HKSAR v. TANG CHUN KUEN AND ANOTHER

1999, No. MA 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 213 OF 1999

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J U D G M E N T

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1. These are appeals against sentence. The two Appellants each pleaded guilty to a charge of assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212. The charges arose out of events at a tutorial centre on 28th September 1998. It appears that this establishment is one at which young children receive tuition in addition to the lessons which they receive at school.

2. At the time of the offences, the 1st Appellant was aged 36, and she was a tutor at the tutorial centre. The 2nd Appellant was then aged 22, and she was a part-time tutor at the tutorial centre.

3. The two victims are brothers. The younger brother was aged 7, and he was in primary 2 at school. The elder brother was aged 9, and he was in primary 4 at school. They both went to the same school, attending the afternoon session. In the mornings they attended the tutorial centre.

4. On the morning in question, the younger brother failed to complete his homework for the 1st Appellant, and the elder brother failed to complete his homework for the 2nd Appellant.

5. For that the two brothers were punished: the younger by the 1st Appellant and the elder by the 2nd Appellant. Such punishment was physical and so severe as to constitute assault occasioning actual bodily harm.

6. The Appellants appeared before J. Brennan, Esquire at the Magistrate's Court at Eastern on 21st January 1999. Each pleaded guilty. Mr Brennan adjourned sentencing to 11th February, sending for psychiatric and psychological reports on the Appellants. In due course, these reports showed that neither Appellants had psychiatric problems, that the 1st Appellant did not have psychological problems either, but that the 2nd Appellant might benefit from psychological follow-up even though she did not have any major psychological problem.

7. Sentencing took place before another Magistrate, G. Tallentire, Esquire who, on 11th February, sentenced each Appellant to four months' imprisonment but granted them bail pending appeal against sentence. The sentences were reached by taking starting points of six months' imprisonment and discounting the sentences by two months for the guilty pleas, albeit not tendered at the earliest opportunity, and each Appellant's clear record.

8. The assault by the 1st Appellant on the younger brother consisted of her beating this 7-year old boy's buttocks with a metal ruler.

9. The assault by the 2nd Appellant on the elder brother consisted of her beating this 9-year old boy's buttocks with the handle of a feather duster.

10. The Brief Facts prepared by the prosecution and accepted by the Appellants state that the 1st Appellant said under caution that she had inflicted "about 5 strokes" on the younger brother, and that the 2nd Appellant said under caution that she had inflicted "about 6 to 7 strokes" on the elder brother.

11. As for the actual bodily harm which resulted from the 1st Appellant's assault on the younger brother, the position seems clear enough. The same consisted of, quoting from the Brief Facts:

"a. a patch of bruise of 6.5cm x 3cm in size over his right buttock; and

b. a patch of bruise of 3cm x 2cm in size over post aspect of his right thigh."

12. But the position is not clear as far as the actual bodily harm which resulted from the 2nd Appellant's assault on the elder brother is concerned. The Brief Facts say that the medical examination of the elder brother revealed "inter alia" the following:

"a. a patch of bruise of 8cm x 5cm in size over his left buttock; and

b. a patch of bruise of 9cm x 5cm in size over his right buttock."

13. What the implications of the expression "inter alia" are is not clear. Then things became even less clear. It would seem that photographs showing the injuries to the two brothers' buttocks were taken by a police officer at the Tuen Mun Hospital on 30th September, two days after the assault on 28th September.

14. When Mr K.C. Ng was making his plea in mitigation on behalf of the 2nd Appellant before Mr Tallentire on 11th February 1999, Mr Ng said:

"I believe your Worship's got pictures of the injuries of the victims, however, the photograph does not depict the full pictures. I have here a medical certificate, some sort of letter from a specialist. May I produce it to the court? Which says some of the injuries are old injuries ranging from seven to ten days, only two recent injuries are between two days and four days.

So it will appear that the injury caused by the 2nd Defendant is less serious than shown on the pictures."

15. The document is a report dated 11th February 1999 by Dr Leung Shu Pui. It refers to a photograph of the elder brother, and says this:

"The photograph shows bruises on the buttocks of a child. The bruises shown are drawn and labelled in the attached diagram:

A - Two linear bruise marks over the upper part of the left buttock, yellow-brown in colour. The estimated age of the bruise marks is 7-10 days.

B - Four linear bruise marks over the upper part of the right buttock, yellow-brown in colour. The estimated age of the bruise marks is 7-10 days.

C - An area of bruise mark over the centre of the left buttock. It consists of 5 narrow vertical stripes and at least one broad horizontal stripe. The lateral half of the bruise (labelled C1) is yellow-brown in colour, and the estimated age is 7-10 days. The medial half of the bruise (labelled C2) is red-purple in colour, and the estimated age is 2-4 days.

D - An area of bruise mark over the centre of the right buttock. It consists of 7 narrow vertical stripes and at least one broad horizontal stripe. The latero-inferior rim of the bruise (labelled D1) is yellow-brown in colour, and the estimated age is 7-10 days. The main area of the bruise (labelled D2) is red-purple in colour, and the estimated age is 2-4 days.

Since the bruises are of at least two different ages, they would have been induced on at least two different occasions."

16. Unfortunately the Magistrate has said nothing about this question as to which of the injuries shown were caused by the assault for which the 2nd Appellant was to be sentenced. At the time of passing sentence, he referred to "extensive and serious bruising to the buttocks of the children involved". In the Reasons for Sentence prepared later, he says that the "injuries inflicted were more extensive and dramatic than serious".

17. This uncertainty over the extent of the injuries caused by the 2nd Appellant is taken up in one of the particulars given in the 2nd Appellant's perfected ground of appeal complaining that the sentence passed on her is manifestly excessive. The particulars to which I am referring reads as follows:

"Very importantly, the specialist medical report demonstrates that the Appellant was not responsible for all the bruising. Some of the injuries were 7-10 days old. The Appellant was only charged for the punishment on 28th September. The Magistrate has failed to properly deal with this significant matter and has wrongly sentenced the Appellant for all the beating."

18. Counsel for the Respondent did not dispute what is set out in those particulars. I accept that the complaint made in those particulars is well-founded. The result is that the Court does not know how seriously the 2nd Appellant beat the boy beyond, by reason of her plea, that she beat him badly enough to commit the offence of assault occasioning actual bodily harm and, by her admission under caution, that she did this by way of 6 to 7 strokes with the handle of a feather duster.

19. Turning to the 1st Appellant, there is no evidence that any of the injuries shown in the photograph of the buttock of the boy whom she beat were caused by anybody else. On the other hand, that photograph shows injuries considerably less severe than those shown in the photograph of the buttocks of the boy beaten by the other Appellant.

20. Much as I deplore the fact that these two boys were beaten as they were, I do not feel able in all the circumstances to uphold immediate custodial terms on either of the Appellant.

21. Both Mr Andrew Macrae S.C. for the 1st Appellant and Mr Gerard McCoy S.C. for the 2nd Appellant urged the option of community service orders, making their primary submission that this option is the most appropriate one. Alternatively, both Mr Macrae and Mr McCoy urged suspended sentences.

22. I have considered everything submitted to me on behalf of the Appellants. As I have indicated, I am persuaded that the immediate terms cannot be supported. But I do not think that community service orders are appropriate.

23. In all the circumstances, even though it is unlikely that either Appellant will be working with young children again ever or at least in the foreseeable future, it seems to me that the deterrence of suspended sentences is a wise element for me to put in place. Each Appellant therefore will know that if she ever offends again, she will be liable to be sentenced not only for the further offence or offences but also for her offence in the present case. Hopefully, that will make them even more careful in future than they would be if they had completed their custodial sentences or had done community service.

24. In the result, I will allow both appeals so that each Appellant's four months' sentence will be suspended for three years.