HKSAR v. PALGUE JONITA AWAS

CACC 261/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 261 OF 2011

(ON APPEAL FROM DCCC 309 OF 2010)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court) :

1.  The applicant seeks leave to appeal against her conviction after trial on 23 June 2011 by Deputy District Court Judge Sham of an offence of wounding the victim on 14 August 2009, contrary to section 19 of the Offences Against The Person Ordinance, Cap. 212 (“Ordinance”) and the sentence of two years’ imprisonment imposed in consequence.

THE TRIAL

2.  The applicant stood trial on a charge of wounding with intent, contrary to section 17 of the Ordinance. Having determined that, although grievous bodily harm was inflicted upon the victim, referred to as “X” at the trial, by the applicant, he was not sure of her intention in so doing the judge found the applicant guilty of the alternative lesser offence contrary to section 19 of the Ordinance.

3.  There was no dispute that the victim, a 7½ year old boy at the time that he sustained his injuries, suffered a perforation of the bowel at the duodeno-jejunal and that the injury had been caused by trauma.  The applicant was a domestic helper employed in X’s family home, where she had resided in that capacity since October 2005.  In the morning of 14 August 2009, the applicant and X were together in the family home.

The prosecution case

4.  The prosecution case was that the applicant had become frustrated and angry with X when he refused to practice the piano and had attacked him.  X’s evidence-in-chief was adduced by way of a video recorded interview conducted of him by a policewoman on 4 September 2009. He said that the applicant had pushed him onto the ground and then, having picked him up and carried him to a sofa, she punched him three times in the stomach as he lay face up.  Practicing the piano was one of a number of activities that X’s mother had required the applicant to supervise X that morning. Later that morning, as the applicant was taking X for tuition in Chinese in a nearby building, X had vomited.  Having returned home with X, the applicant had telephoned X’s mother and X told her that he was unwell.  The mother returned home and all three of them went off to the hospital where, following an examination, an emergency operation was performed on X.

5.  Dr Lee Kim Hung, a consultant and the chief of the Division of Paediatric Surgery at the Prince of Wales Hospital, examined X on his admission to hospital and performed urgent surgery on him the same day.  There was a large perforation near the junction between the duodenum and jejunum of X.  There were reddish bruises over both knees, the prominent part of the spine near the lumbar region and both palms. From the histology, there was no bowel pathology that might have led to the perforation.  In his opinion, the perforation was compatible with recent trauma sustained by a significant force applied to the front.  By ‘recent’: he meant within one or two days, including the day of X’s admission to hospital.

6.  The applicant was arrested and cautioned for the attack on X only on 1 September 2009.

The defence case

7.  The applicant gave evidence in the defence case.  Her denials of having mistreated X in any way on 14 August 2009 were consistent with the account that she gave to the police after her arrest and after she had been cautioned on 1 September 2009.  She enjoyed a good relationship with X.  She said that X had not refused to practice the piano on 14 August 2009.  She had not pushed him to the ground, picked him up and then punched him as alleged.

REASONS FOR VERDICT

8.  In his Reasons for Verdict, the judge said that he was satisfied that the perforation of X’s bowel was caused by the application of significant force to his front.  Noting that X and his mother both denied that X had sustained injuries to his belly accidentally in the days prior to 14 August 2009, the judge found that to be the case.

9.  The judge acknowledged that, on his admission and in the initial stage of his residence in hospital, X had responded to enquiries made of him as to the causes of his injuries by denying that he had been assaulted by anyone.  He had responded in that way to his mother, the police and a social worker.  Further, the judge noted that both X and his mother testified that he had lied to his mother on occasions.  He had done so for fear of being scolded by her for not carrying out tasks required of him.

10.  The judge said that he accepted as “reasonable” the explanation given by X for why he had not told anyone, until some weeks after his admission to hospital, that on 14 August 2009 the applicant had punched him in the belly three times, namely that he was afraid of being scolded by his mother if the fact of his refusal to practice the piano was brought to her attention.

11.  The judge rejected the assertion made to X’s mother in the defence case that she had “got her son to say” that the applicant hit him.  He noted that X said that he made that complaint in response to being asked if the applicant had hit him, whereas X’s mother testified that she had simply asked if he had been hit.  He found X’s mother to be a:

“ ... frank and straightforward person - she is not one of those persons who would simply point the finger at the maid without any concrete evidence.”

12.  Although the judge noted that X had given inconsistent accounts as to how he had been pushed by the applicant, so that he fell to the ground, and as to the cause of the injuries to his knees the judge said that he accepted X’s evidence that he had been pushed to the ground by the applicant.  Nevertheless, he said that it was not clear that the bruising to the lumbar region, the knees or palms of X had been caused by the applicant pushing him or by earlier accidental injury.  Finally, he found that the applicant had punched X in the belly after he had refused to practice on the piano.

13.  In rejecting the applicant’s testimony that she had not assaulted X, the judge noted that she had testified that on the morning of 14 August 2009 X was unhappy when he learned from the applicant what assignments were required of him from his mother’s list. However, it was the applicant’s testimony thereafter X had performed those tasks without any resistance or complaint.

GROUND OF APPEAL AGAINST CONVICTION

14.  On behalf of the applicant, Mr McGowan submitted that the judge had erred in rejecting the testimony of the applicant and accepting that of X.

15.  Of the rejection of the applicant’s evidence, he submitted that notwithstanding the fact that the judge was aware of the good character of the applicant he had rejected her testimony albeit that there was nothing inherently incredible about it and that it was largely consistent with that of X.  Further, the judge had given inadequate reasons for his rejection of the applicant’s evidence.

16.  Mr McGowan submitted that in accepting the evidence of X, the judge had ignored or discounted relevant evidence.  Firstly, of their good relationship prior to 14 August 2009 and the fact that X and the applicant had travelled together to the hospital where they remained together.  Secondly, that X had denied that he had been assaulted: on 18 August to a police officer; on 21 August to a social worker and then to a clinical psychologist and on 26 August 2009 in a witness statement.  Thirdly, that X had admitted other occasions when he had lied, in particular to his mother.  Fourthly, that X’s explanation for lying, that he feared discovery that he had refused to practice the piano would lead to his being scolded by his mother, was not believable.  Finally, that the absence of external injuries to X’s belly was inconsistent with Dr Lee’s opinion that the perforation of X’s bowel was compatible with recent trauma to X’s belly.

17.  Next, it was contended that the judge had failed to have regard to the circumstances in which X come to make his first allegation that the applicant had assaulted him, in particular that his mother was crying and that she had told him that in order to know how to treat him, doctors need to know how his condition had been caused.  Further, while X’s account the mother had stipulated the applicant as the assailant, “Has the sister maid hit you?”

A CONSIDERATION OF THE SUBMISSIONS

18.  As the judge noted there was no dispute that X had sustained a perforated bowel.  Of the cause of that injury, he said that it was clear from Dr Lee’s evidence that it was not pathological rather it was, “… to do with trauma-external force applied directly to the belly.”  In the result, the judge found that the bowel injury was caused by the application of significant force to the belly exerted from the front.

19.  At issue in the trial was whether that trauma had occurred on 14 August 2009 or on an earlier date in an accident, either in a bicycle accident or whilst X enjoyed a variety of ‘fairground rides’ when he was on holiday in Beijing between 6 and 9 August 2009.  The judge resolved that controversy by finding (paragraph 19) that X did not hurt himself in the belly by way of an accident before 14 August 2009.  In so doing the judge had regard to two aspects of the evidence: firstly, the evidence of X and his mother that no such accident occurred and secondly, the evidence of Dr Lee that it was less likely that X could tolerate the discomfort of the injury had it occurred in the preceding days.  However, it is to be noted that Dr Lee had not excluded that as a possibility.

The judge’s rejection of the evidence of the applicant

20.  There is no issue that the judge directed himself correctly in his approach to the evidence of the applicant in light of her good character.  At issue is whether he erred in rejecting her testimony nevertheless and whether or not he gave adequate reasons for so doing.  It is to be noted that, in the sequence of his analysis of the evidence and his consequent findings, the judge stated that he accepted the evidence of X before he turned to his analysis of the evidence of the applicant.  The judge noted that the matter at issue was simply that there was “no punching incident”.  In other respects, the evidence of X and the applicant was broadly similar, save that X testified that he had refused to practice the piano.  He said that his refusal led to him being attacked.  The applicant testified that there was no such refusal or attack.

21.  The sole reason that the judge articulated for rejecting the evidence of the applicant was her evidence that, when she had awoken X on the morning of 14 August 2009, he had seemed to her to be “unhappy” at the prospect of having to perform the assignments that lay in store for him on his mother’s list, but in the event he had done so cooperatively, without objection or complaint.  To put the applicant’s evidence in context she testified that, at her request, he had brushed his teeth and then drunk a glass of milk that she gave him and then brushed his teeth again before they addressed his mother’s list of assignments.  Obviously, what was being described was no more than a young boy being woken up and prepared for the day that lay ahead.  An unhappy, or even cranky, start to the day in a seven-year-old boy hardly gives rise to legitimate surprise, let alone disbelief, at subsequent co-operative conduct.  It is common experience that the moods of young people change quickly.  It follows, that the sole reason given by the judge for rejecting the applicant’s testimony was singularly lacking in any substance.

The judge’s acceptance of X’s evidence

22.  Of his approach to the prosecution evidence, the judge said (paragraph 11) :

“ I am aware that the case lacks independent witnesses and it is basically a one-on-one situation. I remind myself of the need to be cautious when considering the prosecution evidence.”

23.  Although the judge did not state as much in terms, no doubt that warning encompassed the need for caution in his approach to the unsworn testimony of a young boy, who was only 7½ years old at the time of the alleged offence.  In the circumstances of this case, there was a compelling need for such caution.

24.  Of the evidence that the applicant had not complained to anyone of the assault, indeed he had denied any assault, until he did so to his mother in response to her questions, the judge said (paragraph 30) :

“ The boy was admitted to hospital on 14 August, initially he told others he had not been assaulted by anyone, he said that was because he was afraid someone might tell his mother that he did not practice piano and he would be scolded by her (see encounters 540-547 of transcripts of boy’s interview).” [Italics added.]

25.  Although the judge described X’s conduct as having been his initial position, in fact that was the position he maintained not only at the time of his admission to hospital on 14 August 2009 but also on numerous occasions in the following two weeks.  It was an admitted fact that on 18 August 2009 he had told DSPC 45290 that, “he had not been subject to any abuse or assault.”  Further, on 21 August 2009 he had repeated that assertion to Ms Lai Huen Lam, a Social Worker from the Social Welfare Child Abuse Unit.  On the same day, he had told a clinical psychologist that he had not been hit or hurt by others.  Finally, on 26 August 2009 he had made a witness statement, which was taken by DSPC 4540 with Ms Lai Huen Lam present as a witness.  Needless to say, that witness statement contained the standard declaration, as to the truth of the contents and as to the consequences of falsehood, to be found in all witness statements. In the statement, X asserted yet again “No one beat me up”.

26.  On any view, the account given by X to a number of different people on no less than five occasions was starkly at odds with his evidence.

27.  Of X’s explanation that he had not told others that the applicant had assaulted him because he feared that his mother would learn that he had not practiced the piano the judge said (paragraph 32) :

“ The fear of being scolded for refusing to practice piano loomed large in his mind so to speak. I find it perfectly reasonable for the boy to have behaved as he did at the initial stage-tight-lipped about the assault to avoid being scolded by mom.”

28.  In context, the judge’s observations were made in respect of X attending hospital because of his vomiting.  Of that, he said :

“ To this boy, this was not the first time he had vomited, I doubt if he knew by then the serious condition he was in having - i.e. a burst intestine. He might have treated it as one of those previous experiences.”

29.  However, the judge did not go on to consider either the fact that X was detained in hospital for several weeks, so that it must have become clear to him that this was not the vomiting that he had experienced previously, or the fact that X sustained his account of events repeatedly over the following 12 days.  Clearly, those were matters that were relevant to X’s explanation that fear of being scolded by his mother had led to him not only remaining tight-lipped about the assault but also his repeated assertions that it had not taken place.

30.  The judge’s finding that it was “perfectly reasonable” for X to have remained tight-lipped about the assault, lest it be revealed to his mother that he had refused to practice the piano, is most surprising given its context, namely that X was admitted to hospital and he underwent an emergency operation.  Even to the mind of a seven-year-old boy the refusal to practice the piano must have paled into insignificance in the circumstances in which he found himself by the evening of 14 August 2009.  The force of that consideration became all the greater as the days went by and X’s deteriorating condition necessitated his continued residence in the hospital.  In those circumstances, X’s repeated denials to all and sundry that he had been the subject of an assault, if such an assault had taken place and was clearly linked to his injury, was nothing short of astonishing.

31.  The circumstances in which X came to make a complaint to his mother on 30 August 2009 that the applicant had assaulted him were examined by the judge.  He acknowledged the conflict between the testimony of X and that of his mother (paragraphs 34 and 35).  X said that his mother was spending the night with him in hospital.  He denied that he had told her suddenly, (video recording #599) :

“ It was that she had asked me earlier, ‘Has the sister maid hit you?’ Then she said ‘Don’t keep it to yourself. Speak it out.’ Therefore, I told her.”

As Mr Sean pointed out in his oral argument, in cross-examination, some 21 months later, X denied the suggestion that his mother repeatedly asked if the applicant had hit him

32.  By contrast, X’s mother said that whilst she was with X in hospital, and both she and X were crying and she was very upset, she had said (Appeal Bundle 155) :

“ Now the doctor have no idea how to treat you because they have to find out how your body has developed in such a condition. Therefore, if there is anything you tell us.”

She agreed that she had asked, “Did someone beat you after all?”

33.  The judge rejected the suggestion made on behalf of the applicant, that since she thought it was the maid who had hit her son, she “somehow got her son to say it.”  However, he did not determine which, if either, of the two accounts he accepted.  On both accounts the focus was on X having been beaten.  On X’s account the applicant had been identified as a possible assailant.  On any view, the circumstances were emotionally charged, with both mother and son crying.  Furthermore, there was force in Mr McGowan’s suggestion, made in cross-examination of X’s mother but rejected by her, in effect that treatment of X and his getting better was contingent on his giving an explanation for his injuries.  Clearly, in all the circumstances the situation was fraught with the danger that X’s ultimate allegation, that he had been assaulted and that the applicant was his assailant, was untrue.

Conclusion

34.  In the result, for the reasons we have given, in our judgment, with respect to the judge, his analysis and assessment of the weight to be given to the evidence was flawed and the applicant’s conviction unsafe.  Accordingly, the application for leave to appeal against conviction is allowed and, treating the hearing of that application as the hearing of the appeal, the appeal is allowed and the applicant’s conviction and sentence quashed.

35.  It is a matter of surprise and regret that the Court notes that the applicant’s application for legal aid, to apply for leave to appeal against conviction, was refused on the merits.