R. v. LEE TAK CHUNG

IN THE COURT OF APPEAL

1992, No. 389
(Criminal)

____________

_______________

J U D G M E N T

_______________

Hon Yang, CJ:

1. The applicant was convicted after trial by His Honour Deputy Judge Line of four charges of indecent assault on a female contrary to Section 122(1) of the Crimes Ordinance, Cap. 200. He was sentenced to concurrent terms of six months' imprisonment on each charge. He now seeks leave to appeal against conviction, and against sentence if necessary.

2. The applicant is a businessman. At all material times he and his wife lived in a house at Sai Kung. They had three Filipino maids, one of whom was the victim. She was twenty years of age when she took up her employment with the applicant on 13 August 1991 shortly after her arrival in Hong Kong. The alleged indecent assaults occurred on 6, 12, 21 and 29 November 1991 in the master bedroom of the house when the applicant's wife was out. The applicant was at the time forty-one years of age.

3. It is not necessary for the purpose of this application to go into details, suffice it to say that the victim's evidence was that on each occasion the applicant compelled her to masturbate him, having taken hold of her hand and placed it on his penis, where he held it with the necessary movements until he ejaculated. She was the only witness for the prosecution, and her evidence was uncorroborated.

4. The applicant's evidence was that on 6 November 1991 she massaged him on his order and he paid her $500. On the other three occasions, she willingly performed a massage as well as masturbation for him. On the second occasion, he also paid her $500. On the third occasion, she asked for a loan of $40,000 to start a meat business but he refused. He wanted to pay her $500 but had only $300 so he took from his wife's handbag a new $1,000 note, folded in a special way which his wife always adopted, and handed it to her. This is an allegation the victim categorically denied. On the fourth occasion, again he paid her $500.

5. The applicant's wife gave evidence as a defence witness. She said that on 26 November 1991 she noticed the victim had a new $1,000 note "identical" to hers, i.e., it was folded in the same manner that she folded her bank notes. She also said that she never gave her maids new notes. She further supported her husband's evidence that, through the month of November, the victim had behaved normally. In particular, she said that on 26 November 1991 there was a family outing consisting of the applicant and his wife, their two sons (who were studying in Canada) and their two classmates, and the Filipino maids including the victim. They went to the Ocean Park, to dinner afterwards, and then to a karaoke lounge when the victim sang two or three songs. She betrayed "no signs of being uncomfortable in (my) husband's company".

6. The learned trial judge devoted seven pages in his Reasons for Verdict in discussing the respective credibility of the victim and the applicant. He believed the victim and was sure she told the truth. He disbelieved the applicant and described the wife's evidence as peripheral.

7. There is essentially only one ground of appeal against conviction, namely, that the convictions were unsafe and unsatisfactory. The gravamen of the argument is that the judge had relied exclusively on his evaluation of the manner in which the victim and the applicant had given their evidence, that there was no recent complaint, and that the reason for dismissing the evidence of the applicant's wife was unsatisfactory.

8. Counsel for the applicant rely heavily on the last paragraphs in a book by Lord Devlin and entitled "The Judge" (1979 Ed. at p. 63). The learned author adopts the words of Mr Justice MacKenna: -

"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth."

9. A comment on the demeanour of witnesses coming from so eminent an author commands, of course, the greatest respect but, on the other hand, it is axiomatic that the trial judge is in the best position to assess a witness whom he sees and hears, and the appellate Court, not having the advantage of having the witness before them, and relying simply on the cold print of the transcript of the evidence, must not usurp the function of the lower Court. There may, of course, be the occasion when the trial judge may err in principle, take into account matters which he should not have taken into account, or fail to consider matters which he should consider, when the appellate Court might then interfere.

10. In his Reasons the judge analyses his impression of the witnesses, recognising that "it is not easy always to say why one believes one witness and not another". He was at pains to give a detailed explanation of his assessment of the witnesses. He noted that the applicant enjoyed a dominance over the victim, a Filipino domestic worker newly arrived in Hong Kong. Her passport or identity card was kept by her employers. The acts of masturbation were not so grave as to drive her to immediately make public what had happened with the attendant anguish and loss of employment. Referring to the applicant's wife, he noted her obvious and understandable loyalty to her husband.

11. Many of the observations made by the judge in his assessment of the witnesses are, of course, legitimate and cannot be criticised. However, the manner in which he treated the wife's evidence causes concern. Her evidence about the new $1,000 note supported her husband's evidence on the point. It was evidence which went to the applicant's credibility and was not merely peripheral as the judge described it. Moreover, the wife's evidence about the victim not being "uncomfortable" was sufficiently significant to merit consideration. The judge did not deal with this aspect of the evidence at all in his Reasons, but simply dismissed the wife's testimony on the basis that "her obvious and understandable loyalty to the defendant did not make her a reliable witness in any event". We consider that her evidence required careful evaluation, particularly in the light of the many glaring inconsistencies in the complainant's evidence as to why she had not made a complaint to her uncle in the Philippines Consulate until three weeks after the first alleged indecent assault. Had proper consideration been given to the two pieces of evidence mentioned here, the verdicts might perhaps have been different.

12. For the reasons given, we are of the view that the convictions are unsafe and unsatisfactory.

13. We allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. Convictions quashed and sentences set aside.