HKSAR v. LAM CHAK SANG ROGER

HCMA602/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 602/2005

(ON APPEAL FROM TMCC 97 of 2005)

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J U D G M E N T

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1. The appellant in this case appeals his conviction for indecent assault. 

2. He was the manager of a ward at a hospital where there was a junior, recently graduated nurse who worked under him.  She complained that in an office off the ward he indecently assaulted her.

3. She gave evidence over a day in the Magistrates’ Court and related the details of what had occurred.

4. She was subjected to a probing cross-examination by senior counsel.  The defendant did not give evidence.

5. Let me make it absolutely clear, the fact that he did not give evidence does not support any inference of guilt, but in this case the consequence of his election was far reaching.  It meant there was nothing to rebut the allegations made by the complainant.

6. The fact was that there were two adults in this small room.  Neither, on the face of it, suffered from any condition that would have stopped them being able to give a credible account of what occurred in the short time that they were in there alone together.  Both held responsible jobs.

7. In our system the tribunal of fact is obliged to decide the case according to the evidence and the evidence in this case came entirely from one of those people.  It was all one way.

8. In those circumstances unless that evidence which was given by the complainant, in effect, contains the seeds of its own destruction, it seems to me a conviction will inevitably follow and I could really dispose of this appeal very quickly by saying, “Having read the material before me, on which I am obliged to make my decision, it is quite clear that that evidence did not contain the seeds of its own destruction.” 

9. Any criminal lawyer knows that if you cross-examine someone about a short incident over a whole day you will be able to make a speech that includes jury points.  It is no disrespect to Mr Duncan, who did not appear below, to say that what he comes here with are some jury points.  He is quite entitled to come and make them again to me, but they pale into insignificance given the enormous weight of the evidence that existed which, as I have said, was all in one direction.

10. The jury points, obviously, went to the credibility of the complainant.  Mr Duncan today has concentrated on three of them and I will deal with them.

11. The first point was that what the complainant described simply could not have taken place, or it was highly unlikely that it could have taken place, given the layout of the room, and especially a chair, a desk and a computer table where she was working when she said the appellant touched her indecently.

12. I have seen the photographs, I have looked at the plan, and I have been taken through the transcript where evidence deals with the layout and any gap that existed between the back of the chair and an adjoining desk.  It is quite clear to me that if the appellant had wanted to behave in the way that the complainant alleged, he could quite clearly have done so in the circumstances.  It is easy to see how the keyboard could have gone in a small way, the chair could have gone forward a small way and made the gap that the evidence said did exist there, albeit a narrow gap, slightly bigger, and we all know it is quite easy to slide through small spaces.

13. I agree with what the magistrate said at paragraph 49 of his statement of findings.  He said, “I am in no doubt whatsoever that the defendant was able to manoeuvre himself into a position to touch her, as she alleged.”  The view seen in photographs and the application of common sense shows that it would not have been impossible, as is alleged, for the defendant to reach under the arm of PW1, leaning forward and typing as she was, to touch her breast and once it was physically possible to do that the argument that it was unlikely it could happen disappeared.

14. The second point argued was that there was a conflict between the complainant, who said there had been no discussion about going to the police in a phone call she made to a friend who was called, who was PW2, who said that it had, in fact, been mentioned.  PW1 said there was no discussion about going to the police and PW2 agreed with that.  But PW2 was asked a further question, “Was there no mention of it?” and she said there was one mention of it.  This was in a phone call that lasted some 1½ hours.

15. The magistrate, it seems to me, very sensibly in dealing with this matter said that it may be that PW1 failed to remember that single mention, or it may be that PW2 was in error.  I can see nothing wrong with his assessment of that and I agree with it.  The weight this point had in the attack upon her credibility was limited, in my judgment, to the extent that it causes me, as it caused the magistrate, no qualms about acting on the word of PW1.

16. The third point was what PW1 said about why she did not call out, or cry out at the time of the incident.  I think a fair reading of the transcript reveals a perfectly credible series of explanations.  There would have been a host of things in her mind, if the appellant had acted in the way she described.  And the evidence, I judge, in a very credible way, reflects an honest witness doing her best to try and say all of those things that went through her mind at the time, in a situation which one would expect her to be, as the magistrate found, bewildered.

17. There were other points taken in the perfected grounds of appeal and the skeleton argument, as there were other points taken which mirrored them in argument by counsel to the magistrate at trial, but in the circumstances there is no need for me to deal with them.  That is because on the evidence available to me I am sure the prosecution discharged the burden upon them, through the mouth of a credible witness, of proving the offence beyond a reasonable doubt.

18. I reached that conclusion on the material before me, without looking at the opinion of the magistrate in his statement of findings as to how that witness struck him. 

19. In fact, I am entitled to look at it and what I find is this: the magistrate saying

“She impressed me as an intelligent woman, frank, open and straightforward in her approach.  She was sensible, responsive to questions, balanced, logical and sequential in her account and was able to give detailed particulars of material events.  She was spontaneous in her replies and handled her intensive cross-examination in a competent and convincing manner.  When she could not remember, she said so.  She did not try to fill in the blanks in her memory by embellishment.  She made the sort of sensible concessions which one would expect of an honest witness.  She was firm as to the substance of her account of events, which was not inherently improbable.  It follows from what I am saying that I find her to have been an impressive and believable witness.”

20. That comes from the pen of a very experienced magistrate who wrote a statement of findings that dealt with every point that was made in a way that conspicuously displayed both fairness and industry and I feel confident in relying on his assessment.  That assessment that I have taken care to read out at some length and quoted in full, depends not wholly or even to a greater part on his subjective assessment of her demeanour in court.  There are matters there which one can see are supported by a reading of the transcript.  I have a full transcript.

21. Even if you took a different view of it, when a witness of whom that can be said gives evidence against you in a trial and you choose not to say anything to rebut it, what can be the outcome?

22. I have not forgotten, and neither did the magistrate, that the appellant was a man with an exemplary character.  At paragraph 8 the magistrate spoke of his maturity, his sense of responsibility, his decency and the respect in which his colleagues held him.

23. Notwithstanding that high character, the conclusion on the evidence is inevitable and the appeal is dismissed.