HKSAR v. CHU KAI WA

HCMA 670/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 670 OF 1999

(On appeal from ESCC 958 of 1999)

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J U D G M E N T

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1. The Appellant in this case appeals against his two convictions for Common Assault. The charges were originally two charges of Indecent Assault, but at the end of the trial the Magistrate ruled that the circumstances of the assaults were not such as to amount to indecent touching, and therefore convicted the Appellant of common assault.

2. The grounds of appeal against the conviction were on three points. First that the Magistrate's treatment of the issue of corroboration made the conviction unsafe and unsatisfactory. I agree that it was unsatisfactory; it was not really dealt with at all by the Magistrate.

3. The second ground is that the Magistrate placed too much reliance and emphasis on the demeanour of the complainant and the Appellant. There is no indication that the Magistrate placed undue reliance or emphasis upon demeanour, her only comment on demeanour was that she actually paid attention to it, without saying in what manner she did so. There is no substance in that ground.

4. The main ground of the appeal is that the reasons given by the Magistrate for conviction were so inadequate that they rendered the conviction unsafe and unsatisfactory. Here counsel is on strong ground.

5. The Statement of Findings was very short. It merely stated the charge and the fines ordered to be paid for each charge. The Magistrate states "I have stated clearly my findings and reasons for conviction and I would adopt the same here" and attached the two pages of the recorded proceedings where she gave her reasons at trial. Adding to those matters, the Magistrate said "This court has carefully watched the demeanour of the witness and the defendant in the witness box and considered the issues raised by the defence counsel in final submission". That is the sum content of the Statement of Findings.

6. Unfortunately the Magistrate had not stated clearly her finding and reasons for conviction at the hearing. When one turns to the reasons that were given, apparently after an adjournment of 10 days for consideration of the verdict, the Magistrate simply talks in generalities. There is no indication at all from her comments as to what the case was about and what the significant evidential issues were. It is impossible for me to work out even with the assistance of defence counsel's nine page submission what the actual facts and evidence were, and what the real evidential issues were in this hearing. The Magistrate merely said that the Court had reminded herself of the matter of corroboration, without stating why corroboration was required, whether there was any corroboration and if not whether or not she was proceeding to convict without it.

7. Further generalities were that the court has considered all the evidence and the court is satisfied PW1 is telling the truth and that the Defendant was dishonest. There was no proper evaluation of the evidence, there was no examination of the material put before the court by the witnesses, there is no comment on any exhibits. A very short paragraph examined whether or not the touchings complained of were indecent, but there are no facts before this appeal court from which I could deduce under what circumstances those touchings took place.

8. It is not sufficient for the Respondent to point out that the Magistrate had lengthy submissions from the defence counsel on which she could base her findings. The Magistrate has given no adequate reasons for her decision at all, nor has she prepared a proper Statement of Findings.

9. In those circumstances, I cannot be satisfied this conviction is safely founded and I have no other option but to allow this appeal. These convictions are discharged and the fines ordered to be returned.