THE QUEEN v. FAN SIU MAN

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Headnote

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Criminal Law and Procedure - Magistrates - Section 11 Magistrates Ordinance Cap 227 - "evidence of an indecent character", meaning of.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1001 OF 1986

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BETWEEN

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REASONS FOR DECISION

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1. In dismissing this appeal against conviction, I said that I would later give reasons in writing which I now do.

2. The appellant came before a magistrate on the 5th September 1986 charged with indecent assault, contrary to s.122 of the Crimes Ordinance (Cap. 200).

3. The alleged victim was a girl aged 15 years and nine months. By virtue of her age, the question of consent did not arise (s.122(2), Cap. 200). The offence was alleged to have taken place on the 28th April 1986 at a staircase landing of the 13th floor of a building in Lee Garden Road, Wanchai. The girl was residing at the Po Leung Kuk, apparently because after being caught shoplifting she had been put under a police supervision scheme. The appellant, a male detective constable, aged 39 according to the charge sheet, visited her in his capacity as a supervising officer. Unlike a previous supervising officer, who had visited PW1 inside the Po Leung Kuk in the daytime in the presence of a social worker, the appellant visited her in the evenings, with no social worker present.

4. On the day in question, according to the girl's evidence, the appellant met her outside the Po Leung Kuk when she was on her way to meet a friend. They walked and talked. The appellant suggested going up to a building for a talk and the girl agreed. In the building, the appellant grabbed her round the waist and asked if she was a virgin and if she had been touched by anyone. The girl answered that she was a virgin and had never been touched. She was frightened. The appellant unhooked her bra and touched her breast. Then despite her protests and resistance he lifted up her skirt and her underpants and touched her private parts. He then said that she was not yet ready for sex. She said he was crazy. He kissed her. She spat and wiped her mouth and made off angrily, followed by the defendant. After a short conversation they parted. The appellant gave no evidence but his solicitor at the trial crossexamined PW1 on the basis that the appellant had followed her into the building.

5. At the close of the Crown's case, the solicitor for the appellant made an unsuccessful submission that there was no case to answer. The appellant elected not to give evidence and called no witness. He was convicted. He appealed against conviction on a number of grounds.

1.    The order excluding the public from part of the trial

6. The magistrate's record shows that the victim (PW1) affirmed and gave her name, address and age. The next entry is "Court clear of audience except guardians". There is no note of the "audience" being allowed in at any stage. The appellant's solicitors suggested before the appeal hearing that this court might consider inviting the magistrate to supply his reasons for making the exclusion order. Following the example of Fuad J. in Tam Wai-keung and another v R. Cr. App. No.1114 of 1981, I asked the Registrar of the Supreme Court to invite the magistrate to give reasons for his order. The magistrate promptly responded with a most helpful further statement, from which it appeared that Crown Counsel had asked him to make an order excluding the public from the courtroom whilst PW1 was giving evidence. The magistrate observed that PW1 was feeling very uneasy and embarrassed about giving evidence, in front of the public, about the incident. He asked Mr. Kevin Chan, the solicitor then appearing for the appellant if there was any objection to the order sought by the Crown and Mr. Chan said that there was no objection.

7. The magistrate was satisfied that the evidence PW1 was about to give, according to the Crown's opening, was of an indecent character, relating to the fondling of her naked breast and vagina. Further, in view of PW1's obvious embarrassment, in order to make her feel more comfortable in discharging her duty as a witness, the magistrate felt that it was necessary in the interests of justice that the public be excluded while she was giving evidence.

8. The order excluding the public was made but it transpired that nobody was in fact excluded because the persons in the very small courtroom, apart from the press, were all connected with the case in some way. Some were family members of the appellant, one was the guardian of PW1, two were members of the press and the rest were court staff, lawyers and others whose duty required their presence. The magistrate allowed them all to remain in court. The order was lifted when PW1 completed her evidence and the case was duly reported in the South China Morning Post on the following day.

9. At the hearing of the appeal, Mr. Mullick, counsel for the appellant said that Mr. Kevin Chan had given to him an account which tallied with that of the magistrate, which he accepted. He also accepted that under s.11 of the Magistrates Ordinance (Cap. 227) the magistrate may, where the evidence is of an indecent character, exclude the public, provided that he delivers his determination "in open and public court". He submitted, however, that evidence which consists of a description of indecent acts is not itself "of an indecent character". That phrase, according to Mr. Mullick, relates only to real evidence which is in itself indecent, such as a pornographic film or an objectionable article. He submitted that, if his view was correct, the magistrate had no jurisdiction to close the court.

10. Section 11 of the Magistrates Ordinance (Cap. 227) is in the following terms:

"11. The room or place in which a magistrate sits to hear and try any complaint or information shall be deemed an open and public court, to which the public generally may have access, so far as the same can conveniently contain them, unless the magistrate otherwise directs where the evidence is of an indecent character, or where a prosecution is for an offence against the Societies Ordinance and is an offence relating to or otherwise connected with a Triad Society, in which case he shall make a note on the depositions of the direction which he has given:

            Provided that in any case the delivery by the magistrate of his determination and any proceedings subsequent thereto, other than a review under section 104 which requires the hearing of evidence, shall take place in open and public court." (Amended, 24 of 1949, s. 7 and 16 of 1960, s. 2)

11. I can see no justification for the view for which Mr. Mullick contended. Oral evidence of indecency is just as much evidence of an indecent character as a written description, film or three dimensional representation of such indecency would be. I am satisfied that the magistrate had power under s.11 of the Magistrates Ordinance to make the order.

12. A magistrate also has power to exclude persons from court under sections 122 and 123 of the Criminal Procedure Ordinance Cap. 221. The relevant parts of those sections read as follows:

"122. (1) Any judge, District Judge or magistrate may, if he considers it necessary in the interests of justice or public order or security, direct that, save as provided in subsection (3) or with. the permission of a public officer acting under his direction, no person shall be in the court in which such judge, District judge or magistrate sits in the exercise of his criminal jurisdiction.or in the building, or within the curtilage of the building, in which that court sits.

        (2).......

        (3) Subsections (1) and (2) shall not apply to a person who is required to be in any such court or any such building by virtue of his office or profession or an order of a court or who is otherwise required for the purposes of any proceedings, whether civil or criminal, to be in any such court or any building or to any one person representing a newspaper or news agency.

 

        (4) ......

 

        (5) Notwithstanding any other law, the exclusion of persons from any court or any building by or in accordance with a direction of a judge, District Judge or magistrate under subsection (1) or of the Chief Justice under subsection (2) shall not affect the validity of the proceedings of that court or of any court which sits in that building as the case may be.

 

        (6) Nothing in subsection (1) or (2) shall derogate from or affect the power of any judge, District Judge or magistrate to order the exclusion form the court in which he sits of members of the public where the proper administration of justice so requires.

 

        (7) In this section 'court' includes the District Court and a magistrate. (Amended, 35 of 1976, s. 14)

 

                                                                       (Added, 37 of 1968, s. 2)

123. (1) Notwithstanding any other law -

 

13. It appears that there were prima facie grounds for making the order. In view of the fact that counsel appearing for the appellant at the trial said he had no objection and having regard to the circumstances as described by the magistrate, I find that the making of the order, which was a matter in the magistrate's discretion, is not a ground for setting aside the verdict. I would nevertheless express. the hope that any magistrate asked to make an order under s.11 of the Magistrates Ordinance would keep firmly in mind the great importance of the principle that trials should be in open court. There are great dangers in holding trials in camera. Such trials are extremely rare in common Law jurisdictions and I hope that they  will continue to be so.

14. Mr. Mullick submitted that the magistrate had not expressly warned himself of the dangers of convicting on the uncorroborated evidence of PW1.

15. According to the magistrate's record, he gave, when announcing his verdict, detailed reasons for his decision. He had just been addressed by both counsel on the topic of corroboration. Though the record does not contain an explicit direction to himself on that topic, it is clear that the magistrate had the question of the desirability of corroboration well in mind, as well as the danger of convicting without it. In his Statement of Findings at page 13, he put the matter beyond doubt by saying:

"I have duly warned myself of the danger of convicting the Defendant on PW1's evidence without any corroborative evidence independent of her evidence. But I am satisfied beyond a reasonable doubt that she was an honest and truthful witness and that she had told me the truth about the attack on her by the Defendant."

16. This ground of appeal was unfounded.

3.    Failure to take into account inconsistencies between the evidence of PW1 and PW3.

17. The evidence of PW1 was to the effect that almost immediately after parting company with the appellant she telephoned her friend Siu Sau Han (PW3) who met her five or six minutes after the incident. PW1 said in evidence "And I told her of the incident after she came down.. I was very unhappy and frightened. I don't know what to do. I did not say to her in detail."

18. PW3 testified that she received a telephone call from PW1 at 6.30 p.m. PW1 was very excited over the telephone. She seemed to be in a hurry and asked PW3 to go down immediately. PW3 changed and went down within minutes. PW1 ran up to her quickly. She was a bit frightened. She said she did not know what a person was up to. She said that there had been a person who often pestered her, and often touched her. She did not say in detail what that person had done but did say it was a policeman. PW1 said it happened just then. She was upset. Her demeanour was more excited than normal. In cross-examination PW3 said that it was the first time PW1 had mentioned such a thing to her and PW1 did not afterwards say it again.

19. Mr. Mullick, whilst accepting that what PW1 said to PW3 could be admissible as evidence of a recent complaint, said that its value would lie in the extent to which it was consistent with PW1's evidence about the alleged indecent assault. He suggested that there was a conflict between the evidence of PW1 and PW3 as to what PW1 had told PW3. Mr. Mullick also suggested that there was a discrepancy in the evidence as to the time arranged for their meeting. The record shows that PW1 said that they had originally agreed to meet at 6.30 p.m. PW3 said the meeting was to be at sometime after 6 p.m. and that she turned up for the meeting at 6.25. Finding that PW1 was not there, she left. According to PW1 she had told PW3 about the incident but not in detail. When asked in cross-examination what she had told PW3, she said "Briefly about the incident. I said just then a policeman had behaved towards me like that". She was asked "Told friend you were touched?" and she replied "Yes". PW3's version was that PW3 had said "she did not know what a person was up to. She said that there had been a person who often pestered her. And said often touched her." PW1 had not said in detail what that person had done. PW3 'more or less understood what she was complaining. She said he was a policeman. She did not say which policeman. She said it happened just then."

20. The trial magistrate in a long Statement of Findings in which he gave a full summary of the evidence, made it clear that he was aware that the complaint made by PW1 to PW3 was somewhat vague. He specifically stated that he was not treating the evidence of PW1's distress as corroboration. He was entitled, however, to admit the evidence of PW3, not as evidence of the truth of what PW1 allegedly said, but as evidence of the consistency of PW1's conduct with the story told by her in the witness box. R v Lillyman L [1896] QB 167. R. v. Osbome [1905] 1 KB 551.

21. Allowing for her distress, an English girl of nearly 16 years of age might be able to give to a friend a clear and explicit account of an indecent assault recently made upon her. A Chinese girl of the same age in Hong Kong, however, would be most unlikely to express herself directly and in detail about any such delicate matter. For my part. I find nothing surprising about the form of the evidence of PW1 and PW3. If PW3 was to be believed, PW1, in some distress, had given her the impression that an incident had just occurred between PW1 and a policeman, who often pestered her and touched her. The magistrate was entitled to take that into account to see whether PW1's behaviour after the incident was consistent with the story she was telling in court. If PW3 had gone into the witness, box in and given a detailed report of a detailed, concise and lucid recent complaint made by PW1 in April, the magistrate might well have treated her evidence with considerable suspicion. He noted the use by PW3 of the word "often" and obviously bore it in mind when evaluating the evidence.

22. There is nothing in the Statement of Findings to suggest that the magistrate treated the evidence of PW3 as evidence of the alleged indecent assault. He was entitled to admit the evidence and to give it such weight as he saw fit. I was satisfied that he was well aware of the nature of the evidence and I found that this ground of appeal failed.

4.    Alleged inconsistencies between the evidence of PW1 and PW2.

23. The appellant's grounds of appeal suggested that there were discrepancies between the evidence of PW1 and P42. PW2 was a girl who also lived in the Po Leung Kuk and was a friend of PW1. She said that she saw PW1 and the appellant together on the 28th April at Leighton Road, and thought that the appellant was PW1's boyfriend. She made a comment about the appellant looking like PW1's father. The record does not show to whom that comment was made.  PW1 said in evidence that she saw PW2 and greeted her but there was no con-versation. There is nothing in this ground of appeal. The evidence of PW2 did, however, identify the Defendant as being in company with PW1 in Leighton Road on the day in question and it was not challenged.

5.    The telephone call made by PW1 to the appellant some weeks after the event.

24. PW1 testified that in May, when she was feeling low, she called a telephone number which the appellant had given to her immediately after the incident in April. The appellant had told her that it was the number of the police station.

25. It was suggested in the Grounds of Appeal that the magistrate did not take sufficient account of that matter. The Statement of Findings shows that he took full account of it in coming to his decision. He found the telephone call to be explicable in the light of the relationship which had developed between PW1 and the appellant. He was entitled on the evidence so to find.

6.    The ill will which PW1 bore towards the appellant

26. It was suggested that PW1 bore the appellant ill will and that the magistrate took little account of that. The record and the Statement of Findings show that the magistrate took full account of PW1's feelings in relation to the appellant.

7.    The admission into evidence of hearsay

27. Though the alleged incident occurred on the 28th April 1986, it was not reported to the police by PW1 until sometime in July. When giving evidence in chief, PW1 said that she had waited so long because she was frightened. She "kept thinking about it" (presumably the incident)"and can't resolve it and eventually told it to Madame Wong. I asked her if she believed such a thing would happen. I said to her if I say something like that happened to me would you believe it. I didn't know what I would say to her as I was frightened and I was shy and didnt know what to say." That evidence was admissible to show her state of mind.

28. In response to questions put to her in cross-examination, PW1, referring to a visit made to the Po Leung Kuk by the defendant in May, said:

"After I had the meal, I went upstairs and saw him. I started crying and female worker saw me and asked what was the matter. I said I didn't want to see him, he was bad man. When I saw him, I did not want to go up, but supervisor she came and stopped me and asked me what was the matter. She asked me to go to study room to see defendant. I cried and said I didn't want to see him."

This evidence was clearly a description of an event and, as such, admissible.

29. PW1 was asked by defence counsel:

30. She replied: "A. Yes, I remember, but roughly, not clearly."

31. In re-examination PWl, when asked about her conversation with the matron, replied:

"I said to her, I was crying, I said he is not a good guy, he touched me and he asked if I was a virgin, he touched me, I don't want to see him.

He restrained me from leaving with his hand. He used his hand to grab hold of my waist. He was very strong (right hand)."

32. Mr. Mullick submitted that the evidence of PW1 as to what she had said to Madame Wong, to the supervisor and to the matron was hearsay and inadmissible. It did not fit into the category of a recent complaint and the fact that some of it came out in crossexamination was immaterial. Mr. Mullick pointed out that the passages to which his complaint related were several times referred to in the Statement of Findings but the magistrate had nowhere indicated the basis upon which he had admitted the evidence or the significance which he attached to it. The persons to whom the alleged remarks were made were not called to give evidence. The evidence of the remarks, if admissible at all, had little if any probative effect but did have prejudicial effect.

33. Mr. Jenkyn-Jones, who appeared for the Crown both at the trial and at the hearing of the appeal, said that the witnesses to whom the remarks were allegedly made were not called because their evidence was not considered to be probative. The evidence of PW1 as to what she had said to Madame Wong and to the matron was not adduced as evidence of recent complaint but rather to explain why PW1 had not reported the incident to the police before July. It was to be expected that the defence might attack PW1's credibility on the ground that she had made such a late report to the police. The solicitor for the defendant was aware of the contents of statements which had been taken from the staff of the Po Leung Kuk and was endeavouring to establish that PW1 had made no formal complaint to them. It was as a result of his cross-examination that PW1 testified as to what she had said to the staff.

34. It was put to PW1 in cross-examination that the appellant had not committed the acts alleged by her. It was also put to her that she had done nothing about the incident until the report to the police in July. Questions were asked of her designed to show that PW1 had not complained to the Po Leung Kuk staff. It was put to her that she could have drawn the attention of the right person to the matter a long time before July. The defending solicitor also put it to her that she had imagined the incident. It was not suggested by the Crown at the appeal hearing that evidence of statements made by PW1 before the trial and consistent with her evidence given in the witness box was admissible to rebut an allegation of recent fabrication. In this case there was a suggestion that PW1 had fabricated her complaint but not that the fabrication was a recent one. Mr. Mullick was correct in saying that the evidence was not admissible to prove the truth of the statements it reported. The Crown agreed that it was not admissible on the basis of recent complaint. The evidence of what PW1 had said, coming as it did from her rather than from an independent source, could have little if any weight. What she had said to the matron was inadmissible and even if admissible, should have been excluded on the ground that it was more prejudicial than probative.

35. The magistrate should have explained directly the basis upon which he admitted the evidence and the significance he attached to it. In fairness to him, however, it must be said that the solicitor representing the appellant at the trial, far from raising any objection, caused much of the evidence complained of to come out.

36. It appears from the record that the magistrate and counsel at the trial regarded this part of the evidence not as directly probative of the allegations against the appellant, but as being relevant to the credibility of PW1. They were looking for an explanation for her long delay in making a formal complaint to the authorities. The magistrate, as appears generally from his Statement of Findings, looked at this part of the evidence in order to find an explanation for the delay. He found tha she sought advice from Madame Wong because she doubted whether she would be believed if she complained against a policeman and she was frightened to complain officially.

37. Looking at the Statement of Findings as a whole, I find that the magistrate's assessment of the credibility of PW1 would have  been the same whether or not he had heard the evidence of what PW1 said to the matron.He warned himself of the dangers of convicting on PW1's uncorroborated evidence, and of the possibility of her having invented her story out of a dislike of being supervised by the police.He also considered the possibility of adolescent fantasy and the fact of her late report to the police. In an extempore judgment immediately after the closing addresses by counsel he showed that he had all the dangers in mind. Having seen and heard PW1 give her evidence, he said "I nevertheless came to the conclusion that she was an honest witness and had told me the truth when she said the Defendant indecently assaulted her on her breast and private parts." That passage contradicts a suggestion by Mr. Mullick that the magistrate failed to show any specific finding of fact.

38. The powers of a judge hearing an appeal against the decision of a magistrate are set out in s. 119(d) of the Magistrates Ordinance, (Cap. 227) in the following terms:

"(d) the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate."

39. The record of the trial and the Statement of Findings, together with the magistrate's supplementary explanation of his order closing the court, indicate that after giving himself a full and proper warning the magistrate believed the evidence of PW1 and found as a fact that she had been indecently assaulted by the appellant. The evidence of PW1 stood uncontradicted by any other evidence, for the appellant chose not to testify. An appellate court faced with a situation where inadmissible evidence had been placed before a jury, would be obliged to indulge in an exercise of pure speculation as to the effect it may have had on the minds of the jurors. This court had the advantage of seeing the Statement of Findings. After considering all the circumstances, I reached the conclusion that the appellant was rightly convicted and that his appeal should be dismissed.