HKSAR v. CHOU LOI CHUN

HCMA358/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.358 OF 2002

(ON APPEAL FROM KCCC3352 OF 2001)

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J U D G M E N T

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1) The appellant was convicted by Ms Judy Ma, Deputy Magistrate on 22 March 2002 of the offence of indecent assault and he was sentenced to three months' imprisonment. He has now served the sentence and his appeal is only against the conviction.

2) The appellant is a Chinese herbalist and the indecent assault is alleged to have occurred on the evening of 21 August 2001 in the appellant's clinic in Nathan Road. At the trial, the victim gave evidence that at the material time there was no one else present in the clinic because all the other patients had left. She said that when the appellant was writing the prescription, the appellant asked her some personal questions including whether she had sex with her boyfriend. She answered him that she did have a sexual relationship with her boyfriend. The appellant then started to press on the victim's chest. He asked her whether she suffered from anything on her chest, and he appeared to be in the process of examining her chest. After that, on two occasions, the appellant inserted his hand inside the victim's blouse top and squeezed her left breast. On the first occasion, he asked her whether she suffered from any disease and on the second occasion, apart from squeezing the victim's breast, the appellant also squeezed her nipple.

3) After the trial was concluded, the magistrate adjourned the case for a week to consider the evidence. When she returned her verdict, she gave her reasons briefly in open court. She said that even though the prosecution called two prosecution witnesses, she would disregard the evidence of the victim's friend (to whom the victim had made a complaint the same evening of the assault) because the magistrate was of the view that the friend was only repeating what she had heard from the victim. The magistrate then mentioned that the victim was the only witness in the case and even though the corroboration warning in sexual cases had been abrogated, she would still deal with the victim's evidence with care. She said that she had gone through the evidence of the victim in great detail and found that her evidence was truthful and she was an honest witness.

4) The magistrate then dealt with the victim's evidence and mentioned the fact that in her statement to the police, she had mentioned two more occasions when her breast was squeezed by the appellant and also that the appellant had pulled open the top of her garment and looked inside at her breasts. The magistrate mentioned that the victim's explanation for not mentioning these other assaults in court was that this was an unpleasant experience for her and she was trying not to remember the occasion, and that was the reason why when she read the statement, she just had a glance of it, and in court she just gave evidence according to what she remembered. The magistrate accepted the victim's explanation for this and found that the omission by her to mention the other assaults that she had mentioned in the statement to the police did not in any way affect her credibility.

5) The magistrate then went through the appellant's evidence and concluded that she did not accept his evidence and did not find his version of events to be logical. She repeated that she accepted the evidence of the victim and she then convicted the appellant.

Grounds of appeal

6) Mr Jenkyn Jones, counsel for the appellant, advanced a number of grounds of appeal, the first of which was that the magistrate failed to take into account or properly analyse aspects of the victim's evidence which tended to undermine her credibility, that the magistrate reached wrong conclusions based on flawed reasoning and analysis of the improbable explanations provided by the victim, and that she failed to look at the victim's evidence as a whole. The main thrust of this ground of appeal was the fact that in her evidence in court she omitted to mention the other assaults which she had mentioned in the police statement. Counsel also relied on the fact that in her evidence in court she had said that the appellant touched her over her brassiere while in her statement to the police she had said that he inserted his hand inside her brassiere to touch her breast.

7) The second ground of appeal was that the magistrate had, in effect, shifted the onus of proof onto the appellant because she sought from the appellant a positive reason as to why the victim should not be believed, a positive reason or motive for the victim to lie and a logical or reasonable account from the appellant as to the victim's behaviour. I do not agree with that submission. What the magistrate was doing was, having considered the appellant's evidence, she concluded that it was unreasonable and illogical for the victim to tell the appellant about her private life and about her sexual relationship with her boyfriend without being asked about those matters by the appellant. The magistrate also found that it was quite extraordinary that the appellant did not stop the victim from telling him all these things which were not related to her illness although he found at the time that her talking did interfere with his writing out of the prescription. I find nothing in this ground of appeal.

8) The second ground was, in fact, connected to the third ground which was that the magistrate was wrong to conclude that the appellant was evasive and that as a professional herbalist he should have told the victim to stop talking, and that a failure to do so rendered his evidence unbelievable in its entirety.

9) The last ground of appeal was that the magistrate was in error in failing to take into account the inconsistencies between the victim's evidence and her friend's evidence because the inconsistencies would have shown the unreliability of the victim's evidence.

10) Ms Lai, for the respondent, submitted that the magistrate was correct to disregard the friend's evidence because the friend's evidence was merely a recital of the victim's statement and she did not give evidence based on her independent memory of the event. Counsel submitted that this evidence was not reliable and should not be taken into consideration for whatever purpose. I agree with that submission. There is no value in looking at the friend's evidence to try and reinforce the inconsistencies in the victim's testimony.

Determination of the appeal

11) Under our criminal justice system, the prosecution prefers a charge against a defendant. The prosecution then has to try and prove beyond a reasonable doubt that the defendant is guilty of that charge. The prosecution endeavours to do that by adducing evidence before a trial magistrate or a trial judge sitting with or without a jury. The trial magistrate or trial judge sitting without a jury is both judge and jury. He listens to the evidence and he observes the manner in which that evidence is given by the prosecution witnesses. He then decides whether he accepts the evidence and whether the evidence is sufficient for the prosecution to discharge its burden beyond a reasonable doubt. An appellant court does not have the opportunity of listening to the evidence and observing the manner it was given and therefore should be slow to reverse any findings of fact by a trial court.

12) The Court of Appeal in The Queen v. Sheik Abdul Rahman Bux, CACC No. 756 of 1981, cited with approval what was said by Blair-Kerr J in The Queen v. R.E. Low [1961] HKLR 13, at page 82, when he said :

"... But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellant court should act with the greatest caution before interfering with the District Judge's findings if, having regard to the whole of the evidence, such findings appear reasonable."

In The Queen v. Hui Kee Fung, HCMA No. 196 of 1994, Keith J said, at page 7 :

"... appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exist."

13) In the instant case, the magistrate in her Statement of Findings considered the possibility of the victim making up the story against the appellant. She mentioned that the victim's mother was also a patient of the appellant and her mother's health condition improved after consulting the appellant, and the victim wished her mother to continue to see the appellant for treatment. She found that the victim had no ill feeling towards the appellant in relation to his professional proficiency. She concluded that the victim was a responsible and hardworking young lady and from all the evidence before her, the magistrate concluded that she could not find any reason why the victim would invent or make up these allegations against the appellant.

14) I have gone through the transcript of the evidence of the victim and that of the appellant, and I cannot say that, having considered that evidence and the grounds of appeal advanced, I find that there is any lurking doubt about the safety of the conviction. The appeal is therefore dismissed.