HKSAR v. CHEN MUI WA

 [English Translation – 英譯本]
HCMA622/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 622 OF 2009

(ON APPEAL FROM KTCC NO. 1843 OF 2009)

_________________

_________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

1. The appellant was convicted after trial by the magistrate of the first charge of assault occasioning actual bodily harm and the second charge of being an employer of a person who is not lawfully employable. On the first charge, she was sentenced to 4 months’ imprisonment, and on the second charge, she was sentenced to 6 months’ imprisonment. As both terms of imprisonment were ordered to run consecutively to one another, the total length of imprisonment was 10 months. The appellant appealed against the conviction on the first charge and against the sentences on both charges.

2. After hearing, I dismissed the appeal against conviction and the conviction was upheld accordingly. With respect to the appeal against the sentences, the appeal was allowed. I ordered that the respective sentences on the two charges should remain unchanged, but 3 months of the 6 months’ imprisonment imposed on the second charge were to run consecutively to the 4 months on the first charge, making a total sentence of 7 months’ imprisonment. My reasons are as follows.         

The prosecution’s case

3. The prosecution’s case, in a nutshell, was that the appellant and her father, the 3^rd defendant in the case, together employed an overstayed visitor, Xie Chun-lian (謝春蓮) (‘Xie’), to work as a domestic helper for them to take care of their residence and to look after the 3-year-old son of the appellant’s at a monthly salary of $2,600.

4. Xie gave the 3^rd defendant $8,500 for safekeeping.

5. On 23 February 2009, having worked for 20 days, Xie was dismissed by the appellant suddenly. She requested to have the $8,500 back together with the wages for the 20 days’ work but to no avail. The appellant demanded Xie to leave at once. Xie refused to go. The appellant called her elder brother, the 2^nd defendant, to come to her residence. The appellant and the 2^nd defendant assaulted Xie in the premises trying to drive her away. Later, the two of them further assaulted Xie in the corridor outside the premises. Xie suffered bodily injury as a result of the assault. Subsequently, the appellant, bringing along her son, left together with the 2^nd defendant. A security guard of the building saw Xie lying on the floor injured and called the police. Later, the appellant and the 2^nd defendant went to a police station to make a report, claiming that they had been assaulted by Xie.

The defence case

6. The appellant denied having employed Xie. She claimed that she only knew that Xie lived at her home but she did not know her status. On the day in question, she gave Xie $1,800 to ‘buy food to eat’ out of ‘kind-heartedness’. Yet, Xie refused to leave. She therefore called her elder brother for help. Although the appellant and her elder brother drove Xie out of the premises successfully, Xie had kicked at and broken the computer in the house. Neither the appellant nor her elder brother had assaulted Xie. On the contrary, Xie had assaulted the two of them. The appellant left the premises with her son and the 2^nd defendant, and they went to a police station to make a report subsequently.

Grounds of appeal (conviction)

7. Mr. Wong, Counsel for the appellant, has raised two grounds of appeal to argue that the conviction was unsafe. The first ground is that as the magistrate had found that Xie’s evidence was not entirely true, he failed to have regard to the problem with Xie’s credibility when he accepted her evidence relating to her being assaulted. The second ground is that the magistrate had wrongly rejected the evidence of PW2, a neighbour of the appellant’s, in respect of what she saw outside the appellant’s residence.

8. In his oral submission, Mr. Wong also argued that the pulling of Xie out of the premises by the appellant did not necessarily constitute an assault. Mr. Wong posed the following question: Other than taking physical action to drive her away, what else could the appellant, the house owner, do when she did not want Xie to stay at her house but the latter was adamant in refusing to leave?

Discussion

9. An appeal brought under the Magistrates Ordinance is by way of “rehearing” on the evidence before the magistrate (supplemented by any further evidence admitted by the appellate court): see Chou Shih Bin v. HKSAR[1]. In my judgment, as far as the facts are concerned, the appellate court shall have regard to the advantage enjoyed by the magistrate of having heard and seen the witness giving evidence whereas the appellate court can only rely on transcripts. Whether a witness was credible and reliable is purely a matter within the judgment of the magistrate. However, the conviction will be unsafe if the finding of fact made by the magistrate was unreasonable, illogical or inherently improbable, or if the magistrate, in dealing with the evidence, had quoted the evidence wrongly or had omitted or failed to consider or analyze material matters.

10. Regarding the first ground of appeal, it is my judgment that the appellant’s argument is not substantiated. The magistrate was absolutely entitled to accept part and reject the other of the evidence of a witness. Given Xie’s status, it is understandable that she had reservation in her evidence about how she had come by the money which she gave to the 3^rd defendant for safekeeping. The magistrate found that she had not been frank and truthful in her evidence in that respect. Yet, having taken all the evidence into consideration, the magistrate was entitled to accept Xie’s evidence in respect of her being assaulted.

11. Regarding the second ground of appeal, having pointed out in paragraph 38 of his Statement of Findings that he found parts of PW2’s evidence unclear and unsatisfactory, the magistrate said this in paragraph 39:

“Although PW2 was not well acquainted with D1/D3, they were neighbours. PW1 was an ‘outsider’ to PW2. The description made by PW2 of the actions of D1/D2 was vague and unclear. In my view, PW2 had deliberately done this to play down the roles of D1/D2.”

The magistrate therefore did not give any weight to her evidence. By saying ‘play down’, I understand the magistrate to mean that the witness had watered down the extent of the participation of the appellant and the 2^nd defendant.

12. It is true that the magistrate’s comment that as Xie was an ‘outsider’, the witness ‘played down’ the role of her neighbour, the appellant, and that of the appellant’s elder brother, was not supported by any evidence in the case. Yet, looking at her evidence, her description of the incident was indeed unclear. Although she had described that the appellant and the 2^nd defendant had ‘restrained’ or ‘controlled’ Xie, not allowing her to go back to the premises, her description was in fact devoid of details. In other words, the witness only told the court her impression and not the actual acts of the individuals. Furthermore, according to the evidence of the witness, Xie had in fact been held down on the ground by the appellant and the 2^nd defendant. This was consistent with Xie’s description.

13. As to the point raised by Mr. Wong that it did not constitute an assault for the appellant to be possibly exercising her rights as the house owner in driving Xie away, first of all, that is not the evidence of the prosecution. The appellant employed Xie at a monthly salary of $2,600. In other words, neither party anticipated at that time that the employment relationship would be as short as being calculated on a daily basis. When Xie had worked for her for 20 days, the appellant drove her away without paying her any wages. The appellant could have in fact made other arrangement to let Xie have a chance to find alternative accommodation. Even if the appellant were exercising her rights as the house owner, it did not mean that she could assault Xie at will. The prosecution’s case showed that instead of using reasonable means to ask Xie to leave, the appellant assaulted Xie together with her elder brother, the 2^nd defendant, forcibly dragged Xie out of the premises and continued assaulting her outside the premises.

14. In the present case, in my judgment, the evidence adduced by the prosecution was sufficient to establish that the appellant had assaulted Xie, causing her bodily injury. The conviction was not unsafe and the appeal against conviction was dismissed accordingly.

Grounds of appeal (sentence)

15. In respect of the first charge, Mr. Wong has cited the following three cases to argue that given the facts of the present case, the sentence of 4 months’ imprisonment was manifestly excessive: HKSAR v Li Kwan[2]; HKSAR v Law Wai Tung[3]; and HKSAR v Lee Bun[4].

16. In Li Kwan, the appellant punched another inmate in prison, causing the latter to fall and hit his head on an iron trolley. As a result, the victim suffered lacerations to his upper left eyelid and left cheek, swelling as well as bruising to his left cheek. The magistrate sentenced the appellant to 4 months’ imprisonment which was not interfered with by the appellate court.

17. In Law Wai Tung, the appellant (the 2^nd defendant) assaulted an off-duty police officer with a group of persons and was sentenced to 4 months’ imprisonment. The facts of the case were that the 1^st defendant in the case accused the officer of staring at his girlfriend, and after the officer had revealed his police identity, the 1^st defendant and a group of persons, including the appellant, pushed the officer to the ground and kicked as well as punched him, and words like “Police so what” were said. The appellate court refused to disturb the sentence.

18. In Lee Bun, the appellant assaulted a Correctional Services officer while he was serving a sentence of imprisonment. He hit the officer over the head with a plastic mug because the officer had found him to have attempted to smuggle food to his cell. The officer suffered abrasion to his head and required medical treatment. The magistrate adopted a starting point of sentence of 9 months’ imprisonment. The appellate court was of the view that given the facts of the case, a proper starting point of sentence would have been 18 weeks’ imprisonment.

19. Mr. Wong submitted that the forcible dragging and pulling of Xie away from the appellant’s residence by the appellant and her elder brother did not cause serious injury to Xie, and that the facts of the present case were less serious than that of the cases quoted above.

20. In respect of the second charge, Mr. Wong cited the case of Ho Mei Wa[5]. In that case, the Court of Appeal laid down guidelines that for a first time offender, if the relevant employment should be one in relation to the employer’s commercial or business interests and the duration of the employment was temporary or short-term, the starting point of sentence should be 3 months. Should there be presence of aggravating features, the

sentence would be substantially increased. The Court of Appeal said nothing about the applicability of the sentencing guideline to domestic situations. Mr. Wong submitted that in the present case, the sentence of 6 months’ imprisonment would be amounted to an 100% of enhancement of sentence, which was manifestly excessive. He cited the case of Liao Mei and Others[6] in relation to enhancement of sentence in support of his argument.

Discussion

21. There are no sentencing guidelines for the offence of assault occasioning actual bodily harm, not to mention that the circumstances of each case vary greatly from one another and cannot be dealt with on the same basis.

22. The cases that are cited by Mr. Wong are not of much help since the facts of the instant case are quite distinguishable from them.

23. The appellant employed Xie illegally in the first place and then drove her away without giving her the wages for her 20 days’ work. When Xie refused to leave, the appellant called her elder brother to come to force Xie out of the premises together. In the course of it, they assaulted Xie both inside and outside the premises. As Mr. Joseph Wong, Senior Public Prosecutor for the Respondent has pointed out, a domestic helper, though illegal, is still a human being and should not be ‘dumped after use’ like a piece of goods/article or be abused at will.

24. I do not find the sentence of 4 months’ imprisonment excessively severe.

25. With regard to the second charge, Ho Mei Wa involved the employment of a person not employable in commercial circumstances while the present case involved a domestic helper. It is true that Ho Mei Wa is of reference value but the question that I should consider is given the circumstances of this case, whether the starting point of sentence of 6 months is excessive.

26. The appellant exploited Xie, an illegal worker, by employing her at a rate of remuneration lower than the minimum wages. It was not stated in the negotiation that the job was temporary or short-term. When Xie had worked for 20 days, however, the appellant dismissed Xie suddenly and unilaterally. She even forced Xie to leave without paying her the wages for the 20 days’ work or any compensation. The sentence of 6 months is not manifestly excessive.

27. Although the first and the second charges are different in nature, the circumstances of the second charge were made more serious to a certain extent by the first charge. And it is true vice versa. In considering the totality of the sentence, in my judgment, the magistrate should have ordered part of the sentences to run concurrently, or else the appellant would be subject to the risk of double punishment.

28. After consideration, I was of the view that a total of 7 months’ imprisonment was a proper sentence. For the reasons given above, I allowed the appeal. The respective sentences of 4 months and 6 months for the first and the second charges should remain but 3 months out of the 6 months on the second charge should run consecutively to the 4 months on the first charge, making a total sentence of 7 months’ imprisonment.