HKSAR v. Wong Po-ki

HCMA000355/1997

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 355 OF 1997

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Coram: The Hon. Wong, J. in Court

Dates of hearing: 5 August 1997

Date of delivery of judgment: 15 August 1997

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of indecent assault on another person contrary to s. 122(1) of the Crimes Ordinance, Cap. 200. He was sentenced to 3 months imprisonment and now appeals against conviction.

2. The prosecution case consists of the evidence of three witnesses. Au Man Yee, PW1 testified that she got on board a train at Mongkok Station at about 8:40 p.m. on 19 September 1996 to go to work in Tsim Sha Tsui. The compartment that she had entered had been crowded and she noticed that the appellant was standing directly behind her, he was the only person behind her when the doors closed. She described how the appellant used his right hand and put it underneath her skirt touching her on the right side of the bottom near her hip. He had also moved close to her and she felt his private part was a bit stiff on her bottom area and how later she felt that his private part was exposed. She felt very frightened and when the train had reached a station she moved one pace but he still used his right hand to touch her bottom and used his left hand to touch her left breast area. At that time PW2, a male passenger in front of her, asked if she was feeling unwell. She shook her head and when asked by PW2 what happened she turned her head back to look at the person behind her and that was the appellant. At Admiralty Station, PW1, PW2 and the appellant got out of the train and when PW2 suggested that they went to make a report to the police, the appellant apologised and asked for a chance. PW1 explained that the reason she did not cry out for help when the appellant touched her was because she was very frightened and felt embarrassing. She had not got off at her destination at Tsim Sha Tsui because at the time she was frightened and confused and she only realized that she should alight when the door was closed.

3. PW2 had not seen the indecent assault. He saw PW1 looking very frightened and asked her what happened but PW1 did not reply. He further asked her whether anybody had indecently assaulted her and she nodded her head. He then noticed that the appellant who was behind PW1 dodged aside. He caught the appellant at Admiralty Station and went with the appellant and PW1 to report to the police.

4. PW3 was a police constable who arrived at Admiralty Station in response to the report. PW1 had reported that the appellant's trousers were unzipped and upon checking he found the trousers were zipped. When he saw the appellant, he had a briefcase and umbrella with him. PW1 also said that after alighting from the train, she saw that the appellant was carrying a 7/11 umbrella.

5. The appellant elected to give evidence. He was an assistant manager of a trading company and a happily married man with three children. He boarded the MTR train at Mongkok on the day and time in question. He was carrying a 7/11 umbrella and a briefcase. Once inside the train, he closed his eyes to take a rest. When the train approached Admiralty Station he turned his body and walked out of the compartment only to find after walking 3-4 steps that PW2 tapped on his shoulder. PW2 accused that the appellant had done something to PW1 and grabbed hold of him and PW2 told PW1 to call the police. The appellant denied that he had done anything wrong and insisted that they were mistaken. He said that he was in a hurry to go to work and might have bumped PW1 when he got on the train. If he had he would apologise to her and he did not do it intentionally. The appellant also called a character witness.

6. This is the magistrate's summary of the evidence in his statement of findings.

7. Effectively, there is only one ground of appeal and that is the conviction is unsafe and unsatisfactory. Mr. Ching Y. Wong, SC, who appears for the appellant before this Court, complains that the magistrate had failed to analyse and evaluate the evidence properly and had he done so he must have entertained a doubt in his mind whether the appellant was the man who did the act. He takes a portion of the evidence here and a portion there and from those passages he invites me to say that it is impossible for the magistrate to come to the conclusion that he did.

8. All the matters raised by counsel in his submission were fully considered by the magistrate. The central issue throughout the trial was whether the appellant was the man who indecently assaulted Miss Au. Every attention was focused on this vital question. PW1's evidence could not have been more clear. She saw the appellant standing directly behind her from the time she boarded the train in Mongkok. By the time PW2 asked PW1 if she was feeling unwell, she turned back to look at the man behind her and it was still the appellant who was directly behind her. She was never in doubt or mistaken that the appellant was the man who indecently assaulted her. The magistrate heard the evidence of the witnesses and observed their demeanour and he accepted the evidence of PW1. The evidence is compelling. Once the magistrate accepted her evidence and the evidence of PW2, he is entitled to convict.

9. In my view, the conviction is neither unsafe nor unsatisfactory and the appeal is accordingly dismissed.

Representation:

Mr. Simon Tam for D. P. P./Respondent.

Mr. Ching Y. Wong, SC and Mr. James Cheng, instructed by Messrs Johnnie Yam, Jacky Lee & Co., for the Appellant.