HKSAR v. TANG PUI

HCMA 1254/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1254 OF 2001

(ON APPEAL FROM STCC 1405/2001)

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J U D G M E N T

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1. On 2 November 2001 the appellant was convicted, after trial, at Shatin Magistrates Court of an offence of common assault upon her domestic helper committed on 17 August 2001 and she was fined. She appeals against her conviction.

2. In her comprehensive statement of findings the learned deputy magistrate had this to say about the case which she was required to decide:-

"Prosecution Case

The victim, PW1, was a domestic helper. The appellant was the employer of the victim, and both of them resided at the address stated in the particulars of the offence (hereinafter referred as "the premises"). On 17 August 2001, the appellant was angry at the way the victim hung the laundry inside the guest bathroom of the premises and thought that an item of her child's clothing was missing. The appellant got angry with the victim and punched the victim once on her breast below the left shoulder inside the guest bathroom. The victim took the laundry down intending to hang the same outside the window of the master bedroom. The appellant following the victim to the master bedroom and gave the victim a push on the same area.

The victim showed the appellant the clothing after she hung the same outside the window. The appellant pulled an item and caused it dropped onto the ground floor. The appellant asked the victim to accompany her to pick up the clothing. While they were inside the lift on the way down, the appellant apologized to the victim. They returned to the premises with the item of clothing dropped.

The victim made a complaint to the part-time domestic helper after the appellant left the premises. The victim also made a complaint to the Police over the phone.

Defence Case

The event did not happen as the victim claimed. There was no 'body contact' before they went down to pick up the clothing. There was accidental 'body contact' after they returned to the premises. The appellant discovered the wet and smelly laundry hung inside the guest bathroom. She stepped up onto the edge of the bathtub to re-arrange the laundry and she accidentally touched the victim, who was standing behind her, when she stepped down. She apologized to the victim after the accidental touching. There was no body contact inside the master bedroom. The appellant did not assault the victim."

3. The magistrate then proceeded to set out her detailed statement of findings which occupy some 13 pages.

4. The perfected grounds of appeal settled by Mr Harris, counsel for the appellant, read as follows:

"1. The learned magistrate failed properly to assess the evidence of PW1 with sufficient depth or at all. In marked contrast she embarked upon a critique of the appellant's case which suggests or at least gives rise to a perception that she had in effect reversed the burden of proof.

2. The learned magistrate failed sufficiently or at all to resolve irreconcilable differences between the evidence of PW1 and PW2 as to the events of the morning in question. These matters were crucial to the issue of PW1's credibility which was of particular importance in the case. Of particular significance are:-

a. whether PW2 ever witnessed any violence at all; and

b. the crucial 'conversation' in the lift.

3. Although the learned magistrate repeatedly purports to have directed herself in accordance with R -v- Berrada, it is clear that she did not. Her rejection of the appellant's evidence was unreasonable in the circumstances and not compatible with a proper 'Berrada' approach.

4. The learned magistrate made findings of fact which were not properly available to her on the evidence.

5. In all the circumstances the appellant's conviction is unsafe and unsatisfactory."

5. In her response for the respondent both to the grounds of appeal and to the 'skeleton' argument in support of them submitted by Mr Harris, Ms Chan says this:-

"1. The learned Magistrate disbelieved the D's evidence and did not find her to be an honest witness. Instead, the learned Magistrate found PW1 to be an honest witness and believed her evidence. This was a case involving the credibility of the witnesses both for the prosecution and defence. It has long been accepted by the appellate courts that Magistrates having heard the evidence and seen the witnesses give evidence is in the best possible position to assess their reliability and credibility. That being so, it is on very rare occasions that an appellate court would upset a magistrate's finding on the facts.

2. It is submitted the Magistrate did assess the evidence of PW1 properly:

(a) she took into account of factors whether PW1 had any motive to frame up the [appellant] and found that PW1 did not have any motive;

(b) she dealt with the discrepancy between the evidence of PW1 and PW2 namely whether the Chinese amah went to separate PW1 and [the appellant];

(c) she accepted PW1's version as to the 'lift conversation';

(d) as to the injury of PW1, she accepted the evidence of PW1 and PW3 that when she arrived at the flat at 12:51 p.m. PW1 complained to her about her injury and she noticed redness on the area pointed out by PW1. Further the magistrate also dealt with doctor's medical report. ........."

6. Ms Chan then refers to the detailed manner in which the magistrate considered the evidence of the appellant and her witnesses and she concluded her submission by suggesting that:

"the learned Magistrate was acutely aware that the prosecution's case must stand upon its own feet and should not be accepted merely because the defence story had been rejected. ......"

7. Despite the written and oral arguments of Mr Harris I am not persuaded that the conviction of the appellant was either unsafe or unsatisfactory or that the learned magistrate in any way failed as he suggests. The learned magistrate was plainly fully aware of those matters about which Mr Harris makes complaint and she dealt with them accordingly. I accept Ms Chan's first submission and whether or not I, or anybody else for that matter, might have come to a conclusion different to that arrived at by the magistrate is neither here nor there. It was the magistrate's function, as the tribunal of facts, to determine those facts.

8. Plainly the magistrate exercised great care in coming to her verdict which, in my view, cannot be faulted and it simply is not correct to suggest that she made findings of fact which were not available to her on the evidence. This case was all about credibility and the magistrate believed the account of the domestic helper; rejected that of the appellant and reconciled the evidential differences between that of the domestic helper and the part time helper. I find myself unable to conclude that there was "in the Magistrates court an error which makes it just that the appeal should be allowed and the conviction set aside." Ching Kwok Yin v HKSAR [2000] HKC FAR 387.

9. For all of these reasons this appeal must be dismissed.