Lau Pang Fei v. The Queen
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CACC001095/1978
Coram: Trainor, J. Date of Judgment: 7th December, 1978. ----------------- JUDGMENT ----------------- 1. The appellant was convicted on four counts of indecent assault on a female under the age of 15 years. Against that conviction he is now appealing. 2. I do not intend to go into to any extent the evidence that was offered in the court below. That was reviewed at considerable length by the learned magistrate in his statement of findings. 3. This is a case which I consider to be unsatisfactory in many ways. It is a case in which indecency is involved and therefore corroboration of the evidence of the complainant is something that is highly to be desired. In a nutshell there was no corroboration. But while corroboration is desirable it is not a sine qua non provided the magistrate is aware of the dangers of convicting without it, and having warned himself of the dangers of convicting without it nevertheless accepts as correct the evidence of the complainant. An example of what I have in mind is the first count. There it was alleged that the complainant with her mother and her sister visited the accused for the purpose of something pertaining to lucky charms. Ironically, one of the effects of the hoped for charm was to protect the complainant and her sister from such things as rape. It was the complainant's story that in the house of the accused first of all her sister was taken to a room and after she came out of that room the complainant followed. There it is alleged the appellant traced charms on her breasts and body. The complainant's sister was not called to give evidence but her mother, who also sought a charm, was. The mother told of the visit but was unable to say whether or not her daughter had gone off alone into what she the mother knew to be the bedroom of the appellant. 4. The second incident was, it was alleged, when the complainant and her sister visited the house of the appellant. There it was alleged by the complainant that her sister went into the room and by reason of the fact that the room was separated from that in which the complainant was by a low partition she was able to see flashes of light. When the sister who I should say was aged 14 emerged the complainant said she then went into the room. There the appellant is alleged to have gone through a ritual of tracing charms on the breasts of the complainant, she having already removed her clothes. The appellant then took photographs of her while she was naked. Again I would point out that the only witness called with regard to this incident was the complainant. With regard to the other two counts the complainant was the sole witness. 5. As I said earlier there was no corroboration whatsoever of the evidence of the complainant although the learned magistrate in his statement of findings did say that the complainant's evidence was corroborated by her mother and "to some extent in law too". There was no corroboration. In his statement of findings the learned magistrate described the complainant in these words:
Later the learned magistrate said:
6. In those passages there are many obvious examples of how far short the magistrate failed in considering what was required in the absence of corroboration. To say he warned himself to be very careful does not approach the necessary consideration. Apart from the question of corroboration another reason why I consider the second passage to be fatal to the convictions is that the learned magistrate said that he warned himself that the indecent assault happened on four occasions. It would appear that the magistrate was considering this case from an overall point of view that is to say he was considering the four charges collectively. That is a completely wrong approach. Where an accused is charged with a number of counts each count must be considered separately and independently of each other count. The desirability of corroboration in cases involving sex and associated indecency where the complainant is a normal person and of an age of responsibility and normal mental reasoning is so long and so firmly established that it requires no comment. But where that is not so, where the complainant is "naive ... sheepist type ... and below average intelligence ..." the desirability approaches the essential; and if a magistrate decides to convict on the evidence of such a complainant he must express in the clearest terms that he was conscious of the lack of corroboration but nevertheless was so convinced by the complainant's evidence that he felt compelled so to do. 7. Holding as I do that there is nothing to indicate that the learned magistrate properly warned himself of the dangers of convicting without corroboration, I consider the convictions to be unsafe and unsatisfactory and, therefore I allow this appeal.
Representation: Appellant in person. Mr. Alderdice, C.C. for Respondent/Crown |