R. v. HO HUNG WAI

IN THE COURT OF APPEAL

1993, No. 782

Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal by Mr. HO Hung-wai on a conviction for indecent assault by Mr. Sinclair at the Western Magistracy on 25 August 1993. The charge was that on 23 May 1993 inside a ladies' toilet on the mezzanine floor of Prince's Building Central, he indecently assaulted a female Grimaldo Asuncion. Upon conviction the appellant was sentenced to imprisonment for 28 days and he now appeals against this conviction.

2. The appellant was a security guard employed at Prince's Building and had at the complainant's request unlocked the outer door to the female toilet at the mezzanine floor at Prince's Building. The appellant did not give evidence at his trial. This was his right but the effect was that there was no evidence from him to contradict the account of the event given by the complainant.

3. What the magistrate found in essence was this. The appellant, after he had opened the door for the complainant, remained inside the washroom. She was washing her hands. He then "ravished her breasts and other parts of her body" and continued to do so as she tried to leave.

4. In the complainant's testimony, there were considerable contradictions on a peripheral matter, namely, whether the door to the lavatory was locked by the appellant after she had entered. In her evidence-in-chief, she said this: "I heard the sound of the door lock behind me." In cross-examination there was this passage:

"Q.: Did you ask him to leave?

A.: Yes.

Q.: When?

A.: When he was locking the door."

Then there was a further passage as follows:

"Q.: Did you actually see the door being locked?

A.: Yes.

Q.: What did you see?

A.: I saw the key in the lock and he was turning it.

Q.: Sure?

A.: Yes."

Later, her police statement was put to her and she agreed that this is what she told the police:

"I cleaned my hands and walked towards the door. I tried to leave but the door was locked. I shouted (help) in Chinese. The security officer then unlocked the door with a key. I immediately opened the door."

5. It is clear from the rest of the evidence that this could not have been true because there was no lock on the inside of the door. The door could not have been locked from the inside. Such inconsistency in the testimony of a witness on a collateral matter obviously affects her credibility as to the rest of her evidence.

6. The magistrate was well aware of this fact. However his approach to the inconsistency in her testimony was unfortunate. Instead of accepting it as inconsistency which affected her credibility, he went on to hypothesize as to what explanations there might have been. This is what the magistrate said:

" If one accepts for the moment that the complainant is not telling lies an explanation for the complainant's confusion could reasonably be that the defendant pretended to use his key to lock the door in order to persuade the complainant that attempts to escape were futile and to facilitate his planned assault on her. This would explain why the complainant imagined seeing the defendant turn the key when in fact he merely pretended to do so."

7. If this were a finding made by the magistrate I would not have had the least hesitation in concluding that the conviction was unsafe and unsatisfactory, as there was simply no evidence from which a finding of such intent or "pretence" could have been made. The contradictions in the complainant's testimony remained contradictions and could not be erected into proof of the appellant's intent to "facilitate" a "planned assault". However it is clear from a following passage in the Reasons for Verdict that this was, as the magistrate said, "no more than a hypothesis."

8. The magistrate, appreciating that the testimony of the complainant was unreliable at least as regards the question of the door, went on to look for corroboration; he thought it was mandatory to have the story of the assault corroborated before he could safely convict. This as Mr. Cheung, Crown Counsel, puts to me, in fact, places a heavier burden on the prosecution than the law requires. The corroboration which the magistrate found was in the written statement made by the appellant at the Waterfront Police Station after he had been identified at a line-up of security guards at Prince's Building that morning.

9. The testimony of the police officer was simply to this effect: After what he called the "preamble" (meaning the identification of the matter complained of and why the officer was making investigations) he went on to caution the appellant, whereupon the appellant wrote in the officer's notebook as follows:

"I hope a chance could be given. I know that I was wrong. I hope no conviction would be recorded".

10. Although attempts have been made by counsel for the appellant to minimize the effect of this written statement, it seems to me to be a fairly clear admission of wrong-doing on his part; this could only have related to the incident in the female lavatory that morning. The effect of all this is as follows. There was evidence from the complainant from which a magistrate could have found that she was indecently assaulted in the female lavatory. The appellant gave no evidence to contradict what she said.

11. As regards the central issue which constituted the indecent assault the complainant was unshaken in her evidence. The case as put in cross- examination was simply that there was some sort of commotion inside the lavatory; the appellant used his key to open the door; the complainant rushed out at her and he tried to ward her off; nothing else happened. He did not back up this version of events by any testimony in court. This was the case as put by his counsel in cross-examination which the complainant denied.

12. Clearly the magistrate would not have convicted upon the bare testimony of the complainant, having regard to the contradictions in her evidence on the collateral matter of the door, but the case for the prosecution was clearly supported by what the appellant had written in the police notebook.

13. In my judgment this clearly amounted to corroboration. Despite the rather unsatisfactory reference to the "hypothesis" in the magistrate's finding I am not satisfied that the conviction is unsafe and unsatisfactory. The appeal must therefore be dismissed.