HKSAR v. BUI THI THUY

HCMA 1167/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1167 OF 2003

(ON APPEAL FROM KCCC 11465/2003)

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J U D G M E N T

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1. The Appellant was convicted after trial of two offences of assault occasioning actual bodily harm, one of common assault and one of employing a person not lawfully employable. The Appellant now appeals against conviction.

2. The prosecution case was that as the Appellant is a Vietnamese lady living in Hong Kong and she employed PW1 (another Vietnamese woman) to work as her domestic helper. PW1 had arrived in Hong Kong in March 2003 and was permitted to stay as a visitor until 11 April 2003 and she had no permission to undertake employment in Hong Kong. PW1 stayed in the Appellant's home from March 2003 until 12 July 2003. During this period, she gave evidence that she was physically abused by the Appellant on three occasions. In fact, she had given evidence that she had been physically abused on other occasions, but these three occasions were the subject matter of the charges.

3. The first occasion of assault, the Appellant had pulled PW1's hair and slapped her four times causing bruising. The second occasion when the learned Magistrate convicted her of assault was when the Appellant had pinched PW1's arms and pushed her. The final assault happened when the Appellant had burned PW1 with a lit cigarette just below her left ear. Finally, the other count was in relation to her illegal employment of PW1.

4. PW1 gave evidence before the learned Magistrate who found her to be credible and truthful. The Appellant also gave evidence. The Appellant's case was that PW1 was a relative who came to Hong Kong to stay with her and was hoping to find a job on a construction site. The Appellant denied assaulting PW1 in the manner as described by her.

5. The learned Magistrate, at the end of the day, rejected the Appellant's account and found that she had lied in the witness box. The learned Magistrate also conducted a voir dire in relation to the cautioned statement of the Appellant and at the end ruled that it was admissible. So, the learned Magistrate then had ample evidence before him to convict the Appellant.

6. The Appellant in her homemade grounds of appeal had submitted that the learned Magistrate had heard evidence of other assault apart from those three charged, therefore, the Magistrate may have been prejudiced against the Appellant.

7. I must say that this aspect of the case did exercise the mind of the learned Magistrate and he refers to it in his Statement of Findings and we can see that defence counsel had raised this matter and it was properly dealt with by the learned Magistrate and you can see this from paragraph 13 of the Statement of Findings to paragraph 22. So, the learned Magistrate was well aware of the fact that the evidence of those other alleged assaults should not be taken into account when he was considering the three assaults that were charged. It is apparent because at paragraph 20, the learned Magistrate said: "The Defendant is to be convicted of a charge only if this specific allegation charge is proved."

8. The Appellant also advanced grounds in this appeal that she was not the employer of PW1 and that she has a sick mother and two children at home. The fact that she was not the employer was in her evidence in the Magistrate's Court and was rejected by the learned Magistrate. As to her family background, that has no relevance in this appeal.

9. The learned Magistrate has carefully and properly considered all the relevant matters in this case and, having read the Statement of Findings, I find that he has more than sufficient evidence to support his conviction. I see no merit in this appeal and the appeal is dismissed.