HKSAR v. NG CHI LOK

HCMA 656/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 656 OF 2000

(ON APPEAL FROM TMCC 556 of 2000)

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J U D G M E N T

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1. On 8 June 2000 before D. I. Thomas Esq. in the Magistrate's Court at Tuen Mun, this appellant, a man in his mid 20s, was convicted after trial on a charge of indecent assault contrary to s.122(1) of the Crimes Ordinance, Cap. 200, and fined $5,000.

2. The nature of the prosecution's case on the one hand and that of the defence on the other is succinctly stated in the first two paragraphs of the Magistrate's Statement of Findings as follows:

"The case against the appellant was that he had boarded a double-decked bus in Tuen Mun. He had sat next to the female named in the charge on the upper deck. On two occasions during the course of the journey, the female had felt something rubbing against her buttock. On the second occasion the female came to the conclusion that the touching was deliberate and that the appellant had been the one responsible for it. She contacted the police through her mobile telephone and caused the bus to stop and to wait for police officers to attend.

The appellant accepted that there might have been some innocent contact with the female but that it was only the sort of contact that would usually occur during the course of a bus journey. He denied that he had deliberately touched the female and denied any indecent contact."

3. The person named in the charge as the victim, and who gave evidence as PW1, is a woman who was at the time aged 23.

4. Four Perfected Grounds of Appeal against Conviction signed by his leading counsel, Mr Andrew Macrae SC, have been filed on the appellant's behalf.

5. Ground 1 reads as follows:

"The learned Magistrate, in addressing the issue of corroboration, said as follows (p.23E-L):

"I reminded myself in this case of the dangers I have just referred to. However, I took into account the various factors which I have set out above and which led me to conclude the honesty and reliability of PW1 were of a very high order. I also took into account the recent complaint of the witness to the police on the telephone and to PW2.

A recent complaint does not amount to corroboration. Such evidence, does, however, tend to confirm and support the testimony of the complainant that the sexual assault did take place. See HKSAR v. Kwok Wai-chau [1998] 3 HKC 354 (CA). It shows consistency on the part of the complainant. I held that the immediacy of the recent complaint to the police and to the driver of the bus did support the complaint which she made."

The learned Magistrate erred in law by:

(i) finding that the "recent complaint" by PW1 to the police on the telephone and to the bus-driver (PW2) "tended to confirm and support the testimony of the complainant that the assault did take place" when all that a recent complaint could establish was consistency on the part of PW1;

(ii) citing as authority for this finding the case of HKSAR v. KWOK Wai-chau (1998) 3 HKC 354, which was not an authority on "recent complaint" at all but rather on whether distress amounted to corroboration;

(iii) finding that PW1's report "to the police on the telephone" was a recent complaint when it should have been the police officer's evidence of what PW1 said to him/her which amounted to "recent complaint" and not PW1's claim that she had reported the matter;

(iv) holding that the "recent complaint" to the police and to PW2 could and "did support the complaint which she made.""

6. The Magistrate did indeed do the things which it is said in this ground that he did, and subject to one point, I regard the complaints made in this ground against those things to be well-founded. That point is as follows. In HKSAR v. Sze Wai-chung HCMA 450/2000, 4 October 2000, Stock JA hearing an appeal from a decision of the same Magistrate as the one in the present case, said this:

"The magistrate has dealt in detail with his approach in his findings and they cannot be faulted. I had wandered at one stage whether his approach to the question of corroboration was inconsistent for, on the one hand, he said that a recent complaint did not amount to corroboration whereas a little later he said that it tended to confirm and support the testimony of the complainant. I am satisfied, however, that in his latter reference he was saying no more than that the recent complaint went to the consistency of the complainant's testimony."

7. The prosecution invites me to likewise take the view that the Magistrate was doing no more in the present case than saying that the recent complaint went to consistency. The complication is that in the case before Stock JA, there was evidence of distress in the course of the complaint. There is no need to resolve what the Magistrate really meant when he said what he did about recent complaint. The appeal can be disposed of on other points. No doubt the Magistrate will appreciate that he should take particular care over his choice of words in future so as to avoid misunderstanding.

8. Ground 2 reads as follows:

"The learned Magistrate gave undue weight to PW1's opinion that she had been touched by the appellant's right hand and appeared to have believed PW1 because she was "firmly and unshakeably convinced" of this fact (p.21M), in circumstances, where, inter alia;

(i) PW1 had acknowledged that she had initially thought that she had been touched by the appellant's clothing (p.22 C-D; P.15 I-J);

(ii) PW1 never saw the appellant's hand on her body (p.15 P-R);

(iii) PW1 made no mention in her first statement to the police of the appellant's hand rubbing her buttock (p.17 H-J)."

9. In my view, this ground is without substance. I do not find that the Magistrate gave undue weight to that opinion of PW1's.

10. Ground 3 reads as follows:

"The learned Magistrate's reason for rejecting the appellant's evidence, namely that he had failed to "acknowledge the intrusion, let alone apologise" (p.23N) was unfair, unrealistic, and an insufficient reason for rejecting his evidence."

11. In my view, the complaint made in this ground is well-founded. The prosecution says that the lack of apology was part of the inherent probability of the case. I do not regard it safe to proceed on the assumption that it is inherently probable that an innocent person would apologise in such circumstances. The Magistrate wrongly placed weight on the lack of apology. Moreover it is clear that he placed considerable weight on it. The relevant passage in the Magistrate's Statement of Findings reads:

"I considered the evidence of the appellant. I found that it lacked credibility. On two occasions the appellant said that he or his clothing had come into contact with PW1. However, on neither occasion had he seen fit to acknowledge the intrusion, let alone apologise. This I found unworthy of belief particularly in the light of the evidence from the appellant's character witnesses that the appellant was a caring and considerate person."

That lack of apology was the only reason which the Magistrate gave for his view that the appellant's evidence lacks credibility.

12. Ground 4 is simply that

"In all the circumstances, the verdict was unsafe and unsatisfactory"

13. In my judgment, the well-founded complaints made under Grounds 1 and 3 make out the complaint under Ground 4 that this conviction is unsafe and unsatisfactory.

14. The conviction is quashed and the fine set aside.