HKSAR v. Z.S.B.

HCMA 254/2018

[2019] HKCFI 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 254 OF 2018

(ON APPEAL FROM WKCC NO 373 OF 2018)

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Before: Deputy High Court Judge Gary Lam in Court

Date of Hearing: 26 October 2018

Date of Judgment: 25 April 2019

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J U D G M E N T

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1.The appellant was charged with 5 offences of “Indecent assault”. He was convicted of Charges 1 to 3 by Magistrate Matthew Leung (“the magistrate”) after trial; and was sentenced to total term of 4 months’ imprisonment for all 3 charges.

2.He appeals against his convictions.  The appellant was represented by Ms AnnaHo in the court below.

THE PROSECUTION CASE

3.This case involves 2 alleged minor female victims, X and Y, who were the appellant’s students at the time of the offences.  Charges 1 to 3 are related to X; whereas Charge 4 to 5, Y.  The magistrate summarized the prosecution case as follows[1] :-

“ Agreed facts

3. It was agreed by the parties under section 65C of the Criminal Procedure Ordinance (“the Ordinance”) that the Defendant taught various classes for Chinese and P.E. including Primary 5 between 2015 and 2016. He also taught the two subjects to various classes including Primary 6 in 2017. His students included X and Y during 2015 to 2017.

4. X was born on 1 April 2004 while Y was born on 8 November 2005. A video recorded interview conducted with X on 2 March 2017 was produced as exhibit P2 and adopted as the evidence in chief of X. At the time of trial, X attained the age of 14 and she gave sworn evidence in a room outside the courtroom via a live television link pursuant to section 79B of the Ordinance.

5. Another video recorded interview conducted with Y on 9 March 2017 was produced as exhibit P3 and adopted as the evidence in chief of Y. Being a child under 14 years of age, Y gave unsworn evidence in a room outside the courtroom via a live television link pursuant to section 79B of the Ordinance.

…

Prosecution Case

The evidence of X

7. X said that the Defendant was her class teacher teaching Chinese and P.E. When X was in Primary 5, on a date in January or February 2016, when X was having a Chinese lesson, X and other classmates were lining up at the left side of the teacher’s table while the Defendant was sitting at his teacher’s table. They handed up their homework to the Defendant for checking one by one. The Defendant asked X to come closer to him and to write on the Defendant’s desk. The Defendant raised his left elbow which pressed against X’s right breast for 3-4 seconds (charge 1).

8. On 20 February 2017, X was in Primary 6. On that day, her class had a Chinese lesson in the computer room. When X was sitting in front of her own computer, the Defendant came to X, leaned forward to write some words to give X some hints on how to do her work. At the time, the Defendant was standing, and as he leaned forward to the table, his right elbow touched the left breast of X for 2-3 seconds (charge 2).

9. On 22 February 2017, when X was having a P.E. lesson, the Defendant had to measure the height and weight of each student and recorded the information in their respective handbook. When it comes to X, X passed her handbook to the Defendant and allowed the Defendant to measure her height and weight. At the time, both the Defendant and X were standing at a distance of half an arm away. The Defendant was holding the handbook with the four fingers of the left hand (except the thumb), and the outer part of the four fingers touched the right breast of X for 3-4 seconds (charge 3).

10. X also mentioned that when she was in Primary 5, the Defendant came to her, pulled up her scarf and checked her uniform. She was scared. However, on that occasion, the Defendant did not touch any part of her body. X confirmed that, as an Islamic student, she would wear a scarf at all times, even during P.E. lessons. The scarf would cover most of her upper part of the chest.

11. Eventually, on 22 February 2017, X related the incidents to the Principal of the School.

The evidence of Y

12. Y gave evidence that when she was in Primary 5, she and her classmates were required to line up at the teacher’s desk to allow the Defendant to check their homework in one Chinese lesson. When Y was standing by the teacher’s desk while the Defendant was sitting. The Defendant told Y how to write the Chinese words correctly. At that time, the Defendant and Y to come closer, and the Defendant used his left elbow to touch Y’s left breast (charge 4).

13. Further, on a date when Y was having a Chinese lesson in the computer room in Primary 6, the Defendant came to Y’s desk asking her what she was doing. At that time, Y was sitting while the Defendant was standing at the left side of Y. The Defendant used his 4 fingers of right hand to tap the left breast of Y 4-5 times quickly (charge 5).

14. Eventually, Y went together with X to the Principal to tell her about the touching incidents.

The evidence of the Principal

15. PW3 has been the Principal of the School since 2007. On 22 February 2017 (Wednesday), X and Y came to make a complaint to her that they were touched by the Defendant. Y said to the Principal that when they had a Chinese lesson in the Computer room, the Defendant pat her left chest. She did not mention how many times the Defendant pat her left chest. Y further said to her that in Primary 5, when she went out to submit homework to the Defendant, the Defendant’s elbow touched Y’s private part, i.e. the chest. The Principal said that X and Y were conservative persons and would not use the word “breast”.

16. The Principal then came to ask X. X said that on 20 February 2017 when she had a Chinese lesson, the Defendant came to her seat and wrote something. The Defendant’s elbow touched her private part. X further mentioned on one occasion in the year 2016 (she did not mention to the Principal whether it was in P5 or P6), when they were doing group project, the Defendant came to her group and wrote something. The Defendant’s hand touched X’s body. X did not mention which part of the Defendant’s hand touched her. Moreover, X mentioned that during a P.E. lesson when the Defendant had to measure the students’ height and weight, the Defendant held X’s handbook in his hand. The Defendant touched the private part of X. X did not clearly mention which part of her body was touched.

17. After hearing X and Y, the Principal carried out some investigations and took follow up actions, including talking to the Defendant and reported the matter to the Social Welfare Department.”

THE DEFENCE CASE

4.The appellant elected to give evidence and called 2 character witnesses.  The magistrate summarized the defence case as follows[2] :-

“ 20. The Defendant is now aged 41, married with two children. He started teaching at the School since 2005.

21. The Defendant taught X and Y Chinese and P.E. lessons during their Primary 5. For Chinese composition lesson, the Defendant would first teach them how to finish the worksheet and then allowed them time to do that. 10-15 minutes later, the Defendant would ask each row of students to come out and let him check their work. The Defendant would sit at the teacher’s desk and the students would line up at his left side and handed up the composition work to him for checking. Sometimes the Defendant would point out the wrongs words and asked them to correct themselves. On occasions the Defendant would make the correction there and then. He denied to have touched X and Y’s breast by using his elbow.

22. In year 2017, X and Y were in class 6A. On 20 February 2017, X and Y had a Chinese lesson in a computer room. They were doing group work while the Defendant would walk around the room to monitor the students. Having seen X and Y talking to each other relaxingly, the Defendant went to Y, pat on her shoulder once, and asked her to continue with the work. He then checked the work of X and gave her some hints to complete the work. At some stage, the Defendant picked up a pencil and wrote some words on the worksheet. He denied to have touched them with his elbow.

23. Class 6A had a P.E. lesson on 22 February 2017. On that day, each student had to have their weight and height measured. They had to line up behind the electronic scale, and each of them had to hand up their respective handbook to the Defendant for recording the weight and height measurements. The Defendant said that, as the class found that the measurement was so boring, he allowed them to play dodge ball after the measurement because the class had some improvement in their performance.

24. The Defendant also called Mr Edward Wong (DW2), a pastor of a church attended by the Defendant, as his character witness. DW2 came to know the Defendant since 2001. From 2003 to 2006, DW2 had the opportunity to observe the Defendant during short mission trip to Vietnam each year. He observed that the Defendant was serious in teaching young people in Vietnam wholeheartedly. The Defendant would be strict in his teaching. After 2006, DW2 would meet the Defendant a few times a year.

25. Another character witness called by the Defence was DW3, who knew the Defendant since 1995.  DW3 worked as a teacher in the School in question since 1998.  Later, it was DW3 who recommended the Defendant to work in the same School.  She described the Defendant as a responsible teacher and would spend his personal time to take care of the students.  The Defendant was strict in misbehavior of students, and would reprimand them in order to stop the misbehavior. Thereafter, he would spend time to explain to the students about their wrongdoing.”   

THE MAGISTRATE’S FINDINGS

5.The magistrate has properly reminded himself of the burden and standard of proof.  He has also directed himself on the appellant’s good character[3]. In his Statement of Findings, the magistrate gave his reasons as follows[4] :-

“ Evaluation of the evidence

30. I have carefully considered all the evidence given by the prosecution witnesses and observed their demeanour in the video recorded interviews and in court. I remind myself that indecent assault allegations are easy to make but difficult to refute. I have to exercise great care in analyzing the credibility of X and Y.

31. I first deal with the evidence of X.

32. The Defence argued that the evidence of X in the video interview and her eivdnece in court was inconsistent. The Defence first pointed out that for Charge 1, X said in the video interview that when X was standing by the teaching’s desk, the Defendant was writing something while the Defendant’s left elbow touched X’s breast. However, when X was cross examined, it was the first time X described that it was her who was writing Chinese characters. In cross examination, X confirmed that X was writing and the Defendant was doing correction. In my judgment, the failure of X’s mentioning in the video interview of her writing of Chinese characters would not affect her credibility when it comes to the indecent assault incident. I accept X’s evidence that at the time X was writing and the Defendant was doing correction of her writing. If there is inconsistency in X’s evidence in this regard, this is more apparent than real and not material.

33. The Defence further attacked the accuracy of X’s evidence by saying that when X complained the matters to the Principal, in respect of charge 2 incident, she did not tell which part of the body was touched. And in respect of charge 3 incident, X said that her hand was touched. At trial, X said that she could not remember what she told the Principal about the incidents. X met the Principal on 22 February 2017. The Defence argued that if X could not remember what she said on that day, how can she remember the details of all the incidents. In this regard, I have the following observations:

a. X was embarrassed when she was asked to point out which part of her body was touched during the video interview. It is understandable that X was too embarrassed to tell the Principal which part of her body was touched. Whether X could disclose all the details of the touching incidents depended very much on how the Principal asked her questions at that time. In my judgment, X’s credibility would not be affected in this regard; and

b. X could remember the details of the touching incidents because, as she described, it was her private part which was touched by the Defendant, and she was scared. It was apparent that X was rather troubled by the touching incidents and those incidents were paramount in her mind. It is understandable that she could remember the details of the touching incidents but not how she related the incidents to the Principal verbatim.

34. In respect of charge 2 incident, X said that she was sitting next to Y in the computer room. X mentioned in the video interview that the fact that the breast of X was touched by the Defendant was witnessed by Y [counter 380]. However, Y said that she did not see anything about the Defendant in relation to X. In my judgment, Charge 2 incident was happened to X and X may have thought that Y had witnessed to the incident. The touching was made to X and not Y and therefore their memory may differ. This does not mean they are not telling the truth. Rather, their evidence shows that X and Y did not collude or rehearse the evidence amongst themselves.

35. At some stage at trial, the Defence suggested to X that X did not like the Defendant because he had treated X strictly and would punish her by asking her to copy books. The Defendant was not satisfied when X spoke too softly. In my view, there is no evidence of any personal grudges against the Defendant. Rather, X was mature and intelligent for her tender age. In her evidence, she treated the Defendant fairly. For example, she admitted that the touching for charge 1 might be accidental, and therefore, she did not make any immediate complaint. In her video interview, she also mentioned an incident where the Defendant lifted up her scarf to check her uniform. X admitted that there was no touching on that occasion. Further, even the Defendant himself admitted that Class 6A was performing well comparing with Primary 5, and his relationship with the students were improving in Primary 6. Having considered all the circumstances, I am satisfied that X did not fabricate or invent her account against the Defendant. Had X been concocting the evidence, one would expect her to have done so by incorporating far more allegations of indecency towards her than she related in evidence.

36. It was clear to me that X knew the clear difference between lies and the truth. She showed a very obvious understanding of the importance of telling the truth. Despite her youth, she was able to understand meticulous questions posted by the Prosecutor and the Defence Counsel. She was expressive and positive in her answers. If she did not understand a question, she said so. She was swift to disagree with anything put to her that she did not agree with. I do not believe that she invented her story. I do not believe she would be conniving and spin a tale against the Defendant. I found her to be telling the truth. I am satisfied that X was an honest and reliable witness.

37. I now come to the credibility of Y.

38. The Defence argued that, for Charge 5, the touching as described by Y was different from the testimony of X. X testified at trial that she did observe the Defendant touching Y’s upper part of the breast by using his elbow, whereas Y said that the Defendant used his 4 fingers to touch her breast very quickly for 5 times. I have carefully considered the evidence of Y and her demeanor in giving evidence both in the video interview and in court. I am satisfied that Y did not fabricate or invent her account against the Defendant. As I said, their evidence shows that X and Y did not collude or rehearse the evidence amongst themselves. However, I remind myself that an honest witness may not be a reliable witness.

39. The Defence also complained that Y was not clear about the date of the charge 5 incident. At first she said that it was the same day that she voiced out to the Principal (i.e. on 22 February 2017). Later, Y said that the class in computer room was on Monday or Tuesday. I bear in mind that Y was aged 13 at the time of trial. It is not uncommon that even an adult can mix up the exact dates, not to mention young children. However, Y was mistaken to think that charge 5 incident happened on the same date when she lodged a complaint together with X to the Principal. It concerns me as to whether Y’s memory was accurate enough in recounting what had happened in respect of the two incidents relating to her.

40. Having considered all the evidence, I find that Y is an honest witness but not a reliable witness.

41. As regards the evidence of the Principal, having considered the Principal’s evidence and her demeanour in giving evidence in court, I am satisfied that she was an honest witness. However, as she did not witness the happening of each incident, I would give weight to the evidence of X as to the happening of each incident relating to X herself.

42. In respect of the Defendant’s evidence, I have the following observations:

a. The Defendant admitted that he was working in a school predominantly with Muslim students who were conservative girls in view of their culture and religion. As such, he has been very careful as to what sort of body contact he had with the students all along. However, the Defendant chose to lift up X’s scarf to check her uniform on the last class of the day. The Defendant said that he did not particularly pick X to check her uniform, and he did the same way on other students. That was inconsistent with the Defendant’s evidence that he had all along been careful with the body contact with the students. As a male teacher, it would not be appropriate to lift up scarfs of students of opposite sex in order to check the female’s uniform. If the Defendant really wished to check whether female students had properly put their ties on, he might simply ask the female students to lift up the scarfs themselves. The Defendant’s explanation that he would lift up the scarf at their shoulder region could not be a justification or a valid excuse. I remind myself not to pass any moral judgment. The point I am making is that the Defendant’s action was inconsistent with his allegation that he had been careful about the body contact with female students;

b. The Defendant said that he had tapped Y’s shoulder in the computer room in order to stop her talking since Y had lagged behind in completing the work. The Defendant considered that the tapping on the shoulder was just a friendly reminder. However, in view of Y’s cultural and religious background, which was well known to the Defendant, there was no useful purpose of tapping Y’s shoulder. The Defendant could simply talk to Y orally asking her to concentrate on her work. It is unnecessary for the Defendant to have any body contact with Y. Again, it shows that the Defendant was not serious about avoiding possible body contact with female students; and

c. During cross examination, the Defendant at first said that he was standing behind X and Y. Later, the Defendant admitted that he stood by the side of Y to check her worksheet, otherwise, he had to “embrace” her because her body blocked the view. In my view, it is ridiculous for the Defendant to say that he had to “embrace” Y to check the worksheet. If the Defendant really wished to check the paper, he could have picked up the papers from the desk or simply asked Y to hand up the work to him. The Defendant’s evidence is ridiculous and unbelievable.

43. I have carefully observed the demeanour of the Defendant in giving evidence. He answered questions in cross examination in an evasive and argumentative manner. He spent a lot of time to clarify a simple question of whether the students were required to correct words on the Defendant’s own desk. He was also evasive to the questions about whether he stood by the side of X and Y or behind them in the computer room during the Chinese lesson. He even asked the Prosecutor to give him a definition of ‘by the side’.

44. Having considered all the circumstances, I find that the Defendant is not an honest and credible witness. I reject the Defendant’s account of the incident. Having said that, I remind myself that the burden is on the prosecution to prove the charges beyond reasonable doubt.

45. The Defence relied on two character witnesses to show that the Defendant is of good character and he is less likely than otherwise might be the case to commit the crime he is being charged with. I am satisfied that the two character witnesses are honest and reliable. However, I note that DW2 said that he had the opportunity to observe the Defendant during short mission trip to Vietnam each year from 2003 – 2006 only. After 2006, DW2 would simply meet the Defendant a few times a year. DW2 did not have much opportunity to see how the Defendant dealt with students of opposite sex in Hong Kong. In my judgment, DW2’s limited encounter with the Defendant in recent 10 years could not help much in this case.

46. DW3 knew the Defendant since 1995 and it was DW3 who recommended the Defendant to work in the School. Whilst DW3 would have regular meetings with the Defendant and other teachers each week, DW3 did not have any chance of seeing the Defendant teaching in classes because, as they were teaching in the same School, and as admitted by DW3, they had to attend different classes at the same time. DW3 had little opportunity to observe how the Defendant dealt with students of opposite sex in class.

47. The Defence submitted that both DW2 and DW3 were surprised to learn that the Defendant was facing the present charges against him. As mentioned in the judgment of HKSAR v. YUEN Chiu Wing, HCMA 369/2008 (unreported, 9 September 2008), this kind of offence could be committed on impulse, even by someone who is usually honest, proper and righteous. As pointed out in the said judgment, I have to make a balance of all such character evidence against the evidence of those who actually were present at the scene.

The law on indecent assault

48. In R v Court [1989] 1 AC 28, Lord Ackner said that “on a charge of indecent assault the prosecution must prove (1) that the accused intentionally assaulted the victim;(2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3) that the accused intended to commit such an assault as is referred to in (2) above.

49. Touching is not by itself sufficient to constitute indecent assault. The prosecution must also prove the necessary intent and rule out the possibility of accident.

50. 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 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.

51. Some acts, of which an example was what happened in Court, i.e. 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:

a. the relationship of the defendant to the victim;

b. how the defendant had come to embark on this conduct;

c. why he was so behaving; and

d. the defendant’s explanation, if any, which can be used to determine 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 admits a different interpretation, then the defendant should not be convicted.

52. I now come to the element of each charge.

Charge 1

53. I am satisfied beyond reasonable doubt the following had taken place:

a. When X was in Primary 5, on a date in January or February 2016, when X was having a Chinese lesson, X handed up her work at the left side of the teacher’s table for the Defendant’s checking, the Defendant asked X to come near him;

b. The Defendant was doing some correction on X’s work and X was required to write on the work at the Defendant’s desk; and

c. At that time, the Defendant’s left elbow pressed against X’s right breast for 3-4 seconds.

54. X admitted that, at the time, she could not be sure whether the touching was accidental. That explained why she did not make any immediate complaint. It was after the Charge 2 and Charge 3 incidents that X knew that the touching was not accidental [counter 688]. In my judgment, whether the touching was accidental or intentional is a question of facts for the court to decide having considered all the circumstances of the case. On this occasion, the Defendant was doing some correction on X’s work and X was required to write on the work at the Defendant’s desk. What X said was that the Defendant used the left elbow to press on her right breast for 3-4 seconds. I fail to see if there is any possibility of an accidental touch of the breast of X. Moreover, it was the Defendant who asked X to come closer. I therefore find that there is sufficient evidence to exclude the possibility of accident.

55. The Defence further argued that it would not be possible for the Defendant to target the breast while one was not facing the other. I do not accept the Defence’s argument. In particular, it was not the Defendant’s hand, but the Defendant’s elbow that touched the breast of the student. The touching could be made when they were staying side by side, instead of standing face to face.

56. I’m satisfied that the touching of X’s right breast by using the Defendant’s left elbow was intentional, not accidental, and that constituted an assault. I further find that the assault in those circumstances would be considered by right minded persons as being indecent.

57. I find the prosecution has proved beyond reasonable doubt all the elements of Charge 1 and the Defendant is so convicted.

Charge 2

58. I am satisfied beyond reasonable doubt the following had taken place:

a. On 20 February 2017, X had a Chinese lesson in the computer room; and

b. When X was sitting in front of her own computer, the Defendant came to X, leaned forward to write some words to give X some hints on how to do her work. At the time, the Defendant’s right elbow touched the left breast of X for 2-3 seconds.

59. The Defence argued that the Defendant did not write any word on X’s paper but typed something on the computer to help X find an answer. I have already ruled that the Defendant is neither credible nor honest. Nevertheless, no matter whether the Defendant was writing or typing, I’m satisfied that X’s left breast could not have been accidentally touched for 2-3 seconds in the way as mentioned by X. I am satisfied that the touching of X’s left breast by using the Defendant’s right elbow was intentional, not accidental, and that constituted an assault. I further find that the assault in those circumstances would be considered by right minded persons as being indecent.

60. I find the prosecution has proved beyond reasonable doubt all the elements of Charge 2 and the Defendant is so convicted.

Charge 3

61. I am satisfied beyond reasonable doubt the following had taken place:

a. On 22 February 2017, when X was having a P.E. lesson, X passed her handbook to the Defendant and allowed the Defendant to measure her height and weight;

b. Both the Defendant and X were standing at a distance of half an arm away; and

c. The Defendant was holding the handbook with the four fingers of the left hand (except the thumb), and the outer part of the four fingers touched the right breast of X for 3-4 seconds.

62. I am of the view that if the touching was accidental, it would not have happened for 3-4 seconds. I’m satisfied that the touching of X’s right breast by using the Defendant’s fingers was intentional, not accidental, and that constituted an assault. I further find that the assault in those circumstances would be considered by right minded persons as being indecent.

63. I find the prosecution has proved beyond reasonable doubt all the elements of Charge 3 and the Defendant is so convicted.

Charges 4 and 5

64. Since I do not accept that Y is a reliable witness, the prosecution has failed to prove the charges beyond reasonable doubt. The Defendant is acquitted of the charges

Conclusion

65. The Defendant is convicted of Charges 1-3, and is acquitted of Charges 4-5.”

GROUNDS OF APPEAL

6.Ms Ho continues to represent the appellant in this appeal.  She raised the following grounds of appeal:

(1)   The magistrate failed to fully take into account and reconcile the significant discrepancies within the evidence of X; as well as the significant discrepancies between the evidence of X, her recent complaint to the school principal and the evidence of Y.

(2)   The magistrate failed to properly evaluate and give adequate reasons when determining the issue of “indecent intent”.

(3)   The magistrate failed to consider and give adequate weight to the credibility of the appellant.

(4)   The magistrate entered an inconsistent verdict while acquitted the appellant for Charges 4 and 5 and convicted on Charges 1 to 3.

MY CONSIDERATIONS

7.I will deal with Ground 4 first.

8.Ms Ho complained that on one hand, the magistrate found Y to be an honest but not a reliable witness because she had mistaken about the date of Charge 5, thinking that it happened on the same day when she complained to the Principal together with X.  Yet, despite X having told the Principal that in 2016 (ie the alleged date of Charge 1) she was touched by the appellant during a group project (when Charge 1 did not involve a group project), the magistrate still accepted her evidence.

9.I see some force in Ms Ho’s submission.

10.I accept the magistrate’s analysis of X’s evidence as to her inability to recall what she had told the Principal and her failure to mention in her video recorded interview that the “touching” happened when she was writing while standing next to the appellant at his desk.

11.However, if Y was found unreliable because she had mistaken about the date of Charge 5, the magistrate should have given adequate reasons as to why he accepted X’s evidence when she had mistaken about the date of Charge 1, even though the mistake took place out of court.  It seems that the magistrate did not deal with this particular aspect of X’s complaint to the Principal (ie mistaken about the date of Charge 1).

12.Ground 4 is established.

13.At paragraph 54 of his Statement of Findings, the magistrate wrote in relation to Charge 1 “…What X said was that the Defendant used the left elbow to press on her right breast for 3-4 seconds.  I fail to see if there is any possibility of an accidental touch of the breast of X.  Moreover, it was the Defendant who asked X to come closer.  I therefore find that there is sufficient evidence to exclude the possibility of accident.” (emphasis added)

14.There was no dispute at trial that the students were lining up by the teacher’s desk in the classroom to have their work checked/corrected by the appellant, who was sitting at his desk.

15.It therefore seems reasonable for the appellant to ask X to come closer to the teacher’s desk so that he could point out the wrong characters to her and allow her to do the corrections on the spot.  In my view, it was unfair to hold it against the appellant when he had a legitimate reason to ask the students to come closer to his desk.

16.I allow the appeal based on the reasons stated above.  I need not deal with the remaining grounds of appeal.

17.The conviction is quashed and sentence set aside.

Ms Noelle Chit, PP of the Department of Justice, for the respondent

Ms Anna Ho, instructed by Wat & Co, for the appellant