HKSAR v. VIVO ANGELA VILLAMER

HCMA 508/2019

[2020] HKCFI 685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 508 OF 2019

(ON APPEAL FROM KCCC 3725 OF 2018)

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REASONS FOR JUDGMENT

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1.  At the hearing of the appeal I dismissed the appeals against conviction and sentence. Below are my reasons.

2.  On 12 September 2019 the appellant was convicted after trial by a magistrate[1] of two offences of wilful assault or ill-treatment of a child, a boy namely X of whom she had care contrary to section 27(1) of the Offences Against the Person Ordinance Cap. 212 (“wilful assault”).  The magistrate imposed a sentence of 6 weeks’ imprisonment for charge 1 and 3, and ordered 3 weeks’ imprisonment of charge 3 to run consecutively to charge 1 making a total term of 9 weeks’ imprisonment.  On the date of sentence, the magistrate granted her bail pending appeal. 

3.  The appellant initially faced five charges but was acquitted of the three other offences by the magistrate.  Those charges were for an offence of ill treatment of X (charge 2) and two offences of indecent assault on X (charges 4 and 5). 

4.  The appellant appears in person in her appeal against conviction.  Mr Phil Chau represents the appellant in her appeal against sentence.  Incidentally, Mr Chau was the counsel at her trial before the magistrate. 

Background

5.  The appellant was a domestic helper.  She had been in the employment of X’s parents more specifically X’s mother since 2012. The appellant left her employment on 9 September 2018. 

6.  When the appellant commenced her employment X was 3 years old.  As part of her duties she cared for X. 

The prosecution case

7.  The prosecution case in relation to charge 1 was that on an unknown date in July 2015 outside Yau Ma Tei Fire Station, when X was on his way home with the appellant after his swimming class at YMCA, the appellant pulled X’s hair causing his scalp to bleed.  In relation to charge 3 it was that on the 7 September 2018 on a road near Mong Kok Police Station she pinched X’s upper arm causing it to bruise.  At the time of the offences X was 6 and 9 years old respectively. 

The defence case

8.  The appellant gave evidence.  She called no other defence witnesses.  She denied any ill-treatment of X.  She denied she had pulled X’s hair.  She testified that the bruise caused on X’s arm was as a result of her grabbing hold of X’s arm when he attempted to run across the road at a time when a large truck was approaching. 

The magistrate’s findings

9.  X was 10 years old at the trial.  The magistrate was alert to the age of X and considered X’s evidence with extreme care[2].  He accepted the evidence of X in so far as it was supported by independent evidence.  Having closely examined the background of X in particular the actual injuries, he did not accept that X was under his parents’ influence to fabricate the case against the defendant. 

10.  He found in relation to charge 1 that on Sunday 12 July 2015 his father (PW2) washed X’s hair after his swimming class.  When he dried X’s hair he noticed a fresh wound on his scalp.  The father immediately took a photo of it (exhibit P4(1)) and a complaint was made to the appellant’s employment agency.  Mr Wong (PW4) of the employment agency gave evidence that he had introduced the appellant to X’s mother and received the complaint about X’s injury caused by the appellant.   

11.  The magistrate concluded in relation to charge 1 that on the day before PW2 washed X’s hair that is Saturday 11 July 2015 when X was 6 years old, the appellant pulled X’s hair causing his scalp to bleed (charge 1).

12.  In relation to the bruise on X’s arm, on 7 September 2018 when X’s father went out with X he noticed a bruise mark on the left upper arm of X.  X told him the appellant pinched his arm.  Two days later, which was the same day the appellant left her employment, PW2 took two photographs of the bruise (exhibit P4(2-3). 

13.  The magistrate rejected the appellant’s evidence.  He rejected her denial of pulling X’s hair and her account of inflicting the bruise as a result of restraining him from dashing out on to the road.  

Grounds of appeal against conviction

14.  The appellant submitted her grounds of appeal in the morning of the hearing.  Her reasons for the late filing of her grounds was that as she did not have a lawyer she did not know how to draft her grounds and in her words “it was only now” she found a volunteer to write her grounds. 

Charge 1 – pulling X’s hair and causing his scalp to bleed

15.  The first ground of appeal in relation to charge 1 is that the magistrate erred in relying on X’s unsworn testimony without extreme caution.  She submits that the photograph of the wound on the scalp does not support X’s allegation that she caused the injury.  All it shows is a wound on the scalp.  Therefore, without any independent evidence supporting X’s allegation, the magistrate should have proceeded with extreme caution and given the appellant the benefit of the doubt. 

16.  The second ground is that the magistrate should have found the inconsistencies between X’s evidence and his parents evidence as to the date of the offence and when he related the incident to them to be material and rejected the evidence of X. 

Charge 3 – the bruise on X’s upper arm

17.  The appellant’s first ground in relation to charge 3 is that the magistrate erred in rejecting the appellant’s account of the incident. 

18.  The second ground is that the magistrate erred in not finding there was a reasonable doubt that the bruise on the arm of X was caused by a pinch when such bruise could have been caused by the appellant’s thumb when she grabbed his arm with her hand restraining X from dashing out into the road. 

Consideration

19.  I have given careful consideration to the evidence and the magistrate’s conclusions in light of the appellant’s criticisms.  The magistrate had the advantage of seeing and hearing the evidence of the appellant and the witnesses.  In my judgment the finding and reasoning of the magistrate is unassailable.

Grounds in relation to Charge 1

20.  On the evidence before the magistrate there was no dispute there was a wound on the scalp of X.  There were no eye witnesses as to the pulling of X’s hair.  X’s evidence was that it was caused when the appellant pulled his hair after swimming class when he was on his way home on a Saturday after the summer holidays.  X felt very painful touched his head and found some blood. 

21.  X’s evidence was that he had informed his mother the appellant pulled his hair upon returning home.  PW2 however said it was only after he discovered the wound on X’s head on the Sunday of 12 July 2015 did X tell him that the appellant had pulled his hair. 

22.  The magistrate stated at paragraph 35 to 37 of the SOF:

“35. Obviously, X wrongly remembered the day of the hair-pulling incident due to the lapse of time for over three years. I found the hair-pulling incident occurred one day before 12 July 2015.

36. Further, according to X’s video recording, he told his mother of the incident when he returned home. Obviously, he wrongly remember it due to the lapse of time. If he did so, his parents would take photograph and make the complaint to the agency immediately.

37. In my view, he only told the incident to his parents after his father discovered the wound on 12 July 2015. This was just a matter of memory. It did not affect the credibility of X at all.

23.  The magistrate was fully justified to accept that X was mistaken as to when he told his mother and it was his lapse of memory as to the date it occurred.  At the time of the assault X was just 6 years old.  Moreover, the magistrate was permitted to accept part of X’s evidence and reject the other parts. 

24.  The magistrate plainly warned himself of the need to treat X’s evidence with extreme caution, he was not in error to find X’s overall credibility was not affected and to rely on X’s recollection of how he came to be assaulted by the appellant. 

25.  The grounds of appeal in relation to charge 1 fail. 

Grounds in relation to charge 3

26.  I turn now to the grounds in relation to charge 3. 

27.  There was no dispute at the trial that the injury on X’s arm was caused by the appellant.  The only issue for the magistrate was how it was inflicted.  X said the appellant pinched him.  The appellant says it was caused by her restraining X with her hand grabbing his upper arm when she restrained him.

28.  The appellant submits that the bruise was caused by her thumb as the pressure exerted by her thumb should have been larger than her three or four fingers combined when she exerted pressure on his arm when she restrained him.  Additionally, the bruise was a circular shape and thus it was more likely to be caused by her thumb therefore the appellant should have been given the benefit of the doubt and erred in rejecting her evidence.  

29.  The magistrate carefully considered the appellant’s evidence and he rejected her evidence for the cause of the bruise mark.  At paragraphs 42 to 44 of his statement of findings he gave comprehensive reasons for finding her version unreasonable and illogical. 

30.  As stated above the magistrate accepted the evidence of X and determined the cause of the bruise was caused by the appellant pinching him.  He further considered that the bruise was consistent with a pinch[3] as shown in the photographs (P4(2) and (3))

31.  The appellant’s ground fails in relation to charge 3.

Conclusion

32.  In my judgment it is apparent from the statement of findings that the magistrate carefully considered all the evidence and his evaluation of the credibility of X cannot be faulted.  I am unable to find any basis to interfere with his assessment of the evidence and his finding on credibility.

33.  For the above reasons the appeal against conviction is dismissed.

Appeal against sentence

34.  In sentencing the appellant, the magistrate took the view that this was a breach of trust case and that the injuries inflicted on X were serious.  Having considered the mitigation put forward, the appellant’s background report and her clear record the magistrate sentenced her to a total of 9 weeks’ imprisonment. 

Grounds of appeal against sentence

35.  Mr Phil Chau counsel for the appellant complains that the total sentence of 9 weeks’ imprisonment was manifestly excessive in light of:

(1)  the relatively minor injuries sustained by X,

(2)  the delay in the trial commencing and

(3)  the financial hardship suffered by the appellant and her immediate family as a result. 

36.  It is accepted by Mr Chau that this case involved a breach of trust and an immediate term of imprisonment is warranted however such term ought to have been much shorter than 9 weeks’ imprisonment. 

37.  Mr Chau submitted that the magistrate’s categorisation of the assaults on X as serious was erroneous.  He also failed to take into account that these were one off incidents.  He submits the injuries were not serious because:

(1)    In relation to both assaults, X’s parents did not take him to seek medical treatment immediately.  No medical treatment was sought as to the wound on X’s head and X was only taken to medical treatment approximately 6 weeks after the bruise was seen. 

(2)    The parents only reported the incidents to the authorities as a result of the remarks and advice made by the Presiding Officer of the Labour Tribunal in or about October 2018.  The medical report dated 31 October 2018 showed no injuries on X.

(3)    The photographs of the injuries only show a relatively minor wound to the scalp and a bruise on the upper arm. 

(4)    A victim impact statement was not obtained thereby signifying that the magistrate did not believe that X suffered from any long term psychological damage.  

Discussion

38.  For the present offence the maximum sentence on indictment is 10 years’ imprisonment whereas on summary conviction it is 3 years’ imprisonment.  There are no sentencing guidelines. 

39.  I turn first to deal with the grounds of delay in the trial commencing and the financial hardship suffered by the appellant and her family. 

40.  The appellant’s trial was originally due to commence on 19 June 2019 but was adjourned as the prosecution had not certified the transcripts of the two video recorded interviews of X.  The trial then commenced on 1 August 2019.  The delay of 6 weeks to the trial commencing, although regretful, did not warrant a reduction of sentence.  Moreover, the appellant’s financial hardship as a result of her inability to work in Hong Kong after cessation of her employment whilst awaiting her trial does not warrant any discount to her sentence.   

41.  Mr Chau submits in view of the relatively minor injuries the sentence of imprisonment imposed was too high.  In support of his submissions that the injuries were relatively minor was the fact that X’s parents did not see the need to take him to seek medical treatment as soon as they found the injuries.  He contends if they were serious injuries, X’s parents would have taken X to see a doctor at once. 

42.  Mr Chau properly conceded that an immediate sentence of imprisonment was warranted for the present offences.  The sole question is what is the appropriate length of the term of imprisonment.  He submitted there was a dearth of case law in regard to sentence on these offences which he was able to find to assist the court.  He urged the court to impose a sentence which did not require the appellant to serve any term more than the 2 weeks that she had already been remanded in custody by the magistrate pending a background report.

43.  On the other hand, Ms. Samantha Chiu SPP on behalf of the respondent submitted that the individual sentence for each charge and the total sentence were appropriate in the circumstances.  She submitted a number of cases[4] to the court but agreed that there were no comparable cases. 

44.  Ms Chiu in her oral submissions relied on only one of the cases she submitted: HKSAR v Li Kam Chi HCMA 682/2016.  In that case the appellant was convicted after trial of four offences under section 27(1) of Cap. 212.  The victim child was around 11 years old and the appellant was the boyfriend of the victim child’s mother.  In charge 1, the appellant was found to have verbally abused the child and repeatedly and forcefully slapped the back of the child’s head, for which he was sentenced to 3 months’ imprisonment.  In charge 2, he was found to have verbally abused the child and repeatedly and forcefully kicked the child’s back and abdomen, causing the skin of the child’s abdomen to peel, for which he was sentenced to 3 months’ imprisonment.  In charge 3, he was found to have hit the child’s head and penis a few times with a stick.  He also spat at the child and forced him to drink urine, for which he was sentenced to 6 months’ imprisonment.  In charge 4, he was found to have neglected the child at a basketball court for a while, for which he was sentenced to 2 months’ imprisonment.  The total sentence imposed upon the appellant was 9 months’ imprisonment.  On appeal, the individual sentences and the total sentence were upheld by Deputy High Court Judge A. Kwok.

45.  Ms Chiu compared the facts of this case to the facts and sentence in charges 1 and 2 in Li Kam Chi she acknowledged that the appellant in the present case was less persistent but given the use of force by the present appellant she submitted the sentence imposed was not manifestly excessive. 

46.  In the cases submitted by Ms Chiu there was a wide range of sentences imposed on a diversity of facts.  There is little utility in comparisons with sentences passed in other cases.  Each case will turn on its own particular facts of the offence and the offender. 

47.  In HKSAR v Wong Wing-man Mandy alias Wang Xuexin and another HCCC 76/2017 Zervos J (as he then was) set out factors to be taken into account when sentencing for the present offence at paragraph 142: 

“A crucial factor that must be taken into account when sentencing for this offence is the need to protect the young and the vulnerable, as well as the need to deter abuse or neglect of them. Other crucial factors to be taken into account are the age and circumstances of the child; the relationship between the offender and the child as well as the responsibility the offender had for the child; the nature, degree and duration of the ill-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 physically and psychologically.”

48.  I accept these were not serious injuries as was characterised by the magistrate.  I, however, reject Mr Chau’s assertions that the injuries in relation to charge 1 was ‘relatively minor,’ plainly the appellant pulled X’s hair with great force resulting in the bleeding of his scalp.  When his father dried X’s hair the following day, as the magistrate found, his father caused the removal of the callus that had formed on the scalp and a fresh was seen.  The appellant inflicted noticeable physical injuries on X causing him pain. The assaults do not appear to have had any psychological harm on X as can be seen from the absence of a victim impact report. 

49.  In sentencing the appellant, the magistrate had regard to the relevant factors.  The starting point of 6 weeks’ imprisonment for each offence and the total sentence of 9 weeks’ imprisonment imposed is neither manifestly excessive nor wrong in principle.  The pinching of X’s arm was a second assault upon X, committed about 3 years after the first which warranted a partly consecutive sentence. 

50.  In the circumstances, the appeal against sentence is dismissed.