Lai Kwok Shiu v. The Queen

CACC000540/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 540 OF 1975

-----------------

-----------------

Coram: Huggins, J.

Date of Judgment: 18th August 1975.

-----------------

JUDGMENT

-----------------

1. This case has caused me considerable anxiety. The Appellant was charged with cruelty to his child. At the same time an information was laid against his wife on a similar charge. The two informations came before a magistrate not only on the same day but at the same time. The wife pleaded Guilty but the Appellant pleaded Not guilty. The case against the husband (the Appellant) was then adjourned and came up for trial subsequently before another magistrate. He was convicted and sentenced to six months' imprisonment.

2. Counsel for the Appellant has good ground for complaining that the two informations came before the magistrate at the same time. It has been said on many occasions that informations cannot be tried together except by consent and it is dangerous to argue that no harm is done where both plead Guilty or anything of that kind. It is much safer to obey the rule and to keep informations separate. In many a case where the circumstances are somewhat similar to the present it may be possible to say that no injustice can have occurred, but each case has to be considered very carefully.

3. When the case came before the first magistrate the wife was apparently not then sentenced immediately. There was an adjournment for a probation officer's report, but it does appear that some statement of the facts was placed before the magistrate the note says

"Facts as attached and signed by me read to Defendant who admits them",

and on the document which appears in the record before me headed "Brief Facts of the Case" there is the signature of the magistrate with the word "Facts" and the date 15th May (the date of that hearing). So it appears quite clear that that document was then on the record, and the fact that the document is in the record before me, which is an appeal in the case of the husband, shows quite clearly that that document was also before the magistrate who tried the Appellant. That would not normally be a matter of any great consequence because it is common practice to use this particular type of document as a form of opening address and also as an indication to the defendant of the evidence which it is proposed to call against him. What is, perhaps, a little unfortunate is that there is in this particular statement of the facts a reference to an anonymous letter, and the contents of it, which were highly prejudicial to both the accused persons.

4. That alone would not, in my view, be any ground for interfering with the conviction. There is, however, another matter which also arises and that is that there was on the file - and presumably it was placed before the first magistrate - a medical certificate. That also is in the record before me and I must assume that it was before the second magistrate who tried the Appellant. Again, if that document had contained anything which was in any way prejudicial to the Appellant I would have regarded this as fatal to the conviction, because there is no reference to the production of a medical certificate before the second magistrate either by a witness or otherwise. It was in the file and should not have been in the file unless it was proved. However, all it says is "Battered baby" - which means practically nothing. It certainly did not take the case any further than the evidence which was before the magistrate himself.

5. The objection has been taken that there was no medical evidence. That, of course, is based on the fact that there is nothing in the record to show that even the medical certificate was before the magistrate. On that basis it is complained that there was no evidence to put the Defendant on his defence. I think it is clear that in a case of this kind medical evidence is not an essential. It may often be helpful. It may sometimes be necessary, but not by any means always. The offence is one of "assault in a manner likely to cause unnecessary injury to health" and it is frequently possible to show that an assault was committed in such a manner without calling medical evidence. In the present case the evidence was that there were constant beatings with a rattan cane. Possibly, had the victim been of the age of say 14 or 15 years, the prosecution would have been in grave difficulties. The age of this child was two years. The evidence came from the father of the Appellant and from a police constable. The father's evidence is attacked on the ground that he was "biassed". I think that Mr. van Buuren makes a good point when he says that parents are commonly hard on their own children but very lenient towards their grandchildren. Nevertheless, this is no doubt a matter which would have been in the mind of the magistrate and I do not think that the magistrate was under any obligation to mention expressly that he had considered this particular factor. Be that as it may the evidence before the magistrate was summary in the extreme. He had the statement of the man I shall call "the grandfather" that there was beating with a rattan cane. There is a phrase "This month" in the record. To what exactly it refers does not appear, but whether it belongs to the preceding sentence or the subsequent sentence really makes no difference: it shows that there was beating in May. The witness went on to say the Appellant beat the child "almost every day". The witness examined the child after these beatings and found bruises on the back. The difficulty, of course, is that the wife also was alleged to have beaten this child. There was evidence of widespread injuries on the child's body - on the arms, the legs the back and even on the face. The Appellant denied that he had ever beaten his daughter and said that the injuries were not caused by him. He admitted that there were injuries. In cross-examination it was put to him that he did strike the child causing "these injuries", to which he replied "Yes. I struck her before but not this time". That obviously was a contradiction, because if he caused "these injuries" it must have been at "this time". He said he was surprised by the extent of the injuries.

6. I do not think that there is any force in the argument that there was insufficient evidence to show that the beatings alleged were at the time alleged in the charge. The only real question in the case is whether the evidence was sufficient to establish that this particular Appellant was guilty of committing an assault which was likely to cause unnecessary injury. It was not necessary, as I have said, to show that injury was caused and to have medical evidence to that effect. I think that there was just sufficient evidence to justify a conviction, but only by reason of the age of the child.

7. There then comes the question of sentence. The learned magistrate imposed the maximum sentence of imprisonment which was open to him. I cannot regard this sort of offence in quite the same light as I was asked by counsel for the Appellant: it is a very serious matter when any very young child is treated in this manner. However, I think I must have regard to the maximum sentence prescribed. The Appellant has served a period of two weeks (or just over) of the sentence and has then been released on bail. The question is whether I ought to send him back to prison for a more limited period than six months - since I think that the maximum was not justified - or whether in all the circumstances I ought to pass some other kind of sentence. In all the circumstances I think justice will probably be done if I substitute a sentence of three months' imprisonment which is to be suspended for a term of two years.

18th August 1975.

Representation: