HKSAR v. Rehan Muhammad

HCMA 490/2019

[2020] HKCFI 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 490 OF 2019

(ON APPEAL FROM KOWLOON CITY MAGISTRACY

CASE NO KCCC 1265 OF 2019)

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BETWEEN

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J U D G M E N T

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1.The Appellant was convicted after trial of the charge of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. The Magistrate sentenced him to 12 days’ imprisonment. The Appellant now appeals against his conviction.

2.The particulars were that the Appellant, on 9 January 2019, at Man Ming Lane, at the junction of Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, indecently assaulted another person, namely, Female X. 

3.As summarized by the Magistrate, the prosecution alleged that while Female X was walking at the street with her friend at the material time, she felt her left buttock was touched for about two seconds.  When she turned around, the Appellant was right behind her.  She stopped the Appellant and reported the case to the police.  The defence was a case of accidental touch by the Appellant under drunkenness. 

Prosecution case

4.As the Respondent stated briefly, at around 10.15 pm on 9 January 2019, the complainant, X (“PW1”), was walking with her friend, along the pavement of Man Ming Lane, at the junction of Nathan Road, Yau Ma Tei.  The surrounding area was not crowded at the time.  X was wearing a vest and a pair of shorts.  She suddenly felt someone touch her left buttock for about two seconds.  X felt someone using four fingers (the inside of the Index to last fingers) to touch her from the bottom of her buttock in an upward motion to the back of her waist with medium force.  X then turned around and saw the Appellant standing at a distance of about 25 centimetres from her.  Nobody else was around.  X then asked him in Cantonese, “Why were you touching me?”  The Appellant then walked in an unsteady manner to X’s right.  X then grabbed the Appellant’s left hand, at which point the Appellant said something in a language X did not understand.  The Appellant then said “Sorry” to X in English.  Later, a man (PW2) came over to assist in retraining the Appellant until police arrived.

5.PW2 was an off-duty police officer.  At the material time, he heard a female voice shouting “indecent assault”.  He turned around and saw a female grab the forearm of the Appellant.  PW2 then went up to reveal his police identity to the Appellant and stopped him from leaving.  According to PW2, the Appellant’s behaviour was normal.  He walked steadily and did not smell of alcohol.

6.PW3, the arresting officer, arrived at the scene at about 10.22 pm.  He described having smelt a “medium” extent of alcohol smell on the Appellant.  He had been a police officer for 8 months at the time of the incident.

7.In a Record of Interview taken from the Appellant the next morning with the assistant of an interpreter, the Appellant said under caution, “Yesterday night I was drunk.  I don’t know what happened.”  It was also admitted that the Appellant had vomited during and after the interview, and when his photograph and fingerprints were being taken.

Defence case

8.The Appellant did not give evidence nor call upon any witness.  The Defence case was one of accidental touching and that the Appellant was drunk at the time.

Magistrate’s findings

9.The Magistrate had stated that for sexual offences it is easy for one to make allegation but is difficult for the other party to rebut and so he needed to consider and deal with X’s evidence with caution.  The defence did not dispute the touch but challenged the accuracy of X’s feeling about the details of the touch.  The defence further relied on the issue of drunkenness by the Appellant.

Issue of Drunkenness

10.The Magistrate noted that according to the arresting officer, the Appellant had smell of alcohol, and for the admitted facts, the Appellant vomited after some 12 hours of the incident. Therefore, the defence submitted that it was likely that the Appellant was drunk at the material time.

11.However, the Magistrate stated that there was no medical evidence or report to show the Appellant’s medical situation after his arrest. 

12.As to the vomiting, the Magistrate said there could be many reasons for one to vomit.  In particular, it occurred some 12 hours after the incident.  Due to the long lapse of time and in the absence of medical evidence, it could not be sure that it was directly related to drunkenness. 

13.Secondly, according to the arresting officer, he felt some smell of alcohol from the Appellant but he was an officer of only having eight months’ police experience.  He described the extent of smell being “medium”.  However, it was only his personal feeling of smell of alcohol.  He could not tell whether the Appellant was drunk at the material time.  The Magistrate opined that anyone having drinks would to different extent have smell of alcohol and different people would have various extents of feeling the smell of alcohol from others.

14.As to what the defence submitted that PW1 and PW2 did not feel any smell of alcohol and that contradicted with PW3’s evidence, the Magistrate was of the view that the contact between PW3 and the Appellant was much more than that of PW1 and PW2.  Though PW1 and PW2 stood close with the Appellant, they did not talk much with him. However, PW3’s situation was entirely different.  PW3 investigated the case with the Appellant face-to-face, escorted him to the police car and stayed together in the car on the way to the police station.

15.PW3 thus had much more contacts with the Appellant when compared with PW1 and PW2.  Having considered that, the Magistrate did not find it affecting PW1’s credibility at all. 

16.The Magistrate also closely examined the descriptions of touch made by X, the circumstances of the case and the condition of the Appellant and found that the Appellant was not drunk at the material time though he might be under the influence of drinks to certain extent but the Magistrate further found that the Appellant knew well what he was doing at the material time.

Accuracy of X’s Feeling

17.The Magistrate noted that X was wearing a pair of track shorts.  It was made of thin and soft fabric with a bit smooth surface.  By such material, anyone could feel what touched her on top of such garment. 

18.Further, according to X, the touching area was from bottom upwards of her left buttock, covering about 15 centimetres in terms of distance.  The touch lasted for about two seconds with medium force.  Having considered the description given by X, the Magistrate found that she accurately felt what she described. 

19.The Magistrate said he had carefully considered X’s evidence and found her evidence being clear and straightforward.  She gave a very detailed description of the touch.  She did not know the Appellant.  There was no dealing, encounter or dispute between them at all.  The Magistrate did not see any reason why she fabricated the case against the Appellant. 

20.The Magistrate found X being an honest and credible witness and accepted her evidence.

Issue of Accidental Touch

21.The Magistrate found that a forceful touch of two seconds from bottom upwards on the left buttock, covering a distance of about 15 centimetres and by four whole inner fingers, he totally ruled out the possibility of an accidental touch by ordinary walking of a person on the road and the possibility that the Appellant was drunk at the material time. 

22.However, the Magistrate accepted that the Appellant could have taken some drinks and was under the influence of drinks to certain extent, but he ruled that the Appellant was not drunk at the material time and he knew well what he was doing at the material time. 

23.The Magistrate also found that the Appellant had intentionally assaulted X and that the assault was capable of being considered by right-minded persons as indecent and he further found that the Appellant did intend to commit indecent assault on X. 

24.Therefore, the Magistrate found the prosecution had proved the case beyond all reasonable doubt and accordingly convicted the Appellant as charged. 

Grounds of Appeal

25.Mr Jeff Ho for the Appellant raised the following grounds of Appeal,

(1)  The learned Magistrate failed to cast doubt on the credibility of PW1 and PW2 who had testified that they did not smell alcohol from the Appellant from a short distance while PW3 testified that he had smelled alcohol from the Appellant from a longer distance. 

(2)  The learned Magistrate was biased against evidence favourable to the Appellant in that while PW3 was testifying on the issue of smelling alcohol from the Appellant, the learned Magistrate suddenly asked how long had PW3 been a police officer.

(3)  The learned Magistrate erred in ruling out that the Appellant was drunk at the material time in that:

(a)  he totally ignored PW1’s evidence that the Appellant was walking a bit unsteadily in his analysis of evidence, and

(b)  he failed to consider that the Appellant could be seriously drunk at the time of the incident and therefore he had vomited several times even after 12 hours of the incident.

(4)  PW1 testified that she felt she was touched by 4 fingers for 2 seconds and it was the inner (palm) side but not the outer side of the fingers that touched her, the learned Magistrate erred in accepting her evidence in that:

(a)  he failed to consider thoroughly whether it was reasonable for PW1 to state to such certainty in such detail about the touch given the short duration of time, and

(b)  PW1’s credibility was in doubt as in Ground 1.

(5)  The learned Magistrate failed to adequately or fairly consider whether the incident could be an accident, rendering the conviction unsafe and unsatisfactory.

Ground 1

26.Mr Ho submitted that PW1 and PW2 both had conversations with the Appellant.  PW1 was about 30 cm away and she did not smell alcohol from the Appellant.  PW2 was very close to the Appellant and he also said he did not smell alcohol.  Yet PW3 was 1 metre away from the Appellant and he did smell alcohol from the Appellant in medium strength.

27.Mr Ho thus criticized that the Magistrate had just explained it away lightly by saying that PW2 and PW3 had less contact with the Appellant than PW3.

Ground 2

28.When PW3 was testifying on the issue of smelling alcohol from the Appellant and was asked how strong the smell was and he said he could not describe it, the Magistrate intervened by asking how long has he been a police officer.  However, having smell of alcohol is a piece of evidence favourable to the Appellant, yet the Magistrate was trying to undermine the significance of the evidence by remarking that PW3 was only a relatively fresh police officer and it was only his personal feeling, the Magistrate should not have linked it up with PW3’s police experience.  A reasonable and informed bystander would feel that the Magistrate was biased against PW3.

29.Mr Ho submitted that the Magistrate treated PW1, PW2 and PW3 all as laymen, they should have detected alcohol from the Appellant to various extents but he simply accepted that PW1 and PW2 did not smell any alcohol from the Appellant.

Ground 3

30.PW1 had testified that the Appellant was walking a bit unsteadily but the Magistrate ignored this piece of evidence favourable to the Appellant.

31.Mr Ho further submitted that in the absence of other explanations, drunkenness was at the very least a reasonable possibility that it was the cause of vomiting.

Ground 4

32.PW1 testified that it was the inner (palm) side of all 4 fingers (not the whole palm) that had touched her buttock and the touch lasted for about 2 seconds, X could not see the touch and she could only speak from her feelings.  She was in shock because the touch came out of the blue.  Yet PW1 was able to state to certainty that it was 4 fingers that had touched her and it was “definitely” the palm side.  Mr Ho submitted that it would be unreasonable for PW1 to be able to state to such certainty.

33.As X was not an impartial witness, she was touched without her consent and the incident happened untoward.  It would be reasonable that PW1 would feel humiliated and would want whoever did that to be punished.  So it would not be impossible that she would exaggerate her evidence and to dismiss evidence favourable to the Appellant and thus her credibility was in doubt.  

Ground 5

34.While PW1 and her friend were walking side by side about 1/2 metre away from each other, the Appellant caught up from behind, passed through the gap between PW1 and her friend and walked ahead of PW1.  X noticed that the Appellant was walking a bit unsteadily.  PW3 came to investigate the case, he could also smell alcohol from the Appellant in medium strength from a distance of 1 metre.  After some 12 hours, the Appellant vomited several times in police station.

35.Under such circumstances, Mr Ho submitted that it was reasonable to infer that the Appellant was drunk at the material time, he walked unsteadily and had accidentally touched the buttock of PW1.

Discussion

36.A magistracy appeal is carried out by way of a ‘rehearing’ on the testimony and evidence before the magistrate (supplemented by any fresh evidence which the appellate court may admit); see the case CHOU Shih-bin v HKSAR FACC 11/2004.  In respect of the facts of a case, the appellate tribunal has to recognize that a trial magistrate does enjoy the advantage of observing and hearing the witness giving evidence, and the appellate court cannot rely on the written transcripts on paper to determine if a witness is trustworthy and reliable: see the case Raymond CHEN v HKSAR FACC 1/2010.  The credulity and reliability of any particular witness is solely within the assessment of the magistrate.  However, when the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or the magistrate has misquoted, or omitted or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

Ground 1

37.Mr Ho essentially criticized that the extent of smell of alcohol should not be so different by PW1 and PW2 and was particular contradictory to PW3.  However, clearly the Magistrate knew full well their evidence and also did explain that the level and extent of contact between different witnesses and the Appellant also varied significantly, it would hardly be said that the Magistrate only explained it away lightly. Further, obviously different people had different strengthen and sensitivity of smell, ground 1 has no merit.

Ground 2

38.It was submitted that the Magistrate had showed bias by asking how long the police had served in the force, again this was just the domain and area of further understanding the background of a witness giving evidence.  I also had the opportunity to read through the transcript and did not find the Magistrate had any bias at all.  This ground also fails.

Ground 3

39.It was said that the Magistrate ignored the evidence that the Appellant had been walking unsteadily and that he had vomited several times which showed the Appellant was in fact drunk at the material time.  However, on the issue of drunkenness, the Magistrate had well versed about all the circumstantial evidence, including the long lapse of time when the Appellant was vomiting and in the absence of medical evidence, the Magistrate, having closely examined all the background evidence, including but not limited to how X was touched, he was clearly entitled to reach the finding that the Appellant was not drunk at the material time, I do not see how the Magistrate had erred in his findings.

Ground 4

40.As to the accuracy of feedings, the Magistrate noted the wearing of X, particular the type of garment she wore, her detail description of touching and the fact that X did not know nor had any dealing with X beforehand, therefore went on to accept X’s evidence of her description, again, the Magistrate did not err in accepting her evidence, there is no merit in this ground.

Ground 5

41.On accidental touch, the Magistrate having considered how the Appellant approached and thereafter also how X was touched, particularly a forceful upward movement covering about 15 cm with all four inner finger and thus ruled out the possibility of accidental touch, the findings were clear and could not be said as unreasonable.  This ground also fails.

42.As shown above, the Magistrate had fairly and properly considered all the issues and it could not be shown that it was plainly wrong in his findings and all the appeal grounds fail.  Therefore this appeal is dismissed accordingly.

Ms Audrey Parwani, SPP, of the Department of Justice, for the respondent

Mr Jeff Ho, instructed by Johnnie Yam, Jacky Lee & Co, for the appellant