HKSAR v. Chan Pui Mun

CACC 514/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 514 OF 2006 

(ON APPEAL FROM DCCC 543 of 2006) 

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Before: Hon Cheung JA, Yeung JA and Beeson J in Court

Date of Hearing:   2 May 2008

Date of Judgment:  20 May 2008

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.Ms Chan Pui Mun (the applicant) operated Parrot Shop (“the Shop”), a bird shop registered in her husband’s name and situated at G/F, No 3 Lee Tung Street, Wanchai. 

2.Since 19 April 1999, Mr Shek Ka Fai (“the victim”) had been working at the Shop as an employee. The applicant and the victim were normally the only persons working in the Shop from 8 a.m. to 8.30 p.m. daily, and they did not have any fixed holiday.

3.The applicant was arrested on 19 February 2004 for wounding the victim. Doctors, who examined the victim, found very serious injuries all over his body.

4.Drs Chuang Hsiu-min and Ip Fu-keung of the Department of Orthopaedics and Traumatology described the victim’s injuries as follows:

 “Left eye: subconjunctival haemorrhage.

Face: peri-orbital bruises over both eyes, multiple short scars over fact and lips.

Tongue: split at the middle about 1.5 centimetres.

. Body: haematoma and bruises all over the back, chest wall and abdominal  wall. Multiple superficial skin abrasions.

Both upper limbs: multiple bruises, evidence of left shoulder injury.

Both lower limbs: multiple bruises.

Shallow ulcers about 1 centimetre over both right and left second toes.

Urgent CT scan revealed intra and extra-muscular haematoma at upper  back and posterior aspect of both shoulders and fractures at T2 and T4 of the  spine.”

5.Dr Tso Chi Bun, a pathologist, in his report admitted under s 65C of the Criminal Procedure Ordinance, gave the following opinion on the victim’s injuries:

“The details of each assault were not revealed (too numerous) and the description of the last assault was rather brief (probably due to the limitation of the victim in expressing himself. It appeared that the assaults were of escalating severity with the last episode, 10 February 2004, being the most violent. Although the extent of soft tissue injuries were obvious from the attached photographs, I have to reiterate that the victim had sustained extensive and severe injuries all over the body.”

6.Dr Tso found the case akin to “child abuse” and the “battered wife syndrome” where the victim suffered assaults from people who controlled them or had authority over them.

7.The pictures taken of the victim vividly illustrated the horrific injuries that he suffered. Those injuries were consistent with heavy, repeated and overlapping assaults with metal rods, stools and other blunt instruments. The possibility of the injuries being self-inflicted was excluded.

8.The prosecution alleged that the applicant had repeatedly assaulted the victim on many occasions over a period of more than three years between 2001 and 2004.

9.The aforesaid incidents led to an indictment consisting of 14 charges of assaulting occasioning actual bodily harm or wounding or wounding with intent against the applicant. The 14 charges were sample charges as the prosecution alleged that the victim was in fact attacked on numerous other occasions as demonstrated by his extensive injuries.

10.The applicant pleaded not guilty to the charges before District Court Judge Chua. She was, however, convicted of all the charges and sentenced to terms of imprisonment of 6 months to 5 years, with parts of the sentences to run consecutively, making a total term of 7 years’ imprisonment.

11.Represented by Mr Joseph WY Tse SC and Mr Eddie S Chan, the applicant sought leave to appeal against both conviction and sentence.

The Prosecution Case and the Evidence

12.There could no doubt that the victim suffered serious injuries on the occasions when according to him, he was attacked by the applicant.

13.The undisputed evidence showed that the victim went to different hospitals for treatment shortly after the alleged assault or wounding and was found to have suffered injuries of varying degrees.

14.On 8 April 2001, the victim had an abrasion over his right cheek and a bruise on his lip. The wounds were dressed and the victim was discharged with analgesic. He told the doctor that he had fallen from a staircase (the 1^st charge).

15.On 12 June 2001, the victim had a bruise over his left lips and lower eyelid with sub-conjunctival haemorrhage. The victim, in an attempt to explain his injuries, told the doctor that he had walked into a lamppost (the 2^nd charge).

16.On 11 August 2001, the victim suffered a bruise over the right eyelid with mucosal bleeding over lower part of the eye (the 3^rd charge).

17.On 20 June 2002, the doctor at Eastern Hospital found, “Cauliflower appearance with multiple bruising on the left earlobe; ear canal was obscured. He was referred to the Ear, Nose and Throat Clinic urgently.” The victim told the doctor that he had hit his ear against a hard object at work about a week before (the 4^th charge).

18.On 3 January 2003, the victim suffered swelling of the left eyelid with pain over the left superior orbital rim. His nose was deviated to the right. There was pain and bruises over the left shoulder with decrease in the range of movement. The victim told the doctor that he slipped and fell at work (the 5^th charge).

19.On 29 December 2003, the victim was found to suffer a 2 cm bruise over his left forehead and a 1.5 cm laceration over his left eyebrow (the 7^th charge).

20.On 8 February 2004, both the victim’s legs had cramped and his sister took him to the hospital. The doctor found, “Bilateral feet bruising and swelling”. The victim told the doctor that a closing gate crushed his feet accidentally (8^th to 12^th charges).

21.The victim’s tongue was split in the middle by 1.5 cm long cut (the 6^th charge).

22.In giving evidence, the victim described how the applicant assaulted or wounded him on the occasions referred to in the charges, and on many other occasions when it was clear that the occasions referred to in the charges could not have accounted for all his injuries.

23.The victim said about two months after he started working at the Shop, the applicant struck him with her hand. The applicant apologized the next day and promised that she would not hit him again. However, whenever she was irritated by his unsatisfactory performance, she would strike him. Initially the applicant only used her hands or feet, but later used whatever came to her hands. The assaults grew more and more violent.

24.The applicant then suggested that she was blinded by anger and said she did not really want to beat him. She discouraged the victim from seeing a doctor or telling his family or her husband. She asked him to invent an excuse for his injuries.

25.The victim described in detail how the applicant assaulted or wounded him on the 14 occasions forming the subject matter of the 14 charges.

26.In particular there were occasions in 2003 when the applicant became irritated because the victim spoke too softly and not clearly enough. The applicant accused him of lying and clamped his tongue with pliers. When the victim refused to open his mouth, the applicant hit his mouth with the pliers and broke his front teeth.

27.On 1 July 2003 when the applicant clamped the victim’s tongue forcefully, his tongue was cut. The victim said thereafter he wore surgical masks at all times to conceal the injuries from family members.

28.According to the victim, the assaults on him by the applicant towards the end of 2003 and early 2004 were very serious. The victim would use a roller rod to strike at his forehead, pliers to hammer his toes indiscriminately, a hammer to hit his shoulder and back, and a shutter rod and a hammer to hit his abdomen, chest, shoulder, back, knees and other parts of his body.

29.The victim described the events on 10 February 2004 between 8 and 9 p.m. when the Shop had closed and the applicant had pulled down the roller shutter.

30.According to the victim, after discovering two dead birds despite attempts by him to make it look as if they were still alive, the applicant exploded and hit him with the shutter rod and hammer across his abdomen, chest, shoulder, back, knees, and everywhere. After more questioning, the applicant chased the victim to the storeroom and beat his shoulders and back with a wooden pole until it broke.

31.The attack on the victim on 10 February 2004 was so serious that his father was shocked on seeing his injuries accidentally. After family members learnt of his ordeal, they insisted on taking him to the hospital and only then did the matter come to light, leading to the charges against the applicant.

32.Apart from the undisputed medical evidence and the testimony of the victim, the prosecution also called the victim’s father and sister to give evidence in support of the charges.

33.According to the victim’s sister, they were so worried about the victim’s condition that they went to the Shop in March 2002 to persuade the applicant to allow the victim to quit the job, but the victim said he could not. In November 2003, the sisters went to the Shop to drag the victim to the hospital with the help of police officers. However, the applicant forbade the victim to go to the hospital and confidently and calmly said that it was the victim who refused to quit the job.

34.One of the prosecution witnesses was Miss Leung Siu-wai, a nurse who volunteered to give evidence for the prosecution after reading a newspaper report about the case in the course of the trial.

35.Miss Leung kept parrots and she had visited the Shop three or four time a week since early 2001.

36.Miss Leung said she noticed the victim’s injuries and her experience told her that someone had inflicted those injuries. The victim claimed at one stage that it was cats that caused his injuries. Miss Leung said she did not believe what he said as there were bruises around his eyes, cheeks, mouth and the back of his hands.

37.Miss Leung said the victim was quiet, gentle, hard working and loved birds, although he was not efficient.

38.Miss Leung said the applicant often shouted at the victim and on one occasion, being irritated by the way the victim held a parrot; the applicant, holding pliers, banged her fist on the victim’s hand.

39.The prosecution adduced as evidence various items seized from the Shop and the victim identified them as instruments used by the applicant to attack him.

The applicant’s case

40.The applicant denied the prosecution’s allegations against her. The applicant admitted that she did notice the victim’s injuries and had asked him about them. However, the victim told her that the injuries were the result of bumping against something outside and she simply told him to be careful.

41.The applicant accepted that the event perceived by Miss Leung as the assault on the victim’s hand did happen. She said, however, that it was in fact a well-intentioned way of brushing his hand away from the parrot’s beak.

42.The applicant said the victim was always willing and prepared to continue working in the Shop despite objection from his family members. The applicant suggested that the victim told lies to wrong her.

43.The applicant’s husband and her witness who had worked at the Shop for two to three months had seen the victim’s injuries. They suggested that the victim was clumsy, and often bumped into cages in the shop and had slipped on the spiral staircase. However, they found the victim’s excuses for his injuries difficult to believe.

44.The defence suggested that the victim might have mixed with dubious people after work and that those people could have been responsible for his injuries. The defence further suggested that the victim, because of such association, had overspent and that explained why he was unable to contribute his salary to his family.

The Judge’s Findings

45.The judge described the situation as bizarre when the victim said the applicant had assaulted him almost every day, yet there was no protest or complaint to anyone until his father discovered his injuries by accident.

46.The victim did not quit or complain when he was seriously injured and despite being granted sick leave, he insisted on going to work. He had to work very long hours, there was hardly any holiday and he was not paid his full salary.

47.The victim even hid his injuries and tried to find excuses for those injuries.

48.However, the judge found the victim young, immature, lacking in “street smarts”, gentle, introverted and quiet, and that the applicant had instilled in him monumental fear by “an almost daily diet of violent chastisement, both verbal and physical, which was accompanied by demoralising, guilt-inducing scolding”.

49.The judge pointed out that the victim had been scrupulously honest when he always maintained that the applicant never explicitly threatened him not to report or not to quit, except on one occasion when she told him if he hit her back, she would get her husband, brother and cousin to avenge her and nobody would believe that she had assaulted him.

50.The judge found that the victim must have thought that the applicant had influence both with the police and triad elements and that he was worried for his family, as the applicant knew where they lived. The judge opined that the victim must have felt ashamed for being struck by a woman and he was afraid that his family would think he was useless in his job.

51.The judge found that the victim was genuinely fearful of the applicant and that explained his unusual behaviour.

52.The judge, having found the applicant artful and deceitful, rejected her evidence. The judge attached no weight to the evidence of her husband and her former employee.

53.Based on the undisputed medical evidence, the victim’s evidence, and the evidence of his family members and Miss Leung, the judge found the charges against the applicant proved to the requisite standard. The judge therefore convicted the applicant as charged.

Grounds of Appeal

54.Mr Tse SC suggests that there was a material irregularity at the trial when the judge allowed evidence of numerous other assaults on the victim by the applicant to be adduced as evidence when such evidence, being mere propensity evidence and prejudicial in nature, was inadmissible against the applicant.

55.Mr Tse SC argues that the judge was wrong to have allowed the evidence pertaining to the victim’s good character and, and other hearsay evidence in his favour. Mr Tse SC further suggests that the judge should not have allowed evidence and/or cross-examination tending to show bad character on the applicant’s part.

56.Mr Tse SC emphasizes that the victim’s witness statements and interview records were adduced for the limited purpose of challenging the victim’s evidence on specific aspects, yet the judge relied on those evidence to bolster up the victim’s credibility.

57.Mr Tse SC suggests that in all the circumstances, the applicant had not been given a fair trial and the conviction is therefore unsafe and unsatisfactory.

Discussion

58.It had always been the prosecution’s contention that the applicant had assaulted the victim on numerous occasions throughout the four-year- period of his employment and that the 14 charges preferred against the applicant only reflected some of those occasions.

59.The Summary of Facts, adopted as the prosecution’s opening, stated at para 5:

“PW1 (the victim) disclosed that he had been assaulted by D (the applicant) since two months after he worked in the Shop. D hit him whenever PW1 did something wrong or D was in a bad mood. He never mentioned the assaults to others as D was always remorseful and apologised. He therefore gave her a chance. Furthermore, PW1 found it embarrassing if others knew that he was assaulted by a female. When he went to see doctors for examination, he made up a reason for the injury. PW1 did not quit for fear that D would harm his family. PW1 disclosed some more assaults by D.”

60.At the commencement of the trial, in providing the judge with the background of the case, prosecuting counsel said:

“Yes, as you appreciate these events took place over a four-year period. And the ones that have been identified specifically and can be remembered by the (victim) are referred to specifically. Bu there are others where there were difficulties with dates, which will all become clear in the course of his giving evidence. But that’s the reason behind the background of it.”

61.Defence counsel at trial (“defence counsel”) did not object to the way in which the prosecution proceeded with the case, including the adducing of evidence of other assaults not covered by the 14 charges.

62.Defence counsel raised no objection when the victim and other prosecution witnesses gave evidence on those other assaults.

63.Defence counsel invited the prosecution to tender to the court the victim’s witness statements/records of interviews. Indeed, in cross-examining the victim, defence counsel led him through his witness statements/records of interviews and referred him to his complaints about the daily beating by the applicant.

64.It is somewhat surprising, in the absence of any allegation of incompetence against defence counsel, that this is used as a ground of appeal in order to upset the conviction.

65.The prosecution adduced as evidence the persistent manner in which the applicant treated the victim throughout the course of his employment to show striking similarity between the evidence on other occasions when the applicant assaulted the victim and the evidence relating to the 14 charges.

66.Such evidence was introduced to explain the victim’s multiple injuries that could not be accounted for by the 14 charges alone and to meet the unusual feature of the case that the victim was prepared to put up with the applicant’s conduct for a long time without complaining.

67.The evidence also refuted the defences that the victim’s injuries were the result of accident and/or inflicted by dubious characters that he associated with after work.

68.Mr Tse SC suggests that the prosecution should not have introduced such evidence before the defence positively raised those issues.

69.The stage at which the prosecution should adduce relevant evidence depends on when the relevant issues become apparent. If the issues become apparent before the conclusion of the prosecution case, the relevant evidence should be adduced before the prosecution closes its case, as the prosecution may not be given the opportunity to call rebuttal evidence.

70.The peculiar feature of the case namely the victim’s acceptance of his ill-treatment was apparent at the outset and the prosecution was entitled to adduce evidence to explain the victim’s injuries and why the victim behaved in the manner he did towards the applicant.

71.The defences, that the victim’s injuries were accidental and/or inflicted by dubious characters that the victim associated with, were made clear at the initial stage of the prosecution case.

72.Mr Tse’s suggestion that the prosecution should not have adduced the evidence at such an early stage is, with the greatest respect, unfounded.

73.Evidence of other assaults on the victim by the applicant was similar fact evidence capable of being admitted as evidence on the 14 charges.

74.The general rule governing similar fact evidence is stated in Halsbury’s Laws of England, 4^th Edition Vol 11(2) at para 1091 as follows:

“The traditional statement of the rule regarding the admissibility of similar fact evidence is that the prosecution may not adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. The mere fact that the evidence adduced tends to show the commission of other offences, however, does not render it inadmissible if it is relevant to an issue before the jury; and it may be so relevant if it bears upon the question whether the acts in question were designed or accidental, or to rebut a defence which would otherwise be open to the accused. In modern times the principle underlying the rule has been shown to be that evidence that the accused has been guilty of other offences is admissible if those offences share with the offence which is the subject of the charge common features exhibiting such an underlying unity or striking similarity that it would be an affront to common sense to assert that these features could be explained away on the basis of coincidence. In each case the trial judge has to consider whether, in the light of the principles stated above, the similar fact evidence is of sufficient probative value to be admitted.”

75.We also refer to para 1093, which states:

“The traditional view of similar fact evidence was that it was admissible, by way of exception to the general rule of exclusion, to rebut a defence reasonably open to the accused, including a defence of mistaken identity.

It is now clear that this does not preclude the introduction of similar fact evidence where the defence case consists of a general denial of all the facts alleged to constitute the offence charged. Because the admissibility of similar fact evidence is determined simply by reference to its probative force, there can be no closed list of defences in relation to which such evidence is admissible. Thus the cases in which similar fact evidence has been admitted to rebut a defence, or to establish the identity of the accused, must be seen as illustrations of general principle rather than as fixed categories of admissible evidence.”

76.The leading authority in this area is the decision of the House of Lords in DPP v P [1991] 2 AC 447 when Lord Mackay of Clashfern LC said at p 460,

“As this matter has been left in R v Boardman I am of the opinion that it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another…

From all that was said by the House in R v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed and the authorities provide illustrations of that of which Reg v Straffen [1952] 2 QB 911 and Rex v Smith (1915) 11 Cr App R 229, provide notable examples. But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle. Hume on Crimes, 3^rd Ed (1884), vol II p 384, said long ago:

‘the aptitude and coherence of the several circumstances often as fully confirm   the truth of the story, as if all the witnesses were deposing to the same facts.’

Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.”

77.The admissibility of “similar fact’ evidence was recently examined by the Court of Final Appeal in Hong Kong in HKSAR v Zabed Ali [2003] 2 HKLRD 849. For our purpose, it is only necessary to repeat the decision in Held 2, namely:

“It was fundamental to recognise that the common law had extensively developed since Makin v AG for New South Wales [1894] AC 57. The approach that should now be taken was to first consider the relevance of the evidence, and then apply the exclusionary rule. Relevance was the cardinal test in the law of evidence. On this approach, admissibility should be considered along the following lines:

(a)    the matters in issue which the prosecution had to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the defences open to, and any specific defence raised by, the accused would be taken into account. However, “the prosecution could not credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice” (R v Thompson [1918] AC 221 followed).

(b)   the evidence, the admissibility of which was in question, should be focused on;

(c)    the following questions should then be asked: what was the matter in issue to which the evidence was said to be relevant and what was the reason for saying that it was probative of the matter in issue?

(d)   if it was concluded that the evidence was relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it was not mere propensity evidence, then the exclusionary rule had to be applied as a matter of law, ie namely whether the probative force in support of an allegation against the accused was sufficiently great to make it just to admit it, notwithstanding that it was prejudicial to him. It was only where the test was satisfied that the evidence would be ruled admissible. Obviously, if it was concluded that the evidence was merely propensity evidence, then it would be inadmissible on the basis of the exclusionary rule.”

78.In the present case the victim described a prolonged course of conduct showing that the applicant, on being dissatisfied with his performance as an employee, assaulted him with whatever she could lay her hands on.

79.Mr Tse’s suggestion is that the evidence of such a prolonged course of conduct was no more than evidence of propensity, aimed at the assassination of the applicant’s character, and proved nothing. Mr Tse even suggests that similar fact evidence, to be admissible, has to be independent evidence – in the present case, independent of the victim.

80.We do not agree with Mr Tse’s suggestion. Mr Tse is unable to produce a single authority to support his suggestion that “similar evidence” has to be “independent evidence” before it can be admitted.

81.The highly probative evidence, if accepted, not only provided the background of the case, but also showed a practice of subjecting the victim to serious assault and harassment during the course of his employment by the applicant

82.The evidence indicated the applicant’s constant and continual attitude towards the victim, and explained the victim’s injuries as well as why the victim behaved in the manner as he did. The evidence rebutted the defences, disclosed at the outset of the trial and not after the “prejudicial evidence” was introduced, that the victim’s injuries were accidental or caused by dubious people with whom the victim mixed after work.

83.Those issues were properly dealt with by the prosecution and it was not a case of the prosecution “trying to credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice”, as suggested by Mr Tse SC.

84.If the prosecution has knowledge that a particular defence is going to be advanced, it may call evidence to rebut it as part of the substantive case even if that tends to show the commission of other crimes.

85.We wish to echo the judgment in Makin v AG for New South Wales [1894] AC 57 at p 65 when the Lord Chancellor made the following comments:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question of whether the facts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

86.The evidence on the other assaults provided strong probative force to the evidence on the 14 charges. On the facts of the present case, it was, in our view, fair and just for the evidence to be admitted notwithstanding its prejudicial effect.

87.Further, as R v M(T) and Others [2000] 1 WLR 421 shows, where it was necessary to place before the jury evidence of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involved including evidence establishing the commission of one or more offences with which the defendant was not charged was not itself a ground for excluding the evidence.

88.We reject Mr Tse’s main ground of appeal.

89.Mr Tse SC objects to character evidence, self-serving statements and hearsay evidence in the victim’s favour.

90.Mr Tse SC says that the evidence of the victim’s sister, his father, Miss Leung and the victim himself, on his upbringing and his character should not have been admitted.

91.Mr Tse SC further says what the victim told his sister and father about the cause of his injuries was self-serving and hearsay evidence.

92.Implicitly, the defence suggested that the victim could not be telling the truth because it was inconceivable that he would put up with the applicant’s conduct, if what he said about her was correct, for such a long period of time.

93.Having made the suggestion that the victim could have sustained his injuries accidentally by bumping against something and then accepted that it was unlikely to be so, the defence then suggested that the victim might have mixed with dubious people after work and that those people could have been responsible for his injuries.

94.The first prosecution witness was the victim’s father. In his cross-examination, defence counsel suggested that the victim “had been associated with undesirable peers at night after work” and that the victim did not contribute to the family, not because the applicant failed to pay his salary, but because the victim had overspent.

95.The defence case was revealed at that very early stage. The defence had put the character of the victim in issue with a view to discredit him and to explain the undisputed injuries suffered by him. The prosecution was entitled to adduce evidence with a view to establishing the victim’s good character and to lead evidence on the sort of person the applicant was.

96.The evidence that Mr Tse SC objects to was also highly relevant to the issues arising out of the defence’s suggestion. The evidence explained why the victim put up with the applicant’s most brutal and unreasonable conduct for such a long time and, why the victim’s injuries could not have been sustained in the manner suggested by the defence.

97.When the victim said it was the applicant who inflicted the injuries on him, he was, in response to repeated questionings by his sister and father, trying to explain the causes of his injuries. The evidence, though hearsay in nature, was not inadmissible as it was statements indicating the victim’s physical state, how his injuries were sustained.

98.Such hearsay evidence arose at the very early stage of the trial. The victim’s father and sister both related to the court his complaints and they were never objected to. Indeed defence counsel actively elicited what was obviously hearsay evidence from the witnesses to the extent the judge and the prosecuting counsel found it necessary to intervene.

99.In any event, the victim gave evidence on the same issues and his evidence had been critically tested by vigorous examination. The admission of the evidence resulted in no prejudice to the applicant. The judge had independently assessed the victim’s evidence before accepting his evidence.

100.At the invitation of the defence, the victim’s witness statements and records of interviews were admitted as evidence. Whatever was the defence’ s purpose, the evidence, once admitted, could be relied on if it had probative value on any relevant issue.

101.The judge was entitled to take note of the fact that the content of his statements was consistent with the undisputed evidence. The judge was entitled to point out that the victim’s previous statements were not inconsistent with his evidence, in the face of the defence allegation that parts of his evidence were untrue, because he gave different accounts to the police in his statements.

102.Contrary to Mr Tse’s submission, the judge did not treat what the victim said in his previous statement as evidence of truth and he did not say that the victim’s previous statements could be used to bolster his credibility. Prosecution counsel appeared to have made the suggestion. What the judge did was simply pointing out that if there were any discrepancies in the victim’s statements, defence counsel would have “fetched” them. 

103.The judge’s comment cannot be the subject matter of any valid complaint.

Conviction

104.We have considered all the evidence and counsel’s submission carefully. We have no doubt that the judge came to the right decision that it was the applicant who had inflicted all the injuries on the victim.

105.We do not find the convictions against the applicant on the 14 charges unsafe or unsatisfactory.

106.We dismiss the application for leave to appeal against conviction.

Sentence

107.This case, even if not the worst, is certainly one of the worse cases of its type. For a period of three to four years, the applicant maltreated the victim - an employee, by repeatedly assaulting him, causing serious injuries all over his body.

108.The victim was brutally and regularly abused both physically and mentally to the extent that his will was completely sapped.

109.The victim’s injuries, often caused by vicious instruments, were severe, extensive and some of the injuries, including a split tongue and a cauliflower ear, were permanent.

110.It is difficult to imagine, let alone understand, the reason for such brutal and heartless attacks on a young man by a person of the applicant’s background.

111.Whilst the judge could not sentence the applicant on the basis that the 14 charges were “sample charges” and for other criminal conduct outside the charges, the judge was entitled to take into consideration the entire background of the case in deciding on an appropriate sentence.

112.The court is appalled by the applicant’s vicious conduct and must signal its strong disapproval of such conduct.

113.No complaint is or can be made against the individual sentences and we are not persuaded that the total sentence 7-year sentence imposed on the applicant is manifestly excessive or wrong in principle. The application for leave to appeal against sentence has no merit.

Conclusion

114.We dismiss the applications for leave to appeal against conviction and against sentence.

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr Joseph W Y Tse SC and Mr Eddie S Chan instructed by Messrs Wong Hui & Co for the Applicant.