HKSAR v. Wu Biu

HCMA000235X/1999

[English Translation -英譯本]
HCMA 235/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 235 OF 1999

(ON APPEAL FROM KT 319 OF 1999)

Coram: Deputy Judge W. Wong in Court

Date of Hearing: 29 April 1999.

Date of Judgment: 11 May 1999.

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JUDGMENT

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1. The appellant was convicted of one charge of Indecent Assault at the Kwun Tong Magistracy on 11th February, 1999. He now appeals against the conviction..

2. On 15th January 1999, PW1, Madame Yip was on her way home carrying a food basket when she met the appellant. They had known each other for more than a year, and were neighbours residing in the same building. The appellant carried the food basket for Madame Yip and together they returned to the building.

3. Upon arrival at the building, the appellant carried Madame Yip's food basket into the lift, so Madame Yip went into the lift with him. Inside the lift, the appellant held the right side collar of Madame Yip with his right hand and slipped his hand down. Thereafter, he 'touched' Madame Yip on her right breast with the back of his right fingers. The back of his fingers then glided along her breast all the way down to the right side of her private parts.

4. The appellant gave evidence that he only touched Madame Yip on her face.

5. After final submission by the Defence counsel, the Magistrate gave his decision at P.54 D-E of the tape transcript as follows:

" Court: Thank you. Defendant, would you stand up, stand up, please? I am satisfied beyond doubt of the defendant's guilt on the charge of Indecent Assault. I convict him accordingly. .........."

6. The first and second grounds of appeal are related to the manner in which the Magistrate had dealt with the evidence given by witnesses. The Magistrate had evaluated those evidence in his Statement of Findings. He had the chance to observe the demeanour of witnesses, which I do not have. Unless there is inconsistency in logic or the witness's evidence is self-contradictory, an appellate court would be slow to interfere with the Magistrate's findings on fact.

7. The only question to be considered in this appeal is in the third ground, namely, the Magistrate, in giving his oral decision, failed to mention that he had considered corroboration.

8. In a sexual case, usually the allegation of the complainant can easily be made but it is difficult to refute. Therefore, it is dangerous to convict solely on the evidence of the victim without warning oneself of the danger to convict without corroboration. In HKSAR v. Lee Kam Wing CACC 353/98, The Chief Judge of High Court made the following observations:

" However, in a sexual case, whether or not the evidence of the complainant is corroborated is a matter which a judge or a magistrate has to take note of right from the start of the trial. Not only does it bear significance on the guilt of a defendant, it is almost the most fundamental question in the trial. Thus, this question on corroboration must be frequently appearing in the mind of the judge or magistrate throughout the trial. The judge or magistrate should therefore specifically warn or remind himself of the importance of corroboration and the danger of convicting upon uncorroborated evidence. It is for this reason that a judge or a magistrate must take note of this question at the time of judgment or writing out the judgment after giving it. If he has properly dealt with the case, there is no reason that he would not have specifically mentioned it at the time of judgment or in the judgment. Thus, if a judge or a magistrate fails to mention the importance of corroborated evidence and warn himself of the danger of convicting upon uncorroborated evidence in his oral decision or in the written judgment, in normal circumstances, it probably shows that he has neglected this fundamental question. It is because for a fundamental question as such, a reasonable judge or magistrate must have taken note of it and mentioned it. If it does happen that he has failed to mention it in his oral decision or in the written judgment, unless there are special reasons or exceptional circumstances, an appellate court would easily draw the inference that the judge or magistrate has not borne this fundamental question in mind when deciding the case. This conclusion is also reasonable."

9. The Magistrate immediately gave his decision after the final submission by the Defence counsel. In the Statement of Findings, he stated at paragraph 11(b) on page 67 that he had warned himself of the danger of convicting upon uncorroborated evidence. However, he failed to mention in his oral decision that he had warned himself as to corroboration. As the Chief Judge has said in the case of Lee Kam Wing, it probably shows that the Magistrate might have neglected this fundamental question.

10. For the above reasons, it is unsafe to convict. Accordingly, the appeal is allowed and sentence set aside.

Representation:

Mr. Peter Wan instructed by Messrs. Chow & Ho, for the appellant

Mr. H.S. To, Senior Government Counsel (the Director of Public Prosecution), for the respondent