LEUNG CHI KEUNG v. HKSAR

FACC No. 10 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

FINAL APPEAL NO. 10 OF 2004 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 939 OF 2003)

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J U D G M E N T

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Chief Justice Li:

1. In cases of sexual offences, evidence of the distressed condition of the complainant is sometimes adduced by the prosecution.  Earlier authorities considered such evidence in relation to corroboration as there was then a requirement for the tribunal of fact to be warned about the danger of convicting the accused on the complainant’s uncorroborated evidence alone.  This requirement has been abolished by statute.  The questions arising in this appeal include the important question of the proper approach to be adopted by a tribunal of fact in considering evidence of distress after such abolition.

The convictions

2.  On 22 August 2003, the appellant was convicted by a magistrate of three charges of indecent assault contrary to s. 122(1) of the Crimes Ordinance, Cap. 200.  The magistrate delivered an oral verdict with brief reasons and subsequently gave written reasons for conviction.  The appellant was sentenced to five months’ imprisonment for each offence to be served concurrently.

3.  The complainant of the indecent assaults was a boy aged nine at the time of the offences.  He was a student at the primary school where the appellant was a teacher.  The appellant was the physical education teacher of the complainant’s class.

The prosecution evidence

4.  For the purposes of this appeal, the prosecution’s evidence can be summarised as follows.  In relation to the first charge, the complainant’s evidence was that on 2 December 2002, he had been punished to stand by another teacher.  When it was time for the physical education lesson, the appellant brought him to a toilet for the disabled near the assembly hall and locked the door.  The appellant then pulled down the complainant’s trousers to his calf, lifted up the complainant’s upper garment and molested the complainant’s penis for 20 seconds.  The appellant also kissed his face.

5.  In relation to the second charge, the complainant’s evidence was similar to his evidence in support of the first charge.  On the next day, 3 December 2002, the appellant brought him to the same toilet and locked the door.  The appellant pulled his trousers down to his calf and lifted his upper garment to the area of his chest.  The appellant molested his penis for about 10 seconds and hugged him.  According to the complainant’s evidence, whilst this was going on, a janitor shouted “roll call” outside the locked toilet.  The appellant then pretended to be urinating and flushed the toilet.  The appellant then left the toilet.  After the janitor had left, he returned to it and continued to touch the complainant’s penis.

6.  The complainant’s mother and two teachers of the school  (one of whom is the English teacher) gave evidence.  In the evening of 3 December 2002, the date of the offence alleged in the second charge, the complainant complained to his mother that he had been molested by the appellant.  At the time, the complainant was sobbing and his voice was hoarse.  On the next day, 4 December 2002, his mother contacted the English teacher to complain that the complainant had been molested by the appellant.  The English teacher referred the matter to the school’s social worker.  Subsequently, the complainant’s parents, the social worker and the school’s principal had a discussion about the matter.

7.  In relation to the third charge, the complainant’s evidence was that on 16 December 2002, when the classes were over, the appellant expressed to the complainant his wish to touch him one last time.  This was refused by the complainant.  When the complainant was packing his school bag, the appellant asked him to bring a basketball back to the physical education room.  When the complainant handed the basketball to the appellant, the latter touched his penis from outside his school uniform.  The appellant was arrested two days later, on 18 December 2002.

The appellant’s evidence

8.  The appellant elected to give evidence.  In relation to the second charge, he said nothing happened on 3 December 2002.  In relation to the first and third charges, his evidence was that some physical contact took place.  But the contact was not as alleged by the complainant and was entirely innocent.  As to the first charge, his evidence was that on the day in question, he saw that the complainant together with other students had been punished to stand.  The complainant appeared to be unhappy.  He was looking around and was showing signs of fright and nervousness.  He was pressing his “urinating area” with his hand.  The appellant asked him whether he needed to go to the toilet.  The complainant did not respond.  The appellant took him to the toilet.  He denied that he had locked the door.  In the toilet, seeing that the complainant had difficulty in lifting up his upper garment and pulling down his trousers, the appellant assisted him to do so.  As the complainant then appeared to have difficulty urinating, the appellant patted the area near the complainant’s waist once with his right hand.  The appellant admitted that he “listened” to the complainant’s chest.  He denied that he had touched his penis or had kissed him.

9.  As to the third charge, according to the appellant’s evidence, on the day in question, he asked the complainant why he felt unhappy on 2 December, saying this would be the last time he would ask this question.  At the time the students were lining up, the appellant told them to put back the physical education equipment.  He was handing a basketball to the complainant who was sitting on the floor.  The appellant expected him to stretch out his hand to get the ball.  But the complainant did not do so.  The appellant lost his balance and his hand together with the ball bumped against the crotch area of the complainant.

The magistrate’s reasons

10.  The magistrate rejected the appellant’s evidence.  He found that he was evasive in the witness box and that his evidence was “full of contradictions”, “extremely far-fetched” and incredible.  He stated he was sure that the appellant was telling lies.  The magistrate gave reasons for coming to this conclusion which it is unnecessary to refer to for the purposes of this appeal.

11.  Having rejected the appellant’s evidence, the magistrate quite rightly reminded himself that the defence had no burden to prove anything and that the burden was on the prosecution to prove guilt beyond reasonable doubt.  And that the evidence in relation to each charge had to be considered.  The magistrate held that there was no corroborative evidence.  In convicting the appellant, he accepted the complainant’s evidence.  In his written reasons, the magistrate stated that he found the complainant’s evidence “extremely particularised and detailed”.  He said that the complainant “was able to give a clear account of the time, people, place and the course of the incident[s].  It was impossible for him to fabricate the details of the incident[s] without experiencing it personally”.  The magistrate gave examples, such as the complainant’s description of how the appellant molested him, the positions of both parties and the contents of the conversation between them.  He found the complainant’s description of the incidents “vivid” and that the course of each incident, what happened before and after and how it happened were all stated in his evidence “unequivocally”.  There were similar statements in the magistrate’s earlier oral verdict that he was impressed by the evidence of the complainant as he had described the incidents “in an extremely detailed way and in minute details”.

The possibility of fantasy

12.  In cross-examining the complainant, defence counsel did not raise the possibility that the incidents described by him in his testimony were the result of his fantasy.  But in the course of final submissions, defence counsel mentioned the possibility of fantasy.  Two passages from the transcript of his submissions are relevant.  Counsel noted that the prosecution was relying on the evidence of the complainant and then remarked:

“It goes without saying that he is a smart and nice child.  But under common law, for years, it has been established that very often children have the tendency to fantasize.  Very often, what the children see and fantasize are different from the fact.  Hence in the past, as Your Worship may recall, sexual cases required corroboration.”

Later on in his submissions, counsel returned to the point of fantasy again briefly:

“Your Worship, the last point that I would like to say is to repeat the point I said at the very beginning, i.e. the way he [the appellant] dealt with the situation might be unwise and immature.  But, Your Worship, perhaps, it was because he was the one to take him to the toilet.  It made the [complainant] have some fantasy.  As to what (fantasy) it was, I have no idea, it might be something he had watched on TV.”

13.  The magistrate’s written reasons did not refer to the possibility of fantasy.  But in his oral verdict, after rejecting the possibility of misunderstanding having regard to the complainant’s evidence, the magistrate dealt with the possibility of fantasy as follows:

“Could it have been a fantasy?  We heard [the complainant’s] mother describing [the complainant’s] voice being hoarse and he was not very happy at that time.  This is not a response consistent with fantasy.  The court is definitely familiar with that.  Although there is no corroborative evidence, [the complainant] is not only an honest witness but also a credible witness.  Therefore, the Defendant is convicted of the three charges.”

Evidence of the complainant’s conduct at school

14.  In their evidence in chief, the two teachers giving evidence for the prosecution referred briefly to the conduct of the complainant at school.  The English teacher was asked what she thought of this student’s conduct.  Her reply was: “Docile, kind-hearted, introverted but a little bit timid”.  The other teacher who gave evidence was asked “What about his conduct?”  Her answer was: “Conduct is very good.”

15.  Defence counsel did not object to the admissibility of such evidence.  It has not been suggested that such evidence was referred to in submissions by the prosecution or the defence before the magistrate.  And the magistrate did not mention such evidence at all in his oral verdict or his written reasons.

Appeal to Court of First Instance

16.  The Court of First Instance (Pang J) dismissed the appellant’s appeal and refused to certify that a point of law of great and general importance was involved.  The judge concluded that the way the magistrate had dismissed the possibility of fantasy was not erroneous.  The judge held that since the magistrate had accepted the complainant’s perplexed expression when complaining to his mother as a fact, he could rely on such evidence to rebut the defence allegation that there was a possibility that the complainant’s evidence had originated from his fantasy.  The judge stated that “this is allowed by the law”.  As to the teachers’ evidence of the complainant’s conduct, the judge held that although such evidence should not have been adduced, the magistrate did not rely on it to determine the complainant’s credibility and such evidence did not affect the appellant adversely or unfairly.

Appeal to the Court

17.  The Appeal Committee granted leave to appeal to the Court on both limbs of s. 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  It certified that a point of law of great and general importance was involved, namely:

“whether genuine distress on the part of [a complainant] of sexual abuse is relevant to negative a suggestion by the defence that [the complainant’s] account is a fantasy.”

The Appeal Committee was also of the view that it is reasonably arguable that a substantial and grave injustice was done to the appellant by the admission of evidence of the complainant’s good character.

Evidence of distress

18.  The question of the proper approach to be adopted in considering evidence of a complainant’s distress must first be considered.  This is evidence of the complainant’s distressed condition given by a witness other than the complainant.  (Such evidence can conveniently be referred to as “evidence of distress”.)  In the light of the proper approach, one can then examine whether the magistrate was wrong in relying on evidence of distress to dismiss the possibility of fantasy.

The distinction between evidence of recent complaint and evidence of distress

19.  Before discussing evidence of distress, one must begin by bearing in mind the distinction in the context of a sexual case between evidence of recent complaint on the one hand and evidence of distress on the other.  The purpose of the admission of evidence of the former kind is essentially different from that of the latter kind.

20.  The general rule against admitting previous consistent statements is well established in the law of evidence.

“The general rule at common law was that a witness could not be asked in-chief whether he had formerly made a statement consistent with his present testimony.  He could not narrate such statement if it was oral or refer to it if it was in writing (save for the purpose of refreshing his memory), and other witnesses could not be called to prove it.”

See Cross & Tapper on Evidence (10^th ed., 2004) 318.

21.  A well known common law exception to this rule is evidence of recent complaint in a sexual case.  If a complaint was made at the first reasonable opportunity after the offence, the evidence of the person to whom it was made of the fact that it was made and as to its terms are admissible.  But such evidence of recent complaint is admissible not as evidence of the facts complained of but only as evidence of the consistency of the complaint’s conduct with his or her testimony.  In short, such evidence is only relevant to the credibility of the complainant and would serve to buttress it.  See White v The Queen [1999] 1 AC 210 at 215F-H, Archbold Hong Kong (2004) para 8-102, Archbold (2004) para 8-103.  In cases where consent has been in issue, there are statements which can be read as suggesting that evidence of recent complaint is also admissible for the purpose of negativing consent.  But it should be regarded as settled that this does not afford a second and independent ground of admissibility.  Where consent is an issue, evidence of recent complaint is admitted not as evidence of whether there was consent.  Its purpose is merely to show consistency in the complainant’s evidence which would include any evidence as to lack of consent.  See Kilby v The Queen (1972-3) 129 CLR 460 at 469.  However, in contrast to evidence of recent complaint, evidence of distress may have probative value as to the facts in issue and weight may be given to it.

The essential question

22.  The essential question in this appeal is the proper approach to be adopted in considering evidence of distress.  In a jury trial, what directions should a judge give the jury in considering such evidence?  Such directions would of course be similarly applicable in a trial by a judge alone.

The use of evidence of distress and the abolition of the warning requirement

23.  Historically, the authorities discussed the question of evidence of distress in relation to corroboration, that is, independent evidence which implicates the accused by confirming in some material particular not only the evidence that the crime has been committed, but also that the accused committed it: R v Baskerville [1916] 2 KB 658 at 667.  It  has been observed that the development of the law dealing with evidence of distress in relation to corroboration “is an example of a doctrine comparatively recently introduced and speedily repented or at least substantially qualified”:  Byczko (No. 2) (1977) 17 S.A.S.R. 460 at 462.  In relation to corroboration, the courts came to state that a complainant’s distress must not be over-emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence: for example, see R v Knight [1966] 1 WLR 230 at 233E.  The case of R v Redpath (1962) 46 Cr. App. R. 319 is often cited as an illustration of special circumstances.  In that case, a bystander saw the accused driving off and immediately afterwards saw the victim of the indecent assault in a distressed condition when she had no reason to think she was being observed.

24.  The reason why previously, evidence of distress was invariably discussed in relation to corroboration was because there was then a requirement for a judge to warn the jury about the danger of convicting the accused of a sexual offence only on the complainant’s uncorroborated evidence.  And there was a similar requirement where the trial was by a judge alone.  This warning requirement in sexual cases was abolished by statute: s. 4B of the Evidence Ordinance, Cap. 8.  This followed the earlier statutory abolition of similar warning requirements against the danger of convicting only on the uncorroborated testimony of an accomplice or that of a child: s. 60 of the Criminal Procedure Ordinance, Cap. 221 and s. 4A of the Evidence Ordinance.  What had led to abolition of these various warning requirements was that the rules on corroboration came to be criticised on various grounds including inflexibility and complexity.  In sexual cases, the corroboration direction was seen as particularly offensive to women.  See Archbold Hong Kong  (2004) para 4-217, Archbold (2004) paras 4-404b, 4-404c & 404d.

25.  Following the abolition of the various warning requirements, it is no longer necessary to consider evidence of distress in relation to corroboration.  It would be contrary to the policy and purpose of the legislation invariably to give the same warning as before.  The correct approach has been stated by Lord Chief Justice Taylor in R v Makanjuola [1995] 1 WLR 1348 at 1351H-1352B:

“[The relevant statutory provision] abrogated the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories.  It is a matter for the judge’s discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case.  Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence.  In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness.  This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice.  There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable.  An evidential basis does not include mere suggestion by cross-examining counsel.”

This approach has rightly been followed in Hong Kong.  See the decisions of the Court of Appeal in R v Chu Ip Pui [1997] HKLRD 549 at 552 and HKSAR v Li Kam Shing CACC 153/2004 (8 September 2004) para 43. 

The proper approach

26.  The circumstances and evidence which arise in sexual cases are of an infinite variety.  The weight to be given to evidence of distress obviously varies from case to case.  What is the proper approach which should guide a tribunal of fact in approaching such evidence?  It is necessary to determine the use to which evidence of distress can now be put and what weight, if any, can be given by the tribunal of fact to such evidence.

27.  As with any evidence, evidence of the distressed condition of the complainant in a sexual case must be approached with commonsense.  The distressed condition may have been feigned by the complainant.  There may be a number of possible motives for the complainant simulating such condition.  Even where the complainant’s distressed condition is genuine, it may be caused by events other than the sexual offence.  Where a tribunal of fact is of the view that the complainant’s distressed condition may not be genuine or may be due to other causes, evidence of the complainant’s distressed condition would not be of any assistance.

28.  A tribunal of fact must be satisfied (i) that the distressed condition of the complainant was genuine and (ii) that there was a causal connection between the distressed condition and the alleged sexual offence.  In other words, it must be satisfied that the distressed condition was not feigned and was referable only to the alleged sexual offence and not any other cause.

29.  Whether the tribunal of fact is so satisfied in the case concerned will depend on the circumstances.  They will usually include the age and maturity of the complainant, the time interval between the alleged offence and the time when the complainant was observed to be in a distressed condition, the conduct and appearance of the complainant and the events affecting the complainant during this time interval, the circumstances existing when the complainant was observed to be in a distressed condition and whether the complainant expected to be observed at the time.

30.  At the end of the day, if the tribunal of fact is doubtful whether the complainant’s distressed condition is genuine, it should disregard the evidence of distress.  Equally, it should disregard such evidence where it is doubtful whether the complainant’s distressed condition was caused by the alleged sexual offence as opposed to other causes.

31.  But where the tribunal of fact is satisfied of the genuineness of the complainant’s distressed condition and of the required causal connection, then it may give such weight to the evidence of the complainant’s distressed condition as is appropriate.  In many cases, evidence of the complainant’s distress may support the complainant’s evidence or other evidence adduced by the prosecution to show that the alleged sexual offence has been committed by someone without implicating the accused.  In other cases, such evidence may go further to show not only that the alleged sexual offence has been committed but also that the accused was implicated in it.

Fantasy

32.  In a sexual case, fantasy may be raised as an issue.  What is meant by fantasy in this context is that the complainant believes that the alleged sexual offence has occurred but this is only a figment of his or her imagination.

33.  In Mankanjuola, in the context of the exercise of the judge’s discretion to give a warning to the jury about the evidence of a particular witness, Lord Taylor pointed out that an evidential basis is necessary for suggesting that the evidence of the witness may be unreliable.  The mere suggestion by cross-examining counsel is insufficient.  Analogously, for fantasy to be properly raised as an issue, there must be an evidential basis for raising it.  The mere suggestion by counsel in cross-examining is insufficient.  Nor is a submission made by counsel in the absence of any evidential basis sufficient.  The necessary evidential basis for raising fantasy may be found in the evidence, whether adduced by the prosecution or the defence, or in proper inferences to be drawn from the evidence.

34.  As a matter of commonsense, where the alleged sexual offence is the result of the complainant’s fantasy, it is likely that the complainant’s actions and appearances would be consistent with the event having occurred as the complainant had imagined it.  The complainant may be in a distressed condition because according to his or her imagination, the sexual offence has occurred.  That being so, evidence of the distressed condition of the complainant cannot negative fantasy.  It would have no probative value for that purpose.  The distressed condition itself may well have been the very result of the complainant’s fantasy. 

35.  Where fantasy has been properly raised as a defence, the tribunal of fact must be satisfied both of the genuineness of the complainant’s distressed condition and the required causal connection.  Where fantasy on the part of the complainant is a possibility, the tribunal may be satisfied that the distressed condition was not feigned and that the complainant, believing that the alleged offence had occurred as imagined, was genuinely in distress.  But it could not be satisfied of the required causal connection.  There would be a reasonable doubt as to the causal connection since the distressed condition may have been caused not by the occurrence of the alleged sexual offence but by the complainant’s own fantasy.

Certified question

36.  The certified question is as to whether a complainant’s genuine distress is relevant to negative a defence suggestion that the complainant’s account is a fantasy.  It follows from the discussion above that the answer is no.  (See in particular paras 34 and 35).

Distress and recent complaint

37.  In some cases, the evidence is that the distressed condition of the complainant is part and parcel of the recent complaint.  For example, a witness gives evidence that when the complainant made the complaint after the alleged sexual offence, the complainant was in a distressed condition.

38.  When corroboration was required, the approach of the English authorities was that the jury should be directed that they should attach little, if any, weight to the evidence of distress because it is all part and parcel of the complaint: Redpath at 322.  After the warning requirement was abolished in England, this approach has been regarded in that jurisdiction as continuing to apply: Archbold (2004) para 20-32 (stating that juries should be warned that little weight should be attached to evidence of distress especially where it is part and parcel of the complaint).  See also R v Venn [2003] EWCA Crim. 236 at para 48 (where it was observed that evidence of distress should carry no weight if it is only part and parcel of the making of a complaint).

39.  Turning to the approach that should be adopted in Hong Kong, as has been discussed, evidence of the recent complaint cannot be evidence of the facts complained of because it is only evidence of the consistency of the complainant’s conduct with his or her testimony.  But, in accordance with the approach laid down in this judgment, evidence of distress may have probative value as to the facts in issue and weight may be given to it.  Since the evidence of recent complaint and distress would have arisen out of the same event, it is necessary for close attention to be given to it.  The judge should direct the jury in clear terms that the respective uses to which evidence of recent complaint and evidence of distress may be put are different.  The former may only be used as evidence of consistency whilst the latter, in accordance with the approach adopted in this judgment, may have probative value as to the facts in issue and weight may be given to it.

The authorities

40.  On this appeal, a number of English and Australian authorities were cited.   In considering the proper approach to be adopted to evidence of distress, the Court has derived particular assistance from R v Redpath, R v Knight [1966] 1 WLR 230, R v Wilson (1973) 58 Cr. App. R. 304 and R v Chauhan (1981) 73 Cr. App. R. 232; as well as the Australian cases of R v Flannery [1969] VR  586, and R v Schlaefer (1984) 12 A. Crim. R. 345.  (See also Venn and R v Romeo [2004] 1 Cr. App. R. 417).

Directions by the judge

41.  The judge should direct the jury on the proper approach to be taken in considering evidence of the complainant’s distressed condition.  In summary, the essentials of the proper approach are as follows:

(a)        The jury must be satisfied beyond reasonable doubt (i) that the complainant’s distressed condition was genuine and (ii) that there was a causal connection between the distressed condition and the sexual offence.  In other words, they must be satisfied that (i) the distressed condition was not feigned and (ii) was only referable to the alleged sexual offence and not to any other cause.  In deciding on those matters, they must take into account all relevant circumstances.

(b)        Where the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate.  Weight is entirely a matter for them.

(c)        Where the jury is not so satisfied, they should disregard the evidence of distress.

(d)        Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut fantasy.  If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.

A judge sitting alone should approach the matter similarly.

The present case

42.  In the present case, defence counsel suggested fantasy on the part of the complainant in his final submissions.  Was there a sufficient evidential basis for raising the issue of fantasy?  Having regard to the appellant’s own evidence, there was such a basis.  His testimony in relation to the incident on 2 December 2002 was that he took the complainant to the toilet and that seeing that the complainant had difficulty in lifting up his upper garment and pulling down his trousers, he assisted him to do so.  Further, as the complainant appeared to have difficulty urinating, the appellant patted the area near his waist once.  And he “listened” to the complainant’s chest.  In relation to the incident on 16  December 2002, the appellant’s evidence was that when handing the basketball to the complainant, his hand together with the ball accidentally bumped against the complainant’s crotch area.  The appellant’s own evidence of physical contact with the complainant of the kind and extent described was a sufficient basis for raising the issue of fantasy; that based on such physical contact, the complainant might have imagined that the alleged sexual offences in the first and third counts had occurred.

43.  The evidence of the complainant’s distress was given by his mother.  She testified that he was sobbing and his voice was hoarse when he complained to her in the evening of 3 December 2002 about molestation by the appellant.

44.  The magistrate dealt with the issue of fantasy.  In his oral verdict, he said that the mother’s evidence of the complainant’s distressed condition “is not a response consistent with fantasy”.  The magistrate was using the evidence of distress to rebut the suggestion of fantasy.  This approach was upheld by the judge on appeal.  As has been discussed, such an approach is wrong (see in particular paras 34 and 35).

Evidence of the complainant’s conduct at school

45.  The respondent accepts that although no objection was taken by defence counsel at the trial, the very brief answers of one teacher that the complainant was “docile, kind-hearted, introverted but a little bit timid” and of the other teacher that his conduct is very good were inadmissible.  The respondent’s concession was a fair and correct one.  This is because such evidence could be said to have the flavour of evidence of good character which is plainly inadmissible.

Just to allow the appeal?

46.  In the context of an appeal to the Court from the Court of First Instance relating to a trial before a magistrate, the test is whether the errors by the magistrate make it just that the appeal should be allowed and the convictions set aside.  If the magistrate would undoubtedly have convicted had he not made the errors, the appeal would not be allowed: Ching Kwok Yin v HKSAR (2000) 3 HKCFAR 387 at 390 G-H, 391E.

47.  The case turned solely on the credibility of the complainant.  It is very clear from the magistrate’s oral verdict and written reasons that he was overwhelmingly impressed by the complainant’s testimony.  He believed the truth of the complainant’s evidence beyond reasonable doubt.  This was because he concluded that the complainant’s description of the incidents was extremely particularised and detailed, clear, impossible to fabricate without experiencing them personally, vivid and unequivocal.  These are strong phrases which the magistrate chose to use in his oral verdict and written reasons.

48.  The magistrate made two errors; in using the evidence of the complainant’s distressed condition to rebut the suggestion of fantasy and in not excluding the teachers’ brief answers relating to the complainant’s conduct.

49.  As to the second error, the teachers’ answers were very brief indeed; two sentences in the course of a trial lasting four days.  No one attached any materiality to them.  Defence counsel did not object to the questions or the answers at any stage.  The answers were not referred to in submissions or by the magistrate at all.  Having regard to the magistrate’s clear and firm reasons for accepting the credibility of the complainant, it could confidently be concluded that the teachers’ very brief answers were immaterial in the magistrate’s assessment of credibility.

50.  As to the first error, even if it had not been made, there is no doubt that the magistrate would have rejected fantasy and convicted the appellant.  This is because, having observed the complainant and received his evidence at first hand, he had accepted completely the truth of the complainant’s evidence that he had personally experienced the incidents in question.  Such evidence was inconsistent with fantasy and established guilt.

51.  In the circumstances, even if the magistrate had not made the errors, he would undoubtedly nevertheless have convicted the appellant on the basis of the complainant’s testimony.

Result

52.  Accordingly, the appeal should be dismissed.

Mr Justice Bokhary PJ:

53.  I agree with the judgment of the Chief Justice.

Mr Justice Chan PJ:

54.  I agree with the judgment of the Chief Justice.

Mr Justice Ribeiro PJ:

55.  I agree with the judgment of the Chief Justice.

Sir Anthony Mason NPJ:

56.  I agree with the judgment of the Chief Justice.

Chief Justice Li:

57.  The Court unanimously dismisses the appeal.