R. v. CHUNG Chi-wai

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MAGISTRACY APPEAL NO. 629 of 1994

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J U D G M E N T

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Penlington, J.A. :

1. This is an appeal against conviction and sentence on a charge of unlawful sexual intercourse with a girl under the age of 16 years.

2. The Crown's case was that the applicant had sexual intercourse with a girl, Chan Hiu-ying, who at the time of the alleged offence was 14 years and 9 months, in a car park in the basement of City Garden in April 1993.

3. The background of the matter shows that the charge arose because this girl had run away from home on two occasions, in July and again in August of 1993. When she was away from home in August her father received very unpleasant telephone calls from two people, one of whom was the appellant, and, as a result of those phone calls, he and another boy were charged with six offences of criminal intimidation. The prosecutor however, having taken legal advice, and did not go ahead with those charges on condition that the appellant agreed to be bound over. He did so agree in the sum of $3,000 for 2 years.

4. However it was a result of that incident the girl was questioned by police-officers regarding her relationship with the appellant. On the first occasion she made a statement in which she denied that she had had intercourse with him. However on a subsequent occasion some two days later she said she did. When asked by the Magistrate as to the reason for that she said she made the admission after repeated questioning.

5. As Mr. Osmond Lam, who appears for the appellant here, and has argued the case for him with a considerable ability, pointed out the Crown relied entirely on the credibility of the girl, there being no corroborating evidence. She was under the age of 15 at the time. She gave evidence about events which occurred some 8 months previously and clearly her evidence should have been looked at with the very greatest care. While there was no corroboration of the evidence in the legal sense, the girl did say that she had told a friend, Miss Tsang Ching-han, who was tendered by the prosecution, that she had had intercourse with the appellant although that statement was made a considerable time after the event.

6. In dealing with that aspect of the evidence, the Magistrate said that Miss Chan's evidence could only be prayed in aid to assess the credibility of PW1 on the issue of her virginity. That possibly was not strictly correct that I am quite satisfied she did consider the evidence of Tsang Ching-han who said that while Chan Hiu-ying did not tell her who she had intercourse with she had told her that she was no longer a virgin.

7. Mr. Lam has pointed out various matters in the evidence which he contended were unsatisfactory and which should have been resolved by the Magistrate. The main point however was the fact that the girl did not tell the police on the first occasion that she had intercourse with the appellant. It was only one the second occasion some two days later that she did so, clearly after some pressure had been put on her.

8. It is submitted that taking all the evidence as a whole the girl's evidence was not so satisfactory as would justify the Magistrate coming to the conclusion that she was satisfied beyond reasonable doubt that Chan Hiu-ying had been told the truth. The applicant did not himself give evidence.

9. The Magistrate had set out in considerable detail and in a meticulous manner the evidence was before her. She has clearly fully considered that evidence in coming to the conclusion that she did. This was essentially a question of credibility. The Magistrate has also given herself the fullest warning as to the danger of convicting on a sexual case on the uncorroborating evidence of the victim. She has also considered the principles laid down in the cases of Berrada and Vye concerning credibility and propensity and having considered the evidence that was before the Magistrate and the reasons that she has given, I do not find the conviction to be unsafe or unsatisfactory. The appeal against conviction is accordingly dismissed.

10. There is also an appeal against sentence of detention in a Detention Centre, the Magistrate having called for Detention Centre report and Probation report. The Probation Officer did not recommend probation and considered that the applicant required a disciplinary sentence. Taking into account however the fact that both the appellant and the girl were very young at the time, that there was no question that the act was not fully with her consent and no complaint was made until some eight months after the event, I consider that this was not a case calling for a custodial sentence. The applicant was in custody for some 5 weeks prior to the Detention Centre Order being made which must have had a deterrent effect. The application for leave to appeal against sentence is allowed and the appellant is to be discharged.