THE QUEEN v. LAU KAI SING

Magistracy Appeal No. 746 of 1993

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H E A D N O T E

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WHERE CHARACTER AND AGE OF A DEFENDANT ARE RELEVANT TO CREDIBILITY AND PROPENSITY MAGISTRATES SHOULD GIVE THEMSELVERS A “BERRADA” DIRECTION, AND RECORD IN THE STATEMENT OF FINDINGS THAT THIS WAS DONE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 746 OF 1993

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J U D G M E N T

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1. The appellant was convicted after trial before Mr Michael Hill for 0  the offence of indecent assault, he now appeals against that conviction.

2. The prosecution case was that the complainant, PW1, was travelling on a CMB bus at 6:45 p.m. on the 17th May 1993. She was standing as the bus was crowded and she felt someone close behind her back. She looked around and saw that it was a young man carrying a knapsack and there was no dispute that that young man is the appellant. She felt something hard close to her and thought it was something in the knapsack. As the appellant continued to stay uncomfortably close to her, she struck him with her elbow and he then moved away a little. A couple of minutes later he again came close to her pressing against her thigh. She felt something warm and on putting back her hand with the intention to push him away, she touched his erected penis. He stepped back and she saw his penis protruding from the shorts that he was wearing. She called out she had been indecently assaulted and several passengers, including a female senior inspector of the Customs and Excise Department, PW2, gave her assistance in apprehending the appellant. He was taken out of the bus and was seen to kneel on the ground. PW2 gave evidence of her having seen him fondling with the shorts and appearing to put something into the knapsack. When the police later searched the knapsack they found a used condom which had been knotted and which contained semen. PW1 did not say in her evidence that the appellant was seen to be wearing a condom on his erected penis. Both PW1 and PW2 gave evidence that the appellant had pleaded with them to let him go as he had to sit an examination.

3. The appellant gave evidence at the trial and his explanation was that he had been swimming in Repulse Bay prior to boarding the bus, that he was suffering from a kidney ailment and from a complaint which caused pain in the scrotum and testis area. He said that this pain could be relieved by ejaculation and that on that day as he was experiencing such pain, he had masturbated in a public toilet. He had used the condom as he did not want to make a mess and also as he wished to show the semen to his doctor believing this could be related to his kidney complaint which was giving him some concern as to his general state of health.

4. In the bus he said that he had banged into PW1 twice and had stepped on her foot, she had become angry and falsely accused him of indecent assault. He had, he said, pleaded with her not to pursue the matter because he was coming up in two days’ time for an interview for a job as assistant investigator with the I.C.A.C. and that in June he had to sit some LLB examination papers.

5. Dr. Yu, a psychiatrist, gave evidence for the defence and he produced a report which confirmed, from documentary exhibits, that the appellant was suffering from a chronic inflammatory disorder of the kidneys and from varicosity of the veins within the scrotum and around the testis, complaints which cause discomfort and anxiety. Dr. Yu stated in his evidence that the pain could be somewhat relieved by ejaculation.

6. The magistrate correctly directed himself of the danger of convicting on the uncorroborated evidence of the complainant in an indecent assault case. He was, nevertheless, satisfied that PW1 had told the truth about the incident, facts which if accepted would clearly amount to an indecent assault. He accepted the evidence of PW2 and he specifically rejected the evidence of the appellant as untrue.

7. There are two grounds of appeal advanced by Mr Alderdice on behalf of the appellant. First, that the magistrate failed to direct himself on the issue of the appellant’s good character; and secondly, that the magistrate wrongly dealt with the medical evidence in that he rejected it “because it was based on what the appellant had told the doctor”. The magistrate had in evidence that the appellant was aged 25 and, from documentary exhibits, that he was to sit LLB examination papers in June and that he had scheduled an interview for a job with the I.C.A.C. as an assistant investigator. While no specific reference was made to the appellant’s clear record and previous good character it followed from the evidence before the magistrate, that character was a matter in issue.

8. When dealing with the credibility of the appellant, the magistrate made no mention of having given himself a “Berrada” direction. The importance of doing so and of recording that this step was taken was referred to R. v. Chan Wu Nam, Crim. App. No. 274 of 1992 (unreported) when Mortimer J. giving the judgment of the court had this to say:-

“There is a further matter. In evaluating the case, the applicant’s age and good character were of great importance.”...

“We preface our remarks by a reference to Section 80 of the District Court Ordinance. This does not require a District Court Judge sitting without a jury to meticulously set out all obvious matters. But in this particular case, having regard to the vital importance of credibility to the defence and the reliance placed upon it and especially having regard to the point made in the defence that the applicant may have been acting as an innocent dupe throughout, it was incumbent upon the District Judge to carefully evaluate and in these circumstances to set out the effect which the applicant’s good character and age had upon his mind. We are not to be taken as saying that it is incumbent upon a judge to give himself and to articulate what is called a ‘Berrada Direction’ in each case. Suffice it to say that in this case because of the importance of credibility, the judge should have carefully dealt with the effect of the applicant’s good character under both ‘limbs’ of Berrada - as to its effect upon the applicant’s credibility and as to the effect upon the proof of guilt. In this respect the reasons were also flawed.”

9. This matter was also considered in the case of R. v. Lai Hon Man, Crim. App. No.421 of 1992 (unreported) where Sears J. giving the judgment of the court said:-

“The second ground of appeal is that the Judge failed to give any direction on good character. The applicant led evidence that he was a person aged 21, at trial, and had a clear record. Nowhere does the Judge mention this. It is incumbent on the Judge to give the standard direction on good character. Since R. v. Berrada [1989] 91 Cr. App. R 131 it became common practice for trial judges in England to give a direction not only as to good character being relevant to credibility, where a defendant has testified or made pre-trial answers or statements, but also as to the likelihood of his having committed the offence. However, many judges omitted the second limb of the Berrada direction. In R v.  Vye & ors. [1993] 1 WLR 471 the English Court of Appeal has decided that both limbs - credibility and propensity - of the direction should be given.

It is not necessary for this Court to come to a similar decision, but it is strongly advisable for the ‘second limb’ direction to be given for persons of good character in cases where the propensity to commit a crime is obviously relevant, for example a 40 year old man charged with theft or a sexual offence.”

These judgments were followed by Keith J. in R. v. Law Chi Cheung where he said:-

“If the judge is required in his judgment that he give himself a warning of the danger of convicting without corroboration he should at the same time be required to say in his judgment that he directed himself as to the relevance to be given to an appellant’s good character.”

This is a view that I support.

10. In R. v. Yu Pui Lai, Crim. App. No.347 of 1992, it is true that Bewley J. expressed a different opinion when he said that:-

“We are satisfied a professional judge sitting without a jury is not required to do so (namely to give himself a direction as to good character).

Counsel’s main submission is that there is no evidence first that the appellant was dishonest and secondly, that she conspired with the 10-conspirator.”

It must be noted however that Chan Wu Nam was not cited to the court in Yu Pui Lai.

11. Stock J. in R. v. David Anthony Mcdade, Mag, App. No.698 of 1993, after referring to the authorities, was of the opinion that the failure to give the second limb of the Berrada Direction was not necessarily fatal to a conviction even in a sexual case. He nevertheless went on to find in that case that the failure to deal with character was fatal to the conviction. The facts in the case before Stock J. were very similar to those in the case before me and the magistrate had in that case made very firm findings on credibility just as Mr Hill did in this case.

12. In this case, in addition to the appellant’s good character, the magistrate had before him evidence that the appellant was within two days going to be interviewed for an important job with the I.C.A.C., and that in June be would be sitting examination papers for his LLB degree. These were, in my view, facts which were very relevant to a consideration of propensity and should have been dealt with accordingly. In addition the magistrate was wrong to summarily dismiss the medical evidence as irrelevant as there was independent evidence exhibited in the report of Dr. Yu to support the appellant’s claim to suffer from the two complaints that he gave evidence about. When considering the question of the appellant’s credibility, that medical evidence ought to have been dealt with. If the magistrate had recorded that before reaching his verdict he had fully considered the age and good character of the appellant as it related to credibility and propensity, and that he had fully considered the medical evidence when dealing with the appellant’s credibility, there could have been little complaint that the verdict was unsafe. Unfortunately, he did not and the failure to do so renders the conviction unsafe. It is important that magistrates remember that in cases of this nature a “Berrada” direction should be given and the fact that it was considered should be recorded in the statement of findings.

13. I must say, given the facts of this case, I would reiterate the views of Stock J. that this could well be a case where the proviso would be applied if that course was open to me, The appeal is allowed, the conviction is quashed and the sentence set aside.