HKSAR v. WONG TSIU KEN

HCMA736/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.736 OF 1998

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J U D G M E N T

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1. After his trial before a Magistrate sitting in the Eastern Magistracy, the Appellant Wong Tsiu-ken was convicted of one charge of Indecent Assault and was sentenced to six months' imprisonment. He now appeals against both his conviction and sentence.

2. The incident took place in the afternoon of 15 April 1998 in Wah Fu Estate. The victim, a nine-year old girl, was cycling in the public corridor outside the unit in the building where she lived with her parents. The Appellant's unit, where he lived with his wife, opened into the same corridor. At one point of time in the course of cycling, the girl stopped outside the Appellant's unit. She was given a packet of lemon tea by the Appellant and she was asked to render a favour to deposit a bag of rubbish for him in the rubbish room located at the end of the corridor. This she did and then she resumed cycling. Not long afterwards, the Appellant came out of his unit carrying another bag of rubbish which he took to the rubbish room. There were conversations between the girl and the Appellant. The girl then followed the Appellant into the refuse room. After depositing the rubbish, the Appellant and the girl went to a spot near a staircase where the alleged indecent assault took place.

3. The acts complained of were that the Appellant had used both his hands to stroke the girl's back, her chest and the lower part of the body through her clothes. After the alleged indecent assault, the Appellant returned to his unit and the girl continued cycling in the corridor. On one occasion the girl stopped outside the door of the Appellant's unit and attempted to touch the bird inside a cage which the Appellant had placed outside the door of his unit. The Appellant was not happy with what the girl was doing and scolded her for what she did. He then removed the bird cage and took it inside his flat.

4. The complaint of the indecent assault was first made by the girl to her mother when she was questioned that evening about some food that had gone missing. It was not a spontaneous complaint of the incident by the girl but it was only made in response to the mother's query if anyone had touched her.

5. The Appellant, aged 68, elected to give evidence at the trial. He was a man of good character. His evidence was that he never committed any acts of indecent assault. In the afternoon of the alleged incident, he had stopped the girl from meddling with his bird and scolded her for so doing and in the course of which he might have padded her on her shoulder. He maintained that the alleged indecent assault was a fabrication by the girl against him.

6. There was one other defence witness, a Madam Chan, who was a neighbour of the Appellant. Her evidence was that the girl had sometimes asked her for food. She also told the Court that the Appellant was a kind and friendly person who loved children.

7. The learned Magistrate convicted the Appellant upon the uncorroborated testimony of the girl who gave evidence by way of video link. Her mother, who also gave evidence as a prosecution witness at the trial, testified as to how and when the complaint was made to her by her daughter.

8. There are a total of five grounds of appeal. In the first ground, it was submitted by Mr Macrae, S.C., for the Appellant that the learned Magistrate was wrong in law to suggest the mother's evidence of the complaint could be relied upon to assess the girl's reliability. On reading the Statement of Findings, it appears to me that the learned Magistrate was relying on the mother's evidence on the issue of consistency only. The complaint was made to the mother in the very same evening and the Magistrate accepted the mother's evidence to find consistency in the girl's account of the incident. He went on to remind himself, in my view correctly so, that the evidence of the mother could not be evidence to prove that the Appellant had committed the offence. The learned Magistrate was fully appreciative of the circumstances under which the girl had related the incident to her mother and had approached the mother's evidence correctly. The criticism levelled at the learned Magistrate is not justified and I can see no merit in this ground of appeal.

9. On the second ground of appeal, it was submitted that the learned Magistrate erred in suggesting that the Appellant had to prove a reason for the victim to make a false complaint before he could reject her evidence. In so doing, it was said, the Magistrate placed upon the Appellant an onus of disproof. It was the Appellant's case in the Court below that he had committed none of the acts of indecency as alleged and he was the victim of malicious fabrications by the girl. The learned Magistrate had taken considerable care to evaluate the evidence of the victim and that of the Appellant on the issue of possible frame-up. At page 5 of the Statement of Findings, the original of which was in Chinese, the Magistrate took the view that :

"In evaluating PW1's testimony, I had to consider one basic factor, namely, whether it was possible for PW1 to fabricate such a story to frame up the Defendant."

Nothing which was stated in the passage above, or indeed, anywhere in the Statement of Findings or in his oral judgment could have been taken as placing any burden of proof on the Appellant. This ground of appeal must also fail.

10. Grounds 3 and 5 were that the learned Magistrate failed to give sufficient weight to the Appellant's evidence and that he had failed to evaluate the evidence before him properly. Suffice it for me to say that the Magistrate had dealt with the inconsistencies in the girl's evidence which were highlighted to him by defence counsel at the trial. Having warned himself on acting on the uncorroborated testimony of a minor, the learned Magistrate concluded that the discrepancies in the girl's evidence were insignificant. He found her to be a truthful witness and accepted her account of the incident. He rejected the Appellant's version of the events on the basis that he was not telling the truth.

11. On the issue of fabrication, the learned Magistrate concluded that it was impossible for the victim to fabricate the allegations. He had the advantage of observing the demeanour of the victim when she gave evidence, albeit on a video link, and also that of the Appellant. He was therefore best equipped to assess the credibility and accuracy of the testimony of the respective witnesses. The learned Magistrate was entitled to come to the conclusions as he did.

12. On the fourth ground of appeal, the learned Magistrate was criticized for having erred in law when he suggested that in considering the Appellant's good character he had to give appropriate consideration to two points, namely :

"Whether it was possible for him to have committed the present offence and whether his testimony was credible."

At the hearing, I pointed out to Mr Macrae, S.C., that it was an unfortunate choice of diction by the translator of the passage from Chinese into English. The learned Magistrate in the above passage had given proper consideration to both credibility and propensity in the light of the Appellant's clear record. In his usual fairness, Mr Macrae, S.C., decided not to pursue the point any further.

13. The learned Magistrate had correctly identified all the issues involved in this case and had resolved them with commendable clarity. I can see no merits in this appeal. For the reasons given, the appeal against conviction is dismissed.

Appeal against sentence

14. The Appellant was sentenced to six months' imprisonment. He is aged 68, married and has a clear record. It was submitted on his behalf that the sentence of imprisonment, in the light of the surrounding circumstances of this case, was wrong in law and manifestly excessive.

15. This is a case where the Appellant, a neighbour of the victim, had been preying on an innocent and unsuspecting young girl. As neighbours they tend to meet everyday. It is not unusual that young girls, like the victim in this case, would have a certain degree of trust and respect for elderly people.

16. The Appellant had taken advantage of his relationship and committed the present offence and for this, the learned Magistrate had correctly observed that an immediate custodial sentence is called for. Although the period of six months imprisonment, in view of the degree of indecency, is on the slightly high side but I am not persuaded that it is manifestly excessive. I see no valid reason to disturb the sentence imposed. The appeal against sentence is also dismissed.