HKSAR v. CHAN CHIN CHING

[English Translation – 英譯本]

HCMA 1/2022

[2023] HKCFI 1749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 1 OF 2022

(ON APPEAL FROM WKCC 684 OF 2021)

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JUDGMENT

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A.  Introduction

1.  The appellant was charged with one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. The appellant pleaded not guilty to the charge and was tried before Deputy Magistrate Kuan Bak-on, Franco (“the magistrate”) at West Kowloon Magistracy. He was convicted after trial and sentenced to 13 months’ imprisonment. The appellant was aggrieved by the conviction and sentence and sought to appeal against both.

B.  Facts of the Case

B. 1.  Prosecution case

2.  In brief, it was the prosecution case that the appellant messaged X (an eighteen-year-old female student who was preparing to study in Australia) privately through Instagram, a social media platform (“the social media platform”). The appellant hoped that X would be his model for a private photoshoot. X had expressed during the negotiation that she would not go to a hotel fora photoshoot. The appellant messaged X again privately later on, telling her that they were alumni of the same school. X negotiated with the appellant further. After negotiation, X agreed to take part in a photoshoot by the appellant for $500 per hour in a room called “Dark Mystery” at Kira Kira Studio 2, a studio in Kwai Chung. During the photoshoot, X changed three sets of costumes in total. The appellant had put blindfold and handcuffs on X when she was in the first and third sets of costumes for the photoshoot. During the time, the appellant had indecently assaulted X multiple times by “squeezing” X’s breasts, French-kissing X, and “rubbing” X’s pubic area with his hand.

3.  After the incident, X immediately complained to her boyfriend (“PW2”) on WhatsApp. After that, the appellant deleted all the photographs that he had taken of X.

4.  A few hours after the incident, X and PW2 met each other. X cried when travelling with PW2. They reached the seafront and then X gave an account of what happened to PW2.

5.  Having thought it over, X eventually made a report to the police. The appellant gave a statement under caution upon arrest. He admitted frankly that he had a photoshoot with X in the “Dark Mystery” room, but he denied the allegation made by X against him. He said that he had no physical contact with X.

B.2 .  Defence case

6.  The appellant exercised his right not to testify. Following the line of cross-examination of the witness X pursued by the appellant, the appellant relied on what he said under caution that he did not have any physical contact with X as his defence. Moreover, the appellant indicated that even if there was physical contact, X consented to it.

7.  The appellant also called the appellant’s fiancée as his character witness. According to the evidence provided by the appellant’s fiancée, the appellant had good academic performance and proper social behaviours. However, prior to the incident, she did not know that the appellant had arranged any photoshoot with a model.

C.  Grounds of Appeal (Conviction)

8.  On behalf of the appellant, Mr S. K. Khattak, together with Ms Wendy Chui Ling Lau and Mr Anthony Lai, put forward a total of four grounds of appeal:

(1)  The appellant submitted that the magistrate had erred in dealing with the appellant’s record of interview, and in failing to consider that the credibility of the appellant was higher;

(2)  The appellant submitted that the magistrate had erred in dealing with the “evidence of distress” of PW1;

(3)  The magistrate erred in dealing with the issue of “consent”; and

(4)  The magistrate erred in accepting that PW1 was an honest and reliable witness.

D.  Ground of Appeal ( 1 )

9.  I shall first deal with ground of appeal (1).

10.  The appellant referred to a well-established legal principle that if an out-of-court statement of the defendant contained both incriminating and exculpatory elements (a “mixed statement”), both parts were taken as evidence of the truth of its contents. See R v Sharp[1]. The appellant cited HKSAR v Brook Edward Joshua[2] to support the argument that although a judge of fact was entitled to attach less weight to the exculpatory parts, it absolutely did not mean that no weight could be attached to them automatically.

11.  The appellant emphasized that the appellant’s video-recorded interview was a mixed statement. The incriminating parts are set out as follows:

(a)  When the appellant was arrested, he responded, “I just went to take photos; (I) did not indecently assault anyone.” This was tantamount to not disputing his identity as the person involved.[3]

(b)  The appellant later admitted that he liked spending time in taking portrait photography matched with different themes of costumes.[4]

(c)  The appellant admitted that he had looked for models through Instagram to go to studios or hotels for photoshoots.[5] (This was exactly the allegation made by X that she was invited by the appellant through Instagram to go to these places for a photoshoot.)

(d)  The appellant admitted that Roy Chan was the name he used on Facebook, while Will Chen was the one used when making appointments with studios.[6]

(e)  The appellant provided the names of the Instagram accounts that he used to arrange with models for photoshoots, including the names of the new and old accounts.[7]

(f)  The appellant admitted that the name and mobile phone number linked to the PAYME application belonged to him.[8]

(g)  The appellant had arranged with X for a photoshoot. He even gave a detailed account of the contents of the conversation between X and him, including the fact that the original plan was to go to a hotel for a photoshoot but the venue was changed to a studio upon X’s disagreement; that X was found to be the appellant’s junior female schoolmate, and the photographs sent to him by X.[9]

(h)  The appellant admitted that he paid HK$520 to the studio by PAYME for renting the material location on 1 February 2021.[10]

(i)  The appellant admitted that X and he had gone through the procedures for entering the studio, including taking their temperature.[11]

(j)  The appellant admitted that afterwards X got changed and photographs were taken, for example, in the circumstances where X struck poses on an X-shaped frame in handcuffs, during which the handcuffs fell off, and when she wore a blindfold, and so on.[12]

(k)  The appellant admitted having asked X to remove the nipple covers, since they did not work well for the photoshoot.[13]

(l)  The appellant admitted having brought a set of sexy costumes for X to put on.[14]

(m)  The appellant admitted having taken photographs with X dressing in three sets of costumes.[15]

(n)  The appellant admitted that X later asked the appellant to delete those nip-slip photographs, and the appellant did so. He also alleged that X wanted to pay the appellant to buy his memory card, but the appellant did not want to sell it.

12.  For the exculpatory parts, the appellant categorically denied the allegation of indecent assault. He pointed out that X had “framed” him and suggested a possible reason for the false accusation: the parties had a dispute over buying the appellant’s memory card. PW2 even talked to the appellant over the phone in a ferocious tone and asked, “Wanna stir it up?” However, the appellant persistently refused as the memory card contained the photographs of his other friends.[16]

13.  The appellant emphasized that the incident happened on 1 February 2021 in the studio, but the appellant was arrested outside his residence on 10 February 2021. What the appellant said in the record of interview supported the prosecution allegation and was highly consistent with the prosecution case: it could be seen from the name of his own Instagram account, the conversation with X, the arrangement for the photoshoot[17], and the circumstances in which they entered into the studio; X changed her outfit; being in front of the X-shaped frame and even being handcuffed; the handcuffs were too loose and thus fell off[18]; she wore a blindfold when photographs were taken; and they left before the photographs were deleted; and so on. Further, X’s allegation was exactly that she was indecently assaulted when she was on the X-shaped frame, in handcuffs and wearing a blindfold. In view of the scenarios of the arrest and the interview of the appellant, the appellant would not need , but he took the initiative, to admit the particulars that fully support the prosecution’s case. Hence, the statement in the present case did not belong to the type being discussed in Brook Edward Joshua:

“where admissions are such as the defendant is bound to make and which do not go to the central issue, may lead the court to the conclusion that the statement is wholly exculpatory”

Instead, it was truly a mixed statement.

14.  The record of interview of the appellant was dealt with by the magistrate as follows[19]:

“I have considered the defendant’s cautioned statement. The defendant did not give evidence in court. As to the mixed confession, I give full weight to the confession parts. However, I do not accept the exculpatory parts. I remind myself of the legal principles in R v Sharp.”

15.  The appellant submitted that the magistrate gave full weight to the confession and disregarded the exculpatory parts without analysing any lack of credibility at all in the record of interview merely because the appellant did not give evidence. Although the magistrate did remind himself of the principles in R v Sharp, the authorities (including R v Sharp), in fact, did not support such a draconian approach adopted by the magistrate.

16.  Furthermore, the magistrate erred in not giving the credibility limb of the direction on good character. The magistrate said[20]:

“47. The defendant has no previous conviction in Hong Kong. I give myself the corresponding direction on good character; that is, the defendant has a lower criminal propensity; the credibility of his testimony will be higher if he gives evidence. The defendant did not give evidence in court, which was his right. I shall not draw any adverse inferences against him for not giving evidence.”

17.  The appellant suggested that, despite saying “the credibility of his testimony is higher if he gives evidence”, the magistrate immediately went on to state, “the defendant did not give evidence in court”. Although the appellant did not give evidence in court, he did have a record of interview. The magistrate did not consider the higher chance of telling the truth by the appellant in the record of interview. On the contrary, the magistrate emphasized once again that the appellant did not give evidence in court[21]. The way the magistrate dealt with the present case did not satisfy the conditions as set out in the authorities.

18.  The appellant had no previous conviction. The magistrate accepted the comments on the appellant by the first defence witness (DW1), the fiancée of the appellant. DW1 had been acquainted with the appellant for 9 years[22]. They became lovers a month after they started their study in university[23]. They studied accounting together[24]. The appellant had enthusiasm in study.[25] He was awarded scholarship for his outstanding academic performance[26] and he graduated with first-class honours. Apart from indicating that the appellant got along normally with the opposite gender without receiving any complaint[27], DW1 also mentioned that the appellant chose to be engaged in auditing, a job with relatively better prospects, to requite his mother[28] (as his parents divorced when he was young). He always aimed to become a member in the audit industry. He wished to graduate with a first-class honours degree and join one of the “Big Four” accounting firms. All these goals had been realized. He treasured his prospects and set a high standard for himself when he was a student. He always worked overtime until the small hours but he still insisted on realizing his wish of joining the Big Four.[29] The appellant became a certified public accountant in July 2020.[30] Besides, the appellant got a recommendation letter from his former employer who was also in the audit industry.[31]

19.  Nevertheless, after accepting the evidence of DW1, the magistrate said[32]:

“56. I accept that the defendant is self-motivated in his study, who gets along normally with the opposite gender, shows respect and keeps a normal social distance within the sight and knowledge of the defence witness. Hence, I give corresponding favourable considerations to the character of the defendant.”

20.  It was submitted by the appellant that the magistrate was obviously focusing only on the propensity to commit crimes without considering credibility. The appellant, being a qualified accountant and recommended by his employer, had successfully joined a Big Four accounting firm. The appellant cared about his prospects. It was by common sense that accountants or people in the audit industry had to ensure high integrity. The court should have already given favourable consideration to the appellant’s credibility in view of his clear record, not to mention his positive and good character. Thus, the magistrate should have given the credibility direction in considering the contents of the record of interview.

21.  The appellant cited HKSAR v Hsu Ming Mei,[33] in which the trial judge only gave herself the direction in respect of the defendant’s lower propensity to commit crimes, but not the direction in respect of the higher credibility of the defendant. The defendant did not give evidence but only relied on his exculpatory video-recorded interview. The Court of Appeal held that this was a material irregularity.

22.  The appellant submitted that the analysis of the present case was similar to that of Hsu Ming Mei, where the defence of the appellant was encapsulated wholly within the mixed statement. The magistrate accepted the appellant was of good character, and even explicitly accepted the evidence of the character witness. Nonetheless, the magistrate merely gave himself the propensity direction, but not the credibility direction in considering the record of interview of the appellant. This was a material irregularity.

23.  The appellant also pointed out the differences between the present case and Hsu Ming Mei. The Court of Appeal regarded that the trial judge had carefully considered the exculpatory statement of the defendant and hence applied the proviso to dismiss the appeal.[34] In the present case, the appellant did not see any analysis of the appellant’s exculpatory parts by the magistrate at all. Thus, substantial injustice had been caused to the appellant.

24.  The appellant also cited HKSAR v Tsang Suk Lan Winnie (曾淑蘭) and another[35] to support its argument.

25.  The appellant submitted that the above two material irregularities had caused substantial injustice to the appellant as the present case fell within the type of “one-on-one” allegation, which was essentially unsupported by any independent source of corroborative evidence other than X’s testimony (the recent complaint did not amount to corroboration). Therefore, the credibility of the appellant in the record of interview was of crucial importance.

E.   Respondent’s response

26.  Ms Lam Hiu-man, Human, Senior Public Prosecutor representing the respondent, disagreed that the magistrate did not give himself the Berrada “two-limb direction” in respect of the appellant’s good character. The relevant disputed paragraphs of the “Reasons for Verdict and Reasons for Sentence” were as follows:

“47. The defendant has no previous conviction in Hong Kong. I give myself the corresponding direction on good character; that is, the defendant has a lower criminal propensity; the credibility of his testimony will be higher if he gives evidence. The defendant did not give evidence in court, which was his right. I shall not draw any adverse inferences against him for not giving evidence.” [36]

27.  The transcript of the corresponding oral verdict of the above paragraph was as follows:

“The defendant has no previous conviction in Hong Kong. I give myself the corresponding direction on good character. That is, the defendant has a lower criminal propensity; if [he] gives evidence, the credibility of the testimony will be higher.

The defendant did not give evidence in court, which was his right. I shall not draw any adverse inferences against him for not giving evidence. “[37]

28.  The respondent submitted that paragraphs 46 to 48[38] of the magistrate’s Reasons for Verdict and Reasons for Sentence were actually the standard Berrada direction, a “two-limb direction” commonly used in magistracy cases.

29.  Furthermore, a magistrate is a judge by profession. The Court of Appeal would assume that a professional judge would possess the requisite legal knowledge and apply the appropriate burden and standard of proof in normal circumstances without the need to spell out the same. See HKSAR v Kwok Kau Kan[39]. In other words, if it was evident that a defendant had a good character, the magistrate did not even need to mention explicitly that he had considered the Berrada “two-limb direction” to state that the defendant had higher credibility and lower criminal propensity[40].

30.  The present case was decisively different from Hsu Ming Mei and Tsang Suk Lan Winnie relied upon by the appellant. In these two appeals, the trial magistrates only gave themselves a “one-limb direction” in respect of the defendant’s good character. As a result, the magistrates only directed themselves on the defendants’ criminal propensity and did not mention the defendants’ credibility at all.

31.  In the present case, when the magistrate directed himself on the appellant’s good character, he mentioned that he had given himself the corresponding direction on good character, namely the “two-limb direction” regarding the criminal propensity and the credibility of the testimony (if any). Therefore, the present case should not be compared at all with Hsu Ming Mei and Tsang Suk Lan Winnie, which are relied upon by the appellant.

32.  The respondent pointed out that the appellant complained against the magistrate for not stating again or reiterating, when analysing the appellant’s record of interview, that the appellant had a higher chance of telling the truth. The respondent submitted that the appellant’s complaint was unrealistic and nit-picking. The respondent cited HKSAR v Ye Chaojun (叶朝君)[41] and HKSAR v Ng Ho Nam (吳浩楠)[42]in support of its argument.

33.  The respondent pointed out that in the present case the magistrate absolutely did not “automatically” give no weight[43] to the exculpatory parts in the appellant’s cautioned record of interview as alleged by the appellant. Also, it was not true that “the appellant did not see any analysis of the appellant’s exculpatory parts by the magistrate at all”. In fact, the magistrate stated in paragraphs 76 to 77 of his Reasons for Verdict and Reasons for Sentence :

“76. I have considered the defendant’s cautioned statement. The defendant did not give evidence in court. As to the mixed confession, I give full weight to the confession parts. However, I do not accept the exculpatory parts. I remind myself of the legal principles in R v Sharp.

77. I do not accept the defence’s allegation that PW1 falsely accused the defendant because of the failed attempt to charge extra money for some photographs of wardrobe malfunction taken by the defendant. I find PW1 a credible and reliable witness and give full weight to her testimony. “

34.  The respondent stated that the magistrate had obviously fully grasped the line of defence as raised by the appellant in the cautioned record of interview and had reminded himself of the relevant legal principles too. The respondent submitted that the versions given by X and the appellant in the present case were poles apart with each insisting on each own truth, and it was a case where a judge of fact was left with a direct choice between the evidence of A and B, as pointed out in some previous cases.

35.  The respondent referred to HKSAR v Kang, Sohan Singh[44], R v Fok Tin Yau[45]and HKSAR v Lee Hon Yan Simon (李瀚恩)[46], to illustrate that it was not necessary for the magistrate to write down his mental process of reaching the verdict and sentence in meticulous detail in his “Reasons for Verdict and Reasons for Sentence”. In the present case, when he said that he accepted X’s version, he was indirectly stating the reason for not accepting the appellant’s version.

36.  The respondent emphasized that the appellant’s character witness (that is, the appellant’s then fiancée Ms Chu), prior to the present case, did not know about the photoshoot for which the appellant would “arrange with someone out there”[47] and the course of the photoshoot. Ms Chu’s evidence could, at the most, show that the appellant was a self-motivated person, who got along normally with the opposite gender within Ms Chu’s sight and knowledge.

37.  The respondent submitted that the magistrate had correctly considered Ms Chu’s evidence and given the appropriate favourable considerations to the appellant’s character[48] and that he could not be faulted with the way he dealt with the matter.

F.  Appellant’s supplementary submissions

38.  The appellant alleged that the respondent focused only on the following words by the magistrate: “the credibility of his testimony is higher if he gives evidence”, and yet ignored the next sentence he said, “The defendant did not give evidence in court”. Further, it was worrying when there was nothing to indicate that the so-called “gives evidence” and “testimony” mentioned by the magistrate included his record of interview. Using common sense to understand the magistrate in context as a whole, “if he gives evidence” should mean “if he gives evidence in court”. Otherwise, he would not have said, “the defendant did not give evidence in court” in the next sentence. Moreover, when the magistrate considered the evidence on good character given by Ms Chu for the appellant, he only mentioned that the appellant had a lower criminal propensity and did not mention credibility. This was yet another point to prove that the magistrate did not give favourable considerations to credibility when considering the record of interview.

39.  The appellant pointed out that there were no key differences between the present case and the cases of Hsu Ming Mei and Tsang Suk Lan Winnie. In the present case and those two cases, the trial judges only directed themselves on criminal propensity without mentioning credibility explicitly. All these three cases were heard by professional judges. The appellate courts in both Hsu and Tsang allowed the appeal. As Judge C P Pang said in Tsang Suk Lan Winnie, paragraph 36: “The problem is that the magistrate did direct himself on the appellant’s lower criminal propensity, yet at the same time did not expressly say that he also had to consider the higher credibility of the appellant’s evidence. This gives an impression that the magistrate might have ignored this consideration which is favourable to the appellant.” The appellant contended that the magistrate in the present case also gave the same impression that he might have ignored the credibility direction when considering the record of interview.

40.  Overall, the appellant complained that it was not seen in either the oral verdict or the statement of findings that the magistrate expressly and straightforwardly directed himself that the appellant’s record of interview had a higher credibility. On the contrary, the overall impression given was that credibility would only be considered if the appellant had given evidence. However, the appellant did not give evidence in court. It remained unknown and was worrying as to whether the record of the interview was regarded as “evidence being given”.

41.  The appellant’s record of interview was like the testimony of a witness. The magistrate also had to give sufficient reasons to analyse why the exculpatory parts of the record of the interview were not accepted. Was it due to the inherent improbability? Or was it due to the contradiction? Or was it due to the inconsistency with the objective evidence? In the present case, the appellant did not see at all that the magistrate had made any substantive analysis of the contents of the appellant’s extremely detailed record of interview.

42.  The appellant had serious reservations about the respondent’s suggestion that the magistrate was only required to make a choice between the prosecution version and the defence version. It was a well-established legal principle in criminal trials that the judge was not to make a choice between the two, but to acquit the defendant if the defence version might be true (see Jim Fai v HKSAR[49]).

43.  The magistrate was entitled to, on the one hand, form the view that the prosecution’s evidence was apparently credible, but on the other hand, be unable to rule out the possibility that the defence’s evidence, which contradicted that of the prosecution, might also be true. In such a case, the defendant should still be acquitted. Therefore, the appellant could not agree with such a simplified conclusion that, when the magistrate found that X was honest and reliable, then naturally the defence case was inevitably bound to be rejected. On the contrary, the magistrate should also analyse the defence case independently to see whether there was any inherent probability and contradiction, and whether it was against the undisputed evidence and so on. The magistrate should give reasonable explanations for not accepting the exculpatory parts in the record of the interview.

G.  Consideration by the Court

44.  The magistrate gave himself the following direction:

“47. The defendant has no previous conviction in Hong Kong. I give myself the corresponding direction on good character; that is, the defendant has a lower criminal propensity; the credibility of his testimony will be higher if he gives evidence. The defendant did not give evidence in court, which was his right. I shall not draw any adverse inferences against him for not giving evidence.”

45.  Upon consideration, I agree with the appellant that the magistrate did not appear to have considered the appellant’s good character that would tend to enhance the credibility of what he had said in the record of interview. It appears that the magistrate merely emphasized the fact that the appellant did not give evidence in court. However, the appellant had given an explanation under caution. In considering the credibility of what the appellant said, the magistrate had to give favourable consideration to the appellant because of his good character.

46.  In relation to good character, I consider that the magistrate should have given himself the following direction:

“Good character cannot by itself provide a defence to a criminal charge, but it should be taken into account as evidence in the defendant’s favour.

In the first place, although the defendant exercised his right not to give evidence, he did give an explanation to the police in the video-recorded interview. In considering the explanation given by the defendant and the weight to be attached to it, it should be borne in mind that the explanation was given by a person of good character. This should be taken into account in deciding whether or not the explanation was credible.

In the second place, the defendant’s good character may mean that he is less likely than otherwise to have committed the offence in this case.”

47.  As pointed out by the appellant, the appellant did not simply make a one-sided bare denial, but he also presented in his video-recorded interview a number of scenarios consistent with what X said.

48.  I have reservations about the respondent’s suggestion that the magistrate’s acceptance of X’s evidence was tantamount to his rejection of the appellant’s version when “choosing between the two”. As submitted by the appellant, the duty of the magistrate was not to make a choice between the prosecution version and the defence version. Instead, if the defence version was or might be true, the prosecution would have failed to prove its case.

49.  I understand that it was not necessary for the magistrate to give a full account of what he had gone through in his mind, but I am of the view that, on appeal, I have to consider whether the magistrate has erred in law and whether he has taken into account the crucial issues in the case.

50.  This case involves a “one-on-one” situation in which the credibility of what the appellant said in the video-recorded interview is very crucial and significant. It is true that the appellant did not say so under oath and he has not been cross-examined. However, it is improper that the magistrate appeared not to have considered the higher credibility of what the appellant said. Such omission is a material irregularity, which renders the conviction unsafe and unsatisfactory.

51.  This ground of appeal is established.

H.  Other grounds of appeal

52.  Since I have found that ground of appeal (1) is established and that the conviction is unsafe and unsatisfactory, I do not consider it necessary to deal with other grounds of appeal (although the appellant has quoted extensively from the magistrate’s Reasons for Verdict and Reasons for Sentence and the trial transcripts in support of his contention).

I.  Conclusion on the appeal against conviction

53.  I allow the appellant’s appeal against conviction.

J.  Appeal against sentence

54.  Similarly, as I have found the conviction unsafe and unsatisfactory and have allowed the appeal against conviction, I need not deal with the appeal against sentence.

K.  Conclusion

55.  I allow the appellant’s appeal against conviction, with the conviction quashed and sentence set aside.

Translated by the Court Language Section of the Judiciary and vetted by Ms Jenny Chung, Solicitor.