R. v. TAM CHI KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellant Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 954 OF 1996

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J U D G M E N T

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1. On the 15th of November 1996, I dismissed the appellant's appeal against conviction on a charge of indecent assault. I indicated that I would give my reasons in writing this I now do.

2. The victim of the charge was a young woman born in Nanjing Jiangsu Province in China. She married in October 1993 and only came to Hong Kong in February 1994.

3. On the 28th of November 1995, the victim was admitted to the United Christian Hospital as she was suffering from fever and other ailment. She was also having some dental problem and was therefore taken to the dental department of the hospital on the 1st of December 1995. She was examined by a dentist. During the examination, there was a conversation between herself and the dentist about a famous Chinese film star "Kung Lee" as the victim's name, being "Tung Lee" was similar.

4. The next day, on the 2nd of December 1995, the same dentist was led to her room by a female nurse. There was another old woman sharing the room, occupying another bed. But the old woman apparently slept most of the day.

5. According to the victim, at some stage, the female nurse left the room and the dentist closed the door. The victim was then told to lie flat on the bed so that the dentist could examine her. It was her allegation that in the course of the examination, the dentist lowered her lower garments to expose her private part. She alleged that the dentist twice inserted his naked finger into her vagina.

6. The dentist then examined her upper body. He lifted up her brassiere and squeezed both of her breasts. She said the dentist appeared to nervous. As he was doing such indecent acts on her, he kept looking back at the door behind him.

7. The female nurse then returned to the room and the victim immediately made a complaint to her that the dentist was a sex maniac. She told the nurse what had happened. The matter was then drawn to the attention of the officer in charge of the hospital and the victim told her what the dentist did to her.

8. There was a subsequent meeting in which other senior doctors were present together with the victim and the dentist. The victim gave her account and so did the dentist. The dentist said he might have touched the victim's breasts unintentionally when he examined her body. He also said when he examined her belly, he found her napkin not in the proper position and he put it back in the proper position.

9. A decision was made later in the afternoon of the same day to report the matter to the police. The appellant was the dentist in question.

10. The female nurse confirmed that she was away from the victim's room during the examination of the victim by the appellant. She also confirmed that when she returned to the room five minutes later, the victim complained to her that she had been indecently assaulted by the appellant.

11. According to another nurse who had a telephone conversation with the appellant subsequent to the event, the appellant just laughed slightly and did not give a reply when he was asked if he had performed a vagina examination on the victim. Instead the appellant said the victim's underpants were pulled down a little bit too much and she was not happy. When it was further suggested to him that the victim had complained that he had fondled her breasts and had inserted his finger into her vagina, the appellant again said nothing in reply.

12. The content of the telephone conversation with the nurse was put to the appellant in a subsequent interview by the police. The appellant refused to answer the question nor to comment on it.

13. The appellant agreed that he was the dentist who examined the victim on the day in question. He said as the victim was suffering from Systemic Lupus Erythematosus (SLE), he found it necessary to hear the cardiac sound and to conduct an examination of the abdomen. He said the female nurse left for 20-30 seconds. He then explained to the victim that he had to hear her cardiac sound and to feel her abdomen. He said he had paid no attention as to whether the nurse was in the room during the examination.

14. The victim was lying on the bed. The appellant told her to undo her buttons and she undid the buttons of her upper clothes. He then told her to loosen the cord of her lower garments. She had difficulty in doing so and he offered to help her. He then loosened the cord of her lower garments.

15. The appellant said suddenly the victim pulled down both her inner and outer lower garments right down to the middle of her leg. He said he told her that she needed not pull down her lower garment to such a position. He also said he noticed that a sanitary napkin in her panties was displaced and her pubic hair was exposed. He said out of a reflex action, he tried to put the sanitary napkin back to the central position. The first attempt was unsuccessful. He did it again and he then pulled her panties back up to her abdomen.

16. Despite such episode, the appellant continued to examine the upper body of the victim without making sure of the presence of the female nurse. In the course of the examination, he found her brassiere too tight and he asked her to move it. But the available area was still too little and he asked her if he could move her brassiere for her and she agreed.

17. The appellant then moved both sides of her brassiere. He said he did not notice if the nurse was in the room during the examination. He also said he did not closed the door. He said he did not hold or grab the breasts of the victim.

18. The appellant denied having said he had touched her breasts accidentally during the meeting. In an interview with the police, he was asked about the telephone conversation with the nurse in which he did not response to the question if he had performed vaginal examination on the victim. He said he did not response because he did not remember the details of the incident.

19. When asked about the telephone conversation with the nurse who put the allegation of the victim to him, the appellant said he did not understand what the nurse was talking about. When pressed, he said he no longer remembered the details of the conversation.

20. The appellant called a gynaecologist to say that it was difficult to insert a finger into the vagina of the victim in the circumstances as described. There were also witnesses to say that the examination undertaken by the appellant as described by him was proper in the circumstances of the case and there were also witnesses on the good character of the appellant.

21. It was part of the defence case that as the victim was suffering from SLE at the material time and was maintained on long term steroid treatment, the victim would be suffering from psychosis and depression as well as other emotional problem which rendered her evidence unreliable.

22. The hearing before the learned magistrate went on for more then 10 days and much of those time was spent on the medical condition of the victim.

23. The learned magistrate accepted the evidence of the victim as to what had happened on the day in question and rejected the evidence of the appellant. Upon such finding, the appellant was convicted.

24. In support of the present appeal, it was submitted on behalf of the appellant principally the followings:

1. Quite apart from the fact that the present case was a sexual offence case, the victim at the material time was suffering from SLE and was maintained on steroids and as such she could be suffering from mental or psychiatric problem. The court could not in such circumstances convict any one on the uncorroborated evidence of the victim. As the appellant was convicted solely on the uncorroborated evidence of the victim, the conviction was unsafe and unsatisfactory and there would be a lurking doubt.

2. It was suggested that the learned magistrate had made an error on the burden of proof when he said that the victim should not have her evidence set aside merely because she was suffering from SLE.

3. The learned magistrate's finding was further attacked on the basis that he had improperly disregard certain evidence of the defence witnesses as well as rejecting the evidence of the appellant.

25. The offence being one of indecent assault against a woman, the learned magistrate no doubt must exercise particular care in considering the evidence of the victim and could only accept her evidence if there was no real doubt that she was telling the truth. It would be even more so in this particular case when there was evidence to the effect that the victim was at the material time suffering from SLE and was maintained on steroids which might cause mental or emotional abnormality or delusional behaviour.

26. But I cannot accept the suggestion that the condition of the victim must render her evidence incapable of being relied on to support a conviction without corroboration.

27. It was not and it had never been the appellant's case that the victim was suffering from mental illness or abnormality to such an extent that she was not capable of giving a true or reliable account to the court. If it had been his contention, the learned magistrate might have to decide the issue in accordance with principle set down in R. v. Toohey [1965] A. C. 595.

28. The appellant only contended that as the victim was suffering from SLE and was maintained on steroids, her mental condition might be affected and there was a risk that her account might be unreliable.

29. In R. v. Henry Jeremiah Mackenney and another [1983] Crim. App. Cases 271 Ackner L.J. stated at Page 276 :-

"We agree with the learned judge that if a witness is suffering from a mental disability it may, in a proper case, well be permissible to call psychiatric evidence to show that the witness is incapable of giving reliable evidence. We are prepared to accept that the mental illness need not be such as to make the witness totally incapable of giving accurate evidence, but it must substantially affect the witness's capacity to give reliable evidence. But this is very different from calling psychiatric evidence with a view to warning a jury about a witness who is capable of giving reliable evidence, but who may well choose not do to so. It the witness is mentally capable of giving reliable evidence, it is for the jury, with all the warning from counsel and the court which the law requires to decide whether or not that witness is giving reliable evidence."

30. Despite her suffering from SLE and being maintained on steroids, the victim was mentally capable of giving reliable evidence. Just like any other witnesses, she was entitled to have her evidence tested, evaluated and if found to be true, accepted by the court.

31. Of course when testing and evaluating her evidence, the court must take into consideration the possible effect of SLE and steroids. The court must also bear in mind that the offence, being a sexual offence, must be approached with particular care and that the victim's evidence should not be relied on to support a conviction unless there was no real doubt that she was telling the truth.

32. With respect, that was precisely how the learned magistrate had dealt with the matter.

33. There was evidence before the learned magistrate that the victim was suffering from SLE and that she was maintained on steroids. Those medical history of the victim was not in dispute. There were evidence from the doctors that people suffering from SLE and being maintained on steroids might suffer mental problems such as depression, anxiety, emotional abnormality or delusional behaviour. There were also evidence from doctors who treated the victim that she showed no sign of such mental problem.

34. The learned magistrate, quite rightly also took into consideration that the mental and emotional problems of a SLE sufferer might be overt and obvious and they might not be obvious at all. He also bore in mind the fact that a SLE sufferer did not show any symptoms of mental or emotional problems did not mean that the patient was not suffering from them.

35. It was with all the relevant matters in mind and after a detailed and careful evaluation of her evidence that the learned magistrate concluded that the victim's evidence was cogent, credible and believable. The learned magistrate accepted the evidence of the victim in her accusing against the appellant. He was entitled to reach such a conclusion.

36. It was in my view also not correct to suggest that the learned magistrate had shifted the burden of proof.

37. In his statement of finding, the learned magistrate said "I am satisfied, from the medical evidence before me, that PW1 should not have her evidence set aside merely because she was suffering from SLE." The learned magistrate was simply stating that the victim's evidence should not be completely ignored and rejected just because she was suffering from SLE.

38. The learned magistrate had in fact stated earlier in his statement of finding:-

"If I had myself up as some form of instant expert upon the mental condition of SLE sufferers, to determine whether or not such suffers could have their evidence accepted or rejected as I saw fit, that would clearly have been unacceptable. Equally unacceptable would be the situation whereby such sufferers were, in effect, shut out from the system of courts and law by being automatically disbelieved."

39. Bearing in mind that it was not and had never been the appellant's contention that the victim's mental condition was such that she was incapable of giving a true and reliable account of the events to the court, the learned magistrate's approach was correct and could not be faulted.

40. When the learned magistrate came to the firm conclusion that the victim was a truthful and reliable witness, his rejection of the opinions of both Dr. Pun and Dr. Mak was inescapable. I can find no fault with the ways in which he dealt with their evidence.

41. I do not propose to deal with the evidence of the appellant as such. But in my view, the learned magistrate was perfectly entitled, as he did to reject his evidence.

42. I have considered carefully the evidence as well as counsel's submission. It is fair to say that the appellant had been represented throughout the proceeding with the highest degree of professionalism. Every piece of evidence favourable to him had been presented. Everything that could be said on his behalf had been said to the learned magistrate and by Mr. Thomas in this appeal.

43. But at the end of the day, I am firmly of the view that the learned magistrate was entitled to come to the conclusion as he did on the evidence. I do not find the conviction unsafe or unsatisfactory. I do not have any lurking doubt about the guilt of the appellant. In the circumstances, the appeal must be dismissed.