HKSAR v. LEE CHI KEUNG

[English Translation – 英譯本]
HCMA 259/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 259 OF 2003

(ON APPEAL FROM TMCC NO. 2818 OF 2002)

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JUDGMENT

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1. The Appellant was convicted after trial on one count of indecent assault. He now appeals against conviction.

2. The facts show that the Appellant was an uncle of the victim and had a close relationship with the victim’s family. When the victim was aged 11 and studying in Primary 6, she went with her parents to visit the Appellant on many occasions. She alleged that she was indecently assaulted by the Appellant on five separate occasions, and the Appellant’s acts included touching her chest and pressing her nipples, private parts and anus. On the last occasion, when she was riding a bicycle, the Appellant inserted his hand under her clothes and touched her chest. The victim said that, except the last occasion, all the incidents took place at the spot inside the stone hut where dogs were bred. The victim said that when she was studying in Form 2 she told her classmates that she had been indecently assaulted. She did not report the incidents to the police until after she finished taking the Advanced Level Examination on 22 May 2002.

3. The Appellant elected to give evidence at trial. He denied having indecently assaulted the victim. He said he bred a puppy from 1995 to mid-1996 and during this period the victim and her mother had visited him. He said the victim had insistently asked him to massage her. The Appellant’s wife also testified that when the victim and her mother visited them at the stone hut, the victim had asked the Appellant to massage her.

4. In the Perfected Grounds of Appeal, Counsel for the Appellant set out eight grounds of appeal. I am most concerned with the first ground of appeal and shall only briefly deal with the other grounds.

5. One of the Appellant’s grounds of appeal is that the Appellant had applied to suspend the trial for the reason that the alleged incidents and the trial were temporally too far apart. Although the application had been refused, the magistrate in assessing the evidence and giving judgment should have properly directed himself on the prejudice and injustice that prosecution witnesses and the Appellant and his witnesses might have suffered as a result of the long lapse of time. Mr. Wong for the Appellant relied on the case of R. v. Holgate (No. 1) [1996] 3 HKC 315. However, in cases involving sexual assaults, even if the defendant was not charged until a long time after the alleged incident, there is no hard-and-fast rule of law or practice requiring the judge to direct himself or the jury on the delay, although it would seem more sensible to give such a direction. Where the evidence against the defendant is compelling, the judge may not need to give such a direction, and the absence of such a direction will not necessarily render the conviction unsafe, particularly where Counsel has not highlighted any significant inherent injustice in his submissions. (See Brian M [2000] 1 Cr. App. R. 49.)

6. At trial, Mr. Tse, Counsel for the Appellant, had this to say in his submissions:

And in the present case, your Worship has to consider that the incidents oc – according to the evidence, occurred many years ago. There is neither corroborative evidence nor recent complaint. When I cross-examined the prosecution witnesses, and when the prosecutor cross-examined the defence witnesses, all the witnesses said they could no longer remember many of the salient facts because the incidents occurred too long ago. Therefore, there may be ample evidence in favour of the defendant but such evidence has not surfaced due to the long lapse of time.

7. What Counsel was referring to is the prejudice to the parties that a delay may cause in general. He did not point out any particular or significant injustice that the Appellant had suffered over and above such general prejudice. The Appellant had given evidence denying the charge and had been able to call his wife to give evidence. I believe that the magistrate must have considered the effects of the delay when he assessed the evidence. This ground of appeal must fail accordingly.

8. Another ground of appeal raised on behalf of the Appellant is that at trial the magistrate accepted certain evidence as “recent complaint” but stated in the Statement of Findings that the complaint made by PW1 to PW2 was not a recent complaint. However, the magistrate went on to say that “at law, the doctrine of recent complaint is merely concerned with the consistency of the relevant evidence and is not used for supporting or matching evidence”. Counsel for the Appellant contends that the magistrate’s findings in this respect were inconsistent and raises doubts as to whether the magistrate had accorded any weight to such evidence. In my view, while one may take issue with the magistrate’s wording, it was clear that he in fact had not considered the evidence in this respect, as he said that “in assessing the circumstances of the case as a whole, [the evidence] has to be discarded and excluded from consideration”. This ground of appeal must also fail.

9. As regards “motive”, I do not agree with Counsel’s contention that the magistrate convicted the Appellant solely on the basis of a lack of ulterior motive on the victim’s part. It can be seen from the Statement of Findings as a whole that the magistrate made mention of motive because he wished to point out that, although the court trying this type of cases was no longer required to warn itself specifically of the lack of corroborative evidence, he still reminded himself of the inherent danger of convicting a defendant of a sexual offence solely upon the victim’s evidence. Although the magistrate considered whether the victim in the present case had the ulterior motive of framing up the Appellant, he did not convict the Appellant solely on this point; on the contrary, he arrived at the verdict after properly analyzing the facts.

10. As for contradictions in the evidence of the witnesses, Mr. Tse had delved into this in his submissions. The magistrate had the opportunity to observe the demeanour of the witnesses in the course of giving evidence and was perfectly entitled to assess their evidence form his own conclusions on their reliability and whether their evidence was to be accepted or not.

11. The particulars of charge in the present case stated that the Appellant indecently assaulted a female Tang Wai Chee on a certain date between 29 May 1994 and 28 May 1996 inside a stone hut without door plate situated at Yau Cha Po Village, Tai Shiu Ha Road East, Yuen Long, New Territories, Hong Kong. This referred to a single offence. However, at trial the prosecution allowed the victim to give evidence in respect of five occasions of indecent assault that allegedly occurred during the said period. Although each of the five incidents had its distinguishing features, but it appears from the transcript of proceedings that the prosecution had never clearly pointed out to the court which of the five occasions constituted the offence with which the Appellant was charged. Furthermore, in paragraph 20 of the Statement of Findings, the magistrate said that the Appellant “enticed PW1 into playing with the puppy at the kennel next to the stone hut and, taking advantage of PW1’s young age and innocence, massaged her and touched her chest and private parts for more than five times”, but he never specified which of the Appellant’s acts constituted the offence of indecent assault against the Appellant.

12. The case of Chim Hon-man v. HKSAR [1999] 1 HKC 408 has clearly established that the Indictment Rules set out the basic requirements of the form of indictment and statement of offence. The prime objective of the rule against duplicity is to enable a defendant to have a clear idea of the offence with which he is charged and to which he has to plead, so that the defendant will receive a fair trial.

13. In the abovementioned case, Sir Anthony Mason said (at page 443):

… An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. …

14. In HKSAR v. Kwok Kau Kan [2000] 1 HKC 789, the Court of Appeal observed that evidence of multiple acts is sometimes unavoidable as it is easy for a witness who gives evidence on the subject incident to refer to other incidents not covered by the charge. It is easier for a professional judge trying the case alone than for the jury to put aside the undesirable effects of such evidence and focus on matters pertaining to the charge. Therefore, such evidence should give rise to lesser inherent injustice in a case tried by a judge alone than in a case tried by the judge and jury. In a case tried by jury, it is necessary for the judge to give proper directions so as to minimize the prejudicial effects of such evidence on the jury. However, if the prosecution in proving its case refers to evidence of multiple acts unrelated to the case so that confusion ensues and the defendant does not know to which incident he has to answer, then this will cause embarrassment and injustice to the defence.

15. In the present case, the prosecution had never specified which of the five incidents of indecent assault formed the basis of the charge against the Appellant. Had the prosecution taken a clear stance, then even if there was evidence of multiple acts, I believe that the magistrate would still have been able to brush aside such evidence. As the prosecution’s stance was unclear, the Appellant did not know to which incident he had to answer. This neglected and even deprived the Appellant of his right to answer to the matters particularized in the charge. I am not satisfied that the conviction is safe, and therefore I allow the appeal and quash the conviction.

Application for costs

16. The Appellant through his Counsel applies for costs of the appeal, costs of bail pending appeal and costs before the magistrate. Ms. Chan for the Respondent only opposes the application for costs before the magistrate.

17. The present appeal is allowed mainly because at trial the prosecution relied on more than five incidents of indecent assault. There was only one charge against the Appellant, but the prosecution never made it clear to the court and the defence which particular incident of indecent assault was being relied on as the basis of the charge. At trial, the Appellant was represented initially by Mr. Wong SC and subsequently by Mr. Joseph Tse, but at no stage did defence counsel inquired of the prosecution or even the court about this problem. This might of course be a tactic of the defence, but as the defence had not reminded the court and the prosecution of this issue or sought clarification thereon, I do not think they should be awarded costs before the magistrate.

18. As regards costs of the appeal and costs of bail pending appeal, these are to be taxed in accordance with rule 5 of the Costs in Criminal Cases Rules (enacted pursuant to the Costs in Criminal Cases Ordinance, Cap. 492, Laws of Hong Kong) if not agreed.

19. I also order that any application by the prosecution for a re-trial must be made within 7 days of delivery of this Judgment and be supported by reasons in writing. Costs of the hearing of any application for a re-trial are to be dealt with when determining whether the application is to be allowed.