Tsang Ching-shing v. The Queen

CACC000636/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 636 OF 1975

-----------------

-----------------

Coram: Cons, J.

Date of Judgment: 29th August 1975

-----------------

JUDGMENT

-----------------

1. The eventual charges which the appellant in this case was called upon to answer were two charges of indecent assault upon a young girl. The offences were said to have taken place in a flat belonging to the appellant's elder brother to which the victim had voluntarily accompanied him. The elder brother and his family were not at home on either occasion.

2. It is first said on the appellant's behalf that there was no evidence of lack of consent, indeed, that the evidence tended in some way to show the opposite. It is clear that the learned magistrate did not consider this aspect. He obviously assumed that as the girl was under 16 the question did not arise.

3. Then it is said that in this respect the evidence was not sufficient to show that she was in fact under that age. The learned magistrate could of course have judged her age from her appearance in accordance with section 27 of the Protection of Women and Juveniles Ordinance. However, he did not do so. The only evidence was, in fact, a photostat copy of a certified copy of an entry in the Register of Births which the girl said related to herself. It was argued on the authority of Reg. v. Isaac Rogers ⁽¹⁾ that her words were insufficient evidence of evidence of identity. In that case the court refused to accept the words of a child of nine. But there is a world of difference between a child of nine sixty odd years ago and a girl of sixteen in this day and age, and I would have thought there is something to be said for giving some weight to the evidence of the latter. However, in view of the decision I have come to in regard to the case generally I do not wish to express a decided opinion upon this point.

4. The second main ground of appeal is that the learned magistrate failed to give proper consideration to what must have been a variation between what the girl had earlier told the police and what she said in court. The original charges were based on four occasions of unlawful carnal knowledge. None of these were supported by the girl's evidence. Two were dismissed completely at the conclusion of that evidence and the other two were reduced to charges of indecent assault. This matter was not mentioned as such by the learned magistrate in the reasons he gave for his decision. But I do not think it necessarily follows that he overlooked it. The inference is so obvious that it is hard to believe that he could have missed it. Again it does not to my mind also necessarily follow that the reason for the variation is dishonesty, although that may be one possible explanation. However, counsel have informed me of other matters relating to the background and history of this case which were not placed before the learned magistrate and which might well have had some effect upon his assessment of the witnesses. In all the circumstances therefore I do not think it safe to leave the convictions as they stand but order instead that the charges be retried before another magistrate so that all considerations can be properly dealt with. In the mean time the appellant is to go free on bail in his own recognizance of $500.

5. I am also informed that there are still even further matters into which Crown Counsel has not yet had the opportunity to make full enquiry. It may be that when his enquiry is completed the Crown will come to the conclusion that in all the circumstances the evidence is not sufficient to warrant further proceedings. If that should be the case I have no doubt that he will immediately advise the defendant and the Court accordingly.

Representation:

K.H. Woo assigned by Director of Legal Aid for the appellant.

Polson, Crown Counsel, for Crown/Respondent.

(1) [1914] 10 Cr. App. R. 276