THE QUEEN v. WONG TSE SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 515 OF 1991

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JUDGMENT

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1. This was an appeal against convictions and sentence on two charges before Mr. Peter White in the Tsuen Wan Magistrates Court on 11th February 1991. At the conclusion of the hearing I dismissed the appeal against the convictions but allowed that against sentence. I said I would hand down reasons later. This I now do.

2. It was the Crown's case that on 17th October 1990 the appellant and two other men, who have hot been located ordered two young girls, the subject of the two charges to enter a car, then bodily dragged one of them, Miss Cheung Yim Fan, into the car after which Miss Lo Kwun Ming also into the car and they were taken to a flat at Yaumatei. There they were held against their will by the appellant and the other man for a period of about one hour. During that time advances of a sexual nature were made to them but not by the appellant and not in his presence.

3. There have been several grounds of appeal filed. The first one was that the trial magistrate should have called on the Crown to elect as to when exactly the false imprisonment began - was it when the girls got into the car or was it when they reached the flat. Clearly the magistrate himself was concerned about this and asked on the first day of the hearing whether it was the Crown's case that the false imprisonment occurred in the car. He received the reply from counsel prosecuting on a fiat that he had not given a thought to this aspect. He later said that it was the prosecution's case that this was one incident of false imprisonment and if the trial magistrate was satisfied that during any period either in the car or in the flat there was an unlawful imprisonment the offence was proved. It was for the Crown to prove only that at some time after the girls got into the car until they were finally released from the flat they were detained against their will and the appellant was a party to that detention while it most certainly was a question, which the Crown should have considered before being asked by the magistrate I do not consider that the fact that the first part of the alleged detention was in the car and the second part was in the flat makes the charges bad for duplicity, as has been argued.

4. It is a further ground of appeal that the, trial magistrate allowed in a great deal of irrelevant and prejudicial evidence. There was a considerable amount of evidence given as to events which took place oh 12th October, some five days before the date of the alleged offence. On that occasion miss Cheung gave evidence that having previously met the appellant at a barbecue, he approached her after school and eventually she went with him to his flat in Yaumatei, the same flat where she was subsequently taken on 17th October. There she alleged that he made advances of a sexual nature to her which she rejected. There was also evidence that on the 17th October both girls were sexually assaulted by persons other than the appellant and not in his presence and there was some attempt made to make them drink coke to which some substance had been added, the obvious implication being that this was some form of drug though there was no evidence that such was the case.

5. I was satisfied that indeed quite a deal of irrelevant evidence was called in this case as result of which it lasted for some four hearing days. However I was also satisfied, having read the trial magistrate's statement of findings, that this irrelevant evidence, although it unduly prolonged the trial, did not in any way influence his decision and the appellant was not prejudiced thereby.

6. It was finally argued that the trial magistrate failed to warn himself of the danger of convicting the appellant upon the evidence of the first and second prosecution witnesses who were young girls giving evidence of events which clearly had a sexual background and that he did not set out what he considered to be evidence capable of corroborating their testimony.

7. The trial magistrate was fully aware that he should look for corroboration, although it was strictly not required in law. I am also satisfied that the evidence of each of these girls was corroborative of the others evidence and the trial magistrate found them both to be convincing witnesses. This was particularly so of  Miss Cheung. It was also suggested that Miss Cheung, because she had the appellants pager number and said that she did in fact use it to call him occasionally, was concealing evidence that in fact she had encouraged his attentions. There was also, Mr. McCoy submits, considerable inconsistencies within the girls' evidence. He also submitted that Miss Cheung's evidence that she had been dragged through some railings into the car was so inherently unlikely that the magistrate should have rejected it. In my view this evidence may well have been exaggerated. However there was clear evidence that having entered the car, whether by force or not the girls were taken to the flat in Yaumatei and there the trial magistrate had no doubt they were detained for a period of about one hour against their will. I saw no reason to question that finding of fact which was supported by ample evidence.

8. I was satisfied that there was evidence justifying the magistrate in convicting the appellant on both of the charges and the appeal against conviction was dismissed.

9. The appellant also appealed against his sentence of detention in a training centre. Full reports were called for by the trial magistrate from a probation officer, from the training centre and from the Young Offender Assessment Panel - this apparently is a non-statutory body which does however assist magistrates in cases such as this. I have no doubt whatever that having read these reports the magistrate was quite entitled to decide that this young man required a period of discipline in a training centre and that as a place was available for him it was the proper sentence to pass. However I accept what Mr. McCoy says on his behalf that he finds life in the training centre extremely difficult. As has been said in previous occasions an appeal court should be slow indeed to interfere with a sentence because of an appellant medical condition. These are matters usually best left to the executive arm. There are however most unusual circumstances present here in that there is no dispute that from birth the appellant has been incontinent and that condition requires him to wear a form of diaper. In an institution such as a training centre that must be acutely embarrassing. I was also impressed by the presence of this appellant's family and assurances that they are most concerned about him and will do everything they can to help him. Dr. Naing, the medical officer at the Pik Uk Correctional Institute said that "concerning about his faecal incontinence socially and psychologically he is considered not appropriate for institutional training". The appellant was convicted in February of this year and has now been in an institution for some seven months. I am assured that he now realises what this means and that he is desperately anxious to be released and will not risk being again in detention. Not without some reluctance I therefore allowed the appeal against sentence and in place of the training centre order sentence the appellant to one years imprisonment to be suspended for a period of one year on condition that he resides with his parents, is at home between the hours of 10 p.m. and 6 a.m. and complies with my instructions given to him as to treatment for his medical condition.