HKSAR v. Ng Wai Lok

HCMA001172/2003

HCMA1172/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1172 OF 2003

(ON APPEAL FROM STCC 1354 OF 2003)

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Coram: Hon Jackson J in Court

Date of Hearing: 13 February 2004

Date of Judgment: 13 February 2004

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J U D G M E N T

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1.On 3 October 2003 at Shatin Magistracy the appellant was convicted after trial of an offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.

2.He was sentenced to an immediate term of 14 days' imprisonment. He appealed against his conviction and was granted bail. I dismissed his appeal on 13 February. My reasons follow.

Outline of evidence presented at trial

3.An 18-year-old student (PW1) was travelling on the upper deck of a bus at about 12:30 p.m. on 17 July 2003. She was then wearing her summer uniform. There were not many passengers on board the bus and PW1 took a window seat. She was talking on her mobile phone and she rested her left arm on the window sill of the bus. After some time, the appellant boarded the bus and took a seat behind PW1.

4.According to PW1, she felt that something was put on her body below her armpit and at the strap of her brassiere. Initially the object did not move but after a while she felt its movement. She turned around and saw the appellant's four fingers. She described the movement by saying 'suddenly it was tightened' and that it appeared to be "bent inward" to her body. PW1 scolded the appellant and moved to the aisle seat before going downstairs and reporting the matter to the bus-driver (PW2). The appellant said to PW1 that he only touched her accidentally and that did not "squeeze her". It is true to say that in her evidence PW1 said words to the effect that it was more what the appellant said to her than what he had done to her that caused her to be greatly upset.

5.PW2 confirmed that PW1 complained to him of having been touched by someone. PW2 suggested making a report to the police and this was duly done. He described the bus journey as having been "quite smooth" the implication being that the passengers would not be thrown against each other resulting in accidental touching.

6.The appellant gave evidence in the trial and he agreed that he had taken a seat behind PW1. He said that he then stretched out both arms in order to cool himself. He admitted to have touched PW1 very briefly but it was, so he said, only by accident.

7.In her Reasons for Verdict the magistrate said this about her assessment of the evidence :

" When I assessed all the evidence before me, I bear in mind that it was the Prosecution to prove the case beyond all reasonable doubt.

The appellant has a clear record, I directed myself with a Berrada warning. That his credibility should be enhanced and his propensity to commit the offence should be less.

Section 4B of the Evidence Ordinance has abrogated the corroboration warning in sexual offence.

The Defence did not dispute the Prosecution case to a substantial extend. The Appellant did not dispute that he has touched PW1. The issue before me was whether it was an accidental touch or whether it was intentional. Further whether the touch was indecent in nature.

The Appellant did not dispute that PW1 sat in front of him. He rested his left arm on the window sill of the bus and held onto the side of PW1's chair. His defence was that it was when the bus made the turn that caused his hand to come into contact with PW1's body.

PW1 was on the phone at the material time. She also put her left arm on the window sill. Therefore, there was a space between her arm and the left side of her body. It was the beginning of her summer holiday. She was on the phone chatting away with her friend and was relaxed. She had not guarded against the possibility of being touched by a passenger sitting at the back.

She said that when she felt something under her armpit, it was just sitting there without moving. She specified that area was the wire of her bra under her armpit. That piece of wire was a vertical piece of wire of her bra and it was just under her armpit. Later she found that the Appellant 'tighten' his movement. From what she describe she must be able to feel the pressure of that movement. To any female, it was a very intimate area and it was very close to the left side of her breast.

The Defence was that it was the bus movement caused the 'touch' or the 'physical contact'. The Appellant said the area of contact was PW1's back and shoulder, not under her armpit. The question was, if the bus moved, why not hold on to the handle of the seat to balance himself?

I had observed that PW1 as a young girl, at times she appeared to be shy, it was all very understandable that there were a lot of strangers sitting in the court and listening to her evidence. However, she did impress me as a honest and reliable witness. Her evidence was clear and straightward. The appellant's evidence was rejected.

I ruled out the possibility of an accident. I found as fact that the Appellant intentionally assaulted PW1. The assault was indecent in nature."

The grounds of appeal

8.The grounds of appeal settled on behalf of the appellant were as follows :

"	(1)	The learned magistrate failed to evaluate the evidence of PW1 which was given substantially under leading questions asked by the prosecution and failed to attach or evaluate the weight which ought to be attached to the answers given under the leading questions asked by the prosecution.
	(2)	The evidence concerning description that how the fingers of the appellant came into contact with the PW1's body and the exact position of the appellant's fingers was extremely ambiguous and unclear. The learned magistrate failed to resolve the said ambiguities.
	(3)	The learned magistrate ruled out the possibility of an accident without sufficient basis. Further, the learned magistrate failed to consider the evidence that PW1 had been talking on the phone together with her admission of slight movement on the bus. There was insufficient evidence and a series of conflicting evidence in which an irresistible inference cannot be drawn that this is an act of indecent assault rather than an accident.
	(4)	The learned magistrate heavily relied on the demeanour of PW1 to evaluate whether PW1 is an honest and reliable witness.
	(5)	PW1 was very upset by the words spoken rather than by the act of the appellant and equally the learned magistrate was affected by PW1's emotional distress.
	(6)	Because of the aforesaid matters, the conviction was unsafe and unsatisfactory."

9.Having listened to counsel for the appellant I found no substance whatsoever in any of those grounds. As to ground 1 the questions which he suggested were leading were either not leading at all or (except where the objection was taken) wholly unobjectionable. As to grounds 2, 3, 4 and 5 they were wholly unsupported by the transcript and the magistrate's findings. With respect each of those grounds has about it an air of unreality.

10.The only matter which caused me to make further enquiry of counsel was a matter not canvassed at all in the grounds of appeal and that was whether the magistrate had sufficiently addressed in her Reasons for Verdict the essential ingredient of the offence of the appellant's intention not merely to commit an assault but also one which was indecent.

11.In the event, having heard counsel on the matter, I was quite satisfied that she had and that upon further scrutiny of her reasons it was quite apparent that she had.

12.It was for these reasons that I dismissed this appeal.

Representation:

Ms Alice Chan, SGC of the Department of Justice, for the Respondent

Mr Shahmin Khattak, instructed by Messrs Poon & Cheung,for the Appellant