HKSAR v. Lam Kin

HCMA 438/2017

[2018] HKCFI 1389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 438 OF 2017

(ON APPEAL FROM ESCC 1692 OF 2017)

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JUDGMENT

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1.The Appellant was convicted after trial in the Magistrates’ Court on a charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance (Cap 200), and was fined $5,000. He has filed a notice of appeal against conviction in Form 101 and a notice of appeal against sentence in Form 102. On conviction, he is represented by counsel under the Bar Free Legal Advice Scheme. At the hearing of this appeal, the Appellant abandons his appeal against sentence.

2.There is no dispute that at the place named in the charge, Wanchai MTR station, and on the date named in the charge, 7 April 2017, there was bodily contact between the Appellant, a man in his sixties, and a woman in her thirties, who was referred to at the trial as “Alice” which is not her real name and was used to conceal her identity.

3.The bodily contact occurred in a short tunnel joining the trainplatform and the concourse area.  It occurred as Alice was walking towards the train which was at the platform and the Appellant came up behind her.

4.Alice said in evidence that she did not want to rush to catch that train as she had heard an announcement that the doors were about to close.  Her evidence as to what the bodily contact consisted of was this.  Suddenly the left side of the Appellant’s body bumped against the right side of her body at the back, and the left side of his body continued to come round her right side to her front and pressed against her right chest, the weight of his body on her chest making her lean back slightly.

5.The Appellant did not give or call evidence.  He relied on his counsel’s cross-examination of Alice challenging her evidence that the bodily contact included contact between the Appellant’s body and her chest.  He relied on his counsel’s submissions.  He relied on Alice having said in a statement to the police that he had said to her that he only “bumped [her] shoulder”.  And he relied on his having said under caution upon arrest for indecent assault that he “did not do it”.

6.Referring to the Appellant’s “clear criminal record”, the Magistrate said that the Appellant “should be regarded as a person of good character and of low propensity to crime”.

7.Referring to the Appellant as “D”, the Magistrate said that he was satisfied beyond reasonable doubt of the following:

“ (1) D did have bodily contact with Alice in the way as described by Alice.

(2) D deliberately forced the bodily contact on Alice. I reject any contention that it was an accident.

(3) The purpose of D’s bodily contact with Alice was to press on Alice’s right chest.

(4) It was an indecent act.

(5) D did so deliberately with indecent intention.”

8.In so finding, the Magistrate accepted Alice’s description of the contact between the Appellant and her.  The correct approach would then have been an objective consideration of whether the only reasonable inference to draw from that description was that all the elements of indecent assault were duly proved.  But the Magistrate did not confine himself to such an approach.  Complaint is made on the Appellant’s behalf against the passage in the Magistrate’s Statement of Findings in which he said as follows:

“ I find Alice a good and credible witness. She is a matured lady who could tell the difference between an intentional and an accidental bodily contact by stranger male. She could also tell the difference between what was a harmless and what was an indecent contact. In this incident, she felt offended by the indecency of the bodily contact. She made first complaint immediately to her then boyfriend. She decided to follow-up on this matter by making a report to the police. For this purpose, she followed D and, when opportunity arose, stopped him. I accept her evidence.”

9.Even an able and experienced Magistrate might occasionally fall into error.  It is submitted on the Appellant’s behalf that the Magistrate had relied on, and had erred in law in relying on, Alice’s subjective belief that the contact between the Appellant and her was intentional rather than accidental and was indecent rather than harmless.  From what the Magistrate said, the inescapable conclusion is that he did indeed, to at least a material extent even if not exclusively, rely on that subjective belief in finding that such contact was intentional rather accidental and was indecent rather than harmless. For that reason, and even without reference to the other grounds of appeal, I am of the view that the conviction should be quashed on the basis of an error of law made in arriving at it and also on the basis that it is neither safe nor satisfactory.

10.Accordingly, the appeal is allowed to quash the conviction.

Ms Claudia Ng, SPP of the Department of Justice, for the Respondent

Mr Giles Surman and Ms Ellen Pang, assigned by the Bar Free Legal Service Scheme, for the Appellant