HKSAR v. CHENG TIN WAI

HCMA962/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 962 OF 1998

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J U D G M E N T

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1. After his trial in the South Kowloon Magistracy, the Appellant was convicted of two charges of indecent assault, contrary to s.122(1) of the Crimes Ordinance. He was fined $4,000 on each charge and was ordered to pay cost in the sum of $3,000.

2. The alleged incident took place on 19 March 1998 at about 1735 hours on board an MTR train travelling in the Tsuen Wan direction. The condition was crowded. It was the prosecution's case that two female passengers were indecently assaulted by the Appellant as they travelled from the MTR Station at Admiralty to Jordan.

3. PW2, the victim of the 1st charge, gave evidence that as the train was travelling between Admiralty and Tsim Sha Tsui, she felt that she had been touched on her buttocks by the private part of the Appellant on three separate occasions. She had the impression that the Appellant had an erection.

4. The victim of the 2nd charge who gave evident as PW3 told the Court that while the train was travelling between Tsim Sha Tsui and Jordan, she felt that a male person came into contact with her with his reproductive organ. She could feel that it was in a state of erection and it was pressing against her buttocks. She turned around and hit the male with her handbag. That person was the Appellant.

5. The incidents were witnessed by two police constables in plainclothes one of whom gave evidence as PW4.

6. The Appellant elected to give evidence at his trial. He denied both charges and said that there might have been accidental bodily contacts as the train was very crowded at the time. He has no previous criminal record and he called two witnesses to vouch for his good character.

7. The trial lasted for five days and the witnesses were subjected to detailed cross-examination by Counsel in the Court below. After hearing the evidence and submissions, the learned Magistrate adjourned for a week to consider her verdict. On 21 July she delivered her oral reasons at the end of which she found both charges proved against the Appellant. Her Statement of Findings was dated on 28 August 1998.

8. In both her oral reasons and her Statement of Findings, the learned Magistrate stated that she accepted the evidence of the two victims and that of the police officer who observed the incident. She rejected the evidence of the Appellant and ruled out any possibility of accidental contact. She was satified that the Appellant's actions were deliberate and they amounted to indecent assaults.

9. It would be useful to note here that nowhere in the Magistrate's oral reasons and in her Statement of Findings was there any reference to the issue of corroboration. No attempts at all were made to identify evidence capable of corroborating the testimony of the two victims. If the lack of reference was to be taken as there being no such evidence then the learned Magistrate did not warn herself of the danger of acting on the uncorroborated evidence of the victims.

10. This lack of reference of corroboration is the main ground of appeal advanced by Mr Macrae for the Appellant at this hearing. He submitted that it was incumbent on the learned Magistrate to remind herself and to be seen to remind herself of the need for corroboration in cases of this nature.

11. In practice it is not unusual for a trial judge, at the end of the evidence in a trial involving sexual complaints, to invite Counsel to address him on the issue of corroboration and to identify the evidence, if any, which can amount to corroboration. This course was however not adopted by the leaned Magistrate in the Court below. It appears, from the transcript of proceedings, that the issue of corroboration has somehow escaped her attention completely.

12. There is an abundance of authorities in Hong Kong, the effect of which is that the Appellate Courts would almost certainly intervene in the light of such fundamental errors. Fok Chak Chun and anr. v. R Criminal Appeal 284 of 1979, a case which involves an appeal against the conviction of a charge of perjury contrary to s.31 of the Crimes Ordinance, is a case in point. Section 43 in that Ordinance provides that a person should not be convicted of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be falsed. In quashing the conviction, Roberts C.J. made the following observation :

" The need for corroboration does not, according to the record, appear to have been mentioned at any stage during the trial, neither by counsel for the Crown nor by counsel for the appellants; nor is there any mention of it in the judge's reasons for verdict.

We, therefore, feel obliged to come to the conclusion that the need for corroboration was not present in the judge's mind at the time when he reached his verdict. We would not like it to be thought that we are suggesting that a District Judge, when acting both as judge and jury, is obliged to direct himself in the same way in which a trial judge, faced with a jury, must direct a jury.

It should normally be sufficient if the trial judge indicates that he realizes that the law or practice, as the case may be, requires corroboration and that he has directed his mind to this issue when reaching his verdict."

13. In the recent Court of Appeal decision of HKSAR v. Lee Kam-wing, CACC 353 of 1998, the need for magistrates and judges sitting alone to address themselves to the issue of corroboration in sexual cases was again discussed. The position remains that they are required to properly direct themselves on the issues of corroboration. It was observed by Chan, CJHC that the Appellate Courts, in deciding whether a judge or magistrate had properly directed himself, should not be confined only to the reason for verdict or the Statement of Findings. The Court should instead, look at all the circumstances of the trial in order to decide whether in the light of what was recorded on the transcript, the judge or magistrate had sufficiently alerted himself on the issue.

14. In the present case, there were two separate offences of indecent assault before the learned Magistrate and they could not in law corroborate each other. The Appellant denied the allegations against him and contended as it was a crowded train, any bodily contact would have been accidental. There were discrepancies between the prosecution witnesses in their description of the clothing worn by the Appellant. The learned Magistrate dealt with the inconsistencies at great length in her Statement of Findings at the end of which she also stated her reasons for disbelieving the Appellant. There might well have been corroborative evidence coming from the testimony of the police officer, but the fact remains she has fallen into the error of not addressing herself to the issue of corroboration at all. This failure, in my view, had rendered the conviction unsafe and unsatisfactory. On this ground alone, I am of the view that the conviction cannot stand.

15. This appeal is allowed and the fines and costs orders are set aside.