HKSAR v. Chang Wai Man

HCMA000035/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

1998, MA NO.35

----------------------

-----------------------

Coram : Hon Gall J. in Court

Date of hearing : 13 March 1998

Date of judgment : 27 March 1998

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted on 19th December 1997 of one charge of Indecent Assault and was sentenced to 14 days' imprisonment. He now appeals the conviction.

2. The evidence led by the prosecution was that a Chinese woman boarded a bus at Yuen Long, travelling towards Mongkok, and sat alongside the appellant who was already on the bus. Her evidence was this:

"I felt very tired and closed my eyes. I'd closed my eyes in Yuen Long when we'd reached Tsuen Wan I felt my right brest being touched (squeezed demonstrated) I opened my eyes and saw him withdrawing his right hand. He still had his arms folded (demonstrates right hand under his left arm) I looked at defendant. We looked at each other and he then closed his eyes."

A little later she said:

"I had felt one squeeze then having felt it I felt a second."

The young woman complained to her boyfriend who was sitting elsewhere on the bus and when the bus arrived at Mei Foo, they confronted the appellant. On the evidence of the prosecution at this point, the boyfriend of the young woman pushed the appellant in the chest when he tried to stand. On the evidence of the appellant, who denied the offence, the boyfriend punched the appellant on the left side of the head, slapped him across the cheek and kicked him twice on the chest.

3. The police officer who attended the scene examined the appellant and saw red marks near his throat on the right side or red marks on the upper right quadrant of the chest and on his left forearm. A medical report of an examination which took place very soon afterwards at Caritas Medical Centre found the appellant to have an abrasion on the right chest and left forearm.

4. The appellant also produced a shirt which he testified that he was wearing at the time of the incident which showed on the right side of the chest a mark which he said was left by the kick from the boyfriend of the young woman.

5. His grounds of appeal substantially are that the learned Magistrate in evaluating the evidence of the prosecution misconceived part of that evidence and in doing so must have placed greater credit upon the young woman's evidence and that of her boyfriend than was warranted. Further, that the Magistrate did not properly assess the appellant's evidence and as a result his credit suffered to a point where otherwise reasonable doubt would have been raised in respect of the evidence for the prosecution.

6. The first matter to which Mr Macrae points is that the learned Magistrate in his findings sets out as a fact -

"The woman awoke when she felt her breast being fondled and upon opening her eyes saw the appellant's fingers still squeezing her breast. He withdrew his hand upon the woman reacting."

The actual evidence by the young woman was, as I have quoted above, that he was seen withdrawing his hand which unclearly means that she did not see his hand upon her body. Later in his Statement of Findings, however, the learned Magistrate correctly states the evidence and in all the circumstances, I do not think the initial error is sufficient to warrant complaint.

7. There were in this first ground of appeal other complaints concerning the recitation of facts by the Magistrate in his findings and the evidence. None of these were such as to cause me concern that the Magistrate may have in any way approached this matter incorrectly.

8. The Magistrate set out the evidence of the young woman and her boyfriend when they confronted the appellant and also the evidence of the appellant concerning that incident. In considering that, he said this:

"In considering the evidence, including the testimony of the appellant I reminded myself of the danger of convicting the appellant on the uncorroborated testimony of a woman. There was no corroboration of her testimony. I was also mindful of the appellant's good character; that he had shown no propensity to commit a criminal offence, let alone one of indecent assault and that his credibility was therefore enhanced.

Notwithstanding this I had no doubt that his allegation of assault by PW2,save for the push to the chest which PW2 mentioned and to which the appellant made no mention was a total fabrication. I did not believe the appellant. His evidence cast no doubt on the testimony of PW1 who I found to be a wholly reliable and truthful witness."

9. The learned Magistrate considered the evidence of the police officer who attended the scene in the light of the claim to the assault by the appellant, and the marks upon him. He accepted the evidence of the police officer that the appellant told him that he had been injured during a struggle, but testified the appellant had not mentioned an assault upon him with punches, kicks or a slap. At the time the appellant had complained in the police station, the officer testified the appellant had only mentioned that he was not feeling well having, perhaps, being careless when trying to avoid the boyfriend of the young woman. There was also no suggestion that the appellant had indicated any marks on his shirt at that time and they only came to light when the shirt was produced later in court.

10. The issue was one of fact. The Magistrate has, in some minor detail, misrepresented the evidence and made no specific finding in respect of the injury to the arm of the appellant nor to the marks on his throat and his right chest. Mr Macrae argues that he has dismissed these matters and has thereby not given the appellant the credit which he deserves and that had he done so, these matters would have cast doubts upon the case for the prosecution and the credit of the witnesses of the prosecution and that an acquittal would have been merited.

11. I do not agree. Clearly all these matters were in the forefront of the mind of the Magistrate. He has set them out and I am satisfied that he approached this matter as he ought. The appeal against conviction is dismissed.

Representation:

Miss Lily Wong, G.C., for Respondent

Mr Andrew Macrae, inst'd by M/s Haldanes, for Appellant