HKSAR v. LAW SIU KAY

[English Translation – 英譯本]
HCMA 53/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 53 OF 2003

(ON APPEAL FROM TWCC 3629 OF 2002)

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JUDGMENT

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1.  The Appellant in this appeal was convicted of one charge of indecent assault, contrary to s 122(1) of the Crimes Ordinance (Cap 200) and sentenced to immediate imprisonment for a term of 12 months. He appeals against both conviction and sentence.

2. The facts of the case were that at about 1:15 am in the early hours of 15 June 2002, PW1 and PW2 were chatting near the place of the incident and later they went home separately. PW1 was indecently assaulted on the way home by a male stranger; the assault included touching of her breast, attempting to kiss and inserting hand under her skirt to touch. PW1 got away but was intercepted again by that man; he pulled her behind a gate to assault. At that time, PW2 happened to walk past outside the gate, PW1 hit the gate with her hand for help, and the man escaped from the scene.

3. Subsequently on 29 June 2002, PW1, under arrangement by the police, recognized from computer photographs that the Appellant was the man who attacked her that night. The Appellant was arrested on the same date.

4. On 4 July 2002, PW1 identified the Appellant in an identity parade. The Appellant’s parents provided on 10 July 2002 to the police witness statements relating to the Appellant’s alibi evidence.

5. At trial, the Appellant chose to testify. He claimed that he was sleeping at the time of the incident and did not go out. His mother also testified, stating that at the time of the incident, the Appellant stayed in the bedroom at home.

6. The key issue in this case is the identification of the Appellant by PW1 and the reliability of the identification evidence. And this issue also hinges on whether the alibi evidence of the Appellant and his mother was credible or possible to be true, so that the reliability of the evidence of the prosecution witness may be undermined.

7. Although leading counsel for the Appellant has listed 11 grounds in his Grounds of Appeal, the general scope of those grounds are concerned with the magistrate wrongly rejecting the alibi evidence of the Appellant and his mother and convicting the Appellant in an unsafe and unsatisfactory manner by adopting the wrong factual basis and failing to warn himself according to the guidelines in the Turnbull case.

8. Regarding the wrongful rejection of the Appellant and his mother’s alibi evidence, the matter can be put in the following points:

(1)            The questions the magistrate raised with the Appellant and his mother were all new questions. The prosecutor never cross-examined the Appellant and his mother on these questions. The contents of the questions and the manner of questioning was oppressive, making an informed observer to feel that the magistrate was seeking to open up new areas to provide him with reasons to reject their alibi evidence. In fact, the magistrate, in his Oral Judgment, relied precisely on the answers given under his cross-examination to reject their testimonies.

(2)            In the absence of these reasons, the magistrate did not have sufficient reasons to reject their testimonies.

(3)            The magistrate wrongly concluded from the basis that they were mother and son that the mother made an untruthful statement out of protection of her son. There was no factual basis in the case for this conclusion. The cross-examination of the prosecutor of the Appellant’s mother was not premised upon this position. The Appellant’s mother was not given the opportunity to respond.

9. As to the erroneous factual basis and the non-compliance with the Turnbull guidelines, leading counsel contends that:

(1)            The magistrate relied on erroneous facts to infer that PW1 had calmed down at the time of the incident so as to draw the conclusion that her identification evidence was reliable;

(2)            The magistrate erred in determining the case on the basis that PW1 had no motive to frame the Appellant; and

(3)            Although the magistrate slightly mentioned the Turnbull guidelines in his Oral Judgment, he did not explain in detail in his Statement of Findings how he determined the case in accordance with those guidelines. This shows that the magistrate was only paying lip service and could not reflect the principle that “justice must be seen to be done”.

10. I first consider briefly the three points concerning erroneous factual basis and the non-compliance with the Turnbull guidelines.

11. According to the evidence in this case, whether the time of the incident was 1:15 am or 2 am, and even if the magistrate was in error in his Statement of Findings in calculating that there were several hours between the incident and PW1 having an argument with her boyfriend, the matter concerning her having calmed down was only one of the factors by which the magistrate held that PW1’s identification evidence was credible and reliable. The other factors were stated in the Statement of Findings under the heading of “Evaluation of Evidence”, paragraphs (1) to (7).

12. As to whether or not PW1 had the motive to fabricate a sexual assault, the magistrate said the following in his Statement of Findings under “Evaluation of Evidence”, paragraph (1):

“On the basis that PW1 had absolutely no reason or motive to fabricate an incident of sexual assault, the defence did not dispute the occurrence of the incident. After analyzing and considering the evidence, I am sure of the occurrence of the incident PW1 described, in which she was assaulted.”

13. During the trial of this case, the crux of the case was not whether PW1 had fabricated an incident of assault; it was whether her identification of the Appellant was accurate and not mistaken. Further, the trial magistrate found that PW1 had been assaulted after analyzing and considering the evidence including PW1’s motive and did not make that finding merely on the basis of the point whether or not PW1 had motive. This ground of appeal of leading counsel appears to have taken the matter out of context.

14. As to the contention of the Appellant’s leading counsel that the magistrate in his Statement of Findings did not clearly indicate as in his Oral Judgment that he had considered the matters listed in the Turnbull case, the magistrate in fact did analyze in detail at paragraphs 1 to 8 under the heading of “Evaluation of Evidence” why he accepted PW1’s identification evidence and had also considered the matters listed in the Turnbull case, including lighting, distance, time for observation, etc. I do not consider the warning on this aspect in his Oral Judgment was only paying lip service. This ground of appeal is not justified.

15. However, I am of the view that more detailed analysis is necessary in respect of what leading counsel contends to be the error on the part of the magistrate to reject the alibi evidence of the Appellant and his mother. Firstly, whether the magistrate’s questioning indicated that he had entered into arena and failed to remain objective. This means that in considering the nature and quantity of the magistrate’s questions to the Appellant and his mother and the interaction between the two, I must consider whether an informed observer hearing the case would find the magistrate suddenly entered into the fray and interfered with the trial and thus considered that the Appellant did not have a fair trial.

16. There was no dispute between leading counsel for the Appellant and counsel for the Respondent on the principles, reported in Jones v. National Coal Board [1957] 2 QB 55 and even in HKSAR v Tsang Wai Man (transliteration) (CACC 190/2001), governing the circumstances in which a judge may take part in the questioning of witnesses.

17. In the case of Tsang Wai Man, Yeung JA had this to say:

“Under normal circumstances and where both sides are represented, the lawyers for both sides will elicit through the process of examination-in-chief, cross-examination and re-examination all relevant evidence from the witness, to enable the judge to have sufficient evidence to rule on the questions of fact in dispute.

But on many occasions the situation does not turn out as expected. Due to factors such as differences in approach to the matter, or use of strategy in the course of trial, or the manner of witnesses in answering questions, or the ability of lawyers, a judge does not necessarily obtain from the process of examination-in-chief, cross-examination and re-examination conducted by lawyers for both sides all the necessary information so that the judge would have to ask the witness himself to obtain a clearer understanding of the incident before determination.

Provided that the judge can adopt an impartial approach in the questioning of witnesses, so that a reasonable observer on an informed situation would not regard the judge to be biased towards one side, such a course is not only understandable but also reasonable and necessary. This is so even though a more appropriate way is to obtain the necessary information through questioning by lawyers for both sides.”

18. The trial magistrate rejected the Appellant’s evidence on the ground, according to his Oral Judgment (page 50 of the Appeal Bundle), that the Appellant deliberately put up before him an image of a “filial son” of working for his father and taking the trouble of coming back to Hong Kong from Mainland China every weekend in order to be company to his mother. The magistrate considered that he even had no idea of his mother’s age, and that his mother testified that he liked to go with friends to Causeway Bay and Lan Kwai Fong for fun, which were inconsistent with the “filial son” image he put up on purpose.

19. According to the transcript of the trial, the cross-examination of the prosecutor never touched upon questions on these topics. These new questions were opened up when the magistrate questioned the Appellant personally and during the questioning, upon knowing that the Appellant did not know for sure the age of his mother, he asked as follows (page 116M of the Appeal Bundle): “You were so good, so filial that you accompanied her watching television?” The magistrate’s question not only shows that he was doubting the credibility of the Appellant’s testimony but also gives others the feeling that he was producing “ammunition” for rejecting the Appellant’s testimony. In his Oral Judgment, he relied on precisely the new areas developed through his personal questioning of the Appellant to reject the Appellant’s testimony. This act of the magistrate was, from the angle of a reasonable observer, contrary to the principle that “justice must be seen to be done”. Further, I notice that in the Statement of Findings the magistrate wrote subsequently, he did not rely on this point as the basis for rejecting the Appellant’s testimony. The magistrate only stated that he did not believe the Appellant could clearly remember what he did on the date of the incident and so he rejected the Appellant’s testimony and did not reiterate the reasons in his Oral Judgment above. I am somewhat concerned about this discrepancy.

20. Similarly, when the magistrate was questioning the Appellant’s mother, he asked about what she remembered about the evening of the day after the incident. The prosecutor also had not asked about this aspect (page 127 of the Appeal Bundle). Undoubtedly, the magistrate took this move to test why the Appellant’s mother had an independent and clear memory of every detail of the night of the incident but had a vague impression of the following night. His question was as follows (page 127T of the Appeal Bundle):

“Question: I am asking you why for this night you can only remember it to be about one thirty, and cannot be sure but for night before, the night of the 14th, you could quite deliberately remember that you went to sleep at five or ten past wo? And your explanation was that there was such a time throughout, before going to sleep [you] must look at the time. Then why was that what you remembered was so vague for the 15th? Any explanation?”

21. The magistrate’s oppressive manner of questioning had already given others the impression that he had taken over entirely the role of the prosecutor and was cross-examining the Appellant’s mother. It was more unfortunate that in rejecting the Appellant’s mother’s testimony, he said this in his Oral Judgment (page 50L of the Appeal Bundle):

“I am of the view that she could not possibly remember what happened on that date, on 15 June. She was giving evidence to protect her son.”

22. And in the Statement of Findings, he said further (page 21 of the Appeal Bundle):

“DW2 as a mother, told untruths to protect her son; this was understandable.”

23. All the above matters do inevitably lend a reasonable observer the impression that the magistrate had, without discerning the truth, a preconceived bias against the Appellant’s mother’s testimony on the basis that they were mother and son. Of course, the magistrate may not in fact harbour such a bias. But his intrusive act in intervention of the case and inappropriate use of word makes it possible for others to have such an impression.

24. Furthermore, the position of the prosecution at trial was not premised upon the Appellant’s mother fabricating alibi evidence because the Appellant was her son, so as to assist the Appellant in escaping conviction. According to page 125N-Q of the Appeal Bundle, the prosecutor asked her whether the Appellant could have left the flat during the one or two occasions when she went to the washroom, she answered “Should have”. The cross-examination by the prosecution of the Appellant’s mother was all concerned with even if she was telling the truth, namely that she was indeed watching television in the living room at home till going to bed at about 2 am in the early hours, the Appellant could still have left the flat to go outside while she was not paying attention or during the short time when she left the living room to go to the washroom. The prosecutor never put to DW2 that she fabricated alibi evidence to protect her son, and so she lost an opportunity to reply to this allegation.

25. The case of Gurierrez v R [1977] 1 NZLR 192, 199 states:

“The decisions referred to lead to the conclusion, which we adopt, that the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of prosecuting counsel or a prosecutor who proposes to attack the credibility of defence witnesses, including the defendant, to cross-examine in a way which makes it plain that the relevant evidence is challenged and gives the witness a fair opportunity to answer the challenge. Such cross-examination however may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has otherwise been afforded.”

26. In the case of Wong Wah Yee [2001] 3 HKLRD 508, the Court of Final Appeal also expounded and applied the said principle. One of the grounds of appeal of the appellant in that case was that the prosecution did not at trial clearly put to the appellant’s sister that her diary and testimony was fabricated, so that she lost the opportunity to reply and explain to this allegation and the Court of Appeal considered for this reason that the trial amounted to an injustice to the appellant.

27. Chan PJ reiterated in that case that generally, the prosecutor was required to put to the witness in producing alibi evidence that such evidence was fabricated, but he also recognized that in some situations, some respected figures may provide alibi evidence for family members and such evidence cannot be mistaken. In other words, it must either be truthful or be fabricated. Sometimes when the prosecutor cross-examined this kind of alibi witness, only the strength of the prosecution case would be relied upon to show that alibi evidence was not truthful and would not put directly and clearly to the witness that such evidence was fabricated and false. The learned judge stated that they were not going to prescribe in firm terms what situations one should be clear and what situations required subtlety.

28. In the course of the trial of this case, the cross-examination by the prosecutor of the Appellant’s mother was premised upon the possibility that she may not be so knowledgeable as she claimed about whether the Appellant had been out and not fabrication of evidence out of protection of her son. This is different from the situation mentioned above in the case of Wong Wah Yee. I am of the view that if fabrication is not the prosecution’s position in the trial of this case at all, then it is acceptable for the prosecution not raising with the Appellant’s mother the allegation of fabrication and no serious or significant injustice would have been occasioned. Yet, the trial magistrate did not reject the Appellant’s mother’s testimony because it was possible that she was mistaken on whether the Appellant had been out. Rather he himself applied fabrication as a reason for rejecting the testimony when the prosecutor did not raise with her the allegation of fabrication of alibi evidence at all. This inevitably gives one an impression that he took no notice of the Appellant and his mother’s testimonies. If the magistrate wishes to apply fabrication as a reason to reject her testimony, a more appropriate way is to invite the prosecutor to put to  her this allegation directly so that she would have an opportunity to respond.

29. Putting the above issues together, I consider that the conviction was unsafe and unsatisfactory and allow the appeal and set aside the sentence.

Application for costs

30. The Appellant’s appeal having been allowed, he should have the costs of the appeal, the trial before the magistrate and also the bail application before the High Court. If I am going to exercise discretion to deny him costs, I must have a substantive reason. It is not disputed in this case that the Appellant did not make any admissions. The prosecution’s case was based solely on the identification of the Appellant by PW1. The Appellant and his family members provided alibi evidence at the first opportunity and also put forward alibi evidence at trial. Therefore, I am of the view that his success in the appeal was not on a technicality. Rather the trial did not proceed in accordance with fairness and the conviction was unsafe and unsatisfactory. I do not see any reason to deny the costs that the Appellant is entitled to. I order that the Appellant shall have in this case the costs of the trial before the magistrate and of the appeal before the Court of First Instance, and also the costs of the bail application. If the parties cannot reach an agreement on costs, then an application should be made pursuant to rule 5 of the Costs in Criminal Cases Rules (Cap 492ASub.Leg.) for taxation by the taxation authority (ie a Master).

Application for re-trial

31. In considering whether a case should be re-tried, the Court should consider a number of factors, including -

(1) the seriousness of the case;

(2) the history of the proceedings in the case;

(3) the prosecution and the defence cases;

(4) the complexity of the case;

(5) the reason(s) for allowing the appeal;

(6) the period of time between the commission of the offence and the trial date;

(7) the period of time between the trial date and the appeal; and

(8) the length of the sentence already served by the Appellant.

32. Apart from these factors, the principal consideration is to balance the public interest and the Appellant’s personal interest, namely that the public expect that the guilty be convicted and punished by the law, but the Appellant’s interest involves him facing another trial after a successful appeal.

33. Further, the Court lastly must consider whether, if a re-trial is ordered, there is a reasonable possibility that the Appellant would be found guilty after trial.

34. The date of the incident in this case was 15 June 2002. The trial took place on 8 January 2003. The Appellant was found guilty and sentenced to 12 months’ imprisonment. The Appellant obtained leave of the High Court to have bail pending appeal on 22 January 2003 (which meant that he obtained bail after being imprisoned for about two weeks).

35. My principal reason for allowing the appeal is that the magistrate erred in entering the litigation arena to dig up reasons for him to reject the alibi evidence of the Appellant and the Appellant’s mother in breach of the principle that “justice must be seen to be done”. I agree with defence counsel’s submission that since PW1 had seen this Appellant at trial, if there were a re-trial, her impression in identifying the Appellant would only be reinforced. Further if there were a re-trial, the longer the lapse in time, the less advantageous it is for the defence to put forward alibi evidence.

36. Furthermore, I am also of the view that even if the same evidence (ie the evidence at the trial before the magistrate in this case) were put before another magistrate, that magistrate may not necessarily reject the alibi evidence. The re-trial does not carry with it the reasonable expectation that the Appellant would again be convicted. Although the charge in this case is a serious offence, after considering all the factors, I do not grant the prosecution’s application for re-trial.