HKSAR v. Cheung Kin Ming

HCMA001296/2000

HCMA1296/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1296 OF 2000

(ON APPEAL FROM NKCC 5364 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 26 April 2001

Date of Judgment: 26 April 2001

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J U D G M E N T

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1. The appellant was convicted on 4 December 2000 of one charge of indecent assault. He was sentenced to two months' imprisonment. I propose to deal, in the first instance, with the issue of conviction.

2. The prosecution evidence was that on 30 July 2000, at the podium on the 1st floor of a building in Pak Tin Estate, Kowloon, the woman said to be the victim of the indecent assault, was passing across the podium when, she said, the defendant bumped into her and in the process of doing so, grasped her private parts with his hand and squeezed. She confronted the man and an exchange took place. She then went and reported the matter to the police. She subsequently saw the appellant and the police arrested him. At the time of the arrest and after caution the appellant said :

"Ah sir, when I was returning home, I accidentally bumped into the female you have mentioned. My wife was also at the park."

3. The first ground of appeal is that the learned magistrate erred in his approach to the recent complaint made by the victim. The learned magistrate said this :

"In respect of the evidence of PW2, the Court has noted that it was not disputed or denied by Defence. The Court accepts PW2's evidence which supports PW1's evidence in respect of the question of 'recent complaint'."

4. At first instance, this would appear to be an adoption by the magistrate of the evidence of PW2 as supporting or corroborative evidence of PW1 which, of course, recent complaint evidence cannot be. However, at a later stage of the reasons given by the magistrate, he said this :

"According to PW2, PW1 did make a 'recent complaint' to the police which is evidence strengthening the consistency of PW1's evidence."

5. Miss Ko argues that the magistrate was unhappy in his use of the word "support" for the evidence of PW1 and that taken overall the magistrate intended to mean no more than the evidence showed that the complaint made soon after the events was consistent with the evidence given by PW1 in court, and, therefore, assisted the magistrate in determining credibility. I must say that the wording is unhappy and is one of a number of matters which cause me concern in the course of this Statement of Findings.

6. The second ground of appeal is that the magistrate erred in his approach to the evidence in respect of the appellant's words after caution upon arrest. In his Statement of Findings, the magistrate said this :

"D had told police that it was accidental bumping and his evidence in Court was consistent with that earlier statement to police. DW1 also confirmed this accidental bumping. No, the evidence of D and DW[1] is now all rejected by the Court as untrue. Even is D's evidence were not rejected, the allegation that D had earlier said something consistent with what he said later in Court is not admissible in evidence to prove D's consistency. It was merely a previous consistent statement."

7. Mr Surman argues that the statement was admissible, as it was a mixed statement and was a statement available to show the reaction of the appellant upon being taxed by the police. Miss Ko argues that again this is an unhappy wording by the magistrate and that what he intended to mean by these words was that the statement which had been admitted into the evidence, as part of the prosecution case, could not be used by the defence to support the credit of the appellant by showing consistency between that statement and his evidence. For that purpose, she argues, it was merely a previous consistent statement. Again, the unfortunate wording gives me cause for some concern.

8. In ground three, Mr Surman argues that the magistrate erred in his approach to the evidence of the defendant, and that he was in error in finding that the failure of the defendant to give his full defence to the arresting officer immediately after having been cautioned raises doubts as to the defendant's veracity. What had happened was this. It is common ground that after arrest and caution, the appellant said the words which I have quoted above. In his evidence in court, he said that, in addition to the incident where he bumped the lady, another person had also bumped her prior to him and that person would be called as a witness. The magistrate said this about this :

"D admitted upon being asked by the Court at trial that up to the present, D has not informed police about the existence of this DW [Defence Witness] who caused the first bumping onto PW1 who then bumped to D. Had this actually happened, why has D kept the existence of this DW in secret until the date of trial? If D's words were true, and if D had told police the whole incident, police would surely investigate and the case against D might be dismissed by police without the need of bringing it to court. The Court therefore finds another doubt existing in D's evidence."

9. This passage can be looked at in a number of ways. Upon one reading, it seems to indicate that the magistrate found the appellant lacking in credit because he did not inform the police that there was a witness available, who might be able to speak to the matter, and also that he did not inform the police of that witness prior to the trial. This, of course, would not be a matter that the magistrate would be entitled to take into account.

10. Miss Ko argues, however, that, what the magistrate really means in this unhappily worded paragraph is that the appellant recently invented the allegation that there had been a previous bumping involving the lady, the subject to this charge, and that by raising it for the first time in court, he had damaged his credit.

11. The fourth ground of appeal is that the magistrate erred in his approach to the evidence of the independent defence witness. He was in error in finding it unbelievable that the defence witness stood by at the time of the incident, and did not come forward to the police and therefore doubted her evidence, found it unconvincing that a number of people witnessed the incident but no one came forward and dismissed in its entirety the evidence of the independent witness who stated that she had bumped into PW1. There is a further sub-ground which I will deal with in a moment. The magistrate said this :

"DW said she volunteered to be D's witness, but she had never stepped forward to the police officers at the scene to prove the innocence of D, although she had stayed at the scene to watch the incident until the arrival of police officers. This is extremely unconvincing and unbelievable. The court therefore finds a doubt in this DW's evidence."

12. Mr Surman points out to me that it was never put to the witness that she ought to have come forward to the police and that her evidence was not challenged in any way as to the manner in which she volunteered to give evidence. The magistrate said further :

"DW said that at the scene a lot of people had witnessed that D did not even lay a finger on PW1, but yet none of them went forward to the police officers to tell what they had seen. This is again most unconvincing and unbelievable. The Court therefore finds another doubt in this DW's evidence."

13. Mr Surman argues that, this again was not a matter put to the witness and, in any event, the failure of others present at the scene to come forward to assist police officers with their testimony or their particulars, is not a matter which ought to have been taken into account by the magistrate in assessing the creditability of the witness.

14. The last matter involving this witness is that the magistrate dismissed the evidence of the defence witness in respect of a sketch by saying :

"The sketch drawn by DW (Exh D2) is completely inconsistent with the sketch drawn by D (Exh D1), from which the Court can draw a reasonable inference that DW was testifying not on basis of what she actually witnessed, but on the basis of what she had been told to say in court."

15. Mr Surman raises a number of matters on this point. Firstly, that the witness was never challenged as to whether she had been coached or told what to say. Secondly, that the sketch is not completely inconsistent, in that a comparison of the sketch drawn by the appellant and that drawn by this witness shows a basic consistency. Thirdly, it has to be noted that the magistrate in a previous part of his findings had dismissed the sketch of the appellant just having no value whatsoever, and then goes on in this particular passage to use it for the purpose of comparison.

16. Mr Surman asks me to look at all these matters and be concerned at this conviction and I am concerned. The only way to reach the same conclusion as the magistrate consistent with a proper and reasoned approach to the evidence and to the law, is to pick your way through unhappily worded passages which need to be construed with some difficulty. I do have concerns and I do find that there is a doubt in respect of the safety of this conviction. The appeal against conviction is allowed and sentence is set aside.

17. There will be costs for the appellant here and in the court below.

Representation:

Miss Catherine Ko, SGC of Department of Justice, for the Respondent/HKSAR

Mr Giles Surman, instructed by Messrs Wong Poon Chan Law & Co.,  for the Appellant