The Queen v. Chan Kin

CACC000492/1987

IN THE COURT OF APPEAL

1937, No. 492

(Criminal)

BETWEEN

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Coram: Fuad and Clough, JJ.A. Godfrey J.

Date of Hearing: 2nd March 1983

Date of handing down of Judgment: 2 5 Mar 1988

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J U D G M E N T

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1. This is the judgment of the Court on an appeal by the Defendant against conviction (he also appealed against sentence but abandoned that at the commencement of the hearing of the appeal). At the conclusion of the hearing we dismissed the appeal, stating that we would give our reasons later, which we now do.

2. The Defendant was charged at his trial in the District Court with (among other things) unlawful sexual intercourse with a girl under 16 (PW5). On 4th September 1987, he was found not guilty of that charge but guilty of the lesser charge of attempt. He was at the same time acquitted on three other charges, of indecently assaulting another young girl (PW4). On 18th September 1987, he was sentenced to 18 months imprisonment for the offence against PW5 of which he had been found guilty.

3. The offences were said to have taken place in the Spring of 1987. The Defendant was at that time 57 years old. He denied all the offences but was convicted of the offence against Pw5 on the evidence of the two young girls. In a statement of facts made available to the Judge before the commencement of the trial, the prosecution informed the Judge that both girls were slightly mentally retarded. The evidence showed that they were aged 15 (PW4) and 14 (PW5) respectively at the time o?the trial.

4. As to PW4 (the girl of offences against whom the Defendant was acquitted), before she gave evidence, counsel for the prosecution told the Court he had been informed that she was slightly mentally retarded. The Judge asked her if she understood that she had to speak the truth in Court. She said she understood. There does not appear to have been any objection to her competency to give evidence. Clearly the Judge decided to receive her evidence, for that is what he did.

5. As to PW5 (the girl of an offence against whom the Defendant was convicted), the Judge noted, before she gave evidence, that she understood that she had come to tell the truth and understood the meaning of an oath after it was read to her. Again, there does not appear to have been any objection to her competency to give evidence. Again, the Judge clearly decided to receive her evidence, for that is what he did.

6. The Judge, in giving his Reasons for Verdict, said this about the evidence of PW4 and PW5:

"Before PW4 and PW5 [gave] evidence, I was given to understand by the Crown that they were mentally retarded to a certain degree. I confirmed from them that they understood to speak the truth in [giving] evidence and the meaning of affirmation before they [testified], In the course of their evidence, I noticed that it took more time for them to appreciate the questions and they had the difficulty in recounting and reckoning the approximate time of each event alleged to have taken place. I found that they were of low mentality and had very little sense about the time when reference was made in terms of months and years despite of PId4 being a Primary 6 and PW5 being a Form 1 student."

7. There were, in the evidence of PW4 and PW5, what the Judge described as "ambiguities or discrepancies". He found that these were caused by their low mentality, but said that he did not doubt their credibility generally. In relation to the offence against PW5 of which the Defendant was convicted, the Judge described the testimony of PW4 and PW5 as consistent, although there was some uncertainty as to the date on which the offence took place. He said he had no doubt of the credibility of PW4 and PW5 as to what took place on that occasion. He treated the evidence of PW4 as corroborating the evidence of PW5. He said he was satisfied that there was sexual contact between the Defendant and PW5 and that the Defendant intended and attempted to have intercourse with PW5.

8. The Defendant complains against his conviction on a number of grounds.

9. The Defendant complains, first, that the Judge did not, before receiving evidence from PW4 and PW5, conduct a sufficient enquiry into the extent to which PW4 and PW5 were mentally retarded. Section 3(b) of the Evidence Ordinance, Cap 8, states that "persons of unsound mind, who, at the time of their examination, appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly" are incompetent to give evidence. This we take to be declaratory of the common law.

10. When a judge is made aware that a witness about to give evidence suffers from some form of mental disability it is his duty to go into the matter. He will determine the question of the competence or otherwise of the witness by examining the witness himself on the voire dire, and he may in any given case feel it necessary to hear any other evidence which might be available which will assist him in his decision.

11. Here the Judge satisfied himself that neither girl was incompetent to give evidence by reason of her mental capacity and that they both appreciated the solemnity of the occasion and their duty to tell the truth once they had affirmed. Moreover, for reasons that he gave (and here he was performing the jury function) he felt it safe to rely upon their evidence to the degree indicated. It must be said that the record of their examination-in-chief and cross-examination certainly gives the impression that both girls were capable of giving a trustworthy account of what they alleged the Defendant did to them. The judge, of course, had the added advantage of observing them in the witness box. Had he not been satisfied on this matter and realised that his initial assessment of their competence was wrong, he would have disregarded their evidence.

12. The Defendant complains, second, that the Judge gave undue weight to the evidence of PW4 and PW5 that they knew the Defendant's home address. There is nothing in this complaint. The Judge related this evidence, in giving his Reasons for Verdict; but there is nothing to justify the assertion that he gave undue weight to it.

13. The Defendant complains, third, that the Judge gave insufficient consideration to the discrepancies in the evidence given by PW4 and PW5 on the allegation of an offence against PW5 But the Judge saw and heard PW4 and PW5, and his Reasons for Verdict showed that he gave full consideration to the discrepancies. He in no way misdirected himself and this Court should not interfere on this ground.

14. The Defendant complains, fifth, that the Judge should not have treated the evidence of PW4 as corroborative of the evidence of PW5. He says that the Judge found that the testimony of PW4 was ambiguous or prone to discrepancies and that a conviction based on her evidence would be dangerous and unsafe. The Judge carefully considered what weight he should give to PW4's evidence in these circumstance. He was satisfied about her general credibility and that she was not trying to make out a false case against the Appellant.

15. The events related by PW4 in connection with the offences against her were considerably more complicated than were the events surrounding the single incident in which PW5 was the victim. The Judge fully appreciated the difficulties and his decision, after careful consideration, to accept PW4's evidence as corroborating PW5's evidence on the first charge cannot validly be criticised.

16. The Defendant complains, sixth, that the Judge gave insufficient consideration to the evidence of the Defendant. But the Judge did consider it; and summarised it at an early stage in his Reasons for Verdict. He was under no duty to do more.

17. Finally, the Defendant complains that his conviction was unsafe and unsatisfactory. We do not agree. For these reasons we dismissed his appeal against conviction.

Representation:

Mr. I. G. Cross and Mr. W. S. Cheung (Crown Prosecutor) for the Respondent.

Mr. Edward Laskey (Hampton, Winter & Glynn) for the Appellant. Appellant, Chan Kin, present.