The Queen v. Wong Kun-kim

HCMA000644/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Mag. CRIMINAL APPEAL NO 644 OF 1988

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BETWEEN

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Coram: The Hon Mr. Justice Barnes in Court

Date of Hearing: 14th September, 1988

Date of Judgment: 6th October, 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge alleging that he assaulted a female at the airport on 30th March, 1988.

2. Four witnesses gave evidence: three for the Prosecution and the Appellant himself for the Defence.

3. PWl's evidence was that she was on duty at the airport as an employee of a security company at 11.25 am on 30th, March, 1988 with the responsibility of ensuring that inending passengers' cabin luggage did not exceed the stipulated maximum measurements. She was in the restricted area through which passengers must pass on their way to the immigration Department's checkpoint. Working with her was another junior security officer and her duty manager, PW2. The Appellant came in to the area with a trolley containing two pieces of luggage. From experience she know that his luggage would exceed the limits set by the particular airline on which he was travelling. Her junior colleague explained the restrictions regarding hand luggage to him and gave him an explanatory pamphlet. The Appellant looked at the document and then went hurriedly towards the departure gate in the direction of PW1 pulling the trolley with his right hand and holding the notice and his departure documents in his left. PW1 signalled him to stop and he did. She explained the restrictions and told him to contact his airline. He said: I don't want to go back: you go back". He then "thrust his left hand still holding the notice into a gap in [her] clothing between her sweater and her shirt''. By this action "the back of his hand and four of his fingers came into contract" with her. She shouted "Don't touch me", and stepped back two paces. PW2 then, according to her, told the Appellant not to be impolite "to the lady staff" whereupon the Appellant said he only wanted to give her back the piece of paper. She told the Appellant that he could have given it back by placing it in her hand. According to her, PW2 then said; "What you've done amounts to indecent assault", to which the Appellant replied: "I admit having touched her I didn't indecently assault her". She said that when she stepped back the Appellant withdrew his hand together with the notice.

PW2's evidence was that he saw the Appellant "thrust the notice into [PW1's] uniform". He said that all the Appellant's fingers went inside the V-neck of her sweater but he could not recall whether the notice did as well.In order to prevent the Appellant taking further action after PW1 stepped back he shouted "What are you doing? Why you touch her?", to which the appellant replied: "I didn't touch her".

4. PW3 was the police officer who was summoned to the scene. In cross-examination he said, reading from an entry he made in his notebook at11.50 arm (some 25 minutes after the incident), that PWl and PW2 had told him that the Appellant had pushed the notice towards PW1's outer garment near her chest with his left hand, that she immediately dodged away as the piece of paper had already touched her chest.

5. The Appellant's evidence was that he pushed the notice towards one of the staff and without looking as to what happened to it he pushed his trolley and walked on. PW2 then shouted at him. He turned and asked '"What's the matter ?" PW2 said:"We could sue you for indecent assault and I shall be a witness". The Appellant said that he replied :"I didn't touch her at all". The notice he said, was then on the floor. He repeated in evidence that he did not touch her at all and when asked by his solicitor whether it was possible the notice came into contact with PW1's chest he replied, "I don know. I flipped it in her direction as I turned and walked away".

6. The learned magistrate found PWl to be an honest and reliable witness and accepted her evidence as to what had happened. The appellant, she found, was not a witness of truth and she rejected his evidence. She found that he "thrust the notice in his left hand at PW1; and that the back of his left hand holding the notice and departure documents "came into contact with the area between the shirt and V-neck sweater worn by PWl." As a result she found the offence proved.

7. The Appellant relies on eight grounds of appeal but - the gist of his complaint is that, as this was a case where credibility was the main issue, the learned magistrate should have shown how material matters which if unresolved, adversely affected the credibility of prosecution witnesses, were resolved so as to leave their credibility unimpaired.

8. The Appellant points to the evidence of PW2 and the Appellant which is in conflict with that of PW1: whereas PWl said that the Appellant Admitted at the time that he had touched her, PW2 and the Appellant said that he denied touching her. There was also the evidence of PW1 and PW2 on the one hand to the effect that the Appellant's hand went between PW1's sweater and shirt and that of PW3 on the other that 25.minutes after the alleged assault both alleged a pushing of the paper towards PW1's outer garment and the assault consisted of a paper to body contact rather than a hand to body.

9. The Appellant's solicitor, in his final address at trial, stressed the apparent inconsistency noting that the allegation that the Appellant had actually inserted his hand between two items of PWl's clothing in the region of her chest was a serious allegation. If true, it was unlikely to be omitted through oversight by the eyewitnesses reporting the incident so soon after it occurred and unlikely to be omitted in the police record of the assault, particularly if that detail reported by both eyewitnesses.

10. The learned magistrate,in her evaluation of the evidence, did refer to a number of discrepancies in the evidence of the prosecution witnesses and rightly made the point that they were not such as to undermine the credit of the witnesses. But in her carefully prepared Statement of Findings she makes no reference to the matters about which the Appellant complains. There is no obligation on magistrate to deal with every discrepancy which arises during the course of a trial but there is no need to deal with apparent inconsistencies and contradictions which, if unexplained, create uncertainty about  which version, if any, of a material allegation is true. The apparent inconsistency on a material matter between what PW1 and PW2 told PW3 according to PW3 and what they told the court may have been shown to be not an inconsistency at all if the matter had been fully explored at the trial. But the only evidence touching the matter was given by PW2 when he said that he did mention that the Appellant 's hand had gone inside PWI's clothing when he gave his statement to the police. There was, however, no evidence that PW1 and/or PW2 included that allegation when relating the incident to PW3.

11. The Statement of findings does not reveal whether this apparent inconsistency was resolved. Unresolved, it provided an obstacle to ready acceptance of the evidence of PWl and PW2 that the Appellant inserted his fingers between PW1's sweater and shirt. The evidence of PW2 and the Appellant about the latter denial of assault contradicted the evidence of PWl that he admitted it. The learned magistrate was entitled to reject evidence which was in conflict with that of PW1 but the unusual agreement on this point between PW2 and the Appellant raised possibility that PWl may have been making a mountain out of a molehill, another obstacle to a ready acceptance of her evidence in toto.These matters could have been resolved in favour of PW1 as Mr. Abbott for the Respondent pointed out. But the Statement of Findings does not show how they were resolved and, more importantly, does not show that they were considered in assessing the credibility of the witnesses. It is the failure to show that they were taken into account in a case where credibility was the main issue which, in may view, makes the resulting conviction unsafe.

12. I therefore allow the appeal and quash the conviction and sentence.

Representation:

Mr. J. Abbott, S.C.C. for the Crown.

Mr. Gary Alderdice (Tsang, Chan & Shuen) for Appellant.