HKSAR v. Wong Pak Kei

HCMA 533/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 533 OF 2004

(ON APPEAL FROM NKCC 247/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 22 December 2004

Date of Judgment: 22 December 2004

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J U D G M E N T

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1.This is an appeal against conviction.  The Appellant was convicted after trial of two charges of indecent assault. 

2.The crucial evidence in this case came from PW1 who is an 18-year old school student.  On 8 July last year at about 7:25 a.m., she got off the MTR train at Shek Kip Mei Station and took an escalator from the platform up to the concourse.  On the escalator, she said that she felt someone using a hand to touch her buttocks from behind.  She said she immediately turned and saw that the Appellant was immediately behind her.  At that time, she had noticed that the Appellant had a rucksack on his right shoulder and was holding a shirt with his right hand.  When they reached the concourse, she noticed that the Appellant did not walk through the gate but walked around the platform and then went down to the platform again by the staircase. 

3.In her evidence, she said that the touch she felt was around the middle of the buttocks and it was an upward touch for one to two seconds.  She did say she did complain to her boyfriend who was called as PW2.

4.On the following morning at around the same time, she again got off the MTR train at Shek Kip Mei Station.  Again she went on the escalator and she felt a hand touch her buttocks this time from right to left and she immediately turned her head and saw again that it was the Appellant behind her.  She recognised him as the same person who had touched her the day before and again he was carrying a rucksack on his right shoulder and was holding a shirt with his right hand.  She then said she asked the Appellant what he was doing and the Appellant made no reply.  PW1 said that she then saw her teacher on that concourse and complained to him.

5.Under cross-examination, PW1 said she was sure that it was a hand that touched her.  She said she had felt it and that it was only the Appellant behind her on both occasions.  She said that she thought that the touching was intentional.  She denied that she had told her boyfriend that the touch could have been accidental or that the touching was unaccidental but that subsequent event had made it intentional. 

6.In relation to the 9 July incident, she said that she did feel the hand touch her buttock and she had immediately turned and noticed the Appellant was behind her.  She did say that the Appellant on that occasion had told her it was a misunderstanding.  On 9 July, it was her teacher, PW3, who suggested to go to the Customer Service Centre to sort the matter out.  PW1 also said in her evidence that she thought the touching was intentional because if it has been accidental, she would have expected the hand to have retreated.

7.Now PW2 was called and he said that on 8 July, PW1 had complained to him.  She told him that the Appellant was behind her when she felt the hand touch her buttock but she thought that since there was so many people around it may have been an accident that someone bumped her.  But then she saw the Appellant on the concourse and instead of going out he had gone down to the platform again and so PW1 told PW2 that she suspected she had been indecently assaulted.

8.PW3 is PW1’s teacher who gave evidence that PW1 had complained to him about the incident on 9 July.  He also gave evidence that the Appellant told him that it was a misunderstanding. 

9.PW4, the police officer who attended the scene on 9 July, agreed that the Appellant had complained of stomach ache and wanted to go to the toilet more than once.  He also said that PW1 had told him that on the 8 of July someone had touched her from right to left on her buttock.

10.At the end of the prosecution’s case, the Appellant elected not to give evidence but called one witness who was a co-worker of the Appellant and basically she gave evidence of the good character of the Appellant.  The court was also apprised of the fact that the Appellant had a clear record.

11.The learned Magistrate in his analysis of the evidence was, aware that PW1’s evidence had discrepancies.  He also properly warned himself that there was a need the special caution because it was a sexual assault case.  After looking at the discrepancies and also the submissions of the defence counsel, he came to the conclusion that PW1 was an honest and believable witness and he accepted her evidence.  He was also mindful of the fact that PW1’s initial complaint to PW2 was that she had thought at first that it could have been accidental.  He also had in mind what the police officer had said that PW1 had told him that the touching was given right to left on the 8^th of July.

12.The learned Magistrate considered that the discrepancies was as a result of PW1 having undergone a traumatic experience and that she was confused so she may have mixed up the two occasions.  At the end of the day, the learned Magistrate found that the prosecution had proved this case against the Appellant and thus convicted him.

13.On appeal, Mr Wong submitted basically three perfected grounds of appeal against conviction.  Ground 1 was that the learned Magistrate found in his oral reasons that the Appellant had touched PW1 with his hand but in his Statement of Findings had said at page 20 of the appeal bundle. 

“There can be no other inference from the evidence as accepted by me that it was the Appellant that had touch her on both occasions with his hand (or an object in his hand but under his control) in the manner PW1 attests to.

Mr Wong pointed out that the learned Magistrate had not considered that the touching was with an object in the hand until he made the Statement of Findings and so this was a material irregularity as he never properly analysed whether the touching was with the hand or with an object in the Defendant’s hand.

14.There is no doubt that the learned Magistrate in his oral reason had stated concise reason why it was that he found that the Defendant’s touching was deliberate and was with the hand because he believed the evidence of PW1 and he believed that the two events had happened in the way that she had described.  The suggestion that the touching may have been accidental or may have been with an object came from defence counsel in his final submissions. 

15.The learned Magistrate, therefore, in my opinion, had gratuitously mentioned in his Statement of Findings when he said those words which I had just quoted the above.  I do not accept the submission that the learned Magistrate had changed his stance when it came for him to do his Statement of Findings.

16.It is clear to me that the learned Magistrate when he came to do his Statement of Findings had expanded his reasons by saying that even if defence counsel’s submission is right that the touching may be with an object in his hand, but under his control, in the manner as described by PW1, it still amounted to a deliberate assault in circumstances of indecency.  Perhaps after the event, it would be wise for the learned Magistrate not to have put those additional remarks in but at the end of the day reading the whole of his Statement of Findings, it is clear that the learned Magistrate had never departed from his reasons for the finding which he gave in his oral reasons.  In fact, there was no evidence to support the conclusion that it was an object that touched PW1.  We can see PW1’s evidence was that she felt it was a hand that had touched her on both occasions and the Defendant had elected not to give evidence. 

17.As for ground 2 in Mr Wong’s grounds of appeal, Mr Wong maintained that the evidence supported an accidental touching rather than a deliberate touch.  Mr Wong played in aid the fact that PW1 never saw the circumstances of the touch.  The Appellant was shown carrying a rucksack and holding a shirt and magazine in his right hand and that touching was for a very short time.  The Appellant had told PW1 it was misunderstanding and that PW1 had told PW2 that it might have been an accident.  The Appellant had a clear record and the Appellant had stomach pains on 9 July. 

18.Mr Wong submitted that therefore the above points all added up to a bump or an accidental touching well I disagree.  The only evidence before the learned Magistrate as to the circumstances of the event on both days were mainly the evidence of PW1 and she gave an account of what happened on that day.  How the touching was on the first occasion a stroke from bottom up and on the 2^nd occasion was from right to left.  She clearly denied that it was accidental because she said that the hand would have retreated if it had been accidental.  The learned Magistrate did not have the benefit of any other evidence to even indicate that it was an accidental touch. 

19.As far as ground 3 was concerned, Mr Wong submitted that the learned Magistrate was wrong in accepting PW1’s assumption that the touches were intentional without analysing the basis of her assumptions.  Basically Mr Wong is saying that PW1 did not give evidence as to why she thought that the touching was intentional and that she did not give the basis for her assumption that it was a hand.  As I had pointed out, at the trial, PW1 said that she felt it was a hand and she was sure it was a hand.

20.There was no cross-examination, I am told, by defence counsel as for the basis of her conclusion that it was a hand and that she was sure it was intentional because it was the way she was touched basically from bottom up and from right to left and her conclusion that it had been an accidental that the hand would had been withdrawn or retreated it immediately.

21.At the end of the day whether the touching was intentional or not, was not based on what PW1 assumed it was for the learned Magistrate to draw the inference from the fact and circumstances as recounted to him whether that touch was deliberate or intentional.  The learned Magistrate based on the evidence that was before him concluded that the only irresistible inference to draw was that both touches were deliberate and in circumstances of indecency.

22.In conclusion although the learned Magistrate had heard PW1’s assumption or conclusion that it was intentional, it was still up to the learned Magistrate to find at the end of the day whether the evidence was sufficient for him to conclude that it was an intentional touch. 

23.At the end of the day, the learned Magistrate was convinced and based on the evidence of PW1, that on both occasions, the Appellant had indecently assaulted her. 

24.I had read and listened to the submissions of Mr Wong and I do not agree that the learned Magistrate in coming to the conclusion had made any error whether in law or on the facts or that he had drawn any wrong conclusions from the fact that justifies me interfering with his findings.  The learned Magistrate had ample evidence before him to find as he did.  As Mr Wong pointed out, it is rare for the court on appeal to interfere with the learned Magistrate’s finding of the fact unless it was shown that the learned Magistrate had made an error.

25.In my reading of the learned Magistrate’s findings both in the oral reasons and Statement of Findings, I do not find that the learned Magistrate had made any error either in fact or in law.  I do not find therefore that this conviction of both charges were unsafe or unsatisfactory in anyway.

26.The appeal is therefore dismissed.

Miss Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr Wong Man Kit, SC and Mr Sammy W C Ho, instructed by Messrs Francis Kong & Co., for the Appellant