HKSAR v. LAU KIT YU

HCMA1176/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1176 OF 1997

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J U D G M E N T

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1. The Defendant was convicted of three counts of indecent assault on the 5th December 1997 by Mr Brennan sitting at Eastern Magistrates Court.

2. Two of the charges relate to incidents late in 1996 and the third charge is alleged to have taken place in March 1997.

3. All three charges involved the same victim, then a 12 year old girl, who was and is the daughter of the Defendant. I shall refer to her as the girl.

4. The details of the different charges perhaps matter not a great deal. In brief, on the Prosecution's case, the first incident occurred while the girl was doing her homework and the Defendant touched her thigh and then her private parts. She protested and he eventually desisted.

5. The second occasion was when she was in bed, when the Defendant fondled her thighs. She protested and I think kicked him and refused his suggestion to accompany him to morning tea.

6. The third occasion occurred in the evening when the girl and the Defendant were watching television while sitting on a sofa when the Defendant again fondled her thighs, this time through her trousers.

7. In relation to the second occasion, the girl told her younger sister, a 10 year old, afterwards and asked her to approach when next she saw the Defendant with her. We are not concerned so much with this occasion.

8. It is really in relation to the first occasion that is particularly material for the purposes of this appeal. The Prosecution's case in the magistrate's court was that the girl told a school friend about the Defendant's molestations, but not the details. Her own evidence was that she told her friend the day after the incident and this would be some time in 1996. The school friend, however, put the dates of complaints to her on two occasions in or about April and May 1997.

9. In what I consider to be a careful judgment, the learned magistrate considered the ingredients of the offences, the Defendant's previous good character and the evidence. The Defendant did not give evidence, but no adverse inference was drawn against him for not having done so. The learned magistrate also considered the possible defences put on the Defendant's behalf in cross-examination and refused to find that the conversations between the girl and either her sister or her school friend were in sufficient proximity with the events she was relating to constitute a recent complaint as a matter of law.

10. The whole burden of Mr Fenton's attractive argument for the Defendant is to the effect that while the learned magistrate was correct in finding that there was no recent complaint, the learned magistrate failed adequately to take into account the evidence of the girl's friend to test the girl's credibility generally since there were these discrepancies, as to when the conversations took place and on how many occasions these conversations took place.

11. Mr Fenton, who has said everything that could possibly be said on behalf of the Defendant, emphasised that in a case of this nature, which depended entirely on the credibility of the girl, such an omission is fatal to the conviction. Mr Fenton cited from the well known passage of Lord Hailsham of St. Marylebone L.C. who was then the Lord Chancellor, in the R v Kilbourne, [1973] AC 729, at p. 746-7 and the judgment of Leong, J (as he then was) in the unreported decision of the R v Cheung Chi Shing, MA 1401/96, dated the 12th March 1997 as to the importance of resolving discrepancies in the evidence. Leong, J. had referred to R v Ng Yau Chuen MA 770/94 and adopted a passage from the judgment of Wong, J where the learned judge had said:

"where there are vital and obvious discrepancies between the evidence of several witnesses, these discrepancies must be resolved in a rational and convincing manner. The Magistrate did not seem to have addressed his mind to the real problem. All the witnesses could not be right at the same time."

I would emphasis the words "vital and obvious discrepancies".

12. I disagree with Mr Fenton's criticisms of the learned magistrate's approach. In my judgment, the learned magistrate considered the matter of credibility with care. Corroboration of the girl's evidence is no longer required by law, but the learned magistrate fully warned himself of the various dangers. The girl was cross-examined by the Defendant's then legal representative at some length. The learned magistrate was convinced that she was telling the truth. He was perfectly entitled to. The discrepancies over the dates of the complaint are hardly significant when the offences happened a fair while ago and the girl was, after all, only 12 years old at the material time.

13. It is hardly surprising to me that a girl of tender years, undergoing the traumatic and unfortunate experience of having to relate these unpleasant matters in court some months after they occurred, may not be completely accurate in her detailed recollection in every particular. But the learned magistrate found her to be frank and truthful and he is the tribunal of fact.

14. There was thus no doubt, on the learned magistrate's findings that the girl was consciously trying to tell the truth. The learned magistrate was satisfied that she was and I find no grounds for interfering with the conviction.

15. The appeal against conviction is therefore dismissed.