HKSAR v. Lee Ki on

HCMA734/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.734 OF 2004

(ON APPEAL FROM KCCC 4209 OF 2004)

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BETWEEN

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Before: Hon Nguyen J in Court

Date of Hearing: 6 October 2004

Date of Judgment: 12 October 2004

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J U D G M E N T

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1.The appellant was convicted on 8 June 2004 by Mr Peter Law sitting in Kowloon City Magistrates’ Court of the offence of indecent assault.  The particulars of the charge are that on 8 July 2003, inside the train compartment from Olympic MTR Station towards Airport Express MTR Kowloon Station, he indecently assaulted another person, a female, Lee Kit Ying.  He now appeals against the conviction.

The prosecution’s case

2.This is how the magistrate summarised the prosecution’s case in his Statement of Findings :

“… At about 8:24 am on the material day, PW1 boarded a MTR train at Tai Wo Hau Station.  She later changed to Tung Chung line at Lai King Station.  The train was quite crowded and PW1 could not get a seat.  Shortly after the train had moved away from Lai King Station, PW1 felt something brushed her buttock over her skirt for a few times (the first touch), she moved forward a bit to avoid that and the contact stopped.  At Olympic Station, some passengers got off and the train became less crowded as before, shortly after the train had moved off to Kowloon Station, PW1 felt similar brushing again for a few times by finger like object on the same part of her body, she moved forward a bit to avoid and it stopped (the second touch).  Shortly afterwards, she was being brushed again for a few times in similar, on the same part of her body (the third touch).  She thought it could be a deliberate act, so took a look towards that part of her body.  She saw a hand, in long sleeve purple colour shirt, brushing on her buttock over her skirt and that hand then immediately withdrew.  She then immediately looked up and saw a man in long sleeves purple colour shirt (the Defendant) standing at a very close distance of about one step away.  The Defendant was the only man there within that reaching distance of her buttock.  PW1 accused the Defendant, he did not make any reply.  PW1 continued to accuse him, but the Defendant still did not make any reply.  A male passenger suggested making a report to the police, the Defendant then gave a reply that he was in a hurry and had to leave.  That passenger assisted PW1 to hold the Defendant until the train arrived at Kowloon Station.”

3.In his findings and conclusion, the magistrate said this :

“            Evidence from PW1 revealed that she had been touched three times on her entirely journey.  Since :

(i)             the subject matter of the charge is the third touch;

(ii)           for the first and the second touch, PW1 could not see who did it and under what circumstances they were done;

(iii)          there was no evidence to show that the Defendant was in any connection with those two touches,

therefore nothing prejudice could be held against the defence in respect of the first and the second touch.  Those evidence, the most, could only be used as a background to show the circumstances that PW1 was so alerted at the material time.”

4.The magistrate then reminded himself that he had to deal with the evidence of the victim in a very cautious manner and he “noticed that allegation of indecent assault, in particular, of this nature and committed under these circumstances was very easy to make, therefore he had to be cautious and considered the possible danger”. 

5.He found PW1 to be an honest and truthful witness and he mentioned that there were discrepancies in her evidence but they did not affect the general credibility of the witness nor cast any doubt in his mind.  He accepted her evidence and attached full weight to it.

6.He said he was satisfied that :

(i)                The incident happened as described by PW1.

(ii)              PW1, at the final stage, saw a hand on her buttock.

(iii)            She was in no mistake on identity or misunderstanding that the hand was the defendant’s.  He was satisfied that it was the defendant’s hand.

7.The magistrate then said that the next issue that he had to decide was the possibility of an accidental touch and he said that taking into account of all the circumstances, he was satisfied it must not be an accident and he was satisfied that it was a deliberate act.

8.Ms Wong, appearing for the appellant, had submitted five grounds of appeal.  However, at the hearing of the appeal, she adopted a very pragmatic and realistic approach and only advanced two grounds of appeal.  For the purposes of the appeal, she was prepared to accept that the magistrate was entitled to accept PW1 as a truthful witness and she was prepared to accept that the person who was identified by PW1 on the train as the person who was standing closest to her was the appellant.  What she submitted to me was simply this : the magistrate had said that the first two touches could not be in any way be connected to the appellant and that evidence was adduced simply to show the background of what happened immediately prior to the victim being indecently assaulted.  However she submits that the victim must have suspected that it was the same person who touched her on all three occasions, which was why when she was touched the third time she thought it was a deliberate act and took a look at her back to see who was doing it.  She submits that this evidence was prejudicial to the appellant and this evidence must have affected the way the magistrate assessed PW1’s credibility. 

9.I cannot agree with that submission.  Whatever PW1’s suspicions about who had touched her on the first two occasions, the fact was when she was touched a third time she decided that she had had enough, which was why she turned around to see what was happening and she saw a hand on her right buttock which immediately withdrew when she turned her back.  She then looked at the person who had just withdrawn his/her hand and discovered that it was the appellant.  She was convinced that the appellant must have been that person who had touched her on the third occasion because he was the person who was closest to her and he was the only person who was within reaching distance of her buttock.  That view that she took of the appellant was reinforced by the fact that the appellant was also wearing a long-sleeved light purple shirt which was the same type of garment bearing the same colour which was over the arm of the hand that touched her the third time. 

10.I am satisfied that the magistrate was correct in finding that the victim was correct in her conclusion that the appellant was the person who had touched her the third time.  I find that the finding by the magistrate regarding PW1’s conclusion was in no way affected by the fact that evidence was allowed to be given of the first two touches.

11.Ms Wong’s second ground is, in a sense, connected to her first ground because she said that the magistrate never explained either in his oral reasons given in court or in his Statement of Findings how he was satisfied that the touch must have been intentional.  He said in his oral reasons and also in his Statement of Findings that taking into account of all the circumstances, he was satisfied that it must not be an accident and he was satisfied that it was a deliberate act. Ms Wong is justified to complain that stripped of the evidence of the first two touches, the magistrate should have explained how he was able to find that the third touch was intentional.  The fact of the matter is that this issue was considered by the magistrate when he gave his verdict and his reasons for verdict.  He said at the time that he was only going to give brief reasons for the verdict and he did not elaborate on what the circumstances were which enabled him to be satisfied that the touch was intentional.  When he drew up his Statement of Findings, he was not aware that this would be a ground of appeal in itself and therefore did not elaborate further on what he had said in court.  

12.I am entitled on appeal to look at all the evidence and to decide whether that conclusion by the magistrate was justified by the evidence.  I have the benefit of a full transcript of the evidence of PW1 and PW2, the police officer who arrested the appellant.

13.Mr Pang, appearing for the respondent, submits that there are two matters in the evidence which can justify the magistrate’s conclusion.  Firstly that the appellant withdrew his hand when the victim turned around.  This, he submits, is enough to raise the irresistible inference that the touching was intentional.  The second matter that he relies upon is the fact that when confronted by the victim, the appellant said nothing at all.  I agree with that submission.  In my view, if the touching had been accidental one would have expected the appellant to either explain that it was accidental or to apologise to the victim for accidentally touching her on the buttock. 

14.There is a third matter which, in my view, reinforces the conclusion that the touching was intentional and that is the fact that the touching of the victim’s buttock was for a few times.  This, to my mind, really takes it beyond the realm of an accident because if it were an accidental touch on the buttock, it could or it should have happened just once or at most twice.

15.I am satisfied that within the small confines of the carriage of the MTR there was no room for the possibility of a mistaken identity.  The victim did not look at the other passengers in the carriage.  She agreed with defence counsel that there were other men in the carriage but she was focusing her attention on the hand which touched her and which was withdrawn and when she looked up, she found that the hand belonged to the appellant.  As regards whether the touching was intentional, I have dealt with that aspect. 

16.In all the circumstances, I find that I cannot say that the conviction is unsafe or unsatisfactory nor do I find that I have any lurking doubts about the safety of the conviction.  The appeal against conviction is therefore dismissed.

Mr Norton Pang, GC of the Department of Justice, for HKSAR

Ms Catherine Wong, instructed by Messrs K.W. Luk & Co., for the Appellant