HKSAR v. Chan Ka Ming

HCMA 228/2018

[2019] HKCFI 969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 228 OF 2018

(ON APPEAL FROM KCCC NO 294 OF 2018)

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Before: Deputy High Court Judge Gary Lam in Court

Date of Hearing: 21 September 2018

Date of Judgment: 8 May 2019

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J U D G M E N T

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1.The appellant was convicted of an offence of “Indecent assault” by Magistrate Lily Wong (“the magistrate”) after trial. He was sentenced to 14 days’ imprisonment.

2.He appeals against his conviction.  The appellant was represented by Mr John Reading, SC in the court below.

THE PROSECUTION CASE

3.The magistrate summarized the prosecution case as follows[1] :-

“ 6. PW1 testified that she, aged 30, is 165 cm tall. She is a nurse. On the offence day, she was wearing a white dress to knee length with a deep-V on her back [see: the photograph, exhibit P3].

7. At 0903 hours on 10 October 2017, she boarded a MTR train at Prince Edward Station. Upon reaching Yau Ma Tei station, she felt someone had swept her left buttock four to five times and lasted about five seconds in total. The feeling was like being swept by fist, hereinafter referred as a “fist-like motion”. As such, she became more aware of the surroundings and put her mobile phone, which she had previously held in her right hand, into her handbag.

8. When the train was about to reach Jordan station, PW1 felt there were five fingers touching her left buttock. The fingers moved four to five times in a way resembling the motion of pulling out a drawer and it lasted for about five seconds. In court, she demonstrated the action by using her right hand with the palm facing upward and a lifting of the fingers and her hand slightly. She also said it was a cubing gesture (hereinafter I call it “drawer-pulling motion”). She turned slightly to the left when the drawer-pulling motion was being done on her and saw there was a hand on her left buttock.

9. Next, she used her left hand to catch the hand which was touching her buttock. She turned 180 degrees to her left and saw that the hand belonged to a man standing on her right side. She supplemented that she caught hold of the back of the man’s hand with his palm facing her left buttock.

10. In respect of the standing positions of PW1 and the man, she described that before she turned, the man stood on her right hand side. They were standing adjacent to each other which she said “stood in line” or in cross examination, she agreed that they stood almost side by side, but they were facing opposite directions.

11. If she turned slightly to her right, she could see the man’s right side. At that time, she was carrying her handbag on her right shoulder, and the man carrying his backpack on his right shoulder. Their bags were stuck to each other. When exhibit D2 [see: photo] was shown to her, she said that it was not the one the defendant was using on that day. It was a black, long and thin bag.

12. She continued to testify that after she had turned to her left, she said to the man that he had committed indecent assault. The man replied that he was just “turning his own bag”. She identified the man as the defendant. She took him by holding his bag to alight at Jordan station and made a report to the police on the platform. From the moment she caught the defendant’s hand to the stage where the police arrived at the platform, PW1 did not lose sight of him.

13. In cross-examination, she disagreed, inter alia, that:

(i) When she felt her buttock was swept, it could be the defendant’s bag

(ii) The defendant’s hand was on his bag;

(iii) She came into contact with the defendant’s arm using her elbow;

(iv) She held the defendant’s arm or in the region of his elbow;

(v) She dialed 999 and said she was indecently assaulted inside the train compartment; and

(vi) The following conversations took place after she had caught hold of the defendant’s hand:

PW1: Why did you touch me?

D: Perhaps my bag has hit you.

PW1: Of course not, you insert your whole hand inwards to squeeze me, are you a man? It is not my first time to be indecently assaulted, report police.

14. She agreed that (i) she was emotional when she spoke to the defendant; and (ii) the defendant had asked her to release her hand and said he would not escape.

15. She testified that she did not consent to have body contact with the defendant, and denied that any contact between them was accidental.”

THE DEFENCE CASE

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

“ The evidence of the defendant

17. The defendant is 34 years old and 163 cm in height. He is a divorcee and has a daughter aged 13. He is a Bachelor of Arts with honor in accounting. He is an auditor in Talent Partners CPA Limited (“TP Ltd”) which is situated in Wan Chai.

18. On the material day, he was carrying a black backpack (sic) i.e. exhibit D2 on both shoulders on his way to Yau Ma Tei station. He used his mobile phone to chat with a friend via whatsapp [see: Exhibit D1, the screenshot photograph of the whatsapp conversation] on the platform. He boarded a MTR train around 0905 hours. He turned around and faced the compartment door.

19. Since the train compartment was very crowded, he took the backpack off and carried it on his right shoulder. The backpack rested on the right hand side of his torso. He placed his right hand on the right front pocket of exhibit D2 in which his wallet was placed. He demonstrated in court that the fingers of his right hand pointed towards himself in covering the pocket of exhibit D2, thereby reaching almost the bottom of the backpack.

20. He continued to use his mobile phone in his left hand to check his facebook. He extended his left forearm slightly and turned his head towards the left side while using the phone.

21. After standing on the train for five to ten seconds, a woman on his right side, i.e. PW1, suddenly turned to her right side around 45 degrees. Her elbow bumped into his right arm. The defendant immediately turned to his right. PW1 then used her left hand to grab his upper right arm and turned her whole body around. It was at that moment he first noticed PW1. He described that she was very emotional and the conversations in paragraph 13a, b and c took place. PW1 then used her mobile phone to call the police. PW1 continued to hold his arm until they alighted at Jordan station. He requested PW1 to let go of his arm which she did. Later, the police arrived and he was arrested.

22. The defendant further described that PW1 was standing to his right hand side facing opposite direction. His backpack was in contact with her handbag. He said he and PW1 might be slightly overlapped in an offset position rather than aligned on the same line. He neither had any conscious feelings of contacts with PW1 nor did he pay attention to his right side. Given that the train was very crowded, he was not aware if his right hand had come into contact with PW1.

23. As shown in the admitted facts, at about 0940 hours, PC 12301 arrested the defendant for the offence of indecent assault and cautioned him. Under caution, he replied that ‘Ah Sir, I didn’t do it. Since it was crowded with people and I was hugging a backpack, the backpack might have hit her, and maybe the back of my hand touched her.’

24. He also testified that he was worried of being pickpocketed as he had put his wallet into the front pocket of his backpack. As such, he placed his right hand on the front pocket to cover it.

The evidence of Defence Witness 2 (“DW2”)

25. Miss Li is one of the directors of TP Ltd.  She is the supervisor of the defendant who has been employed since July 2014.  She has never received any complaints in relation to the work of the defendant. She described that the defendant is helpful, responsible, punctual, nice, kind, gentle and has a good heart.  She knew from the defendant that he had volunteered to teach rural children in China.  She agreed that her dealings with the defendant were work-related.”   

THE MAGISTRATE’S FINDINGS

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

“ 30. Through no fault of his own, Mr Reading, having listened to the audio tape in court, accepted that PW1’s description of her being swept by fist took place when the train had already arrived at Yau Ma Tei Station but not during the journey from Mong Kok to Yau Ma Tei as he so stated in paragraphs 16, 18 and 43 of his closing submissions. I want to make it clear that I am aware of the prosecution case that the indecent assault refers only to the drawer-pulling motion but not the fist-like motion. The prosecution intended to show that PW1 became alert after being swept by fist.

31. Having considered the evidence of the defendant, I find him not an honest witness and I reject his evidence.

32. In the closing submissions, Mr Reading accepted that PW1 is an honest and truthful witness. Mr Reading submitted that he is not saying that PW1 was not inappropriately touched by someone. However, he said that PW1 could be mistaken as to who had touched her.

33. PW1 testified that she was touched at her left buttock and she saw a hand on her left buttock. This was not challenged by the defence. However, the defendant said that PW1 turned right and used her left hand to get hold of his upper right arm. I consider it very unreasonable for PW1 to turn right to find out who the offender was when, in fact, her left buttock was touched. Besides, PW1 had already seen a hand on her left buttock. One would expect her to turn left as it was the most direct and effective means to locate where and who the offender was. It will defy common sense to believe in the defendant’s version of the event and adopting his words ‘PW1 made a big move to turn right’.

34. Besides, if what the defendant had said about his posture was correct (i.e. his left hand was holding a mobile phone and his right hand was resting on the backpack, and his right palm was on the front pocket of the backpack with his fingers pointing to himself), it would even be more unreasonable for PW1 to have identified the defendant as the offender for his hand or palm was far from her left buttock.

35. Further, the defendant, having a posture as aforementioned, would not have thought that the back of his hand would have touched PW1. In fact, he testified that when PW1 accused him, he said ‘maybe my bag hit you’. From his reply, it shows that he did not consider that his hand had come into contact with PW1. However, he replied under caution that ‘…the backpack might have hit her, and maybe the back of my hand touched her.’ Such a reply was contrary to his description of his posture there and then.

36. On this, Mr Reading in his oral submissions agreed that it was inconsistent with the defendant’s version that his hand was on the front pocket.

37. On this undisputed inconsistency, I find that it was so claimed by the defendant at that time because he would like to exonerate himself so he gave a distorted version. The defendant’s explanation under caution was simply an excuse. In light of the circumstances, the possibility that his back of his hand touched PW1 did not exist. He is not credible. Of course, I bear in mind that he has no burden to prove his innocence.

38. Moreover, he said he had put his right hand on his backpack with a view to protecting his wallet from being pickpocketed by the surrounding public. In other words, he made a deliberate action to protect his wallet. He must have been on alert at that time. If so, any contact between his right hand and others around would have alerted him. That being so, if his hand had accidentally had contacts with PW1, he would have become aware of it. That he said he did not pay attention to his right side was contrary to his purpose of placing his right hand on the front pocket of his backpack.

39. Although I have rejected his evidence, I remind myself that the burden rests on the prosecution to prove the charge beyond reasonable doubt.

40. As previously said, the issue of this case is the credibility and reliability of the evidence of PW1. Given that there was no independent witness, I have to approach her evidence with caution.

Impossibility of the manner of touch

41. Mr Reading contended that it is difficult to conceive how the assault could have been carried out. With reference to what PW1 said in respect of their standing positions, the defendant would have had to stretch his arm across the width of PW1’s body and swivel his arm in an awkward manner in order to reach out to PW1’s left buttock. It would be more awkward if, on PW1’s evidence, they were aligned on the same line, because the defendant would have had to stretch out his arm even further. Also, it would be extremely difficult to perform the drawer-pulling motion when the defendant’s arm was extended and swivelled.

42. I do not agree with the contention of Mr Reading. Both PW1 and the defendant said that their bags were in contact with each other. It means they stood very close to each other. PW1 said that when she turned left, the defendant was at an arm’s length.

43. As I have seen in court, PW1’s figure is of small to medium size (see: exhibit P3). Hence, it was not difficult for the defendant, who is more or less of the same height of PW1, to stretch his arm across the width of PW1’s body and to reach PW1’s left buttock. In fact, the act of extending his right hand further to the right side is an easy motion, and it is also natural and easy for him to maneuver his palm facing the buttock of PW1 and to perform the drawer-pulling motion. This series of motion is not as “awkward” as what Mr Reading said given the proximity of their relative positions and their facing the opposite directions.

Accidental touch

44. Mr Reading further argued that if the court accepts that the defendant was standing in a slightly offset position, then it is not impossible that, in a moving and crowded train, the defendant’s backpack might have come into contact with PW1 or his hand had accidentally touched PW1. Besides, he supplemented that:

(i) The defendant turned his attention onto his mobile phone;

(ii) He was hugging his backpack;

(iii) His first reaction upon accusation reflected his state of mind that it was an accidental touch; and

(iv) Any physical contact within a moving train is unavoidable, any accidental contact should not be automatically equated to intentional physical contacts.

45. I rule out the possibility of an accidental touch. If there is any accidental touch/contact with PW1’s left buttock, be it the backpack and/or the back of his hand, it would be first, on PW1’s right buttock and second, it would only be a sweep or sweeps on PW1’s buttock. PW1, as any reasonable man, would not conceive such a sweep or sweeps as a motion of five fingers pulling out a drawer.

46. Bearing in mind that, on her evidence, PW1 gave detailed particulars as to how she was touched on two occasions. She was able to differentiate between a fist-like motion and a drawer-pulling motion. It shows that she could really feel how the touches took place, and she did not exaggerate her evidence. The drawer-pulling motion must be a deliberate act.

47. Mr Reading also submitted that PW1 must have called the police on the train, if not, the MTR staff would not have approached her on the platform of Jordan Station. So, PW1 said that the incident was reported to the police on the platform was not right.

48. This argument is without merit. It does not matter whether the incident was reported to the police while PW1 was travelling on the train or standing on the platform. It is not the issue of this case. Even if she was mistaken on it, it does not affect her overall credibility and reliability as a witness.

49. Having considered PW1’s evidence and the defence attacks on her credibility and reliability, I find that she was not shaken under cross-examination. She is a truthful and honest witness. I accept her evidence and give full weight to it. The incident happened in the manner as she described.

50. On a charge of indecent assault, the prosecution has to prove that:

(i) The defendant intentionally assaulted PW1;

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

(iii) The defendant intended to commit such an assault as is referred to in (ii) above.

51. As PW1 had reasonably pointed out, she looked at her left buttock when the drawer-pulling motion took place. She saw a hand on her left buttock and at that very moment she caught the hand and turned left. It turned out to be the right hand of the defendant.

52. Given the manner of how she was touched, i.e. the defendant stretched out his right hand to PW1’s left buttock, I am satisfied that the defendant has intentionally assaulted PW1. There was no accidental touch.

53. The two were strangers to each other. As such, the touch on a woman’s buttock by a stranger is definitely considered as indecent. Besides, I am sure that the defendant intended to commit such an assault on PW1. PW1 testified that she did not consent to it.

54. Under these circumstances, I find that the prosecution has proved the charge beyond reasonable doubt.  The defendant is convicted of the said offence.”

GROUNDS OF APPEAL

6.The appellant is represented by Mr Charles J Chan in this appeal.  He raised the following grounds of appeal:

(1)   The magistrate erred in convicting the appellant on the basis of the evidence of the victim Miss X (PW1) when it is inherently improbably that the appellant had assaulted her in the manner as described in her evidence.

(2)   The magistrate erred in wrongly rejecting the evidence of the appellant and the reasons she gave in so rejecting were either insufficient or unsatisfactory rendering the conviction unsafe and/or unsatisfactory.

(3)   The magistrate erred in mistaking important aspects of the evidence resulting in a failure to sufficiently consider that the true attacker could be another person who as on the train before the appellant boarded the train at Yaumatei Station.

(4)   The magistrate erred in failing to resolve the material factual disputes rendering the conviction unsafe and/or unsatisfactory.

MY CONSIDERATIONS

7.Defence counsel at trial has raised the issue of physical impossibility regarding the manner in which PW1 was touched by the appellant.  The magistrate has adequately considered this matter and rejected this proposition with sound reasons.  Most importantly, the magistrate had the advantage of observing the physical appearance of both PW1 and the appellant.  I see nothing wrong with her reasons and conclusion.  Mr Chan’s argument has no substance.

8.It serves no purpose to argue in a vacuum as to why the appellant would or would not stretch his right arm to reach PW1’s left buttock in a crowded or not so crowded train.  Awkward or not; and conspicuous or not do not assist the appellant.  People do different things for different reasons (and sometimes even for no apparent reason).  The court needs not speculate on the reasons behind when there is evidence that certain acts were carried out.

9.Ground 1 fails.

10.I agree with the magistrate that it is reasonable for PW1 to turn to her left when she felt her left buttock was being touched.  It makes perfect sense to me.  On the other hand, the appellant said PW1 turned to her right and used her left hand to get hold of his upper right arm.  The appellant’s version clearly defies common sense.

11.Regarding the other aspects based upon which the magistrate rejected the appellant’s evidence, I see no force in the complaints raised by Mr Chan.  The magistrate’s assessment of the appellant’s evidence was reasonable and logical.  Her reasons were adequate and sound.

12.Ground 2 fails.

13.It is immaterial who touched PW1’s left buttock with a fist‑like motion.  The crux of the case is when PW1 felt the drawer‑pulling motion on her left buttock, she looked to her left and caught the appellant’s right hand.  As correctly pointed out by the respondent, the purpose of adducing the evidence in relation to the fist‑like motion was merely to show that PW1 was alert to the surrounding environment since the first time she felt being touched[5].

14.It also matters not at which station the appellant claimed he boarded the train.

15.Ground 3 fails.

16.In his judgment in The Queen v Kwong Wing On & another HCMA 574/1996 (unreported), Stock J (as he then was) wrote “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.”

17.In my view, those “unresolved material factual disputes” put forward by Mr Chan either do not exist or have already been properly dealt with by the magistrate.  There is no substance in this ground.

18.Ground 4 fails.

19.I have reminded myself of the principles on “re‑hearing” in magistracy appeals stated in HKSAR v Chou Shih Bin [2005] 1 HKLRD 838 and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  I find no flaws in the magistrate’s reasoning or findings.  The magistrate has thoroughly evaluatedPW1’s evidence as well as the appellant’s.  Heranalysis is sound and with proper evidential basis.  She gave cogent reasons for the findings of fact she made.  I see no reason to disturb the magistrate’s findings.

20.Based on the reasons stated above, I dismiss the appeal.  Since the appellant was granted bail pending appeal, he needs to serve his sentence forthwith.

Mr Lenny Cheng, SPP of the Department of Justice, for the respondent

Mr Charles J Chan and Mr Ken Chan, instructed by Pansy Leung Tang & Chua, for the appellant