HKSAR v. LEUNG TSZ WAI, STEPHEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 44 OF 1998

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J U D G M E N T

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The appeal

1. The Appellant was convicted of indecent assault and was fined $3,000 and ordered to pay compensation of $1,000 to the victim. He now appeals against the conviction.

Facts

2. Very briefly the facts are these : On 28th October 1997, PW1, the victim, was at the MTR station in Admiralty at 6.40 pm. She was queuing up to get on to a train. When a train arrived and some passengers had got off, she decided to take the next one and she walked along the platform to the front. Then she felt someone next to her squeezed her bottom. She turned and saw a person's hand "was a bit off it". She then turned and used her right hand to grab the left shoulder of that person who turned out to be the Appellant. The Appellant turned around and faced her. She asked "What have you done. Why have you used your hand to squeeze me once". The Appellant was saying something but she was not paying attention to what he said as the place was also very noisy. The Appellant moved his left hand and the victim thought that he was escaping. She used her left hand to get hold of the Appellant's left wrist. She shouted indecent assault. The staff of the MTR came and took the parties away and reported the matter to the Police.

The Appellant's case

3. The Appellant did not give evidence. He did not have any previous conviction. The Appellant's case that was put to the victim in cross-examination was that the Appellant was getting off the train, he was carrying a rucksack, the victim grabbed hold of the rucksack and questioned him as to what he had done. The Appellant replied "what's up". Then a platform assistant of the MTR came and the victim told the assistant that the Appellant had indecently assaulted her. The Appellant immediately denied and scolded the victim for incorrectly accusing him of indecently assaulting her. He denied that he had tried to escape.

The complaint

4. This is one of those cases in which the decision turns on the Court's assessment of the credibility of the victim. If after evaluating her evidence, including any of the discrepancies in her evidence, the Court nonetheless came to the view that she was an honest and reliable witness and was telling the truth, an appeal court would be unlikely to disturb such a finding of fact which, afterall, is the task of the trial judge. But the complaint in this case is that there was a material irregularity in the course of the trial in that the Magistrate repeatedly interrupted the defence Counsel during the cross-examination of the victim by either stopping the questioning of Counsel or answering Counsel's questions. The Appellant complained that the intervention prevented Counsel from exploring the discrepancies and inconsistencies of the evidence of the victim which were highly relevant to the question of honesty or reliability of the victim. In other words the Magistrate had descended into the arena.

5. In the case of R. v. Wu Chi Wai, Cri. App. No. 230 of 1996, Bokhary J.A. had this to say :

"... The expression is useful one. For the word 'descended' serves as a reminder that there is much, even of a highly interventional nature sometimes, which a trial judge may legitimately do from his proper place above the arena. The thing is for him to remain there."

6. Recently the Court of Appeal in HKSAR v. Mohammad Jahangir and Others Cri. App. No. 35 of 1997, reviewed the authorities in this area and adopted the words of Simon Brown L.J. in R. v. Saville (unreported) Cri. App. 418 1/W2/91 in which the Judge said :

"If the presiding judge perceives the risk of a case going off on a wholly wrong basis, whether because of some legal technicality which has been overlooked, or because of some lacuna in the evidence, it is not incumbent on him to grit his teeth, remain silent and watch justice miscarry - for it is no less a miscarriage of justice when an accused person escapes conviction through inefficiency or carelessness on the part of the Crown, than when he is convicted as a result of a comparable error on the part of the defence. Rather it is the duty of the judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved."

Excessive intervention

7. In the present case the Appellant's complaint is, in my view, regrettably justified. Of the many complaints of interruption by the Magistrate, the part that is relevant to this appeal is during the cross-examination of the victim of her previous statement she made to the Police. What defence Counsel did in cross-examination was to put to the victim, her written statement she had given to the Police about the accident. The statement was not translated to English. I have to interpose and observe that if lawyers wishing to put in written statement in a hearing before a non-Chinese speaking judge, they must prepare the translation so that the judge could follow the cross-examination. Turning back to this case, Counsel put to the victim that in her written statement, she stated that she saw the Appellant's left hand leaving her left buttock and she got hold of the Appellant's left hand. It was not mentioned in the statement that she grabbed hold of the Appellant's shoulder. There was no reference in the statement that she thought that the Appellant wanted to escape and she therefore grabbed hold of his hand.

8. It is apparent from page 13 onwards of the appeals bundle that the Magistrate had repeatedly interrupted the cross-examination on numerous occasions. While some of the questions were meant to assist, the Magistrate had commented on the evidence including that the matter that was being put to the victim was not inconsistent with her evidence. The following questions and answers appeared on pp. 13 and 14 of the transcript :

"COURT : Yes, she said all this. What is it you want to put in cross-examination?

MR CHUNG : Yes.

Q. Did you give a statement to the police?

A. Yes.

Q. Have you read it this morning?

A. Yes.

Q. Did you say to the police that you saw the defendant's left hand and you get hold of the left hand?

A. (No audible reply)

Q. Actually, you say you saw the defendant's left hand leaving your left buttock.

COURT : That's what she said in evidence also.

MR CHUNG : I beg your pardon, sir.

COURT : That's precisely what she said in evidence, so it is not an inconsistent statement.

MR CHUNG : No, she says the first thing she does is to get hold of the defendant's left shoulder, not the left hand.

COURT : Yes, but she also said that when she turned she saw his hand 'a bit off it', she said.

MR CHUNG : Yes, but she never said she got hold of the left hand of the defendant. It was until later when she worried that the defendant may try to escape, so she catch the defendant's hand.

COURT : Yes.

MR CHUNG : And that's not the version she told police.

COURT : Now, what she said in evidence was that after she'd spoken to him he said something, she didn't know what it was but it was noisy. She said, 'At that stage, it should be that he was facing me. His left hand was moving a bit. I thought he'd escape. I used my left hand to hold his left wrist, and then shouted, "indecent assault" '.

MR CHUNG : And not as soon as she turned back, or turned.

COURT : Well, you've only put to her that she told the police she got hold of the defendant's left hand, that's all you've put to her. That is not inconsistent with her evidence.

MR CHUNG: Now I'll put it in another way.

Q. Did you tell the police that as soon as you felt being squeezed you turned your head back?

A. Correct.

COURT : And that is not inconsistent with her evidence.

MR CHUNG: Yes, but the later part.

Q. And then you saw the defendant's left hand leaving your left buttock.

A. Correct.

COURT : Neither is that inconsistent with her evidence.

MR CHUNG : Yes, I have to ...

COURT : No, you don't have to go through the bits that are not inconsistent. If you say there's something inconsistent in her witness statement, then go straight to it and put that bit.

MR CHUNG : Yes, yes.

COURT : None of the things that you've put so far as inconsistent with her evidence."

In my view, the better approach for the Magistrate is to let the defence counsel develop his cross-examination and reserve the comments on the assessment of the evidence later on. Intervention by a judge in a trial is inevitable and sometimes a necessity, but the question is whether the intervention was so excessive that Counsel could not properly develop the defence. It was in the present case.

Re-examination

9. The re-examination was conducted almost entirely by the Magistrate. Even at the conclusion of the cross-examination, the victim was still unclear whether she had got hold of the Appellant's left or right hand. In the conclusion of the re-examination, the Magistrate said : "... so, it's correct then to say that you grabbed the defendant's right wrist. That was the wrist which was on your left ..." Earlier the Magistrate had in fact disallowed further questions on this issue. An opportunity should be given to defence counsel to deal with matters that arose in the re-examination.

10. I have no doubt that, acting as he did, the Magistrate was endeavouring to ascertain the truth of the matter. But to involve in the great extent as he did, the neutrality of the tribunal, or at the very least, the appearance of neutrality, with the consequence whether a fair trial had been conducted came into question. Regrettably I have to come to the view that there was not.

Conclusion

11. The appeal is accordingly allowed, the conviction is quashed.