Secretary for Justice v. Tsoi Shuk Kan

[English Translation – 英譯本]

CAAR 10/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 10 OF 2006

(ON REVIEW FROM ESCC NO. 736 OF 2006)

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BETWEEN

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Before: Hon Tang VP, Cheung JA and Barnes J in Court

Date of Hearing: 15 May 2007

Date of Judgment: 15 May 2007

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JUDGMENT

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Hon Cheung JA (delivering the judgment of the Court):

Application for review of sentence

1.Tsoi Shuk Kan (“respondent”) was charged with two counts of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong. She pleaded not guilty to the charges. After trial before the magistrate, Mr. Winston Leung, sitting at the Eastern Magistracy, she was found guilty and was fined $1,000 for each count, making a fine of $2,000 in total. The magistrate declined a request by the Secretary for Justice (“applicant”) to review the sentence. The applicant now applies to this court for a review of the sentence. The applicant takes the stance that the appropriate sentence in the present case should be imprisonment but that it is open to the Court to consider a suspended sentence if it allows this application.

Facts

2.The respondent was a tutor at a tutorial centre. The victim (hereinafter referred to as “A”) was merely 9 years of age and studying Primary 4 at the material time. Apart from taking normal school lessons, she went to the tutorial centre to attend tutorial lessons after school. It was A’s evidence that, on 5 July 2005, the respondent spanked her palm 100 times with an 18-inch-long wooden ruler because she had failed to hand in her homework. Feeling pain, she refused to stretch out her palm again and cringed in a corner. The respondent then hit her on the upper arm and face with the ruler. On the following day, as she still failed to hand in her homework, the respondent again spanked her palm 100 times and other parts of her body including hands, legs and cheeks with a ruler. She cried on both occasions because the respondent assaulted her with great force. Her schoolmates noticed numerous injury marks on her body and informed the school of the matter. The school then contacted her mother and called the police.

3.On 6 July 2005, A was medically examined at the Eastern Hospital. The medical report prepared by the hospital stated that there were 20 bruises on A’s body which spread over her two palms, arms, shoulders, thighs and face. The doctor’s evidence was that the injury marks found on A were consistent with her having been assaulted with a wooden ruler.

4.The respondent pleaded not guilty to the charges and elected to give evidence. She admitted having hit A on the palm but could not remember how many times. However, she denied having hit A on other parts of her body. She claimed that every time after spanking A’s palm, she would without fail explain to A the reason for doing so.

5.The magistrate accepted A’s evidence and convicted the respondent.

No teacher shall administer corporal punishment to a pupil

6.We are aware of the pressure that teachers face in their work: some pupils may be lazy in their studies, and some may display undesirable behaviour. Teachers are obviously keen to help their pupils return to the right track. However, each and every teacher is required to be fully aware of and abide by the legal principle that no teacher shall administer corporal punishment to a pupil.

7.First, regulation 58 of the Education Regulations, Cap. 279 of the Laws of Hong Kong, stipulates that ‘No teacher shall administer corporal punishment to a pupil’. Any teacher who contravenes this provision may be liable to a fine of $50,000 and imprisonment for one year. Being a tutor at a tutorial centre, the respondent was not entitled to administer corporal punishment to a pupil on account of his/her failure to follow instructions that she gave in class. She was aware of the said regulation. Nor could she administer corporal punishment to pupils by reason of their undesirable behaviour, because she was merely their elder and not their parent. This principle is plain, obvious and beyond dispute.

The respondent’s acts were wrong

8.Even if the respondent’s motive in administering corporal punishment to A was a desire to help A get rid of her bad habit of not handing in homework, the approach that she adopted was wrong. By any standard, the punishment of “spanking the palm 200 times” that the respondent administered to a child merely aged 9 was of a severity that went far beyond what was generally acceptable.

The magistrate’s judgment

9.In refusing to review the sentence, the magistrate had taken the following factors into consideration:

(1) The relationship between a teacher and a pupil was not a special    relationship that warranted an enhancement of sentence;

(2) There was no evidence to show that the administering of corporal punishment to pupils by teachers in Hong Kong was so prevalent as to require the court to pass a deterrent sentence; and

(3) Harsh as it was, the corporal punishment that the respondent administered to A was not so severe as to justify an immediate custodial sentence against the respondent.

Judgment of this Court

10.In our view, the magistrate erred in principle when he imposed a fine on the respondent. As far as the offence of wounding is concerned, a fine is only applicable to very minor cases of wounding. Even if a teacher and a pupil did not stood in a special relationship and the administering of corporal punishment by a teacher to a pupil was not prevalent, it did not mean that in the circumstances of the present case the court was not required to adopt a more rigorous sentencing approach.

11.As noted above, it is unacceptable for anyone to punish a 9-year-old child by spanking her palm 200 times with a wooden ruler. Worse still, when the child, because of pain, tried to avoid being further assaulted, the respondent hit other parts of her body with the wooden ruler with a view to subduing her before inflicting further corporal punishment on her. Such conduct simply went beyond minor wounding. The court is under a duty to protect children who are underage and unable to protect themselves, and such duty must be reflected through sentence.

12.At trial, the respondent submitted 48 letters to the court in mitigation, six of which came from her pupils. The letters all commended her for being a dutiful teacher from whom many parents and pupils had benefited. This notwithstanding, the court must in the end determine an appropriate sentence on the basis of the facts of the case. In the present case, a fine of $2,000 is in our view too lenient.

13.We have considered whether a community service order would be appropriate for the respondent. Generally speaking, a community service order only applies to a defendant who admitted the offence and was deeply remorseful for the wrongdoing. The respondent did not meet these conditions. She denied the charges at trial. She is now 38 years of age and married. Her husband suffers from serious illness and cannot work, and she has to provide for her two teenage children. As she is the breadwinner of the family, she may be unable to serve or unwilling to accept any community service order that may be made.

14.In our judgment, the appropriate sentence in the present case is imprisonment for 3 months. However, taking into account that the respondent had hitherto been of good behaviour and that she might have been emotionally charged when she behaved in the way she did at the material time, we suspend the sentence for one year.

Conclusion

15.We allow the applicant’s application for review of sentence. We set aside the original sentence against the respondent and impose in its place a sentence of 3 months’ imprisonment, suspended for one year.

Mr. David Leung, Senior Government Counsel, for the Applicant.

Mr. Bernard Chung, assigned by the Director of Legal Aid, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.