HKSAR v. Leung Sau Chung

HCMA 213/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 213 OF 2012

(ON APPEAL FROM ESCC 4238 OF 2011)

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J U D G M E N T

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1.This Appellant, a man of previous good character in his early 40s, stood trial in the Magistrates’ Court on two charges of indecent assault. It was alleged against him under Charge 1 that on an unknown date between the end of August 2010 and the beginning of September that year, at the premises where he conducted his practice as a certified public accountant, he indecently assaulted a female employee of his. Under Charge 2 it was alleged against him that on 30 September that year, at those premises, he indecently assaulted another female employee of his. The woman named as the victim under Charge 1 gave evidence as PW2 while the woman named as the victim under Charge 2 gave evidence as PW1.

2.The Magistrate acquitted on Charge 2, saying that he believed PW1 was trying to give honest evidence, but that he found that he could not rely upon the accuracy of her evidence.  He convicted on Charge 1.  The Appellant now appeals against that conviction.

3.Three perfected grounds of appeal against conviction have been advanced on the Appellant’s behalf.  Ground 1 is that the Magistrate erred in accepting PW2’s evidence.  Ground 2 is that the Magistrate erred in rejecting the Appellant’s evidence.  Ground 3 is that in all the circumstances the conviction is unsafe and unsatisfactory and that it is just to allow the appeal.  This ground is not particularised.  Both Grounds 1 and 2 are particularised.

4.The particulars to Ground 1 read as follows:

“1. The learned magistrate erred in accepting the evidence of PW2, in that:

a) he had failed to resolve satisfactorily the material inconsistency in PW2’s description of what she had actually felt when she was pressed at just below the shoulder in regard of the alleged indecent assault, in that:

i) he had failed to appreciate the extent and significance of such inconsistency;

ii) he had erroneously and unfairly assumed what had happened when PW2 gave her witness statement in the police station, when the statement taker’s evidence was not before him; and

iii) he had concluded, unfair to the defence, in PW2’s favour that ‘she was not totally sure what it was’, when her evidence did not support such conclusion;

b) he had erroneously accepted PW3’s evidence as ‘recent complaint’, and thereby had wrongly found that PW2’s credibility was bolstered by the alleged ‘recent complaint’, in that:

i) he had wrongly found that the alleged ‘complaint’ was ‘recent’, when PW3 could not state when he received the alleged ‘complaint’;

ii) there was insufficient evidence to assess whether the alleged ‘complaint’ was consistent enough with an indecent nature, since PW3 could not recall the exact wording when PW2 was mentioning ‘the lower part’;

iii) he had failed to consider whether there was any discrepancy between PW2 and PW3 in respect of the terms of the alleged ‘complaint’; and

iv) he had wrongly relied on a subsequent discussion PW3 had with PW1 and PW2 and that PW3 was still unable to give clear evidence on the alleged ‘complaint’, as the basis to find he was an honest witness; and

c)  he had failed to address the contradiction between PW1 and PW2 in relation to whether there was any discussions between them about the Appellant’s behavior prior to resignation and reporting to the police, hence had failed to consider whether there was any risk of concoction by PW1 and PW2.”

5.The particulars to Ground 2 read as follows:

“2. The learned magistrate erred in rejecting the evidence of the Appellant, in that:

a) he had failed to give proper or sufficient reasons as to why he rejected the Appellant’s evidence;

b) he had failed to give due consideration on the important issues on a fair footing by addressing the inherent probability or improbability of the defence case (and coincidentally the prosecution case); and

c)  his reasons for rejecting the Appellant’s evidence about why he had to ask PW1 and PW2 to go outside into a corridor to tell him why they were resigning [§21 of the Statement of Findings], clearly indicated that his treatment of the Appellant’s evidence was charged with undue prejudice, improper prejudgement and a speculation utterly unfair to the Appellant.”

6.There was, as the Magistrate noted, a material inconsistency between what PW2 said in her evidence-in-chief and what she said in re‑examination.  There is also a material discrepancy between her testimony and her statements to the police.  In respect of this discrepancy between her testimony and her statement to the police, the Magistrate said (in paragraph 9(ii) of his Statement of Findings) that he found from the evidence that PW2 had been “pushed by the police officer into describing what she had felt in much more detail than she first gave, as he had not accepted her reference to just the zipper”.  The Magistrate continued by saying that he “also found that the police officer had after getting more information from PW2 simply recorded his own summary of what she had said”.  In saying these things the Magistrate was going further than the evidence warranted.  And even for this reason alone, I am of the view that the inconsistency did not receive the consideration which it ought to have received.  That being so, I am unable to regard this conviction as safe.

7.There is no need to go into the other grounds of appeal.

8.The appeal is allowed to quash the conviction.

Mr David Ma and Mr Lee Shu-wun, instructed by Lee Chan Cheng, for the appellant

Ms Irene Fan, of the Department of Justice, for the respondent