HKSAR v. Munoz Salazar, Jose Antonio
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HCMA 453/2024 [2026] HKCFI 5262 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 453 OF 2024 (ON APPEAL FROM ESCC 1729 OF 2024) ______________________ BETWEEN
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_______________ J U D G M E N T _______________ Background 1.The Appellant was charged with an offence of “indecent assault” committed against X (“PW1”) on 12 May 2023[1]. 2.The Appellant was legally represented at the trial, pleaded not guilty to the charge, and was convicted after trial and sentenced to 5 weeks’ imprisonment. 3.The Appellant now acts in person and appeals against his conviction. He had previously applied to appeal against sentence. At the appeal hearing, he informed the Court that he wished to abandon his appeal against sentence. Having confirmed this with the Appellant, I dismissed his appeal against sentence. 4.The case was first heard on 4 November 2025 before Deputy High Court Judge Edmond Lee. At the hearing, the Appellant submitted copies of written materials including the grounds of appeals. The Court then directed the Respondent to file a reply to the grounds of appeal. The appeal hearing was therefore adjourned. The Prosecution Case[2] 5.The prosecution’s case is that on the night of 12 May 2023, the Appellant and PW1, who were colleagues at the same company, attended a company dinner at a restaurant in Central before proceeding to a bar in Central for further drinks. 6.According to PW1, she consumed some alcohol during the evening but was not drunk, describing herself as only “a little bit tipsy”. While at the Bar, she and the Appellant were standing shoulder to shoulder near the entrance. The Appellant placed his hand on PW1's waist and then moved it progressively from her waist down to her buttocks, inner thigh, and finally her private parts over her trousers. PW1 testified that the Appellant's fingers moved in a thrusting motion around the outside of her private parts for approximately two to three seconds. 7.PW1 stated that she was “scared and her mind went blank”.[3] She did not shout or push the Appellant away. When a colleague, H[4], arrived, PW1 moved towards her while crying. PW1 testified that the Appellant continued touching her buttocks as she walked away until he could no longer touch her. 8.Afterwards, PW1 cried and H asked her what had happened. PW1 told H that the Appellant touched her. H then asked 2 other colleagues, A and L[5] to accompany PW1. At their suggestion, she contacted her boyfriend, PW2, asking him to pick her up. When PW2 met her shortly thereafter, PW1 told him what happened. 9.Later that night, at approximately 11:30 p.m., PW1 attended Central Police Station and made a report. She subsequently provided two witness statements to the police. 10.PW2 testified that he received PW1’s call at around 10.09pm. PW1 told him that she wanted to go home. At around 10.30pm, he met PW1 near Lan Kwai Fong. PW1 was crying. She told PW2 that the Appellant had touched her vagina. [The parties agreed that this constituted a valid recent complaint made at the first reasonable opportunity after the alleged offence.] PW2 attempted to contact the Appellant, but the Appellant said he could not hear him and ended the call. PW2 also tried to message the Appellant via WhatsApp. 11.The prosecution relied primarily on PW1's testimony regarding the alleged indecent assault and on PW2's evidence of PW1's recent complaint and distressed emotional state shortly after the incident. 12.PW3, the police officer who recorded PW1's statements, confirmed the accuracy of the statements and the circumstances under which they were taken. Defence case 13.The Appellant elected not to give evidence but called 2 defence witnesses, both of whom were his colleagues. 14.The defence case was that the alleged indecent assault never occurred and that the prosecution's account was unreliable. The defence relied principally on the evidence of DW1 and DW2 to challenge PW1's credibility, her level of intoxication, and the likelihood that the Appellant committed the alleged offence. 15.DW1 testified that she organized the company dinner which was attended by over 30 people. She said the Appellant did not drink much during dinner and seemed to be composed. On the other hand, PW1 drank a few sakes. DW1 was not aware of any interaction between PW1 and the Appellant during dinner. When they went to the Bar, she saw the Appellant drink 2 tequila shots. She also noticed that PW1 had more drinks at the Bar and appeared to be intoxicated. At around 9:00 pm, DW1 observed PW1 standing in front of Mr B[6] with her bottom touching his knee (I understand to be her buttocks touching his knee) (“the touching incident”). Mr B appeared uncomfortable and signaled to DW1 for assistance. DW1 asked PW1 to move away, and PW1 complied. 16.DW2 testified that the Appellant drank alcohol, which was ‘probably just beer”, but DW2 was not aware if PW1 drank any alcohol. DW2 was unaware if there was any interaction between PW1 and the Appellant during dinner. DW2 also testified that the Appellant was with him throughout the entire night and PW1 never approached the Appellant. However, he walked away on 2 occasions to another bar further up the street to purchase alcohol. He noticed that PW1 was highly intoxicated by the end of the night. He stated that he saw PW1 fall off a stool and require assistance from colleagues to get back up (“the falling incident”). Even after sitting down again, PW1 was swaying and appeared obviously intoxicated. He did not see the Appellant exhibiting any inappropriate behavior towards women, even after alcohol consumption. The magistrate’s findings[7] 17.Before stating her findings, the magistrate gave herself a list of directions, including directions on the burden of proof and the clear record and good character of the Appellant. 18.The magistrate also specifically reminded herself that[8]:
19.The magistrate then went on to deal with the issues of the case. She noticed the inconsistences between PW1’s testimony and her two statements but considered that these did not affect the core allegation that the Appellant had touched PW1's buttocks, inner thigh and private parts. The magistrate accepted PW1's explanations for those discrepancies. 20.The magistrate found it entirely plausible that PW1 could feel the touching through her trousers and could see the Appellant's hand move from her waist to her buttocks before feeling it continue to her private parts. Although colleagues were nearby, people were moving around, socializing and drinking. The magistrate found it plausible that the Appellant could have carried out the assault without immediate detection. 21.The magistrate accepted PW2's evidence of PW1's recent complaint and her distressed condition, but attached no weight to PW2's angry exchanges with the Appellant afterwards. The magistrate found that PW1's crying and abrupt departure from the gathering were genuine and connected to the alleged sexual assault, not any other reason. 22.The magistrate found no evidential basis for "fantasy" or mistaken perception. Even if PW1 was intoxicated, the evidence did not show she was incapable of accurately perceiving and recalling events. 23.The evidence of DW1 and DW2 regarding PW1's intoxication and the Appellant’s movements was considered vague and insufficient to undermine PW1's account. The magistrate accepted only their evidence concerning the Appellant's previous good character. 24.The magistrate found that the Appellant held PW1's waist, slid his hand to her buttocks and inner thigh, and touched her private parts in a thrusting motion for 2 - 3 seconds. The touching was intentional, non-consensual, and indecent. Accordingly, all elements of indecent assault were proved beyond reasonable doubt. The Appellant’s Grounds of Appeal 25.In his Perfected Grounds of Appeal, the Appellant raised two grounds of appeal, namely, (1) error of law (under which he subdivided this ground to two sub-grounds (i) failure to properly weigh the defence case and (ii) insufficient evidence to support guilt); and (2) error of fact under which there are 8 sub-grounds[10]. For the ease of reference, the Respondent rightly groups the appeal grounds into four categories as follows:
26.As rightly submitted by the Respondent the following sub-grounds raised by the Appellant are not relevant to the issues of the appeal:
Discussion 27.The Court of Final Appeal in HKSAR v Hui Lai Ki[11] held that an appeal under section 113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. The Court held that on such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict. The Court recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Despite those limitations it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law. 28.I have considered all the evidence of this case. It is noted that the prosecution did not make a closing submission. Ms Yu, representing the Appellant at the trial, on the other hand, made detailed closing submissions[12]. As rightly said by Ms Yu “the facts of this case are relatively simple for an indecent assault case. The prosecution mainly relies on X’s evidence to prove the charge”[13]. 29.I have also considered the submissions of both the Appellant and the Respondent. I do not intend to repeat them in full. The arguments / contentions advanced by the Appellant, and the replies of the Respondent, will be addressed in the discussions below where necessary. 30.At trial, it was submitted that PW1 was heavily intoxicated and her perception and recollection of events might therefore be unreliable. Ms Yu vigorously attacked the credibility and reliability of the evidence of PW1. She then submitted that the Appellant remained relatively sober and behaved appropriately throughout the evening as witnessed by both DWs. Besides, the Appellant had a reputation among colleagues as a respectable and well-behaved man. 31.Having considered the closing submissions, I must say that the grounds of appeal merely repeat the arguments previously advanced by Ms Yu in the court below. Ground 1 32.Turning to the first ground of appeal, the Appellant submitted, in gist, that PW1 was highly intoxicated at the material time of the offence. Further, PW1 provided several conflicting accounts of the events resulting in nine discrepancies across all versions. However, the magistrate’s reasoning for dismissing these discrepancies appeared to align closely with the prosecution’s position, raising concerns about impartiality in the assessment of the evidence. 33.The Appellant identified a total of nine discrepancies in his submissions: the number of attendees at the dinner; the types of alcohol consumed by PW1; the exact positions of PW1 and the Appellant; which of the Appellant’s hand was used for the touching; whether the Appellant’s hand movement was sudden or gradual; whether holding of PW1’s waist formed part of the indecent assault; the duration of the waist-holding; PW1’s reaction to the touching; and who accompanied PW1 after the incident[14]. 34.The magistrate was alive to these discrepancies / inconsistencies as Ms Yu had drawn to her attention[15]. It is true that there were discrepancies between PW1’s oral testimony and her witness statements, but the magistrate dealt with each discrepancy in detail in her Statement of Findings[16]. She was meticulous in analyzing the evidence and giving reasons to support her findings. 35.I have carefully considered the reasons she gave, and I agree that the alleged discrepancies were immaterial and that the explanations for them were reasonable and acceptable. 36.It is noteworthy that PW1’s first witness statement was provided at 3.02 am on 13 May 2023[17], hours after the incident. Ms Yu agreed that PW1 would have felt tired at that time. However, she argued, as the Appellant also did, that PW1’s memory of the incident should have been vivid and fresh. Nevertheless, there were inaccuracies in her first statement. 37.On this issue, I agree with the magistrate that[18]:
38.In relation to whether PW1 was highly intoxicated, the magistrate said in the Statement of Findings[19]:
39.Further, as rightly submitted by the Respondent, PW1 was sober enough to comply with DW1’s request in relation to the touching incident and respond appropriately at the time. PW1 was also able to recall the incident and the events occurred before and after it, including her recent complaints to her colleagues and her boyfriend, PW2, and her attendance at the police station. 40.I agree with the reasoning of both the magistrate and the Respondent. In light of the evidence, I reject the contention that PW1 was highly intoxicated. 41.As indicated in preceding paragraphs, Ms Yu vigorously attacked PW1’s credibility and reliability in her lengthy closing submissions. She advanced every argument available to her. The magistrate was alive to the issues in the case. In finding PW1 was credible and reliable, the magistrate carefully analyzed the evidence of the case and provided sound and sufficient reasons for her findings. Nothing in the Statement of Findings shows that she was partial in her assessment of PW1’s evidence. 42.Ground 1 fails. Ground 2 43.PW3 confirmed that the contents of the two statements she took from PW1 were accurate, notwithstanding PW1’s allegation that PW3 had failed to correct all the mistakes that PW1 pointed out while giving her first statement. The magistrate nevertheless found it plausible that PW3 might have failed to make all the requested corrections. 44.PW3’s evidence should be carefully considered in its proper context. It is therefore necessary to refer to the relevant parts of the evidence of both PW1 and PW3. The magistrate said[20]:
45.PW3 was in fact unable to recall in detail how the statement was taken. In view of her evidence, together with PW1’s explanations for the inconsistencies, the magistrate was correct to make findings that she did. 46.Ground 2 fails. Ground 3 47.It was submitted that the magistrate erred in finding both DWs unreliable despite their clear descriptions of PW1’s intoxicated behavior of PW1 throughout the night: DW1 noticed PW1 had more drinks at the Bar and appeared intoxicated; DW1 saw the touching incident; DW2 noticed PW1 was highly intoxicated; DW2 witnessed the falling incident. 48.I have considered the evidence of both DWs, which was referred to in detail in the Statement of Findings[21]. It is not in dispute that neither DW1 nor DW2 witnessed the alleged indecent assault. They said they did not witness any interaction between PW1 and the Appellant at the Bar. Further, DW1 said she helped hand out drinks at the Bar, whereas DW2 said she walked away from the group to buy drinks from another bar further up the street. All of this shows that neither witness kept the Appellant under constant and close observation. Accordingly, the magistrate was entitled to conclude that their evidence about the Appellant’s movements and interactions at the Bar was vague and unreliable. 49.Both DWs were of the view that PW1 was highly intoxicated. However, the magistrate regarded their observations as insufficient. DW1’s account of the touching incident did not show that PW1 was so intoxicated that her memory was impaired, particularly because PW1 was able to give promptly to DW1’s request that she moved away from Mr B. Further, DW1’s belief that PW1 had acted intentionally was a subjective interpretation unsupported by facts. 50.Similarly, DW2's conclusion that PW1 was heavily intoxicated was based only on observing her after she had fallen from a stool, without seeing the circumstances that led to the fall, and therefore carried little weight. “64. All circumstances considered, both DW1 and DW2 are honest but unreliable witnesses. I refuse to attach weight to their evidence save for the undisputed good character evidence.” 52.It is not in dispute that neither DW1 nor DW2 witnessed the alleged indecent assault. In those circumstances, it cannot be said that the magistrate erred in attaching no weight to their evidence on the central issues in dispute. 53.Further, the Appellant complained that the magistrate was wrong to place undue weight on DW1’s and DW2’s working relationships with the Appellant when assessing their credibility. 54.I do not fully understand the crux of the argument put forward. As shown above, the magistrate found both DWs to be honest and attached weight to their evidence concerning the Appellant’s good character. 55.Ground 3 fails. Ground 4 56.The Appellant complained that the magistrate failed to consider the Appellant’s good character and personal circumstances. 57.In light of what I have said in the paragraphs below (58 to 60), this ground of appeal must fail. 58.The magistrate accepted the undisputed good character of the Appellant:
59.It was clear that, in assessing the evidence of the case, the magistrate reminded herself that the Appellant had a clear record and was of good character, and she gave herself the appropriate legal directions. 60.The Appellant relied on several mitigation letters as evidence of his good character. However, those letters were provided only after his conviction and were tendered for mitigation purposes. In any event, as I have already indicated, the magistrate was fully aware of the Appellant’s good character. 61.There is no merit in the ground 4. 62.Having considered all the material before me, I find that none of the grounds is substantiated. On the evidence adduced, I too would have recorded a conviction had the case been tried before me. 63.Accordingly, I dismiss the appeal and affirm the conviction.
Mr Chan Tin Lok Alan, SPP of the Department of Justice, for the Respondent The Appellant, acting in person [1] contrary to s 122(1) of the Crimes Ordinance, Cap. 200 [2] Appeal Bundle pages 16-25, Statement of Findings [3] Appeal Bundle page 18, para 11(h) of the Statement of Findings [4] The name was mentioned in the Statement of Findings but was deliberately omitted from this judgment. [5] The name of A and L were mentioned in the Statement of Findings but were deliberately omitted from this judgment. [6] The name was mentioned in the Statement of Findings but was deliberately omitted from this judgment. [7] Appeal Bundle pages 30-44, Statement of Findings [8] Appeal Bundle pages 31-32, para 43-45 of the Statement of Findings [10] Perfected Grounds of Appeal dated 24 January 2025 [12] Appeal Bundle pages 76-86 (1223pm to 1253 pm on 4 October 2024) [13] Appeal Bundle page 76K-L [14] Appellant’s submission dated 6 February 2025 [15] Appeal Bundle pages 77-78 [16] Appeal Bundle pages 32-36, para 46-47 of the Statement of Findings [17] Appeal Bundle page 76T [18] Appeal Bundle page 35, para 47a(iv) of the Statement of Findings [19] Appeal Bundle page 36, para 47a(v) of the Statement of Findings [20] Appeal Bundle pages 24 and 40, para 13 and 55 of the Statement of Findings [21] Appeal Bundle pages 26-28 and 41-43, para 21-31 and 58-64 of the Statement of Findings [22] Appeal Bundle page 43, para 64 of the Statement of Findings [23] Appeal Bundle page 27K-M, para 26 of the Statement of Findings [24] Appeal Bundle page 28K-N, para 31 of the Statement of Findings [25] Appeal Bundle page 30C-D, para 38 of the Statement of Findings [26] Appeal Bundle page 30Q-S, para 41 of the Statement of Findings |
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