The Queen v. Hui Choi Tak

HCMA001093/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1093 of 1990

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BETWEEN

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Coram: Hon. Penlington, J.A., in Court (sitting as an additional High Court judge)

Date of hearing: 15 November 1990

Date of delivery of judgment: 15 November 1990

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JUDGMENT

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Penlington, J.A.:

1. This is an appeal from a conviction in the magistrate's court by Mr. James Lee on the 22nd May 1990 on a charge of indecent assault contrary to Section 122(1) of the Crimes Ordinance Cap. 200.

2. The magistrate found the appellant guilty after trial. In his findings of fact he has set out that the principal prosecution witness, a Miss Hau, was going to work on the Mass Transit Railway ("MTR") at 8:30 a.m. on the 28th March 1990. The station at Mongkok was crowded when she got on to the train. She felt that she had been touched from behind in between her legs. She turned and saw the appellant immediately behind her. The door on the carriage had not then closed. She turned back and then felt that she had been touched from behind again, this time higher up and she felt that it was on this occasion a touching inside her skirt. She shouted and turned round. She again saw the appellant close to her. She shouted loudly "indecent assault" and the appellant then left the carriage. There were however two policemen present and they asked her what the matter was. They were inside the train but the door was beginning to close. She said to the policemen that she had been indecently assaulted. The policemen then prevented the door from closing and Miss Hau left the carriage and was escorted to an interview room at the MTR station.

3. She said that she was certain that it was the appellant who had touched her as he was immediately behind her. However, in cross-examination, she agreed that there was a possibility it could be someone else although she thought it was unlikely. She said there were other people around who were fairly close to her and it was possible that someone else had touched her.

4. Evidence was also given by the two police constables. PC47473 (P.W.2) said that on the occasion he saw the appellant on the Mongkok MTR station. He said that he saw the appellant get into a train behind a female passenger who he pushed. However, having got into the train, he then left it immediately. This behaviour was repeated some three times. His suspicions were aroused and he informed his colleague, PC46752 (P.W.3).

5. When the next train came into the station he saw the appellant push onto the train behind a female.   When they entered the train the female, who was Miss Hau, cried out that she had been indecently assaulted. The appellant then jumped off the train and the two police officers went forward and arrested him. Miss Hau was interviewed and she identified the appellant. He then took the appellant to a room at the MTR station where he verbally cautioned him. The appellant said that the train was crowded and he touched a girl once on her back. He said he did not do it intentionally but on impulse. He said he knew it was wrong and asked to be given a chance. The appellant was then taken to Mongkok Police Station for enquiries. There he recorded a written statement from the accused. This statement, however, was not produced and the Crown relied on the oral statement made at the Mongkok MTR.

6. Clearly there was a conflict in evidence of this witness because in cross-examination he at one stage said:

"After verbal caution defendant said nothing. Only later at Mongkok defendant made a cautioned statement."

On re-examination, however, he said that he had not fully understood the question and that what had been recorded at the Mongkok Police Station was in fact the same as the verbal statement which had been made in the MTR station.

7. Confirming evidence was given by P.W.3, PC46752, he had also observed the behaviour of the appellant and also heard the shout from Miss Hau. He saw the appellant then leave the train and he was with his colleague when the appellant was arrested. He was asked why the appellant had not been arrested when they saw his previous behaviour before the incident with Miss Hau and he said that he did not think there was at that stage enough evidence to do so.

8. Both police constables admitted that they did not actually see the appellant indecently assault Miss Hau. Their evidence was therefore that they had seen him getting on and off previous trains on some three occasions for no apparent reason, that he had gone on to the train immediately behind Miss Hau and that again within a very short time she had cried out that she had been indecently assaulted. The appellant then immediately left the train.

9. It is argued on this appeal by Mr. Andy Hung, who appears for the appellant, that the magistrate was wrong to rely on the alleged oral confession made by the appellant at the MTR station. Clearly it was somewhat strange that the written statement made at the Mongkok Police Station was not produced and the Crown sought to rely on the oral statement. The constable was, however, cross-examined at length on this statement and I am satisfied that the magistrate clearly accepted it as being voluntary. However he went on to say that even without this oral statement made by the appellant he would have been satisfied beyond reasonable doubt of his guilt on the other evidence.

10. Some reliance is also placed on a statement in the findings that the magistrate would not have convicted on the evidence of either P.W.1 alone or of P.W.2 and P.W.3 alone. However he said that putting all their evidence together he had no doubt that the appellant had indecently assaulted Miss. Hau. I see nothing wrong with such a finding. The magistrate has said that he simply considered all the evidence and, in its totality, it left him in no doubt.

11. It is also a ground of appeal that there were inconsistencies between the evidence of the three prosecution witnesses. I have been taken through the evidence of these witnesses and the inconsistencies have been pointed out. I am satisfied that considering that events must have happened within a very short period of time the inconsistencies between them are by no means major and would not be such as to make their evidence unbelievable.

12. This was a finding of fact by the trial magistrate. He heard the witnesses and I am satisfied that having accepted them as witnesses of truth, there was ample evidence here to justify his coming to the conclusion of that the appellant had indecently assaulted Miss Hau in the manner that she alleged. The appeal therefore is dismissed.

Representation:

Mr. Andy Hung (Herman Hui & Co.) for the Applicant

Ms. C.J. Ravenscroft, S.C.C., for the Crown