HKSAR v. Lam Hung on

HCMA000829/2000

HCMA829/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.829 OF 2000

(ON APPEAL FROM STCC No.504/2000)

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Coram: Hon Cheung J in Court

Date of hearing: 28 October 2000

Date of judgment: 3 November 2000

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J U D G M E N T

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The appeal

1. The appellant was convicted after trial on 23 June 2000 of one charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200 and was sentenced to 60 hours of community service and ordered to pay costs of $2,000. He now appeals against the conviction.

The facts

2. The facts of the case show that the appellant was a medical doctor. On 3 February 2000, the complainant went to the clinic of the appellant because she was feeling ill. She was accompanied by her boyfriend. At the clinic the complainant went into the examination room of the appellant while her boyfriend remained in the waiting room. The complainant lied on the examination table and the appellant then listened to her stomach area with a stethoscope for a while. Then he used his right hand to press down on her stomach while his left hand was placed on top of her right breast. The appellant did not move his hand that covered the complainant's breast, but with his right hand, he pressed her stomach all over and asked if it hurt when he applied pressure.

3. The complainant estimated that this went on for 40 to 50 seconds. She was too scared to confront the appellant and did not ask him why he had one hand on her breast. When she finished the consultation she went to the waiting room. She immediately told her boyfriend of what had happened. Her boyfriend became very angry and confronted the appellant who denied touching the complainant's breast during the examination. The police were called.

4. The appellant denied that he had touched the complainant's breast in the way alleged for any period of time. He said his left hand would have been placed on the side of the examination table whilst he used his right hand to examine her stomach area. The magistrate accepted the evidence of the complainant and find that she had been indecently assaulted.

Ground of appeal

5. The ground of appeal is that the magistrate failed to direct herself of the danger of acting on the uncorroborated evidence of the complainant. The Evidence (Amendment) Ordinance 2000 abolishes the corroboration rule in sexual offences. The abrogation, however, does not apply to any trial that commenced before the operative date of the amendment, namely, 30 June 2000. The trial took place on 23 June 2000. Since the trial took place prior to the amendment coming into effect, the corroboration rule still applies.

The corroboration rule

6. The corroboration rule is that the judge should warn himself on the danger of acting on the uncorroborated evidence of the complainant in a sexual offence. Having warned himself of this danger, the judge may still convict the accused if he is satisfied beyond reasonable doubt that the complainant is telling the truth.

The authorities

7. In HKSAR v. Kwok Kau Kan [2000] 2 HKLRD 1, Chan CJHC following the decision of the Court of Appeal in HKSAR v. Lee Kam Wing (Crim. App. No.353 of 1998) held that :

"... whether in the reasons for verdict the Judge had stated that he had given himself the warning is one thing, but whether he had actually given himself that warning is quite another. The absence in the reasons for verdict of any reference to the usual warning is not necessarily fatal. A professional judge is expected to have applied the correct law and procedure, unless it is clearly shown that he had not. Even if a trial judge did not mention that he had given himself the warning, this does not mean that he had not in fact done so. The important thing is whether he had indeed exercised caution in approaching the uncorroborative evidence of the complainant. However, in a trial without a jury, the risk of convicting a person of a sexual offence without corroborative evidence should be in the forefront of the judge's mind. This is an issue which should be in his mind during the course of the trial, particularly at the time of deliberating on the evidence and before coming to his conclusion. If so, it is reasonable to expect that he would mention it when he comes to putting his reasons for the verdict into writing. And if he has not referred to such warning, one would begin to wonder whether he had indeed exercised caution and warned himself of this danger. It may then be necessary to examine the entire reasons for verdict to see whether he had done so or not."

This approach in fact is a departure from two previous cases of R. v. Chan Siu Wong [1970] HKLR 61 and R. v. Chan Yuet Shing (MA 1009/1985) in which the court quashed the convictions where the judges had not mentioned in their statement of findings that they had warned themselves of such a danger. In the earlier Court of Appeal decision of Wu Sui Yee & Others v. The Queen [1969] HKLR 224, the court held that :

"... when a judge sitting without a jury is mindful of convicting on the uncorroborated evidence of an accomplice all that is necessary is that he should make it clear that the danger of so convicting was present in his mind. Adopting that test we can find no fault with that part of the reasons of the trial judge for the verdict in this case."

8. In Kwok Kau Kan, the trial judge did not expressly mention that she had warned herself of the danger of convicting the applicant without the corroborating evidence. However, the Court of Appeal accepted that the judge had exercised great care when considering the complainant's evidence and that she had exercised extra caution before reaching her verdict. The Court of Appeal stated that what the trial judge had done had served the purpose, and it ruled that the applicant had failed to make out a ground of appeal.

9. In HKSAR v. Cheng Tin Wai, HCMA 962/1998, Pang J allowed an appeal where the magistrate did not direct herself on the issue of corroboration. In HKSAR v. To Fuk Wing (MA 583/2000) Tong J referred to the failure of the magistrate to give the warning but it was obvious that his decision of quashing the conviction was not based on the failure to give warning.

The proper approach

10. In my view the proper approach should be this : one starts with the basic requirement that the magistrate should show that she had expressly given herself the warning. The failure to give the warning indicates that the danger of acting on the uncorroborated evidence was not present in her mind unless from an examination of the findings one can say that the magistrate had indeed exercised such caution. In other words, she had actually warned herself of such a danger without using the word 'warning'. It is the approach that the magistrate adopted in considering the evidence that one should pay particular attention.

11. Mr Ching Y. Wong, SC, counsel for the appellant, submitted that in magistracy appeals, there is no provision in the Magistrate's Ordinance, in contrast with the position of an appeal to the Court of Appeal, which entitles the court to dismiss the appeal if no miscarriage of justice had actually occurred despite the fact that the point raised in the appeal may be decided in the appellant's favour.

12. I do not think the point is whether the proviso in section 83(1) of the Criminal Procedure Ordinance is available in magistracy appeal or not, but rather, the Court of Appeal in the two recent decisions held that it is important to see whether the judge had indeed exercised caution in approaching the uncorroborative evidence of the complainant. To that one is required to look at the findings of the magistrate.

The magistrate's findings

13. It is clear from the available documents that the magistrate had not expressly stated that she had given herself the warning. In her Brief Reasons for Verdict which she delivered on 27 June 2000 and in her Statement of Findings dated 31 July 2000 prepared for the purpose of the appeal, the magistrate stated that she had reminded herself that the appellant was a medical doctor for many years, he was 63 years of age without any criminal record, and there was never any previous complaint made against him. She cautioned herself that this was a case which involved the evidence of one witness against the other; she had considered whether the complainant and her boyfriend had made up a story to frame the appellant and she also considered the discrepancies in the prosecution's evidence.

Two matters

14. These are clearly matters that can be said in the magistrate's favour on the approach she had taken in assessing the evidence of the case. However, there are two matters in this case which, in my view, the prosecution is not able to overcome in showing that the magistrate had the warning in her mind on a charge relating to sexual offence. The first matter is this : when defence counsel in his closing submission referred to the lack of corroborative evidence, the magistrate responded by stating that corroborative evidence was no longer required. In her Brief Reasons for Verdict and also in her Statement of Findings, the magistrate stated that the prosecution was not required to produce any supporting evidence. The magistrate was, of course, right when she said that indecent assault was not an offence which required to be proved by corroborative evidence. However, her response that corroboration was no longer required and the lack of express warning in her findings are indications that she might have totally overlooked the rule on warning or had mistakenly thought that the rule was no longer required in trials that took place prior to 30 June 2000. If that was her approach, then clearly she had not actually warned herself of the danger of acting on the uncorroborated evidence of the complainant.

15. The second matter is this : in delivering her verdict on 27 June 2000, the magistrate stated that :

"第一證人嘅證供，關於非禮，係冇獨立證供-冇其他獨立證供，冇助證嘅證供，雖然控方唔需要提出助證嘅證供，不過我都有考慮呢點，個原因控方就係倚賴第二證人畀證供，因為佢證供係證明第一證人喺第一個時間有投訴被告係非禮佢，第一證人喺醫生房出嚟之後即時話畀第二證人聽。”

(page 38 of the transcript)

The translation is this :

The evidence of PW1 on the indecent assault is without independent evidence, this is no corroborative evidence, although the prosecution does not need to provide corroborative evidence, nonetheless, I have considered this point, the reason being that the prosecution relies on the evidence of PW2 (i.e. the boyfriend), because his evidence proves that PW1 had complained about the indecent assault by the accused, PW1 immediately informed PW2 when she came out from the doctor's room.

Reading the passage, one is faced with the ambiguity of the language. Was the magistrate saying that although the prosecution did not need to prove corroboration, there was in fact corroborative evidence by reason of the recent complaint of the complainant? The law is that recent complaint does not amount to corroboration. Mr Tam, counsel for the Government, submitted that considering the context in which this statement was made, the magistrate, who is a professional judge, in fact was saying that the recent complaint did not amount to corroboration. I am unable to come to the conclusion that Mr Tam suggested in the light of the language used. The matter can, at best, be said to be ambiguous. The magistrate certainly did not say that the recent complaint did not amount to corroboration.

Importance of the rule

16. If it is unclear whether the magistrate had proceeded on the basis that the case before her was one that no longer required her to consider the rule on warning and whether she had thought that there was corroboration, then clearly it can legitimately be said that there are lurking doubts that she did not have the warning at the forefront of her mind when she considered the evidence. Many of the criminal charges are brought on the strength of the evidence of one witness only and someone making false accusations against another is also not uncommon in a criminal case, hence a reference to these matters are not by themselves sufficient to show that the magistrate had actually warned herself of the danger bearing in mind the two matters I had stated earlier. The rule on warning in sexual offences was a unique one and was so clearly well established that legislation was required to abolish it. The rationale about the warning is that allegation of sexual misconduct is easy to make but difficult to refute. Hence its importance in considering whether a verdict is safe and satisfactory must be emphasized. Considering the case as a whole, and I mean no disrespect to the magistrate, one cannot say, without any doubt, that the importance of this rule had been recognized in this case. The rule on warning is now no longer required but one must apply the law that was in place during the trial.

Conclusion

17. In my view, the verdict is unsafe and unsatisfactory. The appeal is allowed, the conviction is quashed and the orders made by the magistrate are set aside.

Representation:

Mr Ching Y. Wong, SC, leading Mr Alex Lai, instructed by Messrs Au Yeung, Cheng, Ho & Tin, for the Appellant

Mr Simon Tam, SGC of Department of Justice, for the Respondent