HKSAR v. Taylor, Robin Cameron

HCMA000277/2004

HCMA277/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.277 OF 2004

(ON APPEAL FROM TWCC 3461 OF 2003)

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Coram: Deputy High Court Judge Fung in Court

Dates of Hearing: 28, 29 July and 2 August 2004

Date of Delivery of Judgment: 12 August 2004

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J U D G M E N T

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1.The appellant Robin Cameron Taylor was convicted after trial before a magistrate of indecent assault. He was fined $1,000. He now appeals against the conviction.

THE PROSECUTION CASE

2.The appellant was a captain of Cathay Pacific Airways. On 14 September 2002, he was flying as a passenger in the First Class cabin on flight CX-251.

3.Ms Lynda Tai (PW1) was a stewardess serving the First Class cabin. At 2:10 a.m., the cabin lights were turned off and the passengers were going to sleep. The appellant went to PW1 and asked for a big bottle of mineral water. PW1 said a small bottle was already placed at his seat. The appellant did not return to his seat. He held PW1's arm tightly with his hands said uttered words like "you so nice". PW1 pushed the appellant away immediately and said : "Ok, ok" ("the 1st stage").

4.PW1 entered the galley. The appellant followed PW1 into the galley. Ms Elisa Lee (PW3), a stewardess was inside the galley. The appellant stayed in the galley despite suggestions that he should return to his seat. He chatted with PW1 and PW3. At one stage the appellant held PW3 with both arms for a second. Then, he walked up to between PW1 and PW3 and said to PW1 : "It's your turn", and he put his arm around them on shoulder level. Both PW1 and PW3 walked away ("the 2nd stage").

5.Shortly after, PW3 left the galley, leaving only the appellant and PW1. By then, the appellant had been at the galley for 30-45 minutes. In order to show she was busy, PW1 faced the duvet compartment, raised her left hand and pressed on the compartment door and put her right hand to the hand-lock (knob) of the door in order to turn the hand knob and open the door without making noises.

6.While turning the hand-lock, PW1 felt something in contact with the flesh of her left waist under her blouse. PW1's blouse was not tucked in but placed outside her skirt. She felt 'a light touch' of hand with hand/fingers moving upward. The touch lasted about one to two seconds. PW1 immediately lowered her hand. She saw the appellant's right hand was under her blouse and the appellant was standing on her side very close to her. PW1 immediately pushed him away. Being frightened and having taken a big step back, PW1 pointed at the appellant and said in English : "I am not the type of girl that you expect. If you ever do it again, my husband will kill you." The appellant did not apologize and stood there, griming as if nothing had happened ("the 3rd stage").

7.PW3 came out of the toilet facing the galley. PW1 asked PW3 to look for Miss Maria Chan, the in-flight service manageress (PW2). PW2 led the appellant back to his seat. Later, she asked PW1 what happened. PW1 said the appellant touched her. He inserted his hand in her waist. PW1 also told PW3 the appellant tried to touch but she dodged.

FINDINGS OF THE MAGISTRATE

8.Only the 3rd stage was the subject matter of the charge of indecent assault.

9.The Magistrate made the following finding of facts:

"22. I found the evidence given by PW1 in paragraph 5(a) to (f) above as facts. The Appellant inserted his right hand under the blouse of PW1 with his hand/finger(s) moving upwards and touching the flesh of her left side upper waist near the position of her bra but he had not touched the position of the bra; it was at that very moment that PW1 stopped the Appellant."

GROUNDS OF APPEAL

10.Mr Blanchflower SC, for the appellant, indicated that he did not seek to argue whether the 3rd stage amounted to an indecent assault. The issue was that it did not take place.

(1) Ground 2

11.In Ground 2 of the Perfected Grounds of Appeal against conviction, Mr Blanchflower stated that the learned Magistrate erred in failing to give himself a special warning before accepting PW1's evidence without supporting evidence.

12.Mr Blanchflower accepted that section 4B of the Evidence Ordinance (Cap.8) abrogated the requirement for a court to warn the jury or himself of the danger of convicting on the uncorroborated evidence of the complainant in a sexual case. However, he referred to R. v. Makanjuola [1995] 3 All ER 730 where the English Court of Appeal discussed the similar provision of section 32 of the Criminal Justice and Public Order Act 1994 (UK), and the circumstances, as a matter of discretion, a judge should in summing up to a jury urge caution in regard to a particular witness and the terms in which that should be done.

13.Mr Blanchflower said it has been demonstrated that PW1's evidence should be approached with caution : she had made numerous complaints of chauvinism and arrogance against expatriate captains of Cathay Pacific; she had been consulting a psychologist for some time before the present incident because of grievance relating to those prior complaints, as well as after the present incident; and she was minded to institute civil proceedings against the appellant. Mr Blanchflower referred to the closing submission of the prosecutor where he invited the Magistrate to warn himself in view of lack of corroboration.

14.Mr Zervos SC, for the respondent, submitted that the Magistrate was well aware of the special circumstances and had reminded himself of the possibility of PW1 casting any slur on the appellant, or having any prejudice against him, or exaggerating the incident, or twisting facts, or framing him, or putting up her version of events out of mere imagination or over-reaction or vented frustration as submitted by defence solicitor. He has also considered the possibility of an accident, bearing in mind total denial by the defence.

15.Mr Blanchflower replied that was not enough. A warning in much stronger term of the danger to convict was required.

(2) Grounds 1 and 3

16.In Ground 1, Mr Blanchflower stated that the learned Magistrate erred in finding PW1 to be an honest and reliable witness. Further, Ground 3 stated that the learned Magistrate erred in failing to consider or consider incorrectly, evidence which contradicted the evidence of PW1, which seriously undermined her credibility. Mr Blanchflower referred, inter alia, the following points.

(a) The opening of the door

17.Mr Blanchflower submitted that in-chief PW1 originally said that she opened the duvet compartment door, not just turned the hand-lock. She used the word "opened" several times, and once she said she turned, and immediately said what she meant was she opened the door with her hand. During the early part of cross-examination, PW1 made a demonstration that the door opened towards her side. It was only when she was cross-examined and realized that it was impossible for the appellant to touch her if the door were opening towards her then she said she only turned the hand-lock and the door was not yet opened.

18.The Magistrate asked PW1 to demonstrate again. PW1 did so and said at that time, she went to open the door, but the door had not been opened yet, but was turned. It was put to PW1 that if the door were opened, the appellant could not do it. PW1 said yes, if she opened the door, but that was not the case at the time.

19.In the Statement of Findings, the Magistrate stated this :

"19(2) I agree that if the compartment had already been opened, it would be very likely that the alleged assault could not occur.

(3) From the totality of the evidence of PW1, it is crystal clear that what PW1 meant by her use of 'opened the door' was she was in the process of opening the 'duvet compartment' door by turning the compartment door hand-lock. It was not the case that the allegation of the indecent assault took place after PW1 had opened the door of the compartment. PW1 had clarified this point. She clearly said that she had not yet opened the door."

20.Mr Blanchflower submitted that the Magistrate failed to deal with the inconsistency and change of evidence of PW1.

21.Mr Zervos submitted that at all times in PW1's evidence as well as the demonstration, PW1 indicated that her left palm was pressing against the upper part of the door while her right hand was opening the knob, which meant the door was not yet opened. It was never put to PW1 that her left palm was not pressing on the door. PW1 explained that she had to press on the door while opening it in order that the opening latch would not make a noise and disturb the passengers in sleep. In the demonstration, PW1 merely showed how the door would come towards her when opened. PW1 said if the door were opening, she would put her left hand down, but she said that was not the case. The Magistrate recorded his observation that PW1's left palm was pressing on the door. Mr Zervos said when PW1 said she turned the knob and added what she meant as opened the door, PW1 was equating the turning the knob with opening the door. When PW1 emphatically said later that she turned the knob, she was not changing her evidence, but to retort to the cross-examination that she had opened the door. Hence, there was no inconsistency and the Magistrate's findings were correct.

(b) Discrepancy in sequence of event as according to PW1 and PW3

22.Mr Blanchflower submitted that it appeared from the transcript that PW1 said she asked PW3 to call PW2 after the indecent assault, but however, PW3's evidence was it was before the incident.

23.PW1's evidence was that after the indecent assault, she brushed the appellant's hand away, took a big step backward, and the appellant stood there. They stared at each other. Then PW3 came out of the toilet, and PW1 told PW3 to get PW2 as quick as possible.

24.However, PW3's said that before she went to the toilet but was proceeding to the rest bunk, PW1 asked her to get PW2 to help with a drunken First Class passenger. While giving evidence, PW3 took the initiative to correct the Korean interpreter and said PW1 made the request before she went to the toilet.

25.Mr Blanchflower submitted that there were inconsistencies between PW1 and PW3 in that PW1's evidence was that her request to PW3 to get PW2 was prompted by the indecent assault and after PW3 came out of the toilet, but PW3's evidence was that PW1's request was before she went to the toilet.

26.Mr Blanchflower submitted that not only did the Magistrate not resolve the inconsistencies and found both PW1 and PW3 credible, he made an error when reciting the evidence :

"18(1) The Defence Solicitor submitted to the effect that the discrepancy between the evidence of PW1 and PW3 as to when PW1 asked PW3 to look for PW2 for help after the assault was 'also fatal to prosecution'. PW3's evidence was that PW1 asked PW3 to look for PW2 after PW3 came out from the toilet. The Defence Solicitor took that PW1's evidence was the other way round, i.e. before PW3 went into the toilet, i.e. before the assault, and that was 'fatal to prosecution'.

"(2) There was no discrepancy in this part of evidence. In fact, both PW1 and PW3's evidence was that it was after PW3 had come out from the toilet that PW1 asked PW3 to look for PW2. Even if there were such a discrepancy in evidence (which is not the case here), the court said that it would not be fatal to prosecution because witness could forget some minute details and unimportant sequence of event. ..."

27.Mr Blachflower submitted that the Magistrate was wrong in finding that there was no discrepancy as there actually is, and it was not a matter of minute detail as allegedly, PW1's request was prompted by the indecent assault.

28.Mr Zervos submitted that there was no discrepancy because the fact was PW3 had gone to fetch PW2 on two occasions, once before she went to the toilet, once after she came out.

29.PW1 said when PW3 came out of the toilet, PW1 uttered in Chinese "Ma-li-ah", the transliteration of Maria. PW3 nodded. Within one to two minutes, PW2 came to the galley.

30.PW3 said when she came out of the toilet, PW1 said in Chinese "Ah Tse". She understood it to mean PW2 because earlier, PW1 had asked her to call PW2 to help with the drunken First Class passenger. She went to PW2 and delivered the message of the drunken First Class passenger in the galley.

31.Hence, Mr Zervos submitted that the Magistrate was correct in finding that there was no discrepancy.

32.In reply, Mr Blanchfower submitted that be that as it may, the Magistrate failed to deal with that PW1 only mentioned one request for PW3 to fetch PW2 after the incident.

(c) Relative positions of PW1 and the appellant

33.Mr Blanchflower submitted that there was discrepancy between the relative positions of PW1 and the appellant after the alleged assault, and the Magistrate did not deal with it in his Statement of Findings.

34.PW1's evidence was that after the indecent assault, she took a big step back and the appellant stood there. She was standing at the side of the galley and the appellant was in the galley. Then PW3 came out of the toilet.

35.PW3's said as far as she could remember, when she opened door, she saw PW1 and the appellant face to face in front of the toilet. PW1 was in front of the duvet compartment and the appellant was on the opposite side of the galley, around the oven. The distance as demonstrated was agreed by both parties to be nine feet.

36.Mr Zervos submitted that the evidence of PW1 and PW3 were consistent in that there was a considerable distance between PW1 and the appellant. It is not clear whether they were speaking about the same point in time.

(d) Inconsistencies of the recent complaint by PW1 to PW2

37.PW1 said that after the indecent assault, she told PW2 that when she was opening the compartment door, the appellant inserted his hand in [sic] and she demonstrated it to PW2.

38.PW2 said PW1 told her that the appellant touched her. PW2 asked how he touched her and PW1 said the appellant inserted his hand in her waist. PW2 asked PW1 did the appellant come into contact with her, PW1 said she dodged.

39.PW2 said when she gave evidence to the disciplinary panel 18 months ago, she said she was quite shocked by what was in PW1's complaint letter dated 23 September and that the incident mentioned in the letter was different from the things she knew while she was on the flight. PW2 told both the panel and the police that PW1 told her that the appellant had tried to put his hand in her blouse but he had not done so because she immediately moved away. PW2 said she had told the panel and the police the truth.

40.In re-examination, PW2 was asked according to what PW1 had told her, whether PW1 actually touched by the defendant or not, or the appellant just tried to touch. PW2 said the appellant tried to touch but PW1 dodged.

41.The Magistrate dealt with this point as follows:

"17(4) ... After careful consideration, bearing in mind PW2's uncertain and hesitant demeanour and her apparently conflicting and confusing evidence as to the contents of PW1's 'recent' complaint' to her, and also bearing in mind that an indecent assault generally speaking is a rather embarrassing matter for a victim to relate in explicit and specific words, I give no weight to PW2's evidence concerning the contents of PW1's 'recent complaint' to her while accepting without a doubt that PW2 did receive a 'recent complaint' about this incident briefly from PW1 in the galley.

(5) The court is well aware that 'recent complaint' is not evidence of the truth of what is complained of. It only goes to show the complainant's consistency. Also, the evidence of recent complaint must come from the recipient of the complaint and not the complainant himself/herself."

42.Mr Blanchflower submitted that even if there were inconsistencies in PW2's evidence as to what PW1 had allegedly told her, the inconsistencies should be attributed to PW1 in giving different accounts to PW2. He submitted that the Magistrate erred in failing to consider apart from whether a 'recent complaint' was made and its contents, the fact was that PW1 apparently told PW2 that she had not been touched. PW2's evidence on this point could not be ignored.

43.Mr Zervos supported the Magistrate in noting a recent complaint of touching, but rejecting the contents as related by PW2. First, when PW2 was first asked about the matter, PW2 said now she could not recall what PW1 had told her. Further, there was no inconsistency in that PW2 said PW1 did tell her that the appellant touched PW1 when she raised her arm(s) in opening the compartment door. While PW1 also said she dodged, that should mean after she was touched.

44.Mr Zervos pointed out that when PW2 was cross-examined about PW1's complaint letter, she said she was shocked not because it was different from what she had been told by PW1, but because the incident mentioned in the letter was different from the things she knew while she was on the flight.

(e) Whether PW1's bra was touched

45.Mr Blanchflower submitted that up until the trial, PW1's complaint was her left waist was touched by the appellant's right hand. For the first time at trial, PW1 exaggerated that her bra was also touched.

46.In-chief, PW1 said the appellant touched her bra. She said she felt the left hand side of her bra was touched. Mr Blanchflower said this important aspect was not mentioned in PW1's complaint letters to Cathay Pacific dated 23 September 2003 and 17 October 2002, nor her witness statement to the police dated 21 November 2002. During cross-examination, PW1 said she had told the police about the touching of the bra but it was not recorded, and added that she had demonstrated to the police. In re-examination, PW1 made a demonstration which the Magistrate recorded in his Statement of Findings. PW1 also said her strongest feeling was that her flesh was touched, and the appellant's hand was placed at the position where he could touch her bra. The distance between her skirt and her bra was four to five inches. But afterwards, she said the appellant touched her bra for one to two seconds, and it was the same period of time when the appellant was touching her flesh.

47.The Magistrate's finding on this point is this :

"16(2) PW1 testified that the hand/fingers of the appellant touched her bra. There was no reference to the Appellant touching her bra in her witness statement and in her complaint letters. However, she had made a demonstration in court as to where she felt she was touched. She, in that demonstration, clearly did not point at the position of her bra being touched. Such demonstration as seen by me and by both the Prosecutor and the Defence Solicitor and as recorded was this: 'The witness is putting up his (her) right hand, across the front part of his (her) body with his (her) hand touching the left upper waist, near her left breast'.

(3) I did not consider that PW1 made an exaggeration on this important point. Rather, PW1 has by her demonstration clarified the truth of the matter. The truth is that the Appellant had touched the flesh of the left upper waist of PW1, near her left bra, but had not touched the bra. One has to bear in mind that PW1 did not actually see which part of her body was being touched in such a short period of time of one or two seconds; she only felt that touching."

48.Mr Blanchflower submitted that PW1 maintained that her bra was touched in re-examination. The Magistrate could not have found the truth in view of such inconsistencies and exaggeration.

49.Mr Zervos submitted that what PW1 meant by the appellant touched her bra was that the appellant was in a position to touch her bra, or that generally speaking, her "bra area" was touched, though not the bra itself. By her demonstration, PW1 has clarified the exact position.

(3) Ground 4

50.Mr Blanchflower submitted that the Magistrate erred in taking into account to a significant extent PW1's demeanour in assessing her credibility. The Magistrate said in paragraph 12 of his Statement of Findings :

".... Faced with such strenuous cross-examination and criticisms, PW1 appeared calm and composed. ...."

51.Mr Blanchflower referred to R. v. Ng Wing-ming [1995] 1 HKCLR 65 where Litton JA (as he then was) said that demeanour was a notorious guide for truth and could only be a point of last resort where inherent probabilities in most cases would be the first point of reference.

52.Mr Zervos submitted that the Magistrate did remind him of the subsidiary role of demeanour in assessing credibility :

"I have the opportunity to see each witness give his/her evidence and I bear in mind that I should not rely too much on demeanour."

(4) Ground 5

53.Mr Blanchflower stated that the learned Magistrate erred in rejecting the appellant's evidence about his attempt to perform the alleged assault in the manner described by PW1 and finding that it was impossible, without asking the appellant to give a demonstration, and in the absence of any cross-examination about this part of his evidence.

54.In his evidence, the appellant said that he had tried to re-enact the alleged assault with his wife, of height and physique similar to PW1, acting as PW1 trying to open the duvet compartment door. The appellant said that it was impossible for him to touch his wife's left waist without being obstructed by her right hand.

55.The Magistrate's finding on this point is as follows :

"20(1) The Defendant further submitted that even if the door had not yet been opened, it would have been extremely difficult if not impossible for the Defendant to commit the alleged indecent assault.

(2) In this regard, I have noted that the Defendant testified that he had made his own demonstration with his wife and such demonstration showed that it was impossible for the commission of the alleged indecent assault. The facts of the case here as I find are that when the Defendant touched PW1, the compartment door had not yet been opened.

(3) I believe the evidence of PW1 that she was touched under her blouse in the way as testified to by her. Her blouse which was her company uniform was not tucked in but placed outside of her skirt. (Exhibit P3 depicts the type of blouse which PW1 wore at the material time, and according to PW1, hers was more 'roomy' than the one depicted). I give no weight to the evidence of the Defendant about his alleged demonstration with his wife."

56.Mr Blanchflower submitted that the appellant was not cross-examined on his demonstration with his wife. Further, the Magistrate did not ask the appellant to give this demonstration, much unlike his invitation to PW1 to make demonstrations. The denial of the opportunity for the appellant to make a demonstration amounted to breach of natural justice. Further, whether PW1's blouse was tucked in or roomy had no bearing to the point that the appellant's hand would have been obstructed by PW1's hand.

57.Mr Blanchflower referred to Browne v. Dunn (1894) 6 R 67, 76 per Lord Halsbury :

"To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."

And Browne v. Dunn was applied by the Court of Final Appeal in HKSAR v. Lo Chun Nam [2001] 1 HKLRD 180, 185.

58.Mr Zervos drew the distinction that while PW1 was giving evidence and making a demonstration from first hand observation, the appellant's alleged demonstration was only an re-enactment of the alleged assault according to the case of PW1, and had no probative value. At any rate, the appellant was legally represented at trial, and had every opportunity to present a re-enactment in court.

CONSIDERATION OF THE APPEAL

59.In Makanjuola, Lord Taylor CJ summarized the position after the abrogation of the mandatory warning in a sexual case as follows :

"(1) Section 32(1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant to a sexual offence simply because a witness falls into one of those categories.

(2) It is a matter for the judge's discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence.

(3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.

(4) If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.

(5) Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.

(6) Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rules.

(7) It follows that we emphatically disagree with the tentative submission made by the editors of Archbold in the passage at para 16-36 quoted above. Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated.

(8) Finally, this court will be disinclined to interfere with a trial judge's exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223)."

60.The Magistrate has cautioned himself in assessing the evidence of PW1 in specific terms tailored for the circumstances of the case and I find that to be sufficient. He should not be haunted by the spectre of the whole fluid regime of the old corroboration rules.

61.As to the point on demeanour, it is clear from the Statement of Findings that the Magistrate had considered inherent probabilities of the case of PW1, and observation of her demeanour played a minor part in the entire process.

62.As to rejection of the appellant's case, the appellant's lawyer could have presented the demonstration and he was not denied of any opportunity to do it and there is no breach of natural justice. As to the lack of cross-examination, it is abundantly clear to the appellant that the prosecution case as according to PW1 was that she was suddenly touched on her left waist while she was reaching her right arm out to the compartment door. In no way that the appellant could have thought his case of impossibility was accepted by the prosecution.

63.I now come to the alleged errors made by the Magistrate in appreciating and assessing the evidence.

64.Mr Zervos reminded me that where an important aspect of the case is how the witness has given the evidence and made a demonstration, the Magistrate who has heard and seen the witness is placed in a better position than an appellate court to make the assessment. I entirely agree. In R. v. Lo Yim-kai [1966] HKLR 414, 412, Blair-Kerr J observed that "(The) record of proceedings can never reproduce the atmosphere of a trial". That was before digital recording and full transcript. And even today, the same view is expressed by Bokhary PJ in Poon Hau Kei v. Hsin Chong Construction Company Limited Taylor Woodrow International Limited Joint Venture FACV 18 of 2003.

65.As to finding of facts by a magistrate, I note that in HKSAR v. Cheung Ho Ying [1993] 3 HKLRD 45, Woo J cited R. v. Hui Kee Fung (Mag. App. No.196 of 1994 unreported) per Keith J :

"... Secondly, appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts."

His Lordship further cited R. v. Yip Kam Lam (Mag. App. No.731 of 1996) per Stock J :

"... Under our system of law, the Appeal Court examines the record and decides whether the magistrate has made any obvious error as to law or whether he has come to the decision which was irrational in the light of the evidence that was given."

66.On the opening of the door point, PW1's evidence was that all along her left palm was pressing on the duvet compartment door, and she would have taken it off if the door were actually opened. That must be so because one cannot both press on the door and pull it if the door were to open. Hence, the Magistrate was entitled to find that the door was not yet opened.

67.As to the sequence of event point, I agree with Mr Zervos that both PW1 and PW3 mentioned that PW1 said one word, be it "Ma-li-ah" or "Ah Tse" as referring to PW2, and PW2 appeared within a short time. Hence, the Magistrate was correct to find that there was no discrepancy as to whether PW2 was called after the alleged incident. As to the point that the Magistrate omitted to deal with the point that PW1 only mentioned the request for PW3 to call PW2 before the incident, it was not the point made by defence solicitor at trial, and in any case it is immaterial.

68.As to the relative positions of PW1 and the appellant, PW1 and PW3 were observing from different positions, and it is not surprising that different people observing non-stationary object from different positions could give different descriptions. I do not consider this point material.

69.The bra point does cause me some concern. The alleged touching is very brief in time, only a few seconds. Mr Blanchflower reminded me that allegation of indecent assault is easy to make and difficult to refute. Whatever feeling to PW1, there is definitely a difference as to whether one's waist or bra being touched. PW1 alleged for the first time at trial that her bra was touched, but did not positively make a demonstration touching the bra, she nevertheless maintained that her bra was touched for one to two seconds at the end of the day. The Magistrate found that PW1 had not exaggerated her evidence, and accepted her evidence of the touching of the waist, but ignored her claim of the touching of the bra. I bear in mind that the Magistrate as the tribunal of facts is entitled to accept part of the evidence and reject others. However, in the light of the nature and the brevity of the complaint, the discrepancy is quite substantial and one may wonder whether PW1 has tended to exaggerate the situation at trial.

70.There is also some concern with the recent complaint point. Mr Zervos submitted there was no inconsistency in PW1's complaint in that PW1 was touched and then she dodged. However, PW2 said PW1 answered that she dodged in relation to PW2's question whether the appellant had come into contact with her. No doubt the Magistrate was entitled to find PW2 hesitant, as in the beginning PW2 did say she could not recall what PW1 had told her, although she later confirmed what was recorded in her police statement as correct. But bearing in mind also the bra point, one may also wonder whether there was any exaggeration by PW1.

71.Mr Zervos submitted that the evidence of PW2 and PW3 confirmed that something had happened : PW1 had called for assistance, and she was upset when PW2 saw her. However, this support did not point exactly to what had happened.

72.Granted that the appellant had admittedly touched PW1 and PW3 in the 1st and 2nd stages, he had brought suspicion upon himself. However, at the end of the day, one must say there is a lurking doubt on the 3rd stage by reason of the concerns about the bra and the recent complaint. Hence, I shall allow the appeal and set aside the conviction.

73.In view of this conclusion, and without disrespect to Mr Blanchflower, I shall not deal with the other points raised. I thank Mr Blanchflower and Mr Zervos for their helpful submissions.

Representation:

Mr K. Zervos, SC, SADPP of Department for Justice, for the Respondent

Mr M. Blanchflower, SC instructed by Messrs Haldanes, for the Appellant