Li Kam v. The Queen

CACC000589/1977

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Coram: Leonard, J. in Court.

Date of Judgment:

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JUDGMENT

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1. The appellant appeals in person against his conviction on a charge of indecent assault on a female. He further appeals against his sentence on the ground of severity.

2. The evidence for the Crown in the court below consisted chiefly of the evidence of a girl aged 8 who complained that when she was at play she was approached by the appellant who asked her if she would help him. She said she went with him to the other side of a garden and he told her to sit down and sexually assaulted her by touching her lower parts. This occurred between 3.00 p.m. and 4.00 p.m. The girl returned to her house immediately afterwards and saw her father but made no complaint to him because, as she said, he was talking with his friends. The first complaint then was made to her mother at about 7 or 8 p.m. in the evening. In the course of this complaint the complainant provided material from which the speedy identification of the appellant could be made. She described the appellant to her mother and most notably the mother's evidence was that when she reached the building site near which the assault had allegedly taken place the description of the appellant was so accurate that even she (the mother) noticed him. The mother gave evidence that when she saw the child after 7.00 p.m. the child was worried and was crying. Then the child made the complaint of indecent assault to her.

3. In the course of his careful statement of findings the learned magistrate indicates that after an examination he found the complainant to have no religion and not to know what the word "God" signified. He went on to say:

"She did understand, however, what it meant to tell the truth and also that if she made the affirmation she could be punished for telling untruths. I decided to require Selene to affirm under Section 7 of the Oaths and Declarations Ordinance, Cap. 11."

Having made this decision there was no statutory duty on the learned magistrate to find the existence of corroboration before he could convict. The learned magistrate goes on:

The classic definition of corroboration is to be found in R. v. Baskerville⁽¹⁾ in the following passage:

"Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crimes. In other words it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute."

The first question therefore is whether in this case the learned magistrate was correct in regarding the child's distress as corroboration, within the rule of practice at common law. Distress was regarded as corroboration in the case of R. v. Redpath⁽²⁾. The facts there however were very special for the evidence was that the girl had been playing with two friends when she was seen by an independent witness who saw the appellant walk towards the girl and later return to his car and drive off. Immediately afterwards he saw the girl in a very distressed condition. The appellant's defence was that he had never been near the place and it was held that a direction of the jury to the effect that the evidence of the independent witness (not the mother to whom a complaint was later made) "was capable of amounting to corroboration of her evidence" was proper. In that case corroborative evidence implicating the appellant was abundant because the independent witness apart from claiming to identify him took the number of his car. The sole point argued in Redpath⁽²⁾ was whether the distressed condition was capable of being corroboration of a sexual assault having taken place. The court of this to say:

"It seems to this court that the distressed condition of the complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distress condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence, because it is all part and parcel of the complaint."

This however can be regarded as no more than an indication that distress when making the complaint was capable of being corroboration of the fact that an indecent assault had taken place. Such distress could not amount to corroboration as defined in Baskerville's Case⁽¹⁾. For unless the facts were very special as they were in Redpath's Case⁽²⁾ the distress could not be said to implicate the accused. I must therefore hold with some reluctance that the learned magistrate was wrong in law when he found corroboration in that distress without indicating that the corroboration was not corroboration of the evidence implicating the appellant but merely corroboration of the fact of an indecent assault. Is this error fatal? I have of course the same powers as has the learned magistrate but I think I should approach this question on the same basis as I would if sitting on a Court of Appeal in an appeal from a conviction by a jury. Could I in such a case apply the proviso? The proviso has been applied in a number of cases to which my attention has been brought by Mr. Little in particular R. v. Coulthread⁽³⁾. It was not applied in Thomas⁽⁴⁾. In that case the jury was wrongly invited to regard matters as capable of constituting corroboration which could not probably be so regarded. The following passage appears in the judgment of the court at page 214:

"This court has had occasion to consider this type of problem on many occasions in the past and the decided cases show that in such circumstances the conviction will as rule be quashed, unless the proviso to subsection (1) of section 4 of the Criminal Appeal Act, 1907 is held to be applicable: see, for example, Coulthread (1933) 24 Cr. App. R. 44. In the present case counsel for the Crown urged that, quite apart from the whisky bottle and the knickers, there were other matters which might have been relied on as constituting corroboration, and that we should therefore apply the proviso. We did not think it right to do so. The evidence given at the trial showed that there were several unusual features in the case and a careful study of that evidence aroused in the mind of the court serious misgivings as to the appellant's guilt."

The test applied in Philips⁽⁵⁾ was whether the court could say that "with a proper direction the jury must have come to the same conclusion." A similar test was applied in Rudge⁽⁶⁾ the final passage in which reads:

"This court cannot say if the question had been adequately dealt with the jury must inevitably have convicted."

I think that this is the test which I should apply here. Can I say that the learned magistrate would if he had appreciated that the distress did not amount to corroboration of the complicity of the accused necessarily have convicted. Although I incline very strongly to the view that he would have I feel I cannot say that he must inevitably have done so and accordingly in the complete absence of any other evidence implicating the accused I must allow this appeal. The accused is accordingly discharged.

Representation:

Appellant in person.

D. Little, C.C. for Crown/Respondent.

(1) (1916) 2 K.B. 658.

(2) (1962) 46 Cr. App. R. 319.

(3) (1934) 24 Cr. App. R. 44.

(4) (1959) 43 Cr. App. R. 210.

(5) (1925) 18 Cr. App. R.

(6) (1924) 17 Cr. App. R. 113.