HKSAR v. Hui Yip Wah

HCMA001046/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY CRIMINAL APPEAL NO. 1046 OF 1997

____________

____________

Coram: The Honourable Madam Justice Beeson in Court

Date of Hearing: 13 February 1998

Date of Judgment: 13 February 1998

_______________

J U D G M E N T

_______________

1. In this case, the Defendant appeals against conviction on a charge of indecent assault, the conviction being imposed in the magistracy.

2. The brief facts of the actual assault indicated that the victim was standing waiting for an MTR train when she felt herself being indecently touched. She felt herself being touched several more times from that period until she boarded the train. The touch as she described it was feeling a hand on her buttock, in the area of the anus, the hand rotating. She told the court that she considered the first touching might have been accidental and therefore did not do anything about it. But at the time of fourth touching by which time she was on the train she grabbed the Appellant and called for assistance, accusing him of indecently assaulting her.

3. The grounds of appeal were that the magistrate failed to properly assess the credibility and demeanour of PW1; that she was evasive, argumentative and contradictory and therefore, an unreliable witness; that the learned magistrate wrongly accepted an explanation that the victim had given about the intentional nature of the assaults; that the magistrate failed to consider at all the evidence of the police officer, the second of the prosecution witnesses, about appellant's denial when accused of the offence and corroboration that the appellant carried a handbag at the material time. The fourth ground was that the magistrate failed to properly consider the appellant's evidence and evidence supporting the fact that the contacts, if any, were accidental. The last ground was that the magistrate failed to give due and sufficient regard to the improbability of the indecent assault occurring in the circumstances as alleged by the victim.

4. I have been through this transcript extremely carefully. I also took account of the magistrate's reasons given immediately when he pronounced his decision and his reasons for verdict that were faired at a later stage. I am satisfied that the magistrate took a careful view of the evidence and in particular was very aware of the fact that this was uncorroborated evidence presented by the complainant. Having considered the elements of the charge and the appropriate need for care in assessing the victims evidence he decided, as he could do, on ample evidence, that Appellant was guilty of the offence.

5. I do not consider that any of the grounds that have been put forward on Appellant's behalf have been substantiated and I am satisfied that this is a safe and satisfactory conviction. This appeal against conviction is dismissed.

Representation:

Mr. Simon Tam, S.G.C., for DPP.

Armand Souyave, instructed by Messrs. Wat & Co., for Appellant.