HKSAR v. LUITEL SHOM PRASAD

HCMA 766/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 766 OF 2001

(ON APPEAL FROM SPCC 466/2001)

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J U D G M E N T

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1. This Appellant was convicted, after trial, of one count of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 and was sentenced to 14 days' imprisonment. He now appeals against conviction.

2. The facts as found by the Magistrate were that police who were on duty at the Tsim Sha Tsui MTR station saw the Appellant waiting there. Between 19:25 and 19:35 he was observed walking up and down the station. Several trains arrived but he did not board them, although there was nothing obvious to prevent him from doing so. At 19:35 the Appellant boarded a train which was not crowded and where the passengers were separated by about 6 inches from one another, according to the officers. The victim was standing next to the glass partition of the train facing towards the inside of the compartment. The Appellant stretched his hand to grab hold of the rail at her chest level. His arm was close to her breast, so she turned, faced the glass partition and used her right shoulder to ward off his arm. The Appellant was standing behind her. Shortly afterward she felt an object on her buttock. She described it as "hard, warm and vibrating". The sensation lasted for about 2 seconds. She turned and found the Appellant immediately behind her. She said, "Do you mind?" in English to him intending to ask him to stop and to ask him what was wrong with him. The train stopped at the station and, the victim and the Appellant alighted with the police officers. The victim told the police officers that she had been indecently assaulted.

3. A police officer (PW2 WPC5569 Lam Lai Kuen) had been standing behind the Appellant and noticed that he was in front of the victim. She observed the Appellant trying to press against the female, who was trying to avoid him. Eventually, the female removed herself in order to avoid him. When the train had nearly arrived at Jordan station, she saw the victim turn around and speak to the Appellant and she observed from her facial expression the victim appeared to be unhappy. At Jordan station PW2 revealed her identity and invited both the victim and the Appellant to get off the train. The victim told her that she had been indecently assaulted.

4. A second police officer (PW3 PC492101) was also on the train. He saw the events described by the victim and his colleague, although from a slightly different view point. He saw the Appellant walk forward and press against the victim's buttock and saw the victim turn her head and speak in English to the Appellant. He said that during the journey between Tsim Sha Tsui and Jordan, he saw the Appellant press against the victim twice with his lower body.

5. The Appellant gave evidence in his own defence. He said he had an appointment in Yaumatei at 7:45 p.m., so he travelled from the University to Tsim Sha Tsui, intending to travel to Yaumatei by MTR. As he was a stranger in Hong Kong, it was the first time that he had travelled alone on the MTR. He bought a Octopus card and alleged that while he was waiting to buy it, he had had an argument with PW3.

6. In the train, he felt unwell and dizzy because the train was crowded and he had an empty stomach. He had used his right hand to lean against the ceiling, but lost his balance and used his left hand to grab the glass partition. His vision blurred and became black and suddenly he was unconscious. He had no recollection of what had happened after that because his vision was blurred. He recovered a little when the train arrived at Jordan and slowly regained consciousness. He denied he had indecently assaulted the victim because it was against his policy and reason. He knew such a thing was bad. However, he could not be certain whether or not he had accidentally come into contact with PW1 during the time he was unconscious. He told the court that he was suffering from Menier's Syndrome and he had problems when travelling in crowded conditions. He called as a witness, Dr Harris, from the Hong Kong University Medical Centre (DW3).

7. Dr Harris, who carried out a full medical examination, said the Appellant was normal and it was possible that the episode of dizziness could have been activated by travel sickness, together with elements of panic and anxiety resulting from the crowded situation. He termed this "claustrophobia" and said the Appellant suffered from a quite mild degree of it. He said the attack of dizziness and the blacking out of vision could be related to low blood sugar if the Appellant had not eaten for some time. He ruled out Menier's Syndrome, which is a very distinctive disease relating to the balance of the inner ear. Dr Harris also said a person suffering from claustraphobia is unlikely to have an erect penis, because even if he was erect before the attack of travel sickness, the erection would likely subside.

8. The Appellant also called evidence of character, given by Dr Andrew Burns from the University of Hong Kong, where the Appellant had been enrolled on the LLM course since September 2000.

9. This appeal does not really turn on the question of whether or not the offence was committed, but on an alleged material irregularity that occurred at trial. The details of the alleged irregularity are as follows.

10. The prosecutor was cross-examining the Appellant and questioned him about when he entered the MTR system. He said he had entered the MTR station at Tsim Sha Tsui at about 7:30 p.m., although that was an estimated time. The prosecutor then asked the question (B71 N - P):

"Q: Thank you. And during that time, the Tsim Sha Tsui MTR platform duty officer has taken your Octopus travel card from you?

A: Yes, they have taken it.

Q: Thank you. And they have taken your card so as to read the details of your Octopus card."

11. At this point, Mr Bruce, who was appearing for the Appellant, objected on the ground that a serious issue of non-disclosure had arisen. The prosecution was under a positive duty to disclose its case and, if there was a read-out report relating to the Octopus card, it should have been disclosed in advance of trial. Mr Bruce submitted that the non-disclosure was a material irregularity and because the prosecution had never disclosed the Octopus Report Card (Report) the Appellant could not have a fair trial. He had been prejudiced in his defence and a retrial was insufficient to repair any damage that had been done to his case. On that basis, Mr Bruce made an application for a permanent stay of proceedings.

12. The prosecution maintained that despite the non-disclosure and despite counsel being unable to take further instruction from the Appellant who was giving evidence, it was not material evidence and that the trial was fair. The prosecutor said they had not included the report as prosecution evidence because they were not relying on it and thus there was no prejudice to the defence.

13. The Magistrate gave a ruling, (B85 D to H):

"In respect of the first objection by Mr Bruce, I disallow the prosecution to ask the question and, in respect of the application by the defence to permanently stay the proceeding, I refuse the application. However, suffice to say that, after the witness - after the defendant had given evidence, Mr Bruce can certainly take instructions in relation to this information."

At that stage, the Report was provided to defence counsel who took instructions from his client. The matter was not canvassed further, either by the prosecutor in the continuing cross-examination, or by defence counsel in re-examination. The Magistrate did not see and was not told the content of the Report.

14. The perfected grounds of appeal are as follows:

First, the Magistrate erred in law in allowing the prosecution to breach the rule that the prosecution may not split its case, by introducing into evidence for the first time during the accused's cross-examination, an Octopus Card Report which was:

(a) of positive probative value;

(b) assisted materially the prosecution, but not the defence case;

(c) should, because of (a) and (b), have formed part of the prosecution case if the prosecution proposed to rely on it; and

(d) was never disclosed to the Defence prior to its introduction during the cross-examination of the accused.

15. Ground 2 was an alternative ground, that the course adopted by the Magistrate as in Ground 1 amounted to a material irregularity in the course of the trial.

16. Ground 3 was that the Magistrate erred in principle in refusing the application for a permanent stay of the proceedings against the Appellant. The Magistrate was said to have failed to consider the prejudicial effect of the prosecution's material non-disclosure of a document which was being relied on in the course of proceedings, and as a result of which the Appellant had not been afforded a fair trial. The prejudice could not be remedied by merely disallowing the evidence to be admitted.

17. Ground 4 was that the Magistrate erred in principle in failing to give reasons for her refusal of the application for stay. The Magistrate was said to be under a duty to give adequate reasons for any decision she has made and this requirement applies equally to both civil and criminal cases.

18. Ground 5 expressed as an alternative, that since the prejudice caused to the defence case by the action of the prosecution was in the circumstances irreparable, the Magistrate should have declared the proceedings a mistrial and ordered the accused to be retried before another Magistrate. The failure to do so amounted to an error of law and/or a material irregularity.

19. Ground 6 was that in the circumstances the conviction was against the weight of evidence and was unsafe and unsatisfactory.

20. The significance of the Octopus Report Card was that it could show when the Appellant entered the MTR system and what his travel movements were thereafter. If the document showed that the Appellant had entered the system at a place and at a time other than that stated in his evidence it could have contradicted his evidence and damaged his credibility. It was a document that might have been produced to some effect by the prosecutor to establish when the Appellant entered the MTR system and how long he had been in the system, but, regardless of the possible import of what the Report showed, it should have been disclosed to the defence prior to trial.

21. The Appellant's defence was based in part on his being a novice traveller on the MTR system in Hong Kong. He said he had not used the MTR alone prior to this occasion and was uncertain as to what he was doing. It was possible that if he had known what information was shown by the Report that he would either not have given evidence, or that his evidence on this point might have been materially different.

22. Prior to the appeal, leave was given for an affidavit to be filed on behalf of the Appellant. This was an affidavit by Mr Bruce SC, who had been defence counsel. It set out in great detail how he conducted the case and why he had conducted the case in the manner he had. He gave explanations as to how his knowledge of the evidence had affected his cross-examination of the victim and police witnesses and how it might have affected his advice as to whether or not the Appellant should give evidence. At paragraph 17 of his affidavit, Mr Bruce stated as follows:

"The report had never been shown to me before the first mention of it in cross-examination of the Appellant. As far as I am aware it had never been produced to any other member of the defence. It was only very reluctantly that the prosecutor produced the document for my inspection after I had objected. The effect of the document was that the Appellant had been in the MTR system for considerably longer than even the police had deposed to. If accepted as accurate, it showed that the Appellant had entered not at Tsim Sha Tsui as he had testified but at Jordan. Taken at its highest and if used to the fullest extent by a prosecutor it was inconsistent with the testimony of the Appellant that he was not knowledgeable of the geography of Hong Kong (it being harder to find Jordan station and more unusual to enter at that station). It left a raft of unanswered questions as to why the Appellant was in the MTR system for as long as he was. However those questions were answered, and I accept there were many possible inferences adverse to the Appellant available, they were inconsistent with the testimony of the Appellant as to his entry into the MTR system and the time of that entry. I cannot say that the prosecutor in question would have done this. However she did commence cross-examination on the document and I assume that she was not cross-examining for its own sake."

23. Clearly the Report should have been disclosed to the defence prior to the trial. That it was not so disclosed is a material irregularity. The Magistrate dealt with the matter by refusing to allow questioning on the document. The document was not produced and Mr Bruce SC was given permission to take instructions from his client, although he was giving evidence.

24. The rules governing prosecution disclosure are contained in Attorney General's Guidelines 1981 [(1982) 74 Cr. App. R. 302] - and are set out and discussed in various judgments thereafter (Ward 1993) 96 Cr. App. R. 1). Such rules recognise that a court has a better chance of reaching an accurate decision if a defendant has a proper opportunity to answer the charge he faces. The rules also acknowledge the obvious - procedures which give defendants an informed opportunity to answer the charges are fairer than those which do not.

25. In R v Keane [1994] 1 WLR the Court of Appeal endorsed the approach taken in Melvin (unreported, December 20, 1993) where Jowitt J stated:

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

26. Disclosable material would be such as would either assist the defendant to test fully the prosecution case, or to adduce evidence in rebuttal.

27. In R v Phillipson [1990] 91 Cr. App. R. 226 the prosecution failed to disclose certain letters and photographs exchanged by the Defendant and the father of her child and used them in cross-examination to rebut her defence that she had been carrying drugs under duress exerted by him. The letters revealed a more affectionate relationship than the Defendant admitted in evidence. Her appeal was allowed because the judge had allowed the material to be used.

28. At page 233 Ralph Gibson LJ commented:

"Where the material in question, on the facts known to the prosecution, could only be damaging to the defence and of assistance to the prosecution, the obligation to disclose, if any, must, we think, be sought primarily in the principles governing the obligation of the prosecution to include within its case all probative material upon which it intends to rely, having regard to the facts and circumstances known to the prosecution when the case is presented."

29. Those comments apply equally to the Octopus Card report available in this case.

30. At page 235 Ralph Gibson LJ commented further:

"The basic principle that the prosecution must include all probative material on which it intends to rely, and must tender it as part of the prosecution case, does not form part of our law because the law wishes to help liars to tell more convincing lies, but because an accused needs to know in advance the case which will be made against him if he is to have a proper opportunity of giving his answer to that case to the best of his ability. The accused is also entitled, when he decides whether or not to go into the box to give evidence, to know what the case is he has to meet. The intelligence and powers of memory and of literacy of accused people vary greatly. Some people may exaggerate and embroider and lie even when their basic case is true.

It is better in the interests of justice that an accused is not induced, by thinking that he is safe if he does so, to exaggerate, or to embroider, or to lie .... so to do might be to ambush the accused. Further we would add, where the evidence is of great force, the proper disclosing of it may cause the accused to plead guilty to the advantage both of the administration of justice and of the accused."

31. Those comments set out succinctly why the Octopus Card report should have been disclosed to the defence in advance of the trial. There is no doubt that the non-disclosure amounted to a material irregularity. Miss Wan for the Respondent did not seek to argue otherwise.

32. The major point on this appeal is whether that material irregularity was such that it can be said on the balance of probabilities the Appellant did not and could not have received a fair trial.

33. If the Report did serve to confirm that the Appellant had been in the MTR system for the time stated, it could have been produced as part of the prosecution case to help establish that the Appellant was not a bona fide traveller. If the defence had known of this evidence it is possible that the Appellant would have chosen not to give evidence, or that the content of his evidence, or the conduct of his defence, would have differed in some way.

34. However, the evidence that the Appellant had been in the system for a longer period, even if it had been led as part of the prosecution case, was unlikely to have strengthened, appreciably, the prosecution case. On the account given by the Appellant, the fact he spent an additional hour in the MTR system could have been explained by his being a newcomer to Hong Kong and unfamiliar with the workings of the MTR. There was no evidence from the officers that they had seen the Appellant at any place or for a period other than that they described when giving evidence.

35. What the Magistrate was concerned with was the period immediately before Appellant's entering the train and what happened once he boarded. Without other evidence to put the Report in context the information it held was of little value, although it may have had some bearing on the credibility of the Appellant.

36. The material in the Report was not directly relevant to the issues the Magistrate had to decide. The Magistrate had to decide whether the victim had seen and felt what she said she had seen and felt. She had to decide whether or not the police officers were correct in their assessment of what they had seen and heard on the train and during the period they were on the platform. The evidence of the police officers covered the Appellant's behaviour for the 10 minutes prior to his entering the train compartment. Whether or not the Appellant had been in the station for a lot longer than 10 minutes was not of real evidential value in terms of the actual facts of the assault.

37. However that is all a matter of speculation and assumes the Report being introduced as evidence or through cross-examination. At trial the content of the Report was neither examined, nor made known to the Magistrate. All the Magistrate heard was that the card had been tested. The Magistrate refused to permit further cross-examination on the matter.

38. A stay of proceedings for delay or any other reason can be imposed only in exceptional circumstances; even where delay was unjustifiable, the imposition of a permanent stay was to be the exception rather than the rule. Further, no stay was to be imposed unless a defendant established on the balance of probabilities that, owing to the delay or other reason, such as a material irregularity, he would suffer serious prejudice to the extent that no fair trial could be held and that the continuation of the prosecution amounted to a misuse of the process of the court. Here the question was not one of delay, but whether the material irregularity was such that continuation of the prosecution before the Magistrate meant no fair trial could be held and to continue the trial amounted to a misuse of the process of the court. [Attorney General's Reference (No 1 of 1990) [1992] 1 QB 630]

39. The Appellant was never called on to explain why the Report showed he had been in the system longer than he claimed. The Magistrate afforded an adjournment once the document had been served on the defence, for counsel to take instructions from the Appellant. No mention was made of the matter in re-examination and there was no application to recall any of the prosecution witnesses.

40. No cogent explanation has been given as to why or how, on the balance of probabilities, this material irregularity militated against the Appellant's having had a fair trial. I accept it is possible that if the Report had been disclosed the Appellant may not have elected to give evidence, or may not have given it in the manner that he did. However it is speculative to decide on the basis of the matters of strategy and tactics elaborated on by Mr Bruce SC in his affidavit that he was prejudiced in his defence - particularly given the nature of the evidence against him.

41. If the Appellant had elected to remain silent there would have been no evidence from the Appellant to undermine, contradict or explain the contact described by the victim and observed by the police officers, as the other defence witnesses could not help on that crucial matter. If the Magistrate accepted the victim and police officers were truthful witnesses, there would have been a certain inevitability about his being convicted.

42. Having considered all the matters advanced for the Appellant, I am satisfied that although there was a material irregularity as the report should have been disclosed prior to the trial, that the Magistrate handled the matter fairly, so that the trial proceeded without any reference to the content of the Report.

43. The Magistrate having considered all the evidence found the Appellant was guilty of the offence. Having considered the evidence and the transcript in relation to the facts of the incident, I am satisfied the Magistrate was correct in coming to that decision. There was ample evidence on which she could find the Appellant guilty of this offence. She analysed the evidence carefully and I am satisfied the elements of the offence have been established.

44. For these reasons, I find the appeal must fail and the Appellant's appeal against conviction is dismissed.