The Queen v. Wong Ping Sum

HCMA000070/1992

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO 70 OF 1992

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BETWEEN

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Coram: The Hon. Mr. Justice Barnett in Court

Date of Hearing: 2 June 1992

Date of Delivery of Judgment: 23 June 1992

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J U D G M E N T

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1. On 17th December 1991, the appellant was convicted after trial of indecent assault upon a woman, contrary to s. 122(1) Crimes Ordinance, Cap. 200. He was fined $1,000. He now appeals against the conviction.

2. The case for the Crown depended entirely upon the uncorroborated evidence of the complainant, a married lady with three children. On the date in question, she was shopping with her husband and children in a department store. With her 13 year old daughter, she was looking at a counter some distance from the rest of the family when she felt her right buttock touched. She turned round and saw a person, whom she identified as the appellant, pinch her buttock twice. There was no one else nearby. After an altercation, security guards took the appellant to an office. When the police arrived, the complainant explained what happened.

3. A woman police sergeant gave evidence of interviewing the appellant. She said that under caution the appellant said he did not know what the matter was about and had not touched the complainant. The sergeant told the appellant that if he was willing to apologise, the complainant would not go on (I take that to mean that the complainant would not insist upon a prosecution). The appellant did not apologize, saying that because he had not done it he would not apologize. The sergeant also said that the appellant had a clear record.

4. After reviewing all the evidence, the Magistrate in his Statement of Findings said this:

"    I considered the evidence. The case for the prosecution was the evidence of PW1 PW1 was a married lady of thirty four years of age with a husband and three children. I considered her a credible witness and she gave her answers under cross-examination in a forthright manner PW2 did not see the incident and PW3 gave evidence of arrest.

The Defendant, as is his right, did not give evidence DW1 who was called by the Defence did not see the incident either. I was conscious that it was dangerous to act on the uncorroborated evidence of the witness PW1 nevertheles I could do so if I was convinced that PW1 was telling the truth. I was convinced PW1 was telling the truth. I accordingly convicted the Defendant."

5. For the appellant, Mr. Cagney argued two grounds of appeal. In essence, those grounds were that a magistrate must not simply recite the corroboration warning as a formula, but go on to show that he understands the underlying reasons for the warning and apply them to the evidence. Mr. Cagney said that the magistrate failed to do this.

6. In support of his proposition, Mr. Cagney referred to two authorities. First, Chiu Nang Hong v. The Public Prosecutor [1964] 1 WLR 1279, in which the Privy Council advised that an appeal should be allowed because the judge in his judgment had not made it clear whether the circumstances amounted to corroboration or simply afforded consistency only. Lord Donovan, however, went on to say this:

"Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant's evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships' view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge's mind upon the matter should be clearly revealed."

7. Reference to this case was made by the Court of Appeal in the R. v. Kong Sun Wo & Cheung Chiu Wah [1988] No. 136 (Criminal) (unreported). There, the trial judge in the District Court had in his reasons for verdict referred to "the desirability of corroboration evidence" and at the conclusion of his reasons said:

"I accept this evidence having considered the usual warning about corroboration".

8. After referring to Chiu Nang Hong and the passage which I have just cited, the Court of Appeal said:

"This case is somewhat different. There was no corroboration. The judge clearly had in mind the desirability as opposed to the requirement for corroboration in the case of this nature. These reasons could have been more clearly expressed and eliptical reasons of this nature inevitably lead, and this is no criticism at all of Miss van der Eb, to grounds of appeal of this nature.

Mr. Cross has submitted that where the trial judge said he "accepted" the evidence of the girl he must be taken, as a professional judge, to have had in mind the burden of proof and indeed Miss van der Eb does not attempt, quite rightly, to suggest otherwise. Further that when he used the expression "the usual warning" he equally well, although he did not spell it out in terms, had in mind that which he should: that is the danger of convicting on the uncorroborated evidence of the girl yet still having the power to convict if he were convinced that her evidence was true.

We are not, bearing in mind that which Miss van der Eb has submitted to us and which has caused us some concern, persuaded that the trial judge here is seen to have led himself into error. As we have said these reasons could have been, and indeed should have been, more clearly expressed but we accept Mr. Cross's submission that the trial judge had in mind what I might term the "danger warning" and that he was prepared to accept to the required standard the evidence of the girl believing it to be true."

9. It is fair to say that Mr. Cagney recognised that the Court of Appeal did not in express terms lay down the requirement for which he contends. He said, however, that there is an implicit warning to that effect.

10. Mr. Cagney buttressed his argument by saying that there is a growing and alarming practice in the Magistrates' Courts for magistrates to recite the simple formula, as in this appeal, and then go on to accept the uncorroborated evidence of a complainant. Encouraged by this, the Crown do not call possible corroborative witnesses in case of contradiction or confusion. The point, he said, was apt in the instant appeal because the complainant's 13 year old daughter was standing next to her and could have been called by the prosecution.

11. I reject Mr. Cagney's arguments in their totality. First, there was nothing apart from his unsupported statement from the Bar in relation to the  disturbing situation in the Magistracy. I am quite confident that magistrates are alert to any abuse that the Crown might thought to be making of the proper application of the law in cases such as this. Further, it was not for the Magistrate to speculate upon the evidence which might have been called. It was incumbent upon him to deal with the evidence which was called.

12. Finally, I find no support for Mr. Cagney's argument in the two authorities to which I was referred. I do not interpret Lord Donovan as saying anything more than that a judge or magistrate must make it clear that he is aware of the danger of convicting upon the evidence of an uncorroborated witness but that, nonetheless, he is prepared to accept that evidence uncorroborated. The decision of the Court of Appeal, in my judgment, does no more than emphasize that the judge must express himself clearly. In the instant appeal, I do not think the Magistrate could have expressed, himself more clearly than he did.

13. I am satisfied, therefore, that the "formula" used by the Magistrate was perfectly satisfactory. That does not mean, however, that a magistrate can necessarily leave the matter there. He must, where necessary, go on to deal with any matters which might affect the credibility of the complainant's evidence. For example, if there was something to suggest that the complainant was being simply vindictive in her allegation. Mr. Cagney submitted that there were at least four matters with which the Magistrate should have grappled.

14. First, Mr. Cagney said that an important issue was not whether the complainant was indecently assaulted but who carried out the assault. He said that the store was crowded and there was the possibility that someone other than the appellant may have been responsible. It was for this purpose, in particular, that Mr. Cagney said that the daughter could have been called. I have already dealt with the question of the daughter.

15. As far as the number of people in the vicinity of the assault is concerned, the only evidence was that of the complainant who said that there was no one else nearby apart from the appellant and that she did not feel there were small children running around in the vicinity. The relevance of small children was that. one of them may have brushed against her and caused the complainant to be mistaken about what had occurred. In the absence of any other evidence, it does not appear to me to be a matter upon which the Magistrate needed to dwell. In any event, the point was somewhat two-edged because Mr. Cagney also argued the unlikelihood of the appellant doing that which was alleged against him out in the open, as it were. Mr. Cagney said that offences of this nature are commonly carried out in crowded areas, so that the culprit cannot easily be seen or detected.

16. Second, Mr. Cagney said the Magistrate did not advert to the fact that the appellant denied the offence immediately he was taxed about it by the police. It is, of course, trite that a person's denial is admissible, although it is self-serving, because his immediate or early reaction to an allegation made against him gives an opportunity to show consistency. In the R. v. Yip Chi Keung [1988] 1 HKLR 229, Hunter J.A. giving the judgement of the Court of Appeal said at p. 237:

"Such evidence is I believe regarded as admissible in English law out of a sense of fairness, and particularly to give the accused an opportunity to show consistency. But when the accused later simply pleads not guilty and then gives no evidence, it is a remark which adds very little indeed to his plea of not guilty. But the ruling in my judgment was wrong."

17. The appellant did not give evidence. In his reasons, the Magistrate referred to the fact that the appellant told the sergeant that he did not know what the matter was about. The Magistrate was aware of the evidence. In the circumstances, I do not see that he needed to pursue the matter.

18. Third, there was the matter of the suggested apology. In oral reasons given upon the close of the evidence, the Magistrate said:

"It was strange for the police sergeant to ask for an apology from the Defendant. Had he given an apology it would have been tantamount to an admission. It is understandable why Defendant did not apologize."

19. Mr. Cagney said that, if the appellant was innocent, to apologise would be tantamount to a wrongful confession. If, however, he was guilty, the idea that he could get away with an apology might be irresistible. I accept that the Magistrate may not have grasped the full implication of this point. On its own, however, I do not think this failure is such as to undermine the conviction.

20. Finally, Mr. Cagney said that the appellant had a clear record and that the Magistrate should specifically have referred to this. Again, in setting out the evidence, the Magistrate mentioned that the sergeant agreed the appellant had a clear record. Good character, of course, is primarily relevant to the question of an appellant's credibility. The appellant did not give evidence. In my judgment, in like manner to the reaction point, this point carries little weight.

21. I do not consider that these four matters in isolation or in their totality are sufficient to cause me to have any doubt about the conviction. Accordingly, this appeal is dismissed.

Representation:

Mr. McMeans, S.C.C., Crown Prosecutor

Mr. J. Cagney, inst'd by Walter woo & Co. for Appellant