HKSAR v. Chan Po Kai Freddy

HCMA470/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 470 OF 1999

(ON APPEAL FROM SKCC 3620 OF 1998)

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Coram : Hon Pang J. in Court

Date of Hearing : 28 October 1999

Date of Judgment : 28 October 1999

Date of Handing down of Reasons for Judgment : 5 January 2000

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REASONS FOR JUDGMENT

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1. These are my reasons for allowing the appellant's appeal against his conviction on one charge of Indecent Assault, contrary to s.122(1) of the Crimes Ordinance.

2. The appellant was tried and convicted before a magistrate sitting at South Kowloon Magistracy. The alleged incident took place on 16 November 1998 on an MTR train travelling from Tsim Sha Tsui towards Jordan Station. It was shortly before 7 in the evening and the train compartment was crowded. The appellant was observed by two police officers in plain cloths to be behaving suspiciously at the Tsim Sha Tsui MTR station. They followed him into a train which was heading in the Tuen Wan direction. When the train started to move, the defendant was observed by one of the police officers, who later give evidence as the second prosecution witness, to have pressed his genital area against the buttock of a female passenger. The female passenger gave evidence as the first prosecution witness at the trial. She told the court that she first thought the contact was accidental but the appellant repeated the action twice during the journey between Tsim Sha Tsui and Jordan Station. The repetitions were also observed by the police officers and the appellant was subsequently arrested and charged with the present offence.

3. The appellant elected to give evidence at the trial. He was a person of good character. He told the court what in effect was an accidental contact because of the crowded condition of the train at the time and he never intended to indecently assault the first prosecution witness. There was one other defence witness who was travelling with the appellant at the time and he told the court that the journey was uneventful.

4. The learned magistrate accepted the accounts of both prosecution witnesses. He rejected any possibility of accidental bodily contacts and found the charge proved against the appellant.

5. Counsel for the appellant, who also appeared for the appellant in the court below, based his appeal on the contention that the learned magistrate failed to resolve the discrepancies between the evidence of the first and second prosecution witnesses. It emerged, in the course of the trial, that the defendant was cautioned when he was arrested and in response to the police question, he told PW2 that he had indecently assaulted the lady because of momentary urge. At the trial it was put to the police witness that no such admission was ever made by the appellant. In his Statement of Findings the learned magistrate found that the alleged oral admission had in fact been made by the appellant at the time of his arrest.

6. In the second ground of appeal, the magistrate was criticized for not having made any finding on the voluntariness of this alleged oral admission. Based on these two grounds, it was submitted, the conviction was rendered unsafe and unsatisfactory.

7. Having gone through the transcript of proceedings as well as the Statement of Findings prepared by the learned magistrate, I am surprised to find that nowhere in his oral reasons, or in the subsequent Statement of Findings, did the learned magistrate address himself on the issue of corroboration. This significant absence has escaped the attention of Counsel for the appellant completely. Suffice it for me to say that in all cases involving sexual offences, it is incumbent upon the trial judge as a rule of practice, to look for evidence which is capable of corroborating the evidence of the alleged victim. In cases where there is no corroboration, it is still open to the judge to convict a defendant based on the uncorroborated evidence of the victim provided he had given himself the necessary warnings. In the present case, corroboration could have come from the evidence of the police officer, who gave evidence as the second prosecution witness, and also from the oral admission of the appellant when he was first arrested and cautioned by the police, provided of course the voluntariness of the alleged oral admission has been established to the satisfaction of the learned magistrate.

8. Having said that, I do not think it would be correct for this court to identify what is or is not capable of corroborating the evidence of the victim. The fact remains that the learned magistrate had failed to address himself on the issue of corroboration at all at the trial. This, I consider to be an error of law which rendered the conviction unsafe and unsatisfactory.

9. For the reasons given, the conviction is quashed and the sentence and the community service order is set aside.

Representation:

Mr Paul Ho, SGC, for the Respondent

Mr Raymond Yu, instructed by M/s Anthony M F Ko & Co., for the Appellant