LAM CHIU-TAK v. THE QUEEN

Criminal law - indecent assault - recent complaint relevant only to credibility and is not corroboration of facts alleged - independent evidence of victim's distress in the absence of special circumstances of little corroborative weight - leave should be applied for and granted before cross-examination on character particularly where defendant unrepresented - extent of Court's duty to assist unrepresented defendant Held: Conviction unsafe and unsatisfactory; appeal allowed.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 34 OF 1985

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BETWEEN

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JUDGMENT

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1. On 17th December 1984 the appellant was convicted in the Magistrate's Court of indecently assaulting a woman contrary to Section 122(1) of the Crimes Ordinance, Cap.200 and sentenced to imprisonment for 1 month. From that conviction the appellant now appeals. I record that he has already served the sentence imposed and been released.

2. The undisputed facts were that the complainant was a night club manageress who returned to her home in the Man Kee Building, 86 Waterloo Road, Kowloon at about 4 a.m. on 13th November 1984. The complainant had earlier been drinking and because of her condition was accompanied in a taxi to her home by a woman friend. The complainant candidly admitted her drunken condition and in evidence-in-chief stated that on arrival at 86 Waterloo Road:

"I felt dizzy and staggering as the iron gate was closed and was drunk and I could not manage to open it. Defendant was caretaker he opened the gate for me."

3. The complainant further stated that she left her woman friend in the taxi and that, after the defendant opened the gate, she went to the lift intending to proceed up to her home. The defendant she stated followed her to the lift and after she got into the lift she could not remember the correct floor but pressed the button for Floor 18. At that stage the defendant told her she did not live on the 18th floor, grabbed her; kissed her neck; and by pulling caused the clasps of her upper clothes to open whereupon he touched her breast. The complainant further alleged that after her protests the defendant slapped her on the backside and left the lift after saying he was sorry and the complainant having told him not to do what he had done again.

4. The complainant continued that after thinking about the matter later on the same day at about 9 a.m. she telephoned the landlady who owned the premises in order to make a complaint to the caretaker's office and was crying at the time. When it was suggested to the complainant by the landlady that because of her condition she could net be mistaken she replied that she could not mistaken as the defendant, when he grabbed her, kissed her twice.

5. The prosecution also called the landlady who confirmed that she had been telephoned by the complainant who stated that she had been indecently assaulted by a caretaker when she returned home drunk. When the landlady during the telephone conversation doubted the complainant's recollection in view of the latter's condition, the complainant went on to say that she was "tipsy but not drunk" and that the caretaker had also tried to lift up her dress. The landlady then telephoned the defendant who denied the indecent assault.

6. The defendant, who was unrepresented, elected to give evidence when he denied the indecent assault. He then went on to mention a number of matters which he had not put to the complainant and on which she had been silent. He stated that the other woman in the taxi had asked him to escort the complainant up to her flat; that because of her condition he was obliged to hold her by both shoulders; that she opened the door to her home; that he then returned to the caretaker's office at the ground floor. The defendant then introduced in evidence a second incident relating to his allegation that later she came down to his office waving a $100 note and asked for more money as she wanted to go out to make a telephone call; that she took $10 off him and left in a taxi; that she returned later; told him that she had made the telephone call and returned to her home.

7. Later in the day after the landlady had telephoned the defendant at about 2 p.m., he stated that the complainant came down to the caretaker's office and told him that if he did not admit the indecent assault she would chop him and that she knew a lot of high ranking police and lawyers. This caused the defendant to telephone the police after which he alleged the complainant asked him to withdraw the report but he refused.

8. The unexpected new matter raised by the defendant and not put by him to the complainant is not unusual where a defendant is unrepresented. However, the position in this trial became more complicated when the learned Magistrate asked the defendant why he had not put those matters to the complainant when he had the opportunity to cross-examine her. He replied that he had lived in Hong Kong for 25 years but this was his first time in Court and the first time he had been in trouble with the Police. The prosecutor immediately, without leave, then put to the defendant that he had been convicted in 1976 in Western Magistracy. The defendant replied that he had appeared but could not remember the date and recollected that he had paid compensation. The prosecution later produced the record of a conviction which showed that on 1st April 1976 the defendant had been convicted for obtaining a pecuniary advantage by deception when he was fined $100 and ordered to pay $50 compensation. The record was silent whether the defendant had pleaded guilty on that occasion but the conviction was imposed in No.1 Court so the inference might be drawn that a plea of guilty was probably entered and no trial held.

9. The learned Magistrate carefully reminded himself that the making of the complaint was only corroborative of the credibility of the complainant and was not corroboration of the indecent acts alleged. The magistrate went on to ware himself of the "rules of practice in respect of corroboration." I accept that he therefore warned himself of the danger of convicting on the uncorroborated evidence of the complainant. What is less clear is whether he convicted on that evidence which he was, of course, entitled to do after the warning, if he believed her evidence, for he concluded that he "was totally satisfied to act on the evidence of P.W.1 together with my other findings." The complainant was P.W.1. The other findings included a finding that the complaint to the landlady, which he held was made at the earliest opportunity, established that she was emotionally upset at the time.

10. The appellant's appeal, on the ground that the conviction was unsafe and unsatisfactory, was based on the claim that excessive weight had been given to the evidence of the landlady who did not observe the emotional state of the complainant but only spoke to her over the telephone several hours after the incident; that the learned magistrate did not warn himself that the distress of the complainant may have been feigned; that insufficient weight was given to the fact that it was the defendant and not the complainant who had reported the matter to the Police; that the learned Magistrate erred in law in admitting the police record; that the learned Magistrate failed to give sufficient assistance to the unrepresented defendant during the tiral; that the learned magistrate erred in failing to recall P.W.1 for further questioning after the defendant gave evidence on the matters not put to her when she gave evidence; that while the evidence of the complaint to the landlady was sufficiently recent to be admissible the lapse of time was a factor which reduced the weight to be given to the complaint in assessing credibility; that insufficient weight was given to the inconsistencies between the evidence of the complainant and the landlady. Dealing with the last factual issue first I am satisfied that there were no material discrepancies between the evidence of those two ladies.

11. Turning to the law I accept that the learned Magistrate properly limited his consideration of the telephoned complaint to the issue of credibility. I was referred to a number of authorities on the extent to which evidence of emotional distress goes further and may provide corroboration of the complainant's evidence. Any prior tendency to give excessive weight to this species of corroboration was corrected by the Court of Appeal in Wilson (1973) 58 Cr. App. R. 304, where it was held that such distress should not be over-emphasised and except in special circumstances, it should be given little weight. Here the landlady who was the only independent witness who gave evidence on distress, was also in the weaker position that she did not see the complainant but only spoke to her over the telephone. I am satisfied that the evidence of distress in this case was at most of minimal corroborative value.

12. I am also satisfied that the police record should not have been put to the defendant in the manner adopted by the prosecutor. The law is well settled that, prima facie answers given by a defendant in cross-examination are not part of the nature or conduct of the defence to put character in issue. The defendant's statement that he had not been in Court before was in reply to a question from the learned Magistrate as to why he had not further cross-examined the complainant. In such circumstances, particularly where the defendant is unrepresented, the prosecutor should have first asked for leave to put questions on character or previous convictions. No leave was sought or granted. The subsequent questions by the learned Magistrate to the defendant as to why he had sworn he was of good reputation and the further reference to that portion of the evidence in the Statement of Findings, indicates how material that disclosure was to the learned Magistrate's adverse finding against the defendant on credibility.

13. The extent to which a magistrate should assist an unrepresented defendant is alaways difficult, invariably delicate and sometimes even dangerous. The robust view that accords with a widespread Hong Kong practice is to be found in R. v. Szeto Ming (1978) HKLR 61. However, the statements in that judgment may usefully be considered in the light of the caution administered by Cons J., as he then was, in Yuen Yu-kin v. R. Cr.App.R. 807/79 where he observed:

"He is bound to ensure that the unrepresented defendant has a fair trial. Subject to that it is a wise magistrate who interferes as little as possible with the course of proceedings before him. His good intentions are as likely to hinder as to help the defendant in his defence."

In the instant case I am satisfied that it was not necessary for the learned Magistrate to have assisted the defendant by putting further questions to the complainant. Nor should he have taken the initiative in recalling the complainant for further cross-examination. However, I recognise that it would have been unobjectionable for him to have explained to the defendant the position that had arisen and to have enquired of him if he wished the complainant to be recalled. The magistrate may then have recalled the complainant if the defendant had so applied. But all these were matters entirely within the Magistrate's discretion and I make no criticism of him for not putting questions to the complainant or in not recalling her later for further cross-examination after the prosecution case had closed.

14. In considering whether the conviction was unsafe and unsatisfactory I am obliged to give consideration to the earlier points of law. When I review the evidence I must recognise too, the affect the condition of the complainant may have had on her testimony; and the fact that it was the defendant and not her who reported the incident to the police. I also recognise that the defendant's evidence that he had to hold the complainant by her shoulders to assist her to her home is consistent with her own evidence of her condition; that she was accompanied to the gate by a friend; that she was unable because of her drunkeness to open the gate and required the defendant's assistance; and that initially she could not remember the floor on which her home was situated.

15. The cumulative affect of all these matters leads me in the event to uphold Counsel for the appellant's submission that in this case the conviction is unsafe and unsatisfactory. The appeal is allowed and the conviction quashed.