R. v. CHAN HON SANG

IN THE COURT OF APPEAL

1996, No. 248
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. In April 1996 the applicant Chan Hon-sang was convicted on two charges of inflicting grievous bodily harm, contrary to s19 of the Offences Against the Person Ordinance Cap 212 and sentenced to a total of 3½ years' imprisonment. He applies for leave to appeal against both conviction and sentence.

2. The offences were alleged to have occurred between 20 October 1994 and 7 November 1994, at Flat B, 4/F No. 72 Tai Nam Street, Shamshuipo, Kowloon. This was the home of a couple, Madam Tse Sau-man and Mr Li Sheung-chi who were the 1st and 2nd Defendants (D1 and D2) at the trial. The applicant was the 3rd Defendant.

3. The victim of the crimes was a boy Hsu Ho-yin aged 2 years and 2 months. The injury in charge 1 consisted of one cigarette burn on his nose and the injuries in charge 2 consisted of six cigarette burns in his right ear.

4. The facts briefly were these.

5. The boy's mother, Hsu Kwai-ying (PW1), worked as a hostess in a karaoke lounge, in a team supervised by the applicant. She was a drug addict. She owed thousands of dollars to the owners of the karaoke lounge, having borrowed those sums through the applicant. Her work required her to be out until the early hours of the morning. Upon the applicant's introduction, she entrusted the little boy to D1 and D2 as child-minders, living at their flat at Tai Nam Street. PW1 was a thoroughly bad mother and had physically abused the child herself. PW1 was given a key to the flat by D1 who testified that PW1 and the applicant went to the flat to sleep from time to time.

6. The relationship between D1 and PW1 did not work out: D1 learnt of PW1's drug-taking habit; she also found injuries on the boy's body and asked PW1 to take the boy away. Then on 7 November 1994 D1 took the boy to the Kwong Wah Hospital where it was discovered that he had injuries all over his body; photographs were taken and the matter was referred to the police. Investigations then began.

7. On 22 November 1994 the applicant was interviewed at the Mongkok Police Station and after having been cautioned to the effect that he was entitled to remain silent the applicant made a statement: Exhibit P7. In this he said:

"The injuries made by burning cigarettes on TSUI Ho-yin's nose tip and right ear were made by me. As to the other injuries on TSUI Ho-yin's body, they had nothing to do with me. This was because TSE Sau-man (D1) and her husband LEE Sheung-chi (D2) took part in the beating of TSUI Ho-yin too."

8. When asked why he burned the little boy with cigarettes, he answered:

"This was because I was in a bad mood at that time and the working pressure was very big. TSUI Ho-yin's mother TSUI Kwai-ying worked as a hostess in my team. I helped her to borrow $10,000 odd from the company. However, TSUI Kwai-ying always failed to come to work which made me being scolded by the company. Therefore, I burnt TSUI Ho-yin with cigarettes on two occasions. On one occasion, I bunt his nose tip. On the other occasion, I burnt the back of his ear."

9. At the trial there were allegations of impropriety made against the police officer who took that statement, DPC 21850 Wong Sheung-kwong, but these were never substantiated by evidence from the applicant. The judge was satisfied that the statement Exhibit P7 was voluntarily made.

10. Largely upon those admissions the applicant was convicted.

11. It is now said by counsel that the judge should have ruled Exhibit P7 inadmissible because of what counsel terms "a lacuna of 12 minutes": a gap of time whilst the applicant was in Mongkok Police Station which remains unexplained. The point arises from this passage in PW3's cross-examination.

"Q. By 1728 hours, you were back into the CID room with the 3rd defendant.

A. Yes.

Q. And the statement didn't start until 1740, am I correct?

A. Yes.

Q. Tell us what happened in between those 12 minutes.

A. I can't remember.

Q. Was there any conversation at all between the two of you?

A. I don't remember.

Q. So there could have been some but you don't remember?

A. Right."

12. It is said by counsel that this should have led the judge to conclude that the statement was not voluntary - that it might have been induced by hopes of advantage or threats made by the police.

13. We reject this submission. The evidence before the judge was one-sided. Nothing in the evidence led by the prosecution could or should have induced the judge to conclude that the statement was involuntary or that there had been impropriety on the part of the police officer concerned in the taking of the statement exhibit P7. The applicant made allegations of impropriety against PW3 but those remained at the end of the day mere allegations, wholly unsubstantiated by any form of proof.

14. It is also said by counsel that PW3 was not a credible witness, because he had been criticized by the judge concerning the manner in which statements taken from D1 and D2 at the police station came to be made.

15. The judge dealt with the matter in this way:

"While I have reservations about PW3's competence in interviewing D1 and D2, I do not doubt his honesty. Nothing in his evidence gave me any doubt about the voluntary nature of P7 and the issue is therefore one of the weight to be attached to this statement."

16. The judge, in our view, cannot be criticised for this approach.

17. Another point bearing upon PW3's credibility is this: to refresh his recollection of the sequence of events, PW3 had written certain times in the palm of his hand, with the intention of refreshing his recollection without being observed by the court to do so. This was under-hand, but there is no suggestion of falsity involved. Had he sought to refresh his recollection from his notebook, or the written statements themselves, he would have been given leave to do so. In our judgment there is nothing in this point.

18. A third point raised on the applicant's behalf can be dealt with briefly. It is said that the judge should not have accepted PW1's denial that she had burnt her son's nose and ear: in other words, the judge should have entertained doubts concerning the accuracy of the confession made by the applicant in Exhibit P7. This, counsel submits, is because PW1 was such a thoroughly bad mother and at the time of the trial, was serving a term of imprisonment for cruelty to the little boy. However, at the end of the day, the question for the court was not the extent of PW1's criminal behaviour: it was simply whether charges 1 and 2 were proved beyond a reasonable doubt. The judge relied on the clear and unequivocal admissions made in Exhibit P7. This he was entitled to do.

19. For these reasons the application for leave to appeal against conviction must be dismissed.

Sentence

20. In sentencing the applicant to a total of 3½ years on the two charges the judge clearly had in mind the totality principle. On charge 1, which related to the one burn on the boy's nose, the judge sentenced the applicant to 12 months' imprisonment. On charge 2, which related to the six burns on the boy's ear, he sentenced the applicant to 2½ years' imprisonment to be served consecutively.

21. In sentencing the applicant the judge said this:

" The defendant should be thoroughly ashamed of himself. Society does not tolerate this sort of conduct and I would be failing in my duty if I did not express, on behalf of the public, the revulsion felt for the defendant's actions."

22. The judge was perfectly entitled to entertain those sentiments.

23. At the time of his conviction the applicant was 30 years of age. He could not claim any credit for previous good character.

24. Counsel has referred us to the case of the Attorney General v. Chan Wai Chung AR 9 of 1996 (31 July 1996, unreported) where the court thought that in a child-battering case, the proper starting point was 24 months. Counsel therefore argues that in relation to charge 2, the sentence of 2½ years is manifestly excessive.

25. It is true that in this case the 2½ years on charge 2 is higher than that which the court in Chan Wai Chung considered appropriate. However this Court does not impose inflexible rules on the broad discretion exercisable by sentencing judges; this Court would only interfere where it can be seen that a particular sentence is substantially out of line. We do not consider that the 2½ years' imprisonment imposed in relation to charge 2 is out of line to the extent that we must interfere.

26. As regards the question whether the sentences could have been concurrent the judge was clearly entitled to regard the incidents as separate. Nothing suggests that they formed the matrix of one incident. The judge was therefore entitled to impose consecutive sentences.

27. In our judgment although the total sentence of 3½ years is on the high side it is not so high as to induce this court to interfere. The application for leave to appeal against sentence must therefore also be dismissed.