HKSAR v. HO CHUNG YIN

HCMA 682/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 682 OF 2002

(ON APPEAL FROM NKCC 2088/2002)

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of indecent assault and sentenced to 11 weeks' imprisonment. He appeals against conviction.

2. The prosecution case was that the female complainant, a 14 year-old student, was on her way home to a flat on the 6th floor of a building in Reclamation Street, Kowloon when she was indecently assaulted by the appellant a few steps from the top of the landing on the 4th floor. The appellant had followed her into the building after she opened the gate to the main entrance with a key. Police subsequently arrived at the scene and under caution the appellant said: -

"I only tap her shoulder intend to ask her for her price. I thought she was a prostitute, I did that because I thought she was a prostitute. I did not intentionally indecent assault her."

The appellant did not give evidence or call any witness.

3. Counsel for the appellant advanced three grounds of appeal. Grounds 1 and 2 can be dealt with together as the second ground is framed as an alternative. They are these:

"1. The learned Magistrate failed to consider evidence of admissions by the appellant upon arrest when those admissions amount to a complete defence.

2. In the alternative, the learned Magistrate failed to consider and give weight to evidence of the appellant's lack of previous convictions in so far as this evidence bore favourably on the credibility of the admissions by the appellant upon arrest.

4. In my view, there is completely no substance in these two grounds. It is clear from her Statement of Findings, the Magistrate had referred to and considered the evidence including the appellant's initial reaction to the police. She evaluated all the evidence and had particular regard to what the appellant said in response to the caution administered to him. The Magistrate had not lost sight of anything that she had heard. The issue of the appellant's good character never escaped the Magistrate's attention. She reminded herself of the Vye directions and gave the appellant a favourable warning in respect of his propensity to commit the offence. In the light of the decision of the Court of Final Appeal in Tang Siu Man v. HKSAR [1998] 1 HKC 371, it is no longer necessary for a judge to give a direction to the jury on both limbs of propensity and credibility. In the judgment of Litton P J at pp. 385, 386 H I A:

"The Court of Appeal in Hong Kong has never adopted in terms the rule of practice in Vye, preferring to leave the matter to the good sense and judgment of the trial judges; remembering always that, at the end of the day, the summing up must be fair and balanced, and any doubt must be resolved in the defendant's favour. Thus, in R v. Tang Kao Sae Tang (Cr. App. 56/94, 19 August 1994, unreported) cited in Lee Kam Yuen at 267, where the judge had given only the 'propensity' limb of the Vye direction, omitting the 'credibility' limb, the Court of Appeal
said: -

In taking into account the applicant's good character as an indicator that he was less likely than otherwise to have committed the offence of rape, the jury, in our view, would inevitably have also taken it into account in deciding whether he might have been telling the truth in the witness box when denying that he had raped the complainant."

Litton P J concluded at p.393 I:

"At the end of the day, the summing up will be looked at by the appellate courts to see if it is fair and balanced. That is the ultimate test."

The third ground of appeal reads:

"The learned Magistrate drew an irresistible inference from certain evidence by PW3 so that the evidence became of no probative value when it was reasonably open to infer that the evidence showed that PW3's account of the incident in issue was unreliable and inaccurate."

5. This complaint originated from a question in cross-examination of PW3 which was unusually lengthy, ungrammatical and difficult to understand. To make matter worse, the re-examination followed the same pattern and fared no better. It was obvious that PW3 was confused and did not understand the question asked in both cross-examination and re-examination. The Magistrate was perfectly aware of this as demonstrated by her intervention at the time and her subsequent treatment of this particular aspect in her Statement of Findings. The complainant gave a clear account of what happened and it is simply not possible that she made things up or that she was mistaken. The Magistrate convicted the appellant after a careful evaluation and consideration of all the evidence that was before her. She had the opportunity to listen to and observe the demeanours of all the witnesses in general and PW3 in particular. There is no merit in this ground.

6. There is ample evidence against the appellant and the conviction is in no way unsafe or unsatisfactory. The appeal is dismissed.