HKSAR v. Law Wan Tung

CACC 86/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 86 OF 2015

(ON APPEAL FROM DCCC NO. 421 & 651 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT

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1.The applicant, who appeared in person having been refused the grant of legal aid [1] and the assistance of the Hong Kong Bar Association’s Free Legal Services Scheme [2], sought leave to appeal against her convictions of multiple offences after trial by District Court Judge Woodcock on 10 February 2015 and against the sentences imposed in consequence on 27 February 2015. At trial, the applicant had been represented by Mr Graham Harris SC, leading Mr Wong Heung Yung, on the instructions of Ching & Co. I refused the applications for leave to appeal and said that I would give my reasons for so doing in due course. That, I do now.

2.The applicant invited this Court to grant her legal aid, pursuant to rule 12 of the Legal Aid in Criminal Cases Rules, Cap. 221.  The applicant first gave notice in Form XI, filed with the Court on 11 March 2015, of her application for the grant of legal aid to assist her applications. Following the refusal of the grant of legal aid on 9 June 2015 the applicant sought leave to judicially review that refusal.  Leave having been granted by Au Yeung J on 12 August 2015 for that application, following the intervention of the Secretary for Justice, the application was refused on 28 January 2016 by Au Yeung J, on the basis that, not having invited this Court to grant legal aid, the applicant had not exhausted all the remedies available to her to secure legal aid.  By a letter filed with the Court on 1 February 2016, the applicant, acting in person, invited the Court of Appeal to grant legal aid pursuant to rule 12 of the Legal Aid in Criminal Cases Rules, Cap. 221.

3.In refusing the application for legal aid on 9 June 2015, the legal aid officer acting on behalf of the Director of Legal Aid stipulated that he did so:

“ … satisfied that your financial resources do not exceed the limits specified in section 5 of the Legal Aid Ordinance as applied by rule 5 of the Legal Aid in Criminal Cases Rules Cap. 221 and having considered all circumstances case including the merits of the appeal, I am not satisfied that it is desirable in the interests of justice to grant you Legal aid.”

4.In the period April to June 2015, the Legal Aid Department responded on four separate occasions to enquiries made on behalf of the Registrar, as to when a decision would be made in respect of the application for legal aid, stating that the matter was “under consideration”.

5.For the reasons set out below, I was not satisfied that it was appropriate to exercise the powers of this Court to grant the applicant legal aid to pursue her applications for leave to appeal against conviction and sentence.

The charges

6.The 21 charges that the applicant faced at trial arose from her employment of three Indonesian domestic helpers, whom she had employed in sequence.  First, Ms Tutik Lestari Ningsih (PW9) was employed by the applicant from 28 January 2010 to 30 March 2011 (Charges 7 and 8). [3]  Secondly, Ms Nurhasanah (PW10) was employed from 5 August to 4 December 2011 (Charges 9 and 10). [4]  Thirdly, Ms Erwiana Sulistyaningsih (PW1) was employed from 22 March 2013 to 9 January 2014. [5]

The Trial

7.The applicant pleaded guilty to and was convicted of Charge 21.  The applicant was acquitted of Charges 9 and 10, which concerned Ms Nurhasanah.

8.The applicant was convicted of the following offences in respect of Ms Erwiana Sulistyaningsih :

(i) Inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212 (Charge 1);

(ii) Assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212 (Charges 2, as an alternative, 3);

(iii) Causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 4);

(iv) Common assault, contrary to common law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212 (Charge 5);

(v) Criminal intimidation, contrary to sections 24(b)(i) and 27 of the Crimes Ordinance, Cap. 200 (Charge 6);

(vi) Failing to pay wages within the due date, contrary to sections 23 and 63C of the Employment Ordinance, Cap. 57 (Charges 11 to 17);

(vii) Failing to pay wages within the due date on termination of service, contrary to sections 25 and 63C of the Employment Ordinance, Cap. 57 (Charge 18);

(viii) Failing to grant a statutory holiday, contrary to sections 39 and 63(4)(a) and (7) of the Employment Ordinance, Cap. 57 (Charge 19);

(ix) Failing to grant a rest day, contrary to sections 17 and 63(2)(a)(i) and (7) of the Employment Ordinance, Cap. 57 (Charge 20); and

(x)  Failing to take out an insurance policy for an employee, contrary to section 40(1) and (2) of the Employees’ Compensation Ordinance, Cap. 282 (Charge 21).

9.The applicant was convicted of Charges 7 and 8 in respect of Ms Tutik Lestari Ningsih.

Sentence

10.On 27 February 2015, the applicant was sentenced to a total of 6 years’ imprisonment and to fines to a total of HK$15,000.

The prosecution case

11.Ms Erwiana Sulistyaningsih came to Hong Kong from Indonesia to work as a domestic helper on 27 May 2013. She was 21 years old at the time.  Her contract with the applicant was arranged with a recruitment agency in Hong Kong.  She knew she had to pay an agency fee to get a job in Hong Kong and she already had a contract before she arrived. 

12.On arrival at the applicant’s apartment in Tseung Kwan O on 30 May 2013, Ms Erwiana was given instructions by the applicant to clean the flat throughout the night.  The applicant had very high standards of cleanliness, as one of her two children living at the flat was allergic to dust mites.  Ms Erwiana was allowed only four hours of sleep every day, sleeping on the floor of a store room with only a pillow and blanket.  She was provided with food twice a day.  After the first month of her employment, Ms Erwiana ran away.  She complained to the agency that she had not been paid.  However, she was brought back to the applicant’s flat by someone from the agency.  After this incident, the applicant started physically abusing her.  Ms Erwiana testified that during the six months of her employment with the applicant she was subjected to a wide range of abuse and was hit with various objects. 

Charge 1

13.Two days after Ms Erwiana ran away, the applicant hit her, after finding out she had taken some food and drink without permission, as she was hungry.  Ms Erwiana was hit in the face and punched in the mouth two or three times, chipping two of her front teeth and cutting her lips.  Also, the applicant threatened to call the police. 

Charge 2

14.On another occasion, having caught Ms Erwiana dozing off whilst she was vacuuming the carpet, the applicant punched her several times in the eyes and nose.  Ms Erwiana felt blood in her nose and had difficulty breathing through her left nostril. 

Charge 3

15.Ms Erwiana testified that she was hit on the head by the applicant on one occasion so that she fell over and lost consciousness. She awoke in the bedroom with a headache.  A later examination of her scalp found a pinkish scar on her scalp.

Charge 4

16.On another occasion, having seen Ms Erwiana dozing off whilst vacuuming, the applicant disconnected the vacuum tube from the machine and put it in Ms Erwiana’s mouth, twisting it for 5 to 10 seconds until her lips bled and were scarred.

Charge 5

17.Ms Erwiana testified that on a day at the end of December 2013, after the applicant discovered that she had fallen asleep whilst working, the applicant took off all Ms Erwiana’s clothes and made her take a shower.  Then, the applicant directed a fan towards Ms Erwiana, causing her to stand in the shower wet and naked for several hours. 

Charges 11 to 21

18.The applicant failed to pay the wages due to Ms Erwiana,  as well as failing to comply with other requirements under the Employment Ordinance, including giving rest days, statutory holidays, and taking out an insurance policy.  Ms Erwiana testified that she was required to pay part of her salary to the agency for the first six months, and the applicant deducted those payments from her salary.  Also, she was made to sign documents that described payments made to the finance company and salary receipts that were false in that she had not received that money.  Further, the applicant had forced her to agree to deductions from her salary for monies spent on toiletries provided to Ms Erwiana and items she had broken. 

19.Ms Erwiana said that the applicant did not permit her to leave the flat, except to dispose of rubbish, or to clean the door.  There were cameras in every room except the bathrooms and bedrooms.  The applicant told Ms Erwiana that she could watch and hear her at all times.  Ms Erwiana said she did not run away again after the first attempt as she did not know how to open the door, and believed the threats made by the applicant that her family would be harmed if she told anyone.  Ms Erwiana said that she was constantly hungry and once tried to beg for food from one of their neighbours, who confirmed the incident in his testimony.  She was only allowed to use the bathroom twice a day, after which she had to urinate in a bucket or plastic bag.  She was only allowed a small bottle of water to drink every day. 

20.Ms Erwiana said that her hands became sore from her work cleaning without gloves.  She had fresh scabs and scars on her knees from kneeling too long, as well as severe dermatitis of her hands and feet.  She said that the appellant required her to wear plastic bags on her feet as they were seeping pus.  That aggravated the problem.

21.Ms Erwiana said that eventually the applicant told her that she was to go home.  As required by the applicant, she signed a termination of employment agreement and receipts which purported to acknowledge that she had received salary as due.  Those documents were false. 

22.Ms Erwiana said that on the day of her departure from Hong Kong the applicant required her to wear several layers of clothing, an adult nappy and bandages over her damaged feet.  Also, she was made to wear a pair of trainers belonging to one of the children that were too small for her. The applicant put make-up on Ms Erwiana’s face.

Charge 6: 9 January 2014

23.Ms Erwiana said that the applicant threatened her that if she told anyone how she had been treated, the applicant would kill Ms Erwiana’s parents.

24.Ms Erwiana said that the applicant accompanied her to the airport in a taxi.  The taxi driver, Mr Wong Chi Kwong (PW6), testified that he noticed that Ms Erwiana looked so small he thought she was a child.  He said that Ms Erwiana was limping and smelt of urine and faeces.  At the airport, a member of the ground staff of China Airlines, Ms Lee Tze Wai (PW3), testified that she had observed that not only were Ms Erwiana’s face and hands swollen, but also her face was discoloured and her left eyeball had red blood spots.  Ms Lee offered to help Ms Erwiana to get to the gate, but the applicant refused.  Ms Lee said that Ms Erwiana was limping when they walked away.  An Immigration officer, Mr Man Chi Wai (PW4), also noticed that Ms Erwiana’s face was discoloured and marked, and her eyes and hands were swollen. 

25.On arrival at the boarding gate, Ms Erwiana attracted the attention of four other Indonesian ladies.  When they saw her state, they questioned her, but she only said that she had dermatitis.  However, one of the ladies, Ms Riyanti Binit Noto Parni (PW2), probed further and Ms Erwiana told her what happened.  However, Ms Erwiana refused to report the matter to the Hong Kong police at the airport.  Ms Riyanti assisted Ms Erwiana onto the plane and to her home in Solo.  There, Ms Riyanti helped Ms Erwiana undress.  Having noticed that Ms Erwiana was wearing an adult nappy and was very skinny, Ms Riyanti took photos of the injuries with her mobile phone.  Subsequently, she visited Ms Erwiana in hospital.

Medical evidence

26.It was an admitted fact that on examination in hospital in Indonesia Ms Erwiana was found to have swelling and bruises over both eyes, old scars of about 2 to 3 cm in length on her forehead, two cracked and fractured upper front teeth, swelling on both hands and feet due to contact allergy, and red dots over her face.  A second examination found an old wound on the rear part of the left ear and an old wound 1 to 2 cm in diameter on the back above the hip.  A Senior Forensic Pathologist from the Department of Health in Hong Kong observed the examination of Ms Erwiana in the Indonesian hospital.  A number of expert reports were admitted into evidence based on the examination and four medical experts gave evidence at trial. 

27.Dr Chiao (PW14) said of his observations of Ms Erwiana that she had a linear pinkish scar on the internal surface of the upper lip, fractured teeth, localized swelling of eyelids and nose, and a pinkish scar on the left lateral side of the scalp.  In his opinion, the injuries found were unlikely to be self-inflicted, although the time range for the injuries was large and not conclusive.  Dr Ho King-man (PW15), a specialist in Dermatology and Venereology concluded that the dermatitis of the hands and feet of Ms Erwiana was severe, and highly consistent with Ms Erwiana using detergents and bleach without gloves over a period of time.  Dr Lee Wing Yan Michael (PW16), an associate consultant in Neurosurgery, noted an acute subdural hematoma on the back of Ms Erwiana’s head.  Dr Cheung Chi Yan Tom (PW17), a radiologist, opined that the location of the subdural hematoma indicated the head trauma was to the forehead and not a bang to the back of the head.

Ms Tutik Lestari Ningsih

28.Ms Tutik Lestari Ningsih testified that the applicant had slapped and kicked her when the applicant was unhappy with her work.  The first time that she was hit was in May 2010.  She said that she was allowed to sleep for four hours only a day. 

Charge 7

29.Ms Tutik Lestari Ningsih said that on one occasion, when she fell asleep in the evening inside the applicant’s husband’s study, the applicant hit her back with the bamboo stick end of a feather duster. 

Charge 8

30.Ms Tutik Lestari Ningsih said that the applicant denied her request to be allowed to use the telephone to call her home in Indonesia.  She said that, having told her that she was not allowed to contact her family during the employment, the applicant had taken possession of a book in which she kept notes of telephone contact numbers.  On this occasion, the applicant threatened her for the first time.  The applicant said that she would kill her if she used the telephone or told anyone how she was treated.

The defence case

31.The applicant did not give evidence herself, but called four witnesses, including her two children, Edmund and Kelly.  Also, Edmund’s tutor, Vincent, and Edmund’s friend, Dickson gave evidence.  The defence case, in cross-examination, was that the three alleged victims had ‘framed’ the applicant.  Further, it was submitted that their evidence was poor.  The evidence of Ms Tutik Lestari Ningsih and Ms Nurhasanah was unsupported by any independent evidence.  They lodged their complaints only after Ms Eriwana’s case became known to the public.  The medical evidence in respect of Ms Erwiana was consistent with the defence case, namely that she was clumsy and her injuries were caused accidentally.

32.The applicant’s two children, a son and a daughter who were aged 18 and 16 years old respectively, gave evidence that they had both witnessed Ms Eriwana slipping in the toilet on different occasions, getting stuck between the toilet bowl and the wall on one occasion and banging her head against the door on another.  Neither of them had seen the applicant assault or threaten Ms Erwiana, and both said that they did not notice any difference in Ms Erwiana’s appearance from when she first arrived to the time that she left.

33.Mr Chan Ka Chun, Vincent, a tutor of the children testified that he came to the applicant’s flat to tutor the applicant’s children.  He had never seen the applicant threaten or scold Ms Erwiana.  From November 2013 onwards he noticed Ms Erwiana looked skinnier and darker.  Her head, face and eyes were swollen.  He saw that her feet were weeping and wrapped in plastic bags, and her hands were dark.  He thought she was sick, but she did not look like she had been beaten. 

34.Dickson Lo, a friend of the applicant’s son who had visited their home three times, also gave evidence that he had seen Ms Erwiana on 22 December 2013 and noticed nothing in particular about her feet or face.

35.In his closing speech, Mr Harris SC submitted on behalf of the applicant that Ms Erwiana was evasive and there were discrepancies and inconsistencies in her evidence.  Mr Chan Hon Keung, the applicant’s neighbour, said that he had seen Ms Erwiana taking out rubbish on several occasions, contrary to her claim that she was not allowed to leave the flat.  Also, CCTV footage showed Ms Erwiana walking normally when she left the applicant’s flat and at the airport.  She was not limping.  Ms Erwiana was prone to accidental falls and had conceded that she had once fallen, breaking the toilet, after taking a shower.  Ms Eriwana had failed to make a complaint or run away even after successfully running away once.  The applicant had also been kind enough to buy ointments and medication for Ms Erwiana from the pharmacist.

36.The defence disputed Ms Erwiana’s evidence that she had been forced to sign the wage receipts in three batches, as the originals showed they were signed using different pens.  It was submitted that the wage receipts were positive evidence that the applicant had paid Ms Erwiana, and that the payment of the agency fee from her wages was at her request.

Sentence

37.The judge imposed the following terms of imprisonment on the applicant:

Charge 1 - 2 years;

Charge 2 - 1 year;

Charge 3 - 1 year;

Charge 4 - 4 years;

Charge 5 - 9 months;

Charge 6 - 3 years and 6 months; 

Charge 7 - 4 months;

Charge 8 - 1 year and 6 months; and

Charges 11 to 18 - 4 months.

38.Then, the judge made the following orders that parts of the term of imprisonment imposed on the individual counts be served consecutively to the sentence of imprisonment imposed in respect of Charge 4, namely:

Charge 1 - 6 months;

Charge 2 - 2 months;

Charge 3 - 2 months;

Charge 5 - 2 months;

Charge 6 - 6 months;

Charge 7 - 2 months; and

Charge 8 - 4 months. 

39.The judge ordered that that all sentences of imprisonment imposed in respect of Charges 11 to 18 were to be served concurrently with the sentence of imprisonment imposed in respect of Charge 4. 

Fines

40.The judge imposed fines of $5000 in respect of each of the other charges, namely Charges 19, 20 and 21.

41.Accordingly, the total sentence imposed on the applicant was 6 years’ imprisonment and $15,000 in fines. 

Grounds of appeal

42.On 11 March 2015, the applicant filed Form XI, by which she gave notice of her leave to appeal against conviction and sentence.  Attached to Form XI was a hand-written submission in which the applicant asserted, “I definitely up to appeal against the conviction” and complained that the sentence was “too heavy”.

43.On 23 March 2015, initial grounds of appeal against conviction and sentence settled by Mr Wong Heung Yung, junior counsel for the applicant at trial, were filed with the Court.

Initial grounds of appeal against conviction

44.In the initial grounds of appeal against conviction it was submitted that the judge erred in his analysis of and the challenge by the defence to various aspects of the evidence:

(1) The judge erred in concluding that the defence did not challenge to any material extent the evidence of prosecution witnesses other than the three victims in relation to Ms Erwiana’s inability to walk, when PW3, Ms Lee Tze Wai of China Airlines, and PW6, the taxi driver, agreed under cross-examination that there were errors in their recollections in their evidence-in-chief;

(2) The judge erred in his approach to the evidence that Ms Erwiana was prone to accidental falls, and in failing to deal with the undisputed evidence that she had fallen in the toilet;

(3) The judge erred in making contradictory findings that, on the one hand, Ms Erwiana knew she had to pay an agency fee but also finding, on the other hand, that she also “had no choice but to accept the arrangement”;

(4) The judge erred in treating the applicant’s use of Ms Erwiana’s wages to repay her debt as an illegal deduction of her wages;

(5) The judge erred in relying selectively on parts of Ms Erwiana’s evidence that were prejudicial to the applicant, but ignoring the favorable parts, including finding that Ms Erwiana had been “given a bowl of leftover rice and meat” and that she “slept on the floor of a store room” when the evidence was that the applicant intentionally cooked more for Ms Erwiana’s next meal and the room was soft-carpeted and not a store room;

(6) The judge erred in failing to mention, let alone assess important evidence detrimental to the prosecution case, such as:

Ms Erwiana’s signing wage receipts in different pens;

Ms Erwiana’s not being able to recite in court the threatening words to the effect of ‘killing’; and

that PW7, Mr Chan Hon Keung, the applicant’s neighbour could not see signs of abuse on Ms Erwiana;

(7) The judge erred in allowing the prosecution to ask leading questions of a medical witness (unparticularised) as to the cause of the scar on Ms Erwiana’s upper lip, when the witness had given an opinion in his expert report that was contradictory to the prosecution case;

(8) The judge erred in determining that all the medical evidence “supports” the prosecution case, when that evidence was either not consistent with or inconsistent with the prosecution case;

(9) The judge erred in finding that Ms Erwiana was sent home  “2 days after she was physically unable to work or walk anymore”, when the evidence was that the airline tickets had been booked well in advance.  Similarly, the judge erred in finding that Ms Erwiana “did not know who had her identity card and passport whilst in Hong Kong” when the evidence was that Ms Erwiana knew that they were kept by the agency, a witness from which refused to answer questions on the topic having been given a warning about self-incrimination by the judge.  Furthermore, the judge erred in saying of the fact that the applicant had taken only a rucksack with her when she left Hong Kong that “she had to leave all belongings behind”, when the evidence was that she had arrived in Hong Kong with only the same rucksack.  Finally, the judge erred in determining of Ms Erwiana that she was told that her employment contract was determined, “…the day she left”, when the evidence was that she had “long resigned and had been waiting to be sent home.”;

(10) The judge erred in failing to deal in anyway with the “prior inconsistent statements and list of exaggerations” in the evidence of Ms Erwiana, enumerated in the final submissions of the defence;

(11) The judge erred in allowing the self-serving evidence of Ms Erwiana to strengthen her own case, but in rejecting the evidence of PW13, Ms Clara Ho of the employment agency, which contradicted Ms Erwiana’s evidence (unparticularised).  The judge erred in applying different standards in his analysis of evidence in favour of the prosecution and the defence;

(12) The judge erred in failing to address the inherent improbabilities of the prosecution case;

(13) Finally, the judge erred in determining Ms Tutik to be a credible witness before “observing her demeanour” and maintaining the initial finding notwithstanding her subsequent finding that she was “not always a fluent and articulate witness”.

Initial grounds of appeal against sentence

45.In the initial grounds of appeal against sentence it was submitted that the judge had wrongly:

(1) taken into account the evidence of “uncharged acts” in respect of evidence led from Ms Erwiana of dermatitis in her extremities;

(2) found the medical evidence and photographs as being supportive of Ms Erwiana’s evidence;

(3) assessed the strength of the prosecution evidence in sentencing;

(4) taken into account the photograph of Ms Erwiana in her application form as evidence of her state when she arrived in Hong Kong without any evidence to support that finding;

(5) failed to compare the acts of the applicant by having regard to the more serious conduct described in the authority to which the judge’s attention has been drawn by the defence, “departing from that authority without explanations”;

(6) failed to give sufficient weight to mitigating factors, in particular failing to mention and/or consider especially the applicant’s charitable donations, which bore a multiple relationship to the allegedly unpaid wages owed to Ms Erwiana;

(7) ruled that Ms Erwiana did not agree to the debt arrangement, when the evidence was she entered into the debt arrangement even before training in Indonesia.  Finally, the judge erred in not distinguishing between the parts of Ms Erwiana’s wages which had been deducted as opposed to the amount of money which the prosecution allege were simply unpaid wages.

Written submissions

46.Although by a letter of the Court dated 16 March 2016 the applicant had been directed, inter alia, to file with the Court within 14 days any written submissions in support of her grounds of appeal and, although she had been reminded to comply with the direction by further letters dated 8 and 22 May and 5 June 2016, no such written submissions were provided to the Court until 4 July 2016.  On that date under cover of a handwritten letter purporting to come from the applicant’s husband, 10 pages of the undated document which was described as the “Appellant’s Written Submissions” were filed with the Court.  Although it bore her name, it was not signed by the applicant. The submissions addressed, inter alia, the applications in respect of conviction and sentence.  They bore the hallmarks of having been drafted by an unidentified lawyer.  The submissions in respect of conviction addressed grounds 6, 7, 8 and 13 only.  Those in respect of sentence addressed ground 1 only.

47.At the hearing, the applicant confirmed that she wished the Court to receive and consider those submissions.  Eventually, she confirmed that she had received a letter from the Court dated 16 March 2016 in which she had been directed to file written submissions within 14 days thereof.  She had handed the matter over to her family to deal with.  For her part, she had written to the Court asking that she be granted legal aid.

The respondent’s submissions

48.For the respondent, Ms Catherine Ko opposed the applications for leave to appeal, contending that there was no merit in the applications.  Notwithstanding the very short notice of the written submissions filed on behalf of the applicant, together with the fact that the Court ordered the addition of transcript to the Appeal Bundle, on 5 July 2016 Ms Ko said that she was able to make submissions to the Court.  The transcript in question encompassed most, if not all, of the oral evidence at trial.  It had been prepared and provided to the applicant’s solicitors in early 2015, without notice being given to the respondent.

49.In her written submissions, Ms Ko addressed the range of contentions contained in the initial grounds of appeal.  In her helpful oral submissions Ms Ko responded to the written submissions advanced in support of the four grounds of appeal against conviction and the single ground of appeal against sentence there identified.

Reasons for verdict

Ms Erwiana’s evidence: uncharged acts

50.In her reasons for verdict, the judge accepted the submissions of the prosecution and determined that evidence of uncharged acts led in the evidence of Ms Erwiana, namely of numerous other assaults, abuse and threats made to her by the applicant, was admissible.  In doing so, the judge noted that the applicable principles of law were those set out in the judgment of this Court in HKSAR v. Kwok Hing Tony.[6] The judge said that the evidence was admissible “…in order to get a proper picture about the characters involved in the case; the account would be incomplete or incoherent without it.” [7]  In making her determination, the judge also reminded herself that “it is not evidence the defendant committed similar offences or that the defendant is the sort of person with a propensity to commit the offence.”

51.The judge accepted that the numerous threats made by the applicant to Ms Erwiana, of which she testified, although uncharged, were proved beyond reasonable doubt.  The judge went on to state that the evidence was admissible only for the purpose of setting the context in which the charges took place.[8]

52.The judge observed that the sole issue in the case was the credibility of the witnesses [9]. Taking into account Ms Erwiana’s background, the judge accepted her explanations as to why she did not leave or complain to anyone. 

53.Then, the judge held that the suggestion that the scars on PW1’s face were acne scars, accidentally inflicted or sustained before she worked for the applicant, were “desperate and fanciful suggestions” [10].  The judge also rejected the evidence of the applicant’s children as being unbelievable and evasive [11].

54.Next, the judge held that the deduction of Ms Erwiana’s salary directly by the applicant to pay her agency debt was illegal, as it was not an exemption under section 32(2) of the Employment Ordinance, accepting the prosecution’s submissions to that effect [12]. 

55.Of Charge 2, the judge found that not all the elements were proved, namely that the injury could not be defined as really serious bodily injury as required for.  Nevertheless, the judge held that the alternative offence of assault occasioning actual bodily harm was made out.

56.In the result, the judge said that, after careful consideration of the evidence of Ms Erwiana:[13]

“ …I accept it in it’s entirety and despite the defendant’s clear record I am sure the defendant did assault, wound and threaten PW1 as charged.”

Charges 7 and 8

57.Of Ms Tutik, the judge said:

“ I observed the demeanor of PW9 as she gave evidence and she was not always a fluent and articulate witness but I say from the outset that I found her credible. I believe her evidence and I am sure the defendant caught her asleep when she was meant to be working and assaulted her with a feather duster. I do not believe she fabricated this assault to frame the defendant. I am also sure the defendant threatened PW9 to keep her quiet and in line.”

58.In the result, in convicting the applicant of Charges 7 and 8, the judge said:[14]

“ After careful consideration of PW9’s evidence I accept in its entirety and despite the defendant’s clear record I am sure the defendant did assault and threaten PW9 as charged. The prosecution has proved beyond reasonable doubt the defendant did intentionally hit PW9 once with a feather duster across her back when she found her asleep whilst working

…

The prosecution has proved beyond reasonable doubt the defendant threatened to kill PW9 if she insisted on using the phone or talked to anyone.”

A consideration of the submissions

59.At an early stage of the reasons for verdict, the judge said “…the issue is one of credibility.”  The judge went on to say:[15]

“ The defence do not challenge to any material extent the evidence of witnesses other than the three victims. The issue is whether or not the victims are credible and whether the ingredients of the charged with offences have been proved beyond reasonable doubt.”

60.That statement of the judge resonated with the closing submissions made on behalf of the applicant by Mr Harris:[16]

“ Your Honour, the really important issues in this case, in our respectful submission, are in relatively narrow compass, and I say that because so much turns in this case upon your impression of the three really important witnesses who are the alleged victims in these charges.”

The judge’s approach to the credibility of Ms Erwiana

61.Having reminded herself that the sole issue in the case was that of the credibility of witnesses, the judge noted the defence criticism of the integrity of Ms Erwiana:[17]

“ They questioned why if what she alleges the defendant did to her and said to her is true did she not complain to anyone, fight back, just leave the premises or go to the police….In cross-examination it was put to PW1 during the time she lived there she had opportunities to leave and just walk out like she said she did after the first month. It was suggested there were opportunities to tell visitors to the house, use the house phone and ask for help. She spoke to her father once in Indonesia and could have told him and got help from him without the defendant being (able?) to understand what she was saying despite being within ear shot. ”

62.In addressing those issues, the judge reviewed the evidence as to the person Ms Erwiana was and her reasons for coming to Hong Kong:[18]

“ Ms. Erwiana described herself as a simple village girl, coming from a village where her parents are farmers. She did study and graduate from senior school. She had had one job in a restaurant before she signed up with an agency to come to Hong Kong to work as a domestic helper. Before she was sent here, she was taught to clean and carry out domestic duties, even to speak some rudimentary Cantonese. Her first job was with the defendant. She is far from a worldly person and was not sophisticated.”

63.Then, having determined that she lacked sophistication, the judge said:[19]

“ The fact she believed the defendants threats shows she is a simple timid girl. The fact she signed whatever she was told to sign was because she felt she had no choice. The fact she did not complain, fight back or try to run away again after her failed attempts I believe is because she believed the threats of the defendant and was convinced she was under surveillance at all times. They made her compliant and more subservient. I am sure the more subservient she was meant the defendant repeated the abuse with confidence there would be no repercussions.”

64.In the result, the judge held [20]:

“ 106. After careful[ly] considering Ms. Erwiana’s evidence, her answers under days of cross examination and her demeanor I am sure she was telling the truth. I am sure she was not framing the defendant because she had a hidden financial agenda or personal vendetta. Despite the final submissions of the defence which included a list of discrepancies, prior inconsistent statements and list of exaggerations, I do not find any material discrepancies in her evidence that are so serious it leads me to doubt the veracity or probity of her evidence. She was asked to recall daily occurrences that took place over a period of 7 months in 2013 and was asked minute details. Her mistakes were minor, omissions understandable and I did not find her evasive.

107. I bore in mind this is a case where credibility was the sole issue and there were no independent witnesses but the specificity and the diversity of the details of the individual incidents of assaults charged lead me to be sure Ms. Erwiana did not fabricate her evidence in order to frame the defendant. The medical and photograph evidence are capable of supporting her version of events.” [Italics added.]

65.Of her analysis of the evidence, a consideration of the various submissions and the resolution of those issues in her reasons for verdict, the judge said:[21]

“ An enormous number of issues and incidences were covered by PW1 and other witnesses during the course of this trial. It is simply not practical in the course of these reasons for verdict for me to attempt to cover every aspect of events covered by every witness; to identify individually and discuss every discrepancy, real or perceived; to deal with every argument or submission made by counsel for the prosecution and the defence. However, I have carefully borne in mind all of the evidence of all of the witnesses, the strengths, the weaknesses, the contradictions, the discrepancies, and the support to be found amongst their evidence for and against the prosecution and the defendant. That I do not mention a particular piece of evidence or submission does not mean that I have not considered it or factored it into my decision making.” [Italics added.]

66.As Ms Ko reminded the Court, the context in which the judge had made those statements was a trial in which evidence had been taken over 16 days, five of which days concerned the evidence of Ms Erwiana.  The judge had been provided with written closing submissions by the parties, 24 pages by the prosecution and 46 pages by the defence.  Also, the judge had received oral submissions from the parties for about half a day.  All those submissions, the judge said:[22]

“ I have considered those submissions in depth and at length. I also reviewed the evidence of all the witnesses in light of the submissions.”

Ground 1 (Initial ground 6)

The circumstances in which Ms Erwiana signed the wage receipts

67.In stating that she had regard to the list of discrepancies in Ms Erwiana’s evidence set out in the final submissions of the defence, clearly the judge had in mind the discrepancies in her evidence as to the circumstances in which she had come to sign the seven receipts acknowledging payment of wages was dealt with in both oral submissions [23] and in writing [24]. In the latter submission the matter was dealt with succinctly “I am sure I signed the wage receipts in one go…three times”.[25]  In cross-examination she said “I do not remember.”

68.In examination-in-chief, the following interchange ensued with Ms Erwiana:[26]

“ Q. Did you sign the receipts on one occasion or every month?

A. One occasion.

Q. So you signed all of these on one occasion?

A. What I meant by one occasion is one month to sign that receipt for that month.

COURT: So you signed on seven different occasions? Or, the question is, did you sign seven times at the same -- in one go?

A.  What I mean is in two months or three months she asks me to sign this.  I can’t recall exactly the date.  Not every -- not every month that I have to sign.”

69.In cross-examination, Ms Erwiana said that, she recalled she had signed the receipts on three occasions.  Then, she had signed the receipts for the months of June and July 2018 and “…at one time”.[27] However, when shown the original of that document she said:[28]

“ Q. Or do you insist that the two halves of that first page were signed off by you on the same occasion?

A. I do not remember.

Q. Right.

A. I do not remember.  I was -- I -- what is the importance of remembering?  I do not remember when it happened.”

70.Clearly, the judge was aware of the point being made by the defence but determined, nevertheless that it did not lead her to doubt Ms Erwiana’s veracity.  Obviously, not only was the judge entitled to make that determination but also she was well placed to do so.

71.Of more significance, was the judge’s finding that:[29]

“ I am sure PW1 was not paid any money during her term of employment. I am sure the signed receipts purporting to show payment were just for show. PW1 would not have resisted or refused to sign or write anything PW1 ordered her to write. Such was the hold PW1 had over her. Hard as it is to believe or imagine I am sure it is the truth.”

The inability of Ms Erwiana to recite in Cantonese the applicant’s threat to kill

72.Ms Erwiana’s inability to recite in Cantonese the applicant’s threat to kill was noted in passing in the written closing submissions of the defence at paragraph 135 of the 278 paragraphs of those submissions.[30] It was not the subject to any oral submission.  Nevertheless, it was an accurate statement.  In cross-examination of Ms Erwiana, the following exchange ensued:[31]

“ Q. When you say the defendant threatened to kill your parents, was she speaking to you in English or in Cantonese?

A. In Cantonese.

Q. I want you to tell her Honour, if you can remember, the exact words that she used to you in Cantonese.

A. ….

Q. Okay. And the threat to kill?

A. Yes, she want to kill my parent.

Q. Yes. What did she say in Cantonese?

A. I can’t recall exactly in Cantonese.

Q. Do your best.

A. I really can’t recall exactly what she said. It was a long time ago.

Q. And how frequently did she say this?

A. So often.  More than five times.”

73.To give context to the point, it is to be noted that in first responding to the question Ms Erwiana had repeated in Cantonese the other threats made to her by the applicant, namely “Don’t make trouble”, “I was not allowed to speak to anyone” and “Don’t tell others”.  It is to be noted that, when reminded of the specific question in the short interchange quoted above Ms Erwiana qualified the answer by saying that she was unable to recall “exactly” what had been said.  Also, it is clear that on her evidence the threat had been made repeatedly.

74.The judge accepted that the threat was repeated often by the applicant.  It was a significant part of her explanation for why she had tolerated the abuse for so long without doing anything.  The judge found:[32]

“ I am sure the defendant threatened PW1 not long after she first ran away. The threat may seem farfetched to most but to PW1 I can see why she believed it was a genuine threat to the safety and wellbeing of her parents. PW1 knew the defendant had a husband as she had seen wedding photographs in the house but had never seen him. She was told by the defendant her husband worked in Indonesia. That would explain his absence to her and she had no reason to doubt he was not there. The defendant told PW1 her husband was rich, had many friends in Indonesia and would have her parents killed if PW1 made trouble or told anyone about the abuse she suffered. If the defendant was able to physically abuse her then her parents may too be in danger. I am sure PW1 believed the threats and still believed them when she refused to report the matter to the airport police despite the urging of PW2. She just wanted to get home to check her family was safe. She did not want to take any chances and this is indicative of her belief and fear. There were many threats over a long period of time and she can’t understandably recall the dates, times and circumstances in which they were uttered.”

75.In the context of Charge 6, the judge said:[33]

“ PW1 can recall the threat being repeated at home before she left for the airport and again at the airport. I am sure the defendant would have been at pains to ensure PW1 did not speak to anyone before she left Hong Kong and would have threatened her again with the same threat that had been so effective for so many months.”

76.In the circumstances, I am satisfied that this ground of appeal is not reasonably arguable.  There is no requirement on a judge to address and traverse, if appropriate, every single argument advanced in submissions.  It is clear that the issue of whether or not the threat to kill was uttered was an important part of the case and, specifically, the foundation for Charge 6.  The judge was alive to the issue.  She accepted Ms Erwiana’s evidence in that respect.

Ground 2 (Initial ground 7)

77.By ground 2, complaint is made that the judge overruled an objection made by Mr Wong to Dr Chiao being asked to give an opinion as to whether or not the cause of the scar that he had found on the upper inner lip of Ms Erwiana was consistent with her testimony, namely that it had been caused by the tubular pipe of a vacuum cleaner being thrust into her mouth and twisted around.  It is clear that the objection was motivated by counsel’s desire to limit the evidence adduced from Dr Chiao to that which was in his report, namely that the scar:[34]

“ …could have been caused by blunt force impact on the upper lip against the underlying party several weeks to a few months before the examination. Together with the fractured medial incisors (finding 14), the subject would have received forceful blunt force impact over her mouth several weeks to a few months before the examination as she alleged.”

78.It is clear from the earlier part of the report, in which Dr Chiao summarised the alleged assaults on Ms Erwiana, that he had not been told of the alleged attack in which the metal tubular pipe of the vacuum cleaner was thrust into and twisted around in her mouth.[35] 

79.Having discerned a “linear pinkish scar, about 1 cm long, on left internal surface of the upper lip near midline” which he identified as “finding 13” Dr Chiao said in his report:[36]

“ The linear pinkish scar on internal surface of the upper lip (finding 13), could have been caused by blunt force impact on the upper lip against the underlying hard teeth several weeks to a few months before the examination. Together with the fractured medial incisors (finding 14) the subject could have received forceful blunt force impact over her mouth several weeks to a few months before the examination as she alleged.”

80.The judge ruled that counsel for the prosecution might pose the question to Dr Chiao and the following interchange ensued:[37]

“  Q.  Dr Chiao, let me show you this P10 photo. It is PW1’s evidence-in-chief that, “The defendant put this vacuum cleaner tube and twisted around my mouth inside my mouth with force.”  And in her evidence she said it was the end, not the rubber tube one, this end was used.

A.  That’s right.

Q.  Would that action cause any skin damage or any injury?

A.  If it is twisted forcefully it can cause -- this tube can cause skin damage.

Q.  To the upper lip we are referring to.

A.  Yes.”

81.Clearly, that evidence was admissible and there is no reasonably arguable contention to the contrary.  It beggars belief that it was advanced as a ground of appeal.

Ground 3 (Initial ground 8)

82.By ground 8, it was contended that the judge had determined that “…all the medical evidence supports the prosecution case”.  It was submitted that she was wrong to do so.  It was “equally consistent” with the defence case.

83.The judge was alive to the submissions of the defence to the latter effect, noting:[38]

“ The defence says the medical evidence does not conclusively support PW1’s allegations. In fact it could support the defence case that PW1 was clumsy and the injuries were either caused accidentally, for example as witnessed by DW2 or were pre-existing scars or wounds sustained prior to employment in Hong Kong.”

84.The judge did not determine that “…all the medical evidence supports the prosecution case”.  Rather, she said, in the context of determining that she was sure that Ms Erwiana did not fabricate evidence or “frame the defendant”, that:[39]

“ …the medical and photograph evidence are capable of supporting her version of events.”

85.Clearly, that was the effect of the evidence.  It is not reasonably arguable that the judge was wrong to make that determination.  There is no merit in this ground of appeal.

Ground 4 (Initial ground 13)

86.By ground 13, complaint is made that the judge determined Ms Tutik to be a credible witness “before observing her demeanour” and that the judge erred in maintaining that determination notwithstanding her subsequent observation that the witness was “not always a fluent and articulate witness.”  There is no merit whatsoever in the first complaint, as is evidenced by the judge’s finding:[40]

“ I observed the demeanour of PW9 (Ms Tutik) as she gave evidence and she was not always a fluent and articulate witness but I say from the outset that I found her credible.”

87.The judge went on to say:[41]

“ I believe her evidence and I am sure the defendant caught her asleep when she was meant to be working and assaulted her with a feather duster. I do not believe she fabricated this assault to frame the defendant. I am also sure the defendant threatened PW9 to keep her quiet and in line.”

88.Similarly, there is no substance in the second complaint.  The judge was required to have regard to the substance of Ms Tutik’s evidence in the context of any internal and external inconsistencies in that evidence together with inherent probabilities and improbabilities.  In fact, the judge did go on to address discrepancies in her evidence:[42]

“ There were some discrepancies but none so major or serious I doubted PW9’s credibility. She was giving evidence of matters from several years ago and did not relate them to anyone in authority in detail until she went to the police in 2014. The fact she did not report it to the police until after she read of PW1’s case in the media is not surprising. …

I bear this situation in mind but the most important thing is to test the veracity of their evidence and apply the requisite standard of proof.”

Conclusion

89.I was satisfied that none of the grounds of appeal against conviction were reasonably arguable.  Accordingly, I refused the application for leave to appeal against conviction.

Grounds of appeal against sentence

Ground 1 (Initial ground 1)

90.The short ground of appeal against sentence advanced on behalf of the applicant was that the judge had erred in taking into account “uncharged acts and dermatitis on PW1’s extremities”.

91.In her reasons for sentence the judge said:[43]

“ Ignoring the dermatitis and the state of her hands and feet, the evidence of scars over her body plus subdural haematoma and mild left-side scalp swelling was damning evidence.

The condition of PW1’s extremities, not subject of any charge, however, did show how she was treated and what little care, concern or kindness the defendant showed her.  They were as a result of cleaning incessantly for hours everyday for months without the protection of gloves.  I am sure the defendant insisted on cleaning detergent and products being used which caused the severe dermatitis.  PW1’s sore feet would have been exacerbated by the plastic bags tied around them to keep the floor clean.”  [Italics added.]

92.In her reasons for verdict, the judge addressed at length the issue of the evidence led from Ms Erwiana of events that were not the subject of charges.  For example, she said:[44]

“ PW1 referred to many incidents not charged. She recalls the defendant hitting her hands with a ruler when she caught her using her hand cream because her hands were sore from cleaning incessantly.”

93.Also, the judge noted of the dermatitis:[45]

“ She had severe dermatitis of her hands and feet. This started when it got cooler in November. By the time she left her hands and feet were in the most pitiful condition. She could barely walk.

…

This dermatitis was brought on by incessant cleaning and washing cloths in water with detergents and cleaning agents. The defendant would not let PW1 wear gloves whilst she cleaned.

…

The condition of the dermatitis of her feet was exacerbated by the fact the defendant made her wrap plastic bags around her feet so the pus and liquid oozing from open sores and cracks on her feet would not dirty the floor.”

94.Of the readily visible injuries to Ms Erwiana, the judge said:[46]

“ She explained the scars on her neck, forehead, nose, hands and shoulders were from injuries inflicted by the defendant over the 6 month period. She would be hit with objects and scratched with the defendants nails. She would try and avoid blows to the head and that is why she had scars on her shoulders where the blows fell. She had several scars on her lower back and she is sure those are from when the defendant pulled her off a ladder she had to climb to clean the air conditioners. She had been pulled off backwards and fell to the ground. Her back hurt after these incidents.”

95.In admitting into evidence testimony of uncharged acts, the judge said that she accepted the submissions of the prosecution that it:[47]

“ …explains the confidence of the defendant in repeating the offences and why the victim did not complain and subsequently endured many months of abuse. The frequency of assaults alleged and the period of time during which PW1 was assaulted would explain why PW1 was unable to be more specific with dates and details of the charged offences.”

96.Furthermore, the judge acknowledged of such evidence:[48]

“ If it is admitted the standard of proof required for this evidence of uncharged acts should be beyond reasonable doubt. I have to be sure the uncharged acts did actually occur. If admitted the court must remind itself that it is not evidence the defendant committed similar offences or that the defendant is the sort of person with a propensity to commit the offence.”

97.Of uncharged acts of physical abuse to Ms Erwiana, the judge said:[49]

“ The evidence of frequent abuse other than those subject to a charge I am sure is true and fact; proved beyond reasonable doubt. They prove the setting and context in which the charges took place. As I said, they help explain why the defendant was confident in continuing the verbal and physical abuse.” [Italics added.]

98.Of the uncharged threats made to Ms Erwiana, the judge said:[50]

“ There were many threats over a long period of time and she can’t understandably recall the dates, times and circumstances in which they were uttered.

They are not subject to a charge but I admit them into evidence as proved beyond reasonable doubt.  There was no challenge to the admissibility of this evidence so long as it was not for the purpose of proving propensity on the part of the defendant.  I admit this evidence only for the purpose of proving the setting and context in which the charges took place.  They also help to explain why PW1 did not complain, run away, tell anyone, retaliate but instead became even more subservient.  She had no fight in her.  This in turn explains why the defendant was confident in continuing the verbal and physical abuse over a sustained period of time.”  [Italics added.]

99.The judge made it abundantly clear that she was aware of the limited purpose for which the evidence of uncharged acts was admitted.  It was limited to giving context only to the conduct of the two victims of assaults and threats.  The judge’s description of Ms Erwiana having been thereby reduced to a state where she had “no fight in her” resonates with what the judge had stated was the proper limited application of the evidence.

100.In sentencing, the judge said:[51]

“ The seriousness of the charges and the circumstances of the offences mean a lengthy term of imprisonment is entirely appropriate. I will take into account the totality principle but also that there are differing charges that took place over a period of time and involved two victims.”

101.Then, the judge imposed different sentences of imprisonment, save for where she imposed fines, for each of the charges to reflect the gravity of the individual charge.  She approached the issue of the appropriate totality of sentence by ordering that part only of the sentence of imprisonment of each of the offences be served consecutively to the sentence of imprisonment imposed in respect of Charge 4.

102.In my judgment, it is not reasonably arguable that the judge took into account the uncharged acts in determining the sentence to be imposed on the applicant, either for individual charges or in respect of totality.  On the contrary it is clear that she was alive to the fact that the evidence was admitted for the limited use which she stated to be the purpose of admitting it.

103.In the course of mitigation by Mr Harris the judge’s attention was drawn to the judgment of this Court in HKSAR v Tai Chi Wai and Au Yuk Shan [52]. Inexplicably, although the judgment was in Chinese, in breach of Practice Direction 10.3 ‘Citation of judgements written in Chinese at hearings conducted in English’, the judge was not provided with an English translation.[53]  The judge was provided with a summary only setting out the fact that the applicants, husband and wife, had been convicted of and sentenced for various offences of violence committed against their Indonesian helper.  In the course of mitigation, the judge raised the issue of the absence of a translation in terms with counsel:

“ COURT: Is there anywhere in the Chinese authority that you wish to take me to, because I can’t read it for myself.”

None was provided.

104.The summary stated that the offences had occurred over a period of two years and that this Court refused their applications for leave to appeal against conviction and the total sentences of 3 years and 3 months and 5½ years’ imprisonment imposed on them respectively.  In her reasons for sentence, the judge said, only:[54]

“ In that case an Indonesian domestic helper was abused by her employers, tortured and abused over a period of two years. She was abused with a bicycle chain, hot iron and a cutter. I have been referred to the sentences imposed and upheld by the Court of Appeal.”

Not surprisingly, given the fact that she had not been provided with a translation of the judgment, the judge did not refer at all to the judgment of the Court given by Yeung VP.

105.In that case, the 2^nd applicant, the wife, had been convicted of six charges, including three charges of wounding with intent, contrary to section 17 of the Offences against the Persons Ordinance, Cap. 212.  In the commission of those offences, she had used a hot iron, to scar the victim’s cheek, a cutter to cut and scar the victim’s forearm and waist and a bicycle chain to attack her mouth, which fractured an incisor.  For those offences, she was sentenced to two terms of 4 years’ imprisonment and one of 3½ years’ imprisonment respectively.  In addition, she was convicted of two offences of assault occasioning actual bodily harm, contrary to section 39 of that Ordinance.  In the commission of those offences she had used a shoe and a hanger to attack the victim’s head and mouth respectively.  For those offences, she was sentenced to two terms of 9 months’ imprisonment.  Finally, the 2^nd applicant was sentenced to 18 months’ imprisonment for an offence of wounding, contrary to section 19 of the Ordinance.  In the commission of the offence she had banged the victim’s nose onto the tap of a sink causing bleeding and scarring.  By ordering two of the sentences to be served consecutively, the judge imposed a total of 5½ years’ imprisonment on the 2^nd applicant.

106.Of the circumstances of the commission of the offences, Yeung VP said:[55]

“ The facts of this case are extremely serious. The two Applicants had subjected the victim to abuse over a long period of time and caused her grievous bodily harm. The victim left her hometown for employment at the Applicants’ home only with the hope of earning money to improve the living conditions of her family. Yet the Applicants ruthlessly subjected the victim to prolonged physical abuse, traumatizing her both physically and mentally.

We must stress that the background of the victim renders her susceptible to abuse by ruthless employers such as the Applicants with no ability to resist, and allows the Applicants to have their ways with her as they pleased.”

107.Of the approach of the Court to the commission of such offences, Yeung VP said:[56]

“ It is incumbent upon the court to protect the interests of domestic helpers coming to Hong Kong for employment and to voice its disproval of such cruelty. The court also has to reflect the public abhorrence of the Applicants’ conduct.”

108.Notwithstanding the fact that the 2^nd applicant had a “clear record”, Yeung VP went on to say:[57]

“ Nevertheless, we must drive home the message that Hong Kong as a modern and civilized society with high regard to human rights will never tolerate the commission of such inhumane acts on the victim by the Applicants. The offences of the Applicants have a severe negative impact on the image of Hong Kong. In light of the circumstances, we find that the need for a deterrent sentence far outweighs consideration of mercy to the Applicants and their family.”

109.Yeung VP concluded by saying:[58]

“ We also think that when sentencing, we only need to be concerned with the appropriateness of the overall sentence rather than that of each individual sentence.”

110.For my own part, with respect, I endorse wholeheartedly the sentiment expressed by Yeung VP of the need for this Court to protect the interests of vulnerable domestic helpers and to articulate society’s abhorrence of such conduct.  Clearly, a deterrent sentence is required.

111.For the reasons I have set out, I am satisfied that the grounds of appeal against sentence, in particular in respect of the overall sentence of 6 years’ imprisonment are not reasonably arguable.

Conclusion

112.Accordingly, I refused the application for leave to appeal against sentence.

113.Having advised the applicant that she had the right to renew her application for leave to appeal against conviction and sentence, I warned her that if she did so and the Court of Appeal determined that she did so without justification, it has power to make a direction for ‘loss of time’, namely in respect of some or all of the time that the applicant has served in custody for these offences since she filed her notice of her applications for leave to appeal pending the hearing of her application.

Ms Catherine Ko, SADPP(Ag.), of the Department of Justice, for the respondent

The applicant appeared in person

[1] 9 June 2015.

[2] 7 October 2015.

[3] Appeal Bundle, page 32 – Admitted Facts.

[4] Appeal Bundle, page 32 – Admitted Facts.

[5] Appeal Bundle, page 31 – Admitted Facts.

[6] HKSAR v. Kwok Hing Tony [2010] 2 HKLRD 769.

[7] Reasons for Verdict, paragraph 96.

[8] Reasons for Verdict, paragraph 109-110.

[9] Reasons for Verdict, paragraph 103.

[10] Reasons for Verdict, paragraph 112.

[11] Reasons for Verdict, paragraph 117-8.

[12] Reasons for Verdict, paragraph 120.

[13] Reasons for Verdict, paragraph 133.

[14] Reasons for Verdict, paragraphs 139-140.

[15] Reasons for Verdict, paragraph 6.

[16] Appeal Bundle, page 218 F-G.

[17] Reasons for Verdict, paragraph 103.

[18] Reasons for Verdict, paragraph 104.

[19] Reasons for Verdict, paragraph 105.

[20] Reasons for Verdict, paragraphs 106-7; Appeal Bundle, p90.

[21] Reasons for Verdict, paragraph 8.

[22] Reasons for Verdict, paragraph 101.

[23] Appeal Bundle; page 227 N-P.

[24] Appeal Bundle; pages 179-180 and 185.

[25] Appeal Bundle; page 185.

[26] Appeal Bundle; E page 33 A - F.

[27] Appeal Bundle; E page 135.

[28] Appeal Bundle; E page 137 U - 138 C.

[29] Reasons for Verdicts, paragraph 122.

[30] Appeal Bundle, page 178.

[31] Appeal Bundle, E Page 72 T – 73 B.

[32] Reasons for Verdict, paragraph 109.

[33] Reasons for Verdict, paragraph 111.

[34] Appeal Bundle; page 371, paragraph 6.

[35] Appeal Bundle; page 359, exhibit P 20

“According to the information provided by the subject, she had been assaulted on numerous occasions. She has been pushed, scratched, slapped with bare hands by her employer. She also had been hit with a mop stick, rulers, hangers and the tube of the vacuum cleaner.” [Italics added.]

[36] Appeal Bundle; page 371, paragraph 6.

[37] Appeal Bundle, Additional Transcript 213.

[38] Reasons for Verdict, paragraph 102.

[39] Reasons for Verdict, paragraph 107.

[40] Reasons for Verdict, paragraph 125.

[41] Reasons for Verdict, paragraph 125.

[42] Reasons for Verdict, paragraph 127.

[43] Reason for Sentence, paragraphs 6-7.

[44] Reasons for Verdict, paragraph 21.

[45] Reasons for Verdict, paragraphs 25-26.

[46] Reasons for Verdict, paragraph 24.

[47] Reasons for Verdict, paragraph 93.

[48] Reasons for Verdict, paragraph 94.

[49] Reasons for Verdict, paragraph 112.

[50] Reasons for Verdict, paragraphs 109-110.

[51] Reasons for sentence, paragraph 35.

[52] HKSAR v Tai Chi Wai and Au Yuk Shan (CACC355/2013; unreported, 8 September 2014).

[53] Practice Direction 10.3 

“ 4. Where a Judiciary translation is not available, that party shall, unless otherwise directed by the court, prepare an English translation of that judgment or the relevant parts thereof which are to be relied on at the hearing. The translation, together with a copy of the Chinese judgment, shall be served on all the other parties for their agreement not later than 7 clear days before the hearing. The translation need not be submitted to the court for certification.

5. If the translation submitted to the other parties is not disputed by them, this translation may be cited at the hearing.”

[54] Reasons for sentence, paragraph 32.

[55] HKSAR v Tai Chi Wai and Au Yuk Shan, paragraphs 96-97.

[56] HKSAR v Tai Chi Wai and Au Yuk Shan, paragraph 98.

[57] HKSAR v Tai Chi Wai and Au Yuk Shan, paragraph 103.

[58] HKSAR v Tai Chi Wai and Au Yuk Shan, paragraph 104.