HKSAR v. LI KAM WING

[English Translation – 英譯本]

CACC 353/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 353 OF 1998

(ON APPEAL FROM DCCC NO. 284 OF 1998)

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JUDGMENT

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Hon Chan CJHC (giving the judgment of the Court):

1. The Applicant was charged with having unlawful sexual intercourse with a girl under the age of 13, contrary to Section 123 of the Crimes Ordinance (Cap. 200).  He was convicted after trial in the District Court and sentenced to imprisonment for 12 months.  The Applicant now applies for leave to appeal against conviction.

2. The complainant was a girl aged 11 years and 11 months at the material time.  She and the Applicant knew each other.  One day in July 1997, the complainant arrived at the Applicant’s residence in Fanling in the afternoon.  The entrance door of the premises was not locked, and the Applicant was sleeping in the bedroom.  The complainant took a seat in the living room and stayed there.  Later, the Applicant woke up and asked the complainant to go into his bedroom.  After the complainant entered the bedroom, the Applicant locked the door.  He then kissed the complainant in the bed.  She was at first unwilling to be kissed but in the end did not resist.  Then the Applicant and the complainant had sexual intercourse, after which she left the Applicant’s house.  But she did not tell anyone about the incident.  In January 1998, the Social Welfare Department obtained from the court a child protection order, pursuant to which the complainant had to reside at a home for the children.  When she was residing there, the above incident was discovered.   The complainant told a social worker that she had been raped by the Applicant.  A report was then made to the police.

3. On 2 February of this year, when the police took a written statement from the complainant, she mentioned that she was raped by the Applicant at the material time.  However, when she was interviewed again by the police the following day, she admitted that she voluntarily had sexual intercourse with the Applicant and that the Applicant had not raped her.  As to what she told the police the previous day, namely that some time in October 1997 the Applicant pushed her onto a white goods vehicle and gave her some drink that she took, following which she fainted and was raped by the Applicant, she said that it was a story that she made up.

4. At trial, when she was asked why she made up the story of having been raped by the Applicant, the complainant replied that the Applicant was “loathsome” because he had asked her “There is business and I have customers. Do you want to do it?”, which suggested that he wanted her to provide prostitution services.  She also admitted that it was at the suggestion of her friends at the home for the children that she told the social worker and the police that she had been raped.  For fear of discontentment from her mother or family members, she made up the story of having been raped.  But then she feared that the police would “uncover” her lie, and therefore she admitted at the second interview that she had made up the story.  At the same time, she once and again asserted that she had sexual intercourse with the Applicant in July of last year.

5. The Applicant, giving evidence in court, denied having had sexual intercourse with the complainant.  He admitted that he and the complainant knew each other.  He also said he used to borrow a friend’s car to drive her girlfriend and a few other youngsters (including the complainant) to his house to play and to carry out other activities such as swimming and fishing.  However, he said that the entrance door of his house was always locked because he lived rather far away from the city proper and it was necessary to prevent strangers from entering his house.  He said he and his girlfriend were on holiday in July 1997 and that they were together every day.  He also said that during that period the complainant had never been to his house, and that whenever he was outside, no one including the complainant could enter his house.

6. Having considered and analysed at length the evidence of the complainant and the Applicant, the trial judge commented that, although the complainant was more mature than her female peers, she still retained much of her childlikeness.  The judge also observed that the complainant was firm and confident when testifying in court, and apart from her admission of having fabricated the story to the social worker and the police of her having been kidnapped and raped, her evidence was consistent with what she had told the police.  The judge concluded that: “From her demeanour and countenance, I am sure that the complainant is a veracious witness.  Her evidence in court is reliable and credible, and I accept her evidence as true and accurate.”  On the other hand, the judge considered the Applicant’s evidence in court incredible and said that “what he said in court is often self-contradictory and inconsistent, and he often made thoughtless statements.  He is hardly a reliable witness.”  In the end, the judge accepted and believed the complainant’s evidence and, having satisfied beyond reasonable doubt that the Applicant was guilty, convicted him of the offence.

7. Mr Chan, Counsel for the Applicant, puts forward four grounds of appeal.  The first to third grounds relate to corroborative evidence and can be dealt with together.  Counsel submits that the trial judge had failed to warn herself of the dangers of convicting a defendant in the absence of corroborative evidence.  Counsel refers to the decision of the Full Court in R v. CHAN Siu-wong [1970] HKLR 61 and the decision of the High Court in R v. CHAN Yuet-shing Mag. App. 1009/1985.  It was held in these cases that, where an accomplice gives evidence or where a sexual offence is involved, the judge must, according to an established legal rule, warn the jury (or himself, as the case may be) of the dangers of convicting the defendant on uncorroborated evidence; and where such a warning has not been given, the conviction is unsafe.  Counsel submits that, on the basis of these authorities, where a case was tried by a judge without a jury, and the judge did not expressly state in his Reasons for Judgment whether he had given himself the above warning, the appellate court will not know whether the judge actually did so, and in such circumstances, the conviction must be quashed.  Counsel contends that in the present case, in view of the fact that the complainant had made serious allegations against the Applicant and had subsequently admitted that they were false, it was all the more important for the trial judge to seek corroborative evidence.  As the judge did not indicate that she had warned herself as aforesaid, the Applicant’s conviction is, in Counsel’s submission, neither safe nor correct.

8. Mr Leung, Counsel for the prosecution, concedes that there was no independent evidence in the present case to corroborate the complainant’s evidence and submits that, for this very reason, no purpose would be served in requiring the trial judge to look for corroborative evidence.  Counsel submits that the judge’s failure to warn herself of the dangers of convicting the Applicant in the absence of corroborative evidence was not fatal to the conviction.  Her Judgment shows that she had considered all the evidence in detail and had evaluated all the evidence with special care.  She had good reasons for accepting the evidence of the complainant and rejecting that of the Applicant, and no injustice had been caused.  The judge very well knew and had carefully considered the complainant’s admission that she had fabricated a story.  In the circumstances, the Applicant’s conviction is legitimate and proper.  Counsel submits that the crux of the matter is not whether the trial judge stated in her Judgment that she had warned herself as aforesaid, but is whether she had in fact considered the evidence with extra caution.  The Judgment shows that she had indeed been particularly careful in approaching the evidence.  It would have been pointless for her to make mention of a warning in her Judgment if she had not in fact been particularly careful.  Counsel also points out that there have been gradual changes to the legal rules regarding the requirements of corroborative evidence and the need for the judge to warn the jury or himself of the dangers of convicting without such evidence.  The rule regarding corroboration of an accomplice’s evidence has been abolished by Section 60 of the Criminal Procedure Ordinance (Cap. 221), whereas the rule regarding corroboration of a child’s evidence has been abrogated by Section 4A of the Evidence Ordinance (Cap. 8).  As for the rule regarding corroboration of evidence in respect of sexual offences, it was abolished in England in 1994, and the Hong Kong government is currently formulating proposals to amend the relevant legislation with a view to abolishing the rule, and the proposals will be tabled with the Legislative Council in March 1999.  In light of the above, the fact that the trial judge did not mention in her Judgment that she had warned herself as aforesaid does not necessarily mean that the conviction must be quashed.

9. In our view, as far as sexual offences are concerned, it is easy for the complainant to make an allegation but difficult for the accused to refute it, and from time to time complainants may, for reasons unbeknown to the judge or jury, give false evidence.  To deal with these problems, the law has laid down a requirement that the judge, in directing the jury or himself, has to issue a warning of the dangers of convicting a defendant on the uncorroborated evidence of a complainant.  However, if, having been so warned, the jury or judge still firmly believes the complainant’s evidence, they are still entitled to convict the defendant on the uncorroborated evidence.  In the absence of such a warning, the conviction will normally be overturned.  In cases tried by a judge with jury, it is usually easy to ascertain whether the judge has issued such a warning.  On the other hand, in cases tried by a judge sitting alone without a jury or in cases tried by a magistrate, it is often not clear whether the judge or magistrate warned himself as aforesaid before he arrived at the verdict.  Almost all of the judicial precedents in the UK involve convictions being overturned by reason of the judge’s failure to warn the jury, and there are fewer precedents which involve the judge failing to mention in the judgment that he had warned himself.

10. In our view, however, it is one thing to say that the judge failed to warn himself of the dangers of convicting an accused on uncorroborated evidence before he delivered the verdict, and it is quite another thing to say that the judge did or did not mention in his Judgment that he had so warned himself.  Closely related as they are, these two scenarios pose distinct issues.  In R v. CHAN Siu-wong, Rigby CJ, after emphasizing the importance of issuing the warning to the jury or to the judge himself, came to the following conclusion:

“ In so far as Magistrates Courts are concerned, we are fully satisfied that it remains the duty of a magistrate to make it apparent in his judgment or grounds of decision that he has warned himself of the danger of convicting upon the uncorroborated testimony of an accomplice.”  (at page 67)

“The learned trial judge having failed to record that he gave himself, in any terms whatsoever, the warning which in our view was, and is, essential in such cases, we are satisfied that the conviction on this count must be quashed.”  (at page 68)

11. In R v. CHAN Yuet-shing, Jones J made the following observations:

“The necessity for a warning to be given is because a sexual complaint can easily be made, but it is difficult to refute.  It is abundantly clear that it is essential for a magistrate to make a specific reference in his findings to the fact that he has warned himself of the dangers of convicting without corroboration when he is trying a sexual offence.  Although the magistrate in the instant case may have had the matter of corroboration in his mind he does not say so.  Accordingly upon his failure to deal with this issue the conviction must be quashed.”

12. From this, it can be seen that Rigby CJ equated the fact that the Judgment made no mention of the judge having warned himself with the assertion that the judge had in fact not warned himself.  The conviction must, for this reason be quashed.  Similarly, Jones J took the judge’s duty to warn himself to mean that the judge must mention in the Judgment that he had warned himself.

13. In our view, whether the judge has warned himself is distinct from whether the Judgment makes mention of the judge having warned himself.  There is no hard-and-fast rule that a guilty verdict must be set aside where the judge did not mention in his Judgment that he had warned himself.  The core issue is whether the judge warned himself before he delivered his verdict and whether he took extra care in evaluating the case so as to avoid the risk of arriving at a wrong verdict.  If the Judgment shows that the judge has not dealt with the complainant’s evidence with extra caution, the mere mention of his having warned himself will not serve any purpose apart from being unfair to the defendant.  We do not think the appellate court is required to quash a conviction solely because the judge or magistrate did not mention in his Judgment that he had warned himself.  Rather, the appellate court should consider the case as a whole, as well as other factors, including whether the judge or magistrate has dealt with the prosecution evidence, particularly the complainant’s evidence, with special care.  Where the judge or magistrate has in fact dealt with the prosecution evidence and other circumstances with special care and attention, and the evidence is overwhelming, then the appellate court should not assume that, if the Judgment is silent as to whether the judge has warned himself, then the judge must have failed to warn himself.  In other words, whether the Judgment makes mention of the judge having warned himself is not in itself decisive.

14. Nevertheless, in cases involving sexual offences, whether the complainant’s evidence is corroborated is a question that the judge or magistrate has to take note of at the outset.  This is not only highly relevant to the guilt or otherwise of the defendant, but is, indeed, virtually the most fundamental question in the whole case.  This question, therefore, must be very much alive in the judge’s or magistrate’s mind throughout the trial.  It follows that the judge or magistrate must specifically warn or remind himself of the importance of corroborative evidence and the dangers of convicting the defendant on uncorroborated evidence.  Precisely for this reason, the judge or magistrate will certainly have this question in mind when he delivers judgment or prepares the written judgment thereafter.  If he has dealt with the case properly, then there is no reason why he will not specifically address that question in his verbal or written judgment.  Accordingly, if a judge or magistrate makes no mention, whether in the verbal judgment or in the Reasons for Verdict, of the importance of corroborative evidence and the dangers of convicting without such evidence, then generally speaking this probably suggests that he has omitted this fundamental question, because any reasonable judge or magistrate would certainly have applied his mind to and addressed the question.  Therefore, if no mention is made of this question in the verbal or written judgment, then, unless there are special reasons or circumstances, the appellate court should have no difficulty in inferring that the judge or magistrate concerned did not have that question in mind when he was arriving at his verdict.  This conclusion is also reasonable.   This was also the conclusion of Rigby CJ in R v. CHAN Siu-wong and of Jones J in R v. CHAN Yuet-shing, although neither of the two learned judges stated the reasons behind.

15. In the present case, the trial judge had not in her written judgment referred to corroborative evidence or the dangers of convicting without such evidence.  It is true that she had closely examined the complainant’s evidence, but it is by no means clear whether she had taken special care or had reminded herself to do so.  In the present case, the complainant’s evidence against the Applicant was uncorroborated.  She had told the police that she had been raped by the Applicant, but then admitted to the police and in court that it was untrue.  She also pointed out the circumstances in which the alleged sexual intercourse was discovered, namely when she was residing at the home for the children, and her father had asked her to undergo a physical examination before making any allegation against the Applicant.  The complainant from time to time went to and stayed at the Applicant’s premises with other children.  There was also evidence that the complainant had previously run away from home and stayed at the home of a married couple.  These facts made it very dangerous to convict the Applicant in the absence of corroborative evidence.  The trial judge should have exercised special care.  In the circumstances, it was absolutely necessary for her to warn herself accordingly.  Rather surprisingly, her written judgment was silent on this point, and one is concerned about whether she had properly warned herself of the dangers of convicting on uncorroborated evidence.  In such circumstances, we take the view that there are lurking doubts about the Applicant’s conviction, which is thereby rendered unsatisfactory.

16. In the present case, apart from the complainant’s evidence against the Applicant, there was no other evidence to show that the two of them had had sexual intercourse.  In such circumstances, we do not consider it appropriate to apply the proviso to Section 83(1) of the Criminal Procedure Ordinance (Cap. 221).

17. Turning to the fourth ground of appeal, Counsel submits that the trial judge had misinterpreted a response given by the Applicant to the police in his cautioned statement.  When asked whether the complainant had been to his residence in July 1997, the Applicant answered “She has been there many times, I can’t remember.”  At trial, however, he said the complainant had not been to his residence.  The trial judge considered this inconsistent and, on that basis, concluded that the Applicant was unreliable.  In our view, there might have been some ambiguity in the aforesaid answer that the Applicant gave to the police, but that answer and what he said at trial were, respectively, the evidence he provided to the police and to the court, and if there were ambiguities, it was for him to provide an explanation and clarification.  If there had been any misunderstanding, it was caused by nothing other than his failure to express himself clearly.  Furthermore, in light of the evidence, the aforesaid answer could not have been the sole basis upon which the trial judge cast doubts on the credibility of the Applicant’s evidence.  Accordingly, this ground of appeal must fail.

18. For the above reasons, we are satisfied that the Applicant’s conviction is unsatisfactory.  We therefore grant leave to appeal and, treating the hearing of the application as the appeal, allow the appeal.  The trial judge’s verdict is set aside and the Applicant is acquitted.