R. v. Chu Chuen-fu, Robinson

HCMA001420/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1420 of 1996

(On Appeal from ESC No. 3397 of 1996)

____________________

____________________

Coram: Hon. Mr. Justice Yeung in Court

Date of hearing: 20 June 1997

Date of delivery of judgment: 20 June 1997

_______________

J U D G M E N T

_______________

1. The applicant, CHU Chuen-fu, was convicted after trial on a charge of Indecent assault on a male, and was bound over for 12 months. He now seeks leave to appeal against the conviction.

2. The allegation against the appellant was that he touched the victim on four separate occasions in an indecent manner. At the time of the offence, both the applicant and the victim were on board a bus, sitting on the same seat next to one another. According to the victim, the applicant touched him on his thigh twice. The victim originally thought it was accidental but he was put on guard nevertheless. Then the applicant did it on a third time, after which the victim reprimanded him and also told his friend, who was then sitting behind on board the same bus, about the matter.

3. According to the victim, the applicant then touched him on his right chest just beneath his armpit, whereupon the victim became angry and insisted taking the applicant to the police station. When the applicant touched the victim on his right chest, it was witnessed by the victim's friend who, as I said, was then sitting behind the applicant and the victim. After the victim got hold of the applicant, there was a suggestion that the applicant tried to escape but he was chased after by the victim. He was caught hold of, and the police were then informed.

4. In response to the enquiry by the police officer who came to investigate the matter, the applicant said that he must have touched the victim while adjusting his walkman.

5. The learned magistrate accepted the credibility of the victim and the reliability of his evidence. He rejected the explanation of the applicant.

6. In support of this appeal, Mr LOK, on behalf of the applicant, raised one very simple point, namely, that the learned magistrate had not warned herself of the danger in convicting the applicant without corroboration when she gave her short reason for decision at the conclusion of the hearing. And it was further suggested that even in the detailed statement of findings that was prepared by the learned magistrate after the notice of appeal had been filed, the learned magistrate had not properly stated that she had taken into consideration the danger of convicting the applicant without corroboration.

7. In the statement of findings, the learned magistrate said the following: "I was satisfied from what he said and from his demeanour...", that was referring to the evidence of the victim:

"...in giving evidence that he was telling the truth. His credibility was supported by the 'recent complaint' made to PW2, a witness whose evidence I also saw no reason to doubt. PW2 also corroborated his evidence but only as to the 4th touching. Because of this limited support, I reminded myself of the special need for caution in approaching PW1's evidence. Nevertheless I was satisfied so that I was sure that his account had been an entirely accurate one."

8. The learned magistrate might not have stated expressly the danger of convicting without corroboration, but she clearly had that question in mind. Indeed, she was treating the allegation of the victim as uncorroborated and hence the special need for caution.

9. In this regard, it was, in my view, incorrect to suggest that the learned magistrate did not appreciate the question of corroboration. It was also incorrect to suggest that she had not warned herself of the danger of convicting without corroboration. If she did not have in mind the question of corroboration, she would not have mentioned the special need for caution.

10. It was also suggested that in the short reason for decision, the learned magistrate had not mentioned issue of corroboration. It must be noted, though, that the law does not require a magistrate to give full reasons at the time of convicting an accused in a trial. Indeed, it was not required of the magistrate to give any reason at all other than his or her decision to convict. The law only imposed upon the magistrate the duty or obligation to give a statement of findings within a certain period of time.

11. While it was true that it would have been better if the learned magistrate could have spelt out in clearer terms on all relevant matters because she had, after all, given a fairly lengthy reason for decision on the need of corroboration. But having considered the entire reason for decision, together with the subsequent statement of findings, I am of the view that the record, as it was presented to this court, had indicated that the learned magistrate had, in fact, in mind the question of corroboration in dealing with the charge against the applicant. One must not ignore that magistrates are professional tribunals. It is not necessary for them to spell out precisely and in details all matters of law involved in a particular dispute.

12. And insofar as the actually wording used was concerned, the law did not require any particular form, as long as it was clearly demonstrated that the learned magistrate had such matters in mind.

13. Mr LOK has raised a very simple point and a short point on the issue involved in this case, a point that I do not agree with. I am satisfied that the applicant, on the evidence, had been properly convicted and there was nothing unsafe and unsatisfactory about such conviction. In the circumstances, the application for leave to appeal has to be dismissed.

Representation:

Miss Lily TSE, Senior Crown Counsel, for the Respondent.

Mr Lawrence LOK, Q.C., leading Mr C L LO (Yeung & Chan) for the Appellant.