HKSAR v. CHEUNG HOI HOI

HCMA153/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.153 OF 2001

(ON APPEAL FROM SPCC 140 OF 2001)

----------------------

-----------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was charged with the offence 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 3 January 2001, on board route No.212 public bus, between Gillies Avenue South and Wuhu Street, Hung Hom, Kowloon, in Hong Kong, had indecently assaulted another person, namely Ko Pui Yan.

2. The appellant denied the offence and was convicted after trial. He was ordered to do community service. He now sought to appeal against the conviction.

3. The trial was done in Chinese and the Statement of Findings was also written in Chinese. However, counsel for the appellant had chosen to use English to prepare his grounds of appeal and the written submissions. There is no point in wasting time to translate his submissions and hence I shall use English as well for this judgment. Nevertheless, where it is necessary to quote from the Statement of Findings, I shall use the original language.

4. This is a rather straightforward case. On the material day, the victim, a lady of 32 years of age, boarded the bus in question. She was accompanied by her sister and brother-in-law. The appellant was seated behind the victim. Later, the victim felt that she was touched by a hand on the left side of her breast area. She made no response for this first touch, obviously feeling confused about the situation. Then she was touched again in more or less the same area. She stood up, turned around and scolded the appellant. Her sister asked what the matter was and the victim complained that the appellant had touched her breast. That was the gist of the victim's evidence. Her sister had also testified. The learned magistrate had summarized her evidence in the following way :

「 第二証人的証供稱當巴士在加士居道沿着漆咸道北方向前駛時，第二証人察覺到第一証人在移動身體並將自己的背囊從心口放往左邊，似不太耐煩，而當巴士正入了隧道朝蕪湖街方向前往時，第一証人突然 "彈"起，轉身並指着一個坐在後面的男子然後講，"你摸夠未"，第二証人見到有一男子正坐在第一証人後面而他的身邊沒有人坐住的，第二証人問第一証人發生了什麼事，第一証人指着該名男子並謂， "佢摸我個胸"，該男子說"對唔住，冇心嘅"，第一及第二証人一起在駡該男子，第一証人話要報警，該男還說，"你咪報喇"，及後警員到場調查。」

5. The third witness was the police officer who had subsequently attended the scene. He stated that under caution, the appellant had made a statement to the effect that the touch was accidental.

6. The appellant also testified. He was 24 years of age and had a clear record. He was a university student and had obviously done well in his academic pursuits. In his testimony, he denied having touched the victim.

7. Counsel for the appellant had advanced five substantial grounds of appeal. The first complaint was that the learned magistrate had failed to preserve an appearance of neutrality throughout the trial. What counsel meant was that the magistrate had interfered too much. I had taken time to go through the transcripts. It did appear that the magistrate had, particularly during PW1's evidence-in-chief, asked a lot of questions. But I noted that the questions or remarks from the bench were not made in a hostile or sarcastic manner. The respondent argued that the magistrate was merely providing guidance and seeking clarifications. While I agree that it might be the case, but if the basic principle of the adversarial system is to be honoured, the magistrate should try to refrain from interfering too much. It would be advisable to leave the questioning to both sides. However, considering the nature and extent of the interference in this case, I was not satisfied that the trial had been rendered unfair. The further complaint that the magistrate had shown bias against the appellant when she taught the prosecutor what to ask was not supportable if one considered the context of what was said (see page 42 of the transcript).

8. The second ground had two parts : first, it was said that the magistrate should have given a good character direction on both the credibility and propensity limbs when considering the evidence of the appellant; second, that the magistrate had failed to give sufficient consideration to the good background of the appellant. I was not persuaded that there was any substance in this ground.

9. As the respondent had pointed out, the fact of the clear record had been stressed by defence counsel in his final submission. The magistrate had also given the appropriate directions in her oral reasons and the Statement of Findings. Furthermore, what the defence had produced was simply evidence of good academic achievement. Strictly speaking, good academic performance and personal integrity may not necessarily be linked. As long as the magistrate was aware of these positive elements of the appellant, I could see no reason why there should be more than a general good character direction. In my view, there was no need for any additional good character direction in the particular circumstances of this case.

10. In the third ground, counsel alleged that the magistrate had wrongly accepted PW1 and PW2 to be entirely honest and reliable witnesses. Again there was no merit whatsoever in this ground. The magistrate had seen and heard the witnesses. She had come to a view about their credibility and I could see no valid ground to overturn her findings in this regard. The same applied to ground 5, where counsel argued that the appellant's evidence was wrongly rejected. Furthermore, the rest of ground 5 was based on a misconception about the right to remain silent. In this case, the appellant had chosen to react after being cautioned by the police officer. The voluntariness of his statement was never in issue. If he had chosen to remain silent and the magistrate commented upon it, there might have been problems. Here, the magistrate was simply analysing, as a credibility issue, the difference between the appellant's testimony in court and what he had said under caution. I could see nothing wrong with that.

11. Regarding ground 4, the complaint was that the magistrate had wrongly accepted PW2's evidence to have corroborated that of PW1 and had failed to warn herself of the danger of convicting the appellant without corroborative evidence. I was not sure what this complaint really aimed at. The statute had already removed the need to give a warning for this type of cases. The magistrate had made reference to it in her Statement of Findings, although what she said was not entirely correct. She stated that 「本案是有關性罪行，雖然佐証已不需要...。」. The point is, before the amendment of the statute, it was only a warning that was required, not corroboration as such. Now, the main issue in these sexual offence cases would mainly be whether the victim had been truthful and whether the indecent assault did occur. The magistrate had found that PW1, the victim, to be a truthful witness. I could find no fault with her analysis up to the penultimate page of her Statement of Findings.

12. However, this ground of appeal brought in focus of a certain remark made by the magistrate. This had caused me concern. She stated that :

「 ...第二証人的証供在某程度上支持第一証人對被侵犯後的反應及吻合第一証人在這方面的証供，...」(see page 20 of the Appeal Bundle)

13. The learned magistrate seemed to use these terms in the sense of "supporting" and "corroborative" evidence respectively. But these are legal concepts and should be used with precision. I found it difficult to follow when the magistrate used both terms to describe the evidence regarding PW1's "reaction after the assault" 「被侵犯後的反應」. This expression was not defined and it was not referred to in the oral judgment. It could either mean PW1's recent complaint or her distressful condition after the alleged assault.

14. However, these two meanings would attract different considerations. To put simply, recent complaint cannot be corroborative evidence of the indecent assault, it merely shows consistency of the complaint. On the other hand, the distressful condition of the victim after the alleged assault could amount to corroboration, but this should be treated with caution and there are specific warnings which need to be considered when it is intended to be use as corroboration. (R v. Redpath (1962) 45 Cr. App. R.319; and R v. Knight [1966] 1 W.L.R.230.) It is true that the warning for the lack of corroboration was no longer required for these type of cases, but if the magistrate raised these matters in her analysis of the evidence, it would be incumbent on her to explain and illustrate how these principles had been applied to the facts of the case. I am afraid that was not sufficiently done here. On the other hand, if the magistrate was only using the expression of PW1's reaction to mean the recent complaint, she had failed to remind herself that it could only be used to show consistency of PW1's complaint.

15. I had taken time to consider carefully this particular issue. The overall evidence in the case could be said to be compelling, but in the circumstances, I felt I had no alternative but to conclude that this deficiency was sufficient to render the conviction unsafe and unsatisfactory. Hence, despite the very persuasive submissions from the respondent, I would allow the appeal.

16. The conviction would be quashed and the sentence to be set aside.