HKSAR v. KO WAI CHEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1041/97

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J U D G M E N T

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1. The Appellant was convicted after trial in the Magistracy, of one charge of indecent assault and now appeals against that conviction. In the grounds of appeal it is stated that the Magistrate failed to give himself a reminder in respect of the evidence of PW2, the daughter of the victim, who was aged 10 at the time and who gave unsworn evidence.

2. I considered that ground and am satisfied that the Magistrate clearly had in mind the possible dangers of relying on unsworn evidence given by a child. It is correct that he does not appear at the beginning of the child's evidence to have given her a formal warning about the need to tell the truth. He did, however, give such a warning prior to her being cross-examined and I am satisfied that his subsequent assessment of her evidence is correct. He also made it quite plain that even if he had not considered her evidence to be of any weight, that he was able to be satisfied of Appellant's guilt on the evidence of the victim alone.

3. The second ground is that the Magistrate erroneously dealt with the Appellant's evidence in failing to consider the possibility of collusion between the mother and the daughter. I am satisfied from my reading of the transcript and the Reasons for Verdict that that was not the case and although the Magistrate might have used the words that "it was impossible for the mother and daughter to collude", it was implicit in his examination of the mother and daughter's evidence that that was a possible danger that he had in mind and he was able therefore to accept the evidence of the mother and daughter.

4. The third ground was that the Magistrate misdirected himself in law as to how he should approach the evidence given by the Appellant in his cautioned statement. It appears that in court the magistrate did misstate the law relating to the view to be taken of the Appellant's statement, which was a mixed statement containing admissions as to his presence on the bus but also denials in respect of the alleged misbehaviour.

5. Having considered the whole of the transcript, however, I am satisfied that the Magistrate did not fall into error in respect of the statements. He took the most favourable view of those statements that he could in relation to the defence case; he accepted that the Appellant had given these denials and that he had been consistent in the denials. It was up to the Magistrate to reject the Appellant's evidence after due consideration and he did that, but I am satisfied after considering the transcript that although he might have misquoted the law in discussion with defence counsel in court that he did in fact take a proper view of the Appellant's statements.

6. The fourth ground was that the Magistrate's finding of facts indicated that this was an unsafe or unsatisfactory verdict but this, I reject. The Magistrate was extremely careful in assessing exactly what the two prosecution witnesses said. He had before him evidence relating to the plan of the bus, he had photographs and he was entitled to come to the view that he did on the evidence. I am satisfied that the conviction was not unsafe or unsatisfactory and this appeal is dismissed.