HKSAR v. Lau Kwong Yan

HCMA001475/1996

1996, NO. MA 1475

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Mr Justice YEUNG in Court

Date of judgment: 2 September 1997

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J U D G M E N T

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1. The appellant, LAU Kwong-yan, was convicted after trial on the charge of indecent assault. It was alleged against him that he touched the right buttock of a 17 year old girl on board an MTR train shortly after 6 pm on 13 August 1996.

2. The evidence in support of the allegation came from two prosecution witnesses. The second prosecution witness, Police Constable 47108, was a plainclothes officer at the material time. He said he noticed the appellant at the Tsim Sha Tsui MTR station. He alleged that the appellant had allowed trains to pass without boarding them. He then said he saw the appellant standing immediately behind the 17 year old girl to board a train. He said he was watching closely at the appellant.

3. He said the appellant was standing close to the girl on board the train, and when the train reached Jordan Station the girl moved further into the compartment, and the appellant followed her. It was alleged by Constable 47108 that as the train moved away from Jordan, the appellant put his left hand on the right buttock of the girl for about two seconds. He then intervened and the party all alighted for Yau Ma Tei Police Station. The appellant was then arrested. Upon being cautioned, he denied the allegation.

4. The girl's evidence was somewhat different from that of Constable 47108. The girl said, having boarded the train in Tsim Sha Tsui she noticed it was very crowded. She said she felt someone stretch his hand inside her skirt to touch the back of her left thigh. She said it took place before the train reached Jordan. She said at that time she tried to turn her back but was unsuccessful because the train was very crowded, and after some people alighted from Jordan, the train was less crowded and she was able to move further into the compartment of the train. At that time, she said she felt someone following her and she said she felt someone sticking to her. She felt someone touching her back briefly.

5. As the learned magistrate quite rightly observed, the appellant could not be the one who touched the girl's side between Tsim Sha Tsui and Jordan. Constable 47108, of course, was closely watching the appellant and he couldn't have failed to notice if that was what the appellant did. The learned magistrate convicted the appellant on the basis of Constable 47108's evidence; that it was the appellant who touched the girl's buttocks for two seconds between Jordan and Yau Ma Tei.

6. Insofar as the girl did not feel the touching on her buttocks between Jordan and Yau Ma Tei, the learned magistrate had this to say. The learned magistrate said he did not find it surprising in view of what she said happened to her between Tsim Sha Tsui and Jordan. The learned magistrate also suggested that it was not surprising for a lay person not to be able to remember minor details. He concluded that the girl's recollection that nothing happened between Jordan and Tsim Sha Tsui, apart from someone sticking to her back, was faulty.

7. Why would a court expect a witness to be able to remember everything in detail? The allegation against the appellant and the sole base for convicting the appellant was the allegation of the -- was the alleged touching of the girl's buttocks for two seconds between Jordan and Yau Ma Tei. Something that the girl herself did not feel. Instead, she was able to say that the touching was, in fact, on her back. If she was able to remember a touch on her back she should be able to remember a touch on her buttock.

8. I am also mindful of the fact that after the girl was intercepted by Constable 47108, she no doubt would describe to him what had happened to her between Tsim Sha Tsui and Jordan. It would not be surprising at all for Constable 47108 to form some adverse impressions about the appellant by reason of what she was told by the girl in the circumstances.

9. The conviction against the appellant rests entirely on the observation by Constable 47108, that he touched the girl's buttock for two seconds; a fact not only unsupported by the girl but, in fact, contradicted by her. Bearing also in mind, the possibility of Constable 47108 forming an unfavourable view of the appellant by reason of what the girl must have told him at the end -- told him as to what happened to her between Tsim Sha Tsui and Jordan, I do have lurking doubt at the end of the day about the guilt of the appellant.

10. In the circumstances, the conviction cannot stand. The conviction is hereby quashed and the sentence set aside.

Representation:

Mr Simon TAM, General Counsel, for Respondent

Mr Michael Lunn, S.C., and Mr Dominic YEUNG, instructed by Ford, Kwan & Co., for the Appellant

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie Date: 9 September, 1997