HKSAR v. Khan Mumtaz

HCMA000879/2003

HCMA 879/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 879 OF 2003

(ON APPEAL FROM WSCC 1383/2002)

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Coram: Deputy High Court Judge Toh in Court

Date of Hearing: 14 November 2003

Date of Judgment: 14 November 2003

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J U D G M E N T

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1.The Appellant had pleaded not guilty in the Magistrate's court to one charge of indecent assault. He was convicted after trial and was sentenced to 4 weeks' imprisonment. The Appellant now appeals against both conviction and sentence.

2.The prosecution's case rested entirely on the evidence of PW1. She had joined the Company in which the Appellant had worked for about 7 to 8 days as an office assistant. The Appellant was also an office assistant in the same company. Apart from the Appellant and PW1, also in the Company was the boss, another co-worker and another Chinese lady in a senior position, so obviously this was a small office of 5 people.

3.The learned Magistrate noted that the working relationship between PW1 and the Appellant was good. On the day of the offence, the Appellant was in the office at lunchtime and PW1 was also there having her meal box, the other people had left the office for lunch.

4.PW1's evidence was that at this time, the Appellant had beckoned her over to where he was sitting, she went over and he suddenly pulled her to sit on his thigh. She tried to get away but failed. The Appellant embraced her from behind with his arms and then suddenly he kissed her lips with his tongue insider her mouth. She said she was shocked and tried to push him away. She said he ended his kiss 2 to 3 seconds later and he also touched her breast.

5.PW1 also said that there was another kissing and then subsequently she said she looked at the clock and said that lunchtime was about over and she had to clean her meal box. He then let her go. She said she did not tell her co-workers of the indecent assault because she did not want to lose her job. She said she told her mother about this at 3 a.m. in the morning on the following day. At the insistence of her mother, a report was made to the police.

6.The Appellant has a clear record.

7.Upon cross-examination, PW1 admitted that she had, during that lunchtime prior to the indecent assault, placed a plastic flower on the Appellant's desk. It also transpired from her evidence, according to Mr Poots, and this is not challenged by the Respondent nor does the Respondent require a transcript to be called for, that after the kissing and the touching of the breast, she was made to sit on the Appellant's thigh for about, she said, 45 minutes and during this time, she alleged that she had tried to get away but she could not, and it was only when she looked at the clock and realized that lunchtime was nearly over, she told the Appellant she had to clean her meal box and then he let her go.

8.PW1 had no injury or rather no evidence of any injury was found on her. It also was in evidence that PW1 did not tell her mother that the Appellant had touched her breast.

9.The learned Magistrate in his Statement of Findings had fully and properly instructed himself on the law, both as to the Appellant's good character and also as to what the prosecution had to prove. The learned Magistrate then considered the fact that PW1 admitted putting a flower on the Defendant's desk and said that he found that there was nothing more than merely her being friendly to him.

10.The learned Magistrate, then, at paragraph 14 of his Statement of Findings, dealt with the issue of the 45 minutes and he resolved that by saying that because PW1 was in an utterly awful and humiliating situation, she was not looking at her watch to record how long she had been held on the Appellant's thigh. He felt that the lack of injury is not unusual because he did not think that injury would necessarily arise from the actions of the Appellant. The fact that there was a lack of complaint in the afternoon of the assault, the learned Magistrate resolved that by saying that he believed the victim when she said that she would lose her job.

11.Finally, he said that as far as the touching of the breast is concerned, he was not sure if the victim had omitted telling her mother or that whether the mother had omitted to remember and he found that PW1 was very shy. Finally, the learned Magistrate found that accepted her evidence to be true and accurate.

12.The Appellant's evidence was that at lunchtime that day, he had gone to the washroom and then he returned to the office, he found the plastic flower on his desk and that was the first time that PW1 had ever given him a flower. He entered the boss's room to eat his meal and PW1 entered the room and took his food from him because she said she liked Indian food. Then they went back to their respective desks and the Appellant said that PW1 told him that she had problems with her boyfriend and that she was very poor and she told him that she liked him. He refused her by saying that he was married and had 4 children and then she left to wash her meal box.

13.Upon return, she spoke to him normally but the Appellant said that he felt that her advances would ruin his family and hurt his dignity. So at 6:15 p.m. that day, he wanted to tell the boss about the incident but unfortunately his boss was with a customer and so he decided to do so the following day. But on the following morning he was arrested. He also produced a letter from his boss attesting to his good character.

14.The learned Magistrate disbelieved the Appellant's evidence that PW1 told him that she liked him and disbelieved that he wanted to tell his boss about this, he found it unbelievable. At the end of the day, the learned Magistrate was within his power to accept or reject the evidence of the Defendant. Certainly, even after he rejected the evidence of the Defendant, he would need to consider whether the prosecution's evidence alone had proved the case beyond a reasonable doubt.

15.Mr Poots appearing on behalf of the Appellant submitted several grounds of appeal, but his main ground, which is also his first ground, was that there were some discrepancies in PW1's evidence that was not properly dealt with.

16.First, he said that as a relationship to the flower, the fact that she only admitted to putting the flower on his desk when cross-examined and she had never told her family or anybody else about this incidence until she was cross-examined about it. His submission is that she deliberately withheld this information because she felt that it would detract from her version of the event.

17.Mr Poots' argument is that the kisses and touching occurred for only a few seconds and there is no evidence whatsoever that anything happened during the period of 45 minutes when the PW1 was held on the Appellant's knee.

18.Thirdly, Mr Poots submitted that PW1 had said that she had used all her force to try to escape from the Appellant, and therefore inevitably, that if such a struggle had been going on during that period of about 45 minutes, then he submitted, even if there is no serious injury, there would be some redness or mark that would be left on her body. And therefore he submitted that the absence of this raises a reasonable doubt.

19.Furthermore, he said that there were three other people who worked in that office, any of those could have returned during the lunch break. It is therefore inherently unbelievable that the Appellant would have risked during such an act at that time and therefore he submitted that a reasonable doubt existed.

20.I must admit that in reading the facts a glaring doubt arises as to the time that the victim said that she was held on the Appellant's knee or lap. I did ask the Respondent's counsel if it was necessary to obtain a transcript of her evidence but she felt that it was unnecessary, and she accepted Mr Poots' submission that PW1's evidence was that she was held on the Appellant's lap for about 45 minutes. During that time, she was struggling and nothing was done physically or said verbally to her during this time.

21.The learned Magistrate had tried to resolve this by saying at paragraph 17 of his Statement of Findings, that the victim said it was around 45 minutes, she said she cannot remember clearly and the learned Magistrate did not find that whether it was 45 minutes or less it was material. He said he could not criticize the victim for not being able to give him a precise time. That is correct as far as the timing is concerned, no one expected the victim in such a situation to be worried about the time but even if it was less than 45 minutes, it is still a long time to be held on an assailant's lap and the assailant had not continued the indecent assault, nothing was said and she was struggling, and she was using all her force to struggle.

22.I agree with Mr Poots that these would inevitably be some redness, at least, on the part of her body where she was being held and that, together with the fact that when she looked at the clock and said to him: "Oh, lunchtime is almost over, I need to wash the meal box", he let her go. Again, that sounds to me to raise some doubt as to the veracity of the situation she was describing.

23.As Mr Poots pointed out the situation in that office was that there were others working in that office, they could have returned at any time. There was no evidence the door was locked and for her to actually at the end of that time say that she needs to wash lunch box was something that worries me as to whether she was painting a truthful picture of what happened.

24.Furthermore, it also was in evidence that PW1 acted normally after the lunch break. She conversed normally with her co-workers and her reason was that she did not want to lose her job which the learned Magistrate accepted. But that fact alone does not explain why after such a traumatic experience that she would be able to behave normally even though she did not complain to the boss. It was also in evidence that the Appellant left the office during that afternoon and returned later, it does not appear that PW1 took that opportunity to complain.

25.I am therefore left with a lurking doubt as to the safety of the conviction. Whilst it is true that a learned Magistrate's finding of fact should normally not be interfered with on appeal because he had had the opportunity to observe the witnesses at trial. But when it is becomes obvious that the learned Magistrate in coming to his conclusion ought to have dealt with a satisfactorily with the queries raised, then it is incumbent on appeal for the court to point that out and consider whether the failure of the learned Magistrate to properly deal with that had left a lurking doubt in the conviction and so I find that, the learned Magistrate had not satisfactory dealt with the issue of the "45 minutes" and the lack of injury on the victim. Therefore, it had left me with the conclusion that the conviction is unsafe.

26.The appeal is therefore allowed and the Appellant is acquitted and the conviction is quashed. Perhaps I can add one thing here too is that in the charge of this nature where the evidence is solely from a victim alone, matters of this nature ought to be properly and satisfactorily resolved.

Representation:

Ms Winnie Lam, GC for DPP of the Department of Justice, for the Respondent

Mr Laurence James Poots, instructed by Messrs Pang, Wan & Choi assigned by the Director of Legal Aid, for the Appellant