HKSAR v. CHOW KWOK LEUNG

HCMA301/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 301 OF 2002

(On appeal from ESCC 3747 of 2001)

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J U D G M E N T

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1. The appellant in this case, appearing before Mr Candy, Principal Magistrate of the Eastern Magistrates' Court, was charged with two charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. He pleaded not guilty and was convicted after trial of indecent assault and common assault. He was sentenced initially to community service and this was later reviewed by the magistrate to a sentence of 14 days' imprisonment on Charge 1 and community service on Charge 2. By the time of that review, the appellant had already served 14 days on remand while reports were prepared and he had completed his community service order. He now appeals against conviction but not against sentence.

2. Mr Grounds, who did not appear at the trial, has presented argument in support of his appeal and Miss Chan has appeared to oppose the appeal.

3. Ng Shun Kan ( PW1), the young lady whom Mr Candy found to be the unwilling object of Mr Chow'3. s attentions, was 13 at the time of the alleged incidents, which were on 12 and 14 August 2001. She was a resident of a Small Group Home run by Mother's Choice and the appellant was the housefather of that home.

4. Her allegations very much in brief are that on the night of 12 August, PW1 was hanging clothes in the laundry and the appellant came to help her. As she was about to leave, she said, the appellant took hold of her, turned her around to face him, kissing her on the mouth and putting his tongue into her mouth. He made some comment about whether or not what he had done was appropriate behaviour and left.

5. The second allegation concerns the night of 14 August when PW1 was in bed asleep and, she said, felt someone kiss her on her face. She turned to look and saw the appellant leaving. He returned later and led her out of the bedroom. They had a short conversation in which she made it plain that she objected to his behaviour.

6. The appellant relies on four grounds of appeal as follows :

(1) The trial magistrate failed to evaluate the defence evidence in a fair, proper or safe manner, and/or reversed the burden of proof so that it became incumbent upon the appellant to prove his innocence.

(2) The trial magistrate erred in law in that he wrongly considered inadmissible opinion evidence from the appellant as to why PW1 may have made up false allegations in the case. Alternatively, the trial magistrate wrongly entered into the realm of speculation in trying to find a motive or reason for PW1 to invent her evidence when there was no proper foundation laid by either the prosecution or the defence to establish either a motive or a reason or a lack of a motive or a reason.

(3)(a) Although the trial magistrate referred to corroboration and said that he approached the case with caution, he nevertheless failed to remind himself that one of the dangers of testimony in cases concerning sexual allegations and/or children is that, per Salmon LJ in R. v. Henry and Manning (1969) 53 Cr. App. R. 150, at 153 :

".... human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. ...."

(3)(b) The fact that human experience has shown that sometimes allegations are fabricated for all sorts of reasons and sometimes for no reason at all was completely negated by the trial magistrate's approach to and emphasis upon a reason for PW1's fabrication, and in any event negated the caution the trial magistrate thought he took when he approached the evidence of PW1 and PW2.

(4) Thereby and in the all circumstances of the case the convictions recorded against the appellant are unsafe and unsatisfactory.

Ground 1

7. This ground is in four parts. The first part is developed at length under 10 separate headings, but is largely based on three passages in the Statement of Findings and a section taken from the appellant's statement to the police. The magistrate thought it relevant to consider whether PW1 had invented the allegations she made against the appellant as clearly he had to do. The appellant was told by the police what the accusation was and was asked why she would make the accusation if it were not true. He was not asked to guess or speculate, he was asked if there were reasons for a false allegation - there might, perhaps, have been an argument or discipline problem which he could have told the police about.

8. Having earlier been cautioned, he was here being given a chance to explain, to offer something which might cast doubt on her allegations. He took the chance offered and proceeded to give examples of what she had said to him, such as her wish to find a rich man so that she would not have to work, and her wish to leave the Home, but as he pointed out, he could not guess what her motive was in making allegations against him. He told the police that he had explained to her that she should see him as a father and must not regard him as her boyfriend, and that she was "a little bit upset" when he said such things. He said he thought she wanted to seduce him, that she would pout at him and address him familiarly. He was doing no more than giving the police examples of what she had said to him and how she had behaved towards him. There is nothing inadmissible in this.

9. The magistrate was not driving a coach and horses through well-established common law principles, as Mr Grounds urged. The appellant has contended that the magistrate was taking upon himself the status of an expert in looking for a motive in the appellant's statement to the police, and in trying to answer the question "why would PW1 make up or invent an allegation?". I disagree. Counsel is here, to my mind, trailing a very large red herring. The magistrate was doing no more than looking at what was in the evidence. He was doing precisely what a court should do. There was no question of his assuming any unwanted expertise. The magistrate did not speculate without evidence nor was he wrongly assessing inadmissible evidence made by others. He looked at the evidence, he considered what the appellant himself had told the police about why she would make false allegations and considered her evidence.

10. The comments he made in his Statement of Findings were based on his observation and the appreciation of the witnesses, and this is the point. Here was a magistrate watching and listening to the appellant, his witnesses and his accusers. He was in the best position, as neither counsel in this appeal nor myself are, to evaluate the witnesses appearing before him. That is what he was doing. Certainly he did not accept what the appellant said to the police about PW1's motives but he explained why - it was based on his observation of the witnesses and his appreciation of what they said. He rejected what the appellant had said and accepted PW1's evidence as he was entitled so to do. He concluded that he could see no reason "that is obvious" why she would lie. He was not, as alleged, speculating, wrongly acting as an expert or acting on "inadmissible opinion evidence".

11. The second part of this ground attacks the magistrate's treatment of DW2's evidence. The magistrate made the point that as DW2 was the appellant's wife, he would not expect her to be an independent witness. He went on to explain why he did not believe her evidence. He did not, as is apparently suggested, reject her evidence simply because she was the appellant's wife. He thought she might have reasons to give the evidence she did and it would have been remarkable if he did not bear that possibility in mind. Some of her evidence was against her interest, and some was consistent with proved matters. Counsel for the appellant suggests that the magistrate ignored such matters in his haste to disbelieve her, and he is critical of the magistrate not dealing with all the details of her evidence in his Statement of Findings. Whilst the magistrate should illustrate the salient points of the case in a manner appropriate to the circumstances and demonstrate that the evidence had been evaluated, he needed not spell out every point in his statement (R. v. Lam Kam Ling, Cr. App. R.607 of 1979 and R. v. Sheik Abdul Rahman Bux and Others [1989] 1 HKLR 1).

12. The third part of Ground 1 related to the evidence of DW3. The appellant complains that the magistrate failed to properly evaluate the evidence of this witness and to sufficiently explain why he had rejected it. The appellant, for example, points to the Statement of Findings where the magistrate said of DW3 :

"Mr Chu had no reason whatever to recall either of these dates until shortly before the trial when he was asked by Madam Lau to recall what had happened. ...."

The appellant says that this ignores DW3's evidence that he had bought his own computer two days after the incident complained of, that he produced his receipts and he had to prepare reports on the appellant's computer for two girls who left his home on 15 August. These facts clearly fix the date in his mind. This misses the point. The magistrate's point was not that DW3 had got the dates wrong. For the reasons he gave he might well have got them right. The magistrate's point, clearly made, was that he did not accept that DW3 had reason to recall the details of what happened in the flat or the times he was in there on those dates.

13. As I have indicated, the magistrate did not have to reveal his thought processes in detail. The evidence of DW3 was straightforward, and the magistrate explained how he regarded it and the reason why. I have no doubt he considered it fully and properly.

14. The last part of this ground restates what counsel has said earlier and essentially suggests that by not properly evaluating the evidence of the defence witnesses, the magistrate reversed the burden of proof. In support of his contention he refers to the magistrate's comment :

"The credibility of all the witnesses, particularly PW1 and PW2, was a crucial factor in the case. ....",

and suggests that this reflects the magistrate's "thought processes and the burden cast upon the Defence to disprove the allegations". In reality, of course, the magistrate did no such thing. He used the word "particularly" in relation to the evidence of PW1 and PW2 to emphasize that they in particular had to be credible. If anything, the magistrate was simply setting a higher standard for the prosecution witnesses and his use of the word demonstrates how sensible he was of the need to take care with their evidence. The first ground fails.

Ground 2

15. This ground effectively repeats much of what was said in Ground 1. It is, likewise, dismissed.

Ground 3

16. The need for corroboration of the evidence of children and in sexual cases is no longer required as a matter of law and attempts to resurrect it as being necessary as a matter of course are doomed to failure (R. v. Makanjuola & Easton [1995] 1 WLR 1348). There may well be cases where care is needed with the evidence of children or in cases with sexual allegations, but each case will very much depend its own facts. One must not forget of course that an experienced magistrate will most certainly be aware of this. Indeed, Mr Candy said as much at page 21, letter T of the appeal bundle :

"I am mindful of the fact generally speaking that in this type of case, corroboration was formerly required by law. It is not now but I have nevertheless approached the evidence of PW1 and PW2 with caution. ...."

17. The appellant suggests that his approach to the case generally demonstrated that he had not considered this aspect, despite his clearly expressed comment to the contrary. I disagree. The appellant in this area selects one aspect, that allegations are sometimes fabricated for all sorts of reasons and sometimes for no reason at all, and contends that the magistrate did not specifically warn himself of this danger. Certainly, he did not specifically refer to it in his Statement of Findings, but he may safety be assumed to be well aware of what is, after all, a fairly basic point. There is nothing in the appellant's contention repeated here that the magistrate was sidetracked by a quest to discover why PW1 might want to make her evidence up. This ground is dismissed.

Ground 4

18. This is a catch all and adds nothing to what has been said earlier.

19. This appellant was tried by an experienced magistrate who was alive to the issues and properly considered all the evidence before him. He was perfectly justified in arriving at the decisions he did.

20. This appeal is dismissed.