HKSAR v. Lam Ling Ling

HCMA407/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.407 OF 2005

(ON APPEAL FROM STCC 4575 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 7 October 2005

Date of Judgment : 20 October 2005

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of ‘assault occasioning actual bodily harm’, contrary to section 39 of the Offences Against the Person Ordinance (Cap. 212).  She was sentenced to 4 months’ imprisonment.  Having abandoned her appeal against the sentence, she now appeals against the conviction.

The prosecution case

2.Insofar as it is relevant, the prosecution case as summarized by the magistrate was as follows (see her Statement of Findings) :

“4. Ms Titin Darwati is a domestic helper who came to Hong Kong and started working for the appellant on the 8 September 2004.  She testified that three weeks later, on 1 October 2004, the appellant found Titin’s passport missing, and questioned the helper about this.

5. Later, at about 5 pm, the appellant was still angry over the missing passport.  She picked up the iron Titin was using, and tried to press it on the helper’s face, and when the helper tried to fend it off, the iron burnt her forearm.  The next day, Titin moved out and reported the matter to the police.

…

9. Dr Lam Ho Yin had examined Titin the next day and he took photographs of the injury.  … ”

The defence case

3.Turning to the appellant, she said :

“10. The appellant gave evidence regarding the training of her domestic helper, that their relation was good, what happened that day, and the passport.  She denied using the iron on Titin.

…

15. Ms Suwito Sunarti is another domestic helper who had helped trained Titin.  She testified that on or before 19 September, Titan had told her that the appellant was good and nice, …

16. Mdm Wong Siu Yuk and Ms Chan Kam Lam testified to the appellant’s good character.  Mdm Wong had been friends with the appellant for over 30 years, and Ms Chan has been an employee of the appellant’s company for eight years, …”

The verdict

4.In the end, the magistrate convicted the appellant.

5.She found the evidence of Titin :

“8.   … clear and unshaken, and any discrepancy is minor, and did not go to any material issue.  From her account and demeanour, I found her truthful and reliable, and her evidence untainted by any ‘coaching’ from anyone.”

6.Conversely, she found the appellant’s evidence “incredible”, and the evidence of Suwito Sunarti to be contradicted by the little time that Titi had spent with the appellant, hence her inability to form a view on the latter’s disposition.  The two character witnesses she clearly thought were biased.

7.As regards the missing passport, the magistrate found it to be a “side issue” :

“6.  … but the defence questioned the helper on this to test her credibility.  Titin said that her passport had been passed by the agent directly to the appellant, and she did not know where the appellant kept it.  After leaving the appellant’s residence, she asked for help from the consulate, saying she had lost her passport, because the appellant had told her that the passport was lost.  She was anxious to get her passport back, knowing that without it she would be arrested.  Titin’s evidence regarding her passport is reasonable.  How the consulate eventually got her passport, to pass onto her as she said they did, I would not speculate on that.  In any case, it was obvious that the parties had some misunderstanding as to who had it, and where it was.”

1^st ground of appeal

8.Before me, counsel for the appellant advances two grounds (abandoning the other three).

9.Ground (1) complains that :

“The magistrate erred in law in para [9] Statement of Findings in using admittedly hearsay evidence of the Doctor as being evidence of consistency, thereby finding that it supported the truthfulness of the account of the domestic helper.  See p 27R”

10.Having heard submissions, I find this complaint substantiated.

11.When set out in full, paragraph 9 of the Statement of Findings reads as follows :

“9. Dr Lam Ho Yin had examined Titin the next day and he took photographs of the injury.  She said her boss had used a hot iron to assault her at around 5 pm the day before.  This is hearsay, coming from the doctor, but it shows that Titin was consistent with her account.”

12.For background, this doctor was a medical officer with the Ruttonjee and Tang Shiu Kin Hospital.  He examined Titin in the morning of 2 October 2004, the same day she left the appellant’s employment.  He was made to repeat what Titin had told him during his examination-in-chief.  This is how :

“Q:	What was the patient’s complaint when he saw you -- when she saw you?
A:	(…)  Well, she complained of being -- well, her boss …
MR MITCHELL:	That must be hearsay, your Honour.
COURT:	Yes.
MISS TONG:	Yes.  Thank you, Madam.
COURT:	It will be treated as such.  “She complained.”  Continue.
A:	(…) … -- she complained that her boss used a hot iron to assault her the day before.  That was on the day before she was examined.  That was on 1 October 2004.
COURT:	That was on the what, on which day?
A:	(…)  She said she was assaulted by her boss on 1 October 2004, around 5 pm.
Q:	And then this patient was given one day sick leave by you?
A:	(…)  Not by me.  By my boss, ...
Q:	By your boss.
COURT:	Please wait. … .
MISS TONG:	Yes.  Thank you, Doctor, nothing further.  Thank you.”

13.As can be seen, what the doctor said was objected to by the defence, but was let into the evidence by the magistrate regardless, for (one later finds out) the purpose of showing consistency in Titin’s account.

14.The problem is, the law prohibits the admission of ‘previous consistent statements’ for this purpose, unless a witness is accused of ‘recent fabrication’.

15.Here government counsel submits that there was, in fact, such an attack on Titin.  But I am not so persuaded.  It is obvious from the very outset, probably from the moment the matter was reported, that the prosecution case was that Titan was burned by a hot iron, so there could be no recentness about her evidence.

16.Admittedly, the point in question arose because Dr Lam had, in his notes, described Titin’s injury as a “scald wound”, which led to Titian being cross-examined on whether she had told the doctor something different.  But the matter should, in my judgment, be left to rest once it became clear from the interpreter that there was no distinction between a dry and wet wound in the Indonesian language (p. 91 of appeal bundle).

17.This is all the more so when Dr Lam himself explained that, to him, a scald or a burn was the same thing, by which I take him to mean that it was just a name, whereas in fact their morphology and shape were different, and that Titin’s injury was quite definitely a burn (para. 21 of the Statement of Findings). 

18.In short, the magistrate was entitled to conclude from the above evidence that there was no discrepancy incapable of resolution in the prosecution case.  What she should not have done was use Dr Lam’s account of what Titin said as support to Titin’s evidence, if only in the sense of showing consistency.

2^ndground of appeal

19.Ground (2) complains that :

“The Magistrate wrongly approached the evaluation of the evidence in relation to the passport.  See para [11].  The magistrate had earlier and wrongly stated, in strong terms, that the whole issue of the passport was irrelevant.  See p 14G—L.  But the issue was vital to credibility of the domestic helper.  See the bizarre evidence of the domestic helper (p 43D—46T).  The magistrate quite uncritically found this to be wholly irrelevant.”

20.I am persuaded that this ground is made out as well.

21.I have already set out paragraph 6 of the Statement of Findings.  It does show a certain indifference on the part of the magistrate to the evidence concerning the passport.

22.A reading of the transcript, however, shows a dramatic change in Titin’s evidence on this issue—from insisting that her passport was withheld hence lost with the appellant, to admitting to the fact that her so called new or replacement passport was in fact the old one.  This admission came when she was compelled to produce her new passport which turned out to bear the visa stamp that admitted her into Hong Kong in the first place.  Her explanation of not understanding the word “new” and not knowing what actually took place was, as counsel for the appellant puts it, bizarre.  Its effect on her credibility is positively negative.  It cannot be lightly brushed aside.

Judgment

23.This is a one-on-one case where credibility was the core issue.  For reasons already given, the conviction is, in my view, both unsafe and unsatisfactory.  It is set aside.  So is the sentence. 

Ms Chan Yuet Ho, Evena, SADPP of the Department of Justice, for HKSAR