HKSAR v. SOONG ROONG SHENG

HCMA457/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.457 OF 2000

(On Appeal From ESCC 2432 of 1999)

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J U D G M E N T

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1. The applicant was charged with five counts of Indecent Assaults, contrary to section 122(1) of the Crimes Ordinance, Cap.200, Laws of Hong Kong. The applicant pleaded not guilty to the charges and was convicted after trial. He was sentenced to a term of 12 months' imprisonment. He appealed against both the convictions and sentence. However, at the appeal hearing, counsel for the applicant informed the court that the appeal on sentence would be abandoned. The application was granted and the appeal on sentence was therefore dismissed.

2. The applicant relied on the following grounds to appeal against the convictions :

In respect of Charges 1 to 4 :-

1. The learned magistrate in drawing the inference that the examinations were a pretext and/or the appellant had held an indecent intention erred in failing to direct himself sufficiently or at all that:

(a) those were not the only reasonable inferences capable of being drawn from his finding that the appellant had not followed the recognized procedures during the examinations because another reasonable inference was that the appellant was simply incompetent (by Hong Kong standard);

(b) to properly draw those inferences, it was necessary at the very least, to make the following findings, namely that :

(i) none of the examinations were necessary;

(ii) the appellant had done acts which went beyond what PW1 had consented to and at all material times knew that he had so exceeded such consent;

(iii) at all material times the appellant had known that what he was doing was not proper medical examination; and

(iv)the record of the examinations, the medicines prescribed, the sending of specimen for laboratory reports and the request for DW2's presence were bogus in that they were for the purpose of providing an excuse against PW1's complaints.

In respect of Charge 3 :-

2. The learned magistrate erred in wrongly directing himself that the appellant's belief that PW1 had consented to the touching of her breast had to be "reasonable".

In respect of All Charges

3. The learned magistrate erred in failing to consider or sufficiently consider the effects of, inter alia, the following, namely that:

(a) it was because PW1 had told the appellant of her various symptoms (frequent urination, excessive vaginal discharge, itchiness and acne) which led to the various examinations;

(b) it was not until 3 August that PW1 (who was experienced in gynaecological examinations) had made a "complaint" to her mother about the appellant's allegedly "improper" acts during the three examinations;

(c) it was not clear what "pick" meant in respect of the three vaginal examinations;

(d) medication was prescribed on 25 July for urinary track infection and acne, and on 28 July for vaginitis; and

(e) the swab taken on 1 August was sent for laboratory examination and results obtained.

3. Having considered the submission, the Statement of Findings and the transcripts, I had dismissed the appeal. Concerning the first ground of what inference the learned magistrate was entitled to draw, I had made the following finding :-

"The learned Magistrate had seen and heard all the witnesses. He finally decided to reject the evidence of the appellant and his witnesses. He accepted the evidence of the prosecution witnesses, particularly the expert opinion of Professor Lao. On the basis of such findings, it would seem to be an inevitable conclusion that the medical examinations conducted by the appellant were indeed just a pretext and not genuine medical examinations.

The appellant was qualified as a medical practitioner in Beijing, he had received further training in London, the United Kingdoms, and then he came to Hong Kong to start his private practice in 1983 when he joined Anderson & Partners. Against such a background, and without the issue of incompetence raised specifically as a defence, I was not convinced that the learned Magistrate had to consider this matter. In the circumstances, I did not consider that the learned Magistrate had made an unjustified inference of guilt against the appellant."

4. It was in relation to these observations that the applicant argued that leave should be granted for points of law to be taken to the Court of Final Appeal.

5. In the Application for Certification, leading counsel for the applicant, Mr C.Y. Wong, had helpfully formulated the following :-

"WHEREAS the Magistrate had found the Applicant guilty of the first four charges without considering the possibility that he may have been incompetent rather than indecent

WHEREAS the Court of First Instance (in its appellate jurisdiction) has confirmed the convictions on the first four charges on the basis, inter alia, that since the issue of incompetence was not raised at the instant trial the Magistrate did not have to consider the issue of incompetence

The points of law of general and public importance for the Court of Final Appeal to answer are:

(i) Whether or not a trial Magistrate was duty bound to consider and determine a point of law or an issue of fact which was not raised during the trial but was an essential issue to be determined in order that a conviction may be safe and satisfactory; and

(ii) Whether or not an Appellate court, in upholding a conviction as being safe and satisfactory, was duty bound to consider and determine an essential point of law or issue of fact where such issue was neither raised during trial nor considered by the trial Magistrate in coming to his decision to convict, but raised only on appeal."

6. At the hearing, Mr Wong reminded the court that the application was made pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap.434. The issue to be decided by this court would be whether there was a point of law of general and public importance for the Court of Final Appeal to answer.

7. The issue of incompetence was never really raised at the trial. This was conceded by Mr Wong although he pointed out that defence counsel, at the final submission stage, did say, inter alia, that :

"Sir, in a recent case that I did before Gareth Lugar-Mawson J, examining into the conduct of a company director, the prosecution wanted to call an experienced accountant qua liquidator to give evidence as to how a company should properly be run. His Lordship rejected that, he ruled that out, saying, 'Yes, of course these are experts, he's a leading expert, but what he expresses must surely be counsel of perfection.'

And that was why, sir, when I was on my feet earlier this morning, I made a point that even within that very noble profession there is room for latitude. An extreme example, the one given by our expert, was 'In wartime what do you do with limited facilities? I suppose in Verona (?) the standard must be a lot different.' But I'm not trying to make a flippant point, sir. The point - the mere fact the ungloved hand was used in taking the swab on the case of the defence itself is not indicative of indecency. It's a drop in the standard - it may be a drop in the standard." (Emphasis added) (page 70, Transcript)

8. However, I was unable to agree that such a submission actually introduced the issue of incompetence so that the learned magistrate must rule that out before making the inference.

9. In any case, Mr Wong invited this court to consider that the significance of the proposed questions of law was not limited to this particular case. He said that they were important matters which had a general implication, and it would be helpful if the Court of Final Appeal could be invited to clarify the position, as there were no direct authorities on the point.

10. The respondent opposed the application. Mr Cheung for the respondent argued that whether a person was incompetent was purely a matter of fact, not law. As the issue was not raised at the trial, the learned magistrate was not obliged to consider it as there would be no evidential basis for that. Mr Cheung pointed out that the ambit of the two points of law proposed by the applicant was too wide. They did not really arise from the circumstances of the present case or my judgment. The issue here was a narrow one : whether the magistrate, or the judge who heard the appeal, was obliged to consider incompetence if it was not raised at the trial. According to Mr Cheung, the answer would be clearly in the negative as this was a question of fact. The situation would be different for matters of law. He submitted that issues of law would need to be considered by the trial magistrate and the judge hearing the appeal, whether they were raised or not by the parties. He believed that these matters were quite well-settled.

11. In support of his contention, Mr Cheung cited the authority of R v. Chan Yiu Chee, HCMA No.650 of 1992. The facts of this case did not really concern us. Mr Cheung relied on a passage in the judgment in which Kaplan J (as he then was) judged that :

"... It is quite wrong for a Defendant to fight the case in the magistrates' court on one factual basis and then seek on appeal to complain that another aspect of the case was not gone into which was quite irrelevant in the context of their original defence. The appeal against conviction is dismissed."

12. In support of the point that the proposed questions did not arise from the judgment and so they should not be allowed to go before the Court of Final Appeal, Mr Cheung cited the authority of HKSAR v. Liem Hung and 8 Others, HCMA554/1999. Woo J (as he then was) stated in his judgment that :

"Section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap.484 provides:

'(1) No appeal shall be admitted unless leave to appeal has been granted by the Court.

(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done. ...'

The appellants only apply to me to certify that 'a point of law of great and general importance is involved in the decision'. The 'decision' here means 'any final decision' contained in my judgment, as is borne out clearly by section 31 of the Ordinance. As the question raised is based on a matter that had not been raised before me or covered by my judgment, and is not a point of law involved in my decision, I did not allow it to be argued. This disposes of question 1." (Emphasis added) (Page 3 of the Judgment)

13. Disagreeing with the respondent, Mr Wong referred this court to the case of Ng Siu Chau v. HKSAR, FACC No.2 of 1999. He argued that there were many instances where points not taken in the court below could be taken on appeal. The relevant parts in the judgment were as follows :

"At trial the Judge found that the appellant did offer advantages to the apprentices for the purposes stated and these findings were not challenged in this Court. The sole question argued before us was whether the apprentices were employees of the Club.

The question was unfortunately not raised at trial. ..." (Emphasis added)

14. Mr Wong submitted that the question of competence was a mixed question of fact and law, similar to the question of whether a person was an employee. He further drew an analogy between an employee and the issue of identification. He postulated that while the identification of a person was a question of fact, how he had been identified would be a matter of law. He reiterated that here, in order to find that the applicant had indecently assaulted the victim, the magistrate must first be able to eliminate incompetence as a possibility, and this would involve a question of law.

15. With respect to Mr Wong's able arguments, I found I was unable to agree. In the context of the case of Ng Siu Chau, whether the appellant was an employee appeared to be an element of the charge, concerning which the trial magistrate must give a finding. In any event, the question of whether a person is an employee is a mixed question of law and fact. The learned author in Chitty on Contract (Vol.2, 28th edn) had this to say :

"The legal interpretation of the facts. The particular words found in the contract between the parties are not conclusive, since the law is only concerned with the nature or substance of the relation which the contract has created. Once the relevant facts ... have been ascertained, the determination whether it is a contract of employment or not is a question of placing the correct legal interpretation upon those facts. 'Once the primary facts are found, then it is a pure question of law as to what is the reasonable inference based on the legal interpretation of the contract.' But the answer to the question involves issues of fact and of degree which it is for the tribunal of first instance to determine." (Emphasis added)

16. In my view, the issue of whether the applicant, as a doctor, is incompetent is not in the same category as whether a person is an employee and is not an element of the charge. This factual matter was not raised at the trial and I could not agree that this "possibility" must be considered and eliminated before the magistrate could make the necessary inference of indecency. If it was necessary to eliminate incompetence, one may suggest that there could be many other possibilities that needed to be eliminated also.

17. At the end, I tend to agree with the respondent that the scope of the two questions was too wide and did not really arise from the case or my judgment. In any case, I found I was not persuaded that the condition for granting the certificate was satisfied. I had therefore dismissed the application.