HKSAR v. WONG CHAK KWAN DEREK

HCMA 194/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 194 OF 2007

(ON APPEAL FROM ESCC 4050/2006)

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J U D G M E N T

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1.  The appellant was convicted on 21 January 2007 after trial before Mr Winston Leung at Eastern Magistracy, of one charge of Common Assault.  He was fined $5000 and ordered to pay compensation to the victim of $1000.  He appealed against conviction only.

2.  The facts of the case as they appeared from the evidence were that the victim, (PW1) an Indonesian female, aged 35, had been employed by the Appellant as a Domestic Helper.  Her contract began in April 2005.

3.  The appellant and his wife were dissatisfied with the competence of the victim and that dissatisfaction dated at least from February 2006.  The Appellant and his wife appear to have had an unhappy relationship with PW1; their attitude to her bordered on the feudal.  Rules were imposed on her and she was not trusted with keys or to leave the flat unless given permission.

4.  Their attitude was revealed in a series of written ‘admissions’ entered in a notebook (produced as Exh. Dl).  Wages paid to PW1 were recorded in the notebook against which she signed as a receipt.  In addition from 7 February 2006, PW1 was required to make entries in Exh. D1 setting out her alleged faults in carrying out domestic duties; breaches by her of ‘house rules’; confessions to lies she, allegedly, told, as well as incidents of damage for which deductions were made from her salary.

5.  PW1 was required to write the entries, often at the dictation of one or other of her employers and to sign and date them.  Dictation was usually necessary because although the victim spoke little English, she nevertheless communicated with her employers in English.

6.  The entries relating to her alleged transgressions began on 7 February 2006 and ended on the day of the alleged assault - 6 July 2006.  The last entry had not been written by PW1, but was in what she recognised as the appellant’s handwriting.  That final entry appeared to have been signed by PW1.  When cross-examined she seemed initially to agree that the signature was hers [B51L-O].

7.  In further cross-examination [B52Q-Y, B53A-F] however PW1 agreed that the signature looked very like hers, but said she had not seen that final entry before she left the appellant’s employment, nor had she signed it.  She made no suggestion as to who might have signed her signature.  PW1 agreed that she had written parts of the earlier entries, and acknowledged that her signature was appended to each of the earlier entries.

8.  The unhappy employer/employee relationship culminated in an incident around 11 pm on 6 July 2006 when the appellant became angry with the victim for having breached a household rule and scolded her.  In the course of the scolding the alleged assault occurred.  The victim said that the appellant jabbed his right index finger at her face, causing her to draw her head back in order to avoid it.  The appellant swung his right hand in which he held his mobile phone, which was slightly stretched out, upwards and hit PW1 on the left upper forehead.  She felt pain and began to cry at which point the appellant told her to leave the house.  When PW1 tried to do so the appellant stopped her, saying he did not mean it.  The victim finished her work and went to bed.

9.  Next morning PW1 told her female employer she was leaving because the appellant had assaulted her but she was not believed.  She declined a request from the female employer to stay temporarily.  PW1 left the appellant’s house before 9 a.m. on 7 July 2006 and sought help from a migrant worker organization.  A report of the assault was made to the police at noon.  The victim was medically examined at about 4 p.m. the same day.  The medical finding was a mild swelling on the left forehead.  [Exh. P1 and Exh. P2].  The contract of employment was terminated; PW1 claimed she resigned as a result of the assault – it was submitted for the appellant that he had dismissed her for poor performance.

10.  When PW1 left the house she had only $200 cash on her.  She was not given any letter or document terminating her contract; nor paid wages in lieu of notice; nor given money for an airline ticket.  Some time later PW1 made a Labour Tribunal claim – although that has no bearing on the assault incident.

11.  At trial PW1 was cross-examined at length about the employer/employee problems, the details of the assault incident and the disputed signature.  The appellant did not give evidence or call witnesses.  The Magistrate after considering the evidence found PW1 ‘an honest witness by her demeanour under cross-examination and the logic in her testimony’.  He went on to say that the termination of the contract of employment and the authenticity of the last entry “are germane to her credibility”.  He convicted the appellant.

12.  The appellant was represented at trial and on appeal by Mr Andrew Bruce S.C.  The Amended Perfected Grounds of Appeal comprised:

(a)  complaints about the way the Magistrate dealt with the evidence relating to credibility; (Ground 1)

(b)  a complaint that the Magistrate had failed to deal correctly with evidence about the victim’s signature; (Ground 2)

(c)  an alleged failure by the Magistrate to recognize that the victim had something to gain by lying about her signature; (Ground 3)

(d)  criticism that the Magistrate used reasoning inconsistent with the criminal standard of proof (Ground 4); and

(e)  criticism of the way the Magistrate resolved the matter of the disputed signature.

13.  Although expressed individually the grounds overlapped and merged into a single ground; the Magistrate, wrongly, had accepted PW1 as a credible and truthful witness.

14.  On 6 January 2009, the day fixed for the appeal hearing, counsel for the appellant, pursuant to Ground 5 of his Amended Perfected Grounds of Appeal, applied to produce additional evidence pursuant to s.118(1)(b) of the Magistrates Ordinance, Cap.227 and asked the court to exercise its powers under section 83V of the Criminal Procedure Ordinance, Cap.221.  The evidence sought to be produced was that of a forensic document examiner, Ms Michelle Novotny, in respect of the disputed signature to the final entry in Exh. Dl.

15.  In a report, dated 26 November 2007, based on her comparison of scanned signatures from Exh. Dl and control signatures obtained from PWl, the document examiner concluded that it was “highly probable” that the disputed signature had been written by the same person who had supplied the control signatures.

EXPERT EVIDENCE

16.  Counsel for the appellant submitted that the issue of who signed the entry was inextricably interwoven with the assault incident and that it was not appropriate to say, the topic having been raised, that PW1’s description of the assault could stand by itself.  The forensic report was said to show that there was no real dispute that the evidence of the expert was capable of being believed and despite the limitation of the expert’s not having seen the original signature, the report supported her preliminary conclusion that the questioned signature was that of PW1.

17.  To forestall any argument that the issue of the signature went only to credit and thus was a collateral issue on which evidence might not be called to contradict PW1’s answers, Mr Bruce made three points extrapolated from the relevant authorities:

(a)  the issue of what is collateral and what is not is no longer bound up in the rigid formalism of the past;

(b)  the concern under modern authorities is the importance of the issue to the real issues in the case;

(c)  the signature was a critical issue and critical to the credibility of PW1.

18.  Relevance was the real issue in determining whether the collateral evidence rule was applicable.  In HKSAR v Wong Sau-ming (2003) 6 HKFAR 135, Li CJ referred to that rule as being conducive to a fair trial.

“its rationale is that, as a matter of common sense, a criminal trial should be kept within proper limits.  The court should focus on the issues in the case.  Its attention should not be diverted to collateral issues such as credit, the exploration of which may unnecessarily blur or confuse the real issues in a cloud of detail.  Although the rule has sometimes been criticised, it is well established and necessary.  However, the distinction between the questions going to the issues in the case and those going to credit is sometimes difficult to draw and in some cases, can be a rather thin one.”

19.  Mr Bruce also relied on the comment of McHugh J. in Palmer v R (1998) 193 CLR 1, 23-24.

“For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness’s denials on matters going to credibility is not ordinarily admissible ... if evidence going to credibility has real probative value with respect to the facts in issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts in issue.”

20.  Mr William Tam, who appeared for the respondent, conceded that if the court considered the additional evidence could afford a ground for allowing the appeal, the respondent was inclined to the view that the reception of the proposed evidence was necessary or expedient in the interests of justice.  The respondent’s own expert had considered the forensic report and he agreed with the method of examination adopted; that being such as was generally practised by most laboratories.  The expert agreed also with the interim opinion given by the appellant’s expert.

21.  Mr Tam submitted further that whether the additional evidence, if admitted, would tilt the balance on the question of PW1’s credibility in the appellant’s favour, would still be for the court to determine.

22.  After hearing the arguments of both parties; having noted, in particular, the Magistrate’s finding that the credibility of PW1 was the central issue; and taking into account his view that the disputed signature was “germane” to that issue, I considered, from an abundance of caution, that it was “necessary or expedient in the interests of justice” for the court to consider the additional evidence.

23.  Accordingly in the exercise of my discretion I granted leave to the appellant for the production of the proposed additional evidence.  An adjournment of the appeal hearing was granted and a court order was made releasing Exh. D1 from the court’s custody for the purpose of forensic examination of the original disputed signature.

24.  On the resumption of the adjourned hearing on 26 May 2009 the appellant’s expert gave oral evidence about the procedures and methodology of her examination of the original disputed signature.  She gave her unqualified opinion that the original disputed signature which she had examined against the specimen signatures was that of PW1.  The respondent advised the court that as their expert agreed with the methodology and the conclusions of Ms Novotny’s report, the respondent would not call its own expert.

NATURE OF MAGISTRACY APPEAL

25.  The Court of Final Appeal in Chou Shih-bin v HKSAR [2005] 1 HKLRD 838 confirmed that a magistracy appeal is an appeal by way of re-hearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so, and stated:

“where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first hand which the magistrate enjoyed.  Even so it will not fail to quash a conviction that it considers unsafe.”

26.  I bear in mind the comment in HKSAR v Lee Hon-shun CACC 626/1999, that the person appointed to resolve issues of credibility is the trier of fact, in this case the Magistrate.  It is not for an appellate court to usurp his function.  The courts have made that abundantly clear.

27.  The court in Lee referred to R v Turnbull [1977] QB 224, where inter alia the court set out three instances when a court will interfere on matters of credibility.

(1)  If the jury had been misdirected as to how to assess evidence;

(2)  If there had been no direction to the jury when there should have been one;

(3)  If on the whole of the evidence the jury must have taken a perverse view of a witness.

The court emphasised that the third circumstance was rare.  Perversity was effectively what the appellant alleged in respect of PW1’s evidence.

28.  I was obliged to treat this case as a rehearing with the additional evidence of the forensic document examiner forming part of the material.  Before I could consider setting aside the Magistrate’s finding on the credibility of PW1 in relation to the assault, I had to be satisfied that the Magistrate’s view of PW1’s credibility was perverse.

29.  Grounds 1 and 2 fall to be considered with Ground 5, based as they are on the question of the credibility of PW1.  Ground 3 and Ground 4 can be considered separately.

GROUND 3

30.  Counsel for the appellant submitted that the Magistrate erred in saying that the victim had nothing to gain by denying the disputed signature.  He conceded that although PW1 was unlikely to have been familiar with section 9(1) of the Employment Ordinance, Cap.57, which sets out the conditions under which an employer may terminate a contract of employment without notice, or payment of wages in lieu of notice, yet, nevertheless, the idea of preparing the ground for a dispute with an employer about back wages and benefits was rooted in common sense and was likely to have occurred to PW1.

31.  It was suggested that she had denied signing the final entry in the belief it would aid her Labour Tribunal claim and that the Magistrate had failed to recognize that as a possible advantage to PW1, or as a possible incitement for her to falsely accuse the appellant.  The tenor of the entries in Exh. D1, however, was such as to suggest, on one view at least, that any advantage from the entries would enure solely to the benefit of the appellant who could try to use the admissions to justify a dismissal his refusal to pay wages in lieu of notice.

32.  The Magistrate did have in mind the possibility of a false accusation and referred it in his Statement of Findings. [B15 – B16]  It made no sense for PW1 to deny only the last signature, given all the possibly damaging entries preceding the final entry.  The Magistrate had referred to a lack of advantage to PW1 by such denial presumably on the basis that the earlier entries were just as harmful.  This ground does not succeed.

GROUND 4

33.  This ground alleged that in convicting the appellant the Magistrate had done so using reasoning inconsistent with the criminal standard of proof.  The appellant relied on three instances where this appeared to have occurred.

l.  “By common sense, the circumstances could be hostile and the emotions of the employer could run high.  An angry employer, annoyed by the continual and consistent bad performance of the domestic helper, could lose self-control and behaved in the way as described by PW1.” [TB 14 - para. 1]

2.  “However, he was an angry and annoyed employer facing what he considered an incompetent and disobedient maid in his own kitchen.  Human nature being what it is, there is nothing improbable that he did behave in the way described by PW1.”  [ TB 16 - para.2]

3.  “Given PW1’s average intelligence, as I find it, and lack of advantage to be gained by her denial, I am inclined to accept her testimony on this entry.”  [TB 15 - para.2]

34.  After reading the transcript of PW1’s evidence and having considered counsels’ submissions on this point, I am of the view that these remarks have been taken out of context and to a degree misinterpreted.  This was an experienced Magistrate who understood the burden of proof.  Indeed the final sentence of his Statement of Findings sets out the burden of proof.

35.  Read in context, the quoted passages show the Magistrate considering inherent probabilities in terms of the situation as it appeared from the evidence of PW1 and the matters suggested to her in cross-examination.  One has to bear in mind that the only evidence before the Magistrate was that of PW1.  The appellant had elected not to give evidence or call witnesses and the Magistrate was entitled to test the evidence by examining the probabilities raised by PW1’s account; indeed Magistrates are enjoined to consider inherent probabilities in reaching a determination.  This ground has not been established.

CREDIBILITY – (GROUNDS 1, 2 AND 5)

36.  It is necessary to consider the evidential significance of Exh. D1.  The entries were written by PW1 and/or her employers and purported to be a record of PW1’s alleged transgressions.  While PW1 in evidence admitted her incompetence and breaches of “rules”, she was adamant that she had not told lies as some of the entries record.

37.  The last entry in Exh. D1 purported to be an account by the appellant of the incident of 6 July 2006:

“I found Kris [PW1] not throwing the garbage until 11:00 p.m.  Kris told me that she took madam’s key by herself and threw the garbage very late at night sometimes.  I have made it as a rule that the garbage must be thrown before 10:00 p.m. with either sir or madam waiting her at the door.  The door then must be fully locked for safety.  Seems Kris does not follow my instruction again and again.”

38.  PW1 identified the writing as that of the appellant.  The entry was written as a report – it contained no reference to the scolding, or the assault, or the appellant telling PW1 to leave the house.

39.  There was no evidence about how and when the entry was made, nor under what circumstances PW1 signed it.  PW1 left the appellant’s residence between eight and nine o’clock on 7 July 2006.  She did not recall having seen the entry or having signed it that morning.  It is quite possible that in the context of her announcing she was leaving; the female employer asking her to stay temporarily and her refusing to do so, that PW1 was asked to sign the entry, did so, but forgot about it.  Given the traumatic events of the previous day and the following morning that would not be surprising.  PW1 was not asked about the entry or her signature until she was in court some 6½ months later.  The only evidence, such as it was, about the entry and the signature came from PW1.

40.  Mr Bruce argued that PW1 might have believed that if she admitted signing the final entry, she would find herself at a disadvantage if she tried to claim for various contractual entitlements.  That would be a reason for her to lie.  He relied on the contents of the entry as presenting an opposing view of the assault incident.

41.  However, from the content of the entries and the circumstances under which PW1 was required to make and sign them, it can be inferred that it was the employer who was preparing for any future dispute about dismissal or benefit.  PW1 signed the earlier entries admitting transgressions alleged by the employer, without any provision for her to comment on or answer the allegations.

42.  In evidence PW1 explained that she believed she had no choice but to write what she was told, or she would lose her job.  While she agreed readily that her employers were displeased with her, that she may have breached “rules” imposed by her employer, or that her work was considered unsatisfactory, she denied having told lies.  As for the content of the entries, PW1 explained that where she could not understand the English used by her employer either she did not write the full entry – or omitted writing it altogether.

43.  In the absence of explicit evidence by PW1:

(a)  Agreeing the accuracy of the recording of the incidents throughout Exh. D1;

(b)  Admitting that she had lied as some of the entries recorded;

(c)  Denying that she was ordered to make the entries, or to write them as dictated by one or other of her employers.

All that Exh. D1 can show is that an unhappy relationship had existed between PW1 and her employers for a period of months.  Given the circumstances under which they came into being, those entries cannot be of any evidential value as to the truth of their contents.  All that the entries show prima facie is that PW1 was forced to record admissions against her interest or else risk her employers’ wrath or, possibly, risk losing her employment.

44.  In considering the credibility of PW1 I accepted the evidence of the forensic document examiner that the signature on the last entry in Exh. D1 is that of PW1.  PW1 denied that she had been asked to sign that entry and said she had no memory of it having been written, or of seeing it, whether on 6 or 7 July 2008.

45.  It follows that PW1 was mistaken about that being her signature, or that her memory of events was faulty, or that she was lying to the court.  It was the appellant’s case that PW1 denied her signature in order to obtain some benefit in the event of possible argument about the termination of her contract.  It was submitted that given the Magistrate’s acceptance of PW1 as a truthful witness his view about her credibility was destroyed if the signature was hers.

46.  There was no evidence to show who had written the final entry, apart from PW1’s recognition of the appellant’s handwriting, nor was there evidence of when it was written, or the circumstances under which or the purpose for which it was written.

47.  The Magistrate considered that the manner of the termination of PW1’s employment contract and the disputed signature were important and that PW1’s evidence about the signature in particular was a factor in determining her credibility.  He accorded those matters rather more significance than was justified.  True it was that they were pertinent and relevant to credibility, but they were not matters that were necessarily decisive of the assault incident.

48.  The Magistrate spoke of the ‘authenticity’ of the final entry, but as PW1 had not accepted it as an account of what had happened (as her evidence shows) and as there was no evidence as to how it had come into existence, or under what conditions PW1 had been required to sign it, one can only conclude that as with the preceding entries it was of no evidential value.  It was peripheral to the main consideration before the court which was whether the appellant had assaulted PW1 as she described.

49.  Even if under pressure of her employer’s anger the final entry was signed by PW1 (as the expert found) who then, knowingly, denied her signature (a matter which was not established) it did not assist in showing the truth of what had occurred during the incident of assault.  Given the self-serving and one-sided nature of the entry, the proper course for the Magistrate would have been to ignore it.

50.  Because the appellant had exercised his right not to give evidence or call witnesses there was no evidence before the Magistrate to undermine, contradict or explain the evidence put before him by the prosecution.  All that was before the court were suggestions made to PW1 unsupported by evidence.

51.  The question must be whether this conviction is unsafe.  I have considered the evidence afresh and have taken into account also the additional evidence that the disputed signature is that of PW1.  My role is not just to review the Magistrate’s ruling but to form my own view on the fresh material put before me and to confirm vary or reverse the Magistrate’s decision.  Even accepting the worst conclusion – that PW1 lied about her signature, I am of the view that the credibility of PW1 in relation to the assault incident has not been damaged and I do not propose to disturb the Magistrate’s findings.  Accordingly this appeal is dismissed.