Kwok Hung v. The Queen

CACC000284/1978

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Coram: McMullin, J. in Court

Date of Judgment: 13th May, 1978.

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JUDGMENT

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1. The appellant was charged under section 122 of the Crimes Ordinance with indecent assault upon a female. The complainant was a woman police constable who at about 6.20 a.m. on the 15th of February boarded a No. 72 bus at Wong Chuk Hang terminus. She went to the upper-deck and seated herself beside the appellant who was occupying the inner or window seat of the double bench seat to which she went. Her case was that as she relaxed, with her eyes closed, the accused inserted his right hand between his right thigh and her left thigh with the back of his hand pressing against her thigh. She made no comment and moved away slightly but remained alert. Two or three minutes later she again felt a touch upon her thigh of something which moved from the outside of her thigh to the inner side and opening her eyes she saw the accused's hand resting there. She informed him who she was and said she would arrest him. He made no reply to this and was taken to the police station. The defence was that the appellant had fallen asleep and that his hand had accidentally come in contact with her.

2. The learned magistrate found that the charge of indecent assault had not been proved but recorded a conviction for common assault. A preliminary issue has arisen on this appeal arising from the conviction so recorded. It comes about in this way.

3. Subsequently the learned magistrate formed the opinion that the conviction was in error. Further reflection would seem to have convinced him that he had no statutory power to convict of this alternative upon the charge as laid and he decided to deal with the matter on review. He came to this view upon the 15th of March and the 23rd of March was fixed for the hearing of the review. On that day however he discovered that the appellant had already, upon the 13th of March, filed a notice of appeal against conviction. The learned magistrate, being then precluded by the provisions of subsection 9 of section 104 of the Magistrates Ordinance from pursuing the review, contented himself with making an explanatory note which he caused to be appended to the papers in the appeal. The relevant portion of that note is as follows:

4. The reason for the learned magistrate's change of opinion would seem to have derived from a further consideration of the statutory provisions of the Crimes Ordinance which had, at the trial date, only been in force for a matter of weeks. The provisions relating to indecent assault, and like matters, which were formerly contained in the Protection of Women and Juveniles Ordinance had been brought together with various other offences in the consolidating revision of the Crimes Ordinance under section 122 of which the present charge was laid. The learned magistrate no doubt was impressed by the fact that there is a Schedule to the new Ordinance which provides a list of alternative convictions which may be imposed, in substitution for convictions upon charges originally laid, under various sections of the Ordinance. Although indecent assault (section 122) is stipulated in that Schedule as an available alternative in relation to certain other specified offences no offence is stipulated by the Schedule as an alternative upon a charge laid under section 122 itself. The learned magistrate evidently was of the opinion that the Schedule provided a comprehensive statutory spectrum of available alternatives and that he had therefore been without power to convict of common assault upon a charge taken under section 122.

5. Notwithstanding this opinion of the learned magistrate Mr. Aiken for the Crown seeks to uphold the conviction. His argument is twofold. Both parts of this argument rely upon the provisions of section 149 of the Crimes Ordinance which is in the following terms:

Mr. Aiken maintains that the phrase in subsection 2 "any other law authorising" etc. empowers a magistrate to substitute a conviction which it would be lawful for him to substitute in accordance with the terms (a) of the common law or, alternatively, (b), in accordance with the terms of any statutory provision empowering such a substitution. As to the first of these contentions he relies upon the decision of Charles, J. in the old case of Reg. v. Bostock ⁽¹⁾. In that case the prisoner was tried upon an indictment containing two counts one of which was a charge of indecent assault. Upon this indictment the jury acquitted on the first count but on the second count convicted the prisoner of the common law offence of common assault instead of indecent assault. Upon a submission by counsel that this amounted to a verdict of acquittal the learned judge sustained the verdict. The basis of his decision was that the evidence adduced to prove the indecent assault necessarily included the proof of the lesser offence of common assault. Counsel concedes that the decision in Bostock's Case⁽¹⁾, and the supporting passages on which he relies in Archbold (themselves relying upon that decision) are all alike cases of trial upon indictment as distinct from summary trial. He maintains however that there is no reason in principle to make a distinction between the two situations and he says that on its own Bostock⁽¹⁾ is sufficient warrant for what was done by the learned magistrate in this case.

6. To this primary contention of the Crown Mr. Allman-Brown replies that the true intention of subsection 2 of section 149 of the Crimes Ordinance is to preserve a right to convict of alternatives other than those mentioned in the Schedule to that Ordinance only in cases where the Legislature has specifically provided in other Ordinances an express category of such alternatives. In the absence of such other legislative provisions, he says, the prosecution and the magistrate are alike restricted, in cases taken under Part XII of the Crimes Ordinance, to such alternatives only as are made available to them by the Schedule thereto. He argues that the words "any other law" in section 149(2) are not apt to cover the case of a common law offence. Mr. Allman-Brown lays a special stress of the fact that the magisterial courts and magisterial powers are the creatures of statute and that therefore in questions of jurisdiction, which he deems to be the matter principally at issue here, they are to be held firmly within the walls of any enabling Ordinances particularly the Magistrates Ordinance. He concedes, of course, that the magisterial courts are concerned with the trial of common law offences as well as with those of statutory creation. In that sense, common assault is an offence "falling within the jurisdiction of the court of trial" within the meaning of that phrase as it appears in s.51(2) of the Criminal Procedure Ordinance a provision which is relevant to a later point of contest. It is the burden of counsel's argument, however, firstly, that what was done in the present case was wrong because the only alternatives available to the magistrate are those specified in the Schedule to the Crimes Ordinance and common assault is not one of them. On this view section 149(2) of Cap. 200 refers only to such other statutory provisions as might provide a specific alternative for any offence charged under Part XII of the Crimes Ordinance and does not embrace any procedure for enlisting the assistance of the common law; secondly, that if subsection 2 does let in the common law, Bostock⁽¹⁾ is a precedent for this procedure only in relation to cases taken upon indictment and is therefore no authority for what was done in this case; thirdly, that even if Bostock⁽¹⁾ be regarded as establishing in England a principle applicable equally to summary trials as to trials on indictment it establishes a procedural course which is not open to magistrates in Hong Kong whose procedure is said to be bound strictly by what they may do under local legislation but in particular section 27 of the Magistrates Ordinance. This last point carries over also by way of answer to what was advanced by Mr. Aiken under the second heading of his argument and to that I will come later.

7. In support of the first of these propositions Mr. Allman-Brown points to the provisions of the English Sexual Offences Act of 1956 a portion of which is, broadly speaking, reproduced in the particular sections of our Crimes Ordinance which deal with such offences as indecent assault. He points out that there are certain saving provisions in the Act itself but no provision similar to section 149(2) of our Ordinance and he suggests that 149(2) is intended, taken together with the scheduled alternatives, to perform a similar task of "saving" restricted to those matters which are mentioned in the Schedule. I find this, with respect, a strained and somewhat fanciful analogy for the provisions saved by section 52 of the Act have no specific bearing upon the topic of alternative convictions. Certainly no consideration of that kind has found favour with the learned editors of Archbold notwithstanding the presence of these saving sections in the English Act; notwithstanding also the absence of anything similar to our 149(2) in that Act and despite the fact that the Schedule to the Sexual Offences Act likewise provides alternatives in respect of charges for sexual offences which do not include the alternative of common assault. Mr. Allman-Brown indeed sought to turn this latter fact to his own account by suggesting that if Archbold's view of the matter be correct Mr. Aiken need not have resorted to s.149(2) at all and could have rested his case on the common law alone. So be it. But Mr. Aiken was not content to disregard the clear fortification afforded to his position, over and above the English example, by a legislative buttress available in Hong Kong and wanting in the English Act. The thrust of Mr. Allman-Brown's argument here is precisely that the common law does not apply despite the provisions of s.149(2). But in the end no cogent reason was advanced for that view. No doubt s.149(2) does have the effect of saving any power a magistrate may have had, or may later acquire, to impose convictions for offences alternative to those charged but I can see nothing in the section or its context to restrict that power to statutory alternatives. So far as the position at common law is concerned the learned authority of Archbold certainly favours the view that in cases taken upon indictment a conviction for common assault may be entered upon a charge of indecent assault. To my mind that is the commonsense of the matter. If the course taken by the magistrate here were otherwise procedurally open to him then I cannot see that there is any barrier in his way to imposing a conviction for any common law offence shown upon the facts in substitution for the offence charged.

8. It is, however, the procedural aspect of this case which absorbed the principal contentions of both sides. In support of his second contention Mr. Allman-Brown cites paragraph 2921 of Archbold where the indictment for indecent assault is set out and where the text refers to the power of a magistrate in England to deal with such an offence and yet goes on, in reference to Bostock⁽¹⁾, to re-affirm the propriety of a finding of common assault on a charge of indecent assault but, again, in relation specifically to trials upon indictment. He points also to paragraph 17 of the Schedule to the Sexual Offences Act of 1956 which refers once more to trial upon indictment. But that does no more than establish that, subject to the right of an accused person to opt for summary trial, charges of indecent assault can, in England, only be tried upon indictment, it is not argued that a magistrate in Hong Kong has no power to try such a case and none of these references does anything to oust the availability of the common law from a magistrate's jurisdiction. As it seems to me the decision in Bostock⁽¹⁾ proceeds upon the perfectly general principle that where the facts proved fall short in one or more particulars of the offence charged but nevertheless amount to full proof of all the necessary particulars of some other offence a conviction for that offence is sustainable. Subject therefore to all special procedural considerations affecting the jurisdiction of magistrates in Hong Kong I cannot see that this principle would not be available alike in summary trials as in trials upon indictment.

9. But it is in the consideration of procedure that we come to the heart of the preliminary issue in this case and before considering Mr. Allman-Brown's third proposition which, as I have said, is relevant to Mr. Aiken's second limb of argument (a fact which accounts for Mr. Allman-Brown's suggestion that the two limbs were not in fact distinct) I will turn first to consider that argument as Mr. Aiken proposed it.

10. Section 149(2) of the Crimes Ordinance is the keystone to the arch connecting the two limbs of Mr. Aiken's argument. Alternative to the possibilities it afforded by way of enlisting Bostock⁽¹⁾ and the common law counsel relied upon the provisions of subsection 2 of section 51 of the Criminal Procedure Ordinance which is in the following terms:

"51. (2) If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence."

Here counsel says is a statutory provision which expressly permits what was done in this case. It applies alike to trials upon indictment and to summary trials upon information such as the present case. In his view this section falls clearly within the description of "any other law authorising etc." in subsection 2 of section 149 of Cap. 200. In answer to this point (it is, in part, also his answer to the common law point) Mr. Allman-Brown points to the provisions of section 27 of the Magistrates Ordinance. That section reads as follows:

At one time indeed Mr. Allman-Brown argued (albeit somewhat faintly) that section 149(2) of Cap. 200 did not let in the provisions even of section 27 of the Magistrates Ordinance. This was I think in pursuit of the idea that the only alternatives for conviction available to a magistrate in a charge under the Crimes Ordinance were those set out in the Schedule or any other statutory powers in the same behalf. If that contention were true, however, it would mean that, where one of the scheduled alternatives was imposed in the way in which the conviction for common assault was imposed in the present case, counsel's argument that the magistrate must invariably be bound to observe the procedures of section 27, whenever a conviction was being recorded for an offence other than the offence charged, would not be open to him. I think however that the argument enlisting the aid of section 27 was indeed the principal part of his argument and it is with that that I now deal. I think it will be clear however, although neither counsel adverted to this aspect of the matter in the course of the argument, that if Mr. Allman-Brown is correct then the mandatory requirements of subsection 2 of section 27 of Cap. 227 upon which he strongly relies will fall to be implemented in every case taken under Part XII of the Crimes Ordinance not merely in those cases in which, as in the present case, a non-scheduled offence is substituted for the one charged but also in cases where a scheduled defence is so substituted. Mr. Aiken argues that section 51(2) of the Criminal Procedure Ordinance applies in all cases in which the magistrate has decided not to alter the charge despite any variance between the charge and the evidence had in support of it but in which, with all the evidence in, both that for the prosecution and that for the defence, it is clear that another offence has been proved. In such circumstances he says that the magistrate may proceed at once to convict without attending to the requirements of section 27 in relation to the altering of charge and the explanation thereof or the other requirements such as the recall of witnesses or the granting of an adjournment. So far as I can ascertain the possibility of a collision between these two familiar provisions and the question of the relationship between the common or contrasted areas of their separate competence has not been ventilated in any previous case decided by these courts. That there may be some confusion on this question is suggested by the fact that the learned magistrate in the present case was proposing to review, quash and exercise his powers under section 27. The possibility that what he had already done might be covered by the combined effect of s.149(2) of the Crimes Ordinance and s.51(2) of the Criminal Procedure Ordinance does not seem to have weighed with him to any degree. Section 51 of the local enactment is closely modelled upon the wording of section 6 of the Criminal Law Act of 1967. The latter provision quite clearly only applies to trials on indictment whereas the Ordinance expressly covers trials upon "information, charge, or indictment". In view of that wording it can scarcely be argued that s.51 has no application at all to trials before magistrates nor has Mr. Allman-Brown sought to put his case so far. The substance of his contention, as I understand it, is that so far as magistrates are concerned, and granted that s.149(2) lets in the relevant sections of the Criminal Procedure Ordinance and of the Magistrates Ordinance. Then the provisions of s.51(2) of the one Ordinance are to be read subject to the detailed requirements of s.27 of the other. In other words a jury may convict of a lesser "included" offence without any necessity arising to amend the charge or recall witnesses etc., but a magistrate cannot do so. But so to interpret s.51(2), once it is conceded to apply, is to rob it of any separate efficacy at all in relation to magisterial trials. Section 27(1) of the Magistrates Ordinance is a slightly modified form of s.1 of The Summary Jurisdiction Act 1848 and has been in the Ordinance a very long time, certainly since 1932. I have not troubled to trace it further than that. Subsections 2, 3 and 4 were introduced in 1949. If the Legislature had intended s.27 of the Ordinance to provide an exhaustive and exclusive code to regulate the powers of a magistrate to deal with cases where the offence charged differs in any respect from the offence proved one would not expect to find s.51(2) of the Criminal Procedure Ordinance couched in terms which make it applicable to trials upon information and charge as well as trials upon indictment. The provision itself is closely similar to subsection 3 of section 6 of The Criminal Law Act of 1967 - a wholly new provision in the English law which is however restricted to trials upon indictment. The local variant was introduced in Hong Kong as recently as 1972. The inescapable conclusion therefore is that the Legislature intended some further enlargement in the powers of magistrates. I conclude, with Mr. Aiken, that two quite different situations are dealt with by these two somewhat similar provisions. Section 51(2) of the Criminal Procedure Ordinance deals with the jury function of the magistrate at the conclusion of the trial. If at that stage he is satisfied, on all the evidence produced by the prosecution and the defence, that another offence, necessarily contained in or implied by the particulars laid in the charge or information has been proved he can without further ado convict the prisoner of that offence. He is clearly entitled to do this where, as in the present case, the statutory law provides specific alternatives. Mr. Allman-Brown would restrict this power, insofar as he would admit it at all, to such cases on the ground that they alone can be said to come within the reach of the words "another offence falling within the jurisdiction of the court" in subsection 2. I cannot see any compelling reason for so restrictive an interpretation of that phrase. By s.3 of the Application of English Law Ordinance Cap. 88, which came into force on the 7th of January 1966, it is provided that the common law shall be in force in Hong Kong insofar as it is applicable to the circumstances of Hong Kong or its inhabitants. This is of course subject, among other matters, to any amendment to the common law which may be introduced by any Ordinance. I cannot, however, regard the Schedule to the Crimes Ordinance as abrogating the common law insofar as that law had hitherto provided, by way of precedent, an available alternate which might fairly be regarded as falling within the prescription of the words in the earlier part of subsection 2 of section 51 viz. : an offence such that "the allegations in the information ... amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial ...". It is here I think that one may discern the reason for Mr. Allman-Brown's observation that, at bottom, Mr. Aiken's two arguments converge and become one. For him the word "jurisdiction" in the passage just now quoted means "jurisdiction to convict by way of alternative" i.e. by virtue of a positive rule of law so enabling. And he would of course restrict that to statutory law. Now, for the reasons already given I think that s.149(2) covers both statutory and common law powers and in that sense it may be said that the argument from section 51(2) of Cap. 221 is dependent upon the validity of the argument from Bostock⁽¹⁾ and s.149(2) of Cap. 200. Even on that view Mr. Aiken would succeed. But I think the argument from section 51(2) goes wider than that. I interpret the words "falling within the jurisdiction of the court ..." etc. as meaning simply "triable by the court" i.e. within the court's power to try were such the offence actually charged. If this be right then, as it seems to me, there are three possible situations which may entitle a magistrate to resort to such substitutional powers. Firstly, where he is covered by an express statutory provision such as we find in the Scheduled alternatives to the Crimes Ordinance. To this case the provisions of s.51(2) of Cap. 221 and of s.149(2) of Cap. 200 are alike not relevant. Secondly, where the common law provides an express precedental rule as with Bostock⁽¹⁾; to this case it is s.149(2) only which is relevant. Thirdly, where in the absence of explicit precedent or specific statutory alternative he is nevertheless satisfied that the particulars laid in the information or charge necessarily include another offence which has - with all the evidence in - in fact been proved by the prosecution in the course of endeavouring to prove the charge laid, when that charge has failed for want of proof of some necessary element. The provision of s.51(2) are the essential ground of his action in this third case but s.149(2) is relevant as removing any doubt of the availability of s.51(2) which might have arisen had s.149(1) stood alone.

11. I think Mr. Aiken is right to maintain that s.27 of the Magistrates Ordinance is intended to deal with the quite different situation which arises when, in the course of a trial, some formal defect in the information, summons or complaint is detected or some turn in the evidence shows a substantial variation from the particulars charged which, if not attended to, might result in the dismissal of the case notwithstanding that it disclosed an offence of the kind charged. In these circumstances it is just - and the law so provides - that the magistrate should see to it that a justified complaint should not fail by careless omission or technical default. The section is directed to the amendment of the charge and consequential requirements designed to safeguard the prisoner's rights. It is to be noted that subsection 1 of section 27 directs the magistrate - subject to proof of the charge as amended - to "convict the defendant of the offence with which he was charged" (my emphasis) not, that is to say, of some other offence which had not been charged. Indeed it would seem that by some tortuous quirk in the legislative evolution of these various powers we now find in two separate Ordinances - though in somewhat expanded form - these different powers conferred upon the magistrate who, between the year 1932 and the year 1949, found what he needed in this regard in one short and simple section - section 21 - of the Magistrates Ordinance as it stood between those two years. That section reads as follows:

"21. No objection shall be taken or allowed to any complaint, information or summons for any alleged defect therein in substance or in form, or for any variance between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judgment upon the substantial merits and facts of the case as proved before him, and convict the defendant of any offence of which he may appear to have been guilty; but if any such variance appears to the magistrate to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for the magistrate, on such terms as he may think fit, to adjourn the hearing of the case to some future day."

12. Comparing that with the wording of s.27(1) as it stands one notes a possible source of ambiguity in the later formula

"convict ... of the offence ... charged with such variation as has been warranted ..." etc.

Assuming that those words, in the general context of the section, particularly of subsections 1 and 2, are apt to and are intended to permit an alteration of the information by substituting a different offence from that charged and not merely different particulars of the existing charge the power thus given is still wholly distinct from the power conferred by s.51(2) of the Criminal Procedure Ordinance. For these reasons I find, on this preliminary point that the learned magistrate had power to do what he originally purported to do.

13. Having ruled that the magistrate was within his powers in imposing an alternative of common assault for the charged offence of indecent assault I heard further argument by counsel on both sides as to the merits of the appeal. Mr. Allman-Brown says that in the end, notwithstanding his elaborate and carefully prepared address on the purely legal and procedural aspects of this case the appellant's prime objection to the conviction turns upon the facts. With that opinion I feel compelled to agree. From the outset it has troubled me that, quite apart from all procedural complications and difficulties which may have been involved, a conviction of common assault should have been imposed in respect of evidence such as that led upon the trial. The learned magistrate accepted the evidence of the prosecutrix without reserve. Her evidence disclosed a contact with her body of such a kind that I do not see how it could be described as anything other than an indecent assault. If the appellant in truth placed his left hand upon her right thigh and if, over a period of two to three minutes moved that hand slowly and gradually towards the crotch area, which is what she described, there can, to my mind, be no question whatsoever but that that amounted to the full offence charged. The magistrate by taking the course that he did did not descend into the details of the evidence not am I suggesting that in every case it would be necessary, when employing the powers given by s.51(2) that a magistrate should do so. But here there was matter of much substance to be considered. It was the defence case that this was an accidental touching and that there was only one such touch which was immediately followed by an outcry on the part of the complainant. That evidence is supported by what was said by the second defence witness, a witness whose testimony is not impugned in any way by the learned magistrate and who appears, on the face of it, to have no particular axe to grind. He described a situation in which although not attentive to what had been going on earlier, his attention was drawn by a sudden outcry on the part of the police woman. She mentions no such outcry but merely says that after the observation period of two or three minutes she asked the accused if he was indecently assaulting her. Upon his saying nothing she told him that she was a police woman and that she would arrest him. It is always a matter of concern, and occasionally a matter of misgiving, for an appellate court to intrude upon the domain of a magistrate when it comes to questions of primary facts. But the features of the evidence to which Mr. Allman-Brown has drawn my attention are matters of substance. Was this a momentary affair, followed by a loud outcry? Or was it as described by the complainant? Counsel puts it that there were two wholly distinct types of situation being presented to the magistrate and he suggests that the one which he accepted would seem, on the face of it, to be the least likely and the other to which he has not alluded to be the more likely and to be moreover supported by the independent evidence. This should not, counsel says, be equated with the "merciful verdict" of a jury. The reasons for a jury's verdict are not given. Here we have a positive acceptance of evidence which could amount to only one thing - indecent assault. The fact that he was not prepared to make such a finding can, Mr. Allman-Brown agrees, only be interpreted either as disclosing some degree of subconscious misgiving in the magistrate's own mind as to the precise nature of the occurrence or else simply as a verdict inconsistent with the facts as found. I think these submissions are of sufficient substance to raise a doubt as to the propriety of the conviction. There can, of course, be cases when the attempt to prove an indecent assault will disclose nothing more than common assault, cases where the act complained is at best equivocal and might as readily be attributable to anger or impatience, or some other motive, as to lust. But that was not the case as found here.

14. In all the circumstances I feel that the conviction is unsafe and unsatisfactory and that upon this ground, though not upon the earlier ground, the appeal must be allowed. The conviction is quashed and the sentence set aside.

Representation:

A. Allman-Brown instructed by Director of Legal Aid assigned for the accused.

N. Aiken, Crown Counsel for Respondent.

(1) 17 Cox's Criminal Law Cases 700.