HKSAR v. Ip Fu Wing and Another

[English Translation - 英譯本]
HCMA559/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPELLATE JURISDICTION

APPEAL AGAINST CONVICTION AND SENTENCE

MAGISTRACY APPEAL NO. 559 OF 2013

(ON APPEAL FROM TWCC NO. 1244 OF 2013)

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REASONS FOR JUDGMENT

1.In the present case, there were 3 defendants (D1 to D3) at the trial. They pleaded not guilty to the charges below and were tried before Mr. Lambert Lee, the trial magistrate. They were all convicted as charged after trial and were sentenced as follows:

Charge (1) [Indecent Assault][1] (against D1) – 3 months’ imprisonment;

Charge (2) [Indecent Assault] (against D2) – 9 months’ imprisonment;

Charge (3) [Common Assault][2] (against D3) – 3 months’ imprisonment;

Charge (4) [Indecent Assault] (against D1) – 9 months’ imprisonment, 7 months of which to run consecutively to Charge (1).

D1 and D2, who are legal aided, now appeal against their sentences[3]. (D3’s appeal was earlier withdrawn.)

The prosecution’s allegations

2.Female ‘X’, the first prosecution witness (PW1) was the victim in all the aforesaid 4 charges.  Mr. Choi (transliteration), the second prosecution witness (PW2), was the manager of the restaurant in question.  Their evidence was summarized by the Magistrate in his Statement of Findings as follows[4]:

“PW1 … was a student doing a diploma course in the daytime and working part-time as a Blue Girl Beer promoter at night. From 9 pm to 1 am on the evening in question, PW1 was working in Co Co Duck Restaurant in Tsuen Wan. While she was promoting beer, first, D1 suddenly came up and lifted her off the ground with his arms when they were facing each other. [Charge (1)] Next, just before time for her to go off duty, when she was bending over to pack up her garments in the doorway to the storeroom (or commonly known as store room), D2 positioned himself behind her and pressed up against her buttocks closely with his private parts. [Charge (2)] Then, D2 even imprisoned her alone in the store room for a while before letting her go. Finally, when she was getting ready to leave, D3 suddenly slapped her near the main entrance [Charge (3)] and told her to stay and drink alcohol with menace. At this juncture, D1 appeared, put his arms around her and hugged her when they were facing each other. [Charge (4)] It was only after she struggled repeatedly that she managed to free herself from D1 and leave immediately. After the incident, she called her boyfriend and gave him a brief account of what had happened. Subsequently, she, together with her boyfriend, returned to the restaurant to make a complaint to PW2, i.e. the manager of the restaurant. Eventually, the police were informed and asked to render assistance.

PW2 … was the manager of Co Co Duck Restaurant (‘Kelvin’ for short).  He testified that both D1 and D3 were kitchen staff of the restaurant.  D2 … was a customer of the restaurant.  He was not well-acquainted with D2.  He had chatted with D1, D2 and D3 on the evening in question.  After the incident, PW1, together with her boyfriend, made the relevant complaint to him, and he had tried to persuade PW1 to have the matter resolved in an amicable manner by way of apology.”

The defence case

3.What follows is the defence’s versions[5]:

“D1, D2 and D3 all elected not to give evidence or call any witnesses. D1 contended that his act of first lifting PW1 up with his arms and later hugging her was based on his belief that he had had her consent. The act he was doing at the material time was nothing more than playing a joke. He did not mean to indecently assault her. D2 contended that he only inquired of PW1 whether she was going off duty and then played a joke by closing the door of the store room and holding her alone in there for a while. D3 contended that he had never made a move to slap PW1 nor uttered any words.”

The Magistrate’s findings

4.As this is only an appeal against sentence, the Magistrate’s reasons for convicting each defendant are no longer important.  That said, the relevant contents may shed light on the facts of the case[6]:

“As far as the nature of PW1’s work is concerned, having a smile on her face and trying her best not to offend customers are basic requirements for promoting beer on the premises. Therefore, when her hand is grabbed or touched by a customer while she is pouring beer, all she can do is put up with it and dodge. Even a simple remark requesting a customer to show respect for her will attract discontent, complaint or even verbal abuse from the customer. From the CCTV footage, one can see that on the evening in question, especially during the period from 10 o’clock to 12 o’clock, whenever PW1 was pouring beer, D1 felt her head or grabbed her hand(s), and even drew her body close to him, D2 touched her leg(s) and D3 grabbed or touched her hand(s) as well. More often than not, she dodged and stepped back. Given that PW2, the manager of the restaurant, was sitting at the same table at the material time, besides dodging right and left, did she dare to brazenly put up a rather vigorous resistance before the manager’s very eyes? I therefore fully appreciate and accept her evidence that she could not but withdraw her hand(s) and dodge. From the video footage, especially the part at 23:41, one can see that D1 and D3 forcibly grabbed her by the hand. Though she laughed and talked with D1, D2 and D3, it does not mean that they had her consent to touch her hand(s) or leg(s) at will. The two huggings by D1, one after the other, happened unexpectedly. The video footage shows that on the first occasion, as PW1 was waiting for the newly-arrived customers to take their seats, D1 dashed forward and lifted her off the ground with his arms when they were facing each other. This caught her completely off-guard. When she was placed back onto the ground, she brushed D1 aside with her hand(s) ... I accept PW1’s evidence that she had never indicated to any of the defendants that they were allowed to touch her body. D1 hugged her twice, one after the other ... both occurred when their bodies were front-to-front. When D1 put his arms around her and hugged her, their upper bodies would certainly be touching each other closely. D1 obviously realized that in doing so, her chest and his body would definitely be forced to come into close contact ....

As for D2, PW1 accused D2 of positioning himself behind her and pressing up against her buttocks closely with his private parts by taking advantage of the moment when she was bending over to pack up her garments, and of subsequently closing the door and trapping her in the store room ... While PW1 was pouring beer, D2 touched her hand(s) or leg(s), whereas she dodged and brushed him aside. Judging from her reaction, D2 obviously knew that she did not accept or allow the grabbing or touching of her body….

As for D3 ... by that point, PW1 had been indecently assaulted by D1 and D2, one after the other, and trapped in the store room.  Having gone through the ordeal of being bullied and humiliated, she was in a state of panic as well as isolation and helplessness.  According to her evidence, she simply wanted to leave as soon as possible.  She absolutely did not want to stay any longer, let alone take the time to conceive or concoct a fictitious story to frame D3 ... I accept her evidence that while on her way to the main entrance, she was suddenly slapped by D3 who, in the meantime, told her to stay and drink alcohol in an intimidating tone ...”

Sentencing at first instance

5.This is what the Magistrate said[7]:

“D1 – 28 years of age, has 5 previous convictions involving violence, theft, pickpocketing, possession of a dangerous drug and so on. The last one was for the offence committed in 2004.

D2 – 30 years of age, has a clear record.

D3 – 29 years of age, has only one conviction for wounding in 2008.

The evidence in the case shows that the 3 defendants touched the victim’s hand(s) or leg(s) from time to time when she was pouring beer. The victim could not but dodge right and left without saying anything. Subsequently, D1 went even further and forcibly lifted the victim up with his arms when they were facing each other. In respect of the 3 defendants, just before time for the victim to go off duty and leave, D2 first indecently assaulted her to gratify his own desire, then imprisoned her to escalate her feeling of panic. On top of that, all of a sudden, D3 slapped her fiercely at the main entrance and told her to stay and drink alcohol with menace. At this juncture, D1 came up and hugged her vigorously, and as a result, her clothing was pulled aside. It was only after the victim put up many a vigorous struggle that she managed to free herself and leave. This shows that the 3 defendants jointly brought pressure upon the victim when she was about to leave. D2 not only indecently assaulted her, but caused her to panic. D3 subjected her to further violence and intimidation. D1 forcibly hugged her so as to force her to give in. If the victim was cowed into submission and staying to drink alcohol with them, the consequences would be worse than anything imaginable.

I therefore consider that custodial sentences are inevitable and that as far as the terms of imprisonment are concerned, a distinction ought to be drawn between the present case and unsophisticated cases of indecent assault committed for the sake of momentary satisfaction only.  In view of the extreme seriousness of the 3 defendants’ intents and purposes, especially the fact that the 3 defendants pleaded not guilty, showed no remorse at all and were convicted after trial, deterrent sentences are called for.”

Ground of appeal

6.It is submitted on behalf of the appellants that the sentences in the present case were manifestly excessive.

Discussion

7.Because of the nature of their work, beer promoters are in a vulnerable position when they are at work.  The misuse of their capacity as consumers by customers for assaulting the former is an aggravating factor.  Though D1 and D3 were kitchen workers of the restaurant in question, they were entertaining themselves as customers in the restaurant with D2 at the time of the offences.  Besides, the manager of the restaurant (PW2) was sitting at the same table.  Therefore, there was absolutely a disparity between their status and that of ‘X’.  Thus, the aforesaid aggravating factor is equally applicable to D1 to D3.  This is the first setting in the present case.

8.The first assault on ‘X’ (in respect of Charge (1)) took place at about 12:00 midnight.  By that point, the 3 defendants had been entertaining themselves for 2 hours at the above location.  During that period of time, all three had pawed at ‘X’.  This is the second setting in the present case.

9.Further assaults on ‘X’ (in respect of Charges (2) to (4)) took place around an hour later when ‘X’ was about to go off duty.  However, D1 to D3 assaulted or attacked ‘X” almost at the same time.  The Magistrate was correct in saying that the defendants were acting in concert.  There is no possibility that the defendants’ acts were coincidental.  This is the third setting in the present case.

10.I now turn from the settings to the details of each and every offence.

11.When Charge (1) occurred, the restaurant was teeming with other customers.  However, D1 brazenly put his arms round ‘X’’s legs and lifted her up in public, resulting in her chest touching his shoulders.  The extent of indecency and humiliation of this movement is definitely not as small as what has been submitted on behalf of the appellant.  It is not comparable with offences of the same kind committed on MTR or buses where offenders would wish their acts to go unnoticed.  For this point, together with the settings mentioned in paragraphs 7 and 8 above, the term of 3 months’ imprisonment was appropriate.

12.D2 was not well-acquainted with ‘X’.  However, the act done by him was indecent, and what’s more, the latter was subsequently locked by him in the store room for over a minute.  His conduct as a whole was obviously bullying in nature. The extent of fear ‘X’ had been subjected to when she was locked in is not to be underestimated (Who knows what will happen when the door of the room reopens?).  For these reasons, together with the settings mentioned in paragraphs 7, 8 and 9 above, a heavy sentence is warranted for Charge (2). However, the term of 9 months’ imprisonment was indeed excessive, and was inconsistent with judicial experience and the normal sentence for indecent assault.

13.Not only is Charge (4) a repetition of Charge (1), but the facts and circumstances are of a more serious nature in that ‘X’’s clothing was consequently pulled aside.  In fact, it was only after ‘X’ struggled extremely vigorously that she managed to free herself from D1’s second hugging.  For this point, together with the settings mentioned in paragraphs 7, 8 and 9 above, a heavy sentence is also warranted for Charge (4), and furthermore, part of the sentence should run consecutively to Charge (1).  However, the individual term of 9 months’ imprisonment and the overall term of 10 months’ imprisonment were manifestly excessive.

Judgment

14.I allow the appeals of D1 and D2.

15.I order that:

·  the sentence of 3 months’ imprisonment on Charge (1) remain undisturbed, and the sentence on Charge (4), however, be reduced to 4 months’ imprisonment, 2 months of which be served consecutively to Charge (1).  In other words, for the present case, D1 will go to prison for a total of 5 months.

·  the sentence on Charge (2) be reduced to 4 months’ imprisonment.  For the present case, D2 will go to prison for 4 months.

Mr. Edmond C. M. Lee, SADPP of the Department of Justice, for HKSAR, the Respondent.

Mr. Paul S. L. Yip, instructed by Lam & Co., C. Y., assigned by the Director of Legal Aid, for the 1^st Appellant (D1).

Mr. Alan So, instructed by Tam & Co., Kent, assigned by the Director of Legal Aid, for the 2^nd Appellant (D2).

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.

[1]  Contrary to section 122(1) of the Crimes Ordinance, Cap. 200.

[2]  Contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212.

[3]  Acting in person, D2 had lodged an appeal against conviction, which, however, was withdrawn before me.

[4]  Page 30 of the appeal bundle.

[5]  Page 31 of the appeal bundle.

[6]  Pages 32 to 35 of the appeal bundle.

[7]  Page 36 of the appeal bundle.