the Applicant's husband who could have supported parts of her account, for example, employment agency personnel and a doctor (appeal bundle pp. 207 and 217).

16. In any event, the judge was well aware of the rule under section 54(1)(b) (above). He said in his Reasons for Verdict:

"It was raised by the prosecution that her husband was, at least, on some occasions at home and could be the best witness to testify. I must emphasise that the failure to call a husband cannot be held against the defendant, otherwise that will shift the burden on the defendant to prove her innocence. Furthermore, under section 54(1)(b) of the Criminal Procedure Ordinance, a failure to call a spouse to testify for a defendant shall not be subject to any comment." (Appeal bundle p. 40)

17. Not only was there no breach of the requirement in section 54(1)(b) of the Criminal Procedure Ordinance, it is apparent that the judge attached no weight to the absence of the Applicant's husband as a witness or to any suggestion which the prosecutor had made in his cross-examination about matters which the Applicant's husband might have been in a position to confirm or deny.

18. There was no substance to this ground.

19. In his second ground, Mr Wong submitted that the judge had rejected the Applicant's evidence for the "wrong reasons". This ground, as Mr Madigan, on behalf of the Respondent, correctly expressed it in his written submissions which he adopted, amounted to an argument based on an inaccurate reading of the judge's Reasons for Verdict. Mr Wong had pointed to four areas of complaint against the victim about which the Applicant had given evidence, summarised by the judge in paragraph 64 of his Reasons, which Mr Wong suggested would, if they were true, have "annoyed" the Applicant. His contention was that these complaints could hardly be described, in the words taken from the Reasons for Verdict, as "unreasonable and unbelievable".

20. Mr Wong's error on this ground was to think that the judge was saying it was "unreasonable and unbelievable" for the Applicant to be annoyed by these four incidents. The judge said no such thing. In fact, in the next paragraph of his Reasons, as Mr Madigan was able to demonstrate, the judge set out what it was that he had found to be "unreasonable and unbelievable". Perhaps the judge might have expressed what he intended to say more clearly, but the effect of what the judge was saying was that in the light of all the complaints which had annoyed the Applicant, it was unreasonable and hard to believe that the Applicant would allow the victim to remain in employment by reason, as the Applicant had asserted, of a "good heart" if, as the Applicant had also said, a replacement for her was being found through the employment agency. Furthermore, as the judge effectively went on to say, if the victim had poorly conducted herself at her place of employment, and had followed this by making a false allegation against the Applicant of the serious assault which had led to her being in hospital, it was not possible to accept that the Applicant, as she had testified, had offered to pay the private medical expenses of the victim by sending her to a private hospital.

21. Again, there was no substance to this ground.

22. The third ground is one which, in our opinion, again failed to advance this application. It complained that the judge had omitted to deal with aspects of PW7's evidence which could be viewed as "favourable" to the Applicant.

23. The aspects to which Mr Wong referred were peripheral to the main issues and they by no means clearly or unambiguously favoured the defence. A judge sitting in the District Court does not, as this court has so often had to say before, have to set out his findings on every aspect of the evidence. The judge must make a value judgment about which parts of the evidence are of sufficient importance to require assessment when arriving at a verdict. Provided the Reasons for Verdict have broadly dealt with the important evidential issues which have arisen in the trial, no complaint can validly be made that side-issues or matters of relative insignificance have been omitted from specific assessment.

24. Ground 3 had no merit.

25. In the fourth and last ground, it was submitted by Mr Wong that it was "inherently improbable that after the Applicant had badly assaulted the victim, she would still take the initiative to report to the police to try to locate (the victim)".

26. It was common ground that the Applicant had been in touch with police on 11 October 2000. This was dealt with by the judge in the following terms:

"At about 11 am PW1 phoned home, telling the defendant that she had bought some chicken wings and also saying that she was at a train station, but the defendant did not ask which station she was at. The defendant asked PW1 what she was doing there, but PW1 did not give an answer and said she had lost her way home. PW1 further said she saw a policeman and the defendant told her to ask the policeman the way home. At about 11.30, since PW1 still had not returned home, plus the earlier strange telephone conversation, the defendant made the phone call to Sha Tin Police Station, making enquiries about what happened to PW1. About 20 minutes later the defendant received a phone call from the police, saying that PW1 was setting off for the hospital as PW1 had been knocked down and assaulted by her employer. The defendant then rushed to the hospital." (Appeal bundle pp. 32-33)

27. There might be several reasons why the Applicant, in all the circumstances of this case, would wish to contact police. We do not propose to descend into the realms of speculation considering them and, quite rightly, neither did the trial judge.

28. This ground was bereft of merit.

Conclusion

29. There has been no substance to any of the matters raised in this application. The evidence against the Applicant of cruel and sustained violence towards her domestic helper was overwhelming. There were no grounds whatever for saying that the convictions were unsafe or unsatisfactory.

30. The application is dismissed.