HKSAR v. Chan Ho Ming

HCMA 145/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 145 OF 2015

(ON APPEAL FROM TMCC 3482/2014)

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J U D G M E N T

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BACKGROUND

1.On 26 January 2015, the appellant was convicted of two counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance, (Cap 200), following a trial in the Tuen Mun Magistracy before Deputy Magistrate Michael Chan (“the Magistrate”).  He was sentenced on 9 February 2015 to 14 days’ imprisonment on charge 1 and two months’ imprisonment on charge 2, both sentences to run consecutively.  The appellant originally appealed against both conviction and sentence and was granted bail pending his appeal. He later abandoned his appeal against sentence.

2.The trial was conducted in Chinese.  By order of Master Wong made on 25 June 2015, this appeal is conducted in English upon application by the appellant.

PROSECUTION CASE

3.The prosecution case consists of two civilian witnesses, female X (the alleged victim) (PW1) and her boy friend (PW2).  There was an Admitted Facts (Exh P3) and also produced was a cautioned Record of Interview (Exh P5) made by the appellant in response to the two allegations of indecent assaults as charged.  The prosecution case is helpfully summarized by Mr Raymond Cheng, Senior Public Prosecutor at para 2-15 of his skeleton submissions which I shall adopt as follows:-

“    It was the prosecution case that the Appellant had indecently assaulted X (PW1, in her 20s) inside a LRT train on 19 May 2014 and 2½ months later at the Tuen Mun MTR Station on 5 August 2014.

X took route No. 505 of the LRT every working day to the city for work from Sam Shing Estate LRT Station via the Tuen Mun MTR Station roughly between 0740 and 0800 hours.

On 19 May 2014

At about 0745 hours on 19 May 2014, X was travelling on board of a route No. 505 LRT train. X was standing near one of the doors facing the window. When the train reached Yau Oi Estate, she felt something soft rubbing against her left and right buttocks for around 30 seconds. X looked back and saw a male person’s belly just 2 inches away from her buttocks. X then saw the male person taking out his mobile phone with a shaking hand. X believed that the male person had rubbed his belly against her buttocks and was nervous at the time.

X kept an eye on the male person for the ensuing two-LRT-station journey to the Tuen Mun MTR Station where both alighted. X noted that male person wore a pair of spectacles with thick black rim; had a mole on his left cheek; and did not have much hair on his head.

After having alighted the train, X did not apprehend the Appellant but sent a text message to her boyfriend via Whatsapp saying that she had been indecently assaulted by a male person in his 40s. X expressed fury in the message and suggested that had she not been in a hurry to work, she would not have let go the matter.

Records of X’s and the Appellant’s Octopus cards confirmed that both had travelled between the Sam Shing Estate LRT Station and the Tuen Mun MTR Station between 0740 and 0800 hours on 19 May 2014.

X originally testified at trial that the rubbing lasted for just 6 to 7 seconds but corrected herself under cross‑examination that the rubbing in fact lasted for 30 seconds as she had stated in her witness statement.

On 5 August 2014

On 5 August 2014 which was another working day, X reached the Tuen Mun MTR Station at about 0742 hours to change for the West Rail. X took the escalator No. E7 to the West Rail platform. X’s head was down at the time looking at her mobile phone. Before X stepped on the escalator, she had a sense of being touched at her left buttock. At the same time, she saw out of the corner of her eyes a person’s hand retrieving from the direction of her left buttock. X looked back and saw a male person retrieving his right hand. X did not actually see a hand touching her left buttock.

X noted that the male person wore a pair of spectacles with thick black rim; had a mole on his left cheek; and did not have much hair on his head. X noticed that the male person had a rucksack on his back.

X then stepped back and let the male person pass to take the escalator first. The two of them then took the same escalator to the top for the West Rail platform with X one step behind the male person.

Whilst still on the escalator, X recalled that it was the same male person who had indecently assaulted her on 19 May 2014. X therefore kept an eye on the male person and when she reached the top of the escalator, she saw a staff member of the MTR and approached her to make a complaint. X at the same time saw the male person at the front of the platform. X therefore led the staff to the male person and told the staff that the male person had indecently assaulted her. A report was made and this male person, i.e. the Appellant, was later arrested by the police.

X admitted under cross-examination having stated in her witness statement that it was the male person’s left instead of right hand that she saw he retrieved after having touched her buttock. X however denied the suggestion that she could not be sure that it was either one of the male’s hands and that the touching, if any, was inadvertent. X also denied the suggestion the male person was carrying the rucksack on his front instead of his back.

Cautioned Interview

The Appellant admitted in his cautioned interview that he should have had travelled on a No. 505 LRT train between the Sam Shing Estate LRT Station and the Tuen Mun MTR Station between 0700 and 0800 hours on 19 May 2014 but he had forgotten if he had seen X. He denied having rubbed X’s buttocks with his belly and he suggested that X might have misidentified him. The Appellant admitted having asked X in front of the MTR staff on 5 August 2014 whether she had misidentified him but it was in relation to the alleged previous indecent assault on the LRT train on 19 May 2014 and not the alleged indecent assault on 5 August 2014.

In relation to the incident on 5 August 2014, the Appellant in the same cautioned interview denied having indecently assaulted X and claimed that it was his rucksack which he carried in his front that might have hit against X’s left buttock.”

DEFENCE CASE

4.The appellant elected not to give evidence in the trial nor did he call any witness to testify on his behalf.  He has a clear record.

THE MAGISTRATE’S FINDINGS (AND ANALYSIS OF EVIDENCE)

5.The Magistrate’s findings (and analysis of evidence) can be found in his Statement of Findings at paras 17 to 25:

“17. I, having carefully considered PW1’s evidence, regarded her as an honest and reliable witness and the evidence she gave was clear without exaggeration. Her evidence under cross examination remained unshaken. Minor inconsistencies exist between her testimony in court, her statement taken by the police and what she had told the woman police officer. I believe that the statement was written by the police officer and PW1 did not write it herself, so inevitably there will be inconsistencies between her answers to questions put to her by the police officer, and her replies to the questions put by both the prosecution and defence counsel in court. Having considered these inconsistencies, I am of the view that they are not material discrepancies and do not contradict each other. It can be said that these inconsistencies do not bear any significance.

18. I consider it to be more appropriate to deal with the second charge first.

19. The Defence case is that PW1 had made a wrong identification of the Defendant, who did not touch PW1’s buttocks. If PW1’s buttocks had been touched, perhaps it was done by someone else, or perhaps by some other objects. Also, if PW1’s buttocks had been touched by the Defendant, perhaps it was the Defendant’s backpack placed in front of him that was in contact with PW1, and it was done inadvertently.

20. I have borne in mind the Turnbull guidelines. However, I accept PW1’s evidence. After she felt that her buttocks was being touched, and after she had spotted the Defendant, her sight all along was fastened on the Defendant until she and the staff had approached the Defendant and pointed out the Defendant to the staff. Further, PW1 could clearly describe the Defendant’s clothing, eyeglasses and said that he did not have much hair, but had a mole on his left cheek. I do not have any reasonable doubt, which means I am sure, that PW1’s identification of the Defendant is correct. I do not need to rely and had not relied on any corroborating evidence, but corroborating evidence actually exists. On page 4 of the Defendant’s Record of Interview, the Defendant said ‘I believe it was my backpack which had hit against the girl.’, and on page 5 ‘and told her that my backpack had hit against her.’ As regards the Defendant asking PW1 whether she had identified the wrong person, and ‘I believe she might have wrongly identified me as someone else who had touched her on the Light Rail.’, the Defendant was referring to the previous occasion inside the Light Rail compartment, instead of referring to the incident occurring at Tuen Mun station.

21. As to whether there was touching or not, PW1 was sure that the Defendant had touched her. She said she felt someone had touched the left side of her buttocks. At the time she was pressing the keys on her telephone, with her head looking downwards and so out of the corner of her eyes, she saw someone touching her left buttocks. She looked back and saw a male withdrawing his hand instantly. That male was wearing white shirt, black trousers, carrying a brown/black backpack on his back. PW1’s positive answers remained unshaken under cross-examination.

22. I accept PW1’s evidence. I believe beyond all reasonable doubts, that means I am sure that PW1 did not mistake something else for a hand; nor did she mistake actually someone else’s hand for the Defendant’s hand. In my view, PW1 did not make such mistakes. I consider that PW1’s feeling was reliable. Besides, it was not merely feeling, she saw it out of the corner of her eyes.

23. I refuse to accept the Defendant’s denials and explanations, which have not cast any doubts on PW1’s evidence. I believe beyond all reasonable doubts, that means I am sure that the Defendant’s backpack was not placed in front of him, and it was not the Defendant’s backpack that was inadvertently laid against PW1’s buttocks. I believe beyond all reasonable doubts, that means I am sure that the Defendant had used his hand to touch PW1’s buttocks, an act which constitutes an assault, and the only reasonable and irresistible inference that can be drawn is that such an assault was indecent. Therefore, I find the Defendant guilty of the offence in Chare 2.

24. In relation to Charge 1, I remind myself that PW1’s identification of the Defendant is totally different from that in Charge 2. The related incident occurred two and a half months prior to PW1 saying that she could identify the Defendant. The allegations made by the prosecution against the Defendant, totally depend on whether PW1’s identification of the defendant is correct. I have reminded myself of the Turnbull guidelines. Because some witnesses firmly believe in certain matters, therefore they may lead me also to firmly believe in those matters. Yet these witnesses can be mistaken. I need to carefully consider under what circumstances PW1 identified the Defendant, how long the observation had lasted for, how far the distance in between was, what the lighting then was, whether there was anything obstructing her observation on the Defendant, as well as if there are any special reasons that could account for her identification of the Defendant. Having carefully considered PW1’s evidence, I am satisfied that she had observed the Defendant for the duration of a journey between two Light Rail stops, and the distance between her and the Defendant was very close with nothing obstructing her observation on him. Although there is no direct evidence concerning the lighting, the time then was around 8:00am. The Light Rail was travelling above the ground and there should be lighting inside the compartment. I consider the only reasonable and irresistible inference is that at the time the lighting was sufficient. PW1 could clearly describe the Defendant’s clothing, spectacles, and the special features of the Defendant i.e. without much hair and a mole on the left cheek. Having carefully considered PW1’s evidence, I believe beyond all reasonable doubts, that means I am sure that PW1’s identification of the Defendant is correct and reliable. I do not need to rely on any corroborating evidence. However, there is actually some corroborating evidence, which is the Octopus card records from the Octopus Company and MTR company, showing that the usage records of both the Defendant’s and PW1’s Octopus cards for the period from 7:40am to 8:00am on 19.5.2014 at Light Rail Sam Shing Stop and West Rail Tuen Mun Station, and the Defendant also admitted that on 19.5.2014 he got up at 7am and traveled on the Light Rail 505 from Sam Shing to Tuen Mun to change for the West Rail to go to work.

25. Another issue which is in dispute is that at that time whether the Defendant had used his belly to rub against PW1’s buttock.  I accept PW1’s evidence that she felt something soft rubbing against her buttocks.  Sometimes she said for 6 to 7 seconds and at other times she said for 30 seconds.  I consider that it would be very difficult for anyone to make an accurate estimation of time.  I consider this inconsistency regarding the time is not important.  I am satisfied that the Defendant was the only person behind PW1 and the Defendant’s belly was 2 inches away from PW1’s buttocks.  Having carefully considered all the evidence, I believe beyond all reasonable doubts, that means I am sure that the Defendant had used his belly to rub against PW1’s buttocks.  I believe beyond all reasonable doubts, that means I am sure that it was rubbing done by intent instead of accidental contact, and it is an assault.  The only reasonable and irresistible inference that I can draw is that it was an indecent assault.  I find beyond all reasonable doubts, that means I am sure that the Defendant had indecently assaulted PW1 on 19.5.2014 in the compartment of Light Rail train route 505 (Sam Shing Estaste to Tuen Mun bound), while it was approaching Yau O stop.  I therefore find the Defendant guilty of Charge 1.”

6.The Magistrate properly directed himself in respect of the burden and standard of proof required at para 13 of the Statement of Findings and gave the appellant’s good character direction in terms of propensity to commit crimes.

7.As can be seen from the paragraphs cited, the Magistrate has evaluated the evidence of the PW1 at length and accepted her evidence (see paras 17 to 22 of the Statement of Findings) with reasons given.  He was satisfied beyond reasonable doubt that PW1 has correctly identified the appellant as the man who indecently assaulted her on both occasions.

8.The Magistrate also has evaluated the case of the appellant as put by the defence and refused to accept his denials and explanations in the Record of Interview (see para 23 of the Statement of Findings).

GROUNDS OF APPEAL

9.Mr Cheng Huan SC leading Mr Edward H M Tang, for the appellant, has raised four grounds of appeal, namely:

(1)  The prosecution, prior to and during the course of the trial, failed to properly exercise its duty of disclosure in that it failed to disclose to the appellant the CCTV footage taken at the time and place of the 2^nd Charge.  The failure to exercise its duty of disclosure deprived the appellant of the right to a fair trial and rendered the convictions unsafe and unsatisfactory;

(2)  The learned magistrate erred in allowing the prosecution to carry out a dock identification by PW1 during examination‑in‑chief which was a material irregularity which deprived the appellant of a right to a fair trial and rendered the convictions unsafe and unsatisfactory;

(3)  The learned magistrate failed to consider adequately or at all the marked discrepancies between the witness statement of PW1, her evidence in examination-in-chief and her evidence in cross-examination and he failed to provide any or any adequate reasons for accepting the evidence of PW1 as credible and reliable despite the various inconsistencies in her evidence;

(4)  The learned magistrate erred in concluding by way of conjecture and/or inference that the respective assaults on 19 May 2014 (the 1^st Charge) and 5 August 2014 (the 2^nd Charge) were indecent.

GROUND (1)

10.Mr Cheng has submitted, as his first ground of appeal, that the appellant was deprived of his right to a fair trial because the prosecution has failed to disclose to the appellant the CCTV recordings taken at the Tuen Mun Station on 5 August 2014 in relation to charge 2 which might have advanced the defence case.  It is pointed out that the police were in fact provided with the CCTV recordings by the MTR Corporation Ltd (“MTRC”).  However, such CCTV recordings were not provided to the defence despite explicit requests being made by the appellant’s former solicitors.  The existence of the CCTV recordings was not made known to the appellant until after the conclusion of trial.  It now transpired that after viewing the CCTV recordings, the policeman (DPC 9916) who was instructed to obtain from the MTRC a copy of the relevant CCTV recordings formed the view that the seizure of the recordings was not necessary as the images recorded did not capture the location of the offence, the foot of escalator E7.  As a result, the recordings has not been retained or seized by the police and the same had subsequently been overwritten by new recordings according to MTRC.

11.Mr Cheng has referred to a number of authorities in which the loss of evidence and the non-disclosure of material have all proved fatal to prosecution.  He cited HKSAR v. Lee Ming Tee and Securities and Futures (Third Party) (2003) 6 HKCFAR 336 and submitted that as a general principle, the prosecution had a positive duty to ascertain and disclose to the defence unused material in its control or possession where it appeared likely such material would be relevant or possibly relevant to an issue in the case or would raise or possibly raise a new issue whose existence is not apparent from the evidence that the prosecution proposed to use.

12.He also referred to a more recent magistracy appeal case HKSAR v Ho Loy [2015] 3 HKLRD 385 in which Mr Justice Zervos held that the failure of the prosecution to disclose to the appellant who was convicted of failing to comply with a traffic sign Transport Department Reports (which existed prior to the trial) on the traffic signs was a material irregularity.  It was held that the reports were clearly relevant and could have provided a train of enquiry to admissible evidence.  Consequently, as a result of non-disclosure, the appellant was deprived of relevant information that she had specifically requested and which could have been used in presenting her case both at trial and on appeal.

13.Finally, my attention was drawn to another magistracy appeal case HKSAR v. Chu Man Kit, Gary (unreported) HCMA 584/2007 in which Madam Justice Beeson allowed an appeal on the ground of material non-disclosure of CCTV recordings relevant to a charge of indecent assault.  It emerged after the appellant was convicted and sentenced that the police had in fact seized the CCTV footage during its investigation of the case.  As such, the appellant was only provided with the CCTV recordings after the trial.  The respondent in the appeal conceded that there was material non-disclosure and further conceded that the contents of the CCTV recordings might be relevant, or possibly relevant, to an issue in the case.

14.Obviously, every case must be decided on its own facts.

15.The respondent referred me to the Court of Appeal’s decision in HKSAR v Cheung Wai [1998] 4 HKC 249 at p253F-H and submitted that the correct approach to this ground of appeal is the same approach to an application to a trial judge to an application to stay the proceedings.  As was held in R v Holgate (No.1) [1996] 3 HKC 315, the test in the present case is whether the appellant has shown on a balance of probabilities that his trial was so prejudiced by the unavailability of the CCTV recordings of 5 August 2014 that it was beyond the power of the trial magistrate to preside over and hold a fair trial?

16.The respondent further relied heavily on R (Ebrahim) v Feltham Magistrates’ Court [2000] 1 WLR 1293 in which the Queen’s Bench Division held that in determining whether a complaint of abuse of process can be made out on the ground that the police had failed to obtain and/or retain materials which might be useful to the defence, the following questions should be asked:

(a)  Did the police fail in their duty by not obtaining or retaining the materials?

(b)  If there was no duty to obtain and/or retain that materials before the defence first sought its retention, then there can be no question of the subsequent trial being unfair.

(c)  Even if there has been a breach of the obligation to obtain or retain the relevant materials, the trial should only be stayed if the defence can show, on a balance of probabilities, that owing to the absence of the relevant materials the defendant would suffer serious prejudice to the extent that a fair trial could not take place; and in ruling on that question the court should also bear in mind that a fair trial according to law involves fairness both to the defendant and the prosecution and that the trial process itself is equipped to deal with the bulk of the complaint on which applications for a stay are founded.

(d)  A stay should only be granted if the police’s failure result from such bad behaviour, in the sense of bad faith or serious fault, as to render it unfair that the defendant should be tried at all.

17.The respondent contended that the Feltham case has a very similar factual background with the present case. It also concerned a case where the police failed to realize the potential relevance of the CCTV recordings and seized the recordings after having view them and found the incident of assault complained of was not captured.  The recordings were subsequently erased.  The trial magistrate refused to stay the proceedings and in dismissing the defendant’s application for judicial review, the Queen’s Bench Division upheld the trial magistrate’s decision.

18.In the present case, the respondent argued that during the trial, the defence counsel did not dispute at trial that in the 2^nd Charge, the appellant had met female X at the foot of the E7 escalator of the Tuen Mun MTR Station on 5 August 2014 but disputed that the alleged indecent assault could have been caused by the accidental touch of the rucksack which the appellant had carried on his front having hit X’s left buttock accidentally.

19.According to the affirmation filed by the policeman DPC 9916, he had watched the CCTV recordings captured from four CCTV cameras of 5 August 2014 and he formed the view that none of which contained anything valuable to investigation of the case.  In response to the appellant’s complaint, the respondent has produced, by way of fresh evidence, CCTV recordings from the same four CCTV cameras on 1 December 2015 which confirm that none of the four CCTV cameras captured the offence location i.e. the foot of the E7 escalator.

20.In the circumstances, the respondent submitted that the police had not failed their duty in not seizing the original CCTV recordings after having found that they had not captured anything of value.

21.On the other hand, given that the appellant’s defence of an accidental touch by his rucksack had already been mentioned in his cautioned interview on 5 August 2014, the appellant raised the point that arguably, the recordings of 5 August 2014 of two of the four CCTV cameras, i.e. “TA3_Unpaid” and “TA3”, which covered the area around the turnstiles at Exit A of the Tuen Mun MTR Station and the E7 escalator might be able to confirm that the appellant had been carrying his rucksack on his front when he entered the station concourse and thereby cast doubt on PW1’s credibility.  However, the respondent submitted that since it was only suggested to PW1at trial that the appellant was carrying his rucksack on his front when the alleged indecent assault took place at the foot of the E7 escalator which PW1 denied, the fact that (i) the camera “TA3_Unpaid” captured only a small part of the E7 escalator but not the foot of the escalator; and (ii) the camera “TA3” did not capture the foot of the escalator at all, effectively dismiss any suggestion of relevance the appellant might have in respect to the now missing recordings of 5 August 2014.

22.In further support of its argument, the respondentalso cited R v Medway[2000] Crim LR 415 which also concerned a case of CCTV recordings having been destroyed.  The appellant in that case was convicted of robbery after trial.  A CCTV camera was operating in the area in which the robbery took place but was not used by the police who looked at the recording and decided that it had nothing of value and the recording was destroyed.  In the absence of malice on the part of the police and that there was nothing to show that the absence of the recording would make the conviction unsafe, the appellant’s appeal against the trial judge’s refusal to stay the trial was dismissed.

23.The respondent also referred me to a similar case of DPP v Fell [2013] EWHC 562 (Admin) where the Queen’s Bench Division recently held that the trial magistrate had erred in staying the defendant’s trial on a count of battery on the ground that a CCTV footage had been erased accidentally after it had been viewed by a police officer and a bystander who gave contradictory accounts in their statements as to what they saw in the footage which covered part of the incident.  Applying the test laid down in R (Ebrahim) v Feltham Magistrates’ Court (supra.), the Queen’s Bench Division held that inconsistencies in witness evidence were to be expected in criminal proceedings, especially where a short, fast-moving incident involving violence was concerned and the loss of the CCTV evidence did not approach the level of prejudice necessary to warrant the exceptional course of granting a stay of proceedings.

24.The respondent submitted that the absence of the original CCTV recordings of 5 August 2014 in the present case would not have made any difference to the outcome of the appellant’s trial because the central issue concerning the trial, namely, what had happened at the foot of the E7 escalator, could not have been captured in any of the missing recordings anyway.  This important feature distinguishes the present case from HKSAR v Lau Ngai Chu [2002] 2 HKC 591 in which the 10 CCTV recordings that had not been disclosed prior to the appellant’s trial were retained and had been made available to the appellant after the trial who was able to demonstrate that parts of 3 of the 10 recordings were relevant to three important issues which were subject of the trial.  The respondent therefore submitted that HKSAR v Lee Ming Tee and Securities and Futures Commission (Third Party) (supra.), HKSAR v Ho Loy (supra.) and HKSAR v Chu Man Kit, Gary (supra.) relied upon by the appellant can also be distinguished in the same manner.

25.It is submitted by the respondent that even if the police had in the present case failed their duty in not seizing the original CCTV recordings, the failure resulted only from oversight but not bad behaviour, in the sense of bad faith or serious fault, on the part of the police so as to render it unfair that the appellant should be tried at all.

26.It is submitted therefore that no fault lies with the police for allowing the CCTV recordings of 5 August 2014 be destroyed as they are now demonstrated to have no marginal relevance to the main issue in the original trial, namely, whether PW1 was indecently assaulted at the foot of the E7 escalator and their absence could not have made any difference to the outcome of the trial.

27.In conclusion, the respondent submitted that the appellant has not been able to show on a balance of probabilities that the appellant’s trial was so prejudiced by the unavailability of the CCTV recordings.  Since their absence could not have made any difference to the outcome of the original trial, this ground should be dismissed.

DISCUSSION ON GROUND (1)

28.The above authorities cited by the respondent establish that the absence of evidence such as CCTV recordings may prevent a fair trial but does not automatically do so.  The authorities relied by the appellant has a common feature in that the missing evidence are all directly relevant to the issues at trial. I accept that the paramount consideration in this case therefore is whether owing to the absence of the CCTV recordings, the defence would suffer serious prejudice to the extent that a fair trial could not take place.  The starting point for consideration must be whether the missing recordings were relevant or determinative for the central issues that were fallen to be decided during the trial.

29.I should say at the outset that I am satisfied that what has emerged during the hearing of this appeal shows that it is not a case that the police has acted in bad faith in not seizing the CCTV recordings or deliberately allowing the recordings to be erased or destroyed. It is apparent from reading the affirmation of DPC 9916 that after viewing the CCTV recordings on 15 August 2014, he was of the view that the footage did not cover the offence location and thus was of no value for police investigation. Neither he nor the officer-in-charge of the case had ever given consideration to any significance it might have and thus the police did not see fit to apply for a warrant from the court to seize the recordings from the MTRC.  By the time the solicitors then acting for the Appellant first made enquiry with the police about the CCTV recordings which was on 4 December 2014, the same has already been recycled and lost permanently as normally any recordings would only be kept for 28 days according to MTRC.

30.On 22 July 2015, pursuant to section 83V of the Criminal Procedure Ordinance (Cap 221), the appellant applied to file two affirmations by the two solicitors acting for the appellant to disclose the correspondence between the police, the defence (before the trial) and the MTRC (after the trial) regarding the availability of CCTV footage relating to both charges.  The affirmations and exhibits sought to show that such CCTV recordings were not provided to the defence despite explicit requests being made to the police.  In response, the respondent has applied for an adjournment to conduct further investigations when the appeal hearing was first listed before Stanley Chan DHCJ on 4 December 2015.  The application for adjournment was opposed fiercely by the leading counsel for the appellant but was granted eventually after hearing submissions from both sides.  As a result of further enquiries, the respondent had sought to introduce additional evidence by way of four affirmations by DPC 9916, the officer-in-charge of the case and two operations safety officers of MTRC, regarding the CCTV recordings.  There is no need for me to describe this evidence in great details.  Suffice it to say that after the adjournment, DPC 9916 had on 9 December 2015 applied for a search warrant and obtained from MTRC new recordings of the same four CCTV cameras which captured the CCTV recordings of the Tuen Mun MTR Station on 5 August 2014.  Having viewed the recordings, DPC 9916 confirmed that the areas covered by the four CCTV cameras as shown in the new recordings were the same as the lost recordings.  According to the new recordings, only CCTV camera number “TA3-Unpaid” covered a small part of the E7 escalator which was far away from the camera and the foot of the escalator, where the alleged indecent assault took place, was totally blocked from the view of the camera by a pillar in the concourse.  Moreover, the affirmation of the operations safety officer of MTRC also confirmed that the four CCTV cameras were fixed cameras which were not movable during daily operation.

31.The appellant argued that the court should exercise its judicial discretion to refuse to admit this new evidence from the respondent. They submitted that the new recordings was taken on a different date as the lost recordings and questioned what purpose it would serve to produce new recordings of a date other than the date of the offence.  Also, they said there was no evidential basis to suggest the new recordings would capture the same geographical location as the CCTV cameras on the offence date.

32.The objections raised by the appellant can be disposed of without any difficulty.  First, the materials sought to be adduced by the respondent are directly relevant to the determination of appellant’s Ground 1 of appeal against conviction regarding the non-disclosure of CCTV recordings.  Second, the materials that were sought to be adduced by the respondent were directly in response to the appellant’s Notice of Motion filed on 22 July 2015 and the two affirmations filed in support thereof.  Third, DPC 9916 was the only person who had viewed the lost recordings and he had deposed that the new recordings had captured the exact locations as the lost recordings which must be relevant for consideration.  Fourth, the MTRC has confirmed that the relevant four CCTV cameras were fixed as installed. There was simply no basis for the appellant to suggest that there was no evidential value of the additional evidence adduced by the respondent regarding the new recordings.  Finally and also most importantly, the principal of fair trial involves fairness both to the defendant and the prosecution.  For the purpose of a proper consideration on Ground 1 of the appeal against conviction, it is necessary or expedient in the interest of justice to admit the new evidence adduced by both the appellant and the respondent and I so ordered.

33.The appellant submitted that the ultimate question to be decided is whether the undisclosed material was relevant or possibly relevant to an issue at trial.  They submitted that the lost CCTV footage are relevant to the core issues of the trial for the following reasons:-

(1)  bearing in mind that one of the contentions raised by the defence counsel at trial was that the alleged touching of PW1 may have been accidental, the undisclosed CCTV recordings could have demonstrated that the Tuen Mun Station was very crowded at the time of the offence which was denied by PW1;

(2)  given that it was contended at trial that the appellant was carrying his backpack at his front at the time of the offence, any touching of PW1 may have been by his backpack.  The appellant similarly claimed that any touching of PW1 may have been by his backpack when he was interviewed under caution by the police.  This was put expressly to PW1 during cross-examination, to which she denied;

(3)  one of the discrepancies which emerged from PW1’s evidence was whether she was holding her mobile phone at the time of the alleged indecent assault.  This is another aspect of the evidence which could have been captured by the CCTV camera, thereby leading a possible line of cross-examination to undermine the credibility of PW1;

(4)  PW1 claimed that she kept an eye on the appellant who was standing at the platform. The CCTV footage covering the platform would have captured the circumstances under which PW1 came in contact with a staff of MTRC and the subsequent confrontation with the appellant. Such objective evidence could have undermined PW1’s version of events and affected the quality of the identification of the appellant, which was again an issue raised by the appellant immediately after his arrest.

34.In the 2^nd Charge, the time of the alleged offence was at around 0742 hours and it was a weekday morning inside a MTR West Rail station at Tuen Mun. It is unfair and incorrect for the appellant to say that PW1 had even denied that the station was crowded at the time.  A closer look at the questions posed by the defence counsel during the trial reveals the followings exchanges:

“ Q: Okay, it was a weekday that day, during rush hour, everyone was in a hurry getting to work, including you, right?

A: Yes.

Q: At that time, before you got onto the escalator, you were unable to move forward because it was very crowded, right?

Have to--

A: No

Q: Well, do you need to stand still and wait to get onto the escalator?

A: No need.

Q: So there is no stopping, just walking slowly.

A: Yes.

Q: To get onto the escalator.

A: Yes .” [1]

35.It is clear from the above questions and answers that PW1 did not deny that the MTR station was crowded.  She clearly has said she had to walk slowly to the escalator during the rush hours.  What she disagreed was the suggestion by the defence counsel that it was so crowded to the extent that she could not move forward at all and needed to standstill and waited to get into the escalator. 

36.Based on the affirmation of DPC 9916, none of the four CCTV cameras installed at the MTR station on the offence date cover the location at the foot of the E7 escalator.  As such, whilst the relevant footage would probably show that in general, the MTR station was crowded with many commuters entering the paid area through the turnstiles and going up via the escalator E7 to the platform to board the train but the relevant footage will not be in a position to show that people had to stop and standstill before getting into the escalator due to its coverage. I have the opportunity of viewing the new recordings in court and I must say I have to agree with the observation of DPC 9916, namely, the CCTV recordings would not be able to capture the offence location i.e. the foot of the escalator E7.

37.The same also applied to the suggestion by the appellant that he was carrying his backpack at the front at the alleged time of offence and therefore any touching of PW1 may be caused by the backpack.  In the trial, there is no evidence from the appellant that he would only carry his backpack at the front as a habit or only on the day in question.  The fact remains that the Appellant could well have carried his backpack at the back or at the front as he saw fit at any time as every normal person will do.  Even assuming for a moment that the CCTV footage did capture the appellant carrying his backpack at the front at some point of time, it does not necessarily mean that he was in fact still carrying the backpack at his front at the time of the alleged offence when he was standing behind PW1 at the foot of the escalator.  Both in her examination-in-chief or under cross-examination, PW1 only said the appellant had carried his backpack on his back at the time when she felt her left buttock was being touched.  She did not say that the appellant never carry it at the front at any time.  I must repeat that due to the limitation on the coverage, the CCTV footage was not in a position to show what happened or whether the appellant was carrying the backpack at the front at that very moment when the alleged offence occurred at the foot of the escalator.

38.On the other hand, the submission by the appellant ignored PW1’s evidence that as soon as she felt her left buttock being touched, she immediately turned her head and looked behind her and saw the appellant withdrawing his hand swiftly.  This piece of evidence from PW1 which could not have been captured and shown by the lost recordings has effectively dismissed any suggestion by the defence that the touching of PW1 from behind was accidental and possibly caused by the backpack carried in the front by the appellant. As a matter of fact, based on this evidence, I consider that whether the appellant was carrying his backpack in the front or at his back was only red herring as the touching was said to be by the hand and not by other objects such as a backpack.  It should also be pointed out that during cross-examination of PW1, all that can be challenged by the defence counsel on this point was by putting to PW1 that she was not sure whether it was the left hand or right hand which was withdrawn from her behind and that she was actually not sure if the hand belonged to the appellant to which PW1 had both disagreed.[2]  I fail to see therefore how the lost recordings would be able to assist the defence and undermine the credibility of PW1 if they were available in the trial.

39.The third suggestion by the appellant that the lost CCTV recordings could have captured whether PW1 was holding her mobile phone at the time of the alleged offence so as to lead to a possible line of cross-examination to undermine the credibility of PW1 was again far-fetched and speculative, to say the least.  Admittedly, although during examination-in-chief, PW1 said at one point she was using the mobile phone while she was walking and felt being touched, under cross-examination, she had already clarified that she was in fact putting her phone into her handbag carried on her left shoulder after being reminded of what she has told the police in her statement. In both scenario, what PW1 was trying to say was merely she was looking down so she was able to see the hand of the appellant retrieving after the alleged touching on her buttock. Even treating that there was such an inconsistency as alleged, it is minor and peripheral and I do not see how it could assist to undermine the credibility of PW1 in the core issues.  In any event, due to the problem of coverage, the lost recordings could not be in a position to show whether PW1 was holding her mobile phone at the material time.

40.The last suggestion by the appellant of the relevance of the lost recordings was in relation to the activities of PW1 and the appellant that could have captured in the platform.  It was contended that such objective evidence could have undermined PW1’s version of events and affected the quality of the identification of the appellant, which was an issue raised by the appellant immediately after his arrest.

41.A closer look at the response of the appellant when he was confronted by PW1 at the platform reveals that this argument about misidentification in relation to 2^nd Charge is totally misconceived. In the cautioned statement (Exh. P5), the appellant admitted having asked PW1 in front of the MTR staff on 5 August 2014 whether she had misidentified him but after clarification by the interviewing officer, the appellant already replied it was in relation to the alleged previous indecent assault on the LRT train on 19 May 2014 and not the alleged indecent assault on 5 August 2014:

“A2: ... When inside Tuen Mun Station after passing the MTR entry gate, using my Octopus Card and on reaching the escalator. I felt that my backpack had hit somebody. But I didn’t pay attention to it and proceeded to taking the escalator up to the platform. I stood on the left side of the platform to wait for the train. Shortly afterwards, I saw a girl and a female staff walking towards me. The girl said I had touched her, and that I had touched her at the LRT also. I then asked her if she had identified the wrong person and told her that it was my backpack which had hit her. ...

Q3: ...

A3: ...

Q4: You said previously that you asked the girl if she had identified the wrong person. What do you meant by that?

A4: Because I did not touch her. I had no impression of seeing her before either. Therefore I believe she probably had identified the wrong person, it was some other person who had touched her at the LRT. [3]”

42.For this reason, it is clear that even the appellant did not dispute that the alleged incident in the 2^nd Charge was not a case of misidentification.  What he was trying to say that it was a case of accidental touch.  According to him, therefore that was a case of misunderstanding not misidentification.  Given the stance already adopted by the appellant in the cautioned statement, I question the validity of the suggestion by the appellant in this hearing that the lost recordings showing what happened in the platform could undermine PW1’s identification evidence.  

43.Besides, I also question the relevance of the platform recordings for the following reasons.  First, what happened in the platform was the aftermath of the alleged indecent assault and therefore could not have a direct bearing on what exactly happened at the foot of the escalator.  Second, it is not a case of first time identification by PW1 according to her evidence. She was able to describe the special features in the appearance of the appellant whom she already met a few months ago in the Light Rail train in May 2014. The missing CCTV recordings, on the other hand, could well have reinforced the case of PW1 that she was keeping an eye on the appellant all the time in the platform and it is really anybody’s guess.  As to the issue of identification, it is worth pointing out that PW1 had not been cross-examined about the quality of her identification of the appellant in this incident.  The Magistrate has properly given himself the Turnbull warning on identification.

44.In R v Medway (supra.), Professor J C Smith stated in his commentary to judgment that:

“Commentary The court remarks that where evidence has been lost, tampered with or destroyed, it may well be that a defendant will be disadvantaged; but it does not necessarily follow that he cannot receive a fair trial. In the context, it seems that a defendant is disadvantaged only if the absence of the evidence might have made a difference in the outcome of the trial. If there was a possibility of it, then clearly he was. When the evidence had gone missing, there is no means of knowing what difference it could have made. Even if the police officer who viewed the tape acted in perfect good faith, he may have been mistaken. He may have missed something which would have weakened the prosecution’s case – just as he may have missed something that would have strengthened it. Presumably, the court has to assess how likely it is that the particular evidence would have made a difference. Since there must always, or almost always, be a possibility, a stay will be refused where that possibility is remote. There is an analogy with the law that the cause must be proved beyond reasonable doubt, not beyond all doubt.”

45.Applying the judgment in the Feltham case, the respondent also submitted that the defence raised by the appellant in the present case was not dependent upon the existence and production of the CCTV recordings although if such evidence had existed it would have been of assistance assuming it was the appellant claimed it to be.  The appellant was perfectly well able to give his account of the incident in exactly the same way as if it had occurred in a place where there was no suggestion of the existence of CCTV cameras.  However, the appellant had elected not to give evidence at trial.  I totally agree with this submission and whilst it was his undoubted right to not testify in the trial, it means that there is no evidence from the appellant to undermine, explain or contradict the evidence put before the Magistrate by the prosecution.

46.In my judgment, after considering the submissions on this ground in the round, the relevance of the missing recordings to the core issues of the trial as contended by the appellant is minimal and at its best marginal.  The possibility that the missing evidence could have assisted and advanced the defence case is remote and speculative.  I am left in no doubt that the appellant’s trial was not, in the circumstances of the case, prejudiced by the missing of the recordings, to the extent that a fair trial is impossible.  There was no question of malice or intentional omission, as opposed to mere oversight, on the part of the police, although with hindsight, in the present circumstances, it would be more prudent for the police to retain and seize the CCTV recordings first anyway and to treat them as unused materials and therefore discoverable if subsequently the prosecuting authority had decided that they are not going to produce them in the trial.

GROUND (2)

47.In this ground, the Appellant contended that the Magistrate erred in permitting dock identification of the Appellant by PW1 at trial.  They cited the leading case of HKSAR v Hoang Duc Hoa & Others [1997] 1 HKLRD 12 and stated the principle that judges should not allow dock identifications and prosecuting counsels should not seek to rely upon such if the identification is the first time that the witness is called upon to identify an accused person unless there is some very good reason.  Normally, the only time that dock identification is permitted is in a true recognition case where the accused is known well to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks.

48.The appellant submitted that in the present case, PW1 was not acquainted with the appellant for a very long time and in fact she only had seen the appellant twice and therefore it could not be considered as case of recognition by the witness of a person she knew well and therefore dock identification is not permissible.

49.The appellant also tried to distinguish this case with the judgment of HKSAR v. Ning Renzhong & Another (unreported) HCMA 1151/2005, 13 January 2006 where Mr Justice MacMahon held:

“it may well be that there are often good reasons in a particular case for no identification parade to be held. One such circumstance in additional to those mentioned in Hoang Duc Hoa is where arrest is made at the scene of the offence in full view of the victim who is able to say that the person who committed the crime was the person who they saw arrested by the police.”

50.The appellant pointed out that the passage cited above echoes the views expressed by the Magistrate in allowing the dock identification.

51.The Magistrate seemingly held the view that this was a case in which a defendant was arrested at the scene of the offence in full view of the victim. The appellant submitted, however, by referring to the transcript of proceedings that the evidence only showed that PW1 had been keeping her eye on the male before she spotted the MTR staff and there is no reference as to whether she had lost sight of the male after she spotted the staff.  It is submitted that the implicit meaning in the Magistrate’s summary of evidence was that PW1 more or less knew the location of the male since she had been keeping an eye on him before, and therefore, she was able to lead the staff to the male.

52.In the end, the appellant submitted that therefore the present case is not a case where an arrest is made at the scene of the offence in full view of the victim.  By the time the appellant was arrested, he was no longer at the scene of the alleged offence (i.e. the escalator) but had already reached the platform.  Also, PW1 had lost sight of the male and only located the appellant afterwards.

53.In reply, the respondent submitted that the only issue in this ground was whether there had been any broken chain of identification by PW1 after the indecent assault and before the appellant was identified to the MTR staff.  The respondent pointed out that PW1 said after she had identified the appellant at the bottom of the escalator as the assailant, she let him take the escalator only one step ahead until they reached the top of the escalator into the platform.  Her evidence was that she then kept watching to which train compartment position the appellant went to wait for the train in the platform and so she knew where the appellant was standing. She then pointed the appellant out to the MTR staff where the appellant was and they walked towards him together.

54.The respondent submitted that clearly it was not a case where PW1 only kept an eye on the appellant before getting hold of the staff and that she had lost sight of him after she had got hold of the staff.  The Magistrate had already clarified with PW1 on this point and he had not erred in holding that she at all times had been watching the defendant and allowing the dock identification. I shall refer to the relevant transcript of proceedings in the following paragraphs.

55.The respondent also emphasized the fact that it was not the first time PW1 had seen the appellant. PW1 could not have failed to identify the appellant given the three distinct features of his appearance, namely, that he wore a pair of spectacles with thick black rim; had a mole on his left cheek; and did not have much hair on his head.  The combination of these features clearly makes the appellant easily and readily recognizable.  In addition, PW1 could also clearly identify the appellant’s clothing and that he was carrying a rucksack on both occasions.  It is submitted that PW1’s identification evidence is cogent and safe.

DISCUSSION ON GROUND (2)

56.The principle governing the identification of a defendant in court was very clearly set out in R v Hoang Duc Hoa and others [1997] HKLRD 12.  Mortimer JA (as he then was) said at page 14D-E:

“This is not to say that in a proper case a dock identification cannot be allowed. A dock identification is admissible in evidence. We sound a note of warning, however, because judges should not allow dock identifications and prosecuting counsel should not seek to rely upon such, if the identification is the first time that the witness is called upon to identify an accused person unless there is some very good reason. The obvious reason is that an accused has refused to attend an identification parade and that no other proper means of identification has been possible before trial, such as a group identification of a structured identification by means of photographs or some other recognised and proper procedure. Normally, the only time that a dock identification is permitted is in a true recognition case where the accused is known well to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks.”

57.In the magistracy appeal case of HKSAR v. Lau Man Shing and another [2002] 2 HKLRD E11 it was also held that a dock identification is admissible where the witness has previously identified the defendant at the scene, even though no subsequent formal identification procedure was carried out:

“10.  In this appeal learned senior counsel had fairly conceded that identification evidence in court per se is not inadmissible as a matter of law. The central issue at the trial, as quite correctly stated by the magistrate, was the quality of the identification evidence of the prosecution witnesses. Senior counsel sought to argue that because of the weakness in the identification evidence, they should never have formed the basis of admitting the court identification.

11.  This argument has a number of inherent weaknesses. It was never disputed by the defence at the trial that the appellants were the persons arrested by the police in the early evening of 24 July. What is being described as "court identification" was not an attempt by the prosecution to invite the witnesses to identify the appellants for the first time. It is no more than evidence confirming that the appellants were the persons arrested by the police. I am unable to see any valid basis for objecting the admissibility of this evidence. The magistrate had acted quite properly in admitting the evidence in the way as he did. Learned senior counsel appeared to have based his argument on the erroneous conception that the magistrate should not have allowed questions be put to the prosecution witnesses as to whether the defendants sitting in the dock were in fact the persons arrested by the police. This is clearly not the case as this is not identification for the first time.” (emphasis added)

58.The issue of dock identification was fully canvassed at the trial.  The Magistrate had this to say in his Statement of Findings to explain why he allowed the identification in court:-

“7. The police did not arrange for an identification parade. The prosecution asked for leave to allow PW1 to carry out a dock identification, upon which the defence raised objection and cited the authority of HCMA 761/2005 HKSAR v. Tang Chun Yu in support of their objection.

8. The cited authority HKSAR v. Tang Chun YU is a case of the Court of First Instance of the High Court, which is binding on this Court. However, there’s a substantial point of difference between the facts of this case and that case. The witness in that case only pointed out the defendant of that case 19 days after he/she was being assaulted whilst PW1 pointed out the defendant to the MTR staff after a very short period of time. Further, in her evidence, PW1 mentioned that within that short duration she at all times had been watching the defendant. Therefore, I consider that the authority of HKSAR v. Tang Chun Yu is not applicable to this case.

Moreover, if the police had arranged an identification parade after PW1 pointed out the defendant to the MTR staff, the purpose of which would only be to verify whether PW1 could identify the person she had pointed out to the MTR staff from the identification parade. Therefore an identification parade, as far as this case is concerned, would not serve any purpose.

Hence, I allowed PW1 to carry out a dock identification and PW1 identified the Defendant.” [4]

59.In the present case, the purpose of the dock identification was no more than asking PW1 to confirm that the appellant was the male whom she pointed out to the MTR staff in the platform.  The appellant’s submission that the location of the identification by PW1 to the MTR staff was in the platform was not the same location of the floor of the escalator was frankly hair-splitting and untenable.  Also their attempt to say that the appellant has lost sight of the appellant as she has to spot the MTR staff was only a wild guess.  They emphasized that PW1 had been keeping her eye on the male before she spotted the staff and there is no reference as to whether she had lost sight of the male after she spotted the staff.

60.Plainly, this submission was based on one reply by PW1 to the prosecutor during examination-in-chief:

“Q: Well, while you were seeking assistance, did you check the man’s situation, like where he was?

A: Yes, I kept watching him until I got hold of a staff.” [5]

61.However, this submission ignored the evidence that PW1 had also told the court in evidence that as soon as she took the escalator and followed the appellant into the platform, she could already see a female MTR staff standing in the platform.[6]  It therefore is a not a case where PW1 needed to go to different parts of the platform area to search for assistance.  I wholly agree with the respondent’s analysis of PW1’s evidence regarding her activities in the platform.  It is abundantly clear to me that the totality of her evidence was that she had all along kept an eye on the appellant and did not lost sight of him in the platform at all.  She knew where the appellant was standing as he was waiting for the train in the platform and then went straight to fetch the MTR staff and immediately returned together with him to approach the appellant. The Magistrate also clarified with PW1 on this point:

“Court: You said to locate, but just now you also said he was never out of your sight, you kept watching him, so you don’t actually really mean to search for him when you said locate, right?

Q: So its not searching, do you mean search—

Court: Not to search, not—

Q: Or to—

A: Because I already knew—

Q: Yes.

A: knew where he was.” [7]

62.Since PW1 already knew where the MTR staff was, she did not need to find the staff and she already knew she was there and where she was standing in the platform.  Also one should not forget that PW1 was able to identify the appellant not just by a fleeting glance but by the three distinguished features as pointed out by the respondent in his submission as well as his clothing (black trousers and black leather shoes) and the rucksack that he was carrying (black backpack with white rim).  Finally, the appellant was standing in the platform waiting for the train which means he had not moved his position.  I must also repeat here once again that it was never the Appellant’s case during the trial that he was misidentified by PW1 on 5 August 2014. The 5 August incident had nothing to do with misidentification. It was only about misunderstanding. The appellant never deny that he was not standing behind PW1 before coming onto the escalator. All he said or could say was it was just an accidental touch possibly by his backpack as he too felt it. During the confrontation in the platform, the appellant heard PW1’s allegation that he was the assailant in the LRT incident in 19 May 2014 and he just told her he had misidentified him in relation to that incident but not the incident on 2^nd Charge. There is simply no substance on this ground.

GROUND (3)

63.The chief complaint by the appellants in this ground was that the Magistrate failed to consider the marked discrepancies existed in the evidence of PW1 and he failed to provide any or any adequate reasons for accepting the evidence of PW1 as credible and reliable despite the various inconsistencies in her evidence.

64.As submitted by the Appellant, such discrepancies included:-

(1)  During examination-in-chief, PW1 stated in relation to Charge 2 that at the time, she was walking slowly towards the escalator while pressing her mobile phone at the same time when she saw with the corner of her eyes someone touching the left side of her buttocks with his left hand.  However, under cross-examination and in her witness statement, PW1 stated that at the time she was waiting to board the escalator and had placed her mobile phone into her bag when she felt something touching buttocks, and upon suspicion, turned around and saw the appellant withdrawing his right hand; and

(2)  During examination-in-chief, PW1 stated in relation to Charge 1 that at the time, she was facing the window of the Light Rail Vehicle when she felt something soft rubbing against her buttocks for 6-7 seconds.  However, PW1 stated the alleged rubbing lasted approximately 30 seconds.

65.The appellant referred to para 17 of the Statement of Findings and criticized how the Magistrate came to the conclusion that these were only minor inconsistencies and his attempt to explain away the inconsistencies and blamed the interviewing police officer for the inconsistencies:

“17.  ...[PW1’s] evidence under cross-examination remained unshaken. Minor inconsistencies exist between her testimony in court, her statement taken by the police and what she had told the woman police officer. I believe that the statement was written by the police officer and PW1 did not write it herself, so inevitably there will be inconsistencies between her answers to questions put to her by the police officer, and her replies to the questions put by both the prosecution and defence counsel in court. Having considered these inconsistencies, I consider they are not material discrepancies and do not contradict each other. It can be said that these inconsistencies do not bear any significance.”

66.In reply, the respondent submitted that the trial magistrate had considered the discrepancy regarding the duration of the rubbing in the first incident and said in his Statement of Findings that:

“25.  ... Sometimes she said for 6 to 7 seconds and at other times she said for 30 seconds. I consider that it would be very difficult for anyone to make an accurate estimation of time. I consider this inconsistency regarding the time is not important. ...”

67.In delivering his oral Reasons for Verdict, the Magistrate also explained that PW1 would not have checked her watch for how long the rubbing had lasted.  It is submitted that it is only natural for a lady to feel shocked, embarrassed and furious when being indecently assaulted.  It is readily conceivable that one would not be able to give an accurate estimate of time given the agitated state of mind.  It is submitted that the magistrate had carefully considered the discrepancy and rightly considered that it was insignificant.

68.Regarding the second incident, PW1 testified in her evidence-in-chief that she had been sending text messages on her mobile phone when she felt her left buttock being touched but she admitted under cross-examination that it was when she was putting away her mobile phone instead. Nevertheless, it was PW1’s clear evidence that her head was down at the time and that was why she saw the appellant’s hand.  The respondent submitted that the discrepancy is minor enough that counsel for the appellant had not bothered to mention it in his closing speech,  More importantly, it was the defence case at trial that PW1 was either accidentally touched by the appellant’s rucksack or by the appellant’s hand.  It was not the defence case that PW1 had not been touched.

69.The prosecution submitted that the Magistrate had not erred in his assessment of the credibility and reliability of PW1’s evidence and that Ground 3 should be dismissed.

DISCUSSION ON GROUND (3)

70.In my judgment, the two inconsistencies identified by the appellants in support of the argument are far from significant.  In relation to whether it was 6 to 7 seconds or 30 seconds, the Magistrate had correctly pointed out that PW1 was not watching her watch at the time when she was being touched.  It is only natural that a lady under the circumstances would feel shock or even in fear and therefore confused with the time.  The difference in terms of numbers may be big but in either case, it was talking about a relatively short duration. I do not see how the discrepancy in PW1’s subjective impressions with time would undermine her credibility in general.

71.In relation to the second incident, I also agree with the respondent that whether she was texting with the mobile phone of putting the phone back to her handbag was immaterial.  Both scenarios indicated that PW1 was looking down when she was being touched in the left buttock and she could see one hand of the appellant was retrieving.  In my mind, PW1 was only relating to the court what she was doing when she entered the paid area with her Octopus Card and bearing in mind of what she had said in total, it is clear that the touching took place at around the same time when she just finished using the mobile phone and putting it back to her handbag and hence when she was questioned in greater details by the defence counsel, a slightly different version emerged from PW1.

72.Even the Magistrate was not entirely correct when he attempted to lay the blames on the interviewing police officers without any evidential basis and sought to explain away the existence of the inconsistencies, it does not detract from the fact that the inconsistencies were by themselves minor. In any event, the Magistrate had the advantage of seeing and hearing PW1 and he was entitled to find that she was on the whole a credible witness whose evidence he could rely.

73.In respect of the credibility of witnesses, the law is well stated in HKSAR v Singh Balraj [2003] 3 HKC 621 at para 14 :-

“14.  Whether or not a prosecution witness’s evidence can be safely accepted or a defence witness’s evidence can be safely rejected depends very often on the impression which the magistrate forms when seeing and hearing the witnesses. Such an impression, which will naturally be formed in the context of the inherent probabilities, does not readily lend itself to being described in words. If our legal system proceeded on the bases that the appellate court needed to have such a description, it would not room for the jury system. And yet the jury system exists as the one to which the most serious criminal cases are entrusted under our legal system.”

In fact, I could do no better than to refer to the following passage by Stock J (as he then was) regarding the more realistic approach to inconsistencies in the often-cited case of R v KWONG Wing-on and Another (09/08/1996, HCMA 574/1996):

“12.  Pausing at this juncture, I would say this : that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

74.Stock J mentioned in the case that there is a great danger of losing sight of the wood for the trees if the appellant had focused too much on inconsistencies and I judged that this is exactly what happened in this ground of Appeal.

GROUND (4)

75.In this ground, the appellant submitted that the Magistrate erred in concluding by way of conjecture and/or inference that the respective assaults on 19 May 2014 (1^st Charge) and 5 August 2014 (2^nd Charge) were indecent.

76.The Appellant relied on Kwan Ping Bong & Another v The Queen [1979] A.C. 609 and submitted that an inference can only be drawn if it was the one and only one reasonable inference that no reasonable man could fail to draw from the direct facts proved.

77.In relation to 1^st Charge , they contended that the evidence of PW1 – taken to its highest—merely established that there was contact between the appellant’s belly and PW1’s buttocks.  There was no further evidence regarding the contact between the Appellant’s belly and PW’s buttocks which could support and inference of indecency.  Even if there was, it was submitted that an inference of indecency was not the only reasonable inference. Other inferences – including inadvertence, accidental touching – could equally have been drawn and the Magistrate made no attempt to rule out the possibility of such inferences.

78.Similarly, in respect of 2^nd Charge , they contended that the evidence of PW1 – taken to its highest – merely established contact between the appellant’s hand and PW1’s buttocks.  The possibility of an accident was explicitly put forward by trial counsel for the appellant (albeit disagreed by PW1).  The question of indecency was not explored in any detail, whether by the Magistrate or counsel for the prosecution.  According to the submission, the Magistrate seemingly assumed that any contract with PW1’s buttocks was indecent in nature.  This is apparent from para 23 of his Statement of Findings in which the Magistrate stated that:

“I believe beyond all reasonable doubts, that means I am sure that the Defendant had used his hand to touch PW1’s buttocks, an act which constitutes an assault, and the only reasonable and irresistible inference that can be drawn is that such an assault was indecent.”

The appellant complained that the Magistrate made no reference to any other primary facts – aside from the touching itself – which was supportive of the inference of indecency.

79.The respondent prefaced its submission by referring to the well-known case of R v Court[1989] AC 28 and submitted that indecent assault comprised the following elements:

(a)  the accused intentionally assaulted the complainant;

(b)  the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and

(c)  the accused intended to commit such an assault.

80.The respondent also referred me to another magistracy appeal case HKSAR v Wan Yat Man [2015] 1 HKLRD 586, where Deputy Judge Albert Wong (as he then was) succinctly summarised the relevant law as follows:

“51. The first issue of the appeal is whether the relevant act was indecent. This is a finding of fact. What the magistrate had to decide was whether a right-minded person would consider the act so offensive to contemporary standards of modesty and privacy as to be indecent.

52.  Some acts are incapable of being considered as indecent, an example of which is the removal of a shoe from a girl’s foot by the appellant in R v George [1956] Crim LR 52. Even though such acts are done by the defendant with sexual desire or obscene motive in his mind, which he keeps it to himself, there is no indecent assault.

53.  On the other hand, some acts are obscene and overtly sexual, for example, fondling the private parts of the victim. If the defendant did any of such acts, it is not necessary to consider his motive or intent. This principle was confirmed by the Court of Final Appeal in HKSAR v Fok Ka Shing (2013) 16 HKCFAR 413. In R v Court, Lord Ackner remarked that although intention was an important element of the offence, if the act in question was unambiguously indecent, then unless the defendant could come up with an explanation, such act would necessarily cause a right-minded person to draw an irresistible inference that the defendant intended to assault the victim in a manner which was indecent.

54.  Some acts, of which an example was what happened in R v Court, ie spanking a young girl’s buttocks outside her shorts with the hand, are not unambiguously indecent, but can be regarded as capable of being an indecent assault. If the defendant did such an act, it is necessary to determine whether the defendant intended to commit an assault which was indecent. Lord Ackner said that in considering this issue, factors which could be taken in account included the following:

(1)  the relationship of the defendant to the victim;

(2)  how the defendant had come to embark on this conduct;

(3)  why he was so behaving;

(4)   the defendant’s explanation, if any, which can be used todetermine the nature of the conduct in question, and ultimately to determine whether the defendant intended to make an assault which was indecent on the victim.  Where the overall circumstances show that though the conduct can be interpreted as an indecent assault, it also admit a different interpretation, then the defendant should not be convicted.”

THE 19 MAY 2014 INCIDENT

81.PW1’s evidence was that the LRT train was crowded but not packed and the degree of the crowdedness would not have caused the appellant’s belly to touch her buttocks.  On crowdedness, PW1 denied under cross-examination that she did not walk away from the appellant after the indecent assault because the train was so crowded.  According to PW1, the appellant was the only person behind her at the time.

82.PW1 described that the appellant used his belly to “rub” her buttocks (both left and right sides) as opposed to simply “touch” or “brush against” her buttocks suggesting that (a) force was used by the appellant to press his belly against PW1’s buttocks with pressure; (b) the appellant’s belly rubbed over PW1’s left and right buttocks back and forth or with a rotary motion; and (c) the act had been repeated.

83.There was no suggestion that the appellant rubbed his belly against PW1s buttocks because the wobbling motion of the train.  It was the defence case that PW1 had misidentified the appellant to be the assailant but not that PW1 had not been indecently assaulted or that the assault was accidental.  The appellant elected not to give evidence and there is therefore only the evidence of PW1 to consider.

84.Ladies travelling on trains in Hong Kong are most vulnerable to indecent assaults for the trains are often crowded and assailants are more than ready to take advantage of the condition.  PW1 was a total stranger to the appellant and PW1’s back was in full view of the appellant.  There was no reason for the appellant to stand as close to PW1’s back as he did.  The appellant must know that it was PW1’s buttocks that his belly was rubbing against because they were right in front of him.  It is submitted that the Magistrate was correct in finding that the rubbing was deliberate and not accidental.

85.As opposed to simply “touching” or “brush against” PW1’s buttocks, by rubbing his belly against PW1’s buttocks with pressure, it is submitted that with no innocent explanation to the contrary, a right-minded persons would consider the assault as indecent because the act had seriously infringed upon PW1’s dignity and privacy.  The appellant was obviously taking advantage of the circumstances at the time to rub his belly against PW1’s buttocks for an indecent purpose.  It is submitted that the Magistrate had not erred in concluding that the rubbing was not accidental and that the only irresistible inference that can be drawn was that it was an indecent assault.  (See also  HKSAR v Cheung Cheuk Fai[2004-2005] HKCLRT 267)

THE 5 AUGUST 2014 INCIDENT

86.It was PW1’s evidence that the Tuen Mun MTR concourse and the escalator in question were not particularly crowded on the day of the incident which suggests that the touching of her left buttock could not be accidental and that she had seen the appellant retrieve his hand after the assault.  PW1 clearly remembered that the appellant had his rucksack on his back instead of his frontwhich suggests that it was not the rucksack that had accidentally touched her left buttock when the appellant approached her from behind.  The appellant elected not to give evidence and there is therefore only the evidence of PW1 to consider.

87.The respondent pointed out that PW1 was wearing a skirt on the day of the incident.  She was a total stranger to the appellant and PW1’s back was in full view of the appellant.  There was no reason for the appellant to stand as close to her back as he did given that the station concourse was not particularly crowded on the day in question.

88.In both HKSAR v Li Ka Man, HCMA 824/2010 and HKSAR v Wong Sai Shing, HCMA 463/2013, it was held that a right-minded person would consider an unexplained intentional touching of a female stranger’s buttock by a male person to be indecent.

89.The respondent submitted that with no innocent explanation to the contrary, a right-minded person would consider the assault as indecent because the act had seriously infringed upon PW1’s dignity and privacy.  They also submitted that the Magistrate had not erred in concluding that the touching of PW1’s left buttock was not accidental and that the only irresistible inference that can be drawn is that it was an indecent assault.

DISCUSSION ON GROUND (4)

90.The major complaint by the appellant in this ground was the Magistrate erred in drawing the inference of indecency in both occasions which formed the basis of the two charges.  The singularly important feature in this trial is the appellant had elected not to give evidence. I have already in para 45 of the Judgment highlighted the legal effects of this decision by the appellant. The respondent similarly submitted that under the circumstances, the Magistrate was entitled to draw the necessary inference in the circumstances.

91.To answer to the criticisms of the appellant on this ground, I would further refer to the Chinese judgment of香港特別行政區 訴 蔡穗玲，HCMA614/2006. In that judgment Nguyen J quoted the following extracts and cases :

(1)   Bruce and McCoy on Criminal Evidence in Hong Kong:

“There are circumstances in which a court may more readily draw an inference adverse to the accused from evidence in the absence of testimony from the accused.”

(2)   According to R v Lo Sui Wing & Another, CACC 509/1989，Macdougall JA said :

“Where an inference of guilt may properly be drawn from a set of facts, a jury or a judge sitting without a jury, is entitled in the absence of a credible explanation leading to a different conclusion, to convict the accused on the basis of that inference.”

(3)   Fuad VP in R v Cunningham, HCMA 941/1992, remarked that an accused person should not be surprised if an inference which can legitimately be drawn is more readily drawn when the accused elects not to give evidence.

(4)   The Court of appeal, in R v Chong Kin Cheong, CACC 196/1995, said:

“A judge or jury faced with evidence from the prosecution which is unanswered by testimony from the accused is not required to imagine possible defences of which there is no evidence, but, rather, is required to act upon the evidence available.”

(5)   In R v Tan Siew Gim [1995] 1 HKLR 299, it was held that :

“Where the inference of guilt is available to the tribunal of facts and no explanation is given, it is not open to complain on appeal that another inference was available to be drawn, particularly when the facts cry out for an explanation.”

92.I believe the above authorities had succinctly summarized the legal principles in relation to drawing an adverse inference when an accused person elected not to give evidence.  What the appellant had said in his cautioned statement is only exculpatory statement which has not been repeated on oath and had not been tested under cross-examination.  The Magistrate was also entitled to decline to attach any weight to the suggestion or explanation that there was no touching in the 1^st Charge or that the touching was by accident in the 2^nd Charge.  After a careful consideration of the submissions, I judge that in both charges, there is no good reason for the appellant to touch the buttocks of PW1 by using his belly or his hand.  The Magistrate was thus perfectly entitled to come to the conclusion that the rubbing or touching was deliberate and not accidental.  In the circumstances, any right-minded person would consider such an unexplained and intentional touching of PW1’s buttock by the appellant to be indecent and his finding that such an assault was indecent could not be faulted.

93.In conclusion, a Magistracy appeal is in the nature of re‑hearing and the appellate court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong” (see HKSAR v FOK, James Alistair [2015] 4 HKC 247).  At para 10 the test of plainly wrong is said to be as follows:- 

“10.  In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, the finding was one that no reasonable magistrate could have reached.”

94.The Magistrate has had the advantage of seeing and hearing the witness PW1 and is in a better position to assess her credibility.  It is for that reason that an appellate court will only depart from a magistrate’s determination of the credibility of a witness if it is “plainly wrong”.  In my analysis, the Magistrate did not commit any error in his assessment of the credibility of the witness and had committed no fault in the course of analyzing and evaluating the evidence.  His finding of fact and therefore the guilty verdicts reached on both charges should not be interfered with.

ORDER

95.The appeal against convictions on both charges is dismissed accordingly.

Mr Raymond Cheng, Senior Public Prosecutor of the Department of Justice, for the respondent

Mr Cheng Huan SC and Mr Edward Tang Ho Ming, instructed by SSW & Associates, for the appellant