HKSAR v. Mohammad Azmat, Khan

HCMA000341/2004

HCMA341/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.341 OF 2004

(On Appeal From ESCC 3500 Of 2003)

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Coram: Hon McMahon J in Court

Dates of Hearing: 6, 21 May and 7 June 2004

Date of Judgment: 7 June 2004

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J U D G M E N T

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1.This is an appeal against conviction and sentence. The appellant was convicted after trial of an offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200. He was sentenced to six weeks' imprisonment.

Facts

2.The facts of the case were that in the early hours of the charged date, the complainant and her friend were shopping in a 7-11 store in Wanchai. The appellant was present in the same store. While the complainant was walking down an aisle of the store the appellant rubbed his hand down her lower back and onto her buttocks. The complainant's friend saw the incident.

Appeal against conviction

3.The appellant's ground of appeal against conviction is that there was no sufficient evidence so as to support the magistrate's finding of guilt.

4.There can be no merit in that ground of appeal. The appellant did not give or call evidence. There was therefore only the evidence of the complainant, PW1 and her girlfriend, PW2 before the magistrate. Both were present at the scene. PW1 felt her back and buttocks being touched as she walked past the appellant. She turned around and saw the appellant withdrawing his hand. Her friend PW2 in her evidence said she saw the appellant touch PW1.

5.It was suggested by the appellant in closing submissions made on his behalf to the magistrate that the evidence of PW1 and PW2 was unreliable as there were too many inconsistencies within the evidence of each and as between them.

6.The magistrate said in assessing their evidence :

"I have carefully considered their evidence and indeed reviewed it in the light of those submissions. In my view, some such claimed discrepancies are more perceived than real. Such as may properly be called discrepancies have either been explained by the evidence or are capable of explanation by having regard to the dynamics and actions of the events at the scene and in the following investigation procedures. In any event, they are not of sufficient significance to detract from the impression I have formed of PWs 1 and 2 as witness.

PW2 1 and 2 were impressive witnesses whose evidence I found to be clear, cogent and compelling. I am sure they were doing their best to give honest, accurate accounts to the court. I believed them. ...."

7.The credibility of witnesses and the weight that is attached to a witnesses evidence is very much a matter for the trial court. That court is in the best position to determine what importance to attach to any inconsistencies in a witnesses evidence or between witnesses. It would require in the normal course an obvious and unresolved inconsistency going to a fundamental matter so as to render a magistrate's reliance on a particular witnesses evidence or aspect of a witnesses evidence unreasonable before a conviction could be said to be unsafe.

8.The discrepancies and inconsistencies in the evidence of PW1 and PW2 were not such as to render the finding of the magistrate unreasonable in this regard, and he was entitled to accept their evidence. Accordingly, the complaint of the appellant that his conviction was against the weight of the evidence cannot succeed. The appellant's appeal against conviction is dismissed.

Appeal against sentence

9.So far as his appeal against sentence is concerned, the appellant says the sentence of six weeks' imprisonment imposed upon him was too severe. In particular, he points out that the magistrate had ordered a community service report be provided, that the report was favourable and that in those circumstances, the imposition of an immediate custodial sentence was unfair.

10.The magistrate, in his Reasons for Sentence, says this about his requesting of the report as to the appellant's suitability for community service :

"Noting that was an unlikely outcome, I adjourned the case until 12th January and, at defence counsel's earnest behest, called for a Probation and Community Service report. I was more concerned to gather even further information about the appellant, notwithstanding defence counsel's able and full mitigation submissions, than I was anticipating an eventual sentence of Community Service Order. I believe this was made clear at all times. From the information ready before me, before the report came to hand, there were clear indications the appellant's circumstances were such as to make a Community Service Order sentence inappropriate and unlikely."

11.It is apparent from his own lawyer's comments during the sentencing process that the appellant could not have been expecting that an order as to community service would be made even if the report was favourable. He had been apparently disabused of any such expectations by the magistrate's comments at the time of his requesting the report. It must be said, however, that if the magistrate had formed the view that the appellant's circumstances were such as to make a community service order inappropriate, then it would have been far better not to have requested the report and to have obtained any additional information he needed by other means.

12.In any event, the magistrate declined to make such an order. His reasons for doing so were that the appellant satisfied only one of the six factors in R. v. Brown [1981] 3 Cr.App.(S) 294. On that basis, he was perfectly right not to impose a community service order.

13.The sentence of six weeks' imprisonment, however, was too severe. In A.G. v. Wai Yan Shun [1991 1 HKC 112, the Court of Appeal considered appropriate sentences for cases of indecent assault. It arrived at the following general guidelines concerning cases of indecent assault committed in public places :

".... Guidelines are asked for and, we consider, need to be given but it must be borne in mind that the circumstances of this offence can vary infinitely. In our view, given the prevalence, for a first offence the 'clang of the prison gates' should now be the normal sentencing option. A period of imprisonment between 14 and 28 days, depending on the place in the scale warranted by the facts, would not be interfered with. For a second offence, sentence could well be from two to six months' imprisonment."

Given that the defendant in Wai Yan Shun had pleaded guilty and the level of sentence arrived at by the Court of Appeal, that range of sentence must apply following a plea of guilty.

14.In the present case, the appellant has effectively three prior offences of deception, criminal damage and taking a conveyance without authority. Nevertheless, this is his first offence of indecent assault. I accept that it is in the lowest category of such offences. In my judgment, on the basis of the guidelines in Wai Yan Shun, a starting point of sentence of three weeks' imprisonment was appropriate.

15.There was no material mitigation available to the appellant. Accordingly, I order his present sentence of six weeks' imprisonment be set aside and that it be substituted with a sentence of three weeks' imprisonment.

Representation:

Ms Grace Chan, SGC of Department of Justice, for HKSAR

Appellant in person