HKSAR v. Tso Chui Hung

HCMA001213/2002

HCMA1213/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1213 OF 2002

(ON APPEAL FROM STCC 928 OF 2002)

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Coram: Hon Gall J in Court

Date of Hearing: 7 March 2003

Date of Judgment: 21 March 2003

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J U D G M E N T

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1.The appellant was convicted of common assault on 7 November 2002 after trial and was fined the sum of $4,000. She now appeals that conviction.

2.The prosecution case was the allegation of an assault by an employer upon her domestic servant. Ms. Azurin the domestic servant commenced working for the appellant on 13 May 2002 and by the date of the alleged offence, her work performance had been found to be unsatisfactory. The appellant had her write various notes in acknowledgement of those complaints about her work. On the 20th of May 2002 the appellant gave Ms. Azurin notice terminating her contract of employment

3.Ms Azurin testified that at about 7:45 p.m. on 25 May 2002, the appellant asked her to clean the stove. When she replied that she was still busy cooking, the appellant punched her about five times on the left arm. She called her sister at about 9:00 p.m., the sister having called the police; they arrived.

4.The first ground of appeal is that the magistrate erred in admitting evidence of the manner in which the appellant had treated Ms Azurin as an employee and further, in finding the appellant had engaged in a course of oppressive behaviour reflecting upon the credibility of the appellant.

5.The first ground of appeal further argues that the magistrate erred in deriving support from these irrelevant and prejudicial matters to find the appellant guilty of the charge.

6.The evidence is admissible. It sets the framework within which the allegation of the offence took place and the general background in the house between the employer and employee. There is more substance however, in the argument that the magistrate erred in deriving support from the conduct of the appellant towards Ms Azurin in making her finding of guilt. In her findings at paragraph 15, the magistrate said this :

"However, although the appellant is a bad employer, this does not mean she has assaulted the witness, nonetheless her oppressive behaviour is consistent with Azurin's evidence of assault."

7.What the magistrate seems to be saying that she warns herself that because the appellant is a bad employer it does not mean she has assaulted the witness. She is however prepared to take into account her oppressive behaviour leading to her being a bad employer to support the evidence of Ms Azurin in respect of the assault. The oppressive behaviour is what made the appellant a bad employer. This takes into account the bad character of the appellant to find credit in the evidence of Ms. Azurin. The only reason to refer to the consistency of the evidence can be to derive support for that evidence and Ms. Azurin and thereby give more credibility to that evidence.

8.The use of the evidence in this manner cannot be right. Without citing the rest of the grounds of appeal, the appeal is allowed, the conviction is quashed and the sentence is set aside.

Representation:

Ms Alice Chan, SGC of the Department of Justice, for the Respondent/HKSAR

Mr Edwin Choy, instructed by Messrs Haldanes, for the Appellant