HKSAR v. Chong King Chung

HCMA 116/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

APPEAL AGAINST CONVICTION AND SENTENCE

MAGISTRACY APPEAL NO. 116 OF 2004

(ON APPEAL FROM KCCC 16815/2003)

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BETWEEN

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 6 July 2004

Date of Judgment: 6 July 2004

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JUDGMENT

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1.The Appellant was charged with 6 offences in the Magistrate’s court. They were 4 counts of Indecent Assault and 2 counts of Common Assault. The 6 offences were committed in a row between mid June 2003 and 29 June 2003.

2.The prosecution case is as follows.  PW1 is an Indonesian. At the material time, she was 19 years old. She came to Hong Kong to work as a domestic helper. She worked for the defendant’s family from 12 January 2003 until mid June 2003. One day, PW1 returned home after taking the defendant’s son to school. The defendant was then at home. He told PW1 to come over and told her to put her hands behind her back. The defendant then scolded PW1 for her poor performance in work. Suddenly, the defendant with both hands pulled down PW1’s trousers to her thigh. PW1 pulled up her trousers immediately. The defendant scolded her again and said that if her poor performance persisted, he would pull off her trousers again. At the time, PW1 and the defendant were the only people at home as the defendant’s wife had gone out to work.

3.After one or two days, PW1 again returned home after taking the defendant’s son to school during noontime. The defendant had been at home alone. Shortly afterwards, the defendant told PW1 to go to him and scolded PW1 for her poor performance in work again. The defendant slapped PW1’s face and head a few times. Once again, he suddenly pulled down PW1’s trousers to her thigh. PW1 again pulled up her trousers immediately. The defendant warned PW1 that he would pull down her trousers again if her performance in work was poor.

4.A week later, PW1 returned home after she had taken the defendant’s son to school. Once again, she was alone at home with the defendant. She worked in the living room after lunch. The defendant scolded PW1 for failing to fix the electric light in the living room 2 days ago. Again, all of a sudden he pulled down PW1’s trousers to her thigh, and PW1 pulled up her trousers immediately. The defendant showed the image of a naked woman displayed on the screen of his mobile phone and said to PW1 that she would look like that next time she did not do her work properly.

5.At about 3.00 p.m. on 29 June 2003, PW1 was alone at home with the defendant again. At that time, PW1 was about to have lunch in the kitchen. The defendant told PW1 to go to him again. The defendant was sitting in the sofa in the living room. The defendant told PW1 to show him the clothes she had ironed. The defendant scolded PW1 for failing to iron the clothes properly. He slapped PW1 on her face a few times.

6.At about 7.00 p.m. on the same day, the defendant, wearing the clothes that PW1 had ironed, went to the door of the computer room and squatted down there. The defendant told PW1 to go over to him and said PW1 did not iron the clothes properly. PW1 then squatted down to take a look at the defendant’s clothes. Having scolded PW1, the defendant told her to stand up. PW1 refused. The defendant suddenly with both hands pulled PW1’s trousers down to the floor. PW1 pulled her trousers up to her waist at once. When the defendant was trying to pull down her trousers again, PW1 held her trousers with her hands to prevent the defendant from pulling them down. The pair of trousers was thus torn. The defendant then ordered PW1 to change trousers because he wanted to see her change her trousers. PW1 burst into tears and went to the toilet to change her trousers and she did not allow the defendant to see that. The defendant told her to change her trousers in the computer room. The defendant kept on scolding PW1 while she was crying. Later, the defendant allowed PW1 to change her trousers in the toilet. At that point in time, the defendant’s wife came home. PW1 continued with her work and did not disclose what had happened to the defendant’s wife.

7.On 30 June, PW1 telephoned her relative in Hong Kong and told him what had happened. Later on a report was made to the police.  This case thus came to light. After reporting to the police, PW1 was sent to the hospital to be examined.

8.PW1 gave evidence in court and she was cross-examined mainly about the discrepancies between her statement to the police and her testimony in court. PW1 gave her explanation. After the prosecution case, the defendant elected to give evidence. The defendant said he had been working in the mainland and only returned to Hong Kong at weekends. However, he spent most of his daytime at home after he began to work for a company in Hong Kong in June. His wife was a teacher. She had to go to work in daytime and his son went to afternoon class. The defendant testified that the victim wore jeans in daytime, and she did not wear a pair of trousers with elastic waistband as she had described. What he meant was that he did not pull down her trousers at all, as the victim was then wearing a pair of jeans that could not be easily pulled down.

9.The appellant also denied that he had hit the victim. He also denied that his mobile phone had any image of a naked woman. The defendant admitted that he did scold PW1 one afternoon because of the ironing of clothes. The defendant also said that the victim had never lodged any complaint to his wife. The defendant conjectured that PW1 made false accusations against him because she was not happy about her work environment and that being bound by a contract, she was trying to find an excuse to terminate it. The defendant also said that about 2 weeks before this incident, when PW1 took his son to school, she did not comply with the traffic light and they had a narrow escape from a traffic accident. The defendant therefore discussed the matter with his wife, and they intended to dismiss PW1. They did not tell PW1 what they had in mind.  However, a Filipino maid telephoned his wife one day, and it was PW1 who answered the call. The defendant said PW1 was very concerned about that. So, the defendant believed that PW1 anticipated that she would be fired and as a result she accused him falsely.

10.After the defendant gave evidence, the defendant’s wife (DW2) was called to testify. The defendant’s wife said she had to go to work everyday during daytime and after work she would return home only in the evening. Her evidence was that the victim wore jeans in daytime as well as in the evening. He [sic] once suggested to PW1 that she could wear trousers with elastic waistband after bath in the evening. The defendant’s wife said that on 29 June she did not notice anything unusual about PW1, and she thought that the victim did not appear to be upset.

11.DW2 also said that initially the work performance of the victim was quite satisfactory, but her subsequent work performance was somewhat poorer than it used to be.  She even put on the clothes of her son. On one occasion when she took her son to school, they had a narrow escape from a traffic accident. Because of that she had a discussion with her husband and intended to dismiss her.

12.When the learned Magistrate assessed the evidence after hearing the case, he correctly considered that each party stuck to its own version of what happened, and that therefore he had to be cautious when assessing the credibility and reliability of each witness. After considering the evidence of PW1, the learned Magistrate found that she was an honest and reliable witness, that her evidence was reasonable and that she remained firm under cross-examination. He therefore gave full weight to PW1’s evidence.

13.When the learned Magistrate considered the evidence of the defendant, he reminded himself that the defendant was a person with a clear record. However, after analyzing the defendant’s evidence, the learned Magistrate was of the view that what the defendant said was not true and that his evidence was unreasonable and incredible. The learned Magistrate pointed out in paragraph 16 of his statement of findings that he found the defendant’s evidence incredible because, for example, the defendant, as a male employer, would notice that the pair of trousers the maid wore in the evening was one with an elastic waistband.

14.As far as the testimony of DW2 was concerned, the learned Magistrate was of the view, very fairly, that it was inevitable that DW2 felt nervous and uneasy when giving evidence, as it was the first time she testified in court. The learned Magistrate was not satisfied that DW2 was telling the truth because her testimony was unreasonable. For instance, if in the evening on 29 June, there was nothing unusual about the victim who did not look upset, then when she went missing without reason on the following day, it was odd that DW2 behaved as if nothing had happened. The learned Magistrate also noticed that DW2 was evasive when she testified. He therefore rejected DW2’s evidence.

15.In the end, the learned Magistrate accepted PW1’s account of what happened and convicted the defendant of the 6 charges accordingly.

16.Counsel Mr. Iu put forward the grounds of appeal against conviction and sentence on behalf of the appellant in the appeal. The main argument of Mr. Iu is that the trial Magistrate erred in deciding that PW1 was an honest and reliable witness, because in PW1’s statement to the police, she mentioned that she was hit by the defendant almost everyday during March and April, but she said in her evidence in court that that happened after March and April. Mr. Iu submitted that the learned Magistrate did not deal with what the appellant said in his evidence, namely, that he worked in the mainland before June and he did not return to Hong Kong except on holidays. Mr. Iu also complained that the learned Magistrate did not properly deal with the injuries stated in the medical report and jumped to the conclusion that it did not corroborate PW1’s evidence. Mr. Iu further submitted that PW1 did not make any complaint to her female employer; he asked why PWI did not put on another pair of trousers; he also queried why the prosecution did not produce the pair of trousers as exhibit.

17.It is my view that the learned Magistrate understood very well that the victim was a 19-year-old woman, why she did not make any complaints at that time and why she did not change her trousers. The victim had also explained why she did not make a complaint to her female employer.

18.As to whether the learned Magistrate had taken into account the medical report which was one of the prosecution exhibits, the learned Magistrate considered that he relied on PW1’s evidence in respect of the 6 incidents of ill-treatment by the defendant.

19.As to whether the medical report could support the victim’s testimony, I notice the doctor described in the medical report (P1) that the victim’s head had tenderness. The question never arose during the trial whether the female victim’s injury was sustained somewhere else.

20.It is a matter of findings of facts to question whether the learned Magistrate had sufficient grounds to reject the evidence of the defendant and his witness. The trial magistrate is absolutely entitled to believe any of the witnesses and to accept or reject the evidence of any one of them. These are simply findings of facts. The trial magistrate has the opportunity to observe how the witness testified and it is therefore rare for the appellate court to interfere with such findings.

21.In his statement of findings the learned Magistrate gave his reasons why the defendant’s and his witness’s testimony was rejected. However, the Magistrate is not required to set out each and every reason, he may just express his idea why he accepts or rejects the evidence of a witness and the way he comes to his conclusion.

22.As to whether the acts of the defendant were indecent and whether the defendant had the intention to commit indecent assault, it is known from the evidence of PW1 that the defendant did deliberately pull her trousers down. It is also clear that the defendant did show the victim the image of a naked woman on his mobile phone. It was also the defendant’s intention to see the victim change her trousers in his presence. In these circumstances, there was ample reason for the trial Magistrate to find that the defendant did commit these indecent assaults intentionally. Although the learned Magistrate should have made it clearer, the learned Magistrate undeniably had ample reason for convicting the defendant of the 4 counts of indecent assault on the victim. I therefore consider that the learned Magistrate had utterly sufficient evidence to convict the appellant. The appeal against conviction is thus dismissed. The conviction is upheld.

23.As far as the sentence is concerned, the appellant was sentenced to a total of 1 year’s imprisonment on conviction. The learned Magistrate imposed a sentence of 1 year on each count of indecent assault. For common assault, the defendant was sentenced to 2 months’ imprisonment. These sentences were all to run concurrently.

24.The grounds of appeal submitted by Mr. Iu on behalf of the appellant was that the learned Magistrate, when passing sentence, was wrong in principle and the sentence was manifestly excessive. Mr. Iu submitted that the learned Magistrate mentioned that this was a serious case when passing sentence. Mr. Iu was of the view that it was wrong in principle for the learned Magistrate to make such remarks because compared with other cases, the form of assault in the present case is not the worst of its kind.  Therefore, it was submitted, the learned Magistrate erred in adopting 12 months’ imprisonment as the starting point for the offence of indecent assault.

25.Mr. Iu also complained that the learned Magistrate did not take into consideration the conduct constituting the actus reus of the offence, the circumstances of it and the clear record and previous good character of the defendant.  Mr. Iu therefore submitted that the 98 days the defendant spent in custody was already a sufficient punishment. Mr. Iu further submitted that the defendant should be released from custody immediately.

26.The most important point, which both counsel agree, is that there is no sentencing guideline for cases of this kind and that in each case, it has to be considered whether there is any aggravating factor in the nature of the indecent assault.  As Mr. Chiu submitted,  in HKSAR v. Cheung Kwai Sang, Gall J made it very clear when his Lordship said,

“However, it is for the judge to recognise those three important sentencing considerations in the light of the facts of the particular case before her. It is important that in all cases involving indecent assault that there be an element of deterrence of others to mark the public abhorrence and a need to redress the grievances suffered. Those necessities, those requirements and those considerations will vary depending upon the nature of the indecent assault.”

27.In another case, HKSAR v Chan Ching-ho [2001] 3 HKLRD 476, Stuart-Moore V-P said as follows:

“In short, we consider the judge had recognised three important sentencing considerations in cases of this kind; namely, the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim, her relatives and friends.”

Therefore, the Court of Appeal had said in the clearest terms that when considering the sentence, the trial judge has to take into account the deterrence effect, the facts of the case, the nature of the assault and the extent to which the victim is affected by the offence.

28.The learned Magistrate had set out clearly in paragraph 22 of his statement of findings the aggravating factors in this case. The main issue is that the victim is a young woman. At the time of the offences, she was working in Hong Kong alone for the defendant’s family. The defendant therefore should have provided her with a safe work place. Not only did the defendant fail to do so, he also breached the trust placed in him by not only indecently assaulting this young woman but also hitting her.  The defendant showed no remorse at all. In the circumstances, the learned Magistrate came to the view that a 1-year prison sentence was an appropriate penalty.

29.Mr. Iu submitted that if we look at the nature of the assaults in this case and contrast itwith that in other cases, it was not quite bad. However, I think what happened in this case was not an isolated incident of indecent assault. The appellant indecently assaulted this young victim on 4 different occasions. Not only was she indecently assaulted within a few weeks’ time, she was also hit. I would agree with Mr. Iu that this is not the most serious case of its kind if we look at the nature of the assaults alone. But they were committed within just a few weeks’ time. When looking at the 6 offences as a whole, I am of the view that this is a serious case.

30.The defendant did not act on the spur of the moment. The defendant committed these offences by taking advantage of the fact that he was then at home alone with the victim when his wife had gone to work.

31.In my opinion, the sentence was on the high side, but I do not consider it to be manifestly excessive. I am of the view that there is no good reason for setting aside the sentence imposed by the trial Magistrate. The appeal against sentence is dismissed. The sentence is upheld.

Representation:

Mr. Wai-tin Chiu, GC of Department of Justice, for the Respondent

Mr. Thomas P.S. Iu, instructed by Bridge Robin and John Liu, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Jackson Ng, Solicitor.