HKSAR v. PALGUE JONITA AWAS

DCCC309/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

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Reasons for Sentence

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1.  The defendant pleaded not guilty to one count of causing grievous bodily harm with intent, contrary to section 17 of the Offences against the Person Ordinance. After trial, I convicted her of the lesser charge of section 19 of the same Ordinance.

2.  The facts of the case are this:  The defendant was a domestic helper working for a family for almost four years.  Apart from the household work, she had to take care of a 7 year-old-child. 

3.  One day in August 2009, after the boy got up, had breakfast, the defendant told the boy to practice piano as part of the routine as instructed by the boy’s mother.  The boy refused to practice piano. The defendant pushed him from behind, causing him to fall onto the floor.  The boy was pulled over to the sofa and was punched three times hard in the belly. The boy cried in pain, but nevertheless got up and played the piano for half an hour.

4.  After that, the boy had lunch and then the defendant took the boy to the neighbouring building to have his Chinese tuition there.  On the way to the class, the boy vomited and had to be taken back to home to rest.  His mother was informed of the situation.  She later on came home and took the boy to the hospital. An urgent operation needed to be done on the boy on the day.  It was found that the boy had a burst intestine.  A doctor examined the injury and found more than ¾ of the junction between the duodenum and jejunum fell apart.

5.  After the operation, the boy stayed in the hospital for about a month, during which time the boy’s condition once deteriorated.  On 30 August, the boy told the mother that it was the defendant who hit him.  That led to the arrest of the defendant. 

6.  I do not doubt for a moment the job of a domestic helper can be demanding.  Very often you work from morning to night doing all the household chores, cleaning, washing, cooking meals three times a day.  It would be even more demanding if on top of that you have to take care of children.  It is understandable you may become irritated sometimes, but is not an excuse for using violence. 

7.  Everything could be said in your favour had been said by your counsel. 

8.  You are a person of clear record and this was only one incident in a 4 year work with the family.  There was not any prior grudges or conflict with the employer or the boy in question.  In fact the relationship was a good one. 

9.  Your counsel also said you also ran into financial difficulty because of these proceedings, you incurred expenses about $20 a day awaiting the trial.  It has been almost 22 months now from the date of offence that added up quite a lot to a Filipino like you.  You also have a daughter about 2 years old to support.

10.  But against you, in my view, there are two aggravating features in the present case: 

1. The victim is of tender age;

2. It is a breach of trust case.

11.  Children of tender age usually have weaker constitution than grown-ups.  In other words, they would receive more serious injuries than adults when being assaulted by the same degree of force.  Like in the present case, only three punches burst his intestine.  He cried in pain, you just wanted him to get on with the piano.  He had to tolerate the pain and played the piano for half an hour.  That was very cruel to a child. 

12.  I think the court has to send a very clear message to you and many others who have children of tender age under their care as a job.  Violence does not pay.  If you cannot cope with your job, quit it. As the saying goes, “if you cannot stand the heat, get out of the kitchen.”  If you use violence on children of tender age, you can never tell the consequences.  Like in the present case, had you been able to control yourself, the kid would not have to go through all this pain and suffering. 

13.  The parents entrusted the child to your care.  This is a high degree of trust.  Obviously they reposed too much confidence in you, but you breached the trust they placed in you taking good care of the children. 

14.  Counsel said there is no explanation for this incident.  I do not know what gets to you on the day in question, but clearly, to me, you failed to control yourself and led to all these serious consequences. 

15.  In my view, a custodial sentence is inevitable. A clear message has to be sent out to those who are ready to resort to violence to think twice before they do it next time.

16.  In my view, the sentence must carry sufficient deterrence.  The offence I convicted you carries a maximum of 3 years. Taking into account all the mitigation put forward and the facts of this case, I sentence you to a term of 2 years.