IN THE SUPREME COURT OF HONG KONG
CRIMINAL APPEAL NO. 1200 OF 1978
Coram: O’Connor, J.
Date of Judgment: 10 January 1979
1. The appellant appeals against his conviction on a charge of indecent assault. In support of his appeal he merely puts forward thathe was innocent and in no way involved in the incident charged. The victim, an 18 year old girl, had given evidence of the indecentassault and other witnesses gave evidence of an early complaint by her and of the arrest of the appellant. The appellant gave evidencedenying the charge and at the conclusion of the case the learned magistrate recorded that he was satisfied beyond reasonable doubtthat the appellant indecently assaulted the girl. In his statement of findings he reviewed the evidence and stated that he was satisfiedbeyond reasonable doubt that the appellant committed the assault in the manner alleged by the girl and that it was an indecent assault.He disbelieved the evidence of the appellant.
2. On a proper consideration of the evidence these findings were certainly open to the learned magistrate, and it would not have beensurprising if on such proper consideration he came to the conclusion that guilt was proven. However, I have taken the point thatthere is no mention or indication that he was aware of the requirement that in such a case the trier of fact is required to keepin mind the dangers of acting on the evidence of the victim in such a case unless it is corroborated. When such a case is being triedbefore a judge and jury it is the duty of the judge to instruct the jury as to their approach to such evidence, and where the trialis before a judge without a jury or a magistrate, the judge or magistrate is expected to demonstrate that he has approached the evidencewith the same caution that a jury would have been instructed to adopt. The Privy Council has so held in
3. Chui Nang Hong v. Public Prosecutor 1964 1 WLR 1279
a rape case tried by a judge without jury in Malaysia, and the Court of Appeal has so held in England in
4. Galler v. Galler 1954 1A11 England Report 536
a divorce case where the matter arose in connection with the evidence of an adulterer in respect of his own adultery, he being inthe same position as an accomplice in a criminal case. The position has been considered locally in
R. v. Currim Rahim 1959 HKLR 117
R. v. Sher Bahadur Khan 1961 HKLR 357
R. v. Albert Wu 1961 HKLR 467
R. v. Lo Man 1964 HKLR 286
R. v. Shum Kin Chung Cr. Appeal 272 of 1969
In the instant case the findings do not show that the learned magistrate displayed the same caution in respect of the girl’s evidenceas a jury would be told to adopt, nor does the record of the trial disclose that those dangers were appreciated. I have given considerationto whether it is a proper case to dismiss the appeal despite the failure of the magistrate to give himself the appropriate warning.There is evidence which could be considered corroborative on the question of identity. In my view there is no evidence that couldbe considered corroborative of an indecent assault. The only matter which could be suggested to be such being girl’s condition butin my view it clearly could not come within the line of cases leading up to
R. v. Wilson (1974) 58 Cr. Appeal Report 304
I therefore allow the appeal and set aside the conviction but in the light of all the circumstances order an early retrial beforea different magistrate.
Appellant in person
I.A.Evans, Assistant Director of Public Prosecutions, for Crown/Respondent.