Sin Ching Man v. The Queen

CACC000349/1979

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Coram: Li, J. in Court

Date of Judgment: 11 May 1979

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JUDGMENT

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1. The appellant is convicted of the offence of indecent assault on a woman. The particulars of offence are that on the 7th day of December, 1978, he did indecently assault one LUI Heung-lan, a woman. He now appeals against conviction. The evidence was that at about 8.30 in the evening of the 7th December, 1978, the complainant was walking along Temple Street. The appellant was walking towards her from the opposite direction. The appellant bumped into her and again bumped her breast twice with his elbow. She shouted out that she was indecently assaulted. Her husband who was walking ahead of her turned round and grabbed the appellant. There was a struggle. The appellant attempted to ward off the husband's grip and tried to run away. When he failed to escape the appellant said to the complainant's husband that it was an accident and asked him for a chance. In cross-examination the husband reaffirmed that the appellant persistently said that it was a misunderstanding and that the appellant did try to run away and asked for a chance. The complainant's husband was about to take the appellant to the police station. After walking for a short distance a plain clothes detective observed the commotion and intervened. To the detective constable the appellant repeated that it was a misunderstanding. However, in view of the crowd gathering, the detective constable took the parties back to the police station for further inquiry. In cross-examination the police constable said that the appellant told him it was a misunderstanding. He also admitted under cross-examination that in an uncautioned statement the appellant pleaded the same defence. However the police constable said that when the appellant was cautioned the appellant said that he had nothing to say. The defence evidence was that at the material time the appellant accidentally bumped into the complainant with his left shoulder and felt something soft. He denied that he bumped her again. The appellant said that he was pulled aside to the pavement of the street and was assaulted. There were at least another 4 persons who came along to help the complainant's husband. One of them suggested that the appellant should be brought to see the "big brother". Another suggested that they should talk it over in a cafe. These happened before the detective constable arrived. When the police constable arrived the other 4 ran away and the complainant, her husband and the appellant were then taken to the police station. The appellant alleged that at no time did he run away. These are the sum total of the evidence. The learned magistrate obviously believed the prosecution evidence and rejected the defence evidence. On appeal he made a very short Statement of Findings.

2. In the Statement of Findings the learned magistrate refer to the fact that the appellant pleaded not guilty to the charge and went on to say:-

"Madam LUI Heung-lan was walking along Temple Street on 7th December, 1978 at about 8.30 p.m. Her husband carrying their small son was just ahead. At the junction with King Po Street the appellant deliberately bumped into Madam LUI and twice in quick succession touched her breast with his right upper arm. In cross-examination Madam LUI was asked to demonstrate using a Woman Police Constable to play her part and she to play the part of the appellant. She did so most graphically. Immediately the incident happened she shouted out and her husband turned and grabbed the appellant. The appellant's case was that he bumped into Madam LUI accidentally. A full transcript of all the evidence of course is attached to these papers. Having heard and seen all the parties concerned I was left with no reasonable doubt at all as to the appellant's guilt and convicted him."

3. The general ground of appeal on the basis that the verdict is unsafe and unsatisfactory is subdivided in no less than 6 subheadings.

4. I shall deal with the various subheadings in the reverse order. At the hearing of the appeal learned counsel for the appellant quite properly abandoned the 6th ground of appeal namely, that the appellant had a clear record.

5. I do not find that there is any merit on the 4th and 5th grounds of appeal. It is true that there are some questions put both to complainant and her husband to the effect that there were 4 other persons coming to the aid of the complainant's husband and one of them suggested that the appellant be brought to see one "big brother" or to a cafe to talk terms. It is also true that in his own evidence the appellant repeated the same story. However, all these allegations were firmly and emphatically denied by the complainant and her husband. One thing stands out a mile is that at no time in cross-examination or otherwise was it alleged that the complainant deliberately bumped her chest against the appellant. Nor was blackmail put to the complainant or her husband. The two alternative accounts given by the appellant are clearly inconsistent. Either the complainant bumped herself against the appellant or the appellant bumped into the complainant, albeit by accident. Had the alternative been true the appellant would have straight away contended that the complainant bumped into him. According to the evidence, the appellant persistently alleged that it was merely an accident.

6. Nor do I find that there is any merit in the 3rd ground of appeal. In the course of evidence given by two persons there are bound to be some minor discrepancies. In so far as the complainant is concerned she repeated in her answer in cross-examination that she did tell her husband the appellant had indecently assaulted her. Indeed the complainant did say the appellant did not allege that it was an accident. However, she said that in the commotion she did not hear the exchange in conversation between her husband and the appellant at all. There were some discrepancies as to the exact position of the party when the detective constable arrived. The complainant said that they were on the same place. The complainant's husband said that they had walked for about one block of the building. One must bear in mind that there had been a struggle; there had been some argument; the party might have moved somewhat and, when the police constable arrived, they might have shifted their position for some distance while they were going to the police station. On my part I cannot say that the learned magistrate was wrong in accepting the complainant's evidence simply because of such discrepancies. It remains for me to consider the first 2 grounds of appeal namely:

7. What then is corroborated evidence. The classic definition of corroboration is to be found in the case of Rex. v. Baskerville in 1916 2 K.B. p.658. It is cited by my brother Leonard in the case of Li Kam v. The Queen in 1977 HKLR p.308 at p.309 at p.309 as follows:-

"Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crimes. In other words it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also the defendant committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute."

Li Kam's case is a case of a similar nature namely, an appeal against conviction of indecent assault. In my understanding corroborative evidence means evidence from an independent source supporting the complainant's evidence in a material particular of the crime and at the same time implicating the accused, that is, to connect him or tends to connect him with that crime. The evidence of the appellant, if it supports the complainant's evidence in a material particular and at the same time tends to implicate the appellant, can be regarded as corroborative evidence. In the present case there is no denial that the appellant bumped into the complainant's chest although the appellant alleged that it was an accident. There is also evidence that the appellant asked the complainant's husband for a chance. The evidence that the appellant asked for a chance was never challenged in cross-examination of the complainant or of her husband. The appellant in his evidence-in-chief never denied that he asked for a chance. Having regard to the totality of the evidence there is no doubt that the appellant did come into contact with the complainant's chest. That much of the complainant's evidence has been corroborated. The only issue was whether the contact was by accident or deliberate. The fact that the appellant asked the complainant's husband for a chance is indicative that the contact was intentional. As such it implicates or tends to implicate the appellant in a material particular that the appellant had committed the offence. The fact that this piece of evidence came from the mouth of the appellant did not make it any less a piece of evidence from an independent source corroborating the complainant's allegations. For this reason I am unable to say that there was no corroboration of the complainant's evidence and the 2nd ground of appeal must fail.

8. A number of authorities have been cited to me in support of the proposition that the verdict is unsafe and unsatisfactory because the learned magistrate failed to consider the danger of acting upon uncorroborated evidence. It is quite true that there is nothing in the Statement of Findings which indicates that the learned magistrate had in his mind to warn himself of the danger of convicting without corroborative evidence. This is clearly wrong.

9. In the case of Chan Siu-wong v The Queen in 1970 HKLR p. 61, the learned Chief Justice in his consideration as to the necessity of corroboration of an accomplice's evidence said at p.65 as follows:-

10. In the present case there is no question that the learned magistrate failed to make clear in his judgment or his Statement of Findings that he gave himself any warning. He completely emitted it. The rule of practice which has virtually become a rule of law is that in all sexual offences there must be corroboration of the complainant's evidence in the same way as corroboration is required of an accomplice's evidence. The only difference between Chan Siu-wong's case and the present case, as I can see it, is that in Chan's case there was no corroborative evidence but in the present case I find that on the totality of the evidence there was corroborative evidence. I do not feel that I need elaborate upon the other cases cited in support of the appeal. Suffice it to say that in the case of Chiu Nang-hong v Public Prosecutor reported in 1964 1 Weekly Law Reports p.1279; the case of Li Kam v The Queen reported in 1977 HKLR p.308 the appeal were allowed (by the Judicial Committee of the Privy Council and by my brother Leonard respectively) on the basis that the learned trial judge applied the wrong test as to what amounted to corroborative evidence. However, a passage from my brother Leonard's judgment in Li Kam's case is of assistance to me. When he considered the proviso in subsection (1) of section 4 of the Criminal Appeal Act, 1907 he said this:-

"The test in Philips (1925) 18 Cr. App. R.115 was whether the court could say that "with a proper direction, the jury must have come to the same conclusion." A similar test was applied to Rudge (1924) 17 Cr. App. R. 113 the final passage which reads:-

'This court cannot say if the question had been adequately dealt with the jury must inevitably have convicted.'"

He then said:-

"I think that this is the test which I should apply here. Can I say that the learned magistrate would if he had appreciated that the distress did not amount to corroboration of the complicity of the accused necessarily have convicted. Although I incline very strongly to the view that he would have I feel I cannot say that he must inevitably have done so and accordingly in the complete absence of any other evidence implicating the accused I must allow this appeal."

11. In the present case I am inclined to ask myself the same question. Para. (d) in section 119 of the Magistrates Ordinance Cap. 227 provides:-

12. The essential feature which distinguishes the present case from the authorities cited to me is that at the trial of the present case there was corroborative evidence. The provisions in para. (d) of section 119 of the Magistrates Ordinance are such that I have the authority to look at the totality of the evidence, give the warning to myself in the place of the learned magistrate (even though he failed to do so) and come to a conclusion whether I should interfere with the verdict. This is by no means a light burden.

13. Having regard to the very definite finding of the learned magistrate, however, I have come to the conclusion that had he warned himself, as I do hereby warn myself, the learned magistrate would inevitably come to the conclusion that he should convict the appellant. In the circumstances I will not interfere with the verdict and the appeal must be dismissed.

14. This appeal is decided on its special facts. I apply the provisions of para. (d) in section 119 only in the circumstances that there was corroborative evidence and in view of the definite findings of the learned magistrate in a sense that I come to the conclusion the magistrate would inevitably convict the appellant even if he had warned himself and looked for corroborative evidence.

Representation:

Mr. A.M. Niamatullah (Rowdget Young & Co.,) for appellant

Mr. A.S. Hodge for respondent