THE QUEEN v. LAU KWOK-KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 447 OF 1988

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J U D G M E N T

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1. The Appellant pleaded Not Guilty to a charge that on 4th February, 1988 inside a lift of a building in a housing estate in Tuen Mun he indecently assaulted an eleven year old girl.

2. She was 12 at the time of the trial and gave her evidence on affirmation. She said that at around 12.45 p.m. on 4th February, 1988 she was on her way home from school when she boarded a lift at the lobby of the building where she lived. Her home was on the 20th floor. The lift was packed with schoolchildren and parents but she was not accompanied by any of her parents. She had to stand quite close to the lift door but there were some people, including the Appellant, between her and the door. The Appellant was one of a number of schoolboys in the lift whilst he was standing in front of her as the lift was ascending he lifted her knee-length school dress with his right hand and touched her briefly on her left thigh. When the lift arrived at the 20th floor she left and immediately encountered her mother who happened to be waiting for the lift to go downstairs to do shopping. She reported to her mother what had happened and pointed out the Appellant, The Appellant remained in the lift when it left the 20th floor.

3. The girl's mother said in evidence that her daughter approached her and told her a boy in the lift was really bad and that he touched her thigh. She said that when she first saw her she was "very scared and it seemed she was going to cry."

4. The Appellant gave evidence. He admitted being in the lift with the girl but denied touching her. After his arrest he made several statements under caution In them he said he was playing with two other schoolboys and may have accidentally bumped the girl.

5. The learned magistrate found him guilty and he now appeals against that conviction. He relies on 11 grounds but the only grounds which cause me concern are those which allege that the learned magistrate purported to find corroboration where none existed.

In his Statement of Findings the learned magistrate said:-

"...........  I directed myself on the danger of convicting on the uncorroborated evidence of a victim witness to sexual assault.

I also considered the tender age of PW1 and directed myself that in those circumstances I should be particularly careful of any inconsistency which existed in her testimony."

6. Then, after dealing with her demeanour under cross-examination and a conflict between her evidence and that of the Appellant on a matter going to credit only, he went on to say:-

"Having so directed myself I reviewed the evidence of all prosecution witnesses and as indicated in court found that I was in absolutely no doubt that PW1 had given a truthful account as to what occurred on the day of February 4th. She was an excellent witness and against this the defendant appeared some times uncertain and unclear. His statements about possible accident as set out in the records of interview when compared with his testimony in court, made both versions especially suspect and on a final analysis I did not believe either of these' two accounts.

In the circumstances I considered that these stories were each a mistruth and that additional corroborative evidence was found in the victim's distressed appearance (to her mother), after she left the lift. The mother's own reaction as testified to by the defendant, left me in no doubt as to the sincerity with which she perceived her daughter's situation and the fact that she completed her shopping expedition before taking further action did not persuade me to the contrary."

7. Mr. Abbott, who appeared for the Respondent, concedes that, the learned magistrate must be taken to have found corroboration in the ''mistruths" and in the girl distressed appearance. Mr. McLanachan, for the Appellant, submits that neither of the two matters mentioned afforded corroboration.

8. Lies told out of court can amount to corroboration but only if the lying conduct comprises the elements listed in Lucas (65 Crim. App Rep. 159). The first element is that the lies must be deliberate (p. 162) The learned magistrate found that the Appellant had told "mistruths" which must mean, l think, that he found that he had intentionally uttered false statements. Mr. McLanachan attacks the finding insofar as it purports to find that the Appellant told a lie. All that he told the police was that he may have bumped the girl accidentally. For present purposes, I accept that the learned magistrate was entitled to find that the Appellant intentionally uttered false statements An intentionally uttered false statement may be either a falsehood or a lie, the difference being determined by the degree of guilt of the utterer. A falsehood may or may not be spoken with the express intention of deceiving whereas a deliberate lie is always, by definition, a falsehood uttered with such an intention. The learned magistrate found himself unable to classify the Appellant's falsehoods as deliberate lies His reluctance to stigmatize the Appellant's conduct as deliberate lying must mean that he was hesitant to find that an express intention to deceive accompanied the statements. He was therefore unable to find that the Appellant's conduct involved the first element in Lucas He was accordingly wrong in finding that that conduct amounted to corroboration.

9. As to the distressed condition of the girl Mr. McLanachan submitted that the learned magistrate should have given this evidence no weight at all as corroboration.

10. In Redpath ((1962) 46 Cr App. Rep. 319, 321-2) the Lord chief Justice said:-

"....[T]he distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course the circumstances will vary enormously, and in some circumstances quite clearly no weight or little weight could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence because it is all part and parcel of the complaint. The girl making the complaint  might well put on an act and simulate distress."

11. Later, in Knight ((1966) 5o Cr App. Rep. 122,124), he said that the facts in Redpath were very special facts" in that the girl was "not going to make a complaint at the time she was observed, had no idea that she was being observed and her extremely distressed condition was observed by an independent bystander" He wept on to say that he "endeavoured to stress that distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence". The Court held in Knight that where evidence of the distressed condition of the complainant comes from a parent the jury should be warned that, before they regard it as corroboration of the complainant's evidence, they should be satisfied that the distress was real and not simulated and that such evidence might well be insufficient corroboration in certain circumstances in the absence of other evidence capable of affording corroboration (p. 126).

12. In this case, the only evidence of distress was the evidence of the demeanour of the complainant whilst relating to complaint to her mother. In the absence of other evidence capable of affording corroboration the learned magistrate should have found that the distress was insufficient corroboration.

13. The question which now arises is this: the learned magistrate having correctly warned himself of the danger of convicting on the uncorroborated evidence of the girl and having found corrlboration where he should not have done so,  can the conviction still stand because he was "in absolutely no doubt that [she] had given a truthful account as to what occurred"?

14. Both counsel made submissions on this question and referred me to all the authorities bearing on the matter which they were able to unearth. Many of the decisions do not help because, as Mr. Abbott has observed, different considerations can apply as between trial by a single judge and trial by judge and jury. In the latter, an appeal court cannot know the jury's thought processes in evaluating the evidence whilst in the former the Statement of Findings usually contains full disclosure. Here we know how highly the learned magistrate rated the credit of the witness and that rating would have led me to uphold the conviction had I not been referred to Chiu Nang Hong v. Public Prosecutor ([1964] 1 WLR 1279). In that case the Appellant had been convicted on a charge of rape by a judge sitting alone. There was no corroboration on the "consent issue", but the judge was aware of the need for such corroboration. In convicting he said "I could not but come to the conclusion that she" (the complainant) '"was speaking the truth, and that in all material circumstances her evidence was corroborated by the facts" (p 1284) The Privy Council was of the opinion that there was no corroboration and that the case was one where the Appellant had been convicted on the basis that the complainant's allegation was corroborated when it was not The Board, however, went on to say this:-

"....[ E ]ven had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant's evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships' view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge's mind upon the matter should be clearly revealed.

Their Lordships recognise the careful nature of the judgment in the present case: but on this particular point it is ambiguous as the differing interpretations of the Court of Appeal and of their Lordships show; and there should be no ambiguity upon such a matter where the liberty of the subject is involved." (p. 1285).

15. Echoing those words 1 recognise the careful nature of the learned magistrate's Statement of Findings and note that it does not clearly indicate that he would have been prepared to convict in the absence of corroboration.

16. I therefore allow the appeal, and quash the conviction and sentence.