HKSAR v. SO YAU HANG

HCMA873/2008

IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

   MAGISTRACY APPEAL NO. 873 OF 2008

   (ON APPEAL FROM KTCC 2448 OF 2008)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted of nine charges of indecent assault, contrary to section 122 of the Crimes Ordinance, and was sentenced to a total term of 6 weeks’ imprisonment.

2.  The appellant was, at all material times, the headmaster of a primary school. Three female teachers alleged that he had, on various occasions, indecently assaulted them. These teachers were referred to at trial as “Miss A,” “Miss C” and “Miss D.” A schedule prepared by the respondent summarises in tabular form the facts of each allegation. I have annexed it to this judgment (Schedule I). A very quick perusal of it will give the flavour of the criminal conduct alleged.

3.  How the matter came to light is helpfully set out in a further schedule. Again I have annexed it to this judgment (Schedule II). All I need mention now is that no complaint from any one of the teachers followed the alleged misconduct, and that the complaint surfaced against the background of a collateral matter to do with the alleged covering up of cheating in exams at the school and the position of the headmaster.

4.  As will be seen from the schedules, the complaint to the police was made on 1 February of 2007, and the alleged indecent assaults spanned a period from October 2000 to June of 2006. The trial before the magistrate Mr Albert Wong, as he then was, was a re-trial, which had been ordered following an appeal to this court in March of 2008. The appeal had been allowed and a re-trial ordered for a number of reasons, which included an apparent failure by the magistrate to have considered issues separately.

5.  Whilst there had been no specific discussion of similar fact evidence, it was clear that the appeal proceeded on the basis that it was not available, and accordingly, in the second trial, both the magistrate and the parties proceeded on the basis that there would be no reliance on similar fact evidence and that each charge would be considered separately and on its own.

6.  The statement of findings at paragraph 225 contains the assertion that the magistrate was fully aware that this was not a case where similar fact evidence came into play, and he should not let the consideration of one allegation affect the consideration of another.

7.  It is with regret that I have to say that, in my judgment, the course taken of seeking to try these charges in separate compartments, ignoring in the consideration of any one of them the whole picture painted by the evidence, was both wrong and unrealistic.

8.  This was a classic case for the application of similar fact evidence in the way that it has been understood since the case of the Director of Public Prosecutions v P [1991] 2AC 447. I say this as I consider that the probative force of the evidence concerning the incidents other than the one in question was sufficiently great to make it just to admit that evidence when considering the incident in question, notwithstanding that it tended to show he was guilty of another crime.

9.  Indeed, I would respectfully say that the task imposed upon the magistrate of in effect conducting nine separate trials was an impossible one. One only has to take an example to see how this would be so.

10.  Take, for instance, the task of the magistrate in trying charge 8 in a watertight compartment. Did the respectable headmaster, with his good character, in fact touch Miss D four years before upon her stomach without any contemporaneous complaint, and if so for what reason and in what circumstances? It would not have been an easy trial. However, open the compartment and admit to it the evidence of the previous five alleged incidents, two of which involved Miss D herself, and the matter takes on a very different complexion indeed.

11.  This was a case where anyone would conclude that the evidence of one victim about what occurred to her on one occasion was so related to both what had occurred between her and the appellant on other previous occasions, such as Charges 6 and 7, and to the evidence given by the other victims about what happened to them, that the evidence of the conduct on those other occasions provided such strong support as to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence. It was a case where a tribunal of fact, given the hard task of trying an old allegation in a watertight compartment, would have been justifiably bewildered and angry to learn afterwards of the other evidence kept from him.

12.  A more extreme example arises in relation to Charge 5, which involved the only allegation made by Miss C. It occurred over six years prior to complaint and involved an allegation of the appellant touching her leg. If this allegation had in truth stood alone, the question would have been: why was it being prosecuted, especially against the background of the division between headmaster and staff upon collateral matters? I doubt that any prosecution would have followed, if it had stood alone, and I doubt even more there would have been a prosecution to conviction.

13.  I would add here that the significance of the collateral matters would have been more to do with interpretation and emphasis than outright malice and invention. A number of the alleged incidents could reasonably be argued to be equivocal, and some perhaps as going no further than an initial stage of exploring mutual attraction. In that context, the colouring of hindsight by the pressure from a new turn of unrelated events much later, against the background of Mr Tin, the school supervisor marshalling complaints, is a real consideration.

14.  This appeal is a rehearing. The question arises as to whether I can look at the evidence which the ordinance puts before me and proceed to judge it on the basis of similar fact evidence being admissible in respect of any charge and, if so, whether it would be right to do so in the particular circumstances. I invited and received submissions from both sides on the question.

15.  My judgment is that I could take the proposed course, but that in the circumstances of this case I should not do so. The reason I decline to do so is that the appellant can realistically claim it would be to move the goalposts too far and there would exist a potential for real unfairness as the conduct of the trial may have been significantly different if it had been on the basis of similar fact evidence.

16.  I appreciate that the assertion that a trial would have been conducted differently is one that is easy to make and may well sound better in theory than in practice. However, I judge that the difference in emphasis between the trial that took place and the trial conducted on a similar fact basis may well have been significant. The main issue on the similar fact basis would have been that of collusion. Collusion between the witnesses did play a part in this trial, but there is a real risk that part would have been different on the similar fact basis. Convincingly the appellant argues that Mr Tin, the supervisor of the school who played a role in marshalling the complaints, would or may have been required to give evidence.

17.  The respondents do not invite me at this stage to proceed on the basis of similar fact, appreciating those matters which make it inappropriate in this instant case, without any concession on the general question as to whether it was possible to do so. It is thus that I have to proceed in judging the available evidence in this appeal on the basis of each charge being considered in isolation from the others, a task that I have already characterised as being impossible.

18.  The appellant gave evidence. He denied any instance of improper contact between him and the three ladies. I regret to say that knowing what I do by reason of looking at all of the evidence, I would be unable to judge any one of those incidents in isolation with confidence.

19.  If I cannot exercise my own judgment safely on the evidence, am I entitled to rely on the judgment of the magistrate, making the usual point that he had the advantage of seeing and hearing the witnesses. It is a tempting course to achieve what one could perceive to be the justice of the case. However, reflection tells me otherwise. It would, in effect, be a course that denied the appellant his right to have his case judged by rehearing on appeal.

20.  I wish to say that the magistrate displayed enormous industry and application, that he approached the case with common sense and sensitivity and that he displayed good and sound judgment. However, I simply cannot countenance that he was able to do that in the way that was forced upon him.

21.  In relation to any of the incidents there existed good points to be made on behalf of the defence. It does not need me to enumerate them here. They are evident in the papers. Tried separately in nine trials, I judge that in respect of some of the charges an acquittal would have been more likely than not, such as Charge 5, to which I have already adverted, and that in respect of the stronger incidents the matter would have been finely balanced with the result difficult to predict. Put another way, the joint trial of these nine charges, without the employment of similar fact evidence, was wrong. If there was to be a truly separate consideration of each charge, there should have been separate trials to avoid the prejudice. The fact that nine separate trials was clearly not to be countenanced merely reflects the strength of the case for mutual admissibility by similar fact evidence.

22.  It is thus that I cannot confirm the convictions by relying on the judgment of the magistrate, not because his judgment was defective in any way, but because his good judgment was denied the right scope for its exercise, and there existed, as there had to exist, a prospect that it simply could not be exercised in true isolation.

23.  Counsel for the respondent, Mr David Leung, argued that the conduct of the defence on any single separate charge would let in evidence of the matters giving rise to the other charges. I disagree. A competent defence on a single charge would not have opened the flood gates of evidence which was being treated as otherwise inadmissible. Counsel for the respondent, aware of the problems he faced, nonetheless made a spirited attempt to uphold the convictions. In essence, his argument boiled down simply to a claim that it was possible fairly to judge the charges in isolation. I was against him. Even if theoretically possible, practically it was not.

24.  That I should be driven to allow this appeal on the basis discussed is a matter of regret. I wish to make it absolutely clear that I have no criticism at all of the magistrate. It is obvious, from what I have said already, that in my view the direct cause of the problems arose from the decision of this court on appeal from the first trial. A less direct cause, though one well worthy of mention, is the reluctance of prosecutors to use the full extent of the law in this area.

25.  Of course the remedy for the present situation would be to order a retrial, but this trial was itself a retrial. In some circumstances a third trial may be appropriate, but in my judgment this is not one. The limited nature of the conduct giving rise to the charges, the considerable delays, the age of the allegation and the damaging consequences to the appellant of his prosecution already felt by him make an order for a second retrial inappropriate.

(Submissions re costs)

26.  I shall make an order that the appellant have his costs of the trial and this appeal, save for the hearing on 8 May, where each side will bear its own costs. I make that order about the wasted day on 8 May because it was only two days prior to that that the appellant served upon the respondents a 57-page document, which, in effect, set in train the preparation of the appeal in a way that crystallised - especially after the hearing on 8 May - what the true issues were to be. The late service of that, in the form that it was, in my view makes it just that each side bear its own costs for that day that was wasted on 8 May. Other than that, the costs follow the event in the usual way.

Representations:

Schedule I

Schedule II