HKSAR v. Sek Siu Fun
Read the full judgment text of HCMA 1126/2001 on BabelCite. This High Court CFI judgment was delivered on 16 July 2002.
1. This is an appeal against conviction and sentence.
Cited by 2 cases · Cites 2 cases
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HCMA001126/2001 HCMA1126/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.1126 OF 2001 (ON APPEAL FROM WSCC 3167 OF 2001) -------------------------
------------------------- Coram: Deputy High Court Judge McMahon in Court Dates of Hearing: 28 June and 2 July 2002 Date of Judgment: 16 July 2002 ------------------------- J U D G M E N T ------------------------- 1.This is an appeal against conviction and sentence. 2.The appellant was convicted after trial of two offences of assault occasioning actual bodily harm, contrary to Common Law and section 39 of the Offences Against the Persons Ordinance, Cap. 212. She was sentenced to two months' imprisonment in respect of the 1st charged offence and to seven months' imprisonment in respect of the 2nd charged offence, both sentences being ordered to be served concurrently. That amounted to a total sentence of seven months' imprisonment. 3.The facts of the offences as found by the magistrate were broadly as follows. 4.At all material times the victim of both offences was the live-in domestic servant of the appellant and her husband and was employed by the appellant to perform domestic duties at their family residence at Stanley. On the occasion of the 1st charged offence, the victim had been mopping the kitchen floor at the appellant's residence at 2 o'clock in the morning when the appellant complained that the victim was working too slowly. The appellant then kicked and punched the victim a number of times and repeatedly jabbed her with a thumb tack of some description. The second charged offence occurred two days later when the victim had been doing the washing up in the kitchen of the appellant's residence again around 2 o'clock in the morning. The appellant again complained of the victim's slowness in discharging her duties and then kicked the victim. The appellant then told the victim to kneel and upon her doing so attacked the victim with a broom handle which was a thin metal tube covered in plastic. The appellant scratched the victim's nose while attempting to cut off some of the victim's hair and pricked the upper arm of the victim with a pair of scissors. The first assault lasted for a few seconds, the second for several minutes. The appellant's husband was absent on both occasions. The only other persons in the residence at the time of the assaults were the appellant's two teenage children. 5.The day of the 2nd assault was a public holiday. Later that morning, the appellant went to Central and sought advice from friends. As a result of that she went to HDH, an organization which provides help to domestic helpers in Hong Kong. That organization advised the victim to report the matter to police and she did so. 6.The police arranged for the victim to be immediately examined and photographed. The injuries found to the victim's body were generally consistent with her complaints of assault. 7.The appellant was subsequently, on two occasions, asked to attend Aberdeen police station and was interviewed under caution. In those recorded interviews, the appellant denied assaulting the victim but so far as the 1st interview was concerned, told the interviewing officer of some history between herself and the victim, including the victim's wanting to cease working for her at some stage, her criticizing the victim for having unhygienic habits and of the victim borrowing money from her. In the 2nd interview, the appellant confirmed inter alia the presence of scissors, a broom and a notice board of the sort suitable for thumb tacks in her premises. 8.In arriving at his findings, the magistrate had rejected the appellant's case to the effect that the victim had fabricated her evidence against the appellant and had either herself or with the help of her friends deliberately inflicted the injuries found upon her. 9.The appellant's case was put primarily in the cross-examination of the prosecution witnesses and through the evidence of her 13-year-old daughter who simply said she was not awakened by any noises or voices on the nights in question although she was a light sleeper. The appellant's case also involved the calling of an expert medical witness who said the victim's injuries could have been self-inflicted and were to some extent inconsistent with the victim's version of events, primarily because he would have expected them to have been more serious had the victim been struck with the broom handle. The appellant herself did not give evidence. 10.The appellant advances two grounds of appeal against the conviction. I will deal with them in turn. The first is that the magistrate erred in regarding the contents of the appellant's two interviews conducted under caution as being purely exculpatory. In referring to his approach to these two interviews in the course of his statement of findings, the magistrate said this :
11.That was the primary reference he made to the nature of the appellant's statements to the police. At no stage in his statement of findings was there any suggestion that in any way he used the contents of the statements as evidence against the appellant. 12.Nevertheless Mr Grounds argues that if in fact the cautioned statements contained admissions against interest, then the magistrate should have regarded them as being "mixed statements" and in accordance with the principle enunciated in R v. Sharp [1988] 1 WLR 7, could then have given weight to the exculpatory parts, that is the appellant's denials, in support of the appellant's case. 13.The question of when a court is entitled to regard a statement as mixed or wholly exculpatory is sometimes a vexed one. The difficulties which are on occasion experienced in this regard occur because in the real world, there is often not a clear distinction between what might been thought to be exculpatory material contained in a statement and that which could be regarded as admissory in nature. 14.Indeed as the issues in a criminal trial surface and evolve as the trial goes on parts of a statement, or even a statement as a whole, which was thought to be exculpatory may directly or indirectly be thrown into a different light so as to amount, at least in part, to admissions against interest. 15.Regardless of any such difficulties however, such a categorization would have to be made because it seems to me that before a court were to admit a cautioned statement of a defendant into evidence, there would have to be a basis for doing so. And that basis would have to be established at the time of the admission of the evidence and be the reason for its admission. If, for example, the prosecution produced a cautioned statement as a purely exculpatory statement, then that no doubt would be with the consent of the defence, and the statement would be produced for the purposes of proving the immediate reaction of the defendant to police questions. In other words, there would be a specific evidential basis for such a production. There would be no voire dire in those circumstances, and the grounding of the admissibility of the statement would depend primarily on its spontaneity as an indicator of the state of the defendant's mind at the time of the making of the statement. 16.Once the statement was produced on that basis then that is the only use which could be made of it in the normal course. In the event that the issues in the trial evolved so as to render it incriminatory in some way or in some part as containing admissions, then those parts should be ignored as evidence against the defendant in the absence of a voire dire. That is, the statement should be used, if at all, only for its original purpose. 17.If a statement is in a grey area where there are certainly exculpatory aspects to it, but also other parts which on their face may be admissions against interest, then generally before admitting the statement into evidence a judge or magistrate would need to categorize it as a mixed statement and hold a voire dire or otherwise be satisfied as to its voluntariness before so admitting it. That is what appears to have happened in this case, as the magistrate made a finding to the effect the statement was voluntary. He would not have done so unless he had categorized it as a mixed statement. As a mixed statement, its contents are evidence for all purposes in accordance with the principle in Sharp. 18.Even if at the end of the evidence it is apparent that those parts which were originally thought to be admissions, such as in the present case the admission by the appellant to possessing a broom and scissors found to have been the weapons used in the assault (so far as the 2nd Record of Interview is concerned), or of being at home at the time of the assault and of having disagreements with the appellant over her unhygienic behaviour (so far as the 1st Record of Interview is concerned), are no longer live issues in the case, that does not change the mixed nature of the cautioned statement. That is because it has been admitted into evidence on a particular basis and that is, without some change in its status, the basis upon which it continues in evidence. It remains evidence of that asserted by its contents whether admissory or exculpatory, regardless of what degree of issue is eventually taken with its admissory parts. 19.Accordingly, at the end of the day, where the defendant did not give evidence, a court would direct a jury in those circumstances in terms of Sharp's case. 20.And in the present case it seems to me that the magistrate did so. Regardless of the fact that he referred to the statements as exculpatory he then went on to refer, as can be seen from the excerpt of his statement of findings set out above, to Berrada's case and the appellant's good character. In giving himself a full character direction, it seems to me, as the appellant did not give evidence, that the magistrate must have been considering what weight to attach to the exculpatory parts of the statement. This view is strengthened by the magistrate's taking into account in the course of his statement of findings the contents of an exculpatory part of the appellant's cautioned statements as part of the general evidence. He said in this regard :
It is plain from this that the magistrate had approached the exculpatory parts of the appellant's cautioned statements in terms of the principle enunciated in Sharp's case. 21.Further, in referring to the cautioned statements of the appellant and describing them as exculpatory the magistrate was looking at them and referring to them in the light of the evidence and issues as those matters stood at the end of the trial. In my view, by referring to the statements as exculpatory the magistrate was simply referring to their effect as evidence rather than categorizing them as wholly exculpatory in the sense referred to in Sharp's case. 22.But even if this was not so and the magistrate had, contrary to my understanding of his statement of findings, wrongly approached the two cautioned statements as wholly exculpatory in nature after originally having, for the purposes of their admission into evidence, regarded them as mixed, I am sure that would not have rendered the appellant's conviction unfair or unsafe in any event. That is because the exculpatory contents of the two cautioned statements effectively were little more than a bare denial of assaulting the victim. 23.It was not a case of the two cautioned statements of the appellant containing within them any explanation of events or anything amounting to a particular defence such as self-defence. In other words, there was not set out therein any assertion of fact which would have been realistically material to the issues the magistrate had to deal with as those issues were left before him at the end of the trial. The appellant's cautioned statements, apart from denying the offence, did little more than establish the background of her and her family's relationship with the victim. 24.Additionally, it is true to say that even in so far as any part of those statements did point to anything which may have been called in aid by the appellant so far as her case was concerned those matters, such as the borrowings by the victim from the appellant, the victim's suffering from a form of skin disease and previous disagreements between the appellant and the victim, were never really in issue during the trial. 25.Finally, it is trite to observe that very little weight would be attached to the exculpatory parts of a cautioned statement by a trial court in circumstances where a defendant did not give evidence. 26.For those reasons I am satisfied that even had the magistrate wrongly approached the cautioned statements as wholly exculpatory the convictions of the appellant would not in any event have been unfair. In my judgment any such error would not have rendered it just for this conviction to be set aside. 27.Mr Grounds also complains in regard to the magistrate's approach to the two cautioned statements of the appellant that the magistrate did not give them due consideration as evidence of the appellant's immediate reaction when questioned about these matters by the police. Whether the magistrate had categorized the cautioned statements as "wholly exculpatory" or "mixed", they were available to him, so far as their exculpatory or non-admissory parts were concerned, as evidence in favour of the appellant so far as her immediate reaction was concerned in questioning. 28.The magistrate did not refer to this aspect of the statements in the course of his statement of findings. He was not obliged to refer to each and every aspect of the evidence. There is nothing in his statement of findings to suggest he was unaware that the cautioned statements of the appellant could be approached in this matter. He obviously concluded that, as an issue, the appellant's immediate reaction to police questions so far as her denial was concerned was not a salient feature of the case. Indeed, given the fact that the appellant had been invited to the police station for enquiries regarding these allegations the magistrate was right not to have given any weight to this aspect of the appellant's cautioned statements. The element of spontaneity in her replies to police questions in those circumstance would appear to be minimal. For these reasons, the appellant's 1st ground of appeal cannot succeed. 29.Mr Grounds's second ground of appeal is a series of complaints concerning the magistrate's failing to properly consider various aspects of the evidence. An initial complaint the appellant makes in this regard was that the magistrate gave reasons at the time of convicting the appellant which differed from his reasons for conviction as set out in his statement of findings. Without listing the precise matters complained of, I am satisfied there is no substance to the appellant's assertions in this regard. Any perceived differences between what was said by the magistrate on the separate occasions are either semantic or insubstantial. Indeed, Mr Grounds, quite fairly, says his primary complaints so far as the 2nd ground of appeal are concerned revolve around two areas of evidence. 30.The first relates to the magistrate's dismissal of the defence medical witness's opinion that the victim's allegations were generally inconsistent with the medical evidence. And Mr Grounds, in this regard, suggests particularly and further that the evidence of the victim as to being struck with the broom handle was contradicted by that evidence. 31.The expert evidence at the trial consisted of two medical witnesses called by the prosecution, PW1, a Dr Au, who examined the victim on the evening of her complaint to the police and PW3, a Dr Lai, a forensic pathologist who examined the victim four days after the 2nd assault. The defence called DW2, a Dr Beh, a forensic pathologist who never saw or examined the victim but who gave his evidence to the court based on the various witness statements and medical reports in the case he had been provided with, together with what he had heard and was told of the evidence itself. 32.Mr Grounds's assertion is that the victim's evidence in relation to the attacks was, from the expert evidence, unlikely to be true. I do not think there is any substance in that complaint. 33.The injuries found upon the victim when she was examined were described by PW1 as being "numerous wounds such as abrasions, cuts and bruises over the back and four limbs and mild scalp haematoma over the head". The injuries found by PW3 on the victim's body were listed in his report Exhibit P12. So far as bruising injuries were concerned, he found bruising to the victim's back, left arm, right arm, right leg and left thigh. Additionally, he found numerous pinpoint and linear scabs on the appellant's upper body and particularly on her back. In this regard, he said :
He further said :
In other words he found there to be no substantial inconsistency between these medical findings and the victim's allegations. 34.DW2, Dr Beh's evidence was to the effect that, particularly so far as the victim's allegations concerning the attack with a broom handle were concerned, he would have expected to have found much worse injuries, possibly even broken bones. So far as the general injuries were concerned he said this in his report Exhibit D10 :
Effectively then,the magistrate had to resolve the medical evidence. 35.In regard to DW2, Dr Beh's evidence, the magistrate said this :
36.In his evidence DW2, Dr Beh, said in response to questions concerning the broom handle attack :
37.In other words, DW3's evidence as to injuries reported on the victim's body not matching the assaults as described by her in evidence was qualified to a significant degree as to depend on the location and force of the blows. 38.At the end of the day, in my judgment, the magistrate was entitled to reject the evidence of DW2, Dr Beh, and accept that of the two prosecution doctors, particularly that of Dr Lai, PW3. The reason he gave was cogent. Dr Lai saw the injuries shortly after the event. His report and evidence was based on his own examination of the victim. Dr Beh's evidence and report depended on his own interpretation of other doctors observations. The magistrate's acceptance of the evidence of the examining doctors, particularly Dr Lai, in those circumstances, cannot be criticized. 39.Indeed, in the cross-examination of Dr Beh, the following Question and Answer occurred in respect of the advantage the examining doctors had in personally seeing the victim :
40.The magistrate's findings in this regard were properly founded. He was entitled to describe Dr Beh's evidence so far his report was concerned as "qualified" and to place less weight upon both that report and Dr Beh's evidence than that he placed upon particularly Dr Lai in this regard. 41.Mr Grounds also relies upon an argument of common sense regarding the six blows or more the victim says she sustained with the broom handle during the appellant's attack on the occasion of the 2nd charged offence. He says if the attack was carried out as forcefully as the appellant says with the exhibited broom handle the appellant would certainly have sustained broken bones. I have seen the broom handle. I do not see how as a matter of common sense the appellant must necessarily have sustained the sort of serious injury Mr Grounds describes. In my judgment, on the evidence as a whole, the magistrate was entitled to find the injuries found to have been sustained by the appellant were consistent with her evidence. 42.Other complaints made by the appellant relating to the magistrate's approach to the evidence concerned primarily challenges to the appellant's credibility. Perhaps the most important challenge in that regard related to a letter sent by the appellant to the Immigration Department complaining about her former employers, that is, the family who employed her before the appellant. In that letter, the victim said that family treated her "not nicely". That contradicted her earlier evidence that Mr Ngai, her previous employer, had treated her well. She answered this apparent contradiction by saying that in the beginning her employer's family and she had different attitudes but that they adapted to each other over time and eventually had got on well. This was very much a collateral issue which went primarily to credit and it was well within the magistrate's province as the trier of fact to determine what weight to place upon the victim's evidence in this regard so far as her credibility was concerned. That it did not materially effect her credibility was a finding the magistrate was perfectly entitled to make. 43.Other aspects of the victim's credibility challenged by the appellant fall within the same category. Those matters include challenges to the victim's evidence as to her not knowing the location of Stanley Police Station and alleged inconsistencies between her evidence and the contents of her witness statement. At the end of the day, it was for the magistrate to assess what effect, if any, those matters had on the victim's credibility. The findings of the magistrate on the evidence as a whole to the effect that the victim was a credible and reliable witness cannot be challenged. He gave cogent and considered reasons for his findings in this regard and those were findings he was entitled to make on the evidence before him. 44.Finally, so far as the evidence of the 1st defence witness, the 13-year-old daughter of the appellant, is concerned, whose evidence was she was not awoken by any noises at the time of the assaults, the magistrate said this :
45.The magistrate was entitled to regard this aspect of the evidence as of little weight. His comment in this regard was simply to the effect that there may be many and various reasons why people, even light sleepers, are not awoken by noise. In my view criticisms made by the appellant of his finding in this regard, do not have any substance. For these reasons, the 2nd ground of appeal cannot succeed and the appeal against conviction is dismissed. 46.I turn now to the appeal against sentence. 47.The magistrate took starting points of sentence of three months and eight months' imprisonment respectively for the two offences and apparently reduced each by one month to reflect the appellant's prior good character. That resulted, or should have resulted, in sentences of two months and seven months' imprisonment respectively. I note that the certificate of conviction incorrectly records the 1st charged offence as having a sentence imposed of three months' imprisonment. The matter is not made perfectly clear in the magistrate's reasons for sentence, but in any event as both sentences were ordered to be served concurrently the totality of seven months' imprisonment is unaltered. 48.The appellant appeals her sentences on the basis they are two severe. In particular, Mr Grounds urges upon me that the magistrate wrongly rejected a favourable community services order report in the sentencing of the appellant. 49.The magistrate said in his reasons for sentence in reference to the two assaults :
Because of the serious nature of the offences he concluded an immediate custodial sentence was appropriate. Perhaps the learned magistrate's language was somewhat florid, but given the nature of and circumstance of the assaults I do not think the magistrate's view in that regard can be criticized. 50.Mr Grounds points out, however, that the magistrate, before imposing sentence called for a number of reports including a report in respect of the suitability of the appellant for a community service order. That report was favourable to the appellant. Mr Grounds complains that where a report such as one regarding the suitability of an offender for community service is requested and that report is favourable then an order in terms of the favourable report should be made otherwise an offender would have a justifiable sense of grievance. 51.In R v. Gillam [1980] 2 Cr. App. R(s) 267, the sentencing court adjourned for the preparation of a report as to the offender's suitability for a community service order. The report was favourable but the offender was sentenced to imprisonment because of the serious nature of the offence. Watkins LJ, in allowing the appeal against sentence, criticized the imposing of a custodial sentence after the requesting of a community service suitability report. He said :
52.No doubt the evil the court sought to point out was the injustice in creating in an offender's mind through the court's own actions, a reasonable expectation of a non-custodial sentence. But in the present case, the magistrate said at the time of ordering reports, including the community service order report :
From that, the appellant cannot have had any reasonable expectation of a non-custodial sentence. The question of sentence was as open after the magistrate had ordered the reports as it was before. This complaint by the appellant cannot succeed. 53.In any event it seems to me that on the authority of HKSAR v. Wong Yiu Kuen, CACC 463/2000, the appellant did not really fulfil the criteria of the leading case of R v. Brown [1981] 3 Cr. App. R(s) 294, in that the appellant at no stage has expressed remorse for her actions, remorse being one of the matters referred to the Brown's case. In Wong Yiu Kuen, the court said this :
54.Mr Grounds has argued before me that this statement of the law is per incurium in that the court in Brown never intended to set out mandatory conditions which required individual and separate fulfillment before a community service order was appropriate, but was simply describing the circumstances of the offender before it in that case whom it thought as being tailor-made for such an order. Mr Grounds suggests that as that aspect of the judgment was per incurium, I am not bound. The simple answer, in my view, is that this court is bound by that judgment, as it is by any judgment of the Court of Appeal on a matter of law. That statement of the law in Wong Yiu Kuen was a primary statement of the law made by the court in dealing with this principle. The court was obviously at pains to correct the earlier judgment in HKSAR v. Chow Chak Man [1999] 2 HKC 659. 55.In my judgment, this court is bound by the principle enunciated in Wong Yiu Kuen and as the appellant in this case is not able to fulfil the factor of remorse as required by that case she is not suitable in any event for a community service order. 56.That leaves the question of severity of sentence. The attacks upon the victim were serious. They were cruel and took advantage of the vulnerability of the victim, as a live-in domestic servant, to being abused. The attacks were repeated, humiliating and involved the use of objects as weapons. 57.But I do not think the magistrate gave enough consideration to mitigation available to the appellant. Her marriage had previously failed, and indeed the magistrate thought her behaviour unusual enough to require a psychological report. Her problems, from that report, were found to be not so pronounced as to warrant treatment but she appeared to suffer from personality disorders brought about by her single parent status and failed marriage. 58.The injuries sustained by the victim were not permanent. She has no scarring or other disability. The treatment of the victim by the appellant was no doubt abysmal, but in my view, a sentence of five months' imprisonment would adequately express our societies approbrium at the appellant's behaviour. 59.Accordingly, the magistrate's sentence of seven months' imprisonment is set aside in respect of the 2nd charged offence and substituted with a sentence of five months' imprisonment. Both sentences are to be served concurrently, that is, a totality of five months' imprisonment.
Representation: Mr Jackson Poon, Ag SADPP of the Department of Justice, for the Respondent Mr Christopher Grounds and Mr Giles Surman, instructed by Messrs Arthur K.H. Chan & Co., for the Appellant |
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