HKSAR v. LIU MAN KUEN

HCMA 604/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 604 OF 2000

(ON APPEAL FROM ESCC 1228 OF 2000)

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J U D G M E N T

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Background

1. The appellant, Liu Man-kuen, a woman of previous good character, appeals against her conviction after trial on 24 May 2000 by Mr Colin Mackintosh, Permanent Magistrate, sitting at Eastern Magistracy for an offence of inflicting grievous bodily harm contrary to s. 19 of the Offences Against the Person Ordinance Cap. 212 and her sentence of eighteen months' immediate imprisonment passed on her by Mr Mackintosh on the same day.

2. She had originally been charged with an offence of assault occasioning actual bodily harm, contrary to s. 39 of the same ordinance. The s. 19 charge was preferred against her on 5 May 2000, the first day of trial.

3. She was represented at trial, initially and during the reception of evidence by a solicitor and at the time of final submissions, verdict and sentencing by Mr Michael Lunn SC.

Appeal against conviction

4. The grounds of appeal against conviction are that:

"The trial Magistrate erred in law in finding that the prosecution had proved beyond reasonable doubt that the injuries sustained by the victim amounted as a matter of law to 'grievous bodily harm' (i.e. really serious bodily harm) as opposed to the lesser form of injury - 'actual bodily harm' as originally charged."

5. The facts of the case as found by Mr Mackintosh - and there is no allegation that he was incorrect in finding them - are these:

6. The complainant Ms Warly Cabaneros Achacoso is a Filipinna domestic helper. Her employment with the appellant was her first job in Hong Kong. She had started on the 26 January 2000. The household consisted of the appellant, her husband and their 9-year-old child.

7. On the 25 February, at about 8 am, the appellant instructed Ms Achacoso to clean the car. This she did, returning to the flat at about 8:45 a.m. The only other person in the flat was the appellant: her husband had been away overnight on business and her child had already gone to school. The appellant asked Ms Achacoso to iron some clothes, telling her to be quick. Ms Achacoso ironed a skirt and then a nylon camisole as she did so, it melted, the iron obviously being too hot. She told the appellant what had happened and apologised, saying that the cost should be deducted from her salary. The appellant became extremely angry and verbally abused her. Then she told her to put her hands on the ironing board. Ms Achacoso did so, her hands side by side, the backs of the hands together with the thumbs underneath. She said that she did not realise what was going to happen. The appellant stood beside her, on her left side, and used her right arm to reach across Ms Achacoso's front and hold her right forearm. The appellant's arm crossed Ms Achacoso's left arm, restricting its movement to some degree, and held her right arm, her hands were held in place on the ironing board. Using her left hand, the appellant then grabbed the iron from its place at the other end of the ironing board from where she was standing. She twisted it round into position over Ms Achacoso's hands and then immediately pressed it down almost square onto the back of both of her hands, saying as she did so 'This is the payment for what you have done'.

8. Ms Achacoso could not say for how long the iron was on her hands. She pulled her hands back and screamed. Shortly afterwards, the appellant left the flat to go to work. Ms Achacoso was confused and did not know what to do. After about 10 minutes, she 'phoned her aunt, who also worked in Hong Kong, and spoke to her. A short while later her sister, also working in Hong Kong, 'phoned her. She decided to call the police and did so. A police officer arrived a short while later and she was taken to hospital.

9. On medical examination, she was found to have suffered a secondary degree scalded wound to the dorsum - back - of each of her hands, each measuring approximately 6cm x 7cm. She was treated and discharged. A doctor at trial called by the prosecution described them as '...high temperature thermal burns, which caused blistering'. Photographs of her injuries taken several days later were exhibited at trial. And at trial her hands were still scarred by the wounds.

10. Mr Kevin Egan, for the appellant argues that the injuries suffered by Ms Achacoso cannot at law amount to grievous bodily harm and that Mr Mackintosh failed to consider this aspect of the prosecution case. It would appear not to have been a live issue at trial, for he said in his reasons for verdict delivered at the time of conviction:

"It has not been suggested that the burns do not amount to grievous bodily harm. According to the doctor, there may be permanent scarring. Neither is it suggested that causing the burns in the manner alleged by PW1 would not amount to the unlawful infliction of grievous bodily harm."

11. The phrase 'grievous bodily harm' is not defined in the Offences Against the Person Ordinance. In both Hong Kong and England, following a jury direction given by Willes J in R v Ashman [1858] 1 F&F 88, it was formerly interpreted to include '...any harm, which seriously interferes with health or comfort'. But in R v Smith [1961] AC 290 the House of Lords said that there was no warrant for giving the words a meaning other than that which they convey in their ordinary and natural meaning. Viscount Kilmuir LC saying at page 334 of the report:

""Bodily harm" needs no explanation, and "grievous" means no more and no less than "really serious.""

12. There is no definitive list of the kind of injuries that may be considered "really serious' and the noun "harm" can cover cases where there is no wounding as, for instance, as in the early 19th century case of R v Wood [1830] 1 Mood CC 278 where a broken collarbone was involved.

13. In R v Saunders [1985] Crim LR 230 the victim suffered a broken nose and other, unspecified injuries, at the appellant's hands. The judge directed the jury that grievous bodily harm meant "serious injury" omitting the adverb "really". The English Court of Appeal held that not to be a misdirection, relying on an earlier unreported decision of that Court, R v Macmillan (unreported) October 8, 1984 CA-7233/B/83, in which Sir Ralph Kilner, delivering the court's, judgement said:

"... those words are entirely applicable to the facts of this case, in which there was no need to use the phrase 'really serious harm,' the omission of which was not significant. We see no substance in this ground of appeal."

14. The appeal failed.

15. In his commentary on the report Professor Sir John Smith QC said:

"The word 'really' is, as the Oxford Dictionary has it, 'used to emphasise the truth or correctness of an epithet or statement.' It means no more than 'actually' or 'as a matter of fact.' In the context it does not add anything to 'serious' but emphasises to the jury that the harm caused must be - actually or really - serious."

16. That then is the matrix against which the tribunal of fact must judge whether or not the injuries suffered by a victim amount to grievous bodily harm. It is a question of fact in each case. And whereas commonsense tells one that some injuries will always be considered as amounting to grievous bodily harm and some, obviously minor ones, will not, in the vast majority of cases it is left to the tribunal, properly directed, to come to its own conclusion. Previous cases citing the nature of the injury are no more than exemplars of a tribunal's finding on this issue, and not definitions. A point that appears to have escaped the Court of Appeal in HKSAR v Lo Tak-chi Cr App No. 269 of 1999 (unreported) on which Mr Egan placed great reliance.

17. Despite the absence of argument on the point there is nothing in Mr Mackintosh's reasons for verdict that indicates he was unaware of the House of Lord's test in Smith, or that he misapplied it. That they were really serious injuries is a finding that it was open to him to make on the evidence and I see no reason to doubt his conclusion.

18. The appellant's appeal against conviction fails.

Appeal against sentence

19. The grounds of appeal against sentence are that:

"1. The trial Magistrate erred in principle in failing to consider - let alone impose as he respectfully should have - a sentence by way of Community Service Order as opposed to an immediate custodial sentence.

2. The sentence of eighteen (18) months' immediate custody, was in all the circumstances manifestly excessive."

20. As argued, the first ground amounts to a submission that as the background of the appellant appears to fit all - or most - of the categories identified by the Court of Appeal in HKSAR v Chak Man & Anr [1999] 2HKC 659 as being the hallmarks of those offenders who are most likely to benefit from a community service order, Mr Mackintosh should have ordered reports on her suitability to serve such an order and, if favourable, order her to serve one. I do not agree, the Court of Appeal in Chak Man did no more than identify the general characteristics of an offender who is most likely to benefit from a community service order. It did not say that if an offender has all - or most - of those characteristics such an order must, subject to satisfactory reports, be imposed.

21. As to the second ground, Mr Egan argued that, at trial, Mr Mackintosh was not made aware of factors in the appellant's personal circumstances that may have explained the emotional stress she was under at the time of the offence and may have mitigated her offence. In particular that, contrary to the representation made to him in mitigation, the appellant's relationship with her husband was not close and that she feared he was unfaithful to her on his frequent business trips to the Mainland. If indeed this was the case it should have been advanced in mitigation at trial, such matters are all too easy to raise now the appellant is serving a custodial sentence. In any event, even if raised, these fears would have carried little mitigating effect. There must be many wives - and possibly as many husbands - who doubt, for real or fanciful reasons, their spouse's fidelity. Yet very few, even under such emotional stress, would dream of punishing their domestic servants for minor errors as this appellant did, let alone carry out such punishments.

22. Mr Mackintosh took into account such mitigation as the appellant had. He was aware - and in his reasons demonstrated that he was aware - that she was a first offender; that she was in employment; that she came from a stable and prosperous home background; that she had a young child and that she engaged in charitable work.

23. On appeal the appellant admits the truth of the prosecution's case. Yet at trial she chose to plead not guilty and to put forward a defence that was - to put it frankly - a lie. By doing so she consciously and deliberately deprived herself of her most powerful mitigation - a full and frank plea of guilty and an acceptance of her wrongdoing. These are matters that will always be regarded as the most powerful evidence of remorse on the part of an offender. Conversely, expressions of remorse from a person convicted and sentenced after a trial in which they challenged the truth of the facts of the prosecution's case must inevitably carry little weight with an appellate court.

24. The sentence of 18 months' immediate imprisonment imposed on the appellant is exactly half of the maximum sentence of three years' the law prescribes for a s. 19 wounding offence. Although Mr Mackintosh's phrasing of his reasons for his sentence may be somewhat colourful, there is no doubt that this was a vicious punishment inflicted on an employee who had, at the most, committed a minor error in her duties. From the facts, it was premeditated and coldly, and cynically carried out. The appellant, after carrying it out, offered not one shred of assistance to Ms Achacoso, but left the flat oblivious to her suffering. Mr Mackintosh was right to regard the appellant's offence as calling for a substantial immediate custodial sentence. This was a most serious offence and the sentence of 18 months' imprisonment passed on the appellant cannot in any way be regarded as manifestly excessive.

25. The appellant's appeal against sentence is dismissed.