THE QUEEN v. CHAN YUET SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1009 of 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal against conviction for an offence of indecent assault on a female contrary to section 122(1) of the Crimes Ordinance, Cap. 200. Upon conviction the appellant was bound over in the sum of $1,000 for a period of two years in his own recognizance and was ordered to pay the sum of $500 by way of costs. The appellant has abandoned his appeal against sentence.

2. The facts reveal that on the evening of the 31st May 1985 the complainant Mrs. Leung Miu Lan was a passenger sitting on the lower deck of a bus on the right hand side of the bus by the window with her husband who was seated next to her. She testified that during the journey to Kai Yip Estate she leant her head on the railing by the window when she felt something touching her breast under her armpit. She looked down and saw a hand which was immediately withdrawn. Upon turning round she saw the appellant sitting immediately behind her. The complainant told her husband that the appellant was taking advantage of her. This complaint does not of course amount to corroboration.

3. The bus eventually arrived at the terminal where the complainant, her husband and the appellant alighted. At this juncture there was an incident between the appellant and the complainant's husband, but it is not relevant to this appeal. The appellant was arrested shortly afterwards.

4. The appellant gave evidence that during the journey he had hung his umbrella on the rail by the window. The complainant was leaning against the umbrella which had slid forward so the appellant retrieved possession.

5. In his findings the magistrate said that the principal matter in dispute was whether the appellant had placed his hand under the complainant's right armpit and touched her breast or whether the appellant was reaching for his umbrella. The magistrate believed the evidence of the complainant and rejected that given by the appellant.

6. Mr. Gunston who appeared for the appellant submitted that the conviction should be quashed or the grounds that the magistrate made no reference in his findings to the danger of convicting unless there was corroboration. He also argued that the conviction was unsafe and unsatisfactory.

7. It is clear that in this case there was no evidence of corroboration and there is no reference by the magistrate in his findings to the effect that he warned himself of the dangers of convicting the appellant in the absence of corroboration. He was entitled to convict without corroboration, but only if he was satisfied of the appellant's guilt after warning himself of the dangers of doing so without corroboration. Mr. Gunston cited R. v. Chan Siu Wong (1970) HKLR at p. 61 where the Full Court held that it is the duty of a magistrate to make it clear in his findings that he has warned himself of the dangers of convicting upon the uncorroborated evidence of an accomplice and that where a magistrate has failed to record that he has correctly warned himself, a conviction in those circumstances will be quashed. On the other hand Mr. Jackson who appeared for the Crown submitted that it was not necessary for the magistrate to refer specifically to the dangers of convicting without corroboration for it would amount to stating the obvious. He cited in support R. v. Lau Wai Cheung CA 779/1982 where Macdougall J. held that it was not incumbent on the magistrate to state in his findings that he had applied the presumption under section 46 of the Dangerous Drugs Ordinance and that it had not been rebutted. However, in that case there was no evidence before the court to justify the rebuttal of the presumption. That case therefore does not assist the Crown.

8. The necessity for a warning to be given is because a sexual complaint can easily be made, but it is difficult to refute. It is abundantly clear that it is essential for a magistrate to make a specific reference in his findings to the fact that he has warned himself of the dangers of convicting without corroboration when he is trying a sexual offence. Although the magistrate in the instant case may have had the matter of corroboration in his mind he does not say so. Accordingly upon his failure to deal with this issue the conviction must be quashed. In addition the evidence adduced by the complainant was far from convincing with the result that the conviction was in any event unsafe and unsatisfactory.

9. Accordingly the appeal is allowed. The conviction will be quashed, and the sentence set aside. The costs, if paid by the appellant in the Court below, are to be remitted.