HKSAR v. CKC

[English Translation – 英譯本]

HCMA 78/2020

[2020] HKCFI 2584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 78 OF 2020

(ON APPEAL FROM WKCC 700018/2019)

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J U D G M E N T

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1.  The appellant was charged with two counts of indecent assault[1]. He attended the juvenile court where he pleaded not guilty. After trial, he was found guilty of both charges by the magistrate[2] and sentenced to probation for 12 months. The appellant appeals against his conviction and sentence.

Prosecution case

2.  The appellant and two girls who claimed to have been assaulted by him (“X” and “Y”) studied in the same secondary school. X transferred to that school in the school year of 2018-2019, studying in secondary three. She was in the same class with Y and the appellant. X and Y were good friends, but she seldom talked to the appellant.[3]

Charge 1

3.  On 3^rd October 2018, X, Y, a male classmate (“PW3”) and the appellant had lunch together. After lunch, they went back to school together and walked up the stairs to the 4^th Floor.  Y and PW3 walked up the stairs first and at a quicker pace, X and the appellant were behind them.  When X had just walked up a few steps where she was one step above the appellant, the appellant, who was on the right side of X, hit the right side of her buttock once with medium force.  X did not witness the appellant hit her, but after she was hit, she immediately looked over her shoulder and questioned the appellant why he hit her.  The appellant was just laughing.[4]

4.  When X had walked up two steps further, the appellant hit the right side of her buttock again with medium force. X told the appellant not to hit her anymore, and the appellant responded that he was just playing. Having scolded the appellant, X continued to walk up to the classroom on the 4^th Floor.[5]

5.  X met Y and PW3. She told Y that the appellant had hit her buttock, and that she felt very unhappy and uncomfortable. Y thought that X was very angry at that time. Since X had just transferred to that school and was not well acquainted with the classmates and teachers, she did not relate the incident to the teacher.[6]

Charge 2

6.  About half a year later, around 2 p.m. on 3^rd April 2019, Y was having the lesson of Ethics and Religious Studies with classmates. The appellant sat on the left side of Y and was doing the worksheet together with Y.  Later when Y was having her head put on her arms for a rest on the desk, she felt the appellant stretch out his hand to her and gently “squeeze” her left breast for about 5 or 6 times, which lasted for about 2 to 3 seconds. Y sat up and saw the appellant’s left hand stretch out to the position of her left breast and coming into contact with her clothes. She did not feel any force in that touch. Y scolded the appellant. When the incident occurred, it was still in the lesson of Ethics and Religious Studies and the teacher was in the classroom, but when Y scolded the appellant, it was already in the break between lessons. In the class, some people were sleeping, some went out of the classroom and some were shouting, nobody therefore heard her scolding the appellant.  After Y had scolded the appellant, the appellant stood up, patted her left breast once and said “I’m leaving now” before he returned to his seat.[7]

7.  On the following morning, Y told X that the appellant had “squeezed” her breast. X also mentioned again the earlier incident in which the appellant hit her buttock. Later, the two related the incidents to the teacher and made a report to the police.[8]

Defence case

8.  The appellant gave evidence at the trial and called one witness.

9.  The appellant’s testimony included his version of the facts in respect of the two incidents, the circumstances of the many occasions on which he was with X and Y after the incident of Charge 1, and his personal background.

10.  In respect of Charge 1, the appellant said on that day when X, Y, PW3 and he returned to school after lunch, he did not take the same flight of stairs with the three of them to the classroom on the 4^th Floor. He first walked past the corridor on the Ground Floor to the male toilet. Then he watched other students playing basketball at the basketball field.  It was not until the bell for the lesson rang that he took another staircase at the end of the corridor to the classroom on the 4^th Floor.  When he saw X and Y again, they were already in the classroom.[9]  The incident alleged by X did not happen.

11.  In respect of Charge 2, the appellant said on that day when he was having the lesson of Ethics and Religious Studies, he sat on the left side of Y as arranged by the teacher for doing the worksheet, and Y was playing with her mobile phone. He had no body contact with Y during the lesson nor at the break between lessons. Y did not scold him either. When the lesson finished, he went back to his seat.[10]

12.  The appellant stated that after the day specified in Charge 1, he had many activities with X and Y on various occasions, such as going to the Ocean Park, going to Kwai Chung with X to collect class-wear, celebrating Y’s birthday, having Christmas party, going out for a walk and having sports competition. He also said that he had good and harmonious relationship with X and Y during the school year. Even after the first alleged incident, there was no sign of them staying away from him.[11] 

13.  The appellant also stated that he had outstanding performance in athletics and swimming. His goal was to join the swimming team of Hong Kong.  However, if he had a criminal record, he would not be selected. He was the class monitor and school prefect, and he was also a deputy cadet leader of the Civil Aid Service Cadet Corps (“CAS Cadet Corps”). He was enthusiastic in serving the community. In his swimming club, he taught kids and teenagers swimming, including females. There were also female members in the CAS Cadet Corps.  There was never any complaint against him about having unethical behaviour towards females.[12]

14.  The defence witness was the appellant’s officer in the CAS Cadet Corps. He came to know the appellant in 2014-2015. He was satisfied with the performance of the appellant in the CAS Cadet Corps, and he never received any complaint accusing the appellant of having unethical behaviour towards female members.[13]

Findings of the magistrate

15.  In general, the magistrate was satisfied that X and Y were telling the truth in their testimonies against the appellant. On the other hand, she rejected the exculpatory testimony of the appellant.

16.  Upon accepting the testimonies of X and Y, the magistrate found that the appellant assaulted the two on purpose respectively on the two occasions specified, and that the nature of his behaviour was indecent. She inferred that the appellant had the intention of assaulting the two indecently. Accordingly, she found the appellant guilty of the two charges.

Grounds of Appeal

17.  The appellant was represented by Mr Anthony Lai of counsel[14] who advanced the following three grounds in support of the appeal against the convictions:

(1)  the magistrate erred in refusing to accept the evidence of the appellant;

(2)  the magistrate erred in accepting the evidence of the prosecution witnesses; and

(3)  the evidence was not sufficient to support the convictions.

Discussion

18.  In the present case, the prosecution’s evidence against the appellant came from the alleged victims only.  There was no corroborative evidence.  The appellant gave evidence in court, denying the allegations.  The primary duty of the magistrate was therefore to assess the credibility of the witnesses in order to determine whether the appellant should be acquitted on the basis that his exculpatory testimony at least may be true[15], or not only was the appellant’s exculpatory testimony entirely unbelievable, but the evidence given by the prosecution witnesses against him must also be true, and all the elements of the offence had been proved beyond reasonable doubt by the prosecution, and therefore the appellant should be found guilty.

19.  The appellant was a first offender and of good character. This was a matter the magistrate must take into account.  And no doubt she fully comprehended this rule.

20.  Mr Lai stated that the defence had made detailed criticisms on the evidence of each prosecution witness at the trial, but the magistrate failed to give proper analysis.  Mr Lai listed the following matters in support of this argument.

21.  As regards Charge 1, the prosecution witnesses had three different accounts concerning the location of the offence:

(1)  X said that when the appellant hit her buttock, she had just walked up a few steps from the Ground Floor. Y and PW3 “walked at a quicker pace and had gone upstairs” and “one floor up”. When she was hit, she looked over her shoulder and said to the appellant, “Why do you hit me[?]” Then she walked two steps further and the appellant hit her once again. She then scolded him, “Don’t hit me anymore.”

(2)  Y said that when she was at the staircase, she was not ahead of X much, five or six steps at most. When she heard X scolding the appellant, she was between the 3^rd Floor and the 4^th Floor.  In other words, X should be at a position 5 or 6 steps below somewhere between the 3^rd Floor and the 4^th Floor at that time, and certainly not a few steps up from the Ground Floor.

(3)  PW3 said that when he heard X “yell”, he was already on the 4^th Floor, and X was at a position between the 3^rd Floor and the 4^th Floor.

22.  The magistrate stated that Y and PW3 did not witness the course of the incident, their accounts therefore did not undermine X’s concerning the location of the offence. Mr Lai submitted that this was not fair because according to X’s evidence, there were 2 flights of stairs between every two floors with a small landing between flights of stairs, and each flight of stairs had more than ten steps. If X had really been indecently assaulted when she had walked up a few steps from the Ground Floor and then scolded the appellant as she described, it would have been impossible for Y and PW3, who were between the 3^rd Floor and the 4^th Floor or even on the 4^th Floor already, to hear X scolding someone or “yell”, particularly that Y said X was just 5 or 6 steps behind her, and that PW3 said even more specifically that X was between the 3^rd Floor and the 4^th Floor when she “yelled”. The evidence of both witnesses indicated that the location where X was allegedly indecently assaulted and then scolded the appellant was not a few steps up from the Ground Floor, but the magistrate failed to have a good grasp of this contradiction or analyze it.

23.  Mr Lai emphasized that the location of the offence of Charge 1 was particularly important because the defence case was that the appellant was not present at the scene at all and did not indecently assault X at the staircase. The different accounts given by the prosecution witnesses concerning the location of the offence seriously affected the credibility of their testimonies.

24.  As regards Charge 2, Y kept shifting her accounts as to when she was indecently assaulted, whether it was in the lesson or the break between lessons, and whether the teacher was present or not.

     I.     The first time she was indecently assaulted

(1)  In examination-in-chief, she said she was at first having a rest with her head put on her arms. After her breast had been “squeezed” the first time, she got up and then scolded the appellant, telling him to go back to his seat. It was still in the lesson and the teacher was in the classroom. However, she soon changed her version by saying that it was already in the break between lessons when she scolded the appellant, no one therefore heard it.

(2)  Under cross-examination, she said that when she was “squeezed” the first time, she woke up once she was “squeezed”, and that it was in the break between lessons when she woke up and was “squeezed”. However, when she was reminded of her version in the examination-in-chief, she was silent for a long time before she said it was in the lesson.

(3)  In her first witness statement, she also said that when she got up after being “squeezed”, it was in the lesson and the teacher was still present.

     II.     The second time she was indecently assaulted

(1)  Y said that she first scolded the appellant and told him to go back to his seat. Then the appellant stood up and patted her breast.  It was already in the break between lessons.

(2)  Under cross-examination, she said that when the appellant stood up (i.e. when he was about to pat her breast), the teacher was still present.

(3)  She said in her last witness statement, “When I realized that [the appellant] “squeezed” my left breast a few times and got up, it was already in the break between lessons … there was no teacher in the classroom.”  When she was further questioned, she was silent for a long time before she said that the teacher was present when she “got up”.

(4)  She tried to explain by saying that the “getting up” mentioned in the witness statement referred to the time when the appellant “got up”, not the time when she got up. However, she then changed again and admitted that in the witness statement, “getting up” in the utterance “got up it was already in the break between lessons” referred to the time when she herself got up.  She also agreed that in fact at that juncture, it was not time for the break between lessons yet, the teacher was present.

25.  Mr Lai submitted that Y kept changing her stance on the time of the offence, which was sufficient to doubt that she was making false allegations. It was because if the incident had truly happened, she would not have had so many versions on the time of the incident. He criticized that the magistrate only explained why Y’s response of not seeking help immediately was reasonable, but she failed to consider whether Y’s various accounts on the time of the offence would affect her credibility.

26.  In summary, Mr Lai said that given the one against one nature of the allegations in the present case, the contradictory evidence of the two prosecution witnesses concerning the location and time of the offence was so material that it could amount to a doubt. However, the magistrate failed to have a good grasp of these contradictions and also overlooked such contradictions in her consideration of whether any doubt could be created.  As a result, she erred in accepting their evidence.

27.  Mr Ng Wing-kit, Public Prosecutor, for the respondent, submitted that the magistrate had analyzed in detail the evidence of every prosecution witness (including X and Y) and at the same time taken into consideration the defence’s challenges about the witnesses before she accepted their evidence.

28.  In respect of the location of the offence in Charge 1, Mr Ng stated that there was no evidence showing that Y and PW3 ever stopped walking when X was hit or yelled. In other words, when X was quarrelling with the appellant, Y and PW3 were still walking up the stairs. It could therefore explain (1) why the distance between X and them changed from 5 to 6 steps to nearly 3 floors apart, and (2) why there were discrepancies between them on where they heard X yell.

29.  He also agreed to the magistrate’s view that Y and PW3 did not witness the incident, and what was material was that they had heard something unusual happen when X and the appellant were walking up the stairs.

30.  In respect of the time and circumstances of the offence in Charge 2, Mr Ng said it was Y’s evidence that the class at the time was “rather noisy”, which was sufficient to explain that Y in fact might not pay attention to the details of the surrounding circumstances.

31.  Mr Ng contended that in analyzing the evidence of X and Y, the magistrate had thoroughly considered and dealt with the criticisms made by the defence, and had also considered the discrepancies in the evidence of X, Y and PW3, and in her view, those discrepancies did not affect the evidence of X and Y on the material circumstances. It was also the magistrate’s view that the evidence of PW3 and the investigating officer (PW4) was clear and fair, which corroborated and / or did not deny X and Y’s accounts.[16] Mr Ng submitted that the magistrate had not erred in these findings.

32.  The evaluation of whether a certain witness is honest and credible falls within the scope of decision of the trial magistrate. The appellate court can only rely on the written transcript for making its decision and lacks the advantage of hearing the evidence and observing the demeanour of the witness in court.  For such reason, unless the findings of fact made by the magistrate are found to be unreasonable, illogical or the evidence was inherently improbable, or when dealing with evidence, the magistrate had misquoted, or omitted or failed to consider and analyze important issues, otherwise, the appellate court would not easily interfere with the decision of the trial magistrate.[17]

33.  I have read the magistrate’s statement of findings and the relevant parts of the transcript of the trial proceedings.  I have also carefully considered the comprehensive and pertinent submissions made by both parties.

34.  In assessing the credibility of X, the magistrate considered the various matters put forward by the defence and made the following analysis:

(1)  X did not mention in her witness statement that when her buttock was hit the second time, she told the appellant “Don’t hit anymore.” The magistrate considered that this was only a minor difference[18];

(2)  X did not tell any teacher or classmate after the incident.  The magistrate considered that X’s response was not unreasonable given that it was not long after X had transferred to the school, that she was not well acquainted with the teachers and classmates, that she was concerned of feeling embarrassed, and also that the assault itself was not very serious[19];

(3)  PW3 only heard X yell once, which was different from X’s account.  The magistrate found this discrepancy not surprising given that the two were not at the same location[20];

(4)  The defence argued that the prosecution witnesses said differently on the location of the offence. The magistrate found that X’s account was not undermined as all witnesses said the incident took place at the staircase[21];

(5)  X made a complaint to Y at the scene immediately after the incident, asserting that PW3 would be able to hear it. However, both Y and PW3’s evidence was that PW3 did not hear the complaint. The magistrate found that there was no discrepancy in the evidence about PW3’s presence on the 4^th Floor, no matter PW3 heard the complaint or not, it would not undermine X’s account that she had made a complaint to Y; [22]

(6)  As to whether the appellant went up to the 4^th Floor by the same staircase and at what time he arrived, the magistrate took into account Y’s evidence that she had no recollection while X and PW3 both said in evidence that it was the same staircase, and as to when the appellant was seen on the 4^th Floor, the three witnesses had different accounts, but the magistrate found it could be concluded that the appellant went up to the 4^th Floor by the same staircase[23];

(7)  The defence stated that in respect of the first incident, it was unreasonable for Y, given her personality, not to confront the appellant together with X on the spot. The magistrate found that the circumstances were not unreasonable after considering that the incident happened to X and there was a difference from it happening on Y, and that X said she was worried of stirring up the matter for the reasons she provided[24];

(8)  Regarding the good relationship that they maintained after the incident, the magistrate was satisfied that it was X’s original intention to let go of the matter, and that it was after the second incident had happened that she decided to seek help[25] (I have read the transcript of the trial proceedings and noticed that most of the occasions where the two were together, many others were also present; and in those occasions when there were only the two of them, such as the incident of collecting the clothes together, they did so on the teacher’s instruction.);

(9)  When X gave her witness statement on 10^th April 2019, she still did not mention that she had been assaulted. The magistrate took into account that X had already told the teacher that she had been indecently assaulted after the second incident and before giving her witness statement [26], and

(10)  The magistrate also took into account the close relationship among the prosecution witnesses as well as the harmonious relationship between X and the appellant[27].

35.  In assessing the credibility of Y, the magistrate gave consideration to the matters put forward by the defence and made the following findings:

(1)  As to whether the incident happened in the lesson or during the break between lessons, the magistrate had the following observation:

“However, it is my view that in the part where I sought clarification, Y did mention that the classmates were “rather noisy” in the classroom when she scolded the defendant. Both the prosecution and the defence did not follow up on this point. In my view, this completely explained why nobody ever noticed that Y [was] “squeezed” and then scolded the defendant, no matter it was in the lesson or during the break between lessons, and whether the teacher was present or not present. She made no mention of this incident further to other people at the time because nobody had seen it or heard it, and she was also afraid. Her evidence fully explained her reaction at that time.”[28]

(2)  Y did not mention in her witness statement about being touched up by the appellant on her face and limbs as well as some other circumstances.  The magistrate took the view that Y had already given an account of the material circumstances. Those that were not mentioned were far less important so that no impact would be brought about on Y’s credibility[29].

36.  The above account given by the magistrate on the assessment of the credibility of the prosecution witnesses appears to be reasonable and well-founded. However, Mr Lai pointed out that the magistrate had not paid regard to the discrepancies in the testimonies of X and Y in relation to the contents of the complaint the former made to the latter, which showed that she failed to adequately consider and assess the impact of such discrepancies brought about on the credibility of the two witnesses.

37.  The magistrate had in fact failed to mention the inconsistencies between what X and Y said about the contents of the complaint. She also did not mention how she dealt with such inconsistencies in their testimonies, nor account for whether her consideration in this regard had influenced her assessment of the credibility of the two.

38.  Perhaps the magistrate thought that the condition of the evidence in this regard was not significant enough to affect her assessment on the credibility of the two witnesses. However, the condition of the evidence in this regard is not insignificant so that, without it being mentioned, it can still be inferred to have been considered by the magistrate. The circumstances therefore worry me, and I doubt whether the magistrate’s assessment on the credibility of the prosecution witnesses was safe and satisfactory.

39.  Furthermore, in the present case, the appellant gave evidence in court, denying the allegations. As long as his exculpatory testimony is true, or may be true, he must be acquitted.

40.  Mr Lai stated that the magistrate did not reject the appellant’s evidence on the basis of any factually and legally proper ground. He made submissions particularly on the three reasons provided by the magistrate for not accepting the appellant’s testimony, which were as follows:

(1)  X and Y had good and harmonious relationship with the appellant, it was inexplicable that they “concocted” allegations against the appellant;

(2)  it was inexplicable that the appellant had independent memory of what happened on the day in question in Charge 1; and

(3)  the appellant’s account concerning the two days in question was just a vague and unspecific denial of the allegations against him.

41.  The magistrate had the following to say in her statement of findings[30]:

“However, I find that the defendant’s account was very vague and unspecific in respect of the most crucial part of his evidence, i.e. involving the two incidents in question on 3^rd October and 3^rd April. He basically made a vague and unspecific denial of the allegations against him. In re-examination, he said he was able to recall what happened on 3^rd October, but that day was just like any other ordinary day. In my view, it is inexplicable that he has independent memory of that day. It is the defence case that the incidents alleged in the charges never happened. The defendant also confirmed that he had good relationship with X and Y and got along with them on many occasions. In such circumstances, in my view, it is an inexplicable allegation that they have concocted the accusations against the defendant.”

42.  Regarding the first reason of not accepting the appellant’s evidence [31], Mr Lai submitted that the magistrate had made two mistakes. First, it was never the defence case that X and Y “concocted” the allegations against the appellant. The evidence of the appellant was that he did not know why they made such allegations against him instead of directly saying that they fabricated against him for no reason. The magistrate’s line of thoughts was that since no reason of fabrication was found, it was considered that X and Y would not have fabricated anything against the appellant. She therefore concluded that the appellant was not credible. However, this was in effect putting the onus on the appellant to prove the motive for fabrication, which was impermissible in law.

43.  Regarding the second reason of not accepting the evidence of the appellant[32], Mr Lai criticized that the magistrate had overlooked the reason why he remembered what had happened on 3^rd October. The appellant testified that that day was the first time he had lunch with X, Y and PW3, he therefore had recollection of what had happened on that day. Y also confirmed his account that that day was the first time they had lunch together.

44.  Moreover, the appellant further explained that he would go to the toilet every time he returned to school after lunch. After that, he would go to watch people playing ball games till the bell rang before going back to the classroom.  And nothing on that day made him depart from this habit. The evidence on a person’s habit carried probative value, which allowed the fact-finder to infer the act of the person concerned on the material day.[33] In these circumstances, even if the magistrate did not accept that the appellant had independent memory, she had to consider the evidence of the appellant on his habit, but this was overlooked by the magistrate.

45.  Regarding another reason of not accepting the evidence of the appellant[34], Mr Lai said that the evidence of the appellant in fact was not vague or unspecific. The appellant gave a detailed account of what he had done in respect of Charge 1, and so did he in respect of Charge 2. The appellant said at first the teacher told Y to sit beside him to do the worksheet together with him, but Y refused. Then the teacher told him to take a seat on the left side of Y, but Y was playing with her mobile phone. The appellant finished the worksheet on his own.  Y did not take part.  He worked on the worksheet alongside the instructions of the teacher. After that he went back to his seat. Moreover, although Y denied playing with her mobile phone throughout the lesson of Ethics and Religious Studies and said that the worksheet was completed by her, it was the testimony of X that Y was playing with her mobile phone throughout the lesson of Ethics and Religious Studies. This matched with the appellant’s account that he worked on the worksheet alone and Y never took part.

46.  Mr Ng agreed that the court, in deciding whether the accused was credible or not, had to focus on the contents of his evidence in the consideration. The court could not disbelieve him simply because no motive for fabrication was found from the prosecution witnesses, otherwise, the onus might be put onto the defence to find out the reason for fabrication.  However, he submitted that in assessing the credibility of the appellant’s evidence, the magistrate did not rely on the absence of motive for fabrication from the prosecution witnesses, but only tried to express that X and Y probably would not frame up the appellant as they had maintained good relationship with him.  Furthermore, it could be seen from the statement of findings that this was only one of the thoughts of the magistrate in her course of consideration.

47.  He also pointed out that the magistrate had directed and reminded herself that the burden of proof was on the prosecution, and that the appellant did not have any onus of proof.  He supported the findings of the magistrate on the assessment of the appellant’s credibility.

48.  Moreover, Mr Ng pointed out that the magistrate had taken into account the evidence of the defence witness and given weight to it, and that she had taken a proper view that such evidence on character was not of much assistance to the issue of whether the incidents had happened or not.[35]

49.  I agree to the submissions of Mr Lai.  The magistrate’s account on her assessment of the appellant’s credibility does raise concern.

50.  The magistrate described that the appellant’s account of the two incidents was very vague and unspecific. In respect of the first incident, I understand why the magistrate formed such a view.  However, the appellant’s account was that he was simply not present at the scene because he went to the basketball field every day, and so did he on that day.  And he had recollection of that day because it was the first time he had lunch together with them.  Under such circumstances, it is not safe enough to reject his account for the sole reason that it was vague and unspecific.   Since the respondent failed to identify any other parts of the evidence which was sufficient to support the findings of the magistrate, I agree to the argument of Mr Lai.

51.  As regards the second incident, the appellant’s account of the circumstances was not that vague or unspecific, hence the magistrate’s sole reliance on this reason in rejecting his evidence makes me worry.

52.  Furthermore, the magistrate’s view that it was inexplicable that X and Y concocted the allegations against the appellant was an observation arisen from her analysis of the appellant’s evidence[36]. In my judgment, it is unsafe and unsatisfactory to reject the appellant’s exculpatory account on the basis of finding no reason or motive in the evidence of X and Y to frame up the appellant.

53.  It is not the duty of the defence to prove that the prosecution witnesses had the motive for fabrication because the defendant does not have any onus of proof.[37] The fact-finder must not give the impression that the absence of motive for fabrication from the prosecution witnesses provides a justification for rejecting a defendant’s evidence.[38] This is a legal principle and also follows the logic. Logically, even if the prosecution witnesses had the motive for fabrication, it would be possible that the defendant had no knowledge of it.

54.  Perhaps it is just the flaws in the magistrate’s expression, but this is the only paragraph where the magistrate set out her reasons for this part of the evidence[39], it is difficult for me to determine if it is only a matter of imperfect expression rather than improper line of thoughts.

55.  Even if the magistrate found that the prosecution witnesses were reliable, she would also have to give an independent and proper evaluation of the defence evidence. In HKSAR v Cheung Ngai[40], Barnes J pointed out that it was wrong to consider the defence evidence against the evidence of the prosecution witnesses which had been ruled to be truthful.

56.  In addition, Mr Lai also pointed out that the magistrate failed to state expressly that the appellant’s immediate denial of the allegations at the time of his arrest was taken into account in her assessment of his credibility. As such circumstances showed the consistent stance of the appellant, it had to be taken into account in the assessment of his credibility.

57.  Perhaps the magistrate’s thought was that this point had no influence on her assessment. If the magistrate came to this conclusion, in the circumstances of this case, I would not consider it unacceptable. However, if the magistrate overlooked this piece of evidence, then her course of consideration would be unsafe. It is difficult for me to determine which situation it was.

58.  The magistrate had the advantage of hearing the evidence and observing the demeanour of witnesses in court, and it is possible that her findings on the assessment of the witnesses’ credibility were not unfounded. However, for the reasons stated above, it is hard for me not to worry if the convictions were safe and satisfactory. Accordingly, the appeal is allowed and the convictions of the two charges are quashed.

Appeal against Sentence

59.  Since the appellant’s appeal against the conviction is allowed and the convictions are ordered to be quashed, I am not required to deal with the appeal against the sentence initially. However, bearing in mind that this appeal involves an issue of substance which both parties have given considerable assistance to this court, I am minded to express my view.

60.  The grounds of appeal against the sentence advanced by Mr Lai in the first place were as follows: the magistrate erred in overlooked the consideration of the adverse influence brought to the appellant’s rehabilitation by a criminal record, and she erred in refusing to exercise her power under section 15(1) of the Juvenile Offenders Ordinance[41] (the “Ordinance”) to dismiss the charge[42] and under section 34 of the Protection of Children and Juveniles Ordinance[43] to make a care or protection order[44].

61.  Section 15 of the Ordinance (“S15”) provides that:

‘(1) Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall take into consideration the manner in which, under the provisions of this or any other Ordinance or law enabling the court to deal with the case, the case should be dealt with, and subject to such provisions, may deal with the case in any of the following manners or a combination thereof, namely—

(a)   by dismissing the charge;

(b)   …

(c)   by dealing with the offender under the provisions of the Probation of Offenders Ordinance (Cap. 298);

(d)   …

(e)   if the offender is in need of care and protection, by dealing with him under section 34 of the Protection of Children and Juveniles Ordinance (Cap. 213); …’

62.  Mr Lai submitted that the appellant had reached the age of 16 years when he was convicted, but he was only 15 years old when he was charged, which was within the meaning of a young person under the Ordinance, S15(1) therefore applied.

63.  On the other hand, Mr Ng submitted that in the present case, the magistrate simply did not have the jurisdiction to exercise the power under S15(1).   He submitted that under section 2 of the Ordinance, “‘young person’ means a person who is, in the opinion of the court having cognizance of any case in relation to such person, 14 years of age or upwards and under the age of 16 years[45]”, whether an accused to be sentenced was a young person should be determined by his age at the time of conviction.  He cited R v Danga[46] and HKSAR v LTL[47] in support of this argument.

64.  In response, Mr Lai said that unless the wording was explicit and definite, under the general principle of no imposition of criminal liability, S15 should not be construed in a relatively strict sense when there was no express provision in the Ordinance.  Moreover, if the same wording was used in different sections of the Ordinance, its construction should be consistent.

65.  Both parties accepted that there was not any authority directly relevant to this issue, nor was there any legislative document directly concerned with the relevant date for determining age:

(1)  S15 was amended in 1967. According to the objects and reasons stated in the Bill, the amendment was for the clarification of S15 under which the listed methods by which the juvenile court might deal with children and young persons were not alternative in nature, but might be used in a combination.

(2)  The method of dismissing the charge has existed since the Ordinance was enacted.

66.  In R v Danga[48], the Court of Appeal of England and Wales had the following observation:

“As a matter of statutory construction the court concludes that for the purposes of the section of the Criminal Justice Act 1982, as amended, under discussion, the age of the offender is his or her age at the date of conviction, that is the day when a jury pronounces a verdict of guilty or when the plea of guilty is entered. This conclusion also makes practical sense. Most defendants are sentenced on the day that they are convicted. It is only for administrative reasons or to enable the court to acquire more information that sentences are passed at a later date.”[49]

67.  In SJ v Leung Hiu Yeung[50], the Court of Final Appeal pointed out that the judgment of Danga was based on the UK provisions which expressly stated that the relevant date was the date of conviction of the accused to be sentenced.  There is no such express provision in this regard under section 15. [51]

68.  I have noted the judgment of Fung J in the case of LTL[52], I disagree that this judgment is entirely supportive of Mr Ng’s submissions. Fung J stated as follows:

“21. However, under section 15(1) of the Juvenile Offenders Ordinance, apart from “satisfied of his guilt”, there is also the wording of “charged with any offence” which does not exist under section 11(2), nor under section 1(3A) of the Criminal Justice Act in the UK.

22. Assuming that the defendant was under the age of 16 years in his first appearance in court and prepared to plead guilty from the outset, but no plea was taken at the time when the charge was put, the case was adjourned, by the time when he entered his guilty plea, he had reached the age of 16 years, the court then needed to hear further submissions on whether section 15(1) of the Juvenile Offenders Ordinance applied. In the present case, I am not required to rule on whether the relevant age was counted before the date of conviction and at the day of the charge being presented in court, it is just for clarification that such circumstances are not covered by this decision.”

69.  The appellant in LTL was under the age of 16 years when he committed the offence and was still under the age of 16 years when he was found guilty. It was not until the time when he was sentenced that he had just reached the age of 16 years.  Fung J finally sentenced him as follows:

“The magistrate stated that if he had the power to dismiss the charge, he would so order, and he would make a care and protection order pursuant to the Protection of Children and Juveniles Ordinance. I agree with the magistrate’s view of dealing with the appellant generously for the sake of his rehabilitation. I would therefore adopt the recommendation of the probation officer to commit the appellant to the care of his parents and to the supervision of the social welfare officer for a period of 15 months. He shall study, work and observe the curfew as directed by the social welfare officer.”[53]

70.  Which day would be the relevant date under S15 and what was the legislative intent are questions involving the construction of the provision, which must be done pursuant to section 19 of the Interpretation and General Clauses Ordinance[54]:

‘An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.’

71.  Hong Kong is one of the state parties to the Convention on the Rights of the Child. Article 40[55] of the Convention expressly states as follows:

‘1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

…

3.  States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

…

(b)  Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

4.  A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.’[56]

72.  The Court of Appeal explored the legislative intent of the Ordinance in X (Juvenile Committal: Murder) v Secretary for Justice[57], and  took the view that the focus of the Ordinance was the creation of the juvenile court which ensured that juveniles were tried separately from other offenders and in a court setting which suited their age.

73.  The sentencing court should strike a balance among the four major sentencing principles of retribution, deterrence, prevention and rehabilitation before arriving at the most appropriate sentence.

74.  Nonetheless, in sentencing a young offender, rehabilitation would often be of primary concern, especially for a first-time offender.[58] It is in the interest of the community to allow offenders of this kind to get back on the right track. Accordingly, under special circumstances, even though the facts of the case are relatively serious, given the above purpose, where appropriate, it is not necessarily violating the rule or disproportionate to impose a lenient sentence. If allowing the accused to be sentenced to get back on the right track is a proper purpose of the case, then, depending on the circumstances, the court should be entitled to take into account the possibility of whether a heavier sentence would drive the person off rail and avoid imposing such sentence.

75.  The above approach for consideration would no doubt be less significant if the nature of the offence and the facts involved are serious, or even of no significance if the facts are extremely serious.

76.  In the recent case of Secretary for Justice v SWS[59], the Court of Appeal also set out in detail the approach of dealing with young offenders. I would not elaborate it here.

77.  In my consideration, I have taken into account the following matters:

(1)  Mr Lai emphasized that in X v SJ[60], hear and determine[61] included the final disposal, which implied that sentencing was included, particularly that a conviction was only complete when sentence was passed;[62]

(2)  The reasoning in sentencing children and young persons;

(3)  S15 contains the wording “Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt”, and the words “charged” and “is tried” appear only in S15 throughout the whole Ordinance, save and except sections 3, 6 and 9 of the Ordinance that are irrelevant to punishment. Other provisions, including section 11 which concerns with restrictions on punishment and section 14 which concerns with place of detention, do not have those words;

(4)  Section 3C(1) of the Ordinance provides that any charge against a child or young person shall be heard by a juvenile court unless otherwise provided, the relevant date for determining age seems to be related to the age of the accused at the day when plea is entered in court;

(5)  Section 19 of the Ordinance provides as follows:

‘Where a person, whether charged with an offence or not, is brought before any court and it appears to the court, after considering any available evidence as to his age, that he is a child or young person, an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to or presumed or declared by the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Ordinance, be deemed to be the true age of that person, and where it appears to the court, after considering any available evidence as to his age, that the person so brought before it is of age of 16 years or upwards, that person shall for the purposes of this Ordinance be deemed not to be a child or young person.’

(6)  Section 3E(1) of the Ordinance:

‘A juvenile court sitting for the purpose of hearing a charge against a person who is believed to be a child or young person may proceed with the hearing and determination of the charge notwithstanding that it is discovered that the person in question is not a child or young person.’

(7)  In general, when an accused is charged and brought before the juvenile court, the case would all along be dealt with by the juvenile court which the Court of Appeal in X v SJ [63] considered to be the intention of section 3A of the Ordinance[64];

(8)  If the accused has all along been tried in the juvenile court and reached the age of 16 years at the date of conviction, it is not stated expressly in the Ordinance if the methods listed under S15 would be invalidated or not;

(9)  Many of the methods listed under S15 are also applicable to persons aged over 16; and

(10)  Some of the methods listed under S15, for example, be dealt with under section 96(b) of the Magistrates Ordinance[65], or by sending the convicted person to reformatory school, training centre, rehabilitation centre, etc., there is wording such as “being convicted” or that of the same meaning in the relevant provisions.

78.  Notwithstanding that there is the wording “charged with any offence” under S15, other wording in the provisions such as “tried by any court” and “satisfied of his guilt” should not be neglected. Children and young persons may be tried not before the juvenile court so long as it is in compliance with the law. However, section 3F(1) provides as follows:

‘If a child or young person is found guilty of an offence other than homicide by any court other than a juvenile court, the court shall, unless satisfied that it would be undesirable to do so, remit the case to a juvenile court; and where any such case is so remitted the offender shall be brought before the juvenile court accordingly, and that court may deal with him in any way in which it might have dealt with him if he had been tried and found guilty by that court.’

Accordingly, in normal circumstances, a child or young person should be dealt with by the juvenile court after being convicted, but if it is not desirable to do so, it would not necessarily be brought before the juvenile court.  In my view, the first sentence of S15(1) should be read as a whole, and the most important wording is “Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt, the court… may deal with the case in any of the following manners or a combination thereof”. S15 therefore applies to any court where a child or young person is tried and the court is satisfied of his guilt.

79.  Mr Lai emphasized that dismissing the charge was in the provision of the Ordinance in its very first edition, the purpose of which was obviously leaving no criminal record to affect the life of young persons who were immature and less culpable when committing crimes.  To give this purpose a meaningful interpretation, the date for determining age under S15 must be the earliest date the text so permits, i.e. the day when “being charged”, as this is the date closest to the date of offending.

80.  I have also taken into account the example given by Mr Ng, which was that an accused was tried by the juvenile court due to his young age, but he absconded.  He was arrested on warrant many years afterwards when he had already been an adult.  Having the charge proved, should he still be dealt with pursuant to S15?  This is an extreme example which is unlikely to happen, but it is still useful to inspire us to think about the legislative intent.  The same query was also raised by the English Court of Appeal in R v Cawthron [66].

81.  However, the above extreme example may still arise no matter the relevant date for the age is the date being charged or the date of conviction. I would determine the legislative intent based on the provisions as a whole.

82.  The wording of S15 is that any court where a child or young person is tried and the court is satisfied of his guilt shall take into consideration the manner in which the case should be dealt with, not the person whom the court is satisfied of his guilt.

83.  Many methods listed under S15 that could be adopted by the court are subject to prerequisites which have to be met before they could be actually applied.  Many of these methods have age restrictions, and the provisions also clearly show that the date for determining age is the date of conviction, such as those for the training centre and the rehabilitation centre. One may ask if the accused to be sentenced has crossed the age threshold of a young person at the time, would it be too lenient and go against the legislative intent to adopt the methods under S15? In my view, the duty imposed on the court by S15 is that the court must take into consideration the manner in which the accused to be sentenced shall be dealt with, whereas it is the discretion of the court as to which of the methods listed should be adopted.  I would not rule out the possibility that it is still appropriate to deal with the case by dismissing the charge, saving that the court should consider the relevant circumstances as a whole before making the decision.  For instance, a 15-year-old young person stole a packet of chocolate in a shop and was charged almost at the same time, and the court was satisfied of his guilt, but he already crossed the age threshold by then.  Where appropriate, it is not definitely wrong to dismiss the charge, particularly that the court has the power to supplement the options to deal with the case by other suitable methods so listed.  It is no doubt an improper approach if the nature of the charge or the facts are serious, or the circumstances show that the charge should not be dismissed.  In any event, unless there is a very good reason, it would be too lenient to deal with the case by dismissing the charge if the accused to be sentenced has crossed the age threshold.

84.  It is my view that any court where a child or young person is tried has the duty to consider the manner in which the case should be dealt with.  Unless otherwise provided, the court may adopt one or a combination of the methods listed under S15.  The relevant date for determining age is the date when the child or young person concerned is charged.

85.  If an accused absconded at trial and he therefore crossed the age threshold when he was tried, some of the methods listed under S15(1) still enable the court to give appropriate consideration, in particular that S15(1)(n) provides that the court may deal with the case in any other manner in which it may be legally dealt with (but not in any manner in which the court could not deal with the case apart from following S15), hence it would not be a serious issue under normal circumstances, and the court must take into consideration the actual age of the accused to be sentenced at the time of committing the offence.  Even if it is an extremely long period of absconding, it does not necessarily mean that the methods listed under S15 become unsuitable for consideration.  And as a result of absconding, that person may also be charged with other additional offences, and he is no longer a child or young person in the commission of the additional offences.

86.  No matter the legislature intended the relevant date in respect of S15 to be the date that I have determined, or the date of conviction, it is nevertheless a common view shared by many authorities that the court need not be too strict as to whether the accused to be sentenced has crossed the age threshold prescribed in the Ordinance. In sentencing an offender whose age has slightly crossed the age threshold, the sentencing principles and approach manifested by the Ordinance should still apply in general.[67]

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.

[1] Contrary to section 122(1) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong.

[2] Madam LEUNG Siu-ling.

[3] See paragraph 6 of the statement of findings, page 16 of the appeal bundle.

[4] See paragraph 7 of the statement of findings, page 17 of the appeal bundle.

[5] See paragraph 7 of the statement of findings, page 17 of the appeal bundle.

[6] See paragraphs 7 & 9 of the statement of findings, page 17 of the appeal bundle.

[7] See paragraph 10 of the statement of findings, pages 17-18 of the appeal bundle.

[8] See paragraphs 8 & 11 of the statement of findings, pages 17-18 of the appeal bundle.

[9] Pages 425K - 428T of the appeal bundle.

[10] Pages 435Q - 437N of the appeal bundle.

[11] Pages 428S - 435Q of the appeal bundle.

[12] Pages 437Q - 452P of the appeal bundle.

[13] Page 20 of the appeal bundle, paragraphs 19-20.

[14] At the trial, the appellant was also represented by Mr Anthony Lai of counsel.

[15] Jim Fai v HKSAR (2006) 9 HKCFAR 85, paragraph 16.

[16] See paragraphs 39-41 of the statement of findings, pages 25-26 of the appeal bundle.

[17] See the judgment of Barnes J in HKSAR v Chan Wai Yeung (transliteration) HCMA 191/2010.

[18] Paragraph 22 of the statement of findings.

[19] Paragraph 23 of the statement of findings.

[20] Paragraph 25 of the statement of findings.

[21] Paragraph 25 of the statement of findings.

[22] Paragraph 26 of the statement of findings.

[23] Paragraphs 27-29 of the statement of findings.

[24] Paragraph 30 of the statement of findings.

[25] Paragraph 31 of the statement of findings.

[26] Paragraph 32 of the statement of findings.

[27] Paragraph 33 of the statement of findings.

[28] Paragraph 36 of the statement of findings.

[29] Paragraph 37 of the statement of findings.

[30] See paragraph 43 of the statement of findings, page 26 of the appeal bundle.

[31] See paragraph 41(1) above.

[32] See paragraph 41(2) above.

[33] See R v Watson [1996] OJ No 2695, pages 17-18.

[34] See paragraph 41(3) above.

[35] See paragraph 45 of the statement of findings, page 27 of the appeal bundle.

[36] See paragraph 42 above.

[37] HKSAR v Wong Kwok Wang Warren (2009) 12 HKCFAR 218, paragraphs 33-34.

[38] HKSAR v SRM, CACC 111/2016, Date of Judgment: 20 October 2017, paragraph 47.

[39] See paragraph 42 above.

[40] [2018] 2 HKLRD 1299, paragraphs 8-9.

[41] Cap 226 of the Laws of Hong Kong.

[42] Section 15(1)(a).

[43] Cap 213 of the Laws of Hong Kong.

[44] Section 15(1)(e).

[45] Emphasis added.

[46] [1992] QB 476, 481A.

[47] HCMA 705/2012.

[48] [1992] QB 476, 481A.

[49] Emphasis added.

[50] (2018) 21 HKCFAR 421.

[51] See paragraph 61 above.

[52] See footnote 47.

[53] See paragraph 23 of the judgment.

[54] Cap 1 of the Laws of Hong Kong.

[55] Appellant’s further supplementary authorities #29.

[56] Emphasis added in this partfor its importance.

[57] [2009] 5 HKLRD 14.

[58] See Wong Chun-Cheong v HKSAR (2001) 4 HKCFAR 12, at 17; and SJ v Wong Chi Fung (2018) 21 HKCFAR 35.

[59] CAAR 1/2020.

[60] See footnote 56.

[61] The judgment is in English, the original text is “hear and determine”.

[62] HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588.

[63] See footnote 56.

[64] Section 3A:

‘(1) Courts constituted in accordance with this section and sitting for the purpose of hearing any charge against a child or young person or for the purpose of exercising any other jurisdiction conferred on juvenile courts by or under this or any other Ordinance shall be known as juvenile courts.

…

(3)   A juvenile court shall have jurisdiction to hear and determine a charge against a child or young person of any offence other than homicide.’ (Emphasis added)

[65] Cap 227 of the Laws of Hong Kong.

[66] [1913] 3 KB 168

[67] See SJ v Leung Hiu Yeung (2018) 21 HKCFAR 421, 451, R v Danga [1992] QB 476, 481, and HKSAR v Dhaliwal Jaspreet Kaur [2019] 5 HKLRD 428, 437.