HKSAR v. LI WAI MAN

HCMA551/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 551 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of indecent assault by Mr James Lee sitting at Eastern Magistracy on 5th May 1998. The allegation was that on 23rd March 1998, on board a shuttle bus travelling from Tuen Mun to Central, the Appellant indecently assaulted a female Ng Wing Po. The facts were that he was seated next to the Complainant on board the bus, and he stretched out his hand from one side of his body and touched her on her right breast.

2. After the evidence was concluded, the learned Magistrate gave his reasons for verdict orally in Court which were recorded, and as transcribed, run to 14 lines of writing in Chinese. He mentioned the fact that the Appellant had a clear record, he mentioned the evidence of the Complainant insofar as it pertained to the indecent assault, he found that insofar as the first assault was concerned, it could have been accidental; he found that insofar as the second assault was concerned, which I have described above, it could not have been done by a person who was asleep as the Appellant said he was at the time. He then dealt with the evidence of the 2nd Defence Witness who was mainly a witness as to character. He then found the Appellant guilty of the indecent assault.

3. Mr Kwok has advanced two grounds of appeal, firstly that the learned Magistrate never warned himself of the danger of acting on the uncorroborated evidence of the Complainant in a sexual case such as this case. The second ground is that even though the learned Magistrate mentioned the fact that the Appellant had a clear record, he never dealt with the Berrada direction insofar as credibility of the Appellant was concerned. In other words, when the learned Magistrate gave himself the Berrada direction, what he said was centred on propensity, but not on credibility.

4. Insofar as this ground is concerned, Mr Edmond Lee, for the Respondent, has quoted the case of The Queen v. Cheng King Ho, CA No. 255 of 1993. In that case the Court of Appeal said :

" We think that we should also indicate for future guidance that this court does not require a District Judge or a Magistrate to state in his or her Reasons for Verdict that he or she has given himself or herself a Berrada or Vye direction."

I accept as correct what was said by the Court of Appeal in that case. Indeed that was what the Court of Appeal in another case, The Queen v. Chan Wu-Nam [1994] 2 HKCLR 56 also said :

"... it would not always be necessary that a judge give himself a Berrada direction...."

5. I find that what the learned Magistrate had done in this case as regard the Berrada direction was sufficient and that it was not incumbent upon him to have gone into details of how both limbs of that direction might have affected his assessment of the evidence. But that still leaves the first ground to be dealt with. It is clear that in his oral reasons, at the time of the verdict, the learned Magistrate never adverted to or alluded to the danger of acting on the uncorroborated evidence of the Complainant in a sexual case. In The Queen v. Wong Shing Fai, MA No.1482 of 1990, Hooper J. said this :

" ... As this was an allegation of a sexual assault, it was incumbent on the magistrate to warn himself of the danger of convicting on the uncorroborated testimony of the complainant and to identify evidence of corroboration relied upon by him ..."

In that case, as in this case, the Magistrate did not warn himself of such a danger. In the present case, after the Notice of Appeal against conviction was filed on 27th May 1998, on 9th June 1998 the learned Magistrate wrote up his Statement of Findings which amounted to six lines of writing in Chinese, two lines to each of the three paragraphs. In paragraph 2, he said: "This Court has considered all the evidence and has also studied the way in which the witnesses gave the evidence." He then said : "I give myself the appropriate directions." What those directions were and in what terms the directions were was not made clear. In Wong Shing Fai, supra, Hooper J. said :

" Leaving the Statement of Findings aside for the moment, I do not think it would be right for an appellate court to assume that the magistrate has given himself these directions in the absence of specific references to either of them. They are matters of extreme importance in a criminal trial, and it should be made abundantly clear from the record that the Magistrate did so warn himself.

When the Magistrate in his statement of findings states that he did give himself the appropriate warnings, it is, of course, open to the appellate court to accept what the Magistrate had said in this respect, unless there is reason to believe from the record that the statement of findings may not be accurate in that respect."

Further on in the judgment, Hooper J. said :

".. Even if the Magistrate did give himself the warnings as he has subsequently contended, it was not made apparent to the parties at the time that he gave judgment. I am left with the uncomfortable feeling that justice may not have been done and certainly has not been seen to be done in this case. ..."

6. In the instant appeal, in my judgment, whether this danger was in the mind of the learned Magistrate, he should have made it quite clear in his oral reasons that he was aware of such a danger. It would not have required very much for the learned Magistrate to say in one sentence that he was aware of such a danger, but in the absence of corroboration, was nevertheless accepting the evidence of the Complainant.

7. Mr Lee is quite correct in his submission when he said that in the Statement of Findings, when the Magistrate gave himself the appropriate warning, he must have been warning himself about the danger of acting on the uncorroborated evidence of the Complainant in a sexual case, because that is the only warning which is required in this particular case.

8. Nevertheless, I find that that short statement by the learned Magistrate in the Statement of Findings was too late in the day to cure the defect. The appeal against conviction is therefore allowed and the conviction is quashed.