THE QUEEN v. TSANG SIU HUNG

IN THE SUPREME COURT Of HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 937 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 21st June 1990, the appellant was convicted of a single charge of unlawful sexual intercourse with a girl under the age of 16 and sentenced. to 6 months' imprisonment. He now appeals against that conviction and sentence.

2. It is the contention of the appellant that the conviction is unsafe and unsatisfactory for the following reasons: -

3. This case has had a chequered history. The appellant had originally been charged on the same charge with a co-accused named Au Man Wah (as in (b) above). Apparently the Complainant, who had run away from home to become a prostitute, was found by the police on the 21st September 1989. Subsequently, she told the police a story about what had happened and took the police to an address in Kowloon in Yuen Chow Street where she told the police she had attended on customers there. At the time when she and the police arrived at the premises, both the appellant and his co-defendant were there and the complainant identified them as being persons with whom she had had unlawful sexual intercourse. The exact date when this had taken place was not at all certain. The original charges alleged that the sexual intercourse had occurred in September 1989, in other words, a comparatively short time before the girl had been found by the police. However, the date was amended at the trial to read "on a certain date in June 1989". Neither the appellant nor his Co-defendant gave evidence at the trial and they were duly convicted. However, on appeal the convictions were set aside and a re-trial was ordered.

4. At the commencement of the re-trial an application was made for the appellant and the co-defendant to be tried separately as they related to separate acts of sexual intercourse. This application was granted and the trial of this appellant took place and was Concluded on the 21st June 1990. Again the only evidence for the Crown was the testimony of the complainant, and again the appellant, elected not to testify or call any witnesses. He was, however, convicted, the Magistrate accepting the complainant's evidence.

5. This appeal came on first before Bewley, J. who, on the application. of Mr Hagon for the appellant, adjourned the matter for a transcript of the trial of the co-defendant to be made available, it being apparent that the co-defendant had been acquitted on what was believed to be almost identical evidence. That transcript is now available and I have been referred to it. It shows that on almost identical evidence, and in almost identical circumstances, the complainant was disbelieved by another magistrate and the appellant's co-defendant was acquitted.

6. I find this to be a very worrying case; The complainant, in her evidence, testified that she ran away from home in June 1989 in effect to become a prostitute in Shamshuipo. A man called Ah Tam introduced her to customers and she received $200 from Ah Tam. She initially testified that she received five or six customers in June 1989 and that with some customers she had sexual intercourse two times and with others three times.  She could recognize the appellant and she had had sexual intercourse with him two or three times.

7. So at the initial stage of her evidence she testified that she had sexual intercourse with the appellant two or three times.

8. She described the first occasion, the preparation . therefor and how the offence took place. She described what happened afterwards and she described how she was paid $200 by Ah Tam.

9. She described how two or three days later she had sexual intercourse with the appellant a second time in the same premises in Shamshuipo. The same thing happened as before.

10. She then described the sexual intercourse taking place on a third occasion two or three days later in the same premises and again it was the same as on the previous occasions.

11. It would appear that she was saying that she had now become certain that she had sexual intercourse with the appellant three times.

12. She described how after running away from home she was returned home after she was caught by the police on the 21st September. She testified that she told the police about the sexual intercourse in June.

13. If that evidence was true, it does seem surprising that the Charges should originally have been laid as having taken place in September.

14. She was cross-examined at some length by Mr Hagon for the appellant and she agreed that the incident she. was describing had happened a long time ago. She changed the number of customers in her evidence under cross-examination. She now said that she had had over, ten customers in June 1989. When she was cross-examined about the discrepancy her story between whether she had had sexual intercourse with the appellant two or three times or definitely three times, she testified "to be more exact three times". She was asked why not say exactly three times earlier and she replied "Long time ago. Could not remember exactly.".

15. This indicates at the very least that she was prepared to testify precisely on oath as to matters that she could not remember exactly.

16. The complainant admitted, under cross-examination, that her identification of the appellant was some three months after the sexual intercourse complained of.

17. When she was cross-examined about why she had said that at the end of September last year she was in a Girls' Home, she replied: -

"I was in Ma Tau Wai Girls' Home. Went there on 24.10.1989. On 14.2.1990 I ran away from Home and did not return for 10 days. I did that out of greed for fun. I went everywhere.  Sometimes to Lantau Island."

She admitted missing the hearing of the trial on an earlier occasion saying that she was very frightened. She admitted, under cross-examination, that she knew that if she said this sort of thing happened in premises her mother would have more sympathy for her. She also admitted in cross-examination that she had given a more detailed description of the sexual intercourse on this occasion than at the previous trial.

18. On no evidence being called for the defence, Mr Hagon made a submission asking the Magistrate to dismiss the case. He referred to the fact that the original charge had alleged the date to be September 1989 but this was changed to June 1989 at the end of the last trial. He referred to the absence of corroboration and pointed out that there was a big difference between September and June. With only the girl's evidence to go on, the Court had heard new evidence in this case of a detailed description of activities not heard before. He pointed out the fact that the complainant appeared to be head-strong, with no emotion, a girl who left home continually and continued on escapades even on the day before the trial. He suggested that once her statement had been made to the police it was difficult for the girl to retract from that statement. He suggested that the Magistrate must have some doubt as to her memory and accuracy.

19. The Magistrate rose to consider the evidence and later announced his verdict convicting the appellant. He gave a summary of his reasons for decision at this time. During the course of these reasons he said:-

20. It seems from the words "... PW1 was truthful and accurate about what had taken place between you ..." in the last paragraph above that the Magistrate accepted the complainant's evidence that she had had sexual intercourse with the appellant . on three occasions. This is so despite the fact that the complainant had changed her evidence about the number of times she had had sexual intercourse with the appellant, and when asked why she did not say exactly three times earlier, she had replied: "Long time ago. Could not remember exactly.".  If she could not remember exactly then, it is difficult to see why the Magistrate could be certain that she was "truthful and accurate" when she gave positive evidence of this at this trial.

21. The Statement of Findings prepared by the Magistrate and signed on the 27th June 1990 deals with the Crown case in very much greater detail than in his summary of findings mentioned above. He has referred specifically to the discrepancies which appeared in the evidence of the complainant. In paragraph 7 he deals with his evaluation of the evidence and findings of fact as follows: -

"Defence Counsel had reminded me of the danger of convicting on the uncorroborated evidence of PW1. There was indeed no corroboration. PW1 was certainly not a paragon of virtue. She had admitted to committing many acts of indiscretion. However, after careful examination of her demeanour in the witness box, I found her to be a truthful and honest witness whose account of what had transpired between her and the Appellant was an accurate one. I had considered all the matters raised by Counsel in his cross-examination of PW1 and which he subsequently elaborated in his submissions. I believed her explanation as to why she was able to give a better explanation of the meaning of sexual intercourse in the present trial and why in the earlier trial she made no reference to activities preceding the sexual intercourse. The fact that a young girl had freely engaged in sexual intercourse in private does not mean she would not feel embarrassed to talk about it in detail in the presence of others. The hearing was in camera but to her the magistrate, the prosecutor, defence, counsel and court staff are all strangers. We all learn from our experiences and I believed that PW1 had simply become more articulate when giving evidence for the second time. In the course of her evidence she had changed the number of customers she had in June 1989 from 5 or 6 to over 10. It was only under cross-examination that she became certain of the exact number of times she had sexual intercourse with the Appellant, but I did not think these discrepancies had affected her credibility. Young witnesses are often careless about details and I was not troubled that she became more precise when her mind was directed to those matters under cross-examination. I had warned myself of the danger of convicting on the uncorroborated evidence of PW1, but in this case I felt I could safely act on her evidence despite the absence of corroboration. I accepted her evidence and found that the Appellant did have sexual intercourse with her in the way she described. I found that PW1 had not made a mistake as to the Appellant's identity nor had she fabricated evidence against him. I found that the prosecution had proven each and every element of the offence against the Appellant and I found him guilty as Charged."

22. In view of the discrepancies in this girl's evidence, I am not Confident that the Magistrate reached the right decision in determining her credibility. It seems to me that if anything, as the memory dims with time, the details of ones account should become less extensive rather than more extensive. Furthermore, on her own admission the girl appears to have had, very few moral values, if any. The warning of the danger of Convicting a man on the uncorroborated testimony of a witness of this sort was particularly pertinent in this case.  Further if she was careless about details in her evidence, the danger was increased.

23. It is now clear that in a subsequent trial the appellant's co-defendant was acquitted by another magistrate who rejected this girl's evidence. There is a very close connection between the evidence which she gave at both trials, she having purported to identify the 2 men at the same time in identical Circumstances.

24. In Cooper, 53 Criminal Appeal Reports page 82, the English Court of Appeal held that on an appeal on the ground that the verdict was unsafe and unsatisfactory, the Court must now ask itself the subjective question whether it is content to allow the verdict to stand, or whether lurking doubts caused it to wonder whether injustice has been done. The reaction may not be based strictly on evidence, but can be produced by the general feeling of the case as experienced by the Court.

25. Cooper was applied by the Court of Appeal in CHENG AU KAI v R criminal appeal 97/1982 (unreported) where they set aside a conviction based on the evidence of an acomplice whose testimony in a related case was disbelieved by another Jury.

26. Having regard to all the circumstances referred to above, I have a lurking doubt in this case and consider that the verdict is unsafe and unsatisfactory. The appeal is allowed and the conviction and sentence set aside.