THE QUEEN v. LUI HO

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 981 OF 1992

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J U D G M E N T

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1. The appellant was tried and convicted before a magistrate on four charges of indecent assault on a woman contrary to section 122(1) of the Crimes Ordinance, Cap.200. He was sentenced to four months imprisonment on each charge to be served concurrently and now appeals against both conviction and sentence.

2. The complainant, who came from the Philippines, was employed as a domestic helper to work for the family of the appellant which comprised of himself, his wife and three daughters aged 2, 3 and 6. They lived in a small flat and the complainant shared a bedroom with the eldest child.

3. The first incident, which does not form the subject of any charge, took place in January 1992 inside the kitchen when the appellant tried to kiss the complainant's neck and to stroke it with his hand He was holding $3,000 in his hand and indicated with hand signals that he wanted to go to bed with her. The complainant refused.

4. The four incidents, the subject of the four charges which the appellant was convicted all took place in the kitchen when the complainant was working and when the wife had taken the two older children to school in the morning The dates on which the offences were said to have been committed were on 25, 26, 28 May and 1 June 1992. On each occasion, the appellant forcibly kissed the complainant and stroked the breasts and intimate parts of her body. He either gestured to her to go to bed with him or actually dragged her to the bedroom in which she shared with the oldest child. There was an occasion when he pressed his erected penis against her. The complainant struggled and resisted. Each time the appellant was stopped by some intervening acts such as the ringing of the doorbell or the small child coming in. On the last occasion, the appellant gripped both her forearms so forcefully in order to drag her into the bedroom and these caused bruises. She ran out of the flat and took a taxi to an address where her friend worked and together with her friend and her friend’s employer they went together to the police station. A day before and that was 31 May, she had been to this friend’s place and with the help of the friend’s employer, Miss Margaret Scott, a letter of complaint was composed and sent to the Labour Department, the Immigation Department and the Philippine Consulate. But she returned to her employer’s home on advice.

5. The complainant was examined by Dr. Kwong Shu-keung at 5:10 p.m. on 1 June. He found 3 patches of bruising over her right forearm and another 3 over her left forearm. There was a circular bruising over both knees. In the opinion of Dr. Kwong all the bruising was of a similar age having been caused within the previous two days.

6. The appellant gave evidence and called witnesses, one of whom was his wife and the others were employees from his cleaning company. The appellant denied committed the offences and said at the times as alleged he had gone to work at his cleaning company. It was also his defence that the whole thing had been made by the complainant because she did not like her job. She always complained that the flat was too small and the children were untidy and naughty. He had conveyed his displeasure to the complainant through his wife because he himself did not speak English. The magistrate rejected the evidence of the appellant and his witnesses and found the appellant guilty of all four charges. He found the complainant to be a truthful and accurate witness and believed her evidence.

7. Two main grounds of appeal were argued on behalf of the appellant by Mr. Mackenzie-Ross. The first was that the learned magistrate erred in law and misdirected himself as to what is corroboration. Counsel relied on the leading case in R. v. Baskerville [1916] 2KB 658 at p.667 Lord Reading C.J. said:

“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it."

While he was satisfied that the complainant was a truthful, honest and accurate witness and he accepted her evidence, the learned magistrate in his short judgment delivered in court at p.58 of the transcript said that the medical evidence of bruising was corroboration in respect of Charge D. It is this remark that has given rise to the first ground of appeal. It was submitted that the medical evidence is not testimony coming from an independent source. It was evidence which comes from the complainant. Further it does not implicate the appellant that he was the person who committed the offence. Mr. Ross for the respondent conceded that the medical evidence of bruising is not capable of corroborating the evidence of the complainant but he submitted that since there is no miscarriage of justice I should apply the proviso to dismiss the appeal in respect of this charge. The learned magistrate having accepted and believed the evidence of the complainant and having warned himself of the danger of convicting on her evidence without corroboration on the other three charges, he must also have had in his mind that the same consideration applied to all the charges without any distinction. It may be the case that the magistrate considered that in so far as the fourth charge is concerned, there is corroboration in addition to the testimony of the complainant which he accepted and believed and this makes this particular charge even stronger against the appellant. But he is wrong because the evidence of bruising, which Crown Counsel concedes, is not capable of corroboration.

8. I would have applied the proviso if it is open to me to do so. This power is available to the Court of Appeal under section 83 of the Criminal Procedure Ordinance, Cap. 221. However, there is no similar provision to enable a judge hearing appeals from magistrates to exercise this power under this Ordinance or under section 119 of the Magistrates Ordinance, Cap. 227. The magistrate’s direction on corroboration is, in my view, wrong and constitutes a material irregularity.

9. The next main ground of appeal is that the learned magistrate wrongly permitted cross-examination of the appellant by the prosecutor on a cautioned statement not adduced as part of the Crown case, when the voluntariness of the statement was not established nor enquired into by the court. The magistrate dealt with this aspect of the matter at p.77 of the transcript:

“During the cross-examination of the defendant the prosecution make use of the cautioned statement of the defendant. This was not part of the prosecution case and the defence objected on the following grounds “there being no noticeable differences in his evidence or that contained in the statement.” No other objection was made save by inference that it was not part of the prosecution case. I overruled the objection. The statement was properly proved and accepted by the defendant as his. The statement was exculpatory in nature and was therefore not probative of guilt, CHU Kwok-kuen v. R. [1980] HKLR 281. The cross-examination was aimed at the credit of the defendant.”

Despite what the learned magistrate said here, Mr. Mackenzie-Ross argued that the cross-examination was not confined to credit but was also aimed at establishing guilt as the questions went to prove whether the appellant was at home or not at the particular times. I do not agree. The statement was clearly used for credit and the learned magistrate made it perfectly clear and he bored this in mind throughout. He did not rely on it to prove guilt. In R. v. CHU Chi-yat alias CHU Chi-shun & Others, 1990, No.409 (Criminal), the Court of Appeal held, inter alia, that the authorities do not support the proposition that if the Crown has not seen fit to produce a statement as part of its case, such a statement cannot be used for the purpose of challenging credit: R. v. Phillipson (1990) 91 Cr. App. R. 226.

10. The second ground of appeal therefore fails.

11. In the result, I dismiss the appeal against conviction in respect of Charges 1, 2 and 3 but allow the appeal against conviction in respect of Charge 4 for reasons that I have given. The conviction of this charge is quashed and the sentence of 4 months imprisonment set aside.

SENTENCE

12. In assessing sentence, it is obvious that the learned magistrate attached some importance to the injuries which the complainant sustained on 1 June although he did not explicitly say so. With the quashing of the conviction on Charge 4, this is no longer an aggravating feature. Taking into account the appellant’s clear record and that he has been a hard working man with a family of three small children, I am prepared to temper justice with mercy to give him a chance. In the circumstances, I allow the appeal against sentence on the remaining three charges to the extent that the sentence of 4 months imprisonment is to be suspended for a period of 2 years.