THE QUEEN v. TONG SIK MAN

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BETWEEN

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J U D G M E N T

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1. On the 20th September 1991, the appellant was convicted on a single charge of indecent assault on a female, contrary to section 122(1) of the Crimes Ordinance, Cap.200.

2. The particulars of the offence alleged that the appellant "on the 22nd day of July 1991, at 6th Floor, No.2, Ying Cheong Building, Kau Yuk Road, Yuen Long, New Territories, in Hong Kong, did indecently assault Tang Tak-ying, a girl aged 14 years."

3. The appellant had pleaded not guilty and was represented at his trial by Mr Duncan Percy. The trial was a comparatively short one which went over to a second day. The Crown had called four witnesses but the appellant had elected to remain silent and call no witnesses.

4. In his judgment delivered ten days later on the 20th September, the magistrate specifically stated that he drew no adverse inference from the silence of the appellant. He went on:-

"PW1 was the main witness in this case. There was obviously no corroborative evidence nor any recent complaint. PW2 said she extracted the account from PW1 after the alleged incident by threatening to call PW1's brother. I would disregard PW2's evidence in this regard.

The ultimate question is, bearing in mind the danger of acting on the uncorroborated evidence of PWl in view of the special nature of the case an in view of her young age, whether I can say for sure that she was a truthful and reliable witness and whether it would be safe to convict on her evidence alone.

PW1 was cross examined carefully by Defence Counsel. There are certain discrepancies in her evidence and the witness statement she made to the police. But having seen and heard PW1, I find her to be a honest and truthful witness. I do not regard the discrepancies and other matters raised by the defence, to be material ones affecting her credibility in the circumstances.

Having considered the evidence and submissions carefully and reminding myself that the evidence of PW1 should be treated with caution, I find the Crown had proved the charge beyond a reasonable doubt."

5. The magistrate called for medical and psychological reports and having seen them, sentenced the appellant to three months imprisonment. The appellant now appeals against his conviction only.

6. The magistrate has prepared a Statement of Findings and in it he sets out the evidence which was produced before him as follows:-

    "Evidence in the Trial

Oral evidence on behalf of the prosecution was given by Tong Tak Ying (female), PW1. There were 3 other witnesses called to give oral evidence. A number of exhibits were produced by the Prosecution without objection by the defence. They were:

P-1 : two one hundred dollar bank notes,

P-2 : the birth certificate of PW1,

P-3 : medical report by Dr. Chan, and

P-4 : medical report by Dr. Sin.

In addition, contain facts were admitted by the defence in relation to the two medical reports.

PWl was called. In view of the age, I made enquiries as to her understanding of the nature of the oath. Having made the enquiry, I allowed her to give evidence under oath. The defence took no issue regarding this matter.

In her evidence, PW1 confirmed she was a form 1 student. She said she had known the Appellant for almost a year. She said she was at the Appellant's home at 10 odd p.m. on 22 July 1991 and she went there because the Appellant had promised her some clothes. She could not give an exact address of the Appellant's home but the address was not really in dispute.

PW1 said she went alone to the Appellant's home. She said she went to the toilet and then to the bedroom. At same stage, the Appellant had removed her clothes and the Appellant had done the same to himself.

PW1 said the Appellant then touched her in her breasts, hip and private part. She said she intended to leave but the Appellant closed the bedroom door. She said the Appellant had touched the inside of her private part. She said she felt painful. She scolded the Appellant and he stopped.

She said that the Appellant had also squeezed her breast. When she pushed off the Appellant's hand, he laid on top of her. At that time, she was lying naked on the bed. The Appellant then kissed her on her face and breasts. She said she then pushed his head away and immediately put on her clothes.

She said the Appellant gave her $200 and told her not to tell her mother. She said she took the money and immediately went home. After she went home and upon questioning, she told her mother what had happened and the $200 was discovered. A report was then made to the police. She said she then went for medical examination in Pok Oi and Princess Margaret Hospital. And before she went to the Hospital, she said she had gone to the Appellant's home with her mother and then to the Pok Oi.

PW1 was cross-examined in detail. She said she received some sex education when she was 12, and she knew the specific terms for male and female private parts. She said she came to tell the truth about what had happened at the night on 22 July 1991. She also said in the cross-examination that she knew how serious the allegations were which she had made against the defendant.

Broadly speaking, Defence Counsel aimed to establish the following points in his cross-examination : that there were discrepancies between PW1's oral evidence and her accounts to the police and her mother; that she had disobeyed her mother and went to the Appellant's home; that she had been hit and scolded by her mother before; that the word 'rape' was used by one of the doctors in his medical report in what was supposed to be only a case of indecent assault; that there were no injuries or redness found on PWl after the examinations.

The defence alleged that PW1 had made up the story in order to avoid being scolded or hit by her mother as she was caught having gone out against the latter's order.

The cross-examination started with a number of questions concerning whether PW1 had told the Court the whole truth. During such questioning, PWl admitted that she missed out two details in her evidence in chief: that the Appellant had held her head down to his lower part and that the Appellant had asked her if she like to go to bed with him. Later in the cross-examination, she said she had told the Court everything.

Then PWl was questioned as to whether she had told her mother everything that had happened. PW1 first answered in the affirmative. When asked whether there was anything she had deliberately missed out and did not tell her mother, she said no. She said she had told her mother what she had told the Court.

But later, PW1 agreed that she did not tell her mother about the Appellant pushing her head down to his penis. She said that was true but she dared not tell her mother as she was afraid of being scolded.

When asked, she gave. an account of how her mother would sometimes hit her. She said she had been scolded by her mother previously for going out late at night.

Upon further questioning, PW1 admitted that she did not tell her mother some other details which she had told the Court. Such details included: that she had gone to the toilet; that the Appellant had suggested going to bed with her; that the Appellant locked the bed room door; that that she was kissed on her lips and breasts; and that the Appellant put $200 into her pants.

She said she did not tell her mother such details as she was afraid her mother might hit her. Then more questions were asked about her mother's reaction when PW1 went home.

Defence Counsel also asked PW1 about the giving of her witness statement in the police station. According to PW1, her mother did not hear everything she told the police because she had gone over to another room to give her own statement at same stage.

The issue of what was stated in her witness statement was raised again. After some preliminary questions surrounding the making of the witness statement, Defence Counsel put to PW1 specific details as to what was and what was not mentioned in.the witness statement.

PW1 agreed that there was no mentioning of the following details in her statement: that after her arrival, she used the toilet; that she went into the bed room to see what clothes she could get; that there was squeezing of both of her breasts but only touching was mentioned; that the Appellant had kissed her face and breasts; that the Appellant had invited her to go to bed; and that Appellant had pulled or pushed her head down his penis.

Then questions were raised about her medical examinations. A number of questions were asked to lay the foundation for the submission that in one of the medical reports i.e. P-3, the word rape was mentioned.

I noted that the actual words used by the doctor was 'Patient is a case of indecent and suspected rape assaulted by a man'.

PW1 said she did tell the doctors what had happened. She said she knew what was meant by rape. She said she never mentioned that word to the doctor and she was not aware of anyone using that word. She said she did not believe she was raped. She also agreed that there was no red marks or injuries found on her after the medical examinations.

She agreed also that her mother had ordered her twice not to go out that night but she had disobeyed her mother. She said she realized that it would mean big trouble if she was caught and she would be slapped.

She agreed that her mother was angry when she found out that she had been out against her wish.

The final question in the cross-examination was that 'you decided to tell your mother lies about you and the defendant in order to avoid a beating up'. PW1 said 'I agree'.

In re-examination, PW1 was asked to clarify this. She first gave an unclear answer. But it seemed that she was referring to the non-disclosure to her mother of the pushing of her head down as a lie. In any event, she later explained that she did not quite understand the interpreter.

PW2 Fung Po Yee affirmed and gave evidence. She was the mother of PW1. She stated that PWl was her 4th child and she identified PW1 in Court. She said that PW1 was born on 18 June 1977 and she tendered the birth certificate which was produced without objection by defence as P-2.

She then gave evidence about what happened on the evening on 22 July 1991. She said at about 10:00 p.m., she was at home and she went to bed as she was feeling unwell. At about 11:10 p.m., she woke up and saw PW1 just entering the flat. She said when she asked PW1 where she had been, she appeared to be frightened. Then PW1 told her that she had been to the Appellant's home.

Then she gave evidence about the conversation she had with PW1. She said originally PW1 told her she was going to the Appellant's home to get clothes. But when she challenged PWl on this and threatened to call PW1's elder brother to come back, PW1 gave an account of what happened between her and the Appellant.

As PW1 gave the account under some form of pressure, it seemed that PW2 should not be allowed to repeat what PW1 told her on the basis of recent complaint. However, Defence Counsel raised no objection about PW2 giving evidence in this regard in her evidence in chief. Later he did cross examine and make submissions on it as a previous inconsistent account made by PWl.

PW2 said after what PWl told her, she called her son and later a report was made to the police. PW2 said she had at one stage asked PWl to take off her pants for her examination. She said she then discovered the two one hundred dollar banknotes. She later gave that to the police. She identified both the Appellant and the banknote in Court.

PW2 was cross-examined. There were some questions about the reason why PWl would go to the Appellant's home. It was suggested to her that PW1 would go to play or look after the Appellant's child who was 4½ year's old. But PW2 did not agree with that.

There were also a number of questions about her hitting and scolding PW1, about PW1's request to go out that evening and what PW1 told her as to what had happened. But PW2 did not really answer all the questions in a direct manner. Apparently she had difficulties in understanding many of the questions.

On the issue of what was recorded in P-3 i.e. the word 'rape', PW2 said she never mentioned the word at any time nor did she hear PW1 mentioning it.

She said she did not know why such word was used by the doctor.

There was no re-examination of her evidence by the prosecution.

PW3, PC 48489, was called. He was the officer who arrested the Appellant at the address as stated in the particulars of the charge at about 00:08 hours on the 23rd July 1991.

He said when the Appellant came out, PW1 pointed at him out as the person who had indecently assaulted her. PW3 said the Appellant made no reply to that at the time. When the appellant was arrested and cautioned, he did not say anything. But I drew no adverse inference against the Appellant in this regard.

In the cross-examination, it was put to PW3 that the Appellant had made a denial at the scene of the arrest. But PW3 disagreed with this.

There was no re-examination.

PW4, DPC 16681, was called. His evidence in chief was brief. He stated mainly that he had seized the two banknotes from PW2 and he produced that as P-1.

He was cross-examined. He said he was the one who took the witness statement from PW2. He said he had read PW1's witness statement. He said he recalled that PW1 had referred in her statement that the Appellant had taken her hand to masturbate him and that the Appellant had ejeculated on the bed.

There was no re-examination.

The prosecution closed it's case after tendering the 2 medical reports which were produced by consent together with the agreed facts concerning the medical examination.

The defence made no submission and I found there was a case to answer on the charge. The Appellant elected to remain silent and called no witnesses."

7. Having set out the evidence in this way, the magistrate went on to refer to the submissions and his finding of fact as follows:-

"Submissions and Finding of Fact

In his final submissions, Defence Counsel raised a number of points. He reminded the Court that it would be easy for a woman to make the allegations of indecent assault and such allegations are difficult to refute. He stated that corroboration would be desirable and there was none in the present case. He cited certain passage from Archbold stating the danger of acting on the uncorroborated evidence of the child even if it was sworn evidence. In the passage cited, it was also pointed out that '(The Jury) may act on such evidence if, bearing that warning in mind, they are nevertheless convinced that the witness is telling the truth'.

Defence Counsel further submitted on the following specific matters: the discrepancies in PW1's accounts; the lack of injuries or redness on PW1; the lack of evidence of stains on the bed sheet; the mentioning of the word 'rape' in P-3; and the fact that PWl had disobeyed her mother which would reflect on her character. Defence Counsel argued that PW1 made up the story in order to avoid being beaten or scolded by her mother. He submitted that that it would be unsafe to convict.

On the point of discrepancies. I accepted that there were some differences in the details of PW1's accounts particularly in that she mentioned the masturbation in her statement but not in Court and that she mentioned her head being pushed to the Appellant's penis in Court but not in her statement.

In a way, if defence counsel was right that PW1 had made up a story to avoid being beaten, she had achieved the purpose already. One wonder why she had to make up some more detail in her evidence about her head being pushed and not just to recite her witness statement.

As to the point about masturbation, this information came out from PW4 and was not raised specifically with PW1 in the cross examination. It would not be right for me to speculate whether there was a reason for PW1 not to mention this in her evidence, even accepting that such matter was indeed so recorded in her statement.

In any event, while I accept there were discrepancies in PW1's accounts to the police, her mother and her evidence in Court, it is only one factor to be taken into account in assessing PW1's credibility. The ultimate question would be whether I found PW1 to be an honest, truthful and reliable witness.

Concerning the point of the use of the word 'rape' in the medical report, I found that I could not read too much into this. I could not say whether it was just a wrong choice of word or that someone was told there was a rape. The doctor was not called to clarify this, again I should not speculate.

It was true that no red marks or injuries were seen on PW1 in the examinations. But considering the evidence of PW1, the Appellant did not seem to have used much force in carrying out what he had done. The lack of redness and injuries did not cause me any concern in the circumstances of this case.

As to the question of stains, according to PW4, PW1 had told the police about this and it would be up to the police to investigate and collect evidence. There was no evidence before me as to what had been done in this regard and if not, why not, The lack of such evidence in the Court did not necessarily discredit PW1's account. It meant that there was no corroborative evidence and hence PW1's evidence should be treated with caution.

PW1 admitted quite frankly that she had disobeyed her mother. But disobedience did not mean dishonesty and untruthfulness. Having considered all the evidence, the submissions made, and having seen and heard PW1, I accepted that she was a truthful, honest and reliable witness. I also found that the other witnesses to be honest and truthful. And I was prepared to act on PW1's evidence alone even bearing in mind the danger of relying on her uncorroborated evidence. I had in fact warned myself, as recorded in the brief judgment I gave, of such danger in view of both the young age of PW1 and that she was the complainant of a special case which was a case involving a sexual offence.

I rejected the submission that PW1 had made up the account just to avoid being beaten or scolded by her mother. I accepted what PW1 had said in her evidence did take place. I found that what the Appellant had done to PWl clearly constituted an indecent assault on her. I convicted the Appellant accordingly."

8. The grounds of appeal against conviction are as follows:-

"1. The Learned Trial Magistrate in his Judgement was wrong to conclude that the discrepancies found in PW1's evidence were not material which affected her credibility.

2. The Magistrate in his Statement of Findings failed to make any findings of fact following an evaluation of the evidence other than to find that he 'found PW1 to be an honest, truthful and reliable witness'.

3. The Magistrate failed to give himself sufficient or any warning of the danger of convicting on the uncorroborated evidence of PW1 who was not only the complainant in a sexual offence but also a offence but also a child who had given evidence on oath.

4. The Trial Magistrate failed to evaluate the evidence and resolve important discrepancies and/or inconsistencies. He fail also to make any findings of fact as to what act or acts on the part of the Appellant constituted the offence of indecent assault.

5. In all the circumstances of the case the decision was unsafe given the unreliable nature of PW1's evidence, the gross discrepancies in her evidence and the lack of any corroboration."

9. Mr Percy who appears for the appellant on this appeal supports grounds two and 4 together by pointing out that the only finding which the magistrate made at the conclusion of the trial was that he found PW1 to be an honest and truthful witness. He also suggests that the only finding in the Statement of Findings was that PW1 was a truthful, honest and reliable witness, and later that he said "I accepted what PW1 had said in her evidence did take place". Also "I find that what the appellant had done to PW1 clearly constituted an indecent assault on her".

10. Mr Percy complains that the complainant gave three different versions, one in chief, one in her police statement, and one to her mother, but the magistrate did not say specifically what parts of the evidence he accepted and what parts he rejected. He complains that the discrepancies have not been resolved. It is not good enough for the magistrate to just say that he accepts the truthfulness of the witness when there are three versions and he hasn't found which of the three versions is the accurate one. In this respect, he relies on a previous decision of mine in R. v. Chan Po-cheung, Magistracy Appeal 1604/90 in which the magistrate had made findings which were not specific but alternative, using the "and/or" combination, where I had allowed an appeal on the basis that the magistrate could not rely upon two alternative findings of fact upon which to base a conviction. Mr Percy has taken me through the evidence again and also stresses that the complainant embellished her evidence. He stresses the fact that at one point in her cross-exmaination she admitted lying to her mother.

11. In all the circumstances, and for the reasons stated in the grounds of appeal, the conviction was unsafe and unsatisfactory and the appeal should be allowed, he says. He points out that in PW4's evidence, there was a reference to masturbation and ejaculation but that there was no corroboration of her report to the police of ejaculation. The complainant cannot be relied upon to tell the truth, he argues.

12. Mr Forlin for the respondent concedes that there was no succinct finding of fact but argues that it is not fatal to the conviction because the magistrate has dealt with the discrepancies and reached a conclusion on the credibility of the complainant. Had the magistrate not dealt with the three versions put forward by the complainant, he, Mr Forlin, would not be opposing the appeal. It was Mr Forlin's contention that the magistrate had directed himself properly, that he had evaluated the evidence properly, and that he had reached the right conclusion.

13. I have anxiously considered the evidence and submissions. The simple fact of the matter is that the complainant was not at all shaken from her positive assertion that intimate sexual contact took place between the appellant and herself in respect of which she was at law too young to consent.

14. On the evidence as a whole it is difficult to criticise the magistrate for reaching the conclusion that the appellant's conduct towards the complainant was not innocent. Indeed it was never put to the complainant that any specific part of her evidence was false. It was only suggested that she decided to tell her mother lies about herself and the appellant in order to avoid being beaten up. It was not suggested what part of her evidence was false.

15. There is no evidence to contradict what she had said in the witness box. All the evidence went one way only. Although no inference can be drawn from the fact that the accused chose not to give evidence, his absence from the witness box means that the magistrate had only the prosecution evidence on which to decide this matter. The appellant can hardly complain if in these circumstance the magistrate, having directed himself properly, chose to accept her evidence.

16. Although I would like to have seen more precise findings of fact, I do not think that I should interfere with the verdict of the magistrate. There was evidence upon which to base that verdict and no evidence to contradict it. The magistrate had directed himself properly on the law. He was the judge of fact and saw and heard all the witnesses and in particular the complainant. I do not consider the verdict unsafe.

17. The appeal is therefore dismissed and the conviction confirmed.