THE QUEEN v. KWONG SEK KWAN

Headnote

Indecent assault - no warning of danger of convicting in absence of corroboration - magistrate delivered written judgment immediately after counsel concluded address - conviction quashed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 977 of 1985

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JUDGMENT

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1. The appellant was convicted of indecent assault, contrary to section 122 of the Crimes Ordinance, Cap. 200.

2. It was alleged that as the victim - a 24 year-old European married woman - was walking along Morrison Hill Road at 7.45 a.m. the appellant approached her from behind and squeezed her private parts.

3. The victim grabbed the appellant by the scruff of the neck and angrily berated him. The appellant pulled away, muttered something in Chinese and walked on. The victim followed him until she met two European men. She grabbed hold of the appellant and, in the presence of the two men, complained that he had indecently assaulted her. The appellant said in English that it had been an accident: he had bumped into her while in a hurry to get to work. The police arrived and he was arrested.

4. The appellant gave evidence and confirmed that he had accidentally bumped into the woman while he was changing his briefcase from one hand to the other. He had apologised and walked on. He denied any contact with her private parts or that the victim had spoken to him at the time of the incident, though he admitted she had grabbed his collar.

5. The learned magistrate, giving judgment, said he believed the victim's evidence and found that there had been a deliberate squeezing of her pubic mound.

6. In his statement of findings the magistrate added that the victim was a mature woman, married to a Chinese - of which there was no evidence - and therefore unlikely to be racially prejudiced.

7. He said her evidence carried strong conviction and had graphically indicated the nature of the assault. He did not accept that the appellant might have lost his balance, while changing his briefcase from hand to hand and thus touched her pubic area with a flying hand. It was never suggested that the appellant had lost his balance.

8. Conspicuous by its absence, in both the judgment and statement of findings, is any reference to the danger of convicting in the absence of corroboration. It is fundamental that a magistrate should properly direct himself in this respect when trying a case of indecency. Here there was no corroboration.

9. Counsel for the Crown concedes that the conviction cannot stand and does not seek a retrial. On this ground alone therefore the appeal is allowed and the conviction quashed.

10. There is one other matter that troubles me. It was a ground of appeal, supported by an affidavit from counsel who appeared at the trial, that the magistrate read out a written judgment as soon as counsel had finished his address and sat down.

11. This is not only discourteous to counsel, it is likely to convey to the lay client - as it did in this case, according to the affidavit - that the mind of the court was already made up before counsel had been heard.