HKSAR v. Tan Ngan Huay

HCMA481/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 481 OF 2006

(ON APPEAL FROM ESCC 4660 OF 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  12 September 2006

Date of Judgment:  12 September 2006

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J U D G M E N T

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1.This is an appeal against conviction for an assault occasioning actual bodily harm for which the appellant was sent to prison for three months. 

2.The victim was the appellant’s domestic helper.  The prosecution’s case, was that there was a verbal exchange between the appellant and the maid, following which the appellant slapped the maid’s face, took her about the throat with her hands and kicked her.  Upon examination the maid was found to have multiple scratch marks over her neck region, tenderness at the left thigh area and bruising on the left elbow.

3.The defence case was that after a verbal exchange it was the maid who overreacted and slapped the appellant’s face starting the violence, using some clothes hangers to attack her employer, and that any force used by the appellant was merely to push the aggressive maid away.

4.The trial involved both the ladies giving evidence and the matter turned upon the credibility of those two witnesses.  The magistrate believed the maid and disbelieved the employer. 

5.A number of matters are advanced on this appeal against conviction, as set out in the perfected grounds, but Mr Cheng Huan SC, today, has limited his advocacy to grounds 3 and 4, relying upon his skeleton argument in respect of the other grounds.

6.In truth ground 3 is the real battleground of the case.  I shall not read out the full ground.  What it complains of is that the magistrate entered the arena, that there was not a fair trial and that his questions asked of the appellant demonstrated that he did not believe her and he was hostile to her.

7.There is no dispute about the relevant law.  Unusually the two lists of authorities bear remarkable resemblance to each other.  I have been taken through the transcript and referred to the various questions that the magistrate asked the appellant.  Of course, the point is made that it is the overall effect of all of the questions that matter, and I agree with that.  The question is, would an informed bystander sitting at the back of the court have felt that the lady did not get a fair trial, that the magistrate was hostile in intervening too much? 

8.Mr Cheng Huan has said all that could be said in support of his submission that an objective bystander would have seen such a thing occurring.  I have to say that I am afraid the evidence before me does not support him.  Most importantly, there is no complaint made about the way the magistrate asked the questions.  If these questions had been delivered in a hostile way, or a sarcastic way, or a way that revealed by their delivery any sort of hostility or disbelief of the appellant’s evidence, then I have absolutely no doubt that would have been drawn to my attention, because we all know a recording of the voices exists and is available to the appellant.

9.In my judgment, what the questions asked by the magistrate of the appellant reveal are requests politely put for information.  Let me take an example, because it is one of the parts relied upon as revealing hostility, it occurs at page 92 of the transcript.  The appellant said that she spoke to her maid in Fukien just before the violence occurred, saying words to the effect that she would have to work if she wanted to earn a living.  The magistrate asks, in my judgment understandably, “Why speak to a Filipina maid in Fukien?”  What his questions revealed is that the lady was, in fact, talking to herself. 

10.The point is made that this is a critical point of the evidence and it is said that the magistrate, therefore, should have kept quiet.  This was not a jury trial.  He is the judge. He needs to know what is going on and I can see nothing wrong with him establishing clearly that the words spoken before the violence were spoken in a language or dialect that the maid did not understand.  It was an important thing to find out.  If the magistrate wanted to know the answer to that and have it clear for his note and to form part the evidence on which he would later make his decision, then it is only right that he ask the question in my view.   

11.In effect, Mr Cheng Huan asked me to read in, or imply into the transcript the words, “Are you asking me to believe that…?”  In my judgment, there is no justification in seeking to do that. 

12.It was complained that the question stopped the lady being able to tell the magistrate all she wanted to about the event.  In my judgment, that simply was not the case.  She had the opportunity to say exactly what she wanted to about this very short, simple incident.  In fact, if this transcript, where it says “COURT”, as indicating the questions, if that had merely been a “Q” indicating that her own counsel had asked that question, there would have been nothing remarkable to perceive in the transcript. 

13.The questions that I have been referring to could just as easily  have been asked by the experienced counsel, Mr Duncan Percy, who appeared below and who took no objection at all to the court asking some of the questions that dealt with the important issues.

14.Later on, and this is at page 97 of the transcript, one actually has the magistrate saying to defence counsel, “Can you make some sense out of this, sir?  It’s very hard to follow?”  And again at page 98, there is the magistrate saying, “This is difficult to understand.”  Frankly it was and his questions helped to clarify it.  Once any tone of disbelief or incredulity is absent from the questions, the questions, in my judgment, did not in any way offend the well-known rules which the cases deal with. 

15.The nearest my ear comes to picking up anything of that nature occurs on page 105, when the magistrate, having established that at the time of this incident there was a 7 year old primary 2 boy up doing his homework, asked the question, “How often do you have this 7 year old, primary 2 student up at 11 o’clock at night doing homework?”  The relevance of that may have been marginal, although he might have taken the view that it told him something about the regime being run in this small flat, but in the context of the whole case, the question would, to an objective bystander, have been one that would have been unremarkable when it came to considerations of a fair trial and the like.

16.It is for that reason that I reject the complaint made in ground 3 of the perfected grounds of appeal.

17.Ground 4 was related to it.  The magistrate found that the evidence given by the appellant in part was somewhat vague and the argument today has been that such was because of his interruptions.  That simply did not follow.  In fact, when the evidence hardened up, sometimes it was due to the sensible questions asked by the magistrate.  In quite a lot of cases the questions of the magistrate gave the appellant the opportunity to deal with things which otherwise he might have taken against her and far from his interventions shutting her out, in my judgment, they gave her the opportunity to say all that she wanted about the matter.  There is nothing in ground 4.

18.Grounds 1 and 2 were left to the skeleton to argue their cause.  It was said that the finding of the magistrate, that it was very improbable that the maid started the violence, was made in error.  All he was saying in his Statement of Findings is that the inherent probabilities were with the maid, and that did no more than recognise what criminal lawyers in these courts and probably courts all over the world know to be the reality, namely that cases of employers hitting maids are far more frequent than maids hitting employers.

19.Complaint was also made that the magistrate gave undue weight to his finding that the appellant was a demanding and unrelenting employer and the boss at home.  He certainly had evidence to justify the finding and he gave it weight.  Nothing has persuaded me today that the weight given to it was undue weight. 

20.There is complaint that having in effect looked at the type of lady the employer was, there was no finding about the type of person the maid was.  Having read the transcript that would be explicable in terms of the character of the maid not intruding into the case and so being unworthy of any description.  The magistrate did he need to express a written finding in his Statement of Findings about it. The important finding he made about her was that she was truthful.

21.Ground 2 complained that there was an unevenness of approach because of the criticism of the appellant being vague and the fact that the magistrate did not regard some discrepancies between evidence by the maid and her written statement to the police as indicating, in effect, dishonesty or unreliability.  All I need say is the magistrate was perfectly entitled to form those views on the evidence before him.

22.Accordingly, the appeal against conviction is dismissed.

23.Let me turn to the question of sentence.  The appeal was argued to an extent on the expressed approach to community service and the question of remorse by the magistrate.  But with no dissent between the Bench and the Bar, that has not been pursued because what matters is what I think the right sentence is today.  Let me say, if I thought it was proper to put this lady on community service, I would make the order.

24.Cases like this are distressing cases, because, as is the case here, the appellant is someone of previous good character, the mother of young children for whom a sentence of imprisonment, however short, will be a grave burden.  Having fought the trial, I do not expect her now to turn around and say that she was guilty.  Anyone charged with an offence such as she was charged with, has to make their decision whether to plead guilty or not before the trial begins in the Magistrates’ Court.

25.The particular gravity of assaulting a maid is that it is done against a background of the dominance of one party against the subservience of the other.  And against a background like that, whether you come to the court saying “I was wrong, I am sorry, I regret it”, is one thing, than if you come to the court saying, “I was not the aggressor, it was her, she is a liar, she is making it up”.  There is a world of difference between the two.  For someone who adopts the latter course and loses, well, frankly they can expect little mercy.

26.It is too late for mercy now. If mercy for a wrong truly done was required, then that had to be at the time of a plea of guilty in the Magistrates’ Court.  The sentence of 3 months’ imprisonment, therefore, is not one with which I would have been minded to interfere for the magistrate’s view would have accorded with my own view. 

27.However, there has been some unfortunate delay between the trial and this hearing.  The offence was committed on 19 May of 2005.  The conviction took place on 14 December of that year.  Sentence was passed on 14 January of 2006.  The appellant was bailed on the 16th and entered her Notice of Appeal then.  The Statement of Findings should have been ready within 15 days thereafter.  There was a delay of, in fact, four months before it was delivered.  Obviously, that delay was no fault of the appellant’s.  She has had this matter now hanging over her head for a longer time than otherwise should have been and it has put a brake on her life in the way that her counsel has described to me.

28.In those circumstances I will give some credit for that.  I think the right sentence now, today, is one of 2 months’ imprisonment, and it is the fact that in making the sentence slightly the shorter the disruption to her family, and especially to the children will be one that is materially less.  That reduction in sentence occurs on the peculiar facts of this case, and no one should interpret it as the courts being soft on violence used to domestic helpers.

Representations:

Mr Cheung Wai-sun, Deputy Principal Government Counsel of the Department of Justice, for the Respondent (HKSAR)

Mr Cheng Huan, Senior Counsel, leading Mr David Ma and Mr Bernard Chow, instructed by Chung & Kwan for the Appellant Tan Ngan Huay