The Queen v. Fong Chi Wai

HCMA001096/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1096 OF 1995

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Coram : Hon Gall, J. in Court

Date of hearing : 29 March 1996

Date of judgment : 29 March 1996

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J U D G M E N T

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1. The Appellant was convicted of one charge of indecent assault on 19th October 1995 and was fined the sum of $2,500. The facts were that at about 30 minutes past midnight on 4th October 1995, a young lady of 23 years was on her way home and walked pass the ground floor of Azalea House at So Uk Estate, Cheung Sha Wan. The Appellant approached in front of her and suddenly gripped her on her shoulders, he then kissed her on her left face. The young lady immediately resisted and shouted for help and the Appellant fled.

2. Police who were on patrol in the vicinity chased the Appellant and stopped him. He admitted the facts. At the first instance, he pleaded guilty before the Magistrate and was remanded for sentence. On the return for sentence, further legal advice clearly having been taken, and the case of R. v. Lam Chi Chee, MA No. 783 of 1992 having been considered, the Appellant sought to change his plea and the learned Magistrate came to the conclusion that as a matter of law the facts amounted to an indecent assault, and declined to permit the Appellant to reverse his plea.

3. I have considered the matter and have heard counsel on it. I have considered fully the words of Ryan J. in Lam Chi Chee where he said:

"In my view, the act of a man kissing a woman is not inherently indecent. If right-minded persons saw this occur, they would not consider anything indecent to have happened. However, if those same persons saw a man fondling the intimate parts of a woman's body, they would consider such an act indecent."

4. In the case before me, there is no suggestion in the facts nor any inference to be drawn that the Appellant intended any other act than the touching of the top of the shoulders and the kiss to the left side of the face of the young lady. I cannot infer that a right-minded person would consider that his actions took what was clearly an assault into the rim of indecent assault. The conviction for indecent assault is set aside and a conviction of common assault is imposed in lieu thereof. The sentence on the indecent assault charge is set aside and a sentence of $1,000 fine imposed in lieu thereof in respect of the conviction of common assault.

Representation:

Mr Y. Mahomed, S.C.C., for Crown

Mr Hanif M. Mughal (D.L.A.), for Appellant

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