HKSAR v. SIT CHI LUEN

HCMA 306/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 306 OF 2001

(ON APPEAL FROM ESCC 4515/2000)

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J U D G M E N T

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1. On 6 February 2001 the appellant appeared before C Mackintosh Esquire, magistrate, and pleaded not guilty to three charges of indecent assault committed on separate occasions in September 2000 and on 5 October 2000. The particulars revealed that the alleged victim was the same person on each occasion and the offences were allegedly committed at the same address being residential premises in North Point.

2. At the trial PW1 was the named victim, an Indonesian female aged 21 years, who came to Hong Kong in August 1999 to work here as a domestic helper. She became employed by the appellant's wife to serve her family which in those days comprised the appellant, his wife and their two daughters. PW1 lived in.

3. In April 2000 the appellant and his wife separated. The appellant and the two girls and PW1 moved to the North Point flat where the offences were allegedly committed.

4. Generally speaking, the sleeping arrangements were that PW1 slept in the same bedroom with the girls, they on the bed and she on the floor. The appellant occupied the master bedroom but sometimes chose the living-room sofa. A tenant called Tsui occupied the third bedroom.

5. PW1 described three incidents. The first was in September. She was sharing a bed with the two girls. One of them complained that it was too hot. The appellant told PW1 to sleep in the main bedroom. She did so but then the appellant came and lay alongside her. She tried to leave but he grabbed her round the waist and pulled her back onto the bed. He told her to sit on his lap. She refused. She left the bedroom and returned to her's, locking the door.

6. The second incident was about a week later. PW1 was asleep with the girls but this time on the floor by their bed. She woke to find the appellant lying beside her, touching her body and thigh. She tried to push him off and shouted. The elder daughter, aged about 8, woke. The appellant left and PW1 locked the door after him.

7. Following these two incidents PW1 made no complaint because she said they were not serious, at least not as serious as the third incident which was to follow. And further, she thought she would not be believed and because she thought she might have to leave Hong Kong.

8. The third incident took place on 5 October. That afternoon she delivered the two girls to their mother's flat and, as instructed, returned to the appellant's flat. They were that night the only occupants. She prepared for bed and locked herself in the room she normally shared with the girls. The appellant was watching television and drinking beer but then demanded to be let into the room to fetch something. At first she refused to open the door but he was persistent and eventually she let him in. He attacked her immediately pushing her back onto the bed, his hands on her upper body. He grabbed her breasts and touched her legs and he squeezed both breasts, the left with the greater force. She screamed, struggled free and ran from the flat. She went to the agency which had employed her and where there was accommodation. She took a shower and noticed bruising on her breasts, particularly on the left one.

9. PW2 was the agent in charge of the premises who came the next morning. PW1 complained to him. He found her distressed. She told him the appellant had indecently assaulted her and in doing so had bruised her breasts. PW2 took her to the appellant's flat where they confronted the appellant. He was then asleep but was woken by their arrival. He became angry and told them to call the police. The police were called and in due course arrived. PW1 was taken to hospital and examined. A medical report produced by consent revealed purplish bruising over both breasts with mild tenderness over the left one.

10. At the close of the prosecution case the magistrate amended the first two charges to attempted indecent assault.

11. The appellant elected to give evidence. He said PW1's account was an invention motivated by his decision to dismiss her. The bruising was self-inflicted. She made up her story in order to be allowed to stay in Hong Kong and look for other employment. He said notwithstanding that there was a usual minimum wage recorded in her contract she was in fact paid only $2,000 per month, less if she took time off. The appellant's wife also gave evidence that PW1 was being deliberately underpaid.

12. Other relevant evidence was adduced by the 8-year-old, whose account differed in some respects from that of PW1 concerning the first two incidents in September.

13. The magistrate said that the primary issue was whether, applying the criminal burden of proof, he could be satisfied that PW1 was truthful. The appellant had a hitherto clear record and he gave him the full benefit for that. He said he found the underpaying of PW1, if true, deeply unattractive, but took care not to be prejudiced in deciding where in this unrelated issue the truth lay. He reminded himself of the appropriate ingredients for the offences of indecent assault and attempted indecent assault. He told himself to consider each charge independently with the others. He said and I quote from his reasons for verdict:

" I am sure that the defendant, in fact, carried out the acts alleged by PW1, the events on the two dates in September amount to attempted indecent assault and the events on 4 and 5 October amounted to the full offence of indecent assault. Of course the charges must be considered separately from each other.

The corroboration warning is no longer required in sexual cases, just because they are sexual cases, and there is nothing else about this matter which would make it appropriate to give such a warning. However, it is the case that some evidence which is capable of supporting PW1's account of the first incident is available in the form of the agreed medical evidence of injury to the breasts."

14. The magistrate embarked on what can only be described as a careful analysis of the evidence as adduced and the manner in which it was given by PW1, the appellant and the appellant's wife and daughter. He found himself satisfied that PW1 had given a truthful and accurate account. Where his account differed he rejected that of the appellant; in particular he found his denials of the conduct described by PW1 which gave rise to the charges were not the truth. He found he could not rely on the wife whose account of underpaying PW1 he found to be made up to bolster the appellant's account that PW1 was motivated to lie. He found the 8-year-old daughter's evidence to be equivocal and of little help. He considered inconsistencies in the prosecution's case which he found did not undermine his impression of PW1's credibility.

15. On the defence case PW1 had inflicted the injuries to her breasts or had got someone else to do so he said and I quote:

"I also considered whether there is any possibility of PW1 inflicting the injuries to her breasts herself, or that she had got somebody else at the agency to do it for her. Having seen her and heard her, I am in no doubt whatsoever that such possibility does not exist. I am therefore sure that the existence of those injuries is consistent with her account and supports her."

16. He proceeded to find the appellant guilty of all three counts. Thereafter the magistrate called for a background report and after that sentenced the appellant to six months on each charge to be served concurrently.

17. The appellant before me appeals conviction. The perfected grounds are as follows:

(1) The learned magistrate erred in stating that there was "nothing else about this matter which would make it appropriate to give such a corroboration warning".

(2) The learned magistrate erred in treating the medical evidence as, in effect, a corroboration of PW1's evidence.

(3) The learned magistrate in his evaluation of the defence evidence failed to take into account the undisputed evidence that the appellant, when confronted with the allegation, demanded that the police be called.

(4) On the above grounds, and/or generally, the appellant's conviction is unsafe and/or unsatisfactory.

18. Mr McGowan for the appellant appeared to support them.

19. The first two grounds derive from the paragraph I have quoted verbatim from the magistrate's reasons for verdict. Mr McGowan submitted that whilst there is no longer the obligatory corroboration warning for trials of this sort there is a need for any tribunal of fact to take particular care in such cases. I agree entirely. But I find nothing in this point because the magistrate exercised exemplary care before deciding where the truth lay. The magistrate's stating:

"..... there is nothing else about this matter which would make it appropriate to give such a warning....."

was simply to state the law and to go further and say there was nothing particular about the circumstances of this case apart from it being a sexual one which warranted a corroboration warning. Ground 1 fails.

20. As to ground 2; it is right that medical evidence cannot of itself be corroborative evidence unless in some material way it implicates the accused. Had the magistrate found that the medical certificate corroborated PW1's evidence of assault by the appellant he would have been in error. But he did not. In the second of the two paragraphs I have taken from the magistrate's reasons he said that the medical evidence of injuries to the breasts was consistent evidence and supported her account of what happened. That is not a finding of corroboration. Ground 2 fails.

21. I come to ground 3, which stems from the magistrate not in his reasons making specific reference to the appellant demanding that the police be called when he was confronted. But I see nothing in this point. I do not see how this amounts one way or the other to establishing whether the appellant was guilty or not. The response was just as likely to be a tactical ploy as to be consistent with innocence. And the magistrate was not obliged to refer to every piece of evidence adduced. Suffice to say that he gave earnest consideration to the evidence as a whole before determining he was satisfied that what PW1 told him was the truth. Ground 3 fails; which leads to ground 4.

22. There was nothing in this case or the magistrate's approach to it rendering the appellant's conviction unsafe or unsatisfactory. Ground 4 fails.

23. In the consequences the appeal against conviction fails and is dismissed.