THE QUEEN v. CHOI CHI MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1034 OF 1991

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BETWEEN

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J U D G M E N T

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1. On the 27th September 1991, the appellant was convicted after trial on a single charge of indecent assault on a female, contrary to s.122(1) of the Crimes Ordinance, Cap.200.

2. The particulars of the charge alleged that he on a Saturday in January 1991 at Hut 250, Ha Wo Che Village Shatin in Hong Kong, did indecently assault Lam Suet-wan, a woman.

3. The appellant is a young man of 20 years of age, who at the time of the alleged offence, was working as an Immigration Officer in the Immigration Department. The complainant was an illegal immigrant who came to Hong Kong and married a Hong Kong man bearing him 2 children. In September 1990, she had surrendered herself to the Immigration Department hoping to obtain the right to remain in Hong Kong. On a Saturday in January 1991, a man, whom the complainant identified in court as the appellant, came to her village house where she was staying, posing as an immigration Officer on official business. He attempted to get her to remove her clothes for a medical examination which he said he was entitled to carry out. By use of mild force, he committed the alleged offence by lifting her shirt and placing his hand on her breast and squeezing it twice and then leaving the premises.

4. On 8th April, a party of Immigration Officers, which included the appellant, came to her premises to investigate the matter of her application, and it was at this time that she identified the appellant.

5. The first ground of the perfected grounds of appeal against conviction is that the conviction was "against the evidence and against the weight of the evidence". Mr Egan who appears for the appellant is basing this appeal mainly on the lurking doubt principle. He points out that at the time of the offence, the team of officers in the Immigration Department dealing with the complainant's case was not that of the appellant. His team only became involved in the investigation in March 1991. It is very strange, he says, that the appellant would have returned to the scene with another group of officers on official business, if he had succeeded in committing the offence in January and got away with it. The clear unchallenged evidence, says Mr Egan, is that the appellant's team would not have had access to the file prior to March 1991 and yet the offence had been committed in January 1991. The complainant's evidence is that on a number of occassions, she visited the immigration Department on business. It is possible, says Mr Egan, that she had seen the appellant on one or more of these visits. He stresses the appellant's denial that he had ever seen her before the date she made the allegation. An identification parade was held at which she identified him. So far as her identification is concerned, Mr Egan contends the identification parade would have served no useful purpose because she had already identified him at the time when the appellant's team arrived at her place in April 1991. However, PW3 Wong Tsan-yim, who had also seen the man who visited her premises in January 1991, also identified the appellant at the identification parade. There was no particular reason for him to remember the appellant because the complainant had made no complaint to anybody at the time of the offence, and certainly not to him. Furthermore, there was evidence from PW2 (the complainant's husband) that prior to PW3 going to the identification parade, he had described the features of that person to PW3. For this reason, the identification by PW3 is suspect he says. If his evidence is rejected all the magistrate would have been left with is the evidence of the complainant. In view of the fact that there was no way in which the appellant and his team could have had access to the file, at the end of the day the appellate court must be left with a lurking doubt.

6. On this first ground, Mr Egan complains that the magistrate, during the balancing exercising, failed to take proper notice of the defence evidence. Having found he believed the victim, it followed that he had to disbelieve the appellant and his witnesses. The magistrate doesn't say it, but it is implied, says Mr Egan. Nor did the magistrate rationalize the obvious discrepancies in the prosecution case. The appellant could not have been aware of the file setting out the particulars and giving the address of the complainant prior to March 1991. The magistrate skirts around that by saying that the appellant must have found out somehow, for example, by unauthorized access. However, there was no evidence to suggest that. The magistrate was dealing with a young man of 20 years of age with a clear record with an offence which was out of character. If the complainant's story is true it would mean that the appellant having got away with the offence in January went back to the premises with the team in March and was identified. However, he had denied implicitly his guilt with shock saying "Are you crazy?"

7. Ground two is that the learned magistrate erred in law in admitting evidence of recent complaint by the complainant, to her husband, (PW2), as such complaint was not made at the first available opportunity_.or to the first available person.

8. Mr Egan argues that the evidence had been that after the indecent assault, the complainant went over to PW4 (the mother of PW3) and spoke to her but made no complaint to her about what had happened. It was only when PW2, her husband, came back later on that she said something to him.

9. Ground three is that the learned magistrate erred in law in allowing evidence of identification from (PW3) to remain on the record on the grounds that such evidence was unsafe and unsatisfactory in that PW2, prior to the identification parade taking place, described to PW3 the person allegedly involved in the indecent assault and this prior description may have materially influenced the outcome of the identification parade. Although there had been no challenge to the identification evidence being admitted at the time when the evidence was given, it came out during cross-examination that this, in fact, had happened. It is Mr Egan's argument that at that stage, the magistrate should have not allowed the evidence to remain on the record.

10. Ground four is that the learned magistrate failed to give any or any sufficient weight to the evidence of Lui Man-fai (PW5), an Immigration Officer and colleague of the appellant, when he testified that his team (including the appellant) did not receive the Immigration Department file concerning PWl until March 1991 and that his team therefore would have had no knowledge of PW1 in January 1991.

The evidence of PW5 under cross-examination was :

"Q.    The file was given to you late March or early April 1991?

A.      Yes.

Q.    Before that your team had no knowledge of this matter involving Lam Suet Wan?

A.    Right.

Q.    It would be apparent that defendant wouldn't have any information about Lam Suet Wan before March 1991?

A.    Right.

Q.    Before file was handed to you it was kept by a totally different team?

A.     Yes."

And later, "The defendant is a colleague of mine in team AS4. We have been together in that team since the end of 1990."

19. Ground five is that the learned magistrate failed to give any or any sufficient weight to the evidence for the defence and in particular the evidence of :-

(a) The alibi witness Lee Kwong-shan (DW2); and

(b) The uncontradicted evidence of the Appellant's Superior Officer, Senior Immigration Officer Lam Ping-kwong (DW3)

The evidence had been that the appellant had joined the Investigation Section of the Immigration Department on 3rd November 1990. By a process of calculation, it was able to be established that the offence was committed or was alleged to be committed on the 26th January 1991, which was a Saturday just over two weeks before the Chinese New Year. If the appellant had been able to obtain access of the file, it would have been between the 3rd November 1990 and the 26th January 1991, Mr Egan contends He refers to the evidence of Lam Ping Kwong which is as follows :-

"A file was opened when she surrendered herself to Department in September 1990. Her case file was kept by various section heads. These files were kept in locked cabinet by whoever kept them. Anyone who locks files will have the key. At defendant's rank he would not have authority to keep files or hold a key. Immigration assistants, if they want to look at a file, will have to make a request to a superior. He must have some reasons and must inform his superior. Anyone who reads the file would have his name recorded by the section head. I recently conducted a check on the file of Lam Suet Wan - after receiving the summons. According to the record defendant had not touched the file in question for official purposes until his team was assigned to deal with the case. I refer to team known as AS4. The file was only transferred to AS4 on 26th March 1991. I checked whether defendant was on duty on 26/1/91. According to record he signed in at 0845 hours and signed out at 1200 hours.

    Cross-examination

Q. Before you checked case file of Lam Suet Wan who gave it to you?

A. I didn't get file until only recently when I was asked to investigate and then I got file to check it.

Q. Know before file was transferred to AS4 on 26/3/91 which team kept file?

A. Can I start from beginning? When file was opened on 25/9/90 when Lam Suet Wan surrendered to Immigration Department and we jotted her particulars and opened file. Because she claimed 1 of her son was born in Hong Kong so we had to investigate Since there were many cases to be dealt with we had to adjourn investigation and arrange for her to be interviewed later. We had made appointment with her for her to come to immigration office on 12/12/90. After file was opened it was kept by an Immigration Officer of team HQ1. The Immigration Officer kept the file until 12/12/90 when the Immigration Officer would give file to a Senior Immigration Officer who would in turn assign a team to interview Madam Lam and her family. On 12/12 team AS5 was assigned to interview the family. After preliminary procedures had been complied with for file it was handed over to another Senior Immigration Officer on 7/1/91. This Senior Immigration Officer then assigned some officers to go outside to to investigate the case. On 6/1 the Senior immigration officer had not assigned case anyone yet but kept file as too many cases to be dealt with. He kept file until 26/3 and then assigned it to team AS4, that is team defendant attached to.

Q.    When a file is transferred from one team to another it was done by Immigration Officer himself or staff of lower rank?

A.    They would hand over the files themselves.

Re-examination

Q.    AS4 is totally different team from AS5?

A.    Yes.

Q.    They have different team heads?

A.    Yes."

20. Mr Egan therefore contends that this witness gave positive evidence which indicated that the appellant would not have had access to the file before March 1991, two months after the incident had occurred.

21. Mr Egan also stresses that in addition to the unusual features which he had already mentioned on his lurking doubt argument, it was part of the prosecution case that the culprit had handed a piece of paper to the victim upon which the words were written in Chinese characters "remove clothes" which was a vital piece of evidence but that she had claimed to have thrown it away the same day. He also points out that although there had been no challenge at the time when the evidence as to the identification parade was admitted, nevertheless the complainant herself had admitted in evidence that the actors on the parade appeared to be wearing clothing that didn't fit. For all these reasons, Mr Egan asks me to allow the appeal and set aside the conviction.

22. Mr Forlin for the respondent suggests that the lurking doubt ground permeates through all grounds of appeal and bears on identity because this clearly and simply is an identification case. In view of the length of time that the culprit was with the victim at the time of the offence, the case could not be considered a fleeting glance case and there was therefore no need for the magistrate to give himself a Turnbull direction. The meeting at which the culprit had arranged to meet the complainant was at the second bridge at Shatin KCR Station. The complainant's nephew (PW3) gave evidence to the effect that it took three minutes to go from the entrance of the flyover to the victim's home. He had been in his aunt's house (the complainant's house) for about 10 minutes and if he saw the male again, he could definitely recognise him. It could not therefore be said of either of the two witnesses who claimed to have seen the culprit at the time of the offence, that they only had a fleeting glance.

23. Mr Forlin relies upon the reasons for finding of the magistrate which were as follows :-

"1.    The principal issue in this case was, I found, credibility of witnesses.

2.    The nature of the charge was such that I warned myself of the dangers of convicting on the uncorroborated evidence of the complainant, PW1.

3.    As to the actions which comprised the indecent assault evidence for the prosecution was given solely by PW1 and there was no corroboration from any other witness.

4.    As to the crucial issue of identity of the defendant as the person who visited the home of PW1 on a Saturday in January the Crown relied on the evidence of PW1 and PW3.

5.    I found both PW1 and PW3 to be honest, reliable and convincing witnesses. PW1 gave her evidence clearly and in considerable detail notwithstanding the time lapse between the January assault and the incident being reported to the authorities on 8 April. She was able to recall in some detail the discussions and sequence of events on both days. I found the reasons why she and her husband decided not to report the incident in January 1991 to be very understandable. PW1 was in a vulnerable position with regard to the authorities because of her illegal presence in Hong Kong and she feared that a complaint might prejudice her position. While she was unhappy about the indecent assault she was not outraged and gave careful thought to the matter before deciding not to pursue it. I was left in no doubt that she was indecently assaulted on the Saturday in January in the manner described by her.

6.    On the issue of identity I found the evidence of PW1 and PW3 to be compelling. PW3 was an intelligent and solicitous young man aged 20 years. He gave his evidence in a careful and straightforward manner. The incident on the Saturday in January clearly made an impression on him at the time. I found that quite natural as it was, on the face of it, an investigation into his aunt by the Immigration Department. That he was concerned about his aunt is shown by his actions in going with her and the defendant to her home and pausing a while there before leaving with her son. Then after a little time he telephoned PW1 to ask if her husband knew about the investigation and if the defendant was still there. He asked the latter question when she came to fetch her son a little later.

The defendant was in PW3's presence on that day for a significant period of time. Initially there was the meeting and the brief discussion at the railway station and then the walk home. PW3 then stayed at least during the early part of the inquiry and even after taking the child outside still kept a watch for a short time on the defendant and PW1 who were inside.

PW3 was not called on to identity the defendant until 23 May which was some four months after he had seen the defendant on the first occasion. Nevertheless at an identity parade which the defendant conceded was properly convened PW3 positively identified the defendant in connection with the matter in January.

7.    The defence criticized such identification also on the grounds that there was a description of defendant given by PW2 to PW3 soon after 8 April. I rejected that criticism as unfounded. Nor did I accept there was any criticism validly made about the way the actors dressed on the parade. The defence conceded that the parade was properly convened and I was satisfied it was properly conducted.

8.    There was criticism of the identification of the defendant by PW1 on the grounds of the delay of between two and three months between the January and April incidents. However I was satisfied that PWl was not mistaken in her identification of the defendant. I considered that her attendance at and participation in the identification parade on 23 May was of little value. She had already identified defendant as her assailant on 8 April.

9.    The evidence of PW2 and PW4 was of limited value PW2's evidence was generally consistent with that of PW1. There were small discrepancies over certain matters which happened on 8 April with PW1 saying the defendant was not pointed out and PW2 and PW5 saying the defendant was pointed out. PW2 also said that his wife complained of having her right breast touched whereas PW1 said it was her left breast. I considered that PW2 was mistaken in his recollection. I did not consider these to be significant matters and certainly they did not affect my view of PW1's credibility. PW4's evidence was even less significant but was consistent with that of PW1.

10.    I noted a discrepancy between the evidence of PWl and PW3 relating to what was said between them when she left defendant in her home and went to fetch her son at her aunt's home. PW1 said she saw PW3 who asked PWl if anything had happened to her to which she replied no. PW3 however said in evidence that he asked PWl if the defendant had gone to which she replied yes. I could not resolve the discrepancy but considered that PW3 was probably correct and that at the relevant time PW1 was probably a little flustered over what had just transpired at her home. She did not wish to tell PW3 what had occurred between the defendant and herself and felt she could handle the matter herself. Ultimately; I found that this did not affect my view of the credibility of either PW1 or PW3.

11.    I found it necessary to clarify with PW1 following her evidence in chief and cross-examination precisely what it was that she alleged the defendant did: to her at the time of the alleged assault. Her explanation was credible and consistent with what she had already said in her evidence. There was no doubt that the actions in the circumstances which surrounded them did amount to an indecent assault.

12.    The charge alleged an indecent assault on 'a Saturday in January 1991'. PWl was unable to recall the exact date. She agreed it could have been roughly two weeks before Chinese New Year which fell on 14 February. PW3 said that he calculated the Saturday was 26 January. The defence did not submit that the date in the charge should be amended to 26 January to conform with PW3's evidence. I gave consideration to this point myself but did not think it appropriate to force the prosecution to specify a date. This was because PW1 just could not remember and also it occurred to me that PW3 could have been wrong in his calculation.

13.    The defendant who had a clear criminal record, gave evidence in which he denied seeing PW1 or PW2 prior to the visit by the team to their home on 8 April. Nor, he said, had he ever been to their home before that date. However he went on to give detailed alibi evidence directed to his movements on 26 January. His witness, DW2, supported such alibi evidence. In answer to a question from me the defendant said that his recollection of events on 26 January was derived entirely from a diary note made by DW2. DW2 said the note was only of a telephone call made to his girlfriend but he was able to remember the activities of the day for other reasons. After carefully considering this evidence I found it to be unconvincing. It appeared to me that the evidence of defendant and DW2 was rehearsed indeed defendant acknowledged he had no independent memory of such day. Ultimately I rejected such evidence as untrue.

14.    The defendant also adduced evidence through both PW5 and DW3 that he did not have access to PW1's file and therefore to her personal particulars prior to late March 1991 when his team received the file. I found that I should not speculate as to how such information came to the defendant in January or earlier but I was satisfied that by some means or other it did so. Further that it was defendant who telephoned PWl twice on the Saturday in January and accompanied her to her home where the offence occurred.

15.    My impression of the defendant in court both as to his physical and facial appearance led me to conclude that I was not surprised that both PW1 and PW3 were able to positively identify him despite the time lapse. His build is large and I found his facial features to be both distinctive and memorable.

16.    After a careful assessment of all the evidence I found I was satisfied beyond reasonable doubt that the elements of the charge had been proved and the defendant was convicted accordingly."

24. Mr Forlin argues that paragraph 6 is the crux of the case. It is clear from paragraph 8 that the magistrate was alive to the possibility of a mistaken identification. There had been no challenge to the identification parade at the time and the magistrate dealt with discrepancies in paragraph 10. In paragraph 14 of his Statement of Findings, the magistrate was clearly of the opinion that the evidence of PW5 and DW3 were inconclusive. Mr Forlin stresses the impression which the appellant had made upon the magistrate in Court being of large build and having facial features which the magistrate found both "distinctive and memorable".

25. Although, Mr Egan has stated that there is no law involved in this case. Both grounds 2 and 3 do in fact allege that the magistrate erred in law.

26. In my judgment, there is nothing in ground 2 because the conduct of PWl in not reporting the matter to her aunt but waiting until her husband came back was reasonable in the circumstances. So far as ground 3 is concerned, in my judgment, there was the evidence of identification by PW3 which was not objected to when it was tendered and there was no necessity for the magistrate to delete it from record at a later stage. If the magistrate had later come to the conclusion that it was open to serious question, he could have directed himself to ignore it. In fact, he placed some weight on the identification evidence by this witness and in my judgment, he was entitled to do so. The accuracy of the prior description was not investigated during the trial. Many persons can usually fit a description given, unless the person being described has some outstanding characteristic such as one arm missing or a hairlip or something of this sort. The important thing is that this witness had seen the culprit for a significant period of time on the material day in January.

27. The throwing away of the piece of paper upon which the Chinese characters were written instructing the victim to undness, is not as strange as Mr Egan suggests. I can see nothing odd about such a piece of paper being thrown away once the victim and her husband had decided that they were not going to make the matter any further.

28. So far as grounds 4 and 5 are concerned, the magistrate did consider the evidence of these two Immigration Officers. He did not reject their evidence, but reached the conclusion that it was not conclusive. He cannot be criticised for doing so. Furthermore, he did consider the evidence of the appellant and his alibi witness. He rejected their evidence. He was entitled to do so. I can see nothing on the record or in the Statement of Findings which indicates that the magistrate had approached this task in the way suggested by Mr Egan. Of course, it would have been quite wrong for a magistrate to have reached a conclusion on credibility by looking at the evidence of the complainant in isolation and, having on that evidence alone satisfied himself on her credibility and reliability, to have then rejected all other evidence. Evidence must be weighed in the light of the evidence as a whole. However, there is nothing on the record to indicate that the magistrate had approached his task in this way.He has in his Statement of Findings set out the prosecution case and the defence case very fully. It is difficult for an appellate court who has not seen the witnesses giving evidence or answering questions in cross-examination to hold that the magistrate has reached the wrong conclusion on credibility, unless it is patently clear from an examination of the record. The magistrate stated in paragraph 16 that he had carefully assessed all the evidence and that he was satisfied beyond reasonable doubt that the elements of the charge had been proved. It is quite clear from his Statement of Findings that he was satisfied beyond reasonable doubt that the appellant had visited the complainant at her home, pretending to be on official business, and had indecently assaulted her by pretending to carry out a medical examination, which involved the squeezing of her breast. It is not altogether surprising that the appellant should have returned to the scene in April in view of the fact that no complaint had ever been made.

29. I do not consider the conviction to be unsafe or unsatisfactory and the appeal against conviction is dismissed.

30. The appellant also appeals against sentence.

31. In his reasons for sentence, the magistrate commented :

"The most serious aspect of this case was that the defendant committed the assault while representing that he was conducting official duties as an Immigration assistant with regard to the complainant who was an illegal immigrant. Her position was a vulnerable one and this was exploited by the defendant. He would have anticipated that PW1 was unlikely to raise a complaint and initially that view was justified.

I accordingly took the view that such action by a public officer should be viewed with outrage and that to this extent a deterrent sentence was called for. Further that such sentence should be an immediate custodial one. Were the defendant aged 21 years I considered a sentence of nine months to be appropriate.

In view of the provisions of Section 109A of the Criminal Procedure Ordinance, Cap. 221, and as the defendant was 20 years of age I called for both a probation report and a detention and training centre report. The defendant was not suitable for detention centre but suitable for training centre.

I took into account the contents of the reports together with submissions of counsel as to sentence. I considered the appropriate sentence was one of detention in a training centre and the defendant was sentenced accordingly."

32. The appellant appeals against sentence upon the basis that the sentence imposed was wrong in principle in that the learned magistrate overlooked the fact that the offence with which the appellant was convicted is an "excepted offence" pursuant to the Third Schedule of the Criminal Procedure Ordinance (Cap.221) and as a consequence s.109A has no application to a person convicted of any such offence.

33. Mr Forlin for the respondent does not oppose the appeal against sentence pointing out that the Training Centre order will mean almost inevitably that the appellant would serve a longer custodial sentence than he would have done if the magistrate had sent him to prison. It is not known if the magistrate was aware that it was not mandatory to call for a report.

34. In my judgment, both counsel are right when they say that the offence in question is an "excepted office" and that s.109A of the Criminal Procedure Ordinance therefore has no application. That section provides :-

"(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate, the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

1(A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by the Third Schedule.

(2) In this section "court" includes the District Court and a magistrate."

A similar provision has been held in England to be not mandatory but merely directory. However, magistrates should comply with that direction in cases which are not excepted. That does not mean that they are precluded from calling for such information in the case of excepted offences, if they consider that such information will help them. Very often psychiatric reports are of considerable assistance in dealing with offences of indecency or of a sexual nature.

35. The calling of reports from The Commissioner of Correctional Services in this case is governed by Section 4 of the Training Centres Ordinance which provides in sub-section (1) :-

"Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, and the court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre.

(2)   ....

(3)    Before a sentence of detention is passed, the court shall consider any report or representations made by or on behalf of the Commissioner on the offender's physical and mental condition and his suitability for such sentence; and if the court is a magistrate and has not received such a report or representation, it shall after conviction remand the offender into the custody of the Commissioner for such period or periods, not exceeding 3 weeks in a case of any single period, as the court thinks necessary to enable a report or representations to be made."

36. The magistrate received satisfactory reports from both the probation officer and the Commissioner for Correctional Services. He reached the conclusion that a custodial sentence was required, and I cannot criticise him for this. It was an outrageous abuse of office against a woman who was in a vulnerable position, though the assault itself was of a comparatively minor nature. It was appropriate for the public abhorrence of such an offence to be marked by a custodial sentence.

37. However the reports indicated that the appellant was an "unsophisticated mild tempered adult brought up in an intact family with close parental supervision". His previous conduct was described as "good". There was no history of "wayward behaviour" and he has a supportive family.

38. In these circumstances, I find it hard to see why it was in the interest of the community, having regard to his character and previous conduct, and to the circumstances of the offence, that it was expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre.

39. The Commissioner for Correctional Services was not concerned with the appropriate sentence. He was only concerned with the appellant's physical and mental condition and suitability.

40. It was for the magistrate to decide, on all the facts of the case as they had been established before him, what sentence was appropriate and what was appropriate did not necessarily depend upon the suitability of the appellant for a training centre.

41. The appellant has now been in custody since the 27th September 1991 and in my view, taking this into consideration, has been punished enough.

42. In the circumstances, I allow the appeal against sentence and substitute therefor such sentence of imprisonment as will enable his immediate release.