Attorney General v. Yiu Wun-ying
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CACC000672/1978
----------------- Coram: Cons, J. Date of Judgment: 30th August, 1978. ----------------- JUDGMENT ----------------- 1. The respondent to these proceedings was charged before a magistrate with two offences relating to a little girl of three years: indecent assault and an act of gross indecency. There was little direct evidence against him but what there was showed that the girl had visited him during that period of five minutes within which the offences had taken place, that the offences were committed by a person of the same blood group as the respondent and that when confronted by the girl's mother the respondent has acted and spoken in a way which, if not explained, could well indicate guilt. At the close of the evidence for the prosecution the solicitor who was then representing the respondent submitted no case to answer. The learned magistrate upheld the submission. Hence these proceedings. When the case was first called before me this morning no one other than counsel for the Crown appeared in answer. Eventually the respondent appeared in person. He did not ask for an adjournment to be represented. Nor after hearing him did I offer one. The matter was in effect therefore argued on one side alone. After hearing counsel for the Crown I ordered a trial de novo before another magistrate. Briefly my reasons were as follows. 2. With every respect to the learned magistrate he fell into two errors in his basic approach to the evidence. The first appears from this part of the case stated.
He framed the first formal question in similar words and asked if he had been correct so to hold. My answer to that question is "No". That is not the criterion by which circumstantial evidence is to be judged. The proposition is based on a misreading of the judgment referred to. It is a short judgment of only two paragraphs. The first has no relevance in this instance. The second can usefully be set out in full:
The learned Lord Chief Justice is not there laying down the principle that circumstantial evidence must be of that particular calibre before it can support conviction. He is merely pointing out that it is capable of being extremely good evidence. 3. The second error of approach is perhaps merely an extension of the first, that is he appeared to demand mathematical certainty for each separate part of the evidence. He never put the pieces together as a whole. He searched each one for possibilities consistent with the innocence of the respondent. He did not consider whether these possibilities, apparently innocuous in themselves, might not in combination be a proper foundation for guilt: see Yim Chor-man and others v. Reg. (1). 4. The second formal question is rather lengthy. It could, I think, have been better expressed in these terms:
Worded in that way the question would reflect the correct principle to be applied. My answer is again "No". In my view the evidence adduced, particularly that to which I have already referred in detail, was such that a reasonable magistrate might convict. 5. This case must therefore be remitted back to the magistracy where it was first tried. In all the circumstances I think the interests of justice to both sides will best be served by a fresh trial before another magistrate. Copies of these reasons and of the notice of the date set for the new trial are to be sent to both the respondent in person and to the firm of solicitors which represented him on the earlier trial. Representation: Mr. J. Duffy, Crown Counsel, for appellant. Yiu Wun-ying, respondent, in person. (1) [1975] H.K.L.R. 546 at 554 |