HKSAR v. POON SIU WAI MARTIN

HCMA 1012/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1012 OF 2001

(ON APPEAL FROM ESCC 1154/2001)

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J U D G M E N T

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1. On 30 July 2001 the appellant was convicted after trial at Eastern Magistrates Court of an offence of indecent assault on a 14 year old boy and he was sentenced to a term of 5 months imprisonment. He appeals against his conviction.

2. In his statement of findings the learned Magistrate helpfully recites the case which he was called upon to determine in the following way:

"Put shortly it was the prosecution case that the appellant, a serving police constable, had come into contact with [the boy] when he attended a family dispute at [the boy's] family home. The appellant had then made contact with [the boy] and outings were suggested for jogging and similar activities. It was alleged that .... the appellant took [the boy] to his home and encouraged him to stay overnight and that during the night the appellant spent some hours indecently handling [the boy] in the bed they both shared.

Put shortly it was the defence case that while there had been an association between the two of the sort .... described by [the boy], and [the boy] had stayed overnight in the same bed as the appellant, there had been no indecent handling and that part of his evidence was a fabrication.

The prosecution called 3 witnesses. PW1 was the alleged victim, ..... PW2 aged 13 years, was a school friend of PW1 to whom PW1 was said to have made "recent complaint". PW3 was ..... a Social Worker. PW3 had been involved with PW1 and his family and had also been involved in PW1 and the appellant meeting after the appellant's initial attendance at PW1's family home on duty. PW3 also gave evidence of "recent complaint".

The appellant gave evidence acknowledging his association with PW1 but denying there had been any indecency between them when they spent the night together in the same bed at the appellant's home.

In the result I disbelieved the evidence of the appellant. I did believe the evidence of PWs1, 2 and 3. I convicted the appellant and sentenced him to 5 months imprisonment."

3. The Magistrate then proceeded to set out in outline the evidence presented to him on behalf of the prosecution before turning to do the same in relation to the defence. He did so in considerable and helpful detail and it serves no useful purpose to repeat here what he said regarding the nature of the evidence save that, if he accepted the prosecution evidence, it was distasteful.

4. The appellant's evidence was, to put it shortly, a denial of the specific activities complained of by the boy. As the Magistrate put it:

"The appellant said his interest in the boy was out of sympathy and concern - and that was why he had offered the boy money and items of clothing."

5. The Magistrate also said this, in his statement of findings:

"Under cross examination when it was put to the appellant his action in having a boy he had met only twice to come to his home to sleep was "inconvenient", the appellant agreed it was 'not so convenient' but his wife had already said she wouldn't be coming home and if [the boy] hadn't been allowed to stay he would have 'wandered in the streets'. He agreed it was 'uncomfortable to sleep with a non-lover so close'.

The appellant agreed sleeping with another adult male would be 'repulsive' but added 'what I had in mind was he just a kid, if an adult I not do it' ......

Upon the appellant insisting [that the boy] had several times asked if he could stay at the appellant's home, the appellant was referred to the answer he gave [in] his cautioned statement wherein it appears the appellant then said that the boy staying at his home was the appellant's idea. In response to this the appellant agreed it had been him who first suggested [that the boy] stay at his home overnight."

and

"When the appellant insisted he had told his wife about [the boy] staying at the home overnight, he was referred to ..... his interview transcript wherein he twice said his wife did not know. As to this, the appellant said he had been 'questioned all of a sudden and he had not thought of the details."

6. The appellant's wife gave evidence at trial on his behalf. In referring to that evidence the learned Magistrate, inter alia, said this:

[She] said she had gone to her parent's home to sleep after finishing duty at 6:30 a.m. on 11th February. She said she rang the appellant after 1:30 p.m. that day to ask him if he would come to her parent's home for dinner. He had then told her of the appointment he had with [the boy]. [She] said she and the appellant had spoken by 'phone several times later that day. She said in the course of one such call the appellant had told her the boy refused to go home and he wanted to stay at the flat with the appellant. [She] said she had then said as she was not returning home that night 'why not let him stay the night. He is a small child, don't let him wander around.'

Under cross examination [she] said she learned of the appellant's arrest on the day it took place, 15th February. She agreed it would have assisted the appellant if she had then given her account. She said she had been asked for a statement by the investigating officers and she had indicated she would do so but because of her working hours the first opportunity she had to do so happened to be the day the appellant was to answer his police bail and by that time she had been advised by lawyers not to give such a statement so she had then refused. This had been some days after the appellant's arrest."

7. In his assessment of the evidence before him the learned Magistrate said (inter alia) this as regards the appellant:

"The appellant was a poor witness. His evidence was inherently improbable in my view. I paid close attention to him as he gave evidence and throughout the course of the trial generally. As a witness he was at times unduly emotional, he was plainly very ill at ease under cross examination particularly when his evidence was contradicted by the account he had earlier given in interview. There were several clear such instances, when he took on a demeanour of near desperation. I am well aware of the danger in relying on assessments of demeanour alone when assessing credibility. From the inherent improbability of his version of the events and my conclusion as to his demeanour as a witness I had no doubt he was not to be believed. I did not believe him."

And this (inter alia) as regards the evidence of the appellant's wife:

" I also found DW2 to have been an unimpressive witness whose claims as to knowledge of PW1's presence at her home overnight on 11th and 12th February I simply did not believe. I was very sure she was prepared to say whatever she thought would aid her hushand's difficult situation. In any event, even if I had believed her evidence it would have been of very little assistance to the appellant and did not tell against the evidence of [the boy] in any material way."

And this as regards the prosecution evidence:

"I found [the boy] to be an impressive witness. Although plainly embarrassed and uncomfortable about the intimate aspects of his evidence he responded thoughtfully when questioned and gave a clear, cogent and compelling account. I had no doubt he was an honest and reliable witness doing his best to assist the court with an accurate account of this incident. I believed him.

I also took PWs 2 and 3 to have been honest and reliable witnesses whom I believed. However their evidence was of matters incidental and [the boy's] evidence stood alone."

8. The grounds of appeal in this case settled by Mr Coghlan for the appellant were commendably short and to the point. They were these:

"The learned magistrate made the following errors of law:

Ground 1 : The learned magistrate commented on the appellant's wife's failure to give a statement to the police. It is submitted that the wife is an incompetent witness for the prosecution and has a "right to silence" comparable to that of the appellant.

and

Ground 2 : The learned magistrate relied on his assessment of the appellant's demeanour to an excessive extent."

9. In the course of his argument in respect of his first ground of appeal Mr Coghlan referred me to Bruce and McCoy's 'Criminal Evidence in Hong Kong' Chapter IX 255-352.

10. Mr Cheung for the Respondent replied to that ground of appeal in this way:

"1. A spouse is incompetent to give evidence for the prosecution under the common law. A spouse is competent but incompellable to give evidence for the defence under s. 54 of the Criminal Procedure Ordinance, Chapter 221.

2. The learned magistrate did not comment on D.W. 2's failure to give a statement to the police. [In his statement of findings] the learned magistrate was only summarizing the evidence of D.W.2.

3. The learned magistrate said, 'In any event, even if I had believed her evidence it would have been of very little assistance to the appellant and did not tell against the evidence of [the boy] in any material way.' This is because D.W. 2 was not present when the alleged offence took place.

4. D.W. 2 was not a defendant. A witness has no right to silence. Even if the learned magistrate had commented on her failure to give a statement to the police, it would not have been an irregularity. It is submitted that the right to silence does not extend to a spouse."

11. I respectfully agree with Mr Cheung adding only this, that section 57(1) of Cap. 221 provides that:

"The wife .... of a person charged with an offence under any enactment in schedule 2 [which includes an offence of indecent assault] may be called as a witness either for the prosecution or defence and without the consent of the person charged."

and section 57(2) provides that:

"Nothing in section 54 shall affect a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person."

12. With the greatest respect to Mr Coghlan whilst his argument in relation to his first ground of appeal had some initial attraction in the event I find it to be without substance. The learned Magistrate was, in my view, perfectly and reasonably entitled to say what he did say (and in an entirely appropriate context) concerning the appellant's wife's failure or disinclination to tell the police what she subsequently saw fit to tell the Magistrate in her evidence. The matter was wholly relevant to a consideration of the truthfulness or reliability of her evidence.

13. I turn then to Mr Coghlan's second ground of appeal. As to that - this a field which has been ploughed many times over the years. It was referred to by Patrick Chan J (as he then was) in Mak Chun Ka and the Queen (MA 1362 of 1994) when he made mention of the judgment of Litton LJ (as he then was) in R v Ng Wing Ming Cr. App No. 280 of 1994 and of the judgment of O'Connor J in R v Lo Shu Chuen [1991] 1 HKLR 36 (at pages 38 and 29).

14. Stock J (as he then was) returned to this theme in his judgment in the Queen v Lee Fuk Keung (MA 381 of 1994).

15. All in all, the question of 'demeanour of witnesses' has been adverted to frequently and the dangers of placing too great a reliance upon such are well known and I cite here an extract from a paper delivered by MacKenna J in 1973 at University College Dublin upon which Mr Coghlan places much reliance:

"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.

This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour."

16. Whilst MacKenna J was referring to his role in civil proceedings his comments are equally apposite to criminal proceedings.

17. In response to this ground of appeal Mr Cheung has argued that what the learned Magistrate in fact said was this:

"His evidence was inherently improbable in my view .... I am well aware of the danger in relying on assessments of demeanour alone when assessing credibility. From the inherent improbability of his version of the events and my conclusion as to his demeanour as a witness I had no doubt he was not to be believed. I did not believe him."

And Mr Cheung says that clearly the learned Magistrate did not rely on his assessment of the appellant's demeanour either solely or to an excessive extent: that he was well aware of the law.

18. Again I respectfully agree with Mr Cheung when he says that that is quite plain from the learned Magistrate's statement of findings.

19. It must follow from all that I have said that this appeal must be dismissed and the appellant must be returned to custody where he will serve his sentence.