HKSAR v. Lo Kin Nang

HCMA000969/2000

HCMA 969/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

Magistracy Appeal No. 969 of 2000

(On Appeal from SPCC 2659 of 2000)

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Coram: Hon Lugar-Mawson J in Court

Date of Hearing: 19 January 2001

Date of Judgment: 26 February 2001

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J U D G M E N T

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Background

1. On 16 August 2000 the appellant, LO Kin-nang, was convicted after trial by Mr Stephen Smout, Permanent Magistrate, sitting at San Po Kong Magistracy of four counts of indecent assault, contrary to s. 22(1) of the Crimes Ordinance. Mr Smout sentenced him to serve 10 months' imprisonment for each offence with the sentences to run concurrently.

2. He was represented at trial by counsel.

3. He now appeals against his convictions. He has abandoned his appeal against sentence.

Facts

4. The complainant Eni Stutarti Komari (PW1) was a single Indonesian woman of 22 who arrived in Hong Kong on 25 October 1999 to work here as a domestic helper for the appellant and his family. Her placement was arranged through an agency.

5. The appellant and his wife are both police officers and live in Police Married Quarters. They have a baby girl. The premises have no separate rooms but are partitioned by curtains.

6. It was the prosecution's case that at the end of November 1999 in the morning, the appellant asked Ms Komari to give him a massage. She gave him a foot massage at the end of which he gave her $100 dollars. At that time, the appellant's wife was not at home. Then on a day in December 1999, the appellant asked for another massage. This was done whilst the appellant was lying on the sofa, she massaged him from his thighs to his feet and his head. During the massage the appellant ran his hand down her back, but did not touch her bottom. He also touched her thigh with his hand. She warded off his hands and told him not to do it. The appellant said "I like Eni". Again, his wife was not present.

7. On Christmas Day, 25 December 1999, Ms Komari was on leave. She left the house at about 10:30 a.m. and returned at about 4 p.m. Only the appellant was at home. He requested a massage. Ms Komari massaged his legs whilst he was lying on the bed. He pulled her hand and caused her to lie on the bed. Then he kissed her face, put his hands under her clothing, unfastened her bra and touched her breasts. She tried to resist by moving her body, but he pressed her down. She told him not to do it, he ignored her. This conduct lasted between 5 to 10 minutes. After he freed her, she went to the toilet to re-arrange her clothing. Later in the day, at about 6 p.m., the appellant took her by bus to his wife's sister's home for a party. His wife and the baby were there along with other family members. She did not complain to anyone because she feared she would lose her job and be sent back to Indonesia. This conduct gave rise to the first charge.

8. In the late evening of a day in January 2000, the appellant asked her to give him a massage. He was then lying on the bed. She massaged him from his thighs to his feet. He pulled her by the hand, making her lie on the bed. He grabbed one of her arms and pressed his body on the other one. He then kissed her face and put his hands under her clothing. He touched her breasts and sucked the nipple of one or both breasts. He pulled down her trousers and underpants to the thigh position, exposing her private parts. She tried to resist him and told him not to do it, but he ignored her. She tried to pull up her trousers and underpants. After he released her, she ran to the bathroom to tidy her clothing. The incident lasted 1 to 2 minutes and again the appellant's wife was not at home. This conduct gave rise to the second charge.

9. On an evening in February 2000, the appellant again asked for a massage. She massaged his thighs and legs whilst he was lying on the bed. Again he pulled her by the hands, causing her to lie on the bed. He kissed her face, unfastened her bra and touched and sucked her breasts. Then he stood by the side of the bed and pulled down his trousers and underpants and told her to suck his penis, she refused. Then he told her to hold his penis with her hand, again she refused. He grabbed hold of her hand and forced her to hold his penis. Then he told her to masturbate him. As she felt there was no way out of the situation, she did so until he ejaculated. He told her to clean his penis with a piece of tissue, which he told her to dump in the rubbish bin. This conduct lasted for about 2 minutes. Again, his wife was not at home. This conduct gave rise to the third charge.

10. In the late evening of 11 March 2000 the appellant again asked for a massage. She massaged him as he lay on the bed. He pulled her hands and made her lie on the bed. He put one of his hands under her clothes. He unfastened her bra and touched one or both of her breasts. She told him not to do it. She rushed to the bathroom to re-arrange her clothing after he had finished touching her. Again, the appellant's wife was not at home. This conduct gave rise to the fourth charge.

11. At no time had Ms Komari agreed to do what he requested from her.

The grounds of appeal

12. A 7-page document setting out the grounds of appeal has been filed; they boil down to no more than a criticism of Mr. Smout's approach to the evidence and the findings he made.

13. This was a case that revolved around the credibility of the witnesses both for the prosecution and the defence. The person appointed to resolve issues of credibility is the trier of fact, the trial magistrate. It is not for an appellate judge to usurp his function. The courts have made this abundantly clear in the past. In R. v. CHAN King-man & others [1980] HKLR 105, Sir Denys Roberts C.J., speaking of the duties of a District Court Judge in preparing his reasons for verdict said, at page 113.

'The duty of a District Judge was fully dealt with by the Full Court in R v. R .E. Low [1961] H KLR 13 (quoted in R. v Godber [1975] HKLR 340), the effect of which was to rule that a District Judge, in setting out his Reasons for Verdict, is under no obligation to set out his mental processes in full. At page 82. Blair-Kerr J. deals with the question as follows -

'...the District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, If he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a Judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how the mind of the Jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not In dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable.'

14. CHAN King-man was followed in R v. Sheikh Abdul Rahman Bux and Others C.A. 1981 No. 756 (unreported) where Sir Denys Roberts C.J. (at page 5 of the transcript) said that both District Judges and magistrates should follow it.

15. In England in R v Turnbull [1977] QB 224 (a case better known for its dicta on identification evidence) Lord Widgery LCJ, heading a five judge bench, in speaking of the Court of Appeal's statutory jurisdiction said, at page 231 C-E:

'...we can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to re-try cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility this Court will only interfere in three circumstances. First, if the jury has been misdirected as to how to assess the evidence; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness, but this is rare.'

16. I am aware that my jurisdiction in this appeal comes from s.119(1)(d) of the Magistrates Ordinance and that the sub-section is silent as to how I should exercise my powers. This is in contrast to the very clear statement of the jurisdiction of the Court of Appeal given in s.83 of the Criminal Procedure Ordinance. However, I do not believe that affects the principles exemplified in CHAN King-man and Turnbull.

17. I turn now to the points raised in the grounds of appeal.

18. Ground 1: There was no reversal of proof. Mr Smout disbelieved the appellant's wife (DW2) and believed Ms Komari on the issue of the transport arrangements on Christmas Day. This was a finding of fact that he was entitled to come to. Neither did Mr. Smout place a presumption of lack of memory on the appellant's wife, as trier of fact he disbelieved her evidence on this issue.

19. Ground 2: Again, there was no reversal of proof. Mr Smount also disbelieved the appellant's wife's brother-in-law (DW3) on the issue of the transport arrangements on Christmas Day. This was a finding of fact that he was entitled to come to. Neither did Mr. Smout place a presumption of lack of memory on the appellant's wife's brother-in-law, as trier of fact he disbelieved his evidence on this issue.

20. Ground 3: There is no unresolved discrepancy in the 2nd paragraph at page 27 of Mr. Smout's statement of findings. The police occurrence book (Exhibit D2) showed that the appellant went off duty at 3.45 p.m., Ms Komari said she saw him at home at around 4 p.m. she was not specific as to the exact time. Had the occurrence book showed that he was still on duty at 4 p.m, that may well have given rise to a discrepancy in Ms Komari's evidence, but it did not.

21. Ground 4: I accept that Mr. Smout mis-stated the time within which Ms Komari could remain in Hong Kong after the ending of her employment contract. However, the crux of his reasoning remains, which was that he could not understand, if she had such a motive, how making up a story against the appellant would bring about an extension of her stay in Hong Kong. Whether that period was 12 days, or more than 12 days, did not affect his reasoning and finding on the issue.

22. Ground 5: Whether or not Mr. Smout found the discrepancy between Ms Komari and her friend Suprih Rahayu (PW3) over whether or not Ms Komari had told her that she wanted to change employers significant or insignificant was for him as trial magistrate to decide. I cannot say that he was that he was wrong to treat it as insignificant.

23. Ground 6: Mr Smout disbelieved the appellant's wife when she said that Ms Komari had accompanied her to her brother-in-law's home in his car. He also rejected her brother-in-law's evidence that he helped Ms Komari put items in the car's boot. In short he found that Ms Komari was not present with them at the time. In doing so he must necessarily have rejected the appellant's wife's evidence that Ms Komari was with her, as it was not Ms Komari's leave day and she had been required to help at the party. As Blair-Kerr J said in R. E. Low, a Magistrate

'... is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.'

24. Ground 7: Mr. Smout dealt with the issue of the Christmas Day photograph at pages 31 & 32 of his statement of findings. I see can see no grounds on which I could interfere with that finding, which appears a rational one.

25. From his statement of findings, it is clear that Mr. Smout understood the evidence given before him and that he analyzed and applied it correctly. He had the advantage, which I do not, of having heard and seen the witnesses - including the appellant - give evidence.

26. There is nothing in his statement of findings that indicates to me that his approach to the evidence was in any way wrong. I cannot say that he must have taken a perverse view of Ms Komari as a witness. It is not for me to substitute any view I may have on reading the appeal bundle for his view on her veracity or the veracity of the other witness, both for the prosecution and the defence.

27. I am satisfied that Mr. Smout's conviction of the appellant on the four charges he faced is unassailable on appeal and therefore the appellant's appeal against his convictions is dismissed.

Representation:

Ms Grace Chan, SGC of the Department of Justice, for Respondent

Mr Wong Man Kit, instructed by Messrs Josip Ma & Co., for appellant