HKSAR v. Ng King Chung

HCMA000915/1997

HCMA915/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.915 OF 1997

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Coram : Hon Pang J. in Court

Date of hearing : 29 October 1998

Date of judgment : 31 October 1998

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J U D G M E N T

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1. The Appellant Ng King-chung was convicted of one charge of indecent assault of a girl under 16 after trial and was sentenced to three months' imprisonment. This is his appeal against both conviction and sentence.

2. The incident took place on 2nd March 1997 at the Music Office of the Tsuen Wan Government Offices when the Complainant was attending violin lessons of which the Appellant was the instructor. The Appellant is 60 years of age and has a clear record.

3. The prosecution called two witnesses and they were the Complainant who was 15 at the time and her mother Madam Li. The Appellant elected to give evidence and he called two witnesses both of whom were students attending the same violin class. There were a total of nine students in that class on the day of the incident.

4. The Complainant testified that she was indecently assaulted by the Appellant on three separate occasions in the course of the lesson when he came over and sat next to her. It was however, the evidence of DW2 Cheng Chung-leung and DW3 Au Pui-yee that they never noticed the Appellant sitting next to the Complainant at any time during the hour-long lesson. The Magistrate rejected the evidence of the Appellant and that of both Defence witnesses and convicted the Appellant on the strength of the evidence of the Complainant and her mother.

5. Mr Cheng, Senior Counsel for the Appellant relied on three grounds of appeal. He submitted that firstly the reasons given by the learned Magistrate in his Statement of Findings were not supported by the evidence at the trial; secondly, the Magistrate had over-relied on the demeanour of the Complainant and her mother in assessing their credibility and thirdly, the Magistrate failed to appreciate sufficiently the material contradictions in the evidence of the Appellant and his witnesses as opposed to that of the prosecution witnesses. The way in which the Magistrate approached the evidence rendered the conviction unsafe and unsatisfactory.

6. On the demeanour of the Complainant and her mother when they took to the witness stand, the learned Magistrate made the following observations at paragraph 10 of his Findings :

" After carefully listening to the evidence given by PW1 and PW2 and observing their demeanour in the witness box, I absolutely have no doubt as to the credibility, reliability and truthfulness of the evidence given by the two prosecution witnesses."

Mr Cheng relied on Court of Appeal decision in R. v. Ng Wing-ming [1995] 1 HKCLR 64 in which the Court allowed the appeal on the basis that the trial judge relied too heavily on the Appellant's behaviour in the witness stand. In that case the victim of the charges of black-mail, common assault and theft was the only prosecution witness and the defendant was the only defence witness. In quashing the conviction Litton, J.A., as he then was, said at page 65 :

" Demeanour is a notoriously uncertain guide to the truth for obvious reasons. A witness comes into court as a total stranger to the judge who can hardly be expected to read from his or her facial expressions or 'body language' indications as to truthfulness or otherwise. The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort."

The Court of Appeal was of the view that the trial judge had over-relied on her own subjective assessment of demeanour and had not sufficiently weighed in the scales the inherent probabilities of the case.

7. In the present case, Mr Cheng submitted that the Magistrate fell into the same error and he failed to consider specific areas of evidence in the accounts of DW2 and DW3.

8. In giving evidence for the Defence, DW2 Cheng Chung-leung testified that at no time had the Appellant sat beside the Complainant and that the piece of music which the students were learning required only about six minutes to play. This evidence, Mr Cheng submitted, directly contradicts the evidence of the Complainant.

9. As for the evidence of DW3 Au Pui-see, the Magistrate was criticised for not giving sufficient weight to her account that she had said specifically that she had never offered her seat to the Appellant and for his finding that Miss Au's evidence was a "generalised statement".

10. This Court is of the view that this is not a case where the Magistrate resolved the issue of credibility of the witnesses base solely on their demeanour. In the body of his Statement of Findings, the Magistrate identified the apparent inconsistencies and contradictions in the accounts of the witnesses and then proceeded to resolve them in a meticulous manner. As this part of the exercise took up six paragraphs in an 18-paragraph Statement of Findings, I do not think the criticisms levelled at the Magistrate for not having considered the Defence evidence in their proper context is entirely fair. After rejecting the Appellant's version that he had never went beside the Complainant to give instructions, the Magistrate went on to examine the evidence of Mr Cheng who maintained that he never noticed the Appellant teaching the Complainant to play the piece at close quarters during the lesson. At paragraph 13, the Magistrate gave the following reasoned analysis of Mr Cheng's evidence before rejecting it :

" Cheng Chung-leung would certainly have noticed it (the Appellant's activities) some of the time.... The teacher presiding over a class would surely go about teaching pupils. If Cheng had noticed the teacher teaching other pupils every time the teacher did this, it would have been impossible for him to practise playing the violin himself because most of his time would have been wasted on watching. Moreover, Cheng Chung-leung agreed that on that day during the whole of the one-hour period he had looked in the direction of the Complainant for no more than five to six minutes. Therefore, it was absolutely possible that he might have failed to see the Appellant walked near the Complainant to teach and indecently assault her."

11. As to the evidence of Ms Au, the Magistrate found that the students were behaving in a "fidgety nature" and rejected her account that throughout the session she had never left her seat and was therefore able to observe the activities of the Complainant who was seated next to her. These are the Magistrate's stated reasons at paragraph 16 :

" On that day Au Pui-see only looked in the direction of PW1 for no more than five to six minutes in the course of one hour. Hence, it was absolutely possible that she might have failed to see the act of indecent assault and failed to hear the contents of the conversation between the Appellant and PW1.... The pupils might be reading the musical score and concentrating on playing the violin. This distracted their observation of and attention to what was happening around them."

12. This is certainly not a case where the Magistrate had based his findings solely on the demeanour of the witnesses and the case of Ng Wing-ming (supra) is of little assistance to the Appellant. In my view the way in which the Magistrate had resolved the apparent discrepancies and contradictions was detailed, logical and methodical. On the evidence before him, he was entitled to come to the conclusions as he did and I do not think he can be criticised in any way in his conduct of the trial and in his preparation of the Statement of Findings.

13. I see no merit in the appeal against conviction and for the reasons given, the appeal is dismissed.

Sentence

14. Before the Magistrate passed the sentence of three months' imprisonment, he had before him the background and psychological reports. The comments in the reports are generally favourable. The Appellant is 60 years of age and until the present offence he had never been in trouble with the law.

15. Learned Senior Counsel suggested that the Magistrate ought to have considered a Community Service Order as a viable sentencing option. On the other hand, this Court is informed that the Appellant is not enjoying the best of his health and requires regular medical treatment. He has plans to emigrate to Australia in the very near future where his children are presently residing and he plans to live there permanently. I am of the view that a Community Service Order is not appropriate for a person of his background, age and physical condition.

16. The Magistrate found that the Appellant had pinched the Complainant's nipple three times in the course of the lesson. As the girl's violin instructor, he was in a position of trust and what he did was in total disregard of the standards of decency and in breach of the trust placed on him by the Complainant and her parents. In this regard, I agree entirely with the views expressed by the Magistrate in his Reasons for Sentence. I do not think the three months' imprisonment term is either wrong in principle or manifestly excessive.

17. The appeal against sentence is also dismissed.

Representation:

Mr Francis Lo, SADPP (Ag.), for Director of Public Prosecutions

Mr Cheng Huan, SC, leading Mr Albert Luk and Mr Joe Luk, inst'd by M/s Day & Chan, for the Appellant