Yau Lap-yin v. The Queen

CACC001011/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1011 OF 1971

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Coram: Leonard J. in Court

Date of Judgment: 23rd February, 1972

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JUDGMENT

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Leonard J.:

1. This is an appeal by the appellant against conviction on 2 charges of defilement of a girl between the age of 13 years and 16 years, contrary to Section 5 of the Portection of Women and Juveniles Ordinance, Cap.213. The appellant appeared in person and argued his case with both skill and vehemence. The facts giving rise to the appeal were that on the 9th or 10th of September the alleged victim LIU Fuk-mui and another girl KAN Ching-yee returned after a party by the 10.30 p.m. train to the New Territories. On the train they met one appellant and one of his friends LAU Ming-chai. They alighted at Fanling and the four went to the appellant's house in Fanling by a public light bus. The girl LIU Fuk-mui described how when she went into the house she was after having had a drink brought to a bedroom by the appellant who had sexual intercourse with her she, prior to that, being a virgin. She said that after this she fell asleep and that later he had sexual intercourse with her again. She then slept until noon the next day when she was brought by the appellant together with her friend KAN Ching-yee to a brothel in Reclamation Street. There the two girls prostituted themselves and later the girl LIU became a call-girl. The girl was corss-examined by Counsel on behalf of the appellant suggesting that she had not been a virgin on the night in question, that the appellant's stay with her in that evening was for only ten minutes and that they never had intercourse. The girl never suggested that she had not fully consented to the action of the appellant and she was almost sixteen years of age at that time. Her friend CAN Ching-yee gave a similar story and indicated that the appellant and the girl LIU had spent the night together in his house at Fanling. She said the four of them spent the night in the house. Again she stated that the following day the defendant went with both of them to an apartment in Reclamation Street where they both prostituted themselves and later they went to work as dancer hostesses. The appellant denied intercourse but admitted that he had gone with the girls to his house in Fanling, his explanation being that he had gone there to fetch winter clothing. He said that he spent only ten minutes in the house returning to Kowloon late that night by a public light bus. He told me although he did not give evidence to this effect in the lower Court that he had returned because he had to go to work early the following morning. His evidence was that he had left the key to his house with his friend LAU Man-kwong. He called this friend as a witness. Lau gave evidence to the effect that on the night in question the defendant invited him to go with him to Fanling to fetch his winter clothes. They had taken the 10.30p.m. train to Fanling on which they met the two girls and brought them back to the appellant's house. It is to be noted that in her evidence the girl LIU and said that she did not know why she had consented to intercourse but she felt peculiar after having taken aerated water. LAU agreed that berated water was taken but said that the two girls slept together downstairs, that he slept alone upstairs, while the defendant left the house after ten minutes. A sister of the appellant was also called to give evidence and she said that the appellant had never spent the night in Fanling and indeed was never out all night.

2. On his appeal the appellant stressed that the girl LIU had undoubtedly been a prostitute and that her word should not be accepted without reservation. He pointed out that the other witness for the Crown was a friend of the complainants and was also a prostitute. The appellant however put forward no suggestion as to why he should go to Fanling on the 10.30 p.m. train if he did not intend to spend the night there.

3. In his statement of findings the learned magistrate did not expressly warn himself that it was dangerous to convict on the uncorroborated evidence of a young girl in a sexual case. However he referred to the evidence of her friend as follows:-

"Her friend KAN Ching-yee gave evidence which substantially corroborated all that had been said by Miss LIU."

Had he looked for further corroboration he could well have found it in the admission by the appellant in evidence that he and LAU had gone to the house late at night with the two girls. Clearly then the learned magistrate had realized the necessity for corroboration since he expressly referred to it. I, therefore, distinguish this case from one in which a magistrate convicts on the uncorroborated evidence of a girl in a sexual case and does not make it clear in his findings that he had realized the danger of so doing.

4. In Chan Siu-wong and The Queen 1970 H.K. L.R. 61 the Full Court made it clear that its members were

"fully satisfied that it remains the duty of a magistrate to make it apparent in his judgment or grounds of decision that he has warned himself of the danger of convicting upon the uncorroborated testimony of an accomplice."

that is equally applicable to the uncorroborated evidence of a complainant in a sexual case.

5. Here, however, we are not dealing with uncorroborated testimony but testimony which the magistrate has expressly found to be corroborated. I therefore, dismiss this appeal. At the risk of seeming pedantic, however, I would suggest that even in cases where there is evdience amounting to corroboration the magistrates should make it clear that the danger of convicting in its desire has been present in their minds, and that they have looked for and found corroboration.

23rd February, 1972

Representation:

Appellant in person.

E. Li, C.C. for Respondent.