HKSAR v. TANG CHI KEUNG

HCMA202/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 202 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by the Magistrate of the offence of indecent assault and was sentenced to 21 days' imprisonment. He now appeals against the conviction.

2. The main ground of the appeal against conviction advanced by Mr Wong on his behalf is that the learned Magistrate erred in law in failing to warn himself at any time of the danger of convicting on the uncorroborated evidence of the Complainant, PW1, in a case of a sexual offence. He relies upon the judgment of Hooper J in the case of R. v. Wong Shing Fai [1991] 1 HKLR 372 where Hooper J made it quite clear that it is the law that where there are allegations of sexual assault, a magistrate is required to warn himself of the danger of convicting upon uncorroborated testimony of the complainant and to identify the corroborating evidence relied upon.

3. In this particular case, unfortunately, it does not appear from a reading of the record that the learned Magistrate ever addressed himself on the question of the danger of acting on the uncorroborated evidence of the Complainant. When he gave some reasons in open court when convicting the Defendant, he never referred to this danger. In his Statement of Findings which were written up afterwards - again, there was no reference to this danger, nor is there anything in the Statement of Findings which can enable me to say that he was aware of this danger and had addressed himself to this question before accepting the evidence of the Complainant as reliable and credit worthy.

4. There is a reference in the Statement of Findings at p.50 to the fact that there was no other independent evidence to support the evidence of the Complainant, but nevertheless, the learned Magistrate accepted her evidence as that of an honest and reliable witness.

5. Ms Wan, for the prosecution, has urged me to say that that sentence in the Statement of Findings is sufficient for me to say that the learned Magistrate was aware of the danger which was why he referred to the fact that her evidence was unsupported by any other independent evidence. I agree with Mr Wong when he says that that particular comment by the learned Magistrate would be a fairly common comment that any tribunal of fact would make in any case, even in a case where corroboration is not required, where reference is made by the tribunal to the fact that the evidence is not supported by any other evidence.

6. It, unfortunately to my mind, does not show that the Magistrate necessarily was aware of the danger and addressed his mind to it. I therefore find that because of this failure by the learned Magistrate to warn himself of the danger, this conviction cannot be upheld.

7. There are other grounds advanced by Mr Wong which show that perhaps when the learned Magistrate wrote up his Statement of Findings, he had misconceived some of the evidence. One fairly important aspect of the Complainant's evidence was whether or not the Appellant's hand was underneath her jacket when he was touching her thigh, four inches from the knee. The learned Magistrate, in his Statement of Findings, referred to the fact that the Appellant's left hand was underneath her rucksack as well as underneath her jacket. Unfortunately, that was not the complainant's evidence and the complainant's evidence was simply that the Appellant's hand was underneath her rucksack. What she was saying would appear to be that the Appellant was able to touch her thigh, four inches from the knee, without having to put his hand underneath her jacket.

8. The last matter which gave me some concern about the correctness of this conviction is the discrepancy between the complainant's evidence that the Appellant's hand had been on her thigh for ten odd seconds and what she had said to the police officer, when the police officer arrived at the scene, about the Appellant having touched her thigh for 30 odd seconds. Ms Wan has made the point that a lay person may not be able to correctly assess the length of time of a particular act, but to my mind, an act lasting 10 seconds is quite different from an act lasting 30 odd seconds.

9. For these reasons, I will allow the appeal and the conviction is quashed.