TSE KWONG MAN v. THE QUEEN

Criminal law - indecent assault - application to adduce further evidence on appeal - where new evidence admitted the appellate test to be applied to the consideration of the trial and new evidence where the ground of appeal is that the conviction is unsafe and unsatisfactory - Held: 1. Under all the circumstances of the case as it stands in the light of the additional evidence the conviction is unsafe and unsatisfactory. 2. Appeal upheld and conviction quashed.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 209 OF 1985

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BETWEEN

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JUDGMENT

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1. On 25th January, 1985 the appellant, after trial, was convicted of having on 17th December 1984 indecently assaulted a female victim contrary to Section 122(1) of the Crimes Ordinance, Cap.200. From that conviction he now appeals.

2. The undisputed evidence was that the appellant was seated on the upper deck of a Kowloon Motor Bus travelling along Route 60M from Tsuen Wan to Tuen Mun. The victim was seated in front of him. The victim's evidence was that she felt unwell while at work earlier on that day and after vomiting and feeling dizzy was granted leave to return home early. The victim had noticed the appellant in the seat behind her when he was reading a newspaper which she observed rested on the handle bar of her seat. During the journey she first felt her shoulder touched but on looking round she saw his hands on the handle bar and presumed that he had merely accidentally touched her. However, she later felt her shoulder touched again and considered that on this second occasion it was not an accident.

3. This second incident, according to the victim, caused her to become more alert and she sat forward but because that position was uncomfortable also leaned against the bus window. Later she felt a hand lightly touch "her left breast. She stated that she only felt but never saw the hand touch her breast. However, after feeling that her breast, had, been touched she saw the appellant's extended hand round the side of the handle bar. In cross-examination she stated that at that stage she only saw the 5 fingers of the appellant's hand was put to her that the appellant's hand could not have gone though the narrow gap between the side of the bus and the vertical bar which when it reached the top of the seat continued across the seat horizontally to form the handle bar. The victim was the sole prosecution witness who gave evidence on the actual assault.

4. The appellant, who was represented, gave evidence. He agreed that he sat in the seat behind the victim and during the early part of the journey read an newspaper. He first denied touching the victim at any stage of the journey and stated that he fell asleep during the latter part of the journey which he also described as "jerking''. When the bus jerked he stated that he from time to time held the handle bar. Later in his evidence he agreed that on ore of those occasions he might possibly have touched the victim but emphatically denied touching her breast.

5. A defence photograph - Exhibit D2 - was produced and the appellant stated that it was impossible for him to have put his hand through the gap indicated by the victim as where she saw his fingers. The appellant indicated that he had tried 3 days after the offence to put his hand through the gap as alleged by the victim but found that was impossible. The appellant stated that he was a single man but proposed marrying at the end of 1985 and pointed to his fiancee who was in Court.

6. The victim, aged 22 years, impressed the learned Magistrate as a sensible person and he found that the fact that she was feeling unwell at the time of the assault had not affected her judgment.  learned Magistrate expressly recorded that he was unimpressed with what he described as the technicalities of the defence. On the evidence the learned Magistrate found that the victim's description of the third occasion, which was the basis of the charge, was a "practical possibility". After warning himself of the danger of convicting in the absence of corroboration he was satisfied that the charge had been established beyond reasonable doubt.

7. The crucial issue was whether the appellant did advance his hand in the manner alleged and touched the breast of the victim. In submitting that on the evidence the conviction was unsafe and unsatisfactory Counsel for the appellant particularised his ground of appeal by asserting that the learned Magistrate erred by failing:

8. Before the appeal hearing, the appellant gave notice of application to adduce further evidence. At the hearing the Crown did not oppose this application. Counsel, for the appellant reminded me of the, principles, relevant to the exercise of the appellate discretion to admit further evidence, As set out in R. v. Lattimore (1975) 62 Cr.App.R. 53. After conside ring the application in, the light of those principles, l ordered that the further evidence be admitted. The further evidence was contained in two affidavits. The affidavit of Mr. Chan Suk Hung exhibited a letter from the Assistant General Manager (Services) of the Kowloon Motor Bus Co. (1933) Ltd. which stated that only one bus type was used on Route 60M on 17th December 1984. The letter also gave various measurements in relation to the distance between the frame of the seats of the bus including the fact that the distance between the near side seat frame to the side of the bus was 20 millimetres.

9. Having admitted this further evidence, the next question was the manner in which an appellate court should treat that evidence in relation to the remaining evidence orally adduced before the trial magistrate, where the ground of appeal is that a conviction is unsafe and unsatisfactory. Fortunately this question was considered at length by the House of Lords in Stafford v. D.P.P. (1974) A.C. 878. The House of Lords did not accept that the test was whether the new evidence might have led the tribunal of fact to return a verdict of not guilty. The proper approach was for the evidence adduced at the trial and the new evidence to be considered together and for the appellate judge to ask himself the question posed by Lord Diplock, at page 906:

"Under all the circumstances of the case as it now stands in the light of the additional evidence, am I myself satisfied that the verdict is safe and satisfactory?"

10. The test is therefore quite clear but appellate difficulties in considering the amalgam of the trial and the new evidence, remain and some of these were adverted to by Viscount Dilhorne at page 894:

"This House suffers the disadvantage that it has not heard or seen any of the witnesses. It can only base its opinion on the shorthand notes of the evidence at the trial, on the conclusions that can properly be drawn from the jury's verdict of guilty, on the depositions taken before Croom-Johnson J. and the shorthand note of the eivdence heard by the Court of Appeal"

11. While those difficulties are mitigated to some extent by the learned Magistrate's Statement of findings they are in this case increased as a result of the fact that at the trial the victim demonstrated in Court her recollection of the appellant's hand movements. The notes of evidence simply record that a demonstration occurred but no description of that demonstration appears in the notes of eivdence or in the statement of findings. I am aware that it is not always possible to record fully the evidential effect of a demonstration in Court. But where the oral evidence is interrupted by a witness physically indicating by gestures or otherwise sizes distances, movements or other concepts, it is very helpful if the trial Magistrate pauses in recording the oral evidence and sets down in adequate detail the effect or meaning of the demonstration.

12. Counsel for the appellant, in a commendably concise and precise submission, stated that the further evidence independently confirmed the appellant's evidence at the trial that it was physically impossible for him to have passed his hand through the gap described by the victim and marked by her on Exhibit D2. Counsel accepted that the victim was no doubt an honest witness but on this occasion was mistaken. I was referred to the undisputed fact that she was unwell at the time as one factor which may have caused her to be honestly mistaken.

13. Counsel for the Crown accepted that it would have been impossible for the appellant to have passed his hand through the gap between the vertical upright of the frame and the side of the bus if the measurements provided by the new evidence were accepted. Those measurements, he pointed out, were only of buses of the same model as the bus oh which the offence occurred. Individual differences could occur in the position of seats betwaen buses of the same model. Crown Counsel further submitted that the victim's evidence that on the third occasion the appellant "extended his hand round the side of the handle bar to touch my breast" was consistent with the hand being passed between the seat and the wall of the bus in a higher position where there would have been adequate space for that movement to have been physically accomplished. I was also reminded that the learned Magistrate had the advantage of a demonstration which may have indicated that the hand was extended in the higher position. However, Counsel accepted that the Statement of Findings does not precisely particularise through which gap the learned Magistrate found the appellant's hand was extended other than a finding that the method the victim alleged was a practical possibility.

14. If the appellant did extend his hand in the higher position then the place indicated by the victim on Exhibit D2 was clearly wrong. The evidence therefore gives rise to considerable difficulties. I am well satisfied that the victim was an honest witness and she clearly impressed the learned Magistrate. On the other hand the learned Magistrate was expressly critical of the tactics employed by the different Counsel who appeared for the appellant in the Court below.

15. The crucial question therefore is whether the victim, although an honest witness, mistaken in her recollection. So far as the evidence is concerned I have the advantage of the new evidence which was not before the learned Magistrate. Of particular significance is that the new evidence not only independently confirms the evidence of the appellant but does so in relation to measurements which the learned Magistrate, on the lesser evidence before him, was skeptical and critical.

16. In reviewing the whole of the evidence - which includes the evidence orally adduced at the trial and the new evidence adduced on appeal - I must apply the test in Stafford v. D.P.P. I therefore ask myself whether under all the circumstances of the case as it now stands, in the light of the additional evidence, am I satisfied that the conviction is safe and satisfactory?

17. After consideration I have reached the conclusion that in those terms which, of course, relate to a very different factual basis to that before the learned Magistrate, the conviction is not safe and satisfactory. Accordingly the appeal is allowed and the conviction quashed. The fine of $1000 and costs of $200, if paid, will require to be refunded to the appellant.