HKSAR V.Tsang Ming Hey

HCMA 1253/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1253 OF 2004

(ON APPEAL FROM NKCC 3097/2004)

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BETWEEN

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Coram: Deputy High Court Judge Wright in Court

Date of Hearing: 26 January 2005

Date of Judgment: 26 January 2005

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J U D G M E N T

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1.The Appellant, a 19 year old male, was convicted of a single charge of indecent assault after trial by a deputy Magistrate.  The prosecution called three witnesses:  the complainant, a young female; the police officer who pursued and apprehended the Appellant;  and a female police officer who was summoned to the scene to make enquiries of the complainant.  It relied upon their evidence as well as upon an oral admission made by the Appellant to the police officer who arrested him, which admission was subsequently recorded in the police officer’s notebook. 

2.The admissibility of the admission was challenged.  The Magistrate dealt with that issue by way of the alternative procedure.  The Appellant gave evidence on the special issue as did his mother.  Their evidence was not accepted by the Magistrate who admitted the admission and the post record in evidence, declining to exercise her residual discretion to admit it.  In my judgement, at that stage, the Magistrate was entitled to make the order that she did even though it had transpired during the evidence on the special issue that the Appellant appeared to be suffering from mental difficulties at the time of the offence and making the admission. 

3.On the general issue the Appellant gave evidence as did a government psychiatrist, Dr Mo, whom he had commenced consulting in August 2004.  Dr Mo is attached to North District Hospital.  In addition, the report of a private psychiatrist, a Dr Chan, was referred to by Dr Mo:  the Appellant had commenced consulting Dr Chan on the 22nd April 2004.  His report was substantially more detailed than that of Dr Mo in regard to the Appellant’s background, his behaviour and his personal circumstances in the years preceding the offence as related to him by the Appellant and his mother.  Dr Chan was not called as a witness.

4.Dr Mo had prepared a report in advance of the hearing.  At that stage, she had not had the benefit of the sight of Dr Chan’s report.  In the course of her report she said the following:

“I could not comment on the mental state of the patient at the time of the commitment of the offence only based on the information available after he was known to our service.  However, at the time of the offence [the Appellant] was already suffering from schizophrenia and had not received any treatment.  It was not uncommon that patients suffering from schizophrenia would have odd, disinhibited behaviour, impaired judgement and defected information processing”

However, prior to giving evidence she was afforded access to Dr Chan’s report in which he expressed the view that:

“The present alleged offence was more likely to be due to his psychotic illness than genuine sexual intention to assault the victim indecently”

Once she was in possession of the additional information contained in Dr Chan’s report, Dr Mo expressed herself in agreement with this conclusion.

5.The Magistrate rejected Dr Mo’s opinion and, effectively, the opinion of Dr Chan which Dr Mo adopted.  Dr Mo was called to give evidence as an expert and no challenge was made to her expertise.  The fact that a witness is called as an expert does not confer upon his evidence, especially opinions which he may offer, any enhanced status.  Evidence of an expert may be rejected even where it is unchallenged.  But the reasons for doing so must be sound.

6.In rejecting Dr Mo’s evidence, the Magistrate relied on several features of the evidence.  The assault itself occurred in this manner:  the Appellant had been walking towards the complainant across a footbridge:  he walked past her and she felt the flat of a hand touch her left breast for some one to two seconds.  She looked at the Appellant who, in turn, was looking at her:  he then withdrew his hand and smiled at her with what was described as “an indecent smile”.  The complainant at that stage, according to the Magistrate, did not think that the Appellant was “suffering from any mental disease”. 

7.The Magistrate categorised the evidence of the police officer who arrested the Appellant as being to the effect that he “did not have the impression that the [Appellant] was suffering from any mental illness”

8.The Magistrate does not indicate the basis of the opinions of these two witnesses nor does she indicate whether either of them had any expertise in assessing whether persons are suffering from mental illness or not. 

9.The Magistrate also made reference to the facial expression of the Appellant as related by these two witnesses to further support her rejection of the psychiatric evidence.  She says:

“So the [Appellant’s] appearance was in direct contradiction to the appearance of a person suffering from long time psychiatric illness without treatment as described by Dr. Mo.  Thus Dr. Mo’s opinion that at the time of the offence, the [Appellant] was suffering from schizophrenia and had not received any treatment could not stand.”

10.She further rejected Dr Mo’s evidence on the basis that she had not conducted any “test on sexual topic” with the Appellant from which she concluded that Dr Mo could not agree with Dr Chan’s opinion. 

11.These were not proper considerations, individually or collectively, upon which to reject the expert evidence.

12.There was an additional feature to the evidence which, in my judgment, did not receive the attention it deserved.  After the Appellant had been taken to the police station he was not allowed to contact his mother.  I make no criticism of that decision.  However, some hours after he had been in detention at the police station he injured his wrist or wrists by lacerating them with something sharp.  That is hardly the typical reaction of a 19-year old male to circumstances such as these.

13.The Magistrate incorrectly rejected the evidence of Dr Mo.  With that evidence before her the Magistrate should have considered whether there was a reasonable possibility that the Appellant had not formed the intent at the time of the offence.  That was not a possibility which, on the evidence, the Magistrate would have been entitled to reject had she considered it.

14.There remained, of course, the admission by the Appellant.  It is always open to a judge to revisit a ruling which has been made in regard to admissibility although this is not a course which should be encouraged.  In the instant matter once the Magistrate had the benefit of the detailed psychiatric evidence it was incumbent upon her to revisit her earlier ruling in regard to the admissibility of the Appellant’s statement.  But even if she did not reconsider her ruling or did reconsider it but decided to abide it, the inevitable consequence of Dr Mo’s evidence had it been properly assessed was to reduce to zero the weight that could properly be attached to the admission.

15.The issue before the Magistrate was whether on all the evidence she was sure that at the time of the touching of the complainant the Appellant had the requisite intent for the crime of indecent assault.  Had Dr Mo’s evidence properly been taken into account, she could not have been so sure.

16.The appeal is allowed, the conviction and sentence are set aside.

Ms Anna Lai, SGC for DPP/HKSAR, for the Respondent

Mr Ian Polson, instruction by Messrs Li, Wong & Lam, for the Appellant