HKSAR v. CHAU PAK YUEN

HCMA124/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 124 OF 2003

(ON APPEAL FROM STCC 1294 OF 2002)

---------------------------

-------------------

-----------------------

J U D G M E N T

-----------------------

1. On 3 December 2002, after a trial at Shatin Magistracy, the appellant was convicted of an offence of indecent assault and, on 30 December, he was ordered to complete 180 hours of community service. He appealed against his conviction.

2. The grounds of appeal perfected by Mr Leung of counsel who appeared for the appellant at trial were these :

"(1) The learned Magistrate was wrong to accept the evidence of the first prosecution witness [the complainant] without conducting a full or sufficient analysis of her evidence and the whole circumstances.

(2) The learned Magistrate was wrong not to consider or consider properly the Record of Interview of the appellant."

The case at trial

3. The prosecution called three witnesses, namely the complainant (PW1), her sister (PW2) and the arresting officer (PW3). The prosecution's case was that on 26 June 2002, the appellant went into PW1's room while PW1 was doing some ironing. He first touched PW1's hand, then used his leg to touch her right leg before using both of his hands to hold PW1 around the waist and touch her breast over her T-shirt. He then put his hand inside PW1's shorts and touched her buttock before pushing her down onto the bed and putting his hand into PW1's T-shirt and touching her breast. He then kissed her neck. PW1 asked him to stop and he did so before kneeling down and begging for forgiveness.

4. When the appellant went out of the premises PW1 telephoned her sister and friends for advice. After the appellant's return PW1 went back to her room until the appellant's wife arrived. There then followed a discussion and, after some time, PW1 was able to leave the appellant's home. She then made a report to the police and brought the police officer to the appellant's home where she positively identified the appellant as the person who had indecently assaulted her.

5. In his defence the appellant elected not to give evidence or to call witnesses. It is however plain, from a reading of the transcript of the cross-examination of the complainant that the defence was that the events described by the complainant had never taken place or, putting it another way, that she had fabricated her account of matters for her own advantage.

The 1st ground of appeal

6. In his submissions (both written and oral) before me, Mr Leung criticized the magistrate for being 'too brief' in his Statement of Findings and for failing to deal with a number of matters upon which he (Mr Leung) had addressed the magistrate in his very lengthy closing submissions at trial. Those matters include the manner of the complainant's departure from the appellant's home after his wife had arrived; the fact that the complainant had, over the period of time of her employment by the appellant and his wife, been in some financial difficulties which they had helped to alleviate; and the complainant's evidence about her reactions to the appellant's conduct on 26 June 2002.

7. In response to that criticism Ms Yam, for the respondent, argued that the complainant at trial was subjected to very lengthy cross-examination (which is transcribed over some 50 pages); that Mr Leung made extensive submissions during his closing address and that a magistrate is under no obligation to set out his mental processes in full or to set down each and every one of his findings at the conclusion of a trial.

8. Ms Yam went on from there to suggest that, in any event, the magistrate in this case did deal with the points (which he considered pertinent) raised by the defence in the cross-examination of the complainant (and thus with the defence case as he understood it to be) before concluding that the complainant had been telling the truth about the events of 26 June 2002.

9. In his Statement of Findings the magistrate sets out the background of the case before moving to the prosecution and the defence case at trial. Having recited the pertinent evidence adduced both in chief and in cross-examination the magistrate then turned his attention to the defence submissions as follows :

"Mr. Leung on behalf of the Defendant, in short, submitted that I should have disbelieved PW1's evidence because if an attack truly did take place the reasonable response would have been for PW1 to flee or call police as soon as possible. It was pointed out to the Court that PW1 undisputedly did neither hence I was asked to disbelieve PW1.

It was also suggested that PW1 was discredited by fact her Police Witness Statements were slightly differing as to her account of how she telephoned others to ask for advice/guidance and it was suggested PW1 was evasive, and that PW1 had motive for making false accusations. It was also suggested that the evidence was consistent with the Defence case that is to say that PW1 had a motive for making false allegation against the Defendant and that the Prosecutions case is inconsistent with facts (such as family allowing her to call sister but not the Police).

I reminded myself of the need to look at and consider all the evidence cautiously especially in a situation where an Indecent Assault is alleged by a single witness.

I considered all the evidence before me and the submissions. I remind myself of the Prosecution's burden to prove beyond a reasonable doubt each and every element of the Charges as alleged.

Having observed her demeanor and having heard her evidence, I accepted PW1's evidence entirely and did not find her to be evasive. Where there were inconsistencies, I found such to be immaterial and understandable given the circumstances of the incident assault on her frame of mind.

I found as a matter of fact:

a) that the Defendant did enter the room of PW1 at the time and location as alleged in the charge;

b) the Defendant did assault PW1 by touching her breasts and buttocks and by kissing her neck as alleged by PW1; and

c) that such assault(s) were clearly Indecent.

I found that I was satisfied beyond a reasonable doubt that incident occurred as the Prosecution alleged and I was satisfied with the requisite certainty that the Defendant did indecently assault PW1 in the manner as alleged. In circumstances, I convicted the Defendant of the charge of Indecent Assault."

10. In my judgment those findings cannot be criticized. The magistrate was plainly fully aware of the points at issue and he dealt with them succinctly as he is required to do. Indeed I venture to suggest that his Statement of Findings is a model of what is required.

11. A busy magistrate is not required to recite all of the evidence put before him in the course of a trial and nor is he required to recite each and every one of defence counsel's submissions however well founded defence counsel may consider such submissions to be. If it were otherwise a magistrate's work would grind to a standstill.

The 2nd ground of appeal

12. What Mr Leung had to say about this matter is as follows :

" The learned Magistrate made no mention of the Record of Interview of the appellant in his statement of Findings. (nor in the Verbal judgment reserved to deliver on 3rd December 2002)

There was no finding on whether the record was a mixed or exculpatory statement and, more importantly, what weight has been attached to it.

The respondent may wish to submit that the statement had not undergone cross-examination therefore could carry little or even no weight. Sometimes it is right sometime it is not. The statement was made to the police investigators, who have more time and manpower than a cross-examiner to verify the information provided by the statement maker.

The statement disclosed the information that the appellant had an operation on his knee on 18th June 2002, he was discharged from hospital on 21st June and sick leave till 29th June. He took his children to the park between 5 p.m. and 6 p.m., PW1's working visa was to expire in August 2002.

The statement was to subject to the police investigation by, say, making enquiry with the people in the park, care takers or checking with the video records at the lift or inside the flat. It did carry something with probative value.

The learned Magistrate seemed not to give any thoughts about a man after knee operation could have been so powerful to astride the waist of a working woman with his legs."

13. The Record of Interview in question is wholly exculpatory; it is nothing else. At trial it was suggested that it was adduced into evidence by the prosecution "to show his [the appellant's] immediate reaction". That cannot possibly be right as the appellant was interviewed not on 26 June but 10 days later on 6 July and - interestingly enough although this was doubtless a 'slip of the pen' of the interviewer - it refers to events on 27 June and not those on 26 June.

14. For my part I cannot understand why the prosecution adduced this record into evidence at all but, as it chose to do so, was the magistrate obliged to specifically refer to it as is suggested by Mr Leung?

15. In my judgment the answer to that question, in the particular circumstances of the case, is 'no'. It is quite plain from what he said in his Statement of Findings that he accepted the complainant's evidence that she had been indecently assaulted and it must follow, as night follows day, that he attached no weight whatsoever to a denial made by the appellant during a police interview 10 days later which denial was not made on oath or affirmation; was not subsequently repeated on oath or affirmation and was not tested in cross-examination.

16. The salient points made by Mr Leung which I have recited in paragraph 13 above are points which he made to the magistrate in his closing address at trial. The magistrate therefore was plainly aware of them and it must follow that he was unimpressed by them.

17. It was for all of these reasons that I dismissed this appeal.