HKSAR v. CHAN KWOK CHUE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1096 OF 1997

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on a charge of Indecent Assault.

2. The prosecution scenario was an MTR incident where a woman passenger was indecently assaulted while on the train. She herself did not witness the assault, but two plain clothes officers had followed the Appellant onto the train and one of those officers gave evidence about the indecent assault.

3. The grounds of appeal against the conviction were first that there was a material irregularity at trial in that at the stage of final submissions the Magistrate wrongly told the defence counsel that he need not address on anything referred to by the prosecutor, except for one minor point relating to the victim's estimation of the length of time that the Appellant had pressed against her.

4. The second ground was the Magistrate wrongly failed to consider, or sufficiently consider, the many material discrepancies that arose from the evidence given by the two prosecution witnesses, the woman and the police officer. It was submitted that the Magistrate erred in accepting the uncorroborated evidence of the victim, especially when there were material discrepancies in evidence between that of the first and second witnesses, the woman and the police officer. A further ground was that the learned Magistrate erred in finding the Appellant was not an honest witness and therefore rejecting his evidence. The conviction was said to be unsafe and unsatisfactory.

5. The Magistrate, after a lengthy trial, gave a detailed Statement of Findings. Clearly she understood the salient points in the evidence, what discrepancies needed to be addressed, how she needed to direct herself, etc.

6. From a careful reading of the transcript the only ground of appeal that has any merit was the first ground. The real problem arose in this case because the prosecutor was both inept and apparently inexperienced and had no real idea or understanding of the case he was trying to present.

7. When he addressed the court in final submission, his submissions were so poor that the Magistrate spent a great deal of time reducing his submissions to the nonsense that they were. At the end of the Prosecutor's submissions, Mr. Grossman who appeared at trial for the Appellant said: "Your Worship has debated with my learned friend a number of the issues which will make it .. which will mean I can make it much shorter." (p.79)

8. The court then said: "I think the only thing I need you to address me on in this skeleton submission ..." Mr. Grossman: "Yes." Court: "Is the ... near the end where he says that because the bumping lasts for 10 seconds on the first occasion and 20 seconds on the last occasion, shows that it is not accidental. The rest of it I don't need any assistance from you." Mr. Grossman: "Yes, thank you." Court: "And of course, anything else that you would like to address me."

9. It was this exchange that lead to later difficulty. Clearly Mr. Grossman took from that exchange that he need not concern himself with any but the one point referred to by the Magistrate. He, not unnaturally, took it that the court was giving him an indication as to her thinking. However, when the Magistrate gave her Reasons for Verdict and convicted, she did refer to those matters, or some of the matters, that had been raised by the prosecutor and which Mr. Grossman had not, at the Magistrate's behest, addressed her on.

10. After the announcement of the conviction, Mr. Grossman said: "I would be grateful, Your Worship, if you would record that you did not - you asked me not to address you on matters raised by my learned friend." There were further exchanges and Mr. Grossman then said: "Your Worship, what I haven't dealt with at all - it's too late now, but I would be grateful if you would record it was the story - the defendant's story about being on the station. I did not deal with that at all. Why he walked up" (p.85)

11. Further exchanges revealed to the Magistrate that she and defence counsel had been at cross purposes in respect of his final address. Mr. Grossman at p.86 said: "I didn't deal with them at all. Because you asked me not to do that and I didn't do so. I mentioned one or two extra points that were outside it. But the defendant has been denied the opportunity of having his case presented."

12. The Magistrate stated: "Well, even if he was able to give an explanation, really I found .. I made a finding on his credibility because .. mostly because of his demeanour. I did look at him on a number of occasions. His eyes were very shifty, I must tell you. Every single time he noticed that I was looking at him ..." (p.86)

13. Mr. Grossman then addressed the main problem: "Your Worship, the fact remains that you asked me .. you told me it was not necessary to make a full address and, therefore, I did not. And, your Worship, for whatever worth it was, has been deprived of my submissions. The defendant has been deprived of the ability of having his case put to you."

14. The Magistrate then stated: "Well, I will give you an opportunity to do that. I will review myself, if necessary. I'll give you an opportunity to address me then."

15. Mr. Grossman stated that he would like to address from the beginning dealing with all the matters and the court granted his request. Then in the transcript pages 87-97 consisted of Mr. Grossman's address and comments on the evidence and the court's arguments and statements relating to that evidence and to points in Mr. Grossman's submissions.

16. Their discussion appeared to range over almost all the evidence. The submission finally finished at p.97 of the record. The Magistrate adjourned for 40 minutes, returned and stated: "I agreed to review myself in this case because the defence stated that they have not been given an opportunity to defence all these matters." She then went through the points raised by counsel, gave her views on the evidence and convicted the Appellant as charged.

17. The Magistrate made a sensible decision to review herself when she realised a misunderstanding had arisen and although in the ordinary course of events, that would have been sufficient to cure any possible injustice to Appellant the Magistrate had stated her views on the Appellant's credibility very clearly before Mr. Grossman addressed her, finally, on behalf of his client. She reiterated some of those views on Appellant's credibility during the review.

18. I was referred to the case of Lai Chuk Ting and others v. R., HKLR [1978] 402 when a similar difficulty arose in a trial where a judge apparently reached a conclusion before final submission by counsel. It was held:

"There were two conflicting principles, firstly that an Appeal Court should not readily assume that a judge would make his mind up before hearing counsel and secondly, that justice must manifestly be seen to be done. In that case as it was possible that the 1st Appellant and his counsel would be justified in being aggrieved and in believing that proper weight had not been given to the final address made on the 1st Appellant's behalf, the appeal must be allowed. Even an affidavit from the judge could not cure the appearance of what was done."

Huggins, J.A. at p.403 stated:

"We have come to the conclusion that the other principle outweighs that, and that principle is that justice must manifestly be seen to be done, and it is possible that the Defendant and his counsel would be aggrieved and believe that the learned judge may not have given proper weight to the address that was made to him."

19. This case appears to be a similar, stronger example of such a situation. It seems that Mr. Grossman was led to believe that the Magistrate was with him on all but one point and that he need not address on any of the points raised by the prosecutor, but could address on points outside those the prosecutor had dealt with.

20. The Magistrate tried to cure that misunderstanding by reviewing herself. Unfortunately her comments, and, in particular, her assessment of the Appellant's credibility give the impression, or would lead to an informed bystander to believe that she may have irrevocably made up her mind about Appellant's guilt prior to hearing counsel's final submission on the review. Because of the importance that justice be seen to be done and because in these circumstances Appellant may believe and be aggrieved that proper weight was not given to his defence, this conviction cannot be regarded as safe.

21. There is another point of complaint by Appellant that requires comment. The learned Magistrate did not necessarily err in finding the Appellant was not an honest witness and rejecting his evidence. It does appear though that she made comments which could be taken to indicate she was assessing Appellant's credibility based mainly on his physical appearance, behaviour and body language.

22. Appellant was a middle aged man who was appearing in court on a serious and embarrassing charge. He may well have displayed by his demeanour that he was nervous, or frightened, or uncertain of what was happening. However, it was not for the Magistrate to decide his credibility by looking into his eyes and deciding that because his eyes moved away from hers, that he was not worthy of belief.

23. It may be that the Magistrate failed to express herself adequately in this regard. Nevertheless Magistrates and judges should be alert to the dangers inherent in relying on demeanour as a major aid in assessing credibility.

24. They should have in mind the case of R. v. Ng Wing-ming [1994] 2 HKC 464 which states as its first holding:

"Demeanour was a notoriously uncertain guide to the truth for obvious reasons. A witness came into court as a total stranger to the judge who could hardly be expected to read from his or her facial expressions, or bodily language indications as to truthfulness or otherwise. The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort."

25. For these reasons, I do not consider the conviction is a safe one and the appeal against convictions is allowed on ground 1. I do not consider that grounds 2 and 3 were substantiated.

26. I have considered whether or not a re-trial is appropriate but in the light of the Magistrate's comments on the evidence of the second prosecution witness I do not consider a re-trial is viable.