HKSAR v. WU LAP YAN

HCMA1236/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1236 OF 2004

(ON APPEAL FROM ESCC 1894 OF 2004)

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J U D G M E N T

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Background

1. The appellant was convicted on 9 September 2004 by Ms Bina Chainrai sitting at Eastern Magistrates’ Court of two charges of indecent assault.  The offences were alleged to have been committed on 21 November 2003 at the music centre where the complainant was receiving music lessons from the appellant.  On the date of the commission of the offences, the complainant was about 10 years old.  She told her mother about the incident on the day following the commission of the offences.

2. Four days later, on 26 November 2003, she was interviewed by a social worker for about one hour on video.  In that first interview, there was a total of 1,051 questions and answers.  The complainant was next interviewed on video by the same social worker four months after the first interview and the next interview lasted about 17 minutes and comprised 320 questions and answers.  With the leave of the court, these two video tapes were played at the trial and constituted the complainant’s evidence-in-chief.  When the complainant gave evidence at the trial, she was 11 years old.

Facts of the case

3. The two offences were committed when the complainant and the appellant were alone in the room in the music centre where the complainant was receiving violin lessons from the appellant.  At the time the complainant was dressed in her school uniform which was a dress.  The appellant sat next to her at her left on the piano bench and there was some distance between them.  He inserted his hand under her dress and touched her at the part where her underpants were, in the vicinity of her private parts.  The complainant then got up from the piano bench and went and stood on the side by the wall.  This was the first charge. 

4. She sat down again after a short while, and took out a sheet of music and started to play the violin.  Again, the appellant inserted his hand underneath her dress, in the vicinity of her private parts, and squeezed her private parts, as he had done on the first occasion, two or three times.  She dodged his hand and stood up, taking a book out of her school bag and talked to him about the book, telling him it was a good book, and started to read it.  This was the second charge of indecent assault.

5. When the complainant was cross-examined, it was suggested to her that she had made up the whole incident because she did not wish to learn the violin and did not wish to take the music exams.  She disagreed and said that she herself was interested to learn the violin and she had told her mother of her interest and the violin lessons began.  She denied that she was forced by her mother to learn how to play.

6. The learned magistrate was satisfied that the complainant was telling the truth and she said that she accepted the complainant’s evidence in its entirety.  The magistrate said that the complainant gave her evidence in a direct and straightforward manner, answering questions put to her in a sensible way.  The magistrate said the complainant displayed a maturity beyond her years and struck the magistrate to be a candid witness.  The magistrate thought that the complainant was not prone to exaggeration. 

7. The magistrate did not accept the defence submission that the complainant was unhappy with her violin lessons and made up her allegations against the appellant.  The magistrate was satisfied that the complainant did enjoy her violin lessons until this incident, as a result of which the complainant gave up her violin lessons.

8. The magistrate said that she had assessed the appellant’s evidence and observed his demeanour and found that he did not strike her to be a witness of the truth.  She said she did not believe him that he had not indecently assaulted the complainant and she did not believe his testimony.  She rejected his evidence. 

9. The magistrate then convicted the appellant of both charges.

Grounds of appeal

10. The first ground of appeal was that the magistrate was in error in that she had failed to resolve obvious material inconsistencies inherent in the evidence of the complainant (  PW1) over :

(a)	whether the appellant gave PW1 chocolates at the beginning of the lesson prior to the indecent assaults or he gave them to her at the end of the lesson after the indecent assaults; and
(b)	whether the appellant gave PW1 any money at all on the day of the indecent assault.

11. It was submitted by counsel that in the first video interview PW1 consistently said that the appellant gave her the chocolates at the beginning of the lesson.  That appeared to be what she did say during the first video interview.  It was submitted that in her second interview, some four months after the event, the complainant consistently said that the appellant gave her the chocolates after the indecent assaults.  This comment by counsel was based on the following questions and answers during the second interview :

“	134.	Q :	Buying Mcflurry, uh, well, that day.  That is, er, what else happened that day, that is, that day y-you people played violin?
	135.	A :	Er, after it was over, then h-he gave money to me and then (I) left.
	136.	Q :	He gave money to you.
	137.	A :	Yes.
	138.	Q :	Uh, for buying food to eat, wasn’t it?  Well, any other things?
	139.	A :	No.  He also gave, gave me some Ferrero Rocher to eat.
	….
	174.	Q :	Well, er, I remember that you previously mentioned, uh, you mentioned just now, I do not know if has been made clear, uh, you, you, you, that is, if I am wrong, you should tell me.  Okay?  Well, you said, that is, Mr. WU touched your thigh slowly.  Is that correct?
	175.	A :	Yes.
	176.	Q :	(He) touched your parts down there.  Is that correct?
	177.	A :	Mm.
	178.	Q :	Well, afterwards, (he) gave you Ferrero Rocher to eat, ….
	179.	A :	Yes.
	…..
	188.	Q:	It was on the same day.  Right, that is, that happened on the same day.  After touching (you), he gave money to you.
	189.	A :	Yes.
	190.	Q :	And, and then a F-Ferrero Rocher was given to you to eat.
	191.	A :	Yes.”

12. In my view, it is not correct to say that in her second video interview the complainant consistently said that the appellant gave her the chocolates after the indecent assaults.  When the complainant said at Answer 139 that the appellant also gave her some Ferrero Rocher to eat, she did not specify at which stage this was done.  At Question 178, it was the interviewer who misled the complainant when she put it to the complainant : “Well, afterwards, (he) gave you Ferrero Rocher to eat”, and at Answer 179 the complainant very quickly said “Yes”.  At Question 190 it was the same mistake by the interviewer.  After the complainant had agreed that after touching her the appellant gave her money, the interviewer then said “And, and then a F-Ferrero Rocher was given to you to eat”, to which, again, the complainant very quickly answered “Yes”.

13. The complainant was clearly still confused when she was asked these questions by the prosecutor in court :

“	Q:	Were the Ferrero Rocher given to you to eat immediately you entered the room or afterwards?
	A:	Afterwards.”

(without the complainant’s saying “after what”.)  Then in another question the prosecutor asked the complainant :

“

Q:

When the Ferrero Rocher was given to you, this was just before you left.?”

The complainant agreed. 

“

Q:

And it was given at the same time as the $4?”

The complainant again agreed.

14. When the complainant was cross-examined, she apparently reverted back to the first version that she gave to the police in the first interview : she was asked if she put all four pieces of Ferrero Rocher into her school bag to which she said “yes”.  She was then asked if they then commenced their violin lesson, and she said “yes”. 

15. Apart from the above questions and answers in cross-examination, there was no cross-examination of the complainant about the alleged change in her evidence as regards when she received the chocolates and why in the first video interview she had said it was before the indecent assaults and in her second interview she had said it was after the indecent assaults.  If this alleged discrepancy was so clear-cut at the trial, I have no doubt that the defence counsel would have cross-examined the complainant about this at some length. 

16. In the defence counsel’s final address which runs into five pages of typed A4 script, he only referred to this apparent discrepancy fleetingly.  His emphasis in his final address was his submission that details about how much money was given to the complainant and when the chocolates were given were not as important as the main issue which was whether or not the complainant had been indecently assaulted. 

17. In view of everything I have said about this first ground of appeal, it is hardly surprising that the magistrate did not in her Reasons for Verdict advert to this alleged discrepancy and try to deal with it.

18. The second matter that counsel relied upon in his first ground was not an inconsistency.  It was simply that PW1 did not mention in her first interview that any money was given to her and it was only in her second interview that she mentioned it.  In her first video interview, the complainant did not mention this at all.  Why she did not mention it was a matter of speculation but there were many reasons why this could have occurred, one of which was that she had forgotten to mention it in her first interview.  In the second interview, it was in fact the interviewer who first mentioned the question of money when she asked the complainant :

“What happened that day and then why did the teacher give you $4 to buy food?”

to which the complainant simply said “Yes”.

19. In my view, therefore, there is nothing in Ground 1 which affects the safety of the conviction.

20. The second ground of appeal relied upon by counsel was this :

“	The learned magistrate failed to consider material aspects of Pw1’s evidence that was relevant to her credibility in a way favourable to the Appellant:
	(a)	that either Pw1 lied to her mother or she lied in her second video interview on whether there were other previous incidents of indecent assault committed by the Appellant;
	(b)	that Pw1 had lied to the Appellant to make him part with his money;
	(c)	that Pw1 was a person who despite her young age was knowledgeable enough to be capable of inventing a story from her own imagination or from coaching.”

21. The thrust of Counsel’s attack on this ground was that the complainant had either lied to her mother about other incidents or she had lied to the interviewer.  In my view, there was no basis for this assertion.  The evidence by the mother was that after the complainant told her about being touched, the complainant also told her about the previous occasion during which the appellant said he wanted to hug her or to hold her.  This was not an allegation of indecent assault which allegedly occurred on a previous occasion.  And indeed this was the complainant’s evidence. 

22. In her second interview, the complainant was asked, at Question 42, if any other similar incidents happened, and her answer at 43 was “No”.  Again, at the second interview it was the interviewer who had, probably because of some other sources of information, misled the complainant.  The interviewer had said at Question 72 :

“… besides that incident, ah, you mentioned to your mum, something happened before that on that day, that is, (about) the teacher.”

To that the complainant simply said “Yes”.  At Question 102, the interviewer persisted when she said to the complainant :

“…. you mentioned the incident to your mum.  (Did you) mention any other things to your mum?”

The complainant’s answer at 103 was : “Not really”.

23. So, as regards Ground 2(a), there was nothing for the magistrate to consider which could have affected the complainant’s credibility in a way favourable to the appellant.

24. Ground 2(b) that the complainant had lied to the appellant to make him part with his money was based on just one answer that she had given in her second interview.  She was asked at Question 120 :

“…. that day, how come, how come without any reason did he say to give you something to buy food first?”

The complainant’s answer at 121 was :

“He, nothing. Because, er, I told him before, said that I liked to eat (it) very much but had not eaten for a long time, ….”

25. This was said to be a lie to the appellant because in her first interview she had said that, prior to attending at the music centre, she had gone with her domestic helper to McDonald’s to eat.  What she meant by Answer 121 in the second interview was not clear at all.  Nobody knows what she was referring to when she gave that cryptic answer.  In any case, in my view, that one answer was not a basis for saying that the complainant had lied to the appellant to make him part with his money.

26. As regards Ground 2(c), I have no doubt that a young person, aged 10 or 11 these days, is capable of inventing a story if he or she is minded to do so.  The bottom line is, from the magistrate’s observation of the complainant and from her assessment of the complainant’s evidence, did she have any doubt that the complainant might have invented a story against the appellant?  It is clear from the fact that she accepted the complainant’s evidence that she did not have any such doubt.

27. Ground 2 therefore fails.

28. Ground 3 was that the magistrate erred in that she placed unduly excessive reliance on the demeanour of the complainant and failed to consider those matters raised in Grounds 1 and 2 above.

29. The thrust of this ground of appeal was that it was submitted that there was a complete lack of analysis of the salient features of the complainant’s case or any attempt to resolve material inconsistencies.  It was submitted that the magistrate placed undue reliance on her observation of the complainant’s demeanour and in paragraph 17 of her Statement of Findings where she accepted the complainant’s evidence, she practically only provided reasons based on demeanour.  It was also submitted that in the previous paragraph she said that she carefully scrutinized the prosecution witnesses, in particular the complainant, as to their demeanour and the manner in which each gave their evidence.  The magistrate’s next comment was also criticized, namely :

“…. Each witness was subjected to cross-examination, wherein matters were put comprehensively to the witnesses, providing more time to view the witnesses and to assess credibility.”

30. I do not agree with those criticisms.  As Ms Lau, for the respondent, submitted : “the learned Magistrate had considered all the matters raised before her and found that PW1 was a candid witness.  She rejected defence submission that PW1 was unhappy with her violin lessons and hence made up her allegations against the Appellant.”  It was submitted by Ms Lau that the magistrate had also carefully considered all the evidence before her with the criminal burden and standard of proof in mind.  It was also submitted that she fully understood that the facts relied upon by the prosecution depended on the credibility of witnesses and the weight to be attached to the evidence.

31. I can do no better than to echo what Bokhary J said in HKSAR v. Chun Wo Construction and Engineering Co. Ltd, HCMA251/2003 ：

“…. an appellate court would normally take [a magistrate] to have assessed the witnesses’ demeanour not in isolation but in the context of all the circumstances of the case including its inherent probabilities. And an appellate court would normally trust a professional tribunal not to convict by accepting prosecution evidence and rejecting defence evidence except after a careful consideration of all those circumstances and with the criminal burden and standard of proof firmly in mind. Appellate courts normally take professional tribunals to have behaved in the foregoing way because that is the natural way for professional tribunals to behave. If there is any actual indication to the contrary in any given case, that is another matter. ….”

32. I would also wish to reiterate what Blair-Kerr J said in R. v. Low [1961] HKLR 13 at page 82 :

“….But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge’s findings if, having regard to the whole of the evidence, such findings appear reasonable.”

33. Those comments were approved by the Court of Appeal in R. v. Sheik Abdul Rahman Bux, CACC756/1981.  The same sentiment was expressed by Keith J (as he then was) in R. v. Hui Kee Fung, HCMA196/1994 when he said :

“….appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts.  An appeal to the High Court is not a rehearing of the case.  The Judge does not even see the witnesses.  It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate’s findings exist. ….”

34. The magistrate, in her Statement of Findings, set out extensively the evidence of the complainant including what was asked of her in cross-examination and what the defence suggestion was.  In the process of setting out that evidence in writing, the magistrate would have been reminded of that evidence.  When she made the decision of whether or not to accept the evidence of PW1, that was immediately after the defence final address and she obviously must have taken into account the evidence itself which would have been fresh in her mind as well as the demeanour of the witness.  There was nothing wrong, in my view, to take the demeanour of the witness into account as well as considering the evidence of the witness.

35. The magistrate also must have had a clear recollection of the evidence of the appellant and what he said under cross-examination.  She concluded that she could not accept his evidence and found that he was not a witness of the truth.  As she rightly pointed out in her Statement of Findings, just because she did not accept his evidence it did not mean that she would be satisfied by the prosecution beyond all reasonable doubt.  That was another way of saying that in considering the appellant’s evidence, she would have had to determine whether the effect of the appellant’s evidence raised any reasonable doubts in her mind about the evidence given by the complainant. 

36. I cannot accept the submission of counsel that the magistrate relied or unduly relied on the demeanour of the complainant before accepting her evidence.  Ground 3 therefore also fails.

37. The remaining ground was that the learned magistrate failed to consider sufficiently the culminative effect of the previous clear record of the appellant, the lack of any previous complaints against him, the large number of female students he had, the long period of time that he had been teaching the complainant without any incident.  These were matters which were all mentioned by defence counsel in his final address and no doubt were very much in the magistrate’s mind when she made the decision to accept the evidence of the complainant and to reject that of the appellant. 

38. There is nothing to this ground of appeal.

39. The net result is that I do not agree that the convictions are unsafe and unsatisfactory, and I therefore dismiss the appellant’s appeal against convictions.