HKSAR v. SHEK CHI CHIU

HCMA1178/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1178 OF 1997

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J U D G M E N T

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1. The Appellant was convicted by a Magistrate of the offence of indecent assault on a female on 1st December 1997 and was sentenced to 28 days' imprisonment. He now appeals against that conviction.

2. The main ground of appeal relied upon by his Counsel, Mr Alex Ng, is that the learned trial Magistrate erred in law in failing to give himself a full corroboration warning before convicting on the uncorroborated evidence of the Complainant.

3. The evidence which made up the prosecution's case was that PW1 was riding in an MTR train which was going between Prince Edward Station and Mongkok Station with her husband and she was standing next to her husband and the two of them were talking whilst inside the carriage. At some stage, she felt something against her backside which made her feel uncomfortable and she turned around to see what it was which had drawn her attention to the incident. After she turned around, she saw the Appellant was standing behind her and as soon as she turned around, he had said "I am sorry". Her evidence was that the object, whatever it was, which was touching her backside had been there for about 30 seconds and was motionless. Her husband's evidence was that he did not hear anybody say "I am sorry" to his wife but when he saw her move from one side of his position to the other side, he noticed that she looked a bit unusual. He, at that point of time, looked behind her and saw that there was a man standing close to her but he did not pay sufficient attention to that man to be able to identify who that man was. His attention was only drawn to the Appellant after all three of them had disembarked from the carriage and his wife had, for the first time, told him that there had been an incident involving a man.

4. Quite clearly PW2's evidence could not be corroborative of PW1's evidence. The learned Magistrate, when convicting the Appellant in open court gave some reasons for his verdict, but nowhere in those oral reasons did he mention corroboration, or the danger of acting on the uncorroborated evidence of PW1. Twenty-three days later, when he wrote up his Statement of Findings, this was the only thing that he said about corroboration or lack of it. He said (in para. 9) :

" PW2 saw that his wife's appearance or demeanor was unusual and he turned around and saw a male. He then asked his wife what the matter was, but his wife did not reply. He did not hear anyone say 'I am sorry' and his wife walked to his side and, at that point of time, he saw that there was a person or persons standing behind his wife."

What is said in relation to corroboration, or lack of it, is in para. 15 of his Statement of Findings where he said :

" I have considered the prosecution's evidence and the submission made by the Defence, I have to consider that the prosecution has to prove that, beyond the reasonable doubt, the Appellant assaulted PW1. I remind myself that the prosecution relies on the evidence of PW1. Apart from PW2 seeing PW1 reacting unusually, there is no corroboration to support."

and he does not say to support what.

5. Apart from what I have repeated above, there is nowhere else in the Statement of Findings any mention of corroboration, or lack of corroboration, or the danger of acting on the uncorroborated evidence of PW1. What the learned Magistrate said in para. 15 is unfortunately rather loose language, because it is capable, in my judgment, of two interpretations. Firstly, that he was regarding PW2 as corroborative of PW1 and he said that apart from PW2, there is no other corroboration. The second possible interpretation is that he was not regarding PW2's evidence as corroboration and he simply said that there was no corroboration of PW1. In either event, unfortunately, he never mentioned the danger of acting on the uncorroborated evidence of PW1, nor did he say that he was aware of that danger.

6. That such a warning is required in a sex case is trite law. Mr Ng relies on the House of Lords's case of Reg. v. Spencer [1987] AC 128 where the House of Lords said at 138 :

" The 'full warning' ... is the warning as to the danger of convicting upon uncorroborated evidence, which by rule of practice has to be given if the prosecution is relying upon the evidence of an accomplice, or the victim of a sexual offence or the sworn evidence of a child."

7. In Chiu Nang Hong v. Public Prosecutor [1964] 1 WLR 1279, the Privy Council held that even where a judge is sitting alone, it has been made clear that the judge had borne the danger in mind before accepting the uncorroborated evidence of the complainant before the conviction can be upheld. In that particular case, the judge was a very experienced judge and had sat alone in a rape trial, and his attention was drawn to the desirability of corroboration by defence Counsel in his closing speech referring repeatedly to the need for or the desirability for corroboration. So the judge was clearly aware of the desirability of corroboration in that case. What the Privy Council said (at p. 1285) was :

" Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant's evidence, nevertheless, they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships' view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose : what is necessary is that the judge's mind upon the matter should be clearly revealed."

In the instant case when Defence Counsel addressed the Magistrate in his final address, Defence Counsel did not refer to corroboration or the danger of acting on the uncorroborated evidence of PW1.

8. The fact that the learned Magistrate did not make it clear that he had the danger in mind is the subject matter in Ground 2 of Mr Ng's grounds of appeal. This failure, on the part of the Magistrate, to warn himself of this danger and making it clear that he was warning himself of this danger, is sufficient to dispose of the appeal in the Appellant's favour. But in addition, there are other matters on the evidence which had given me some cause for concern. The fact of the matter is even though PW1 was clearly disturbed by this object behind her which caused her to turn around, she was never certain what this object was. She admitted that it was possible that it could have been an inanimate object, like a person's handbag or another inanimate object. She was of the view that it could have been a person's penis only because it was roundish in shape, and because of that she agreed with Defence Counsel that it could have been a person's finger. In any case, she was never certain what the object was which was touching her backside area. That has caused Mr Ng to advance his fourth ground of appeal which is that the learned Magistrate was in error in finding in his Statement of Findings that it was the Appellant's finger which was touching the backside area of PW1.

9. Ground 5 of the appeal is that the learned Magistrate erred in finding that because the object which came into contact with PW1 had no movement, therefore the Magistrate was discarding the possibility of the contact being accidental. I must confess that I find that rather difficult to agree with because if the object had been an inanimate object, then the contact of the object with PW1's person must have been accidental.

10. The last ground of appeal is that the learned Magistrate erred in finding that it was the Appellant who was the person who had indecently assaulted the Complainant just because when PW1 turned around, she saw the Appellant standing fairly close to her.

11. Mr Ng makes the point that there was no evidence that before the Complainant turned around, that there had been no movements of passengers in the compartment, so it was quite possible that it was another person who had been standing behind PW1 and had moved away, and by the time PW1 turned around, it was the Appellant who happened to be standing behind her. In any case, there was no clear evidence that the Appellant was the person who had been standing throughout the time behind the Complainant.

12. I mention these other matters because they, as I mentioned earlier, have given me cause for concern as regards the reliability of this conviction. In my judgment, Ground 1 and Ground 2 are by themselves sufficient to dispose of this appeal. It is to be emphasised that professional judges and magistrates, even when sitting by themselves, have to comply with the requirement imposed upon them by law, to state not only is there the danger of acting on the uncorroborated evidence of a victim in a sex case, but that they are aware of such a danger before they accept the uncorroborated evidence of the victim to convict a defendant. The appeal is allowed and the sentence is quashed. The application for costs is refused.