HKSAR v. CHAN CHAU WING

HCMA587/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 587 OF 2008

(ON APPEAL FROM STCC 2523/2008)

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J U D G M E N T

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1. The appellant appeared before Mr Timothy Casewell, a magistrate sitting at Shatin Magistracy, on 26 May 2008 and pleaded not guilty to three charges of indecent assault contrary to Section 1221 of the Crimes Ordinance, Cap. 200, Laws of Hong Kong, and three related charges of criminal intimidation contrary to section 24A(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.   He was convicted after trial of all six charges and, on 10 June 2008, was sentenced to a total of 5 months' imprisonment. 

2. Notice of appeal against conviction and sentence were filed on 10 and 19 June 2008 respectively and, subsequently, six perfected grounds of appeal against conviction were filed on the appellant's behalf on 19 August 2008 which Mr Lawrence Lok, SC, relied on in the hearing of the appeal before myself on 12 September 2008.  I should perhaps also say that, by letter to this court, on 8 September 2008, the appellant through his solicitors abandoned his appeal against sentence.

3. The six charges that the appellant faced in the court below related to three separate incidents, one of which occurred on 18 January 2008, and the following two occurring three days later on 21 January 2008. 

4. The victim in this case was PW1 who, at the time of the alleged offences, was the domestic helper of the defendant and who had only two days before commenced employment with the appellant. 

5. The main witness for the prosecution was indeed PW1, the victim, who, in the words of the learned magistrate, gave detailed evidence of the events which gave rise to the charges.  As far as Charges 1 and 2 are concerned, on 18 January the appellant suggested they should go to the market.  However, he took her to a park where they sat down on a bench.  The appellant evidently told PW1 that he wished PW1 to be his girlfriend.  If not, he would send her back to the Philippines.  She refused, whereupon the appellant kissed her, hugged her, held her breasts with both hands and touched her buttocks.  The appellant then allegedly threatened PW1 that he would kill her if she told "Madam" about the incident. 

6. With regards to Charges 3 and 4, these occurred, according to PW1, in the morning of 21 January 2008.  She said on this occasion the appellant pushed her into the toilet while she was working and told her to undress and sit on the toilet.  She said the appellant threatened her, which included a threat to kill her.  She said the appellant told her that she would be sent back to the Philippines if she did not take her clothes off.  She had two choices - either to have sex with him, the appellant, or "get sent back to the Philippines".  She took her clothes off and the appellant sat on her legs as she was sitting on the toilet.  He cupped and held her breasts, the incident lasting some 30 to 45 minutes. 

7. With regards to Charges 5 and 6, the incident giving rise to these alleged offences occurred also on 21 January 2008 around 1 o'clock in the afternoon when the appellant asked PW1 to go to a karaoke with him.  Inside the karaoke, the appellant allegedly once again asked PW1 to be his girlfriend, kissed her on the lips against her will and said to her, "Don't tell Madam.  You already know what I do to you.  If you do, I will kill you." 

8. PW2 was called to give evidence of recent complaint.  Her evidence was essentially that on two occasions - firstly, on 18 January between 5 pm and 6 pm - PW1 had called her and told her that she had been molested by her employer and that she was very afraid.  Again, on 21 January 2008 between 5 pm and 6 pm, she received another call from PW1 who told her in detail about the ordeal that the appellant had subjected her to in the toilet. 

9. The appellant gave evidence and effectively denied that he had indecently assaulted PW1 and denied that he had ever threatened her.  On 18 January 2008 at 2.50 pm, he said that he telephoned PW1 and asked her to come to the supermarket to carry home items that he had bought.  In the supermarket, the appellant said that he had scolded PW1 and told her that he was not impressed with her performance and if she did not improve, she would be fired.  Evidently, later on that day whilst the appellant was in his study, PW1 came in and effectively seduced him.  She kissed him on the lips and said that she could live a new life in the Philippines if she had $100,000.00.  If the appellant paid her $40,000.00, then she would be his girlfriend for two years.  He, the appellant, said that it was too much but he agreed to pay her $20,000.00 and he gave her a cheque. 

10. The appellant's wife gave evidence.  This was because in evidence-in-chief, PW1 had said that she had complained to the appellant's wife on the evening of the 21st as to the appellant's behaviour toward her in the toilet.  However, in evidence, the appellant's wife agreed that she had apologised to PW1 on the evening of the 21st but not for the reason stated by PW1, rather for scolding her too severely on the 19th when she thought she had gone too far. 

11. In his reasoned statement of findings, the learned magistrate correctly identifies the only real issue in this case, that being one of credibility of PW1 on the one hand, and the appellant and his wife on the other. 

12. Of the six perfected grounds of appeal canvassed on behalf of the appellant, three of them go directly to the question of credibility.  I will, however, deal with each ground of appeal in order. 

Firstly:  that the learned magistrate failed to make a finding of fact over a crucial issue in the defence case, why PW1 possessed a cheque in the sum of $20,000.00 issued by the appellant.  The trial magistrate erroneously rejected the appellant's evidence that the cheque was for part payment for the sexual relationship between him and PW1 without making a finding of fact over this issue. 

With respect, the learned magistrate did make a finding of fact with regard to the cheque for $20,000.00.  He found that it was the appellant who, at some stage, introduced it into PW1's belongings.  He said that he was unable to speculate as to his reasons for doing this.  He also found that PW1 did not know that the cheque was in her possession until 2 February 2008 when she took it straight to the Consulate.  He rejected the appellant's account as inherently incredible.  He was perfectly entitled to do so.  This ground fails.  

Ground 2:  that the magistrate failed to assess PW1's evidence against the evidence of PW3, the police officer, responding to the alleged scene of the crime on 22 January 2008.  Whilst it is correct that PW1 had stated that she had to struggle to open the door for help, the police officer, PW3, stated that it was the appellant who opened the door and he made no mention of hearing any struggle or commotion.  This discrepancy I find to be so minor that it cannot, in any way, have impinged of the general credibility of PW1.  This ground also fails. 

Ground 3:  that the trial magistrate failed to pay proper regard to the difference between PW1 and PW2's evidence over the recent complaint made on 18 January 2008 and erroneously ruled that the recent complaint was "factually confirmed' and made use of this to support the truthfulness of the evidence of PW1. 

There is no merit in this ground.  The learned magistrate, in his statement of findings, was alive to the differences in the testimony of PW1 and PW2 with regard to the details of the alleged molestation as recounted by PW1 in her testimony and the evidence of PW2 in this respect.  Despite the differences, the magistrate found PW1 to be a truthful witness and he was perfectly entitled to do so.  In addition to this, when the magistrate said that the recent complaint could be factually confirmed, he meant simply that, that is, that PW1's claim that a recent complaint had been made to PW2 was confirmed by PW2's testimony.  He did not, in any sense, assume that the indecent assaults and criminal intimidations had actually taken place simply because PW1 had made a recent complaint to PW2.

Ground 4:  that the trial magistrate erroneously rejected the appellant's wife's evidence without proper basis.  The trial magistrate rejected her evidence merely because she was the wife of the appellant without considering that a wife can also be a truthful witness. 

There is nothing whatsoever in this ground.  The learned magistrate had the benefit of seeing each of the witnesses give evidence before him.  He found PW1 to be a truthful witness and said so in his statement of findings.  Having come to this conclusion, it was inevitable that he would reject the evidence of the appellant's wife.  This ground fails. 

Ground 5:  that the magistrate failed to give himself a Vye direction, that he failed to take account of the fact that the appellant had no previous complaints from domestic helpers for 15 years and that he failed to give proper weight to the character evidence.  This ground can be easily disposed of.  The learned magistrate, who is highly experienced, made reference to the appellant's clear record in his statement of findings on two separate occasions.  He also referred to the fact that character evidence was before him.  The Court of Appeal held in R v Fok Tin Yau [1995] 2 HKC 450:

"That where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it unless there be some express or implied information otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved." 

Clearly the learned magistrate was aware of the character evidence that was before him and I must assume that he gave it the weight which he thought it deserved.  That is no merit in this ground and it fails also. 

Ground 6:  that the magistrate convicted the appellant on the 2nd charge upon a basis not put forward by the prosecution and without evidence. 

This particular ground is devoid of any merit.  The particulars of Charge 2 alleged that it was uttered at Wong Uk Garden.  The learned magistrate specifically asked the victim where the threats were uttered and the victim said, "The park" and then when pressed by the magistrate, she said, "On the way home."  I find there to be no contradiction in these two answers.  Clearly, what the witness was saying was that the appellant issued the threat to her in the park but whilst they were on their way home.  This ground  also fails. 

13. In the event, I find there to be no merit whatsoever in any of the grounds of appeal against conviction put forward by the appellant and I dismiss the appeal and confirm the convictions.