HKSAR v. TO FUK WING

HCMA583/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.583 OF 2000

(ON APPEAL FROM NKCC 5881 OF 1999)

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J U D G M E N T

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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 particulars alleged that the appellant had on 13 October 1999, at Kwai Chung Road, outside Stage 7, Mei Foo Sun Chuen, Kowloon, in the compartment of a Kowloon Motor Bus Route No.68X, indecently assaulted another person, namely Wai Kit Wan. The appellant was convicted after trial and the learned magistrate imposed a Community Services Order. He appealed against the conviction only.

2. The prosecution case was a relatively simple one. The witness ("PW1"), a social worker, aged 28, was a passenger on the bus at the material time. Later, she noticed that the appellant had boarded the bus and he chose to sit beside her while there were many empty seats. Subsequently, she felt fingers moving in her groin area. When she removed her bag from her lap and looked down, she said she saw the appellant's left hand on her thigh. She was angry and informed the bus driver. She also dialled 999 to make a report with her mobile phone. There was another passenger called to testify but she was sitting in the back and could only see the appellant's movement from behind.

3. The appellant chose to give evidence. He had a clear record and basically he tried to explain that the touching could have been an accident. At the relevant time, the appellant said he had fallen asleep but when he somehow lost his balance, he woke up. He said he had not deliberately placed his hand on the victim's thigh area. The appellant had called two witnesses to testify to his good character.

4. The learned magistrate duly reminded himself of the appellant's clear record and accepted the defence witnesses to be honest witnesses so far as their evidence related to the character of the appellant.

5. The learned magistrate had this to say regarding the appellant's evidence in his Statement of Findings :

"60. I did not believe the appellant's evidence. He displayed nervous mannerisms as he gave evidence such as fidgeting, excessive blinking of eyes and licking of lips and frequently changing sitting position. However I was aware of the unreliability of assessments of demeanour and also that the mannerisms referred to could be displayed by a nervous but honest witness. Accordingly I did not rely on any assessment of demeanour in concluding the appellant was not to be believed. I simply did not believe his evidence.

61. I also did not believe the denial he made to PC54504 (Notebook entry - exhibits P2 and P2A) upon arrest and caution was true.

62. I well knew the appellant's guilt did not follow from these findings. I had in mind the well known authorities on Lies, such as Lucas and related cases, as to this." (Emphasis added)

6. As to the evidence of the victim and the lady passenger, the magistrate found them to be very impressive witnesses. In the end, he found that the appellant had deliberately touched the victim in the groin area and the touch was not accidental. Hence, he convicted the appellant of the offence.

7. Counsel for the appellant had raised a number of grounds of appeal. The first three grounds related to how the learned magistrate had dealt with the evidence of the witnesses, including the appellant's evidence. It was argued that there was effectively no reason given by the learned magistrate as to why he disbelieved the appellant. On the other hand, although the magistrate said he had not relied on demeanour, in fact he had done so heavily. Counsel stated that a finding based on "he simply did not believe his evidence" would render the conviction unsafe and unsatisfactory.

8. The leading authority on such matters of believing or disbelieving witnesses no doubt was the case of R v. Ng Wing Ming [1995] 1 HKCLR 64. It is an important case as it had sorted out the ways in which a trial magistrate should resolve the issues of credibility. In short, Litton JA (as he then was) stated that the inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth; demeanour could only be a point of last resort.

9. The learned magistrate did not refer to any details in reaching the conclusion that the touch was not accidental and he specifically said that he did not rely on the demeanour in disbelieving the appellant. Leaving aside the appellant's argument that the learned magistrate had in fact heavily relied on the appellant's demeanour, this approach gave an impression that the magistrate could not find any reason to justify his conclusion except his subjective feeling that the appellant was not to be believed. While in some cases, the magistrate may well be entitled to resort to this formula that he simply did not believe a witness, but in this case, I found that the factor of inherent probability or improbability should be considered. If the learned magistrate did not try to do so and yet he expressly said that he would not rely on demeanour to ascertain the credibility of the appellant, even as a last resort, then the complaint that the conviction was unsafe and unsatisfactory might be justified.

10. There was another point to be considered. The learned magistrate said he had in mind the well known authorities on lies, such as Lucas and the related cases. Counsel for the appellant had pointed out that since the case of R v. Chong Chak On [1996] 1 HKC 152 and as explained further in HKSAR v. Mo Shiu Shing [1999] 2 HKLRD 155, the principles in Lucas had been modified. In fact, the Hong Kong Court of Appeal in Mo Shiu Shing had considered Lucas and decided not to follow it.

11. Stuart-Moore JA, giving the judgment of the Court of Appeal, pointed out the following under "Conclusions to be drawn on approach to lies" :

"We have taken time in which to consider the various cases referred to in this judgment in some depth. We have also taken the opportunity to consult with a number of other members of the Court of Appeal in order to seek a broad platform of approval for what is set out in this judgment as to when a 'lies' direction should be given and as to an appropriate formula to be used when it is given. We have reached the following conclusions:

(1) In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe. In such circumstances, no more needs to be said. (See: R v Ng Chi Wai & Another (unrep., Crim App No 346 of 1996, [1997] HKLY 223)).

(2) Where there is a danger that the jury may believe that lying goes to proof of guilt, usually because the prosecutor has alleged that the defendant has lied and has addressed the jury upon the basis that the lie is supportive of the prosecution's case, a twofold warning should be given to the effect that :

(a) lies can never prove guilt in themselves; and

(b) that persons may lie for reasons other than guilt.

This last direction will need to be accompanied by the possible ' innocent' reasons that are usually given as examples in a standard direction as to why a person facing an allegation of crime might lie. (See: R v Burge & Pegg [1996] 1 Cr App R 163).

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We emphasis again what Mortimer JA said in R v Ng Chi Wai & Another (unrep., Crim App No 346 of 1996, [1997] HKLY 223). The circumstances in which a direction that a lie may support the prosecution's case will be rare but may be appropriate where: (1) a defendant has relied upon an alibi; and (2) the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted.

Lastly on this topic, if the lie is being used as corroborative evidence in the strict sense (eg in a trial of a sexual offence) it must, of course, be evidence that comes from a source which is independent of the evidence it is being used to corroborate." (Emphasis added)

12. It was unclear whether the learned magistrate was under the impression that the prosecution was inviting him to treat the appellant's lies as supportive evidence of the prosecution case and therefore he found it necessary to give himself such a direction. If that was the case, it appeared that the learned magistrate should have gone on to deal with the issue of corroborative evidence, particularly when the present case was a sexual offence case. However, there was no clarification or warning given in this regard.

13. Of course, now the need to warn in sexual offence cases was abolished by an amendment made to the Evidence Ordinance, Cap.8. The effective date was 30 June 2000. Counsel for the respondent fairly conceded that as this trial took place before this date, a warning would need to be given in accordance with the prevailing principles before 30 June 2000.

14. Whether or not the failure to warn about the lack of corroborative evidence was fatal in this particular case, in view of the matters referred to earlier, I had no alternative but to find that the conviction unsafe and unsatisfactory.

15. For these reasons, I had allowed the appeal and quashed the conviction. The sentence would also be set aside.