HKSAR v. HO TIM PO

HCMA94/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.94 OF 2000

(ON APPEAL FROM TWCC3235/1999)

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J U D G M E N T

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1. The appellant was convicted on 9 December 1999 of one count of indecent assault. He was sentenced on 24 December 1999 and fined the sum of $3,000.

2. It was the evidence for the prosecution that on 21 August 1999, the witness PW1 went to shop at a room occupied by the appellant and conducted as a shop in the Cable TV Building in Tsuen Wan. Her testimony was that in the course of shopping, she spoke with the appellant and she said during evidence in-chief that on three occasions, the appellant indecently assaulted her by placing his hand between the upper part of a pair of overalls that she was wearing and the T-shirt she was wearing underneath it. These touches were to her left and to her right breasts. In cross-examination and having been confronted with the statement that she gave the police, she withdrew that allegation and maintained that it was only on two occasions that she had been touched.

3. The appellant appeals the conviction and in his first ground, Mr Chan for the appellant argues that the magistrate's findings were inadequate and failed to canvass the issues, or deal with the salient points, conflicts and inconsistencies in the case, or evaluate the evidence or demonstrate that the evidence in the case had been evaluated in a proper manner or at all.

4. His first complaint is that there is a clear inconsistency between the evidence given in-chief as to the number of the indecent assaults and her adoption of the version which she gave the police in her statement when she reported it two days after the event. The magistrate dealt with that in this way :

" Further consideration was then given to the evidence of PW(1) and to the evidence of the appellant and his wife. In considering that evidence I paid particular attention to the inconsistencies in the evidence of PW(1) and her contradiction of, and later adoption of the version set out in her statement to police. Having considered counsel's submission that this supported the defendant's version (that she was lying) and having considered PW(1)'s own evidence on the inconsistency I found myself in no doubt that PW(1) who was a most impressive witness, had testified truthfully about the fact of and the indecent nature of the appellant's conduct and that her confusion (and later inconsistency) occurred because of the trauma and conflict she felt as a result of the totally unexpected and foreign actions of the appellant."

What this amounts to is that the magistrate had turned his mind to the inconsistencies. He did so upon the basis put forward by the defence. He also addressed his mind as to the credibility of PW1 and found her to be a most impressive witness who had testified truthfully. Adding the two together, he found that the inconsistency was not such as to reduce her credit to a point where he was unable to rely upon her as telling the truth concerning the indecent assaults.

5. It is really rather difficult to see what more the magistrate could have said. In many cases, the effect of inconsistencies can only be dealt with by the view that the magistrate takes of the credit of the witness. Here, he gave what he understood to be the reason for the inconsistencies, i.e. her trauma and shock at what had happened. Coupling that with the truthfulness that he found in her evidence, he was satisfied that the inconsistencies did not give rise to doubts in his mind.

6. The second matter referred to by Mr Chan was various matters which he found to be inherently incredible in the evidence of PW1 : that she waited 10 minutes after returning to her office to disclose what had happened to her; that she went about the disclosure in a circular way rather than directly; that she waited two days to report the matter to the police, but in that time had been to the security office to request a notice to be put up; and that she did not run away from the premises and permitted two or three assaults to be committed on her. Mr Chan is unable to offer any explanation as to why these are inherently incredible acts other than that that is the impression that he forms of them.

7. I am not able to say that in respect of a woman confronted with the type of actions confronted by PW1 that those matters complained of by Mr Chan are inherently incredible.

8. Mr Chan complains that the evaluation of the appellant's evidence was lacking and it was unclear why his evidence was rejected or accepted despite his clear record, his good character, the fact that the alleged offence took place at his own premises and that there was no corroboration.

9. The learned magistrate had this to say about the evidence of the appellant in referring to the evidence as a whole and PW1, he said :

"In short I found myself in no doubt as to her evidence and (equally) in no doubt that the appellant had lied in order to avoid the consequences of his behaviour. In so concluding I directed myself as to his clear record and considered both his lack of propensity as well as the improbability that he would lie."

It is clear from that passage that firstly, it was his evaluation of the appellant's evidence that the appellant was lying. And secondly, he did so within the framework of the clear record and good character of the appellant. The magistrate dealt at length with the issue of corroboration and warned himself that there was no corroboration. He warned himself that despite the lack of corroboration, if he believed the witness for the prosecution was telling the truth, then he was entitled to convict upon her uncorroborated evidence. Having given himself that warning, he went ahead and convicted.

10. I cannot fault that magistrate in that approach.

11. The second ground of appeal was that there were material irregularities in the course of the trial in that the defence counsel was precluded from questioning PW1 about the price of items she bought when the same was highly relevant to the case for the defence. That passage in the transcript reads as follows :

"Q: Now, Miss Chan, apart from the box of turtle jelly, and apart from the jello that you said you were given, did you purchase any other items on that occasion?

A: No.

Q: When you were asked how much you paid for the items, did you say several tens of dollars?

A: Yes.

Q: Can you remember approximately how many tens of dollars? Would it be over ...

COURT: All right, I disallow it, it doesn't matter.

MR CHEUNG: It does, for my purpose.

COURT: What is that purpose?

MR CHEUNG: We say that, in fact, she selected other items on that occasion.

COURT: Well, I disallow it, it doesn't matter. It's all peripheral. Next. I don't expect her to remember how much change she got.

MR CHEUNG: Well, maybe she can't, maybe she does. I don't know. I say that is relevant for my purpose."

After that passage between the court and Mr Chan (who was wrongly described as Mr Cheung), Mr Chan went on to question Miss Chan, PW1, concerning various items which he alleged that she had purchased. He did not, when questioning her about those items, attempt in any way to ascertain the price that she paid for those items. His complaint in this appeal is that he was prevented from questioning her about the price of items she purchased. Whilst one question was disallowed, the fact that he abandoned the line of questioning when he was permitted to cross-examine concerning the purchase of individual items is not a matter which can be laid at the door of the learned magistrate.

12. In all the circumstances, the appeal against conviction is dismissed.