HKSAR v. LEE CHUNG CHAN BORN

 [English Translation – 英譯本]

HCMA 361/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

APPEAL AGAINST CONVICTION

MAGISTRACY APPEAL NO. 361 OF 2004

(ON APPEAL FROM NKCC 8481 OF 2003)

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BETWEEN

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JUDGMENT

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1. The appellant Lee Chung Chan Born was convicted after trial before a deputy magistrate of one count of indecent assault.  He was fined $5,000.  He now appeals against the conviction.

THE PROSECUTION CASE

2.  The victim (PW1) was on her way to work in Mongkok when she boarded a public light bus at Ma On Shan at approximately 11:45 p.m. on 27^th October, 2003.  She sat on the right side of the two-passenger seat in the third row behind the driver.  There was no one sitting to her left.  PW1 closed her eyes to rest and rested her head upon the rail of the right window but did not fall asleep.

3.  The right side of PW1’s body reached the furthest end of the right side of the back of the seat and there was a 1- to 2-inch gap between the furthest end of the right side of the back of the seat and the interior wall of the public light bus.  After a while, PW1 felt something like fingertips tickling her below her right armpit.  She thought they were toes or something like a bag and ignored it.

4.  Approximately two minutes later, PW1 felt something tickling her at the same spot.  She put her hand back a little and stared at the spot below her right armpit.

5.  About three minutes later, she felt something tickling her again and saw the fingertips of an index finger, a middle finger and a ring-finger tickling her brassière strap under her armpit.  She considered whether she should get up and scold the person behind or call the police but she was afraid of losing her job due to any delay, therefore she did not take action.  Instead she held her mobile phone with her right hand and pretended to make a call, all the while looking at the spot under her right armpit.

6.  As the public light bus stopped to set down a passenger, PW1 saw more than half of a hand protrude from the gap and touch her below the armpit approximately one inch higher than the previous occasion.  The hand touched the metal wire on the side of her bra.  PW1 said that the fingers were bent forward and moved up and down for 1 to 2 seconds.  She knocked away the hand but decided to leave the matter there seeing the public light bus almost reached the terminus.

7.  Within less than half a minute, PW1 saw the hand reaching out towards her again.  This time it did not touch her body.  She grabbed the hand, stood up, turned back and said to the Appellant, “Stop it, I have tolerated you for a long time.”  The defendant replied, “Don’t wrongly accuse me.  I did not do anything.  I did not touch you.”

8.  Afterwards, someone suggested calling the police.  The Appellant wanted to get off the minibus but the driver closed the door.  The Appellant said, “Don’t wrongly accuse me.  I pay you money.  What do you want?”  PW1 replied, “I have money myself.  Why did I need to wrongly accuse you without a reason?”

9.  A policeman (PW3) arrived and arrested the Appellant.  Under caution, the Appellant said, “Ah Sir, I did not do it.  I did not indecently assault her.”

THE DEFENCE CASE

10.  The Appellant agreed that he was sitting behind PW1 but he denied that he had indecently assaulted her.  He pointed out that the public light bus switched lanes occasionally during the journey and the vehicle was wobbly.  He had on occasions grabbed with his right hand the right side of the back of the seat in front or the handle on the back of the seat in front and also the rail on the window.  The defence case was that the contact was accidental.

11.  When the Appellant’s hand was caught by PW1, he in fact said, “Miss, don’t play a joke.  What do you want?”

REASONS OF THE MAGISTRATE

12.  The Magistrate accepted PW1’s evidence.  The Magistrate found that although PW1 pointed out that the public light bus braked from time to time during the journey, the body contact was not caused by the braking of the vehicle.  In one instance, the Appellant reached out his hand through the gap while the public light bus stopped and set down a passenger.

13.  Taking into account the fact that the Appellant reached his hand out through the narrow gap between the side of the back of the seat and the interior wall of the vehicle to touch the right side of PW1’s body near to her breast, the Magistrate ruled out the possibility of accidental contact advanced by the appellant.

14.  The Magistrate refused to accept the Appellant’s evidence because of the following reasons:

(1) The Appellant knew that a lady was sitting in front of him and there was no passenger sitting on his left.  Why did he have to use his right hand to grab the right side of the back of the seat in front but not to use his left hand to balance himself?

(2) The gap between the right side of the back of the seat in front and the interior wall of the vehicle was very narrow and was less than 2 inches.  He had no reason to put his hand into such a narrow gap repeatedly to grasp or to balance himself.

(3) According to the evidence of PW1 and PW2, the traffic was normal and smooth.  There was nothing special about the traffic condition.

(4) When the hand of the appellant was caught by PW1, according to the version of PW1, the appellant said, “Don’t wrongly accuse me, I did not do anything”, while according to the appellant’s version, he said, “Miss, don’t play a joke, what do you want?”  If the Appellant had touched PW1 accidentally because the vehicle was wobbly, why did he not directly say that in order to explain his situation?  Moreover, he was an adult with a good educational background.  It was unreasonable for him not to mention that the contact was accidental.

(5) Even if the Appellant was taken by surprise and did not know how to respond immediately, yet he just denied the accusation under caution and he completely failed to mention that the vehicle was wobbly and because of which the contact was unintentional.

GROUNDS OF APPEAL

15.  The Amended Grounds of Appeal are summarized as follows:

(1) In assessing the credibility of the Appellant, the Magistrate improperly assumed that because the Appellant was an adult and of good educational background, he should,  when accused by PW1, directly mention the point that the contact was unintentional.

(2A) The Magistrate was wrong to take into account the Appellant’s failure to disclose his defence when he was investigated and cautioned by the police and used it as one of the reasons not to believe the Appellant.  The Magistrate erred in law in criticizing the Appellant’s exercise of his right to silence.

(2B) The Magistrate erred in allowing the Prosecutor to cross-examine the Appellant in relation to his failure to mention the point that the touch was accidental when he was arrested at the scene.  Such cross-examination seriously affected the appellant’s right to silence.  The Magistrate did not give himself proper directions, either.

16.  Mr. Lee representing the Appellant cited the following cases of the Court of Appeal: R v. Lau Sou Wah, CACC1174/1982 and HKSAR v. Del Carmen, [2000] 3HKC 431.  He submitted that a trial judge may not undermine the credibility of the accused’s explanations in court by commenting upon the accused’s exercise of his right to silence after arrest or his failure to reveal the defence at the first available opportunity.

17.  In Lau Sou Wah, McMullin VP pointed out:

“In Cho Chak-bor (supra) this court, while pointing out the restricted nature of the Judge’s right to comment upon silence, either in the strict sense, or else in the extended sense of failure to reveal the essential defence, nevertheless affirmed the Judge’s right – and indeed his duty – to draw to the jury’s attention any significant discrepancy between anything said by the accused after arrest – whether before or after caution (Hall v. Regina 1971 1 All E.R. 322) – and his evidence in court.  Even then it is preferable that the jury should simply be reminded of the discrepancy and advised to make what they can of it.  If the matter is plain, advocacy by the Judge is almost certainly unnecessary, and if it is not plain, then advocacy may be unfairly tendentious.

Similar considerations apply, if anything, with greater force where the Judge is drawing the jury’s attention to the failure of the accused a) to say anything at all by way of innocent explanation or b) to disclose an obvious and vital part of his defence when apprehended.  Whichever is the case – and whether it be before or after caution – anything said by the Judge which amounts to an invitation to disbelieve the accused’s defence goes too far.”

18.  Stuart-Moore VP pointed out at Page 443 in Del Carmen that:

“Whilst common sense might dictate that the failure on the part of a defendant to reveal a defence at an opportune moment prior to trial is something to be weighed in the scales when determining how much weight to attach to a defence first raised at trial, it seems that common law precedent is generally opposed to permitting the judge making any comment which invites the jury to use this feature of the evidence in this way.”

19.  Mr. Lee further cited a Magistracy Appeal case, HKSAR v. Kwok Pak Ho, HCMA 1162/1998, and submitted that although the trial magistrate’s criticism of the appellant’s exercise of his right to silence was one of the reasons for his conviction, the Judge still allowed the appeal and quashed the conviction.

20.  Mr. Lee submitted that in this case the prosecution and the defence had different versions of the events.  The Magistrate did something that was not permissible when he considered that the Appellant had to give explanation at the first available opportunity.  This was wrong in principle and affected his judgment on the evidence as a whole, caused unfairness in the trial and therefore the Appellant’s conviction was unsafe and unsatisfactory.

THE RESPONDENT’S RESPONSE

21.  Mr. Lo for the respondent cited a case of the Court of Final Appeal, Li Defan & Anor v. HKSAR (2002) 5 HKCFAR 320 and submitted that the judge has the power in an appropriate case to comment that the jury may – but need not – consider that the prosecution case on a particular issue relevant to guilt is strengthened by the absence of the accused from the witness box.  Mr. Lo submitted that the Li Defan case could be regarded as relaxing the restriction imposed in the Cho Chak-bor case.

22.  Mr. Lo further submitted that the Magistrate, in commenting on the Appellant’s failure at his arrest to explain that the contact was accidental, was in fact performing the function of a juror or was in his capacity of a judge of facts to assess and analyze the credibility of the evidence.  It does not breach the restriction in Cho Chak-bor.

23.  With regard to HKSAR v. Kwok Pak Ho, Mr. Lo submitted that the judge in the appeal also took into account that the trial magistrate did not know at the trial that the appellant had no criminal record.

CONSIDERATION OF THE APPEAL

24.  Regarding the Ground of Appeal (2B), it can be seen from Cho Chak-bor that the jury is entitled to know that the accused has exercised his right to silence after being arrested.  Del Carmen affirmed this point as well.  A judge may just let the jury reach its own conclusion on an explanation first disclosed at trial.  However a judge may not comment on the failure on the part of the defendant to reveal it prior to trial.

25.  In the Court of Appeal Case HKSAR v. Wu Wing Hong [1998] 1 HKLRD 508, Mayo JA pointed out that the dividing line between safeguarding a defendant’s right to silence on the one hand and retaining the right to the prosecution to effectively cross-examine the defendant in relation to his reaction at the time of his arrest on the other hand may be a fine line.

26.  In the present case, the prosecution only put to the Appellant that he did not mention the point of accidental contact during arrest, yet the prosecution did not pursue by asking the reason of it.  In my view, the prosecution’s cross-examination did not cross the line.

27.  However, the Magistrate failed to remind himself of the Appellant’s right to silence.  The Magistrate has breached the restriction in Cho Chak-bor by using the Appellant’s exercise of his right to silence as one of the reasons to reject the Appellant’s evidence.  Regarding this point and the Grounds of Appeal (1) and (2A), I agree with Mr. Lee’s submission that the Magistrate should not comment on the failure on the part of the Appellant to reveal his defence of accidental contact after being arrested and cautioned.  What the Magistrate did was a breach.

28.  I disagree with the Respondent’s argument that Li Defan relaxed the restriction laid down by Cho Chak-bor.  In Li Defan, the accused elected not to testify and the prosecution’s evidence was not contested.  Whereas, the restriction of Cho Chak-bor was based on the fact that the accused had testified and the judge criticized the failure on the part of the accused to reveal his defence at the first available opportunity.  The two cases are distinguishable.

29.  Mortimer VP in the Court of Appeal case HKSAR v. Kwok Chi Wah [1999] 1 HKLRD 481 pointed out that the prosecutor, whose closing speech criticized the failure of the defendant to give evidence, breached the restriction in the Criminal Procedure Ordinance (Cap. 221) section 54(1)(b) which stated that “the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution”.  This was an irregularity.  Such a breach may be very serious if it takes place before a jury.  Usually but not always it is less serious when such comments are made before a judge alone but still it must not be allowed.

30.  I have concluded that the Magistrate was in error.  However, the error was not material with regard to the case as a whole.

31.  Mr. Lee submitted that since the Magistrate was in error, I should not affirm his findings with regard to PW1’s evidence.

32.  The Magistrate’s analysis of PW1’s evidence is impregnable and Mr. Lee made no criticism about the analysis.  I affirm the Magistrate’s finding of fact and also agree with the Respondent that the evidence was strong and convincing.

33.  On the basis of his findings of the evidence of PW1, the Magistrate must reject the defence of the Appellant.  It is because they are mutually exclusive.  It would still be so even if the Magistrate did not set out the reasons why he did not accept the Appellant’s evidence.  Besides, the failure of the Appellant to disclose his explanation at the first available opportunity was only one of the reasons.  Compared with the position and width of the gap as well as the driving condition etc., it was a less important reason.

34.  Section 119(1)(d) of the Magistrates Ordinance (Cap. 227) provides that in the case of any appeal to which section 113 applies, the judge may make such other order in the matter as he thinks just.

35.  The Appeal Committee of the Court of Final Appeal in Lo Ho Chung v. HKSAR [2001] 3 HKLRD 328 pointed out that although there is in the Magistrates Ordinance no equivalent to the proviso under section 83 of the Criminal Procedure Ordinance, in magistracy appeals, according to section 119(1)(d), a judge has to decide whether there has been in the Magistrates’ Court an error which makes it just that the appeal should be allowed and the conviction set aside.

36.  Since the breach made by the Magistrate was not material, in my judgment, it is just that this appeal should be dismissed.

Representation: