HKSAR v. Nervo, Adele Veronica

HCMA 96/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 96 OF 2016

(ON APPEAL FROM FLCC 3288/2015)

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R E A S O N S   F O R   J U D G M E N T

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1.The appellant was convicted after trial by Mr C H Li, magistrate, of one count of ill-treatment or neglect by those in charge of child or young person, contrary to section 27(1) of the Offences against the Person Ordinance, Cap 212. The appellant's appeal against conviction was dismissed and herebelow are my reasons.

Prosecution's evidence

2.At the time of the offence, PW1 was 7 years old and he is a son of the appellant and also at the material time, the appellant and PW2 were going through divorce proceedings.

3.On the day of the offence, PW1 was staying with the appellant and while the appellant was preparing dinner, PW1 used his iPad to communicate with his father by sending him many sad faces which eventually caused the appellant to be angry with him.  When the appellant asked PW1 to go to his room, PW1 refused and his arm was twisted while being pulled by the appellant to the bedroom.  PW1 said that the appellant used a closed fist to hit the side of his head for 5-10 times.

4.When PW1 returned to his father's home the following day, he told his father about the incident and PW2 found some injuries on PW1's arm.  PW2 took photos of the injuries and then took PW1 to see a doctor.  The doctor examined PW1's right arm and was of the opinion that the marks he saw were consistent with fingertip gripping.

5.At the close of the prosecution case, the appellant elected not to give evidence nor call witnesses.  The defence case disclosed in the cross-examination of the prosecution witnesses was that PW1 had fabricated the incident.

Magistrate's findings

6.As the learned magistrate indicated, the credibility of PW1 was the most important issue in the case, the learned magistrate correctly reminded himself of the background of the case and the fact that PW1 had said that he preferred his father to the appellant and there was a danger that PW1 might side with his father against the appellant.  After considering the defence submission as to the inconsistency of PW1's evidence, the learned magistrate said he could not be sure whether the twisting of PW1's arm amounted to a wilful assault in a manner likely to cause unnecessary suffering or injury and that although he accepted that the appellant did twist the arm of PW1, he was not satisfied that it was a wilful assault.  However the learned magistrate found that the appellant had deliberately hit the head of PW1 several times and that the assault was wilful and the only inference he found was that the assault was likely to cause unnecessary suffering or injury to PW1's health and that's convicted the appellant.

Appeal

7.Counsel for the appellant, Mr Gormley, submitted several grounds on behalf of the appellant.  I have tried to render his grounds more succinct here below:

(1) the learned magistrate erred in finding that the hitting on the head amounted to a wilful assault likely to cause unnecessary suffering or injury to PW1, in doing so he failed to properly consider that there was an absence of evidence that PW1 had suffered any injury;

(2) the learned magistrate erred in finding PW1 to be a credible witness in light of the inconsistency in his evidence;

(3) the learned magistrate failed to properly consider PW1's young age, his dislike for the appellant and the custody battle between the appellant and PW1's father.  He also failed to properly consider that at the time of the alleged assault, PW1 had just fallen of his bike and was upset; and

(4) therefore the court ought to harbour a lurking doubt as to the appellant's guilt.

Credibility

8.PW1 was aged 7 at the time of the offence.  The defence in its closing submission had made very clear to the learned magistrate that the little boy had many inconsistencies in his evidence, for example, the number of blows to his head, the location of the blows whether left or right and the place where he said he was hit whether it was in the living room or in the bedroom.  The learned magistrate had considered all these matters and having considered them has fully explained his reasons for considering that this did not affect the credibility of this 7-year-old boy.  I do not need to repeat his Findings here as it is evident from the Statement of Findings (See para 11-22).

Wilful assault

9.As Ms Kwok correctly submitted, the prosecution need not prove that there was an injury as the offence is that the assault is in a manner likely to cause such child or young person unnecessary suffering or injury to his health as the learned magistrate very correctly considered that the arm twisting may not have been wilful but certainly the hitting on the head was a wilful assault.  It was neither an accident nor done by negligence.  Besides, as Ms Kwok pointed out PW1 said that the assault had hurt and he began to cry, I therefore find that there is no merit in this ground of appeal.

Lurking doubt

10.It is apparent from the Statement of Findings that the learned magistrate was fully alert to as he had been told in the closing submissions by the defence and reminded constantly that there was an on-going custody battle between PW1's father and the appellant.  He was fully aware of the background to the case.  Ms Kwok also pointed out that it was never suggested to PW1 or his father during cross-examination that PW2, the father, had influenced the testimony of PW1 in order to strengthen his position in the divorce proceeding.  In any event, it is apparent from the learned magistrate's Statement of Findings that he was well aware of the difficult background to the case but at the end of the day, he had no doubt whatsoever of the credibility and reliability of PW1's evidence.  There is no lurking doubt in this case.

11.For the above reasons, I had therefore dismissed the appeal against conviction.

Ms Anthea Kwok PP, of the Department of Justice, for the respondent

Mr Anthony Michael Gormley, instructed by Haldanes, for the appellant