HKSAR v. NG BIK MAN

HCMA 56/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 56 OF 2009

(ON APPEAL FROM TWCC NO. 2782/2008)

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J U D G M E N T

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1.  This is an appeal against a conviction for inflicting grievous bodily harm contrary to section 19 of the Offences Against the Person Ordinance and the consequent sentence of seven months imprisonment.

2.  The case for the prosecution was that the appellant, a married lady of hitherto good character, burnt the inner forearm of her Indonesian maid with a hot iron.  No one disputed that the maid had such an injury and that it was rightly described as grievous bodily harm.  The injury was photographed.  The nature and extent of the burn was entirely consistent with the application of the flat bottom of a hot domestic iron to that part of her body.  No one has ever suggested otherwise.

3.  The maid was PW1.  She described how on the morning of the 12 August 2008, in the course of her employment which had commenced in June 2008, she was ironing in the living room and keeping an eye on the eighth month old son of the appellant who was in a stroller.  She said that at a time when the baby moved closer to her, the appellant appeared behind her, scolding her, saying was she aware of how hot the iron was and did she appreciate what would happen if one touched it, her obvious concern being that the baby touch the hot iron.  PW1 said that she said sorry and the appellant said to her "do you know how hot the iron is?", whereon the appellant, now face to face with her, picked up the iron and said "you try it, you try it".

4.  The transcript shows that at this stage PW1 demonstrated in court what the appellant did with the iron, namely to thrust it forward towards her face and that she raised her right arm up, so that her forearm protected her face. 

5.  The witness described in words the iron thrusting towards the front of her face and how she used her arm to fend it off when it was very close to her face.  She demonstrated that the iron had come to within 3 to 4 inches of her face. 

6.  The witness described how the appellant then put the iron down with great force and left.  She said her arm was very painful and that she was frightened and shivering.  She related that she collected all her possessions and left, never to return, going to the Indonesian consulate for help and then to hospital with someone who had been summoned from her employment agency.

7.  The case for the appellant, who gave evidence, was that she woke up to find that her maid had gone and taken all her possessions with her and that there was no contact of any sort between the two of them on the morning of the 12 August.

8.  The existence and nature of the burn on PW1's inner right forearm was obviously the cornerstone of the prosecution's case.  It must have been the case that this injury was

1.  caused in the way described by PW1;

2.  caused by deliberate self infliction;

3.  caused by an accident either before or after PW1 left home;

4.  caused by someone other than the appellant;;

5.  caused in a way unknown where neither side will tell the truth about it.

9.  There was evidence given by the appellant at the trial of her dissatisfaction with the performance of PW1.  The matters complained of were of a relatively trivial nature.

10.  The idea that PW1 deliberately applied the iron to her inner forearm in some sort of attempt to deal with a threatened sacking or her employer's dissatisfaction was one that the magistrate rejected and it is one that I would also reject in the absence of a cogent reason to the contrary.  No other fact or matter began to support a self-inflicted burn.

11.  Likewise the magistrate rejected and I would also reject in the absence of a cogent reason to the contrary, the idea that such an injury was accidentally caused domestically, whilst ironing or otherwise, or that PW1 happened somehow to meet with an accident that could cause such an injury between her leaving the appellant's home and reaching the Indonesian consulate.

12.  I judge that the idea of some unknown third party in unknown circumstances causing such an injury as this to be fanciful.  The idea of some third party in the appellant's home doing so and the appellant not being woken and becoming aware of it is not to be sensibly countenanced: likewise the idea that PW1 left the appellant's home with all her goods and then met someone who did this to her in circumstances such she would decide to protect that person and choose falsely to accuse the appellant.

13.  As regards the fifth option, suggested by Mr Macrae SC, I simply cannot envisage any realistic scenario occurring that fits it. 

14.  It is a regrettable fact that such conduct described by PW1 is conduct to which the criminal courts of Hong Kong are not strangers.

15.  On the inherent probabilities, this was a very strong prosecution case.

16.  Mr Macrae SC, whilst sensibly acknowledging the force of the prosecution's case, argues that there is cogent reason not to accept PW1's account.  His written argument sets out the detail of the evidence upon which he relies.  It is sufficient for the purposes of these reasons if I summarise it. 

17.  The attack on PW1 was based on what PW1 said about the timing of the incident and the events of that morning and on the fact that the appellant's husband had set up two video cameras, one a normal video camera on a tripod and the other a so-called needle camera hidden in a plant, in the main room of their home and that according to him the VHS cassette tapes produced by him from the original recordings truly captured the events taking place in the main room between the times shown on the recording made from the video camera.

18.  On the assumption that the time and date on the tape created from the recording made by the video camera are correct, the husband, DW2, can be seen setting the video camera at 6:39 am and leaving the premises at 6:40 am; that PW1 makes an appearance in the living room at 7:04 am; and is seen putting the lens cover on the lens of the video camera at 7:12 am whereafter no picture is recorded but sound was recorded for the ensuing 61 minutes to 8:13 am.  The needle camera ceased recording 13 seconds after the lens cap was put on.

19.  In the 61 minutes of sound recording the only human voice which can be heard on the tape was the sound or noise of a baby.

20.  According to the appellant and her husband they spoke on the telephone at 8:13 am, when she called him to tell him that their maid had packed up and gone and that he should cease work and go to a police station to make a report of it.  No call record was produced although DW2 averred without challenge that one existed.

21.  PW1 had given evidence that she got up somewhere between 7 and 8 am and further questions tended to suggest that it would have been at about 7:30 am she commenced the ironing and that the baby then cried and that it was 10 to 15 minutes from setting up the ironing board to the appearance of the appellant scolding her.

22.  It is therefore argued on behalf of the appellant that the combination of PW1's evidence about time and the contents of the telephone call concerning her absence at 8:13 am between the appellant and her husband meant that the crime had to have been committed before 8:13am but that if it had the sound of it would have been recorded by the video camera.  They say that since there is no such recording there was no such crime or that there must be a reasonable doubt that the crime occurred.

23.  It was also argued that the evidence given by PW1 to the effect that she was unaware that any recordings were being made in the living room and that she did not appreciate the video camera was a camera and that she was just tidying up by fitting the lens cap back on when it had been dangling down and that the turning off of the needle camera occurred accidentally in the course of her cleaning, all these matters were said to demonstrate that PW1 was lying and that she deliberately turned the cameras off for purposes of her own.  The coincidence of the shutting down of both cameras at the same time and the fact that PW1 had worked as a maid for a total of four years and would know what a video camera was, were referred to in support of the contention.

24.  It is not to be doubted that these matters that I have summarised are good and strong arguable points.  They would make any tribunal pause.  The task I have to undertake on this appeal by way of rehearing, as the appellant's counsel points out, is that, mindful that I have not had the advantage of seeing or hearing the witnesses, I have to come to my own conclusion as to whether, in the light of all the evidence, I can be sure of PW1's account.

25.  The reasoning I have already used in concluding that there was a very strong prosecution case depends upon applying judgment and common sense to the undisputed facts concerning the nature and extent of the injury.  An account, such as PW1's, that sensibly has such support will be able to resist attack in a way that accounts which look within themselves for their strength may lack, especially when that strength can be seen to be affected by human fallibility.

26.  Human fallibility is engaged in the defence argument.  The accuracy of the evidence of PW1 concerning timing was clearly fallible.  She repeated that she did not look at a watch and that her answers in this regard were only estimations.  If her first estimation was correct to the effect that she got up at somewhere between seven and eight, then there is obviously scope for finding that the burning took place after 8:13 am if she got up towards the end of that estimated period.  If her estimations of the passage of time and how long things took that morning were fallible, then the building of the defence argument based upon passage of time from when the baby is first heard to cry, will itself be built on a fallible foundation.

27.  One is bound to look and see if human fallibility is engaged by other elements in the evidence which it is argued supports the defence.

28.  Were the times shown on the VHS tape accurate?  This depended upon the testimony of  DW2.  He was asked whether he had ever checked that the timer was accurate.  He answered no.  In response to the suggestion that it could be inaccurate he then said he would check the time on each occasion the camera was switched on.

29.  Was the telephone conversation at 8:13 am between the appellant and her husband really one in which she told him to leave work and to return to Tsuen Wan to make a report in person to the police about the missing maid.  The evidence was that the report by DW2 was made later at 10 am. and that its nature was for him to ask the police what he should do.  This family had employed some 5 to 6 Indonesian maids in almost as many years.  The appellant had testified that she had it in mind to sack PW1 as well.  The appellant's case was that PW1 had left voluntarily, with no crime committed by her and no allegation against the maid.  The magistrate judged that the report was an effort to get in first before the matter was reported by PW1.  It certainly appears to me to have that flavour, given the unreal nature of DW1’s explanation as to why he chose to take time off work and ask the police what to do.

30.  The evidence concerning the terms of the report made to the police came from DW2.  He volunteered that his words were "Ah Sir, my maid has gone at around sometime after eight".  Of course he was relying on information passed to him by the appellant.  The appellant's case was that she had no idea when the maid had left and that all that she could say was it must have been at a time before she got up which was between eight and 8:15 am.  Not surprisingly the prosecutor asked DW2 if the appellant had said in the telephone call that the maid had left at a time after eight o'clock.  It could have been the DW2 may have been confused about the time he was told the maid left and the time of the telephone conversation with his wife.  The transcript demonstrates that the magistrate intervened to make it absolutely clear what the prosecutor wanted to know, which was the source of the information that the maid left at a time after eight and the clear answer was "from what my wife told me".  The damage is obvious and extends to providing an indication, by way of the reported assertion against interest, that PW1 left the premises after eight o'clock.

31.  If PW1 did leave between eight and 8:13 it is to be noted that this was in the period when the appellant said she was getting up and also no identifiable sound can be attributed to her departure on the tape.  If she left after 8:13, when the tape had run to its end, the absence of the sound of the incident being recorded loses its significance.

32.  The use of the hidden camera by the appellant and her husband tends to indicate that the employers of PW1 did not fully trust her.  It would appear that the husband was told to go to the police station at 8.13 without there being time for the appellant to have checked to see if their maid had left not only with her possessions but some of theirs.  I suspect that most people on learning of the surprise disappearance of their maid would wonder if anything was taken.  The appellant gave evidence that she later contacted the employment agency and she also revealed that she had used their services in the course of PW1’s employment.  I did wonder why the appellant turned to the police and not the agency as the first port of call.

33.  How reliable were the tapes?  They were VHS tapes which DW2 had created by copying from the original tapes, so he said, without any editing or interference.  The originals were not produced.

34.  On the evidence available to me it would be impossible to make a finding that the VHS cassette tape had been deliberately created to present a false picture, for instance by using two separate recordings of different days to create the whole.  The case below never addressed that issue.  The evidence upon it extended to no more than the answer "no" to a question as to whether DW2 added anything or made any adjustment or corrected or amended the image itself.  However, I am entitled to consider the weight to be given to the tapes in the light of all of the evidence, including features that become apparent from them.

35.  I listened to the whole of the tape, paying particular attention to the sounds recorded in those 61 minutes when the screen was blank.  It was useful to remember the sounds that accompanied the video images before the lens cap was put on: you could hear the quiet patter of feet in the living room as PW1 walked through it barefoot for instance.  The baby was not up in the living room when DW2 left for work at 0640; the baby can be heard between 0718 until the end of the tape; because of the volume of various noises one can hear and the loudness of the baby it was an overwhelming inference that the baby in this time was in the living room, on one side of which one can see an external door to the flat as well as a door to the kitchen which may have led to some other exit; the appellant’s evidence was that she had no contact with her baby until she got up at some time after eight o'clock but before 0813.

36.  If the tape is a true record and if the appellant is correct, then two significant things must follow: firstly, the only person available to look after the baby in this time was PW1, so PW1 was either there or the baby was left alone and secondly, in this time PW1 must have left the flat with all her things. 

37.  It may be the case that babies left alone, even if used to being looked after, may stay happy.  In the 61 minutes of listening to this baby and hearing no other human voice there was a significant absence of distress.  Also, it may be the case that PW1 managed to leave the flat without making any noise that was picked up by the camera.  However, both features struck me as perhaps being unusual in the circumstances claimed.

38.  Another feature that I noted was that the appellant did not seek to hide the fact that she was a demanding employer whose care for her children and whose concern for their safety and well-being was well to the forefront of her mind.  It was thus that the circumstances in which she discovered her eight-month baby that morning, deserted by the maid for who knows how long, was something which would have had an impact upon her.  She said that she got up from her bed and walked to the middle part of the living room and saw that the baby was sitting there crying and that she then searched the house to find her maid and the maid’s possessions missing and then made the call to her husband.  Whilst the baby sounded less happy at this point, 8.11 – 8.13 am, than in any other part of the recording he certainly was not to be heard having a full blown cry.

39.  It is also the case that if the timer on the camera was accurate, the tape ended at exactly the same minute as the appellant telephoned her husband.  It may be there was some modest inaccuracy in the timer that could account for this, but the fact is the camera recording does not reveal the sounds you would expect if the appellant had found her son as alleged by her.  Not only that, there is the fact of the coincidence of the phone call being made at 8:13 when the camera’s tape ran out at 8:13.  It was a convenient coincidence for the defence for, if true, it made the tape a more powerful tool with which to attack PW1, stopping her saying that the crime was committed after the tape had finished recording.

40.  A feature that I noted was that when the VHS cassette was fully rewound right to its beginning a blue screen appeared with the date 16.11.08 and a time of 16.06, some three months after the incident in question.  If the timer on the equipment was correctly set then it would appear that the transfer from camera to VHS cassette tape did not occur until well after the event.  It may be that an explanation does exist for the delay, but the fact of the delay does not sit well with what one may have expected to be an urgent need to promote this crucial and important evidence.  The appellant had known of the allegation of burning with an iron since 20 August 2008.

41.  I suspect that any husband in these circumstances would be keen to help his wife as best he can.  Was there any indication that human fallibility might have pushed DW2 too far in this regard?  I am bound to say that I found his assertions concerning how he dealt with the remote control of the hard disk that was fed from the needle camera to be such an indication.  At issue was whether or not the tidying up by PW1 of the remote controls for the various pieces of electrical equipment in the flat could accidentally have shut down the recording being made by the needle camera.  DW2 asserted this could not be so as he habitually removed the batteries from it because his children would eat the remote control and the lid on the back of it was broken.  So, rather than put the remote out of reach he left it for the children and put the batteries out of reach, presumably every time he used the equipment.  The magistrate pointed out that the video produced by DW2 showed him simply putting the remote controls by the television set and not taking any batteries out. 

42.  The provenance of the tape copied from the video camera’s tape was obviously something that affected the weight to be given to the tape.  Its provenance depended upon the probity of DW2. 

43.  There is an obvious difficulty in accepting PW1's assertion that she did not knowingly turn off the two video cameras.  Other than a natural repugnance at being spied upon, no clear motive appears if her actions were non-accidental.  If she knew of the cameras and was minded to invent a false claim of violence by her employer, why turn them off?  I can see how the point can be used to damage her credibility in the general sense, but I cannot see that it goes beyond that.  The most I can think of is that it may support a claim that she had made up her mind to leave by the time she covered the lens.  Juries are habitually reminded of standard directions along the lines that they only have to decide sufficient to return a verdict in the case; that they do not have to decide every issue that has arisen in the trial; that it would be a rare trial where the evidence did resolve every issue and they had the answer to everything and that they can choose what parts of a witness’ evidence to accept or reject or remain unsure about.

44.  The magistrate found PW1's explanations to be credible in regard to her knowledge of the cameras and whether their turning off was deliberate.  Whilst remembering he saw the witness, I cannot make the same finding on the material before me.  The coincidence in time of the two cameras closing down, (there was a 13 second gap between the two events) and the way PW1 could be seen to behave at the time make me doubt her word on this topic.  When I come to making the final judgment in this case I will bear it well in mind, along with those other points which were said to affect her credibility, and along with those directions to juries I have just mentioned which apply equally to my deliberations.

45.  There had been an application to stay the proceedings prior to the commencement of the trial on the basis that a CCTV tape had been in existence, created by the management of the block in the usual way from security cameras.  It was said that this could have established the time that PW1 had left the building and that a fair trial was impossible without this evidence and also that the failure of the police to seize the tape, when they had been asked to do so by the defence, was conduct that also justified a stay.

46.  There was criticism of whether or not the magistrate should have heard evidence that the parties had been prepared to call upon the issue.  He declined to do so and refused the stay.  I would have done the same thing.  There is no point in me debating the rights and wrongs of what occurred below in this regard because I invited Mr Macrae SC to make the application for a stay to me now and he took up the offer.  There was no need to call evidence because I was prepared, as I suspect the magistrate had been, to deal with the application on the basis of the defence case put at its highest.

47.  It was realistically conceded that bad faith could not be proved on the part of the police and thus the application failed in so far it is relied upon their conduct justifying a stay.  The appellant had remained silent after caution and the police had not been told of the defence tapes from the cameras in the Appellant’s home at the relevant time.

48.  Obviously it would have been helpful if there had been some accurate and independent evidence of what time PW1 left the building, but to say that this renders a fair trial impossible overstates the position.  Indeed, one does not know which side the evidence may have helped.  It is, in fact, a commonplace that trials take place in our system where not all sources of evidence are tapped.  Juries are told not to speculate about what other evidence there may have been but to get on with deciding the case on what evidence they have.  That is what I shall do.  The application for the stay is refused because a fair trial was possible.

49.  There was some slight criticism of the way in which the magistrate had expressed the mental element of the crime in question.  We are all agreed today in court that the test I should apply is whether or not it is proved for sure that the appellant, in doing as PW1 described and demonstrated with the iron, had an awareness that her act may have the consequence of causing some physical harm to PW1.

50.  If the facts were as PW1 described them, then I have no doubt that the mental element of the crime would be proved thereby.  There is no question of accident.  There is no question of an iron being held out and somehow PW1 placing her arm upon it.  What she described was the iron being thrust towards her face so near that she had to raise her arm in self defence and take the injury to her arm in order to save her face.  The idea that the appellant may have undertaken that action without the foresight of causing her maid some physical harm is one I reject.  The appellant's words of "you try it, you try it" which accompanied her actions speak volumes in this regard.  The idea that the appellant acted without the necessary foresight can also be judged by looking at how she behaved after the iron had burnt the other woman's arm.  She slammed the iron down and left with no show of concern or enquiry for what would have been to her, if the defence argument is correct, a serious and unforeseen injury to her employee where no physical harm of any sort had been forseen.

51.  Let me return to the central issue of whether or not the facts were as PW1 described them to be concerning her injury.

52.  I can quite see how those features I have discussed concerning the defence case in the context of human fallibility may be described as jury points, some of which could hardly be described as being a robust.  I do not forget that my view of PW1's evidence being unacceptable in relation to her turning off the video cameras is a robust jury point.  If this prosecution were based on, say, a claim of common assault on the basis of PW1 being put in fear by the appellant without the existence of the injury, then I doubt very much if the prosecution case would ever have succeeded.  However the fact of the injury, and those scenarios to which it must give rise, provide support for PW1 that enables her evidence to take the knocks that it attracted.  The defence evidence posed a real challenge to her, but the weight I was prepared to give that evidence in the light of all the features I have discussed was such that I was left with no reasonable doubt as to how the injury came about.  I leave the case not knowing why PW1 was not to be trusted about turning off the cameras, but that unanswered question raised no reasonable doubt in my mind as to how she came by the injury.

53.  This was a difficult case.  However, on all the evidence before me, I conclude that the prosecution has proved its case for sure and that the conviction is a good one.  The appeal against the conviction is thus dismissed.

54.  I can be brief when it comes to sentence as I regard the sentence of seven months imprisonment for this conduct as amply merited.

55.  In coming to that judgment I have given due weight to the points made by  Mr Macrae SC concerning the fact that this was an isolated incident arising from momentary anger by a woman of good character with young children who had already served a month in prison before being bailed.  However, allowing for those circumstances, to have gone for someone with a hot iron, who thereby suffered grievous bodily harm to their arm in defence of their face, was a wicked act well justifying the term of imprisonment imposed.  The appeal against sentence is dismissed.