THE QUEEN v. WONG SHING FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1482 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 24th August 1990, the appellant was convicted by the Magistrate of indecent assault on a female, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. Having allowed his appeal, I indicated I would give detailed reasons later, and I now do so.

2. It was alleged in the particulars of the charge that the defendant indecently assaulted LEUNG Yi-chun. This lady, who was the 1st prosecution witness, gave evidence which, if believed, would certainly establish that an indecent assault took place upon her on a crowded MTR train while it was proceeding from one station to another. The 2nd prosecution witness, who was a fellow passenger on the train, also gave evidence to the effect that he had seen a man touching the complainant on her right buttock whom he identified as the appellant. He demonstrated a pinch with a squeezing and moving action. However, the assault which the complainant described, was one with a higher degree of indecency than that described by him, although the touching of her buttock was an integral part of it.

3. As soon as the train reached Yaumati Station, the doors opened and all three, the complainant, the fellow passenger (P.W.2) and the appellant alighted. The witness, P.W.2, went up to ask the complainant if she knew the man concerned, and said "If the man ...", but before he could utter the word "touched", P.W.1 had already nodded. He then went after the man (the appellant) and seized him and a report was duly made. The 3rd prosecution witness was a police constable who, on the day in question, went to the station master's room at Yaumati MTR station and received the complaint from P.W.1 of indecent assault against the appellant.

4. At the conclusion of the case, the Magistrate wrote a short judgment setting out the reasons why he found all the necessary elements of the offence proved by the Crown beyond reasonable doubt and he convicted him as charged. The appellant was then remanded in the custody of the' Commissioner of Correctional Services until the 7th September 1990 for a probation officer's background report. On the 7th September, having seen the report and heard the appellant's legal representative in mitigation, the Magistrate passed the sentence of 1.4 days' imprisonment and ordered the appellant to pay $1,000 compensation to the victim, LEUNG Yi-chun.

5. On the 21st September 1990, the appellant gave notice of appeal against the conviction on the general grounds that these was no sufficient evidence whereon to found the said conviction and that it was against the weight of evidence. On the 2nd October 1990, the Magistrate, as he was bound to do under section 114 of the Magistrates ordinance, prepared a statement of findings upon the facts and other grounds of decision.

6. On the 28th November 1990, new grounds of appeal against conviction were submitted by the appellant's counsel in substitution for those set forth in his notice of appeal.

7. The first of these new grounds of appeal was that the learned Magistrate erred in law in failing to indicate in open court that he had in mind the risks inherent in relying upon identification evidence where the quality of the identification evidence was not good. Particulars were also set out of matters which it is alleged he failed to take into account in this respect.

8. Ground two was that the learned Magistrate erred in law in failing to remind himself at the trial of the danger of convicting on the uncorroborated evidence of the complainant. It was contended on behalf of the appellant that even though the learned Magistrate had subsequently referred in his Statement of Findings to the fact that he had warned himself on the matter of corroboration of the evidence of the complainant, it being an offence of a sexual nature, he had failed to make any such reference to this when giving his reasons in open court. It was further contended that the magistrate failed to identify what he considered to be corroborative evidence.

9. There were other grounds of appeal but it is not necessary for me to deal with those, except ground six, which was in general terms, that in all the circumstances of the case, the conviction is unsafe and unsatisfactory.

10. Miss Wacks, for the appellant, relied upon the decision of the Hong Kong Court of Appeal in R. v. Hui Lap Keung and Others where a District Judge announced his verdict and gave reasons for verdict and later entered on record a 10-page document headed "Decision".

11. In the course of the judgment, of the Court of Appeal Silke, V.-P. commented that the practice of recording two reasons for verdict, one at the time of the verdict was announced and the other subsequently, was not to be encouraged. Difficulties would arise if there were any inconsistency. The best course was for a District Court Judge to make public, and place on record, all that was needed to be said in a particular instance at the time of verdict. If this were not possible the judge should, in the first instance, confine himself to the verdict alone.

        Later in his judgment he said:-

"In sheik Abdul Rahman Bux and others v. R. [1989] HKLR 1 Sir Denys Roberts, C.J., in delivering the judgment of the Court, set out that which is now the law where a district judge fails to set out certain elementary rules of law in the. course of those reasons. At p.6 of the report, he said this - the issue there being a failure by the trial judge to bring together the evidence as related to each defendant separately:

 

'It is correct that the judge did not indicate that he realized that it was his duty to consider the case for and against each defendant separately. But we do not think that it should be incumbent upon a district judge to set out such an elementary rule in his judgment. Unless it is clear that he did not follow this rule, it should be assumed that he did.'

 

We must therefore assume that a judge does have the rulers in mind unless it be shown clearly to us that he has failed to treat the matters complained of in the manner he should. However, when a district judge fails to be seen to give himself essential directions, however elementary they may be, an appellant court will naturally scrutinize that which he does say in his reasons for verdict with particular care."

 

Miss Wacks argued that if the Magistrate does elect to give reasons for verdict in open court, then the subsequent statement of findings should be confined to adopting the said reasons and expanding upon them, but it should not venture into previously unchartered territory, because to do so is to pave the way for the type of inconclusiveness to which Silke, V.-P. referred. She added that there was a danger that the defendant and the public at large will feel that justice has not been seen to be done. It should not be open to the Magistrate, if he gives reasons for verdict in court, to avail himself of an unfair advantage by tying up the matter later with the benefit of hindsight.

12. The judgment which the Magistrate gave at the conclusion of the case was very short and I set it out in full:-

"I consider the defence submissions not sustainable. I find that the mere fact that a Defendant with an obvious interest in the outcome of the case gives evidence denying the offence does not of itself cause or create a reasonable doubt about his guilt. The determination of a criminal case is much more complex than that.

 

I find that the witnesses for the prosecution P.W.1 and P.W.2 gave evidence of such combined cogency as to the identification of the Defendant as the man who touched P.W.1 indecently (each witness contributing to the one picture in point of place and time) that I have no reasonable doubt that he is guilty of the offence as charged.

 

If the evidence is of the weight and cogency that I find it to be, then a Defendant may repeat both in and out of Court that he was not the culprit as often as he likes, and there will still remain no reasonable doubt that it was he who committed the offence.

 

I specifically find the parts of P.W.1 touched by Defendant constituted indecent touching. And as to the question of P.W.1's possible consent to it, I find no person in the Defendant's position (as I find it to be, of touching P.W.1 indecently) could ever believe, in such circumstances as disclosed in this evidence before me, that there was any possibility of consent.

 

I find all the necessary elements of this offence proved by the Crown beyond reasonable doubt. Defendant is convicted as charged."

 

13. It is patently clear that the Magistrate did not, in his written judgment at that time, indicate that he had warned himself on either the matter of identification or corroboration. As this was an allegation of a sexual assault, it was encumbant on the magistrate to warn himself of the danger of convicting on the uncorroborated testimony of the complainant and to identify evidence of corroboration relied upon by him. In view of the crowded condition of the train with a press of people it was also encumbant on the magistrate to give himself the "Turnbull" direction on identification.

14. It is clear that the Magistrate did, in his Statement of Findings, indicate that he had warned himself on both these aspects of the case.

15. Leaving the statement of Findings aside for the moment, I do not think. it would be right for an appellate court to assume that the magistrate has given himself these directions in the absence of specific references to either of them. They are matters of extreme importance in a criminal trial, and it should be made abundantly clear from the record that the magistrate did so warn himself.

16. When the Magistrate in his statement of findings states that he did give himself the appropriate warnings, it is, of course, open to the appellate court to accept what the Magistrate has said in this respect, unless there is reason to believe from the record that the statement of findings may not be accurate in that respect.

17. In the written judgment, at the conclusion of the trial, which has been set out above, it is obvious that the maigstrate did direct his mind to such matters as the complexities in "the determination of a criminal case". He said:

"I find that the mere fact that a Defendant with an obvious interest in the outcome of the case gives evidence denying the offence does not of itself cause or create a reasonable doubt about his guilt. The determination of a criminal case is much more complex than that."

 

18. In the third paragraph of his judgment, he again dealt with the defence evidence.

19. Leaving aside the accuracy of the propositions stated by the Magistrate in these two paragraphs, it is clear that he was making remarks about the way he should approach the evidence of the defence. He obviously considered these matters important to his judgment at the time, otherwise he would not have recorded them. Even if the Magistrate did give himself the warnings as he has subsequently contended, it was not made apparent to the parties at the time of he gave judgment. I am left with the uncomfortable feeling that justice may not have been done and certainly has not been seen to be done in this case. For that reason I allowed the appeal and set aside the conviction.

20. Having regard to the prevalence and seriousness of the offence charged and the nature of the evidence against the appellant, I considered that it was appropriate that there should be a re-trial and I so ordered.