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HCMA000118/1995
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY CRIMINAL APPEAL NO. 118 OF 1995
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THE QUEEN |
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MAK SAU-LEUNG |
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Coram: The Hon. Mr. Justice Wong in Court
Date of Hearing: 21st March 1995
Date of Delivery of Judgment: 21st March 1995
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JUDGMENT
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1. The appellant was convicted before a magistrate of one charge of indecent assault, contrary to s. 122(1) of the Crimes Ordinance, Cap. 200. He was sentenced to a term of imprisonment of 10 days. He appeals against conviction only.
2. The complainant worked as a maid at the home of the appellant. The prosecution case was that in the morning of 1 July 1994 the appellant indecently assaulted the complainant in the living room and later inside the bathroom when she was doing her chore.
3. The main ground of appeal is that the magistrate misdirected himself in law that the complainant's previous statement to the police was not in evidence when it was in fact in evidence. The magistrate accepted that there were clear discrepancies between the oral evidence of the complainant and her previous statement to the police in relation to the incident in the bathroom. In her testimony before the magistrate, the complainant said :
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"I then returned to the balcony where I continued hanging clothes. The defendant remained on the sofa until I'd finished hanging clothes. I then went to the bathroom to clean it. I locked the door. |
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The defendant asked me to open the door and was knocking loudly on the door. I opened it. The defendant then entered (demonstrates) - he put his hands on my waist and started to lift me off the ground. He pushed himself against me (demonstrates face against her body). His mouth made a noise which I couldn't understand. |
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I pushed him away. He then said to me in English "Can I have a favour? Only one kiss, only one kiss." I said "No." I said to him in English "Be scared of your wife and your son, you have a family to respect. Be ashamed you're a respected man." He replied that I shouldn't tell anyone including my aunt and especially his wife. |
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I then asked defendant leave to go to Tin Hau to collect his son from school. It was then about 11:30 a.m." |
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In her statement to the police at p. 49 of the Appeal Bundle, the complainant said:
"Later, I went to the toilet for cleaning. Mr. Mak followed me. He embraced me from behind and kissed my face, my lips and touched my breasts. And he said this is the last time he touched me because it was about 11:30 hrs. I have to take his son from school At about 11:30 hrs. I left the flat to Causeway Bay."
The discrepancies in the two accounts in regard to the details of this alleged indecent assault are apparent and can readily be seen. Yet the magistrate chose to dismiss them for reasons which are either wrong in law or contrary to the evidence before him. The magistrate gave five reasons for rejecting the contents of the previous statement to the police and these were :
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The part of the statement dealing with the bathroom incident was not specifically adopted by the complainant. |
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The statement itself was admitted into evidence as an exhibit at the request of Mr. Wong, representing the appellant after he had concluded his cross-examination on its contents but with the consent of the prosecutor. It was produced coincidentally. At the time I assumed, wrongly it now appears, that Mr. Wong was seeking its production merely to facilitate my understanding of the context of the statements made therein, on which the witness had already been cross-examined by him. |
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The witness was not questioned on these parts of the statement which referred to the incident in the bathroom. She was not at any time invited to explain what was written. |
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There was no admission by the witness that everything contained in the exhibited statement had been told by her to the police. Indeed the witness made it clear that the record omitted certain important matters. |
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I found that in the above circumstances (i) the statement's contents, as to the incident in the bathroom, were not in evidence, and (ii) it was not for me either to enter into conjecture as to what the witness might have said had she been cross-examined on the statement insofar as it related to the bathroom incident or to assume that the statement itself had been taken correctly. |
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4. It is not necessary for me to answer them separately and it suffices to say that the magistrate's reasons for ignoring the previous statement of the complainant are invalid. The statement was clearly in evidence - the complainant having been asked about it in cross-examination and it was subsequently put in by consent. In R. v. Li Yee-chung, Criminal Appeal No. 519 of 1985, Penlington J. (as he then was) made these observations, when giving the judgment of the Court, at pp. 4 and 5 :
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"There is authority that even if not formally produced a statement, once shown to a witness and identified by him, is "in evidence". In R. v. Garner (1890) January 19, L.T. 699, there was a similar position to here, in relation to evidence from the mother of the accused, Mathew J. said at 700 : |
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'It must be taken that her statement was agreed to as it was, for the learned counsel who had the depositions before him, if there had been any material difference in the deposition which it was necessary to point out, would have been drawn attention to it. The deposition must therefore be treated as in." |
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Similar authorities are to be found in R. v. Riley (1866) 4 F. & F. 964 and R. v. LAM Chi Sum. Criminal Appeal No. 503 of 1987. Once the statement was in evidence, the magistrate was obliged to consider its contents when assessing and evaluating the credibility of the witness. I fail to see how the magistrate could have taken any other course. At p. 8 of the Appeal Bundle, the complainant agreed that the statement was accurate with the exception of the omission of some important matters. She was then asked why was it that it had omitted certain important matters and gave this answer :
"I wasn't able to provide the information as to all that had happened."
She was asked why not and said :
"I couldn't tell everything in detail. I was so scared and didn't know what to do."
5. The issue is not just the detail of the assault such as how many times the appellant kissed the complainant and whether he touched her breasts. It goes much further than that. It is whether the complainant went into the bathroom, locked the door, the appellant knocked at the door and she opened it to allow him in or he simply followed her into the bathroom. It is difficult to imagine how she could have mixed up the two. Only one of these events could have happened. On this vital question, there remains no answer.
6. The whole case depends entirely on the uncorroborated evidence of the complainant and her credibility is therefore of supreme importance. A few days before 1 July 1994, the complainant had asked for the termination of her contract which the appellant refused. This could generate a motive for her to fabricate a case against the appellant.
7. In all the circumstances, the conviction cannot be regarded as safe and satisfactory. Accordingly, I allow the appeal, quash the conviction and set aside the sentence.
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(Michael Wong) |
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Judge of the High Court |
Representation:
Mr. Derek Pang A.P.C.C. for the Crown.
Mr. A. C. Macrae (M/s. McKenna & Co.) for the Appellant.
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