HKSAR v. Au Cheswin

HCMA000164/2003

HCMA164/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.164 OF 2003

(ON APPEAL FROM STCC 1197 OF 2002)

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Coram: Hon Gall J in Court

Date of Hearing: 10 March 2004

Date of Judgment: 10 March 2004

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J U D G M E N T

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1.The appellant was convicted on 22 November 2002 of one count of "indecent assault" and sentenced on 8 January 2003 to a fine of a sum of $4,000. The magistrate was Madam L.K. Loh.

2.The facts relied upon by the magistrate were that in the early hours of 7 September 2002, the appellant was with Ms Chan Hang Yin ("Ms Chan") and some of her friends at a karaoke lounge. When Ms Chan and a friend left, the appellant left with them to send them home. The appellant, the magistrate found, forced his way into the taxi with Ms Chan and her friend. She found that Ms Chan again asked the appellant to leave but he persisted and not wanting to disclose where she lived, she went to a 7-Eleven Store, having left the taxi, to buy a drink.

3.It was the evidence of Ms Chan that whilst she waited to pay, the appellant placed his hands under her arms and around her rib cage and squeezed her breasts hard. She said in evidence that she shouted at him and pushed him away. It was her evidence that she and her friend then took the lift up to her building with the appellant still following them. They took the lift down again, telling him to leave, and at that point Ms Chan called the police and reported that she had been assaulted.

4.It was accepted by the prosecution that Ms Chan was, to some extent, affected by liquor at the time but not so drunk as to be unsteady on her feet. The cashier at the shop saw the incident and said he saw the appellant holding Ms Chan with both hands across her chest.

5.The magistrate found that Ms Chan was clear, balanced and unshaken in her evidence and she accepted her evidence.

6.The incident was captured on close circuit television and stills from the videotape were printed and the tape and photographs were presented in evidence.

7.The appellant gave evidence and said that when Ms Chan was paying he went forward to see what was going on, and his stomach touched her back. He believed she was about to fall so reached out to steady her, and his wrists came into contact with her side ribs. He denied touching either of her breasts.

8.The magistrate considered the evidence available from the photographs of the videotape. She found this :

" It is not clear from some shots of the video or the photographs whether the appellant's hands are on her breasts or in a fist, and although these photos could be consistent with the defence case, they are also consistent with the prosecution's case."

This passage indicates that the magistrate did not find the photographs to be of value in either determining whether the evidence given by Ms Chan was truthful or the evidence given by the appellant was truthful. She, in effect, was saying that the evidence of the photographs was given no weight. She specifically disbelieved the evidence of the appellant.

9.Mr Kwok, for the appellant, in his argument raises two matters. Firstly, he argues that the magistrate was wrong in finding that the photographs were of no value. He says that the photographs ought to be interpreted on the basis that the hands of the appellant were in fists along by the ribcage of Ms Chan and that therefore did not reach her chest and did not therefore constitute an indecent touching.

10.The magistrate considered the evidence of the photographs and was unable to accept it either as evidence that the appellant touched the breasts of Ms Chan or that he did not. She did, however, have the evidence of Ms Chan which she believed that her breasts were squeezed and the evidence of the cashier at the shop who saw the appellant hold Ms Chan with both hands across her chest. There is nothing in the magistrate's evaluation of the facts which leads to me to believe that her assessment of the videotapes or her approach in using them in evidence was in anyway in error.

11.The second matter raised by Mr Kwok is this. The magistrate said at paragraph 15 of her findings :

" The comments that I make about the defence evidence, is not because he had anything to prove, he did not, but it went to weight to be given to evidence. A defendant whose evidence is not believed is in the same position as a defendant who kept silent. The onus is always on the prosecution to prove their case beyond reasonable doubt, and the appellant had nothing to prove whatsoever."

12.It was Mr Kwok's proposition that the magistrate was in error in that in this case that notwithstanding she disbelieved the evidence of the appellant then she ought to still look at that evidence to determine whether there was a doubt in respect of the prosecution case.

13.The magistrate wholly disbelieved the appellant. She was unable to gain any assistance from the photographs and gave that evidence no credit and was saying no more in this passage than a defendant whose evidence is not believed is not to be prejudiced by the fact that his evidence was disbelieved. In finding the charge proved beyond reasonable doubt as she did at the end of her reasons, she was in effect saying that the evidence of the defence could not and might not be true and that she was sure on the prosecution evidence of the facts which led to his guilt.

14.The magistrate has not fallen into error and this appeal against conviction is dismissed.

Representation:

Ms Denise Chan, SGC of the Department of Justice, for HKSAR

Mr Douglas Kwok, instructed by Messrs Victor Chiu, Tsang & Partners, for the Appellant