HKSAR v. Lam Sui Kwong

HCMA001021/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1021 OF 1997

(On Appeal from TWC 1422/97)

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Coram: Deputy Judge Jackson in Court

Date of Hearing: 16 April 1998

Date of Judgment: 16 April 1998

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J U D G M E N T

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1. This is an appeal against conviction for an offence of indecent assault committed on the 12th May 1997 for which the Appellant was fined $3,000.00 and ordered to pay costs of $1,000.00.

2. The facts were that at about 11.00 p.m. on the 12th May, a young lady got on to a double-decker bus to return home after work. She took a seat on the lower-deck on the offside of the bus next to the window, she was wearing long trousers. There came a time when the Appellant boarded the bus and sat next to the young lady who was by then about to fall asleep. He had a brief case resting on or between his knees. When the young lady's eyes were closed, she felt the Appellant touch her thigh about a palm or hand's length above the knee. She opened her eyes and saw that he was doing so. He was, so she said, rubbing her left leg with his right hand and this lasted for about 5 seconds. The young lady then shouted at the Appellant who in reply said that he was sorry and that he had taken drink. The young lady formed the view that when the Appellant was touching her he was pretending not to know what he was doing. There followed something of an uproar involving other passengers on the bus and a great deal of shouting. One of the passengers called the police on his mobile telephone.

3. When the police arrived, the Appellant was asked about the matter and he told the police officer, in effect, that he had not assaulted the lady, let alone assaulted her indecently, and that when he got on to the bus, he had fallen asleep and was only awoken by her shouting at him.

4. The Appellant who was then aged 36, married with children and of good character, gave evidence in his defence. In effect, he repeated what he had told the police officer on the day of the incident; that if he had touched the young lady, he had done so by accident. He also said (and this was confirmed by the bus driver who gave evidence for the Appellant) that after the uproar, he had approached the driver and asked him to drive to the police station, and that this was before the passenger had called the police on his mobile telephone. Another witness who gave evidence for the Appellant told the Learned Magistrate that she could not believe that the Appellant would commit the offence of indecent assault because, as she put it, his character was not like that.

5. In his oral reasons for verdict delivered in court at the time that the magistrate convicted the Appellant he said, among other things:- "on the evidence of PW1, I was satisfied that her account of what had happened was the correct account. I found that the touching as she described had been intentional and, because of its location it was indecent".

6. In his Statement of Findings, the Magistrate says, inter alia, that the prosecution's case was made out on the young lady's evidence. He warned himself of the danger of convicting the Appellant in the absence of corroboration and he considered the fact of the Appellant's good character relevant both as to credibility and as to propensity. He did not accept that the young lady was prone to exaggeration in her evidence or that she had made false assumptions. The Magistrate concluded his Statement of Findings by saying:

"The rubbing of PW1's thigh as described by her by the Appellant's hand could only have been a deliberate act, as such it evidenced an assault which was indecent in character. The deliberate nature of the act also clearly evidenced that it was an intentional act of indecent assault."

7. In his perfected grounds of appeal, Mr. Grounds, counsel for the Appellant argues firstly that the conviction was unsafe and unsatisfactory, and secondly, that the Learned Magistrate erred in law and wrongly found on PW1's testimony that an indecent assault had been committed.

8. As to the learned magistrates final conclusion as quoted above, Mr. Grounds sought to say that that was by way of being a circular argument and ignored the likelihood that if the act was indeed deliberate it was no more than an act preliminary to an indecent assault.

9. There are numerous particulars to the first of the general grounds of appeal including the following:-

1. The Learned Magistrate wrongly allowed the court prosecutor to lead PW1 on crucial areas of evidence, having wrongly overruled an objection to a leading question.

One of the leading questions which related to the young lady looking at the Appellant's face lead directly to a finding of falsehood on the part of the Appellant as follows:

"However, I found (the Appellant's) evidence that he had fallen asleep and only awakened to see PW1 shouting at him to be a falsehood. When PW1 looked immediately after touching, he had his eyes opened."

2. The Learned Magistrate failed to evaluate the evidence in a proper or satisfactory manner. In particular, he failed to properly or satisfactorily evaluate:

(a) Whether a touching of PW1's leg on the front and at a palm's length above the knee could in fact amount to an indecent assault.

(b) Whether if the touching was not actually indecent, there was any assault at all.

In this context, reference was made by Mr. Grounds to R. v. Lam Chi Chee (Magistracy Appeal No. 783 of 1992) and to the R. v. Yeung Siu Hung (Magistracy Appeal No. 143 of 1993).

(c) Whether, if the touching was not indecent, PW1 actually had exaggerated her evidence and grossly over-reacted to that which she said had occurred.

(d) The significance of the evidence of PW2 that the shouting following the alleged indecent assault lasted for 15 minutes.

(e) The significance of the evidence that it was the Appellant who first decided or determined to call the police.

(f) Whether the evidence of PW2 and DW2 established or tended to establish that PW1 had exaggerated and all over-reacted. (see also (d) above)

(g) PW1's evidence to the effect that since she had not given consent "so that is indecent assault" and that she did not immediately accuse the Appellant of indecent assault but swore at him and said that she could not remember whether she was in a very bad mood that day. All of which matters were highly relevant to the issues of

(1) exaggeration

(2) overreaction

(3) an innocent touching turning into an allegation of indecent assault

and (4) PW1's honesty and reliability.

(h) That the "rubbing" only lasted approximately 5 seconds and

(i) That the Appellant's defence was immediately disclosed to PW1 at Castle Peak Police Station.

3. The Learned Magistrate's apparent assumption that because he had found PW1 to be honest and reliable, it naturally followed that the Appellant was guilty and that her description of the assault was not consistent in any way with an accidental or unintentional touching by a person who was dozing or was sleepy.

4. There was a danger that the Learned Magistrate wrongly accepted PW1's crucial assumptions, namely

(a) that this was an indecent assault (albeit that the reason that she gave as to why she considered it to be so was because she had not given her consent).

and (b) that the Appellant was pretending not to know what he had done. And that the Magistrate did this without properly analysing those assumptions. [In this context Mr. Grounds says that it is to be noted that PW1 thought that the Appellant was going to alight from the bus when he got up, whereas in fact the Appellant went to instruct the driver of the bus to drive to the police station.]

5. The Learned Magistrate gave the appearance he had pre-judged the issue so that and/or the vital issues of the Appellant's honesty, integrity, his decency with women in general, tiredness and drink were not given proper weight and that the whole case was effectively determined on the issue of PW1's honesty and reliability.

6. By reason of these said matters (or any of them), there is a lurking doubt concerning the Appellant's guilt and/or the Appellant has been dealt a gross injustice by virtue of his conviction. [Mr. Grounds referred here to the case of the R. v. Sean Cooper 1969 Criminal Appeal Reports at p. 53.]

10. In his response to these submissions, Mr. Lee, counsel for the Respondent, submits that the Learned Magistrate in his Statement of Findings has sufficiently analysed each and every point taken by the Appellant. As to the matter of leading questions, Mr. Lee says that that was a matter for defence counsel at the trial before the Magistrate and for him to take further objection to such questions if he thought it appropriate.

11. It seems to me that there is substance to a number of Mr. Grounds' complaints, but especially to those particulars numbered 2, 4 and 5 above. As to particular No. 2, I bear in mind the case of the R. v. Yeung Sui Hung and in particular that part of the judgment of Jones J. at p. 3 where he says:

"Whilst the Magistrate accepted the evidence of PW1 that it was her opinion that the act constituted an indecent assault nevertheless, he went on as he was duty bound to consider independently whether that assault was an indecent assault."

12. Also the final paragraph of that judgment which reads as follows:

"Having accepted the evidence of PW1, that the Appellant did deliberately touch her, the question that the Magistrate had to decide was whether the circumstances were capable of being considered by right-minded persons as indecent and that the Appellant intended to commit such an assault."

13. As to the assumptions referred to in particular No. 4 above, the Learned Magistrate dealt in his Statement of Findings with only one of those assumptions, that being the assumption by PW1 that the Appellant when he got up was intending to leave the bus. As to that matter, the Magistrate said that he did not find that this wrong assumption in any way affected the credibility or reliability of PW1's testimony and he added that besides, he found her to be a credible and reliable witness.

14. What the Magistrate did not deal with in his Statement of Findings were two further assumptions made by PW1, the first of which was that the Appellant had indecently assaulted her because she had not given her consent and because she had not given her consent, therefore, it had been an indecent assault. And secondly, the assumption made by her that at the time that she was assaulted or touched by the Appellant, the Appellant was pretending not to know what he was doing or what he had done.

15. As to the particular No. 5 of the first general ground of appeal, this too has caused me some concern. After the Appellant had completed giving his evidence before the Magistrate, counsel for him indicated that the defence would then like to call three defence witnesses to which the Magistrate replied:

"Right, none of these people witnessed the incident of course."

16. There then followed some discussion between the Magistrate and counsel for the Appellant, at the end of which the Magistrate said:

"Well, I thought you were calling a witness to establish whether a walk took place or not. Well, all right, let's call these witnesses and see whether they advance the case at all."

17. It was that approach by the Learned Magistrate that has given Mr. Grounds' cause for concern and has led to the suggestion that the Magistrate had, at least on the face of it, already made up his mind about the case. In fact the next three witnesses to give evidence for the Defendant were of vital importance to the Appellant's case: the first one (that was DW2) was the bus driver concerned; the second witness (that was DW3) gave evidence about the state of the Appellant prior to this incident: the third witness called for the Defendant (DW4), was a lady who spoke highly as to the character of the Appellant and in particular said among other things that:

"Because of the work and common contact, I find him honest and there are many girls in our company but he never tease them."

18. It is undoubtedly the case that the Learned Magistrate was thorough in his Statement of Findings. He had the advantage of seeing and hearing the witnesses in the trial before him and I have not had such an advantage.

19. Nevertheless, in the light of Mr. Ground's submissions before me during the course of this appeal, and his particular references to parts of the transcript in support of his argument there is indeed a lurking doubt in my mind which makes me wonder whether an injustice has been done.

20. By reason of all that has been said to me during the course of this appeal, it is my view that the conviction of this Appellant is unsafe and unsatisfactory. Accordingly, I allow the appeal and I set aside the conviction, I quash the fine and the order for costs.

Representation:

Mr. Robert K. Y. Lee, SGC for D.P.P.

Mr. Christopher Grounds and Mr. Cheung Kin Bor, Michael, instructed by Anthony Kwan Co.