R. v. SIBAL MARLYN B.

1996, No. MA 1300

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted of two charges of indecent assault of a 5 year old girl. The main witness of the prosecution is PW1 the victim. She had given a video recorded interview prior to the trial. The admissibility of this video record as her evidence in chief was debated before a magistrate who was not the trial magistrate. During those proceedings, the magistrate ruled that the video record was admissible. The issue of admissibility was not at issue before the trial magistrate. The video record was adopted by the prosecution as the evidence in chief of PW1 and her evidence at the trial was mainly that of her cross-examination and re-examination. Submission was made at the trial by counsel for the appellant that two documents namely, the Memorandum of Good Practice on Video Recorded Interview of Child Witness for Criminal Proceedings and the Report of the Enquiry into Child Abuse in Cleveland were referred to during argument on admissibility to show the video recorded interview was not conducted in accordance with the rules and recommendations in these two documents. The magistrate was asked to consider the weight of the video recording having regard to these rules and recommendations. In the video recording, PW1 in the course of interview had demonstrated how the appellant indecently assaulted her during bathing time on the two occasions in question. These consisted of poking her private part and pinching her breasts. There was no corroborative evidence. The appellant gave evidence to the effect that she did not do such acts. The magistrate after he had considered PW1's evidence and warned himself of the danger of relying on the uncorroborated evidence of a young child accepted her evidence. He did not believe the evidence of the appellant.

2. Complaint was made in this appeal that the magistrate did not consider the two documents in relation to the weight to be attached to the evidence of PW1.

3. The magistrate considered these two documents in his statement of findings and he found that they were not part of the laws of Hong Kong and these were no more than advice on conduct of such interviews. Counsel for the appellant submitted that in the case of John Dunphy (1994) 98 Cr.App.R.393 C.A., it was indicated by the Court in UK that if these guidelines or practices were not observed there were grounds for the judge or jury to consider with particular care whether the child was telling the truth.

4. These two documents do not form part of the laws of Hong Kong. What weight to be given to the evidence of PW1 is a matter for the magistrate. The John Dunphy case is no authority that where there was a breach of such guidelines or practices the evidence of the child PW1 should be given little or no weight. The magistrate was aware of the way the video recorded interview was conducted and what rules or practices in the two documents were not followed. In his findings he said :

" I considered the submissions. I did not think there was cause for concern. With respect, I did not think some of the points made were ever there."

Later the magistrate referred to the matter of leading questions and other matters which were on the face of it not in accordance with the recommendations. He said that PW1 had mentioned certain particulars as to how she had been poked. He noted that apart from verbal indications, PW1 had demonstrated.

5. It is implicit from his findings that he had all these matters in mind when he considered what weight he should put to the evidence of PW1.

6. On the evidence as to the behaviour of children and PW1, the magistrate said he did not regard PW4 the teacher of PW1, as an expert to give opinion on behaviour of children in general or PW1 in particular. He further said :

"It was not clear what and how much experience PW4 had had with sexually abused children."

7. The emotionally state of PW1 according to the evidence of PW4 was dealt with by the magistrate extensively. The magistrate could not be faulted in not regarding PW4 as an expert where there was no evidence to show that she was expert in the particular fields of child behaviour, child psychology and child abuse. The magistrate was aware that there was a difference between the feeling of a child and those of an adult in similar circumstances as the present case. The magistrate could not be wrong when he placed little weight on such evidence.

8. Complaint was made that the magistrate ought not to have accepted the uncorroborated evidence of PW1 because PW1 regarded a cartoon character as real and at one stage in her cross-examination agreed that the applicant never poked her private part or pinched her breasts, and because PW1 said nothing happened when she was asked if anything had caused her genital soreness. In addition, it was submitted that PW1 in the video recording failed to indicate where she had been poked and she had been agreed that everyone washed her at bathing time in the same way as the appellant which added to the unreliability of the evidence of PW1.

9. On these matters the magistrate said :

"... PW1 regarded a fictitious cartoon character as real. Towards the end of cross-examination, PW1 agreed with suggestions that the Defendant never poked her private part or pinch her breast. There were admittedly parts of PW1's evidence in Exhibit P1 that were unclear and even contradictory. I took all these into account in assessing PW1's evidence. The propensities of young children I mentioned in my oral decision were applicable to PW1. I also bore in mind that sometimes children of her age did not say what they meant. All these considerations did not yield the conclusion that children of PW1's age could not be believed. I felt, however, it was vital to proceed with utmost caution."

10. Thus, the magistrate had in his findings dealt with all the matters raised by counsel for the appellant. There was nothing inherently improbable in the evidence that the magistrate should not conclude as he did.

11. The final complaint was there was no evidence to support the magistrate's finding that the appellant had lied.

12. The magistrate in dealing with the appellant's evidence said that the appellant had lied in the box. The magistrate was there merely to say that he did not believe the appellant did not do what PW1 had alleged against her. The conviction cannot be regarded as unsafe or unsatisfactory. The appeal against conviction must be dismissed.