HKSAR v. Wong Chi Wai

[English Translation – 英譯本]

HCMA 1108/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1108 OF 2006

(ON APPEAL FROM TWCC NO. 2202 OF 2006)

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BETWEEN

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Before: Hon Nguyen J in Court

Date of Hearing: 8 August 2007

Date of Judgment: 23 August 2007

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JUDGMENT

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1.The Appellant was convicted after trial on one count of “committing an act injurious to public morals”, contrary to the common law.

2.The Appellant, who acted in person, pleaded not guilty.  He was convicted after trial and sentenced to imprisonment for 3 weeks.  He has already served the sentence.

3.The Appellant now appeals against conviction.

Prosecution case

4.The prosecution case was that at around 10 a.m. on 27 February 2006, prosecution witness Lee Yiu Keung (“PW1”), who was the owner of Flat E, 31/F, Block 1 of the subject Estate, allegedly saw a male in a white shirt and underpants standing by the window bay of a flat on the opposite side (Block 2 of the Estate) and doing some caressing and up-and-down movements with his right hand which was put inside his underpants.  PW1 Lee Yiu Keung recorded what he saw on his handheld camcorder and then transferred the recording to a CD by means of a computer, and reported the matter to the police that evening.  The prosecution went on to submit that, following the arrest of the Appellant on 21 March 2006, two recorded interviews were conducted of him, one on the same day and one on 24 June 2006.  The prosecution submitted that the Appellant made an admission in those records of interview.

Defence case

5.At trial, the Appellant did not give evidence on the special and general issue.  Nor did he call any witness.

Grounds of appeal

6.Mr Yu, Counsel for the Appellant, advanced two grounds of appeal.  The first ground is:

“Regarding the finding on the identity of the offender, the Magistrate erred in failing to consider, adequately or at all, the fact that the Appellant’s admission, which was admitted and given weight, did not support the inferences drawn by the Magistrate.”

7.Mr Yu submitted:

“… Although the Appellant did admit in the record of interview that he had committed acts of indecency at the above premises, many of the circumstances as disclosed in the record of interview were inconsistent with the evidence and matters accepted by the Magistrate, as a result of which contradictory inferences were drawn by him.”

8.First of all, regarding the appearance of the offender, the Magistrate accepted that all the prosecution witnesses were veracious and reliable, and he repeated the relevant evidence given by the witnesses, including:

(a)              PW1 used a Sanyo C5 video-recorder to record the acts of that male.  During a half an hour period, PW1 took the recording for about 6 to 7 minutes, and he also lodged a complaint with the management office, which refused to deal with the matter.

(b)             PW1 testified that when the incident occurred, he saw and was sure that the male in question did not have beard on his face.

(c)              PW5 (Sergeant 2295) testified that when he arrested the Appellant on 21 March, it was the first time he saw the Appellant, and the Appellant had beard on his face.

9.I have had a chance to view the said CD, but as the images were rather poor, the face of the offender could not be clearly seen.

10.However, it is obvious that the evidence of the above two witnesses regarding the appearance of the offender was contradictory.  As the identity of the offender was in issue, the Magistrate should have given a clear analysis thereof.  Regrettably, the Magistrate did not appear to have given this issue any or any sufficient consideration or analysis.

11.Furthermore, regarding the circumstances of the offence, PW1 testified that:

(a) what he saw was in line with what was recorded, and the man was wearing white shirt and underpants at the time;

(b) the man involved chose to face the window bay when he performed the indecent acts.

12.However, the relevant records show that, at the interviews, the Appellant said:

(a) “I admit I remember that on one occasion I took off all my clothes and masturbated in my flat at Sea Crest Villa”;

(b) “After I took a shower, I masturbated in the living room of Sea Crest Villa naked”;

(c) “I only masturbated inside the living room near the window”;

(d) “I stood by the window near the wall to masturbate, I did not face the outside … after masturbation I walked to the window bay to get clothes to put on”; and

(e) “I did it in the living room after taking a shower, and I did not face the window”.

13.As Mr Yu submitted:

“… The records of interviews of the Appellant show that, although the Appellant did admit he had masturbated inside his flat, the descriptions of the circumstances under which he did that act, his appearance and his clothing did not match PW1’s testimony regarding what he saw on that day.

On the one hand, the Magistrate gave full weight to the records of interview and accepted the evidence of the prosecution witnesses in its entirety; on the other hand, he did not appear to have analyzed any of the discrepancies in the descriptions of the parties on the above items.  He merely drew inferences from the Appellant’s confession that he did commit an act of indecency in the unit in late February, but failed to consider the discrepancies between the circumstances and particulars as admitted by the Appellant and those which were admitted as evidence, and failed to consider whether the Appellant’s descriptions supported the inferences.  More importantly, at the interviews, it was alleged that the Appellant committed the acts at three different times, but plainly the Appellant was uncertain about the time when he did those acts.  Besides, according to the records, at the second interview, when the police specifically attempted to clarify the time of the admitted indecent act, the Appellant further explained that he was not sure about the alleged date and time.”

14.Although the Magistrate had “reminded himself on all aspects, including the principle that a confession must be clear before it can be used against the maker thereof”, it is clear that the particulars of the acts admitted by the Appellant during the interviews were inconsistent with PW1’s evidence and the recording.  The Magistrate failed to clearly analyze the contradictions before he made findings of those facts which he then used as the basis of drawing inferences.

15.I agree with the following observations made by the court in Li Man Wai v. Secretary for Justice [2003] 3 HKLRD 1037, a case cited by Ms Lee:

“… Where a magistrate came to a conclusion or finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to,  this was an error of law, often described as ‘perverse’ conclusion or finding. … In such a case, the court was entitled to intervene and the magistrate’s conclusion or finding would not be allowed to stand …”

Where a conclusion or finding of fact made by a magistrate was one which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, would have come to, the appellate court is entitled to overturn that conclusion or finding.

16.In light of the above evidence, I am of the view that, in the absence of any clear analysis of the discrepancies in evidence, a reasonable magistrate could not have drawn an inference on the identity of the offender beyond reasonable doubt.

17.For the above reasons, I hold that the inference drawn by the Magistrate on the identity of the offender was unsafe and unsatisfactory.

18.As for the second ground of appeal, Mr Yu submitted that:

“There were material irregularities at trial, as a result of which the Appellant was deprived of a fair trial.  The irregularities were that the Magistrate erroneously:

(1) refused or prohibited the Appellant from cross-examining on general issues during the ‘alternative procedure’, namely by stopping the Appellant from using a photograph to cross-examine the prosecution witness on special features on the Appellant’s face;

(2) failed to provide appropriate assistance in relation to the Appellant’s defence, namely by not properly explaining that if the Appellant did not testify in court, the photographs that were not admitted would not be evidence that the court could consider.”

19.When cross-examining on general issues during the “alternative procedure”, the Appellant tried to use a number of recent photos (i.e. photos taken in December 2005, late January 2006 and February 2006) to cross-examine PW5, in order to confirm that the Appellant had always and habitually worn a beard.  The purpose was to adduce evidence to prove that there was a difference in facial features between the offender and the Appellant.  When the Appellant put the relevant question to PW5, the Magistrate stopped the questioning, said that “… it has not reached that stage yet”, and indicated that the Appellant could give evidence on the facial features only when it was his turn to testify.

20.On the relevant legal principle, O’Connor J had this to say in Szeto Ming v. The Queen [1978] HKLR 61:

“It is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as is necessary for the proper conduct of his defence.  Admittedly a judge or magistrate must be careful not to step into the arena, but that does not mean that he is prohibited from ensuring that any defence a defendant might have or any point he has to make is fully brought out.”

This principle is consistent with the two cases of Chan Leung v. The Queen [1979] HKLR 98 and Suen Chuen and Another v. The Queen [1963] HKLR 630; in other words, a magistrate should never interfere with or influence the defence case, and he is under no duty to conduct the defence for an unrepresented defendant.  However, where a defendant is unrepresented, the magistrate should provide him with ample assistance as to how to conduct the defence.

21.Furthermore, in HKSAR v. Wong Hon Wai [2002] 3 HKLRD 258, Deputy High Court Judge McMahon (as he then was) considered and applied the principle stated by O’Connor J in Szeto Ming and said that “[i]t is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as is necessary for the proper conduct of his defence”.  He also considered that “… [i]t is a general principle of our law that unrepresented persons should be reasonably assisted by the trial judge or magistrate in the conduct of their defence.”

22.Although PW5 was not certain whether the Appellant had always or habitually worn a beard as he had never seen the Appellant before investigating the present case, it was still open to the Appellant to cross-examine PW5 on the appearance of the Appellant on the day of investigation and whether it was similar to the one shown in the photos.  The Magistrate had simply stopped the Appellant from asking PW5 the relevant questions without explaining to the Appellant the ordinary procedure at trial and his rights.  Nor had the Magistrate protected the Appellant’s rights by reasonably assisting him in bringing out his defence.  The Magistrate in the present case had failed to ensure that the Appellant received a fair trial.

23.Furthermore, although the Magistrate did, in the course of explaining to the Appellant his right to testify in court, explain the general procedure and point out that anything the Appellant said that was unsworn would not be admitted as evidence, he did not remind the Appellant of the situation regarding the identity issue and that the photos produced by the Appellant were not admitted as evidence.  In particular, given that the Appellant had during cross-examination and in the course of making his submissions indicated that his defence rested upon the special feature of his beard that he had always worn, the Magistrate should have explained to the Appellant and ensured that he understood the relationship between his not testifying in court and the photographs and its effect on the issue in dispute.  This does not mean that the Magistrate had to step into the arena; he was only required to further explain to the Appellant the general issue of the relationship between his testifying (or otherwise) and the photographs.

24.In my judgment, therefore, the Magistrate had not satisfactorily discharged his duty to give appropriate guidance on the Appellant’s defence, as a result of which the Appellant had been deprived of a fair trial.

25.For the above reasons, I hold that the Appellant’s conviction is unsafe and unsatisfactory.  The appeal is allowed and the conviction quashed.

Ms Patty Lee, Senior Government Counsel, for the HKSAR.

Mr Selwyn Yu, instructed by Wat & Co, for the Defendant.

Translated by Mr. Edmund Cham, Solicitor.