HKSAR v. MUNOZ FRANK

HCMA 747/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 747 OF 2015

(ON APPEAL FROM EASTERN MAGISTRACY CASE NO. ESCC 3115 OF 2015)

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J U D G M E N T

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Background

1.  On 17 December 2014, the appellant was convicted after trial by Magistrate C K Chu of one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200, Laws of Hong Kong, he was remanded pending sentence.

2.  On 1 December 2015, the Magistrate sentenced the appellant to 3 weeks’ imprisonment.  The appellant was granted bail pending appeal.  The appellant now appeals against his conviction.

Prosecution case

3.  At the material times, the appellant was the CEO of a listed company in Hong Kong with a hitherto clear record.  The appellant is a US citizen and is married.  It is alleged that on 27 January 2015, the appellant indecently assaulted his subordinate female X first inside a bar and thereafter on the car in the course of a journey from Tseung Kwan O to Sheung Wan.  At the time, X had only joined the company for less than 3 months.

4.  It is the prosecution’s case that the material events took place after a dinner function of the company attended by its staff members and clients of the company at Lan Kwai Fong.  Amongst those attended were the appellant, X, X’s senior Alan (PW3), X’s colleague Annie.  During the dinner, alcohol was consumed by the attendees, including X and the appellant. After the dinner, upon the appellant’s suggestion, X, Annie and the appellant went to a bar nearby for a drink.  On the way to the bar, the appellant was tipsy and had to be helped to leave the restaurant by X and Annie, he had his hands on the shoulders of the 2 ladies.

5.  Inside the bar, halfway through the drink, the appellant brushed his hand(s) through X’s back and slid his hand(s) underneath X’s clothes to brush her with several strokes.  X felt uneasy and she reacted by grabbing hold of the appellant’s hand(s) in the hope the appellant would discontinue with the brushing, it ended up both of their hands landed on the appellant’s thigh.

6.  After the drink, X and Annie continued to help lifting the appellant to his company car driven by a chauffeur (DW2 Raymond Yan).  The appellant offered to take X and Annie home and both ladies agreed.  Inside the car, X was seated at the middle row on the left (behind the front passenger seat) whereas the appellant was seated at the last row.

7.  Annie was the first to alight at Tseung Kwan O. Upon Annie alighting, the appellant asked X to sit at the last row which X did not want to.  The appellant then showed an unhappy face.  X was worried if she upset the appellant her job would be affected as she had not yet passed the probation period.  X counter‑proposed the appellant to go over to the middle row and there was a passage between the 2 seats in the middle row.  The appellant moved forward and seated at the middle row on the right but he did not fasten his seatbelt despite X’s repeated request.  During the journey from Tseung Kwan O to Sheung Wan, the appellant approached X, moved close to her, kissed her face and her mouth, and touched her thigh for a few seconds and the touch moved upward.  X reacted by pushing the appellant’s hand and shoulder away and turning her face away.  The appellant first stopped for a while but then attempted to approach X again.  X pushed him away. The appellant kept approaching X and X kept pushing him away.  The appellant got hold of X’s hand and put her fingers into his month and sucked her fingers.  He also touched X’s thigh and approached her face intending to kiss X.  Eventually X was so annoyed that she asked the appellant to leave her alone to calm down.  

8.  Before X alighted in Sheung Wan, the appellant asked X to kiss him for 10 seconds and X said no.  The appellant repeated his request once or twice, X rejected and said at most they could have a hug.  X was scared what would have happened if she kept turning her boss down.

9.  After the incident, X was scared and she felt shameful, she neither complained to the driver (DW2) nor Alan who asked if she had got home safe.  X complained to her boyfriend (PW2) when she arrived home. The case was reported.  X tended her resignation to Alan the following day.

10.  Alan (PW3) gave evidence about the good character of the appellant, that the appellant was a private and family man. He also confirmed that the appellant was very drunk when he left the restaurant after dinner.

Defence case

11.  The appellant and the chauffeur Raymond Yan (DW2) testified for the defence.

12.  The appellant’s case, in short, is that X had framed up a case of indecent assault against the appellant. 

13.  The appellant testified that he was a very religious person and he was not a person who was normally accustomed to drinking and being in the company of females those circumstances.  He testified that Lan Kwai Fong was not a place he went regularly because he saw it as a bad place to go and because of his religion he did not go to places like that.

14.  The appellant admitted he went to the bar with X and Annie after the dinner but he denied having done any of the alleged indecent acts.

15.  The appellant testified that after leaving the bar, the parties headed for the appellant’s car and he offered ride to take X and Annie home.  After Annie had alight, the appellant moved from the last row to the neighbouring seat of X at the middle row.  The appellant denied all the alleged indecent acts apart from the hug.  He also agreed he had kissed X’s hand and her cheek upon X’s departure.

16.  The appellant admitted that he was not at the best of his condition at the material time but he knew what he was doing.

The Magistrate’s reasons to convict

17.  Of the clear record of the appellant, what the Magistrate considered to be clear record of DW2, the Magistrate said at paragraph 17 of the Statement of Findings (Pg 25 of the Appeal Bundle):‑

“The appellant had a clear record, the court treated and accepted that the defence witness had a clear record as well, the court had to bear in mind as to Berrada warning.”

18.  The Magistrate found that the prosecution witnesses were clear in their evidence and their evidence remained unshaken under cross‑examination.  The Magistrate accepted the evidence of the prosecution witnesses and considered that they told the truth in court (Paragraph 18 of the Statement of Findings, pg 25 of the Appeal Bundle).

19.  As for the evidence of the appellant and that of DW2, the Magistrate found the evidence of the appellant to be self‑contradictory and unreasonable.  The Magistrate considered that the appellant’s decision to go to Lan Kwai Fong after the dinner function contradicted his claim that he rarely went there because of religious reasons.  The Magistrate considered that it was unreasonable for the appellant to offer to send X and Annie home when he was tired and tipsy (Paragraph 19 of the Statement of Findings, pg 26 of the Appeal Bundle).

20.  As for the evidence of DW2, the Magistrate found that what DW2 testified in court and what he told the police in his witness statement regarding the important issue of the appellant changing seat upon Annie alighting to be self‑contradictory.  The Magistrate also found DW2 to be evasive when he sought to explain the discrepancy between his evidence in court and what he told the police in his witness statement (Paragraph 20 of the Statement of Findings, pg 26‑27 of the Appeal Bundle).

21.  The Magistrate in his Statement of Findings, had considered various issues concerning the evidence of X.  At paragraph 26, he considered why X alighted in Sheung Wan after Annie had alighted in Tseung Kwan O.  At paragraph 27, he considered why X did not complain to the driver or to Annie or to Alan.  At paragraph 28, he considered the significance if any of X openly talking about her own experience at the dinner function.  At paragraph 29, he considered whether X was drunk. 

22.  As for the evidence of Alan (PW3), the Magistrate took into account his evidence about the positive good character of the appellant.

23.  In the end, the Magistrate found that the prosecution has proven the case beyond reasonable doubt and that the appellant had indecently assaulted X as alleged and he convicted the appellant accordingly.

Grounds of appeal

24.  Mr Joseph Tse SC, leading Mr Peter Yu argue 4 grounds of appeal, the grounds of appeal in gist are:‑

(1)   The Magistrate has failed to considered the alternative defence of belief on the part of the appellant that X was or might have been consenting albeit the defence put forward at trial was one of concoction by X.

(2)   The Magistrate has wrongly accepted X’s evidence.

(3)   The Magistrate has wrongly rejected the appellant’s evidence.

(4)   The conviction was unsafe and unsatisfactory.

Respondent’s submissions

25.  Ms Hermina Ng, for the respondent, submits in gist that:‑

(1)   There is insufficient factual basis for the Magistrate to consider the alternative defence.

(2)   The Magistrate has correctly accepted X’s evidence.

(3)   The Magistrate has correctly rejected the appellant’s evidence.

(4)   The conviction is neither unsafe nor unsatisfactory.

Discussion

26.  Zervos J summarizes the nature of a magistracy appeal in HKSAR v Fok James Alistair HCMA 82/2015:‑

“4. The principles relating to a magistracy appeal are well settled. AS noted by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, a magistracy appeal is a rehearing on the papers. He explained at paras 59 and 60 that the duty of the appellate court was not to determine whether error had been made, and if so what the consequence of such an error would be as if conducting an appeal in the strict sense, but rather any error that had been identified prevented the appellate court from performing its statutory duty of conducting a rehearing. He noted that if the appellate court could conduct the hearing then it should do so if it could not then it should allow the appeal, making such order or orders as seen to it, in the circumstances, to be just. He further noted that even if no error had been identified and no ground of appeal made out then that was not the end of the matter as the duty of the appellate court was to conduct a rehearing and that it should do for its ultimate duty is to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant.

McWalters J summarized the relevant legal principles at paragraph 66 by providing eight statements of principle of which the last four are of particular relevance to the conduct of a magistracy appeal and to the discussion in this judgment. They state that:‑

5. The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong.

(6) Error by the magistrate, especially one constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7) The test in determining whether an error by a magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8) Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution, the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

6. The particular difficulty for an appellate court in the conduct of a magistracy appeal is when it is invited to interfere with the magistrate’s assessment of the credibility of a witness. The magistrate has had the advantage of seeing and hearing the witness and is in a better position to assess his credibility. It is for that reason that an appellate court will only depart from a magistrate’s determination of a witness’s credibility if it is plainly wrong. McWalters J at paras 32 and 33 provides a useful discussion on the limitation on an appellate court of not having seen and heard the witnesses. This issue leads to the next question as to how an appellate court determines whether a magistrate was “plainly” wrong in his assessment of the credibility of witness.”

Ground 1

27.  Under Ground 1, it is contended that despite the defence relied on at the trial was one of concoction by X, there was ample evidential foundation for the alternative defence of belief on the part of the appellant, based on reasonable grounds, that X was or might have been consenting.  The appellant argues that the Magistrate was under a legal duty to consider and evaluate but he had failed to do so.

28.  The “obvious and ample pieces of evidence” relied upon by the appellant are:‑

(1)   The behavior of X at the restaurant, in particular, that she had drunk two glasses of red wine and two to three glasses of after dinner wine at the restaurant.  She was in good spirit that evening. She talked with the appellant about tango dancing and she talked openly about her past experience of smoking pot in Amsterdam.

(2)   It was no part of the duty of any female subordinate or colleague of the appellant to help the appellant to his car when the appellant was tipsy, there were male staff available to help the appellant to his car.  The appellant submits that X and Annie did not mind having physical contact with their boss.

(3)   X chose to stay and drink with Annie and the appellant at the bar for half an hour to an hour despite she was against the idea of going into the bar.

(4)   The reaction of X to the improper advances of the appellant inside the bar might not be interpreted as a form of protest or resistance.  Her reaction could be consistent with a reluctance on her part for him to be brushing her back or putting his hands underneath her clothes in public or in front of Annie.

(5)   Despite the improper advance by the appellant inside the bar, X still let the appellant lean on her upon leaving the bar to the car.  When they left the bar, they chose to walk up the stairs instead of taking the lift.

(6)   X, having successfully taken the appellant to his car where DW2 was, ought to have left and gone home.  She did not need a lift from the appellant who had just made inappropriate advances towards her, all the more she lived in Sheung Wan, not far away from Lan Kwai Fong.  The conduct of X would have seriously misled the appellant as to her true intention by continuing not to leave him as soon as possible.

(7)   As Annie lived in Tseng Kwan O and X lived in Sheung Wan, logically the car should have gone from Lan Kwai Fong to Sheung Wan, then cross over to Tseung Kwan O.  The route taken, first to Tseung Kwan O for Annie, then to Sheung Wan for X was illogical.

29.  In my judgment, it cannot be reasonably contended that the behavior of X at the restaurant could possibly make the appellant to believe that she actually consented to or might have been consenting to the appellant’s advances.  The consumption of alcohol, the fact that X was in good spirit and she talked with the appellant about tango dancing and she talked openly about she having smoked pot in Amsterdam, whether taken individually or collectively, could not possibly form the evidential foundation for the alternative defence on the part of the appellant, based on reasonable grounds that, X was or might have been consenting.

30.  Although X was under no duty to help the tipsy appellant to his car, and there were other male colleagues who could have done the job of helping the appellant to his car.  X’s explanation, which was accepted by the Magistrate, was that she was “being dutiful as an employee”, she considered that taking care of the boss was part of her duty and she knew that the appellant had a very important meeting on the following day.  Alan had to attend to the guests and he left with them.  It was against this background that X and Annie offered themselves to usher the appellant to the car. I agree with Ms Ng’s submission that it is one thing to allow a person of opposite sex to place his arms over one’s shoulder (which in the circumstances was not indecent in nature), it is quite another matter to allow that person to have intimate and indecent physical contact.  In my judgment, the fact that X and Annie offered to help to usher the appellant to the company car and the fact that in the course of doing so, the appellant had placed his arms over X and Annie’s shoulders could not possibly give rise to belief, albeit a mistaken one, based on reasonable grounds, that X was consenting to have intimate body contact with the appellant.

31.  Likewise I do not think the fact that X was prepared to spend half an hour to one hour with the appellant and Annie inside the bar could not possibly give rise to belief, albeit a mistaken one, based on reasonable grounds, that X was consenting to have intimate body contact with the appellant.  X was initially against going to the bar, she agreed only after the appellant repeatedly requested her to go.  The circumstances under which X agreed to go to the bar could not possibly make the appellant believe X would consent to have intimate body contact with him.

32.  The appellant’s submission suggests that the reaction of X towards the improper advances of the appellant inside the bar, in particular, the grabbed hold of the appellant’s hand(s) and eventually both of their hands ended up landing on the appellant’s thigh might not be interpreted by the appellant as a form of protest or resistance.  X’s reaction was consistent with X being reluctant to have intimate bodily contact with the appellant in public or in the presence of Annie.  In my judgment, X only grabbed the appellant’s hand(s) when the appellant was brushing through her back and sliding his hand(s) underneath her clothes to brush her with several strokes.  The grabbing of the appellant’s hand(s) was clearly an indication of disapproval on the part of X to the appellant’s advances towards her, the way X reacted to the advances could in no way be interpreted in the way the appellant suggests.

33.  I do not think the fact X was prepared to help the appellant to the car with Annie when the three left the bar could possibly give rise to belief on the part of the appellant, albeit a mistaken one, based on reasonable grounds, that X was consenting to have intimate body contact with the appellant.  On X’s part, she was just being dutiful as an employee.  On the part of the appellant, he knew his condition required the help of X and Annie.

34.  The appellant knew X and Annie were his subordinates.  The advances towards X by the appellant inside the bar were stopped by X.  The appellant could not possibly believe X would consent to have further intimate body contact with him.  I do not consider the fact that the three walked up the stairs instead of taking the lift take the appellant’s argument on the alternative defence any further.  I agree with Ms. Ng’s submission that there is no evidence it was X’s decision not to take the lift but took the stairs instead and there is no evidence to suggest at the time she was aware a lift could take them up.

35.  I agree with Ms Ng submission that there is no evidence to suggest that X was responsible for the route taken by the driver, DW2.  DW2 did not know who, X or Annie, told him to drive to Tseung Kwan O.  In my judgment, there is no basis to hold X responsible for the route taken by DW2.  X’s decision to accept the offer from the appellant to send her home was consistent with what she saw as her duty to take care with her boss.  I do not consider the fact X agreed to accompany the appellant on the journey or taking his lift and the route taken by DW2 could possibly give rise to belief on the part of the appellant, albeit a mistaken one, based on reasonable grounds, that X was consenting to have intimate body contact with the appellant. 

36.  In my judgment, what the appellant put forward as the “obvious and ample pieces of evidence”, whether taken individually or collectively, fail to meet the threshold for the Magistrate to consider the alternative defence.  The Magistrate was under no duty, on the evidence of the present case, to consider whether the appellant had or might have the mistaken belief.

37.  Ground 1 fails.

Ground 2

38.  Mr Tse SC submits that X had every opportunity to go home at different stages but didn’t.  If what X told the Magistrate was the truth, Mr Tse SC submits, it was as if she had deliberately put herself in the position to be with the appellant.  In my judgment, it is clear from the evidence of X that she went to the bar only after repeated asking by the appellant, in any event, she did not know the appellant would act in the way he did in the bar when she agreed to go with the appellant and Annie.  As for her decision to accept the appellant to drive her home after they left the bar, as far as X was concerned, she had stopped the appellant’s advances towards her in the bar, and Annie would be present during the car journey.  It was not unreasonable for X to accept the offer of the boss to take her home by the company car driven by DW2 with Annie present.  As for the route taken, looking at the evidence of X in context, there is no evidence that X was responsible for the route taken.  DW2’s evidence was disbelieved by the Magistrate.  In my judgment, it cannot be said that X had deliberately put herself in the position to be with the appellant.

39.  For X’s failure to seek help/complain to Annie, DW2 and Alan (PW3).  It is clear from the evidence that X did not know the driver (DW2) personally, she could not even tell if she had taken the same vehicle with driver the day before.  In my judgment, the fact that X did not complain to DW2 whom she did not know well and had no personal trust is not inconsistent with her evidence that she was indecently assaulted by the appellant inside the vehicle.  As for the incident inside the bar, it was not unreasonable for X not to seek help or complain to Annie if she thought she managed to put an end to the improper advances by the appellant.  The boss, i.e. the appellant would be embarrassed if X complained to Annie about the advances and X might not want to embarrass the appellant after she had put an end to the improper advances.  As for X’s failure to complain to Alan and Annie after the indecent assault inside the car, in my judgment, the fact that X complained to her boyfriend (PW2) later that evening but not to her colleagues (PW3 and Annie) should not have any adverse impact on the credibility of her evidence.  One cannot say because X complained only to her boyfriend but not to PW3 and Annie, therefore her version is not credible.  What had happened to X, if X had told the truth, was something very embarrassing and she was very upset.  The person who wronged her was the CEO of the company she had joined for not long, it was not unreasonable for X just to complain to her boyfriend but not to her colleagues.  It is not in dispute that X tendered her resignation to PW3 the day after the incident, accompanied by her boyfriend.  X did not tell PW3 why she resigned.  The fact that X did not tell PW3 why she resigned is consistent with the fact she complained only to her boyfriend but not to any of her colleagues. 

40.  Mr Tse SC criticizes X’s evidence that when she got into the car with Annie, she told the driver she was living in Sheung Wan without telling him where she lived in Sheung Wan, not until after the party had gone to Tseung Kwan O and Annie had alighted as inherently improbable.  Mr Tse SC also submits there is inconsistency between X’s evidence in chief and her evidence under cross‑examination.  X in chief said their initial plan was for X and Annie to alight at Sheung Wan and X never said there had been a deviation from the planned route.

41.  Stock J (as he then was) in R v Kwong Wing On and Chung Wai Man HCMA 574 of 1996 suggests the correct approach to discrepancies:

“A microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to police, and a myriad of bits and pieces to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. … A realistic approach must be encouraged, and the approach to such attacks is to ask whether there has been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility ion central facts.”

42.  It is not in dispute that the car did travelled to and Annie alighted in Tseung Kwan O.  I do not consider the evidence of X that Annie and X once planned to alight in Sheung Wan conflicts with the fact that the car travelled to Tseung Kwan O and Annie alighted there.  X was not asked why there the original plan was changed does not mean her evidence was inconsistent.  In my judgment, the “inconsistency” is more apparent than real.

43.  For the criticism that X’s evidence on the subject of the route taken that night was inherently improbable, I agree with the submissions of Ms Ng at paragraph 39 of the respondent’s Submissions:

“As said, X found herself responsible to take care of the boss and she had not passed the probation period and would not want to upset her boss. With that in mind, it is reasonable she out of courtesy accepted the appellant’s offer for a lift. It was not X who asked for a lift from the appellant. As noted, there is no evidence she had a role to play to decide whether she was dropped off first or last. She did not ‘cause’ herself to be the last to alight from the car. The reasonableness or otherwise of the driver is no fault of X. According to X, at the time the vehicle departed from Lan Kwai Fong to Tseung Kwan O, X had not told the driver the exact address but had mentioned Sheung Wan [87T‑88I]. She was not asked at which point of time she was aware that the vehicle was not travelling to Sheung Wan and she was not asked both in chief and under cross‑examination whether she had said something in this regard to the driver. As to the reason why Annie did not say anything to the driver, only Annie can answer but this should not be used to read against X’s credibility….”

44.  On the issue of inherent improbability or otherwise of X’s evidence, it is useful to look at Lord Reid’s judgment in Benmax v Austin Motor Co Ltd [1955] AC 370, 375.  The same passage was quoted with approval by Ribeiro in HKSAR v Egan (2010) HKCRAR 314, 382.  Lord Reid said:‑

“But the advantage of seeing and hearing a witness goes beyond that: The Trial Judge may be ked to a conclusion about the reliability of a witness’s memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may ne rightly discounted by the Trial Judge or, on the other hand, may be rightly discounted by the Trial Judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations.”

45.  Lord Wright in Powell v Streatham Manor Nursing Home [1935] AC 234,267 explained what material not available to an appeal court is and why evidence that reads well in print may be lightly discounted by a trial judge or why he may rightly attach importance to evidence which reads badly in print:‑

“But where the evidence is conflicting and the issue is one of fact depending on the evidence, any judge who has had experience of trying cases with witnesses cannot fail to realise the truth of Lord Sumner says: as the evidence proceeds through examination, cross‑examination and re‑examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trust‑worthiness and of the accuracy of his observation and memory or the reverse. He will not necessarily distrust a witness simply because he finds him inaccurate in some details: he can give such inaccuracy its proper place, particularly if he sees that the witness is tired, or antagonized, or confused, or perhaps impatient, and especially if the matter of the inaccuracy is of minor or collateral importance. But such inaccuracies may appear in a very different light when pointed to as isolated passages in the shorthand notes and abstracted from the human atmosphere of the trial and from the totality of the evidence. The judge will from his own impression from the whole personality if the witness: he can allow for the nervous witness, standing up in a crowded Court or worried by the strain of cross‑examination. The judge maybe deceived by an adroit and plausible knave or by apparent innocence: for no man is infallible; but in the main a careful and conscientious judge with his experience of Courts is as likely to be correct in his impressions as any tribunal, unless perhaps, as some would say, a jury of twelve members is preferable.”

46.  In my judgment, the evidence of DW2 that the Sheung Wan address was only given to him by the other girl (X) while they were in Tseung Kwan O did not advance the appellant’s case, as the Magistrate, for cogent and convincing reasons given in paragraphs 20 and 21 of the Statement of Findings, rejected the evidence of DW2.

47.  In my judgment, the Magistrate was not wrong to accept the evidence of X on this issue.

Ground 3

48.  Part of the complaint under Ground 3 concerns the way the Magistrate dealt with the positive good character of the appellant.

49.  The Magistrate said at paragraph 17 of the Statement of Findings (Pg 25 of the Appeal Bundle):‑

“17. The appellant had a clear record, the court treated and accepted that the defence witness had a clear record as well, the court had to bear in mind as to Berrada warning.”

50.  Mr Tse SC submits that a full Vye direction should have been given. 

51.  The Court of Final Appeal summarized the Vye principles in Tang Siu Man v HKSAR 1 HKCFAR (1997‑1998) 107, In the judgment of Litton PJ at page 117:‑

“The Vye principles are as follows (see r v Aziz [1996] AC 41 at p. 51D):

(1) A direction as to the relevance of his good character to a defendant’s credibility is to be given where he has testified or made pre‑trial answers or statements. (2) A direction as to the relevance of his good character to the likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre‑trial answers or statements. (3) Where defendant A of good character is jointly tried with defendant B of bad character, (1) and (2) still apply.

A direction in accordance with para. (1) above is the ‘credibility’ direction and that in accordance with para. (2) is the ‘propensity’ direction; and where appropriate these directions would generally be along the following lines (see the judgment of the Court of Appeal in R v Lee Kam Yuen [1995] 1 HKCLR 264 at p. 266:

(2)   The accused’s good character helps him in two ways. First, it is to be taken into account in his favour when you decide the weight to give to what he said in the witness‑box.  Secondly, he can rely on his good character as making it more unlikely than otherwise that he would commit crime, as the prosecution alleges he did.”

52.  It should be noted that in Tang Siu Man, though Litton PJ said at page 133D of his judgement that where positive evidence of good character had been adduced and nothing discreditable concerning the defendant had emerged, a summing up which failed to give a full Vye direction might well render the summing‑up unbalanced and unfair, Litton PJ also pointed out at page 133B‑C that there was no need in Hong Kong to impose the Vye regime on trial judges.  The regime had not been demonstrated to work well in other jurisdictions.  At the extreme, Vye directions required trial judges to give directions and then add qualifications in an attempt to return to the confines of common sense.

53.  Mr Tse SC submits a Vye direction, not Berrada direction should be given.

54.  In R v Berrada (1990) 91 Cr App R 31, the English Court of Appeal said:

“In the judgment of this Court the appellant was entitled to have put to the jury from the judge herself a correct direction about the relevance of his previous good character to is credibility. That is a conventional direction and it is regrettable that it did not appear in the summing‑up in this case. It would have been proper also (but was not obligatory) for the judge to refer to the fact that the previous good character of the appellant might be thought by them to be one relevant factor when they were considering whether he was the kind of man who was likely to have behaved in the way that the prosecution alleged. I think that the trial judge verged on saying something to that effect but she did not in fact say so in clear terms, because the point was submerged in other comment.

On behalf of the Crown, Mr Vagg has suggested that a direction to the effect that I have indicated is not mandatory and he has referred to a very abbreviated report of the case of Smith [1971] Crim LR 531.  It is, of course, true that varying options have expressed in the past about the need for a direction about a defendant’s previous good character in the course of a summing‑up.  We have no doubt, however, that the modern practice is that, if good character is raised by a defendant, it should be dealt with in the summing‑up.  Moreover, when it is dealt with, the direction should be fair and balanced, stressing its relevance primarily to a defendant’s credibility.  The summing‑up in the instant case was defective in that regard.”

55.  In my judgment, the Magistrate had obviously borne in mind the effect of the appellant’s positive good character when he considered the credibility of the appellant’s evidence and propensity of the appellant to commit the crime under complaint.

56.  The Magistrate was aware of the evidence given by PW3 who testified about the good character of the appellant.  He considered the evidence of PW3 in paragraph 34 of the Statement of Findings (Pg 31‑32 of the Appeal Bundle).

57.  The Magistrate said at paragraph 15 of the Statement of Findings (Pg 25 of the Appeal Bundle):‑

“The appellant had a good background.”

That must also be a reference to the positive good character of the appellant.

58.  When the Magistrate referred to the clear record of the appellant and that of DW2, the Magistrate had the borne in mind the effect of the good character had on the credibility issue of the appellant’s and DW2’s evidence.  DW2 was not on trial, there was no issue of propensity as far as DW2 was concerned; the reference to the clear record of the appellant and DW2 must be a reference of the credibility direction. 

59.  On the question of propensity direction, when the Magistrate considered the evidence of PW3 at paragraph 34 of the Statement of Findings (Pg 31 of the Appeal Bundle), he said:

“PW3 had also given some positive comments on the usual behaviors of the appellant which the court had taken into account. However PW3 was not present at the scene. Although the court accepted that the appellant was a good man in the past, PW3 was not able to tell what had happened to X after they left the restaurant.”

60.  From the above passage, I am sure the Magistrate accepted the evidence of PW3 and he found that the appellant was a man of positive good character.  It is clear to me that the Magistrate had in mind the propensity direction when he pointed out the fact that PW3 was not present to see what happened inside the bar and in the car where the alleged indecent assault took place.

61.  It is true that the magistrate mentioned the Berrada direction but not Vye, in my judgment, the Magistrate had clearly borne in mind the effect of the appellant’s positive good character both on the credibility and propensity issue.

62.  I do not agree with Mr Tse SC that the Magistrate had rejected the appellant’s evidence of his own positive good character.  As right pointed out by Ms Ng, the Magistrate’s findings had to be read in context, the Magistrate found that the appellant’s decision to go to the bar contradicted what the appellant claimed, i.e. he rarely went there because of religious reason.  In my judgment, the Magistrate did not find going to a bar was something that goes against the good character of a person.  It was the appellant who said he rarely went to a bar because of religious reason and the Magistrate rightly found that the appellant’s decision to go to the bar that evening was at odds with his evidence that he rarely went to a bar because he saw it as a bad place to go and his religion requires that he should not go to places like that.  With respect to Mr Tse SC, I do not think the Magistrate had ever rejected the appellant’s evidence of his positive good character, nor had the Magistrate treated the appellant as a person who lied under oath about his positive good character.

63.  I do not think the Magistrate was self‑contradictory when he rejected the evidence of the appellant whilst he accepted the evidence of PW3 about the positive good character of the appellant.

64.  Mr Tse SC argues that it was not unreasonable for the appellant to offer a ride to X and Annie.  He submits that the Magistrate seemed to have engaged in double standard in assessing the appellant’s and X’s evidence.  On the one hand, the Magistrate found that it was unreasonable for the appellant to offer a lift to X and Annie, on the other hand, the Magistrate found that it was understandable why X would let Annie be sent home first because of her courtesy.  I agree with the respondent’s submission that it is one thing whether the making of the offer to give a ride was reasonable or not; it is quite another matter whether it was reasonable or not to accept.  The Magistrate had the advantage of seeing and hearing the evidence of the appellant, he is entitled to find that it was unreasonable for the appellant, being the CEO of the company and being tired and tipsy at the time, should offer to give a ride to X and Annie, instead of going home to rest.  The Magistrate’s decision on this issue is not “plainly wrong”.

65.  As for X’s acceptance of the offer, one must bear in mind the appellant was the CEO of the company. X had just joined the company and she had every reason not to upset the appellant.  I agree with the respondent’s submissions the fact that Annie had alight in Tseung Kwan O is not something that works against X’s credibility, there is insufficient evidential basis to suggest that X had deliberately let herself to be the last person to remain with the appellant in the car journey.

66.  Ground 3 fails.

Ground 4

67.  In my judgment, Ground 1 to 3 all fails for the reasons given.  It cannot be reasonably argued that the Magistrate’s findings of fact or assessment of credibility was plainly wrong.

68.  On a re‑hearing of the evidence, I am satisfied that on the evidence adduced by the prosecution the guilt of the appellant had been proven beyond reasonable doubt.

69.  I dismiss the appeal against conviction.