Case Detail

CACC000218/1999

CACC 218/1999

HEADNOTE

The applicant was a domestic helper who was in a flat with two small sisters: a toddler aged 3 years and 9 months and a baby aged 9 months. The baby sustained head injuries and died in hospital four days later. The applicant was charged with the manslaughter of the baby. At the trial, the defence introduced a video-recorded interview of the toddler by a policewoman. The defence relied on this evidence, saying that what the toddler said suggested that the toddler had seen and perhaps even caused an accidental fall in which the baby received her fatal injuries. The applicant was convicted of manslaughter. Her application for leave to appeal against conviction was dismissed.

It was held by the Court of Appeal that:

(1) On the question of whether there was a case to answer, the present case, where the only persons with the baby at the material time were the applicant and a toddler, was distinguishable from cases like R v Gibson (1985) 80 Cr. App. R. 24; R v Lane (1986) 82 Cr. App. R. 5; R v Russell (1987) 85 Cr. App. R. 388; R v Aston (1992) 94 Cr. App. R. 180; and R v Strudwick (1994) 99 Cr. App. R. 326 where there were two adults with the victim at the material time.
(2) There was no deficiency in the prosecution's case even if the applicant's lies were ignored, but in any event her lies were capable of lending support to the prosecution's case, and the jury were given a proper lies direction.
(3) The toddler's evidence given as part of the defence case did not mean that the judge should have directed the jury to acquit.
(4) The prosecution was justified in saying that the toddler's evidence was meaningless, and they were therefore justified in not bothering to cross-examine the toddler. R v Hart (1932) 23 Cr. App. R. 202 considered. Dictum of Lord Morris in Browne v Dunn (1894) 6 R. 67 at p 79 applied.

(5) What the judge said to the jury as to the toddler's evidence was commonsense; did not amount to inviting the jury to speculate; and did not prejudice the defence.

CACC 218/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 218 OF 1999

(ON APPEAL FROM HCCC 236 OF 1998)

_______________

BETWEEN
	HKSAR	Respondent

	AND

	SUNAMI MARWITO	Appellant

________________

Coram: Hon Stuart-Moore VP, Wong JA and V. Bokhary J in Court

Date of Hearing: 2 March 2000

Date of Judgment: 2 March 2000

_______________

J U D G M E N T

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Hon V. Bokhary J:

1. This applicant was charged with one count of manslaughter. She was tried before Stock J and a jury. On 29 March 1999, the jury found her guilty. The judge sentenced her to six years' imprisonment. She now seeks leave to appeal against conviction and sentence. At the moment we are dealing with conviction.

2. The case is a tragic one. Its circumstances were as follows. The applicant is a woman now in her late twenties. Three years ago she was working as a domestic helper. She served a family of four consisting of a couple and their two daughters. The elder daughter was a toddler then aged 3 years and 9 months. The younger daughter was then a baby only 9 months old. It was this baby that the applicant has been convicted of unlawfully killing.

3. In the afternoon of 21 August 1997, the parents were both at work. The two children were at home under the applicant's care in the family flat.

4. At about 4 o'clock that afternoon, the applicant went to a neighbour's flat, carrying the baby in her arms. Something appeared to be amiss with the baby. There was some discussion about contacting the parents. Then the neighbour telephoned for an ambulance. The ambulance soon arrived, and the baby was taken to hospital. There the doctors who examined her suspected that she had suffered severe head injuries. They operated on her. But tragically the baby's life could not be saved. Four days later, on 25 August 1997, she died from her head injuries. These injuries consisted of multiple fractures of the base and back of the skull, severe swelling of the brain, and retinal bleeding.

5. The prosecution's case was that the only reasonable inference in the circumstances was that the applicant had deliberately assaulted the baby causing the injuries which resulted in her death.

6. Stock J gave the jury a clear and accurate direction as to what the jury had to be sure of before they could convict. He told them:

"You may not convict the defendant of manslaughter unless you are sure (1) that the defendant committed an act which caused the baby's death; (2) that the act was intentional; (3) that the act was unlawful; and (4) that the act was one which all sober and reasonable people would realise must subject the victim to the risk of some harm. All four elements must be proved. If there is any one in respect of which you are unsure, the defendant must be acquitted."

7. As to how the prosecution put its case, Stock J summarised it for the jury as follows:-

"What the prosecution say in this case in relation to this charge is that the defendant, perhaps in a fit of temper, perhaps in a foul frame of mind, struck this baby, struck it perhaps against a wall or threw it violently onto the floor, or shook it as well as striking or throwing it, and that that act, or those acts, caused the baby's death."

8. If the baby died of a deliberate assault involving the use of considerable force, the irresistible inference would be that the applicant was the assailant. After all the only person in the flat at the material time apart from the applicant and the baby was the toddler.

9. In support of its case that the head injuries from which the baby died were caused by a deliberate assault involving considerable force, the prosecution relied upon a large body of medical evidence. Stock J dealt very fully with the medical evidence in his summing-up. There is no need for us to recite the medical evidence. It suffices for us to say that such evidence provided adequate support for what the prosecution was saying, which is what Stock J summarised for the jury when he said this:

"To occasion that type of injury, they say, the baby would have had to have been in something like an accident at speed, or fallen from a high distance, or suffered a combination of an impact and shaking. In short, they say, you may be sure from the evidence you have heard - the direct evidence you have heard - that this child suffered what has variously been referred to as "injuries caused by tremendous force, a very violent impact equalling a blow of 30 to 40 miles an hour", or "a fall from at least 10 feet".

10. The applicant gave evidence denying that she ever assaulted the baby. She suggested that the baby must have been injured in an accident for which she was not responsible and did not witness.

11. Before turning to the grounds of appeal, there is one other item of evidence to be mentioned. This is what the toddler said when interviewed by a policewoman on 25 August 1997, the day on which the baby died. This interview was video-recorded. During the interview, the toddler said a number of things. One was that the baby had fallen off Mummy's bed and that Mummy was home when the baby had fallen off Mummy's bed. At first she said that she saw the baby fall. Later when she was asked how she knew that the baby had fallen, she said that she did not know. Much later she said that she did not see the baby fall, and that there was no school for her that day. There were many other things which the toddler said during the interview. No useful purpose would be served by reciting all of them. We will just mention that one of them was her answer to the question how many times had the baby fallen over. She answered that it was over 10 times.

12. The defence said that what the toddler said suggested that the baby had fallen from the bed in the main bedroom on the day she was admitted to hospital. The prosecution, on the other hand, suggested what that toddler said was meaningless.

13. We turn now to the grounds of appeal against conviction. The first of these grounds is that there was no case to answer. It is worded as follows:-

"The learned trial judgeerred in law in that at the close of the case for the prosecution he should have ruled that the appellant had no case to answer on the ground that there was evidence of two persons present who could have inflicted the injuries to the deceased child, namely the appellant and the elder sister of the deceased (then aged 3 years and nine months) and there was no evidence or suggestion of a joint enterprise between them and in such cases the deficiency of evidence cannot be made good by lies told by the defendant."

14. There is no need to discuss at length those lies or what they could or could not have done to make up for any deficiency if there had been any deficiency. This is because there was no deficiency. As it happens, however, it is in fact admitted that the applicant had told four different versions of the event to the police. The last three versions, she admitted, were lies. Such lies were capable of lending support to the prosecution's case, and the jury were given a proper lies direction.

15. We have already said that if the baby died of a deliberate assault involving the use of considerable force, the irresistible inference would be that the applicant was the assailant. This is a case in which the only person other than the applicant who was in the flat with the baby at the material time was a toddler aged only 3 years and 9 months. The present case is therefore wholly distinguishable from cases like R v Gibson (1985) 80 Cr. App. R. 24; R v Lane (1986) 82 Cr. App. R. 5; R v Russell (1987) 85 Cr. App. R. 388; R v Aston (1992) 94 Cr. App. R. 180; and R v Strudwick (1994) 99 Cr. App. R. 326 where two adults were with the child victim at the material time.

16. The medical evidence in the present case fully entitled a reasonable jury to feel sure that the injuries of which the baby died had been deliberately inflicted with considerable force.

17. One of the medical witnesses accepted that if the baby had been standing on the bed and had been pushed violently off the bed by the toddler, then it would have been possible for the baby to have sustained in that way injuries such as the injuries she died of. Very properly Stock J reminded the jury of that piece of evidence. But he added, and we are satisfied that he was entitled to add, this:

"Well, members of the jury, the defence ask you to say, as a result of that evidence, that the doctors do not exclude this possibility. The prosecution ask you to examine the reality of what the experts are saying and they would suggest to you that what the experts are saying is this, heaven knows but nothing in this world is impossible, nothing is impossible in scientific or medical terms but in effect they are saying, "We don't believe that this happened in this case, it is a non-starter."

18. In our view, the first ground of appeal against conviction fails. There was a case to answer.

19. In the alternative to the first ground of appeal against conviction, the second ground of appeal against conviction is that at the conclusion of all the evidence, the judge should have directed an acquittal. The second ground of appeal against conviction is worded as follows:

"The learned trial judgeerred in law in that at the conclusion of all the evidence, including that of the appellant and the elder sister of the deceased, the learned trial judge should have directed the jury to acquit the appellant on the charge of manslaughter on the ground that the evidence was that two persons were present who could have inflicted the injuries on the deceased child, namely the appellant and the elder sister of the deceased (then aged 3 years and nine months) and there was no evidence or suggestion of a joint enterprise between them and in such cases the deficiency of evidence cannot be made good by lies told by the appellant."

20. In our view, this ground also fails. The applicant's evidence was evidence which the jury were entitled to disbelieve if they saw fit. As for the toddler's evidence, by which we mean what she said in her video-recorded interview, we are satisfied that the jury were entitled to treat it as meaningless if they saw fit. This will become clearer when we deal with the third ground of appeal against conviction, which is a complaint against how Stock J dealt with what the toddler said.

21. The third ground of appeal against conviction reads as follows:-

"The learned trial judgeerred in law or alternatively there was a material irregularity in his summing up to the jury in that the learned trial judge invited the jury to speculate about the reasons for the evidence of the elder sister of the deceased given by way of video interview recorded on 25 August 1997 a few days after the deceased was admitted to hospital (see Transcript page 9 P-T, page 10 A-L, page 20 F-T, page 21 A-J, page 54 Q-T, page 55 A-T and page 56 A-E). The elder sister was not called by the prosecution for cross-examination. Had the matters suggested by the learned trial judge been put to the witness either by the prosecutor or the learned judge she would have had the opportunity of dealing with these points and that would, it is submitted, have rendered admissible the statement made by the elder sister to her grandmother at the house of a neighbour NG So-chun immediately after the incident whilst the appellant, the mother of the deceased and the deceased were on the way to the hospital, in order to rebut the suggestion made by the judge that, for example, she heard the version about falling from the bed first from her parents."

22. Stock J said this to the jury about what the toddler had said:-

"Now, you have her evidence. It is for you to assess its worth. Was it accurate? What was she saying? Was she relating incidents she had seen, or was she relating accounts which she may have been given, by a parent, for example? Was she relating something she had seen? If she was relating something she had seen, was it an incident on 21 August, or was it an incident on some other day? Is her evidence reliable? Was she imagining events, as children sometimes do?"

23. As to whether the toddler was relating accounts which she may have been given by a parent for example, we see this as a commonsense point which a jury could consider in circumstances such as these. It is likewise a commonsense point that children do sometimes imagine things. And as to whether the toddler was talking about something she had seen on some other day, that was a legitimate question. For one thing, it appears that the toddler had gone to school on the morning of 21 August 1997, but at one stage the toddler appeared to be saying that there had been no school for her on the day on which the baby fell. For another thing, the toddler had said at one stage that Mummy was home when the baby had fallen off Mummy's bed. They jury were certainly entitled to ask themselves if the toddler was relating an incident on 21 August or whether she was relating an incident on some other day.

24. We are satisfied that Stock J did not invite the jury to speculate.

25. The final point to be mentioned in connection with the toddler's evidence is the applicant's point that the prosecution did not seek to cross-examine the toddler to challenge her evidence. Reference has been made to Browne & Dunn (1894) 6 R. 67 and R v Hart (1932) 23 Cr. App. R. 202. The opening paragraph of the headnote in R v Hart reads:

"If, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness called for the defence, counsel for the prosecution ought to cross-examine that witness or, at any rate, to make it plain, while the witness is in the box, that his evidence is not accepted."

That is obviously correct, but its application in the present case is another matter. As for Browne & Dunn, what it decided on the question of putting things to witnesses whose evidence is disputed is summarised in this paragraph in the headnote:

"If in the course of a case it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross-examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless it is otherwise perfectly clear that he had had full notice beforehand that there is an intention to impeach the credibility of his story, or (per Lord MORRIS) the story is of an incredible and romancing character."

26. It is relevant to note the point made by Lord Morris at page 79 in Browne v Dunn where he said this:

"But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box."

27. In the present case, there was no question of the prosecution making any allegation against the toddler. In fact, it was the defence which was suggesting that the toddler might be responsible for the baby's death. So there was no duty on the prosecution to put anything to the toddler out of fairness to her. As far as fairness to the defence is concerned, it was clear to the defence all along that the prosecution was contending that the toddler's evidence was meaningless. That is the sort of situation akin to Lord Morris's example of evidence of a romancing character. The prosecution did not have to cross-examine the toddler. The introduction of evidence of what the toddler said to her grandmother could not have taken the matter further since anything which the toddler could say was inherently of no weight. This was after all a child under the age of 4 at the time of the incident, and it was plain from the interview that what she was saying was so confused that nothing could rescue it from confusion. The prosecution's failure to cross-examine the toddler did not prejudice the defence.

28. The third ground of appeal also fails, and the application for leave to appeal against conviction is dismissed.

29. The application relating to sentence was dismissed when Counsel indicated that this would not be pursued.

(M Stuart-Moore)	(Michael Wong)	(V. Bokhary)
Vice-President	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr P S Chapman, SADPP and Mr Ned Lai of the Department of Justice, for the respondent

Mr W N C Stirling, instructed by the Legal Aid Department, for the appellant

HKSAR v. SUNAMI MARWITO

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