HKSAR v. CHIU SHUN LAN

HCMA 382/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 382 OF 2006

(ON APPEAL FROM ESCC 4425/2005)

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J U D G M E N T

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1.  The Appellant was convicted in the Magistracy after trial, on one count of Assault Occasioning Actual Bodily Harm, contrary to s.39 of the Offences Against the Person Ordinance, Cap. 212.  She was sentenced to 180 hours of community service and appeals against conviction only.

2.  The prosecution alleged that on 2 August 2005, the Appellant assaulted her female domestic helper (PW1), a 23 years old Nepalese.

3.  A medical report as at 5 August 2005 recorded injuries to PW1 as: swelling, redness, abrasion at right forehead; pain on the right side of the face, right upper back and right thigh.

4.  The incident allegedly happened about 8 am when the Appellant was having breakfast alone in her flat.  She had told PW1, who wished to use the lavatory, to return to the kitchen. When she did not do so the Appellant stood up and kicked her hard on the left thigh.  This caused PW1 to fall to the right, bumping her right forehead on the wall.

5.  The defence was a complete denial and an allegation that PW1 had framed the Appellant.  Allegedly that was done at the instigation of Sita, (PW2), a friend of the victim also from Nepal, to enable PW1 to stay in Hong Kong and work illegally after her contract was terminated.

Grounds of appeal

6.  The conviction was said to be against the weight of the evidence and that the Magistrate had erred in assessing the evidence.

Ground 1

7.  The first ground was that the Magistrate had made a prejudicial and improper comment, when, in referring to the victim's evidence about the sites of her injuries, he said:

“I believe she might be referring to the locations of other assaults by the D previously” (B47)

Ground 2

8.  The second ground set out a number of instances where it was contended on behalf of the Appellant the Magistrate had failed to give sufficient or any weight to evidence:

(a)     that a medical visit was arranged for PW1 the day before the alleged assault;

(b)    that telephone calls were made to arrange her travel before the alleged assault;

(c)     that PW1 did not make any complaint or report on the day of the assault;

(d)    that although the Appellant allegedly kicked PW1 on the left thigh, she complained of pain only on the right thigh;

(e)     there was no clear explanation of the relative positions of PW1 and the Appellant and the Magistrate failed to take into account that the most natural reflex of someone being kicked on the left side is to fall to the left side;

(f)     that the Appellant phoned PW4 on 1^st, 2^nd, 3^rd and 4^th Aug, an employment agent, on several occasions;

(g)     of the “incredible” coincidence that on 4^th August, when PW2 the friend of PW, called PW4, she happened to be in the airport;

(h)     that the Appellant had a clear record yet the learned Magistrate commented: “However, she had motive to do so as she might lose her temper on the incompetence of Tamang.  I find she is as smart as she is manipulative on Tamang's affairs”;

Ground 3

9.  The third general ground was that in his Statement of Findings the Magistrate was unreasonable in drawing inferences and reaching conclusions, and had wrongly taken some matters into account.

Facts of Prosecution Case

10.  PW1 had been employed on a 2 year contract as a domestic helper by the Appellant.  She worked from 24 March 2005 to 4 August 2005; the contract was terminated prematurely when she proved unsuitable.  She was 23, educated only to primary level and had left Nepal for the first time to work in Hong Kong.

11.  Another helper, Sita, PW2, had been working in Hong Kong since 2001 and a Ms Ng Mei-ying, generally known as Mrs Leung, PW4, a friend of Sita's aunt, had helped bring PW1 to Hong Kong and introduced her to work for the Appellant.  From an early stage it was plain that PW1's lack of training and inadequate language ability made her an unsuitable helper for the Appellant, who was engaged full-time running her own tutorial school.

12.  As early as 28 May 2005 the Appellant began the process of re-employing her former maid.  On 6 July she applied to the Immigration Department to substitute her former helper, Chandra(DW2) for PW1.  The Appellant claimed that PW1 was given written notice of termination on 28 July 2005, although PW1 denied that, claiming that she was not given any definite information until the morning of 4 August 2005.

13.  PW1's evidence was that about 8 am on 2 August 2005, she served breakfast to the Appellant in the dining room.  She went to use the lavatory, but the Appellant told her to return to the kitchen - she did not do so.  At that point, the Appellant stood up and kicked her on her left thigh, causing her to fall to the right and hit the right side of her head against the wall.  This raised a bump on her right forehead above the eyebrow.

14.  On the same day, the Appellant ordered an air ticket for PW1 to fly home on 4 August, departing at 16:35.  On 4 August, she and her husband took PW1 to the airport, intending to put her on the plane, and refused to allow her to talk to Sita and Mrs Leung who turned up at the airport.  After an argument, during which police were called, PW1 was allowed to stay, as domestic helpers are permitted to remain for two weeks in Hong Kong after premature termination of contract.

15.  At that time, Sita and Mrs Leung saw PW1 was upset, and noted the injury on her forehead.  Up to that time, PW1 had not complained to anybody, nor made any reference to the injury.  On 4 August PW2 took a photograph of the injury, (Exhibit P2).

16.  On 5 August, PW2 took PW1 to the police station to file a complaint of assault.  Examination at Queen Elizabeth Hospital revealed swelling, redness, abrasion at right forehead; local pain at right face, right upper back and right thigh but no external wound; the diagnosis was “multiple soft tissue injuries”.  Rather too belatedly, on 24 August 2005, the police took a photograph of the forehead injury, which by that time was only just visible. (Exhibit P7)

Ground 1

17.  The Magistrate (B46) commented “The prosecution confines the evidence on one assault concerning the charge, but the defence chooses to bring out other evidence of other assaults, as stated in Tamang's (PW1's) witness statement to the police, in order to deny them.  Tamang had been assaulted by the Defendant at least twice before.  In the medical report, Tamang referred, in addition to her forehead, to her right face, right back and also right thigh and she explained that the pain on her right forehead led to pain on her right face and on her right side.  I believe she might be referring to the locations of other assaults by the Defendant previously.”

18.  The sentence complained of to be accurate should read, “I believe she might be referring to the locations of other alleged assaults by the Defendant previously.”  However it is read, there is no indication that the Magistrate did anything other than refer to the allegations - nor that he relied on irrelevant matters raised during PW1's cross-examination.

19.  After considering the Magistrate's Statement of Findings, and the transcript of evidence I am satisfied that his comment did not show that he had relied on evidence which was irrelevant or unrelated.  Defence counsel at trial had cross-examined PW1 about other, earlier, alleged assaults contained in PW1's witness statement but not relied on by the prosecution or led in her evidence in chief.  The Magistrate noted these were irrelevant as he was required to decide a single charge of AOABH on a specific date.  It was only to affirm that duty that he made the comment.  In so doing he was ruling out any speculation on the topic.

20.  In a similar conclusion (B38) the Magistrate refused to allow further inquiry into suggestions that PW1 may have been exploited as an employee by the Appellant and/or Mrs Leung.

Appellant's Submission on Magistrate's Handling of Evidence

21.  Counsel for the Appellant, in a written submission, (paragraphs 6A - 6G) challenged evidence given at trial, alleging the Magistrate's failure to give sufficient or any weight to relevant aspects.  Overall, I am satisfied that the Magistrate did take them into account in his Statement of Findings as required.

22.  6A suggested that as the Appellant took PW1 to a doctor on 1 August 2005 for an unrelated matter it showed her caring attitude which militated against the likelihood of the Appellant assaulting PW1.  The Magistrate noted this submission but accepted PW1's evidence nonetheless; such care did not rule out an assault.

23.  6B examined the arrangements for PW1's air travel, which were made before 5 August 2005 and which Appellant considered cast doubt on PW1's complaint and supported the existence of a frame-up.  The Magistrate was alive to that question but rejected it, as he found PW1 a credible witness.

24.  6C related to PW1's failure to make any complaint or report on the material day.  The Magistrate noted PW1's age, poor education and lack of experience in Hong Kong, and accepted her reason for not complaining to anybody.  As PW1 had been in Hong Kong for a very short time and was in a vulnerable position as a domestic helper it is unsurprising to find her chief worry at that time was remaining in employment, rather than reporting the assault.

25.  6D,which related to the kick occurring on PW1's left thigh, but only pain on the right thigh being complained of was dealt with by the Magistrate, who was aware of the details of the defence contentions on this point.

26.  6E referred to the Magistrate's failure to take into account, what counsel described as the most natural reflex action in such a situation.  No evidence at trial confirmed or supported this, unless one accepts, counsel's submissions as evidence.  PW1's evidence of what happened was accepted by the Magistrate who correctly identified the credibility of PW1 as the main issue.

27.  6F concerned telephone calls made between the Appellant and Mrs Leung from 1 - 4 August 2005 in relation to PW1's contract and her return to Nepal and what if any knowledge PW1 had of them.

28.  6G refers to an “incredible” coincidence ofPW2 and PW4 being at the airport at the time PW1 was leaving.  As it was a Royal Nepal flight, as PW2 wanted to send something back to Nepal and when, on the morning of 4 August 2005, PW2 had confirmation of PW1's departure, their joint presence might be described as inevitable rather than incredible.  Nor, given that PW4 Mrs Leung, acted as an agent for employers and employees is there anything strange or inherently improbable about her presence in the airport.

29.  The Magistrate (6H) took full account of the Appellant's clear record and her background.  He was entitled to consider in light of her allegations of a frame-up whether she had a motive or reason to be upset about PW1's unfitness for her duties and entitled to comment on her apparent manipulation of PW1' s affairs to enable her to re-employ her former helper.

Evidential Matters Allegedly Wrongly Interpreted By Magistrate

30.  Counsel for the Appellant submitted further (paragraphs 7A - 7J) that other matters were wrongly interpreted by the Magistrate in reaching his verdict.

31.  7A refers to the Magistrate's allegedly pejorative references to the Appellant's practice of employing maids for one contract of two years.  He was stating the obvious; it was not disputed that previous maids had worked for a single 2 year contract.  In so stating the Magistrate made no adverse finding.

32.  7B was a complaint that the Magistrate had not considered the source of the Appellant's knowledge that Nepalese who were ill-treated, exceptionally, were allowed to remain in Hong Kong.  He was entitled to comment as he did given that the evidence of the Appellant does not appear to have been specific on that point.

33.  Similarly at 7C, the Magistrate was examining the inherent probabilities of what allegedly occurred and had noted that if PW1 wanted to stay in Hong Kong, both Sita and in particular Mrs Leung could have assisted her.  It was not speculation on his part.

34.  7D referred to the communication problems between the Appellant and PW1 and the Magistrate's alleged misinterpretation of them.  The Magistrate found that the Appellant was not happy with PW1 as a helper - she lacked training and her poor English made communication difficult.  It was obvious from the evidence that she had intended to replace her at a time much earlier than the date of the alleged assault; there was no misinterpretation by the Magistrate.

35.  Similarly at 7E, the Magistrate was entitled indeed obliged, (the matter having been raised on behalf of the Appellant ) to consider whether the contract terminated because PW1 was homesick or because the Appellant was unhappy with her work.

36.  7F referred to 3 written entries made by PW1 in a notebook (Exhibit D2) either as a reminder of her chores or of what was expected of her.  Counsel for the Appellant took issue with the Magistrate saying “I put these three reminders in logical order,” attempting to do so from their positions in the notebook and from PW1's own evidence.  The Magistrate considered the notebook was one of several things which showed PW1 was keen to stay in Hong Kong and work.  It was of little relevance insofar as the charge was concerned, but of some peripheral value in considering PW1 ‘s alleged desire to return to Nepal.

37.  He also found (7G) that a squabble on 9 August 2005 between PW1 and PW2 on one side, and Chandra, DW1, on the other, was another indication PW1 was not homesick and wanted to keep her job.

38.  7H and 7J related to two letters sent by the Appellant in support of her application to send PW1 back to Nepal and re-employ her former helper.  PW1 denied that the letters written by the Appellant, dated 28 July 2005 and 4 August 2005 were correct in stating that she wanted to go home because she was homesick.  It was submitted that the Magistrate erred in concluding that the Appellant was dominant and manipulative of PW1's affairs in so doing.  However, the Magistrate was justified in making such a comment in the light of his finding that the letters were untrue; he having accepted PW1's evidence that she signed the letters as directed, without being told their full content.

39.  7I and 7L related to complaints that the Magistrate was speculating on evidence about the termination of PW1's contract and arrangements made for the issuing of her air ticket.  In fact he reviewed the inherent probabilities of what had or might have happened, in light of the defence allegations and made findings accordingly.

40.  7K was a submission that the Magistrate had misunderstood the Appellant's evidence about the time of the alleged assault in relation to the Appellant's need to go to work and to prepare for her teaching classes.  The Magistrate (B41) understood and examined this.

41.  7M related to the lack of any complaint of assault - that point repeats the submission 6C and has been dealt with at para. 24 above.

42.  In conclusion, Counsel submitted that there was a lurking doubt as to how and by whom PW1's injuries were caused and whether those injuries were properly the subject of the charge.  I am satisfied that the Magistrate, was aware of the elements of the charge; that he assessed the evidence; dealt with the particular issues raised by the defence and, in particular, was aware he had to be satisfied beyond reasonable doubt of the truth and accuracy of PW1's evidence.

Defence Case

43.  The Appellant, who denied the assault, gave evidence there was no bump on PW1' s forehead on 4 August up until the time she left her in the airport.  She claimed that PW1 was trying to frame her.  It was her belief that PW2 was the main instigator and that PW4 had been pressured into helping PW1 and PW2, so that PW1 could stay in Hong Kong and work illegally.  To support this contention the Appellant produced a press release of 3 June 2005 from the Immigration Department, announcing that from 6 June 2005, visa applications would not be accepted from nationals of Nepal who sought employment in Hong Kong as domestic helpers.

44.  The Magistrate commented that from some source, the Appellant knew that maids who were ill-treated by employers would be excepted from this provision.  He took her to be suggesting that PW1, with PW2's assistance, was trying to take advantage of this exception.  It was suggested that the injuries were caused deliberately by PW1 herself.

45.  The Magistrate examined the history of the Appellant's employment of maids.  He found that lack of training and communication problems meant PW1 was not a satisfactory employee; that the Appellant tried to replace her and indeed succeeded in doing so, by applying to substitute her previous maid.  He did not believe the Appellant's evidence that PW1 was homesick and anxious to return home.

46.  Nor did he accept the Appellant's evidence that, as PW1 knew about the termination from 28 July 2005, she and PW2 contrived to plot against her to allow PW1 to stay in Hong Kong.  The Magistrate, (B34), examined the probability of this occurring and was of the view that if PW1 had wanted to stay in Hong Kong, she could have done so without having to injure herself intentionally as the Appellant alleged.

47.  The Magistrate found support for PW1's intention to stay in Hong Kong by the entries in her notebook, her distress at the airport and refusal to check in, and also because of a dispute between her and DW2, during which she accused DW2 of stealing her job.

48.  The Magistrate also accepted the evidence of PW1 that the 2 letters sent to Immigration Department by the Appellant were signed by her, without her being allowed to know the contents and that she knew of the termination and almost instant return to Nepal only on the morning of 4 August 2005.  The Magistrate considered that the letters, which he found to be untrue, showed that the Appellant was manipulative and dominant in PW1's affairs and he made the comment he was entitled to make, that it would be in the Appellant's interests to keep the termination secret from PW1 until the last moment to avoid her unpredictable reaction.

49.  The Magistrate examined the evidence of PW2 and PW 4 but did not find it surprising that both of them were at the airport at the same time.  In fact, the evidence made it clear that PW1 had told PW2 she was going to the airport that afternoon; PW2 went there to receive something for someone who came in from Nepal.  The Magistrate found that PW2 had not gone to the airport in relation to PW1's affairs but was there at the time she arrived.

50.  The Magistrate (B38) ruled out any consideration of allegations of exploitation of PW1 by the Defendant and/or Mrs Leung and he ignored such allegations when assessing the credibility of the Appellant, DW2, PW4 and PW1.

51.  In assessing the evidence given by the Appellant's 2 sons and husband, the Magistrate found that they were poor witnesses and he did not believe any of them.  None of them claimed to have witnessed the incident.

52.  The question arose at trial whether PW1 had hit her head on what she claimed was a wall.  The Appellant denied that any wall existed.  It appears from the photographs and the evidence that there was no wall as such - what was there might more correctly be described as a doorframe or doorjamb or a dividing wall's edge.  Although the niceties of architectural nomenclature may have been beyond PW1, her account of what happened to her head when it hit against the hard surface she understood to be a wall was not.  The Magistrate was entitled to find, as he did, that PW1 had suffered the injury to her forehead as a result of the action of the Appellant which she described.

53.  He did not accept Counsel's submission that PW1's only natural reaction when kicked was to fall to the left.  Clearly he accepted PW1' s evidence that she fell to the right and bumped her right forehead against what she described as a wall.  Ultimately, this was a matter for the Magistrate to take into account in deciding whether the evidence of PW1 was credible and accurate.

54.  The Magistrate concluded, having heard their evidence, that neither PW2 nor PW1 was particularly intelligent and for that reason found it highly unlikely they would be capable of contriving a situation where they framed the Appellant.  He found as a fact they had not done so.

55.  Most, if not all, of the matters raised on this appeal were raised at trial and considered in the Magistrate's Statement of Findings.  He was aware of the issues relating to the charge.  He was aware of the points raised by the defence, in particular, the failure to report the assault, the nature and type of PW1's injuries and the description by PW1 of her injury occurring on her right side when her complaint was of a kick to her left.  PW1 was cross-examined at length and in detail.

56.  It is trite to say that the Magistrate who saw and heard the witnesses is best able to assess credibility, but that it is trite does not make it wrong.  Here the Magistrate believed that PW1 was telling the truth about what had happened.  He ruled out extraneous or irrelevant issues, such as the alleged breaches of employment terms and the question of earlier assaults elicited by the defence during cross-examination of PW1.

57.  In conclusion I note that this appeal adopts a form that appears to be increasingly common.  It is based on the very understandable premise that a convicted appellant is unhappy with the decision of a Magistrate resulting in a conviction.  A thorough trawling of the Statement of Findings for Verdict is then essayed from which a list of alleged errors, discrepancies or mistakes attributable to the Magistrate is compiled.  Further material of a similar nature is gleaned from any transcripts of witnesses' evidence.

58.  From that material comes, in the main, not true grounds of appeal but alternative renderings of factual material, most, if not all, of which was before the court at trial and considered by the court prior to the verdict.  What is attempted at the appeal is a re-arrangement or repetition of matters dealt with at trial.

59.  In so proceeding counsel relies on alleged errors and discrepancies, most of which are neither, but are made to appear so either because they are not read in their proper context, or because they are examined in isolation from the totality of the evidence.  If the court purports to make a finding of fact complaint is made that it lacks support - yet, if the court examines the inherent probabilities, (as courts are encouraged to do) ensuing comments are dismissed as speculation.

60.  Infelicities of expression or slight disorders of syntax or grammar are singled out and accorded the status of appeal grounds, when their meaning is clear if read in context, or if, as is often the case, their significance is assessed or clarified elsewhere in the evidence or findings.

61.  Other submissions may amount to an attempt to incorporate new evidence, as shown by the comment about the natural reflex action of a person kicked in the left thigh falling to the left rather than the right, or the submission that a bruise must have resulted necessarily from the kick described.

62.  Those matters were considered by the Magistrate who was aware of counsel's submissions.  He was satisfied that the head injury resulted from the kick.  He knew the issue was credibility and accepted PW1 as a witness of truth.  The Appellant's allegation of a frame-up was considered by him and rejected.  In that context it might be said that if as alleged, the injury was self-inflicted and/or a frame-up was arranged with significant help from PW2 and PW4, one might have expected a more detailed, better concerted allegation and one linked more closely to relevant medical evidence.

63.  The Magistrate before convicting had to be sure that PW1 was a credible witness who had given accurate and truthful evidence and that all the elements of the offence had been proved.  He was obliged to recognise (as he did) that the Appellant bore no burden and he had to give her full credit (as he did) for good character, both as to propensity and credibility.  The Appellant had alleged collaboration of the prosecution witnesses, the likelihood of PW1's injuries being self-inflicted and a frame-up.  The Magistrate had to examine those matters (and did so).  As a corollary he had to consider whether PW1 was returning to Nepal because she was homesick, or returning unwillingly, so the Appellant could reinstate her erstwhile domestic helper, DWl.

64.  Overall the Magistrate was correct in the way he dealt with this matter; accordingly the appeal is dismissed.