HKSAR v. FAVILLARAN LUDY VISILLAS AND ANOTHER

HCMA478/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 478 OF 2006

(ON APPEAL FROM ESCC 4607 OF 2005)

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J U D G M E N T

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1. Both appellants were convicted after trial of various offences arising out of their assaulting three officers of the Food and Environmental Hygiene Department (“FEHD”), namely PWs 3, 8 and 9. 

2. Both appellants were convicted of a joint offence of common assault in respect of PW3, contrary to common law and section 40 of the Offences Against The Person Ordinance, Cap. 212 (being the 1^st charge).  The 2^nd appellant was convicted of two further offences of common assault in respect of PW8 and PW9 respectively contrary to the same provision (being charges 3 and 4).  The 1^st appellant was convicted also of an offence of inflicting grievous bodily harm in respect of PW8, contrary to section 19 of the same Ordinance (being charge 2).  The 1^st appellant was fined $1,500 in respect of her conviction for the assault of PW3.  She was also sentenced to one month’s imprisonment in respect of her inflicting grievous bodily harm on PW8.  The 2^nd appellant was fined $5,000 for each of the three assault offences of which she was convicted. 

3. The 1^st appellant now appeals her convictions and sentences.  The 2^nd appellant appeals her convictions only.

4. The prosecution’s case against the appellants was that on the day of the offences the 1^st appellant, who was employed by the 2^nd appellant as a domestic helper, had been walking her employer’s dogs in Bonham Road when one had defecated in a flowerbed next to the footpath.  PWs 3, 8 and 9 had approached the 1^st appellant and after telling her who they were and showing her their warrant cards, told her that the dog had fouled the flowerbed and asked her for her identification card.  She replied she did not have it and telephoned the 2^nd appellant who then came to the scene and, without providing the 1^st appellant’s identity card to the three FEHD officers, told the 1^st appellant to leave. 

5. Matters then deteriorated when the prosecution witnesses continued to try and detain the 1^st appellant as she was walking away.  The 1^st appellant unleashed a dog and struck PW3 and PW8 with the leash.  She also struck PW3 with her hand.  She then punched PW8 in the face and struck him a blow to the left side of his head.  The 2^nd appellant also struck all three prosecution witnesses during the melee and PW3 finally called the police.

6. I will deal with the appeals against conviction first.  Mr Egan and Ms Rejwani, who appear together for both appellants, advanced four grounds of appeal :

(1)	Firstly, in respect of the 1st appellant only, that the injury sustained by PW8 could not have amounted to grievous bodily harm.
(2)	Secondly, in respect of the 1st appellant only, that the magistrate wrongly found the perforated eardrum of PW8 to have been permanently damaged and when provided with a subsequent medical report during sentencing which established the injury was likely not permanent, should have reviewed herself.
(3)	Thirdly, in respect of both appellants, that the FEHD officers had no power to detain the 1st appellant and both the 1st and 2nd appellants were entitled to resist the officers’ attempts to detain the 1st appellant.
(4)	Fourthly, in respect of both appellants, the magistrate failed to deal properly with the contradictions and inconsistencies in the evidence of PWs 3, 8 and 9.

The first ground

7. As a result of the blow struck by the 1^st appellant to the side of his head, PW8 suffered a perforated left eardrum and it was that injury which gave rise to the offence the subject of charge 2.  Mr Egan argues that a perforated eardrum could not amount to the “really serious bodily harm” which is required to found the offence : see DPP v. Smith [1961] AC 290.  He relied also on the case of R. v. Lo Tak Chi [2001] HKC 385, where a savage assault on the victim resulted in various injuries, the most serious of which were a small cut to the tongue and a chipped tooth as well as a loss of consciousness.  The court of appeal said in respect of those injuries :

“It has caused us much concern as to whether the injuries of PW1 could be properly described as grievous bodily harm.  Having fully considered the matter and reviewed the authorities we are not satisfied that they were.”

8. That was a finding confined to the circumstances of that particular case and I agree with the comments of Lugar-Mawson J in R. v. Lui Man Kuen [2003] HKLRD 395 at 399,that :

“It is always a question of fact in each case as to whether an injury sustained by the victim of an assault amounted to grievous bodily harm or to no more than actual bodily harm.  Previous findings by courts are not of definitive assistance and can provide no litmus test as to the degree of injury in a particular case and it is always a matter for the court or tribunal to determine on the facts before it whether the injury or injuries sustained amount to grievous bodily harm.  An appellate court will only interfere where the lower court’s finding of fact in this regard could not have been properly arrived at on the evidence.”

9. The magistrate in the present case said in her statement of findings :

“58.

Did the injuries amount to grievous bodily harm?  The medical report on Pao (PW8) showed that on 6 September 2005 his left eardrum was perforated.  Before the incident his hearing was normal, and afterwards, he suffered headache and drumming in his ear, and even at the date of trial, which was six months after the material date, he still had not regained his full hearing but could only hear faintly in that ear.  I am satisfied that D1’s attack on Pao had caused him injuries, including a perforated eardrum and loss of hearing, and these injuries amounted to grievous bodily harm.”

10. A loss of hearing of any significance may well amount to a serious reduction in facility.  In R. v. Ashman [1858] 1 F & F 88, as cited with approval by the court in Lo Tak Chi, it was held :

“That to constitute grievous bodily harm it is not necessary that the injury should be either permanent or dangerous but that if it be such as seriously to interfere with comfort or health it is sufficient.”

11. In the present case the magistrate arrived at the conclusion that PW8’s injury to his left ear constituted grievous bodily harm on the basis that the evidence before her was to the effect that PW8 at the time of trial some six months after the assault still suffered a permanent loss of hearing so that he could hear only “faintly” with his left ear. 

12. However, the evidence before the magistrate did not go so far as this.  The relevant portion of PW8’s evidence is as follows :

“Court:  All right.  Clarify for me.  Before the incident how was your hearing?

A.  Normal.

Court:  Any -- all right.  And after the incident how was your hearing?

A.  Relatively worse than before.

Court:  Worse in what sense?

A.  Because the eardrum was perforated, so that would cause me to have headache or some sort of drumming sound within my head.

Court:  But what about your hearing?

A.  I could still hear things, but it was a bit worse than normal.

Court:  ‘I could still hear’ what?

Interpreter:  Things.  ‘I could still...’

Court:  Faintly...

Interpreter:  Thing.

Court:  Oh.  But worse than normal.  I see, all right.”

13. PW8’s evidence went no further than to say that after the incident his hearing was “a bit worse than normal”.  He did not say that he could hear only faintly in his left ear.  That was the magistrate’s interpretation of his evidence.  PW8 did not say that at the time of trial he still suffered a permanent reduction in hearing in his left ear.  He was never asked what his hearing was like at the time of trial.  He was not asked to clarify what he understood by the phrase “after the incident” to mean.

14. A number of medical reports were produced before the magistrate relating to PW8’s injury.  The assault occurred on 5 September 2005.  PW8 was seen on that day by a Dr Wong, at Queen Mary Hospital, who suspected he had suffered a perforated eardrum.  On 6 September he was seen by a doctor at the Sai Ying Pun Clinic upon referral and was found to have suffered a “small central perforation of the left eardrum” and a hearing test “showed mild conductive hearing loss on the left side”.  He was seen by another doctor on 16 September at Tung Wah Hospital’s ear, nose and throat clinic, who confirmed the perforation of PW8’s left eardrum.  That is as far as the medical evidence at trial went. 

15. PW8 was given three days off work and advised to keep his left ear dry.  There was no surgery performed or advised and no hospitalisation of PW8.  There was, in short, nothing to suggest his loss of hearing was permanent. 

16. In her oral reasons for conviction, given on 11 April 2006, the magistrate said, and I quote:

“I am satisfied that D1 had caused injury to Mr Pao (PW8) including the perforated eardrum and loss of hearing and this injury is permanent and amounts to grievous bodily harm.” (emphasis added)

17. The magistrate there refers to a permanent loss of hearing by PW8 although there was no evidence to that effect.  On the day of sentencing of the appellants a further medical report by Dr Simon Wong of the Ear, Nose and Throat Centre of Hong Kong was provided to the magistrate which stated that in the absence of complications, and there was no suggestion PW8 had suffered from any, the vast majority of perforated eardrums spontaneously heal and that “complete recovery of hearing without permanent disability is expected in almost every case”.  When the magistrate came to state her findings, at paragraph 58 (excerpted above), there was no reliance on the injury to PW8’s left ear resulting in a “permanent loss of hearing”. 

18. It seems to me that if PW8 had suffered a permanent loss of hearing to any material degree, no complaint could be made as to the magistrate’s finding of grievous bodily harm.  But in the present case there was no evidence of PW8 having suffered any permanent reduction in hearing.  It appears the magistrate understood the evidence in this regard to go further than it actually did, when that evidence in fact went no further than to establish that, for a time after the incident on 5 September, PW8’s hearing in his left ear was “a bit worse than normal”.

19. It appears that the magistrate arrived at her conviction of the 1^st appellant on a flawed evidential basis and the finding that PW8 suffered grievous bodily harm cannot stand.  The evidence in my view goes no further than to establish that PW8 suffered actual bodily harm.  In my judgment under the provisions of section 51(2) of the Criminal Procedure Ordinance, Cap. 221 the offence of assault occasioning actual bodily harm contrary to section 39 of the Offences Against The Person Ordinance is plainly an alternative to an offence of inflicting grievous bodily harm contrary to section 19 of the Ordinance.  

20. Accordingly in respect of the 2^nd charge I quash the conviction of the 1^st appellant for the offence contrary to section 19 and substitute for it a conviction for an offence contrary to section 39 of the Ordinance.  That disposes necessarily also of the second ground of appeal.

The third ground

21. This ground is advanced on behalf of both appellants.  It is that the arrest or detention of the 1^st appellant by three FEHD officers, that is PWs 3, 8 and 9, for the purpose of requiring her to produce her identity card was unlawful, and that accordingly both appellants were entitled to resist the 1^st appellant’s detention.

22. Neither appellant gave evidence, so no evidence as to why they assaulted PWs 3, 8 and 9 came from them.  Therefore, in the circumstances of this case, there was no evidence of any substance that they thought the 1^st appellant’s detention was unlawful.  Nevertheless the magistrate in any event dealt with the possibility that the appellants may have thought that the 1^st appellant was being wrongly detained by the three FEHD officers in the course of her findings :

“There was no evidence that the Appellants thought they were being wrongly detained and, as I mentioned, they must have known that the men were public officers acting in the course of their jobs, in relation to the dog waste.

Even if the women thought that D1 was being wrongly detained, their response to prevent or remedy this must be proportional to the imminent threat or harm, and must be reasonable in all the circumstances of the case.  If D1 had been wrongly detained, the obvious solution was to call the police - it was public place, with a restaurant close by, and at least five to six bystanders watching, so the Appellants could not have been in fear for their personal safety.  As it was, the officers had already made it clear that Mok only wanted D1’s identity card to book her for not clearing up dog waste, and to whip, punch, slap, push or kick in the circumstances of the case is unreasonable and excessively violent.”

23. Further, it can be seen the magistrate made a specific findings that the appellants knew that the three witnesses, PWs 3, 8 and 9 were public officers acting in the course of their duties.  The magistrate’s findings in this regard was inevitable once she had accepted the evidence of PWs 3, 8 and 9 as being credible, as she was entitled to do.  Mr Egan relies on Bentley v. Brudziniski [1982] 75 Cr App R 217 in support of his proposition that if the actions of PWs 3, 8 and 9 in attempting to detain the 1^st appellant were ultra vires their power of detention, then their assault by the 1^st and 2^nd appellants was lawful.  As a general proposition, this is not so. 

24. If there were no power vested in the three FEHD officers to detain the 1^st appellant, then the 1^st appellant and the 2^nd appellant in support of her could resist that detention with reasonable force, but that force must go no further than that which was proportionate.  I agree with the magistrate’s further findings that to “whip, punch, slap, push or kick in the circumstances of the case was unreasonable and excessively violent”.

25. Bentley v. Brudziniski does not purport to state any principle to the contrary.  As with Collins v. Wilcock [1984] 3 All ER 374 the case was concerned with whether the assaults made upon the police officers in those cases were made while the officers were acting in the due execution of their duty.  Neither case suggests that where the officer had acted beyond their powers an unrestrained assault upon the officer was justified.  Indeed, in Bentley v. Brudziniski the court advised prosecutors to in future, in similar cases, consider charges of simple assault in the alternative, presumably because the court accepted that even if the detention of the defendant in that case was unlawful and therefore not in the execution of the officer’s duty, the defendant’s punching of the officer could still amount to common assault. 

26. That is the position in the present case.  The appellants were charged with offences of assault and, in the 1^st appellant’s case, of inflicting grievous bodily harm.  Whether or not the three FEHD officers had a power of detention or not was irrelevant once the magistrate found that the degree of force used by the 1^st and 2^nd appellants was unreasonable in the circumstances. 

27. In any event, in my view, the officers in the present case were entitled in law to detain the 1^st appellant and to require from her proof of identity.  The power to do so comes from two sources.  The first is contained in the provisions of section 23 of the Public Health and Municipal Services Ordinance, Cap. 132.  By regulation 13 to that Ordinance, it is an offence for a person in charge of a dog to allow it to foul a public place.  Regulation 13 and section 23 are as follows :

“	Reg. 13	(1)	No person in charge of a dog shall allow the dog to deposit… any of its faeces in the common parts of a building or in any street or public place;
		(2)	For the purposes of subsection (1), the owner of the dog shall be presumed to be the person in charge of it unless he proves that at the time of the contravention the dog was in the charge of a person who was neither a member of his family nor employed by him.
	…”
“	Section 23	(1)	Any public officer authorised in writing in that behalf by the authority may-
			(a)	require any person whom he reasonably suspects of having contravened any regulation… to give his correct name and address and produce evidence to that effect to the public officer;
			(b)	arrest any person who, without reasonable excuse, refuses to comply with a requirement under paragraph (a).”

28. The second source of the power of detention given the FEHD officers comes from sections 3 and 4 of the Fixed Penalty (Public Cleanliness Offences) Ordinance, Cap. 570.  The relevant parts of those provisions are as follows :

“	Section 3	(1)	If a public officer has reason to believe that a person is committing or has committed a scheduled offence, he may give the person a notice in the prescribed form offering him an opportunity to discharge his liability to conviction for that offence by payment of the fixed penalty for that offence.
	…
	Section 4	(1)	In exercising his power under section 3(1), the public officer may require a person to whom the notice is to be given to supply his name, address and contact telephone number (if any) and produce proof of identity for inspection.
	…
		(3)	A public officer may arrest a person who, without reasonable cause, fails to comply with a requirement made under subsection (1).
	…
		(5)	In this section, ‘proof of identity’ (身份證明文件), in relation to the person to whom the notice is to be given as referred to in subsection (1), has the same meaning as in section 17B of the Immigration Ordinance (Cap. 115).”

29. There was no issue that PWs 3, 8 and 9 were public officers for the purposes of section 3 above, nor that regulation 13(1)(a) of Cap. 132 above was a scheduled offence as required by section 3 of Cap. 570.  The proof of identity referred to in section 4(5), as defined by section 17(B) of the Immigration Ordinance Cap. 115, is an identity card. 

30. Whilst I accept that regulation 13(1)(a) is badly drafted and seems to have on one possible interpretation the odd effect of rendering an absent owner of a dog the only person who has committed an offence when his dog fouls a public place whilst under the control of a member of his family or a person employed by him, and perhaps means no one may have committed an offence when the owner’s dog is under the control of a person neither employed by him nor a member of his family.  In my view, the regulation and its effect should be looked at afresh by the relevant authority. 

31. The difficulties in constructing the meaning of regulation 13(1)(a) and (2) do not prevent, in the circumstances of this case, PWs 3, 8 and 9 having a reasonable suspicion that the 1^st appellant had contravened the provisions of Cap. 132 when they observed the dog she had under her control defecating in a public place and required her to produce her identity card.  In my view, the words of section 23(1)(a), although somewhat general, allow an FEHD officer to request the production of a suspected person’s identity card so far as proof of the person’s name and identity is concerned. 

32. When the 1^st appellant, after the 2^nd appellant arrived at the scene, attempted to leave still without providing proof of her identity then the FEHD officers were entitled to attempt to arrest her in accordance with section 23(1)(b). 

33. The second basis for the three FEHD officers requiring the 1^st appellant to produce her identity card is more explicit.  It was the evidence before the magistrate that PW3 intended to issue a fixed penalty ticket to the 1^st appellant in respect of the dog under her control fouling a public place.  Accordingly, sections 3 and 4 of the Fixed Penalty Public Cleanliness Offences Ordinance, Cap. 570, applied and section 4(5), as set out above, also applied and pursuant to section 4(1) entitled PWs 3, 8 and 9 to require the 1^st appellant to produce her identity card.  That is precisely what happened and it cannot be said that PWs 3, 8 and 9 were acting in any way ultra vires.

34. When the 1^st appellant failed to produce her identity card before attempting to leave the FEHD officers were entitled not only to detain her but to arrest her pursuant to section 4(3) of Cap. 570.  In short, neither appellant had any legal justification or basis for their assaulting of PWs 3, 8 and 9 and there is no merit in this ground. 

The fourth ground

35. Ms Rejwani argues under this ground that the inconsistencies and contradictions in the evidence of PWs 3, 8 and 9 were of a degree that the magistrate should have rejected them as witnesses of truth or reliability.  I disagree.  The inconsistencies and contradictions relied upon to support this contention were in the main trivial and perfectly explicable by virtue of the, no doubt, rapid and somewhat chaotic course of events which occurred.

36. As the magistrate said in her Statement of Findings :

“Although on first glance the evidence of the witnesses at the scene might look inconsistent, this is partly because the two appellants were moving at the same time, and partly because the prosecutor had asked the witnesses to detail certain parts of their account, and not others.  Also, the incident involved three men and two women, and lasted for some time.  Different people notice and retain different things, maybe because, for example, they were standing in a different position, but that did not mean they were lying or unreliable.  On close examination of the evidence, the three officers are consistent as to the course of events, and for each officer, they would be most aware of their own individual situation, and might not have noticed everything that happened to the others.”

37. Having had the opportunity to read the transcript of the evidence of the three witnesses, I agree with the magistrate’s comments in that regard.  There is no merit to this final ground of appeal and the appeals against conviction of both appellants are dismissed except, as I have said, that the conviction of the 1^st appellant for the offence of inflicting grievous bodily harm on PW8 is quashed and is substituted by a conviction of assault occasioning actual bodily harm. 

38. The 1^st appellant appeals her sentences, including her sentence of one month’s imprisonment in respect of her original conviction for inflicting grievous bodily harm on PW8.  With the quashing of that conviction the sentence imposed is set aside.  It falls to me, therefore, to sentence her for the substituted offence of assault occasioning actual bodily harm.  She appeals also her fine of $1,500 for her conviction of common assault of PW3. 

39. Any assault on a public officer who is going about his duty is serious and, in my view, both the 1^st and 2^nd appellants were somewhat fortunate to have been merely fined for the offence of common assault of which they were convicted, the assaults perpetrated having been pressed home with some vigour and over some time.  There is plainly no merit to the 1^st appellant’s separate appeal against her fine in respect of her conviction for assaulting PW3. 

40. While a lesser offence than inflicting grievous bodily harm, the offence contrary to section 39 of Cap. 212, of which the 1^st appellant now stands convicted, is somewhat more serious than a simple assault.  The rupturing of the FEHD officer’s eardrum is evidence of a heavy and determined blow to his head.  Regardless of the fact that the 1^st appellant may merely have thought she was supporting her employer, and that her employer the 2^nd appellant received no custodial sentence, in my view a custodial sentence was properly imposed on the 1^st appellant and must be imposed on the 1^st appellant as a matter of pure deterrence in respect of the offence for which she now stands convicted. 

41. Regardless of the fact she received a sentence of one month’s imprisonment in respect of her original conviction for the offence of inflicting grievous bodily harm and that offence has now been substituted with the lesser offence of assault occasioning actual bodily harm, in my view one month’s imprisonment remains the appropriate sentence.  This was a determined and protracted assault involving a significant physical injury to a public officer going about his duty. 

42. Nevertheless, the 1^st appellant’s employer, the 2^nd appellant who in my view primarily caused these offences to come about, received only fines.  That in my judgment was an overly lenient approach to the sentencing of the 2^nd appellant.  But given that sentence imposed upon the 2^nd appellant, the 1^st appellant’s sentence of imprisonment seems somewhat disproportionate when both were equally involved in the assault on the FEHD officers. 

43. Whilst, as I have said, one month’s imprisonment would be the appropriate sentence in respect of the 1^st appellant for the substituted offence of assault occasioning actual bodily harm, I am concerned about the disparity of sentence between her and her employer.  The 1^st appellant has served 12 days in custody prior to being released on bail pending this appeal.  Given the usual discount for good behaviour she would be due for release in something over a week and, accordingly, in view of the disparity in sentence between her and her employer, I sentence her to 12 days in prison so as to effect her immediate release.