HKSAR v. SO CHI KIN

[English Translation – 英譯本]

HCMA 489/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 489 OF 2007

(ON APPEAL FROM KTCC NO. 7697 OF 2006)

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial on one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, and was sentenced to detention in a rehabilitation centre. He now appeals against both conviction and sentence.

The Prosecution’s Case

2. The prosecution’s case as set out in the skeleton argument of Ms Teresa Kam, Government Counsel, is as follows:

2.         The prosecution called two witnesses in the case. PW1, the victim, was a girl aged 13½ and was a Form 2 student. She and the appellant studied at the same secondary school but in different classes. They came to know each other after the academic year commenced in September 2006.

3.         PW1 testified that after school on the day in question, i.e. 17 October 2006, she was standing by herself in the covered playground at school. She saw the appellant and a male schoolmate surnamed Chung whom she knew, approaching her from some 12 feet away. When the two came near her, PW1 heard one of them suddenly say, ‘You left I right!’ PW1 sensed that they might do something to her and so she crossed her arms in front of her chest. At this moment the appellant and Chung had come up to either side of her. Chung reached out his hand towards PW1’s body but did not come into contact with her. PW1 immediately turned her body to the other side to avoid. At this moment the appellant asked Chung, ‘You squeezed?’ Chung answered, ‘Yes.’ Then the appellant stretched out his hand and squeezed PW1 on her chest once. (…) PW1 was very angry and scolded the appellant. She saw the appellant wearing a smile on his face. PW1 left at once but did not tell anyone about the incident. During the English lesson on the following morning, she recalled the incident and then buried her head on the desk and cried. Upon inquiry by the English teacher (PW2), PW1 told PW2 about the incident. The school management reported the matter to the police.

The Defence Case

3. The defence case as set out in the skeleton argument of Mr Jackson Poon, Counsel for the appellant, is as follows:

The defendant elected to give evidence but called no witness. The defendant said that after school on the day in question, he met the male schoolmate Chung at the playground by prior arrangement. They saw PW1 while they were chatting. At that time Chung indicated that he would go up to tease PW1 and said to the defendant ‘you left I right’. The defendant said he did not understand what Chung meant, but he simply followed Chung as he considered it unnecessary to ask further.

The defendant said that he did not join in the conversation between Chung and PW1. Nor had he ever made any body contact with PW1. He just watched people playing ballgames in the playground when he was about one metre from the two of them. He said it was because he disliked PW1 very much and had no interest in her. About two minutes later, when Chung and PW1 had finished their conversation, Chung went to the defendant and patted him once. The defendant then saw PW1 leaving.

Grounds of Appeal against Conviction

4. Mr. Poon has raised 6 grounds of appeal. The first ground is:

The magistrate failed to properly consider whether PW1 (a child witness) knew the importance of telling the truth.

Mr. Poon submitted that:

The magistrate asked PW1 whether she knew the importance of telling the truth, but all the questions were leading questions and he asked and answered the questions himself. He had already assumed that PW1 knew the importance of telling the truth when he asked her the questions. This approach was improper.

5. I agree with the following observation made by the Court of Appeal in a case cited by Mr Poon, R. v. Lam Chi Keung [1997] HKLRD 421:

Even when a child is not required to be sworn or is unsworn when giving evidence, it is necessary for a judge to bring home to such a witness the importance of telling the truth.

Having explained to PW1 the importance of telling the truth, the magistrate merely asked her for confirmation and did not ask her some open questions in order to test whether she understood what he said. It is true that this approach was not flawless. However, the magistrate pointed out in the Statement of Findings that he had carefully considered the fact that PW1 was just a girl of 13½ years of age and also the possibility of this case being the result of a fantasy of a mentally immature girl. Having duly considered whether PW1 understood the importance of telling the truth, the magistrate was sure that she was telling the truth. In the absence of other evidence to show that the testimony of the witness was unreliable, it is difficult for me to upset the magistrate’s finding on the credibility of the witness.

6. For the above reasons, this ground of appeal must fail.

7. The second ground of appeal is:

The magistrate had prematurely accepted PW1’s testimony.

I agree with what was said in another case cited by Mr Poon, R. v. Lai Chuk-ting [1977-1979] HKC 230, that:

The judge had written his judgment before hearing submissions and it gave the impression that the judge had not given proper consideration to the address of counsel. Justice is not manifestly seen to be done.

However, having read the transcript of the court recording, I agree with the submission of Ms Kam, Counsel for the respondent that:

At 69D of the transcript, the magistrate meant to remind the defence counsel that the reiteration by PW2 of what PW1 said would not lead the magistrate to find PW1’s evidence particularly credible since PW2’s evidence was only recent complaint. Unlike what the appellant alleges, the magistrate had not already formed the view that what PW1 said was particularly credible when PW2 was being cross-examined. The appellant has misunderstood what the magistrate meant.

8. The magistrate had not formed any view on the credibility of the witness before receiving the defence evidence or hearing the defence submissions. This ground of appeal must also fail.

9. The third ground of appeal is:

The magistrate erroneously relied on the conversation between PW1 and PW2 in considering the credibility of PW1.

Mr Poon contended that, on the authority of R. v. G [2005] CA NICA 9, such evidence could only be used to explain how the case came to light and why the complainant had delayed complaining to the police but it could not be used to enhance the credibility of the complainant.

10. However, I agree with Ms Kam, Counsel for the respondent that:

To rely on a single statement in R v G to explain the legal definition of recent complaint is to take the statement out of context. The convictions in that case were quashed because the trial judge had failed to give appropriate directions to the jury. See paragraph 24 of the judgment. The legal definition of recent complaint was again explained by the Court of Final Appeal in the recent case of Leung Chi Keung v HKSAR [2004] 7 HKCFAR 526:

But such evidence of recent complaint is admissible not as evidence of the facts complained of but only as evidence of the consistency of the complainant’s conduct with his or her testimony. In short, such evidence is only relevant to the creditability of the complaint and would serve to buttress it. See White v The Queen [1999] 1 AC 210 at 215F-H. Archbold HK (2004) paragraph 8-102 to 103. (at 537H-J)

11. I agree with the above submission, which means that this ground of appeal must also fail.

12. As regards grounds of appeal 4 to 6, they are essentially complaints against the magistrate’s findings of fact in respect of his acceptance of the evidence of the prosecution witnesses and rejection of the evidence of the appellant.

13. The magistrate, who received the evidence of the witnesses at trial, had the opportunity to observe the witnesses in the witness box, whereas the appellate court did not have an opportunity to hear and see the witnesses. Only in exceptional circumstances or where there is a lurking doubt about the guilt of the appellant will the appellate court upset the magistrate’s findings of fact.

14. In the present case, I do not see sufficient reasons for disturbing the magistrate’s findings of fact. Grounds of appeal 4 to 6 are accordingly dismissed.

15. For the above reasons, I dismiss the appeal against conviction.

Appeal against Sentence

16. As regards sentence, I have taken the following into account:

(1) The appellant is a student aged 17. He is a first offender and had a clear record prior to the present offence.

(2) The appellant has to continue his studies and would be deprived of the opportunity to receive schooling if he was sent to a rehabilitation centre.

(3) The school at which the appellant has been studying has agreed to give him a chance to resume his studies at the school.

(4) The appellant had a clear record prior to the present offence. Although he will be able to receive training on discipline at a rehabilitation centre, he may also get to know other offenders at the centre who may exert a negative influence on him.

(5) The appellant has been remanded in custody for 14 days. In AG v. Ng Sai Man [1994] 1 HKCLR 151, which involved a very serious offence of indecent assault on board the MTR, the defendant was sentenced to 28 days’ imprisonment. By comparison, 14 days’ imprisonment is a very sufficient punishment for the appellant in the present case.

(6) The appellant’s parents are supportive of him and have promised to supervise him.

17. I have considered the submissions from both parties. I was informed at the hearing that, subsequent to trial of the present offence, the appellant was ordered to perform 120 hours of community service by Magistrate Yip in another case of wounding (KTCC 2241/2007).

18. I have also read the probation officer’s report, which states that there has been some improvement in the appellant’s conduct since the said wounding case.

19. In light of the totality principle, it would in my view be unsatisfactory if the rehabilitation centre order and the subsequent community service order were to be executed separately. Upon further consideration of the circumstances of the present case, the appellant’s young age, his background and indications that he is turning over a new leaf, I decide to give him a chance.

20. I allow the appeal against sentence, set aside the rehabilitation centre order and impose in its place a 60-hour community service order. Together with the 120 hours imposed in KTCC 2241/2007, the appellant is required to perform a total of 180 hours of community service.