HKSAR v. Cheng Wei Ching

HCMA000205/1999

HCMA205/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 205 OF 1999

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Coram : Deputy Judge Tong in Court

Date of Hearing : 9 July 1999

Date of Judgement : 18 August 1999

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JUDGEMENT

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1. The Appellant was charged with one count of Indecent Assault, contrary to s.122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.

2. The particulars stated that the Appellant on 30th October 1998 at the junction of Peking Road and Hankow Road, Tsim Sha Tsui, in Hong Kong, had indecently assaulted another person, namely, Choi Pui-wing.

3. The Appellant pleaded not guilty to the charge and was convicted after trial. He was sentenced to 120 hours of Community Service Order. The Appellant sought to appeal against the conviction only.

4. At both the trial and the appeal hearing, the Appellant was legally represented. Having heard the submissions by Counsel for the Appellant and the Respondent, I had adjourned the case to consider.

5. Counsel for the Appellant had very helpfully prepared a skeleton argument which set out all his points in a very clear manner. First, he argued that the Magistrate had only applied one limb of the good character direction, i.e. the propensity limb but not the credibility limb. Second, he argued that the Magistrate had given insufficient weight in assessing the good character of the Appellant in view of the good character evidence presented by the defence. In this regard, it was further pointed out that the term "glowing references" used by the Magistrate indicated that she was rather "grudging" in giving positive consideration to the Appellant's good character. Third, he argued that the Magistrate had made an inconsistent finding of fact in relation to the Appellant's evidence and that of the defence witness. It was argued that if the Appellant had been truthful about the appointment with his girlfriend, i.e. DW2, the Magistrate should consider that this would enhance his credibility. Fourth, he argued that there was no corroboration of the Complainant's evidence. Fifth, he relied on the inherent improbability of the Complainant's evidence and argued that it could be a case of accidental touch.

6. On the other hand, Counsel for the Respondent argued that the Magistrate had adequately dealt with all the matters raised which were essentially questions of fact and assessment of credibility of witnesses. In the end, the Magistrate had rejected the Appellant's evidence and found the Complainant to be a credible witness. There was nothing unsafe about the conviction.

7. The facts of this case were rather straightforward. The prosecution had called a total of four witnesses at the trial. The main witness being PW1, the Complainant. She said that at the material time, i.e. about 6 p.m. on 30th October 1998, she was walking along Peking Road towards Canton Road. There were people in the street but it was not crowded. Then, she noticed the Appellant walking towards her. When the Appellant walked passed, he used the back of his hand to press on her inner thigh near her private part. Further, he dragged his hand across the front of her left thigh towards her left hip area and then he pinched her somewhere near her left hip. PW1 then followed the Appellant and later made a complaint to the police by using a mobile phone at a bus stop.

The Appellant had elected to give evidence. He said he had arranged to meet his girlfriend at 6:30 p.m. on the day in question at the bus stop in Middle Road. He gave details concerning the route he took to get to the bus stop. He said he was in a hurry and he could not remember if he had bumped against PW1. He also gave his account of what had taken place at the bus stop.

The main issue in this trial was the credibility of witnesses. I have given careful consideration to the various points raised by Counsel for the Appellant.

8. Regarding the completeness of the good character direction, I do not consider it necessary for the Magistrate to recite the exact wordings of the two limbs of the good character direction as long as it is clear from the judgment that he or she was aware of the principles and had borne those matters in mind in reaching a decision. From the oral judgment given by the Magistrate and her Statement of Findings, she clearly had both the Berrada and Vye directions in mind in considering the Appellant's credibility.

9. In relation to the issue of the 2 reference letters, one must also look at the Magistrate's oral judgment delivered after the trial. She stated that she had borne in mind the reference letters from the Appellant's employer and a preacher and those letters were full of praise for the Appellant's character (see p.65 of the Appeal Bundle). It appeared that the term "glowing references" used in the Statement of Finding was just another expression to illustrate the Magistrate's impression of the contents of the two letters. I do not consider that it had demonstrated any bias or cynicism on the part of the Magistrate in evaluating the Appellant's credibility and his account of the events.

10. Concerning the complaint that the Magistrate had made inconsistent findings on the Appellant's credibility, I do not accept the submission that the Magistrate's findings were perverse.

11. In her Statement of Findings at paragraph 21, the Magistrate stated that "I have considered the evidence and submissions carefully. I accepted DW2's evidence that the Appellant had made an arrangement to meet her in Tsim Sha

Tsui. However, despite the glowing references in the two letters, I did not find the Appellant to be an honest or credible witness and I rejected his evidence."

12. This should be read in light of what the Magistrate said in her oral judgment. At the end of the 3rd paragraph at p.65 of the bundle, the Magistrate said that "Although I believe the defendant's girlfriend that the defendant may have arranged to meet her in Tsim Sha Tsui, I do not believe the defendant's version of events." The "version of events" obviously referred to what had taken place between PW1 and the Appellant. Hence, it is clear that although the Magistrate accepted that there was a prior arrangement between the Appellant and DW2, it did not affect the Magistrate's finding that the Appellant had indecently assaulted the Complainant as she had described.

13. The Magistrate had indeed, in her oral judgment and the Statement of Findings, covered all the relevant issues raised in the trial, such as the lack of corroboration, the possibility of accidental touch and the relevance of the Complainant's late disclosure that the Appellant had also pinched her.

14. I have gone through the transcript and the Statement of Findings carefully in light of the issues raised in this appeal. However, despite a very persuasive submission by Counsel for the Appellant, I am unable to find any ground to interfere with the findings made by the trial Magistrate. I cannot say that the conviction is unsafe or unsatisfactory.

15. In the circumstances, I shall dismiss the appeal.

Representation:

Ms. Winie Ho, SGC of DPP, for HKSAR

Mr. Andrew Raffell, inst'd by M/s Miller Peart De Witt, for the Appellant