R. v. LAM KWAI SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.779 OF 1996

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J U D G M E N T

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1. The appellant was convicted on 24th May 1996 of one charge of indecent assault and sentenced to 6 week's imprisonment.

2. The facts were simple. The first prosecution witness was a girl of 16 years of age who testified that the appellant had committed an act of indecent assault upon her at his premises. Later, she went with him to eat at a noodle shop and there met the second prosecution witness who was her former boyfriend. The second prosecution witness was the person to whom the young girl made her complaint. He gave evidence of that complaint and his evidence, as with the evidence of the young girl, was accepted by the learned magistrate.

3. The magistrate gave lengthy reasons at the conclusion of the "trial for his conviction of the appellant and in the course of those carefully considered and detailed particulars, he said in respect of the second prosecution witness these words "PW2 corroborates in large measure PW1".

4. When the magistrate dealt with his reasons for conviction upon appeal, he set out carefully and properly the law concerning corroboration and warned himself that the evidence of PW2 could not be corroboration of PW1's account. Having done so he went on to say in respect of PW2's evidence "It did help me on whether I could be sure she was telling the truth". At the highest, the magistrate has taken the evidence of PW2 as corroboration of that of PW1 in both his findings. At the very lowest, he has taken it into his oral findings at the conclusion of the case as corroboration but in his reasons for conviction, as no more than evidence to make him sure of the consistency of her account.

5. Where such an ambiguity occurs in a case upon which the freedom of an individual is concerned, then I must be very careful that no injustice is done. Mr Wong for the Crown urges me to construe the word "corroborates" in the oral findings of the magistrate to mean no more than a finding of consistency in the evidence of PW2 with that of PW1, and therefore a matter which assists him in being sure of the guilt of the appellant.

6. I cannot construe a word used in a technical sense by a magistrate in his findings upon a matter where it is desirable to look for corroboration as bearing anything but its full and technical meaning. An ambiguity has arisen in the two sets of findings. It is upon a matter which is material to the conviction and the conviction cannot stand. The appeal against conviction is allowed and the sentence is set aside.