HKSAR v. Cheung Kin Hang

HCMA 67/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 67 OF 2005

(ON APPEAL FROM NKCC 6756 OF 2004)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 12 July 2005

Date of Judgment: 12 July 2005

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J U D G M E N T

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1.On 29 December 2004 before Ms Judy C Y Ma in the Magistrate’s Court at North Kowloon, this Appellant, a man of previous good character in his late 20s, was convicted after trial on a charge of indecent assault.  He now appeals against his conviction.

2.Shortly after 8:30 am on 17 August 2004, a woman and the Appellant were among the passengers travelling in an MTR train.  He was standing behind her.  According to her evidence, she felt a hand squeezing her left buttock.  After being so squeezed 2 or 3 times she felt that she might be mistaken as to what was happening.  But she was then squeezed another 2 or 3 times.  She then reached back, grabbed the hand which was still squeezing her buttock, and saw that it was the Appellant’s hand which she had grabbed.  That was her evidence.

3.The Appellant, giving evidence in his defence, denied squeezing the woman’s buttocks.  She grabbed his hand for no reason he could understand.  That was his evidence.  Good character evidence was also tendered on his behalf in the form of various letters.  Upon arrest and caution he replied: “I understand.  I didn’t indecently assault the girl.”

4.The Magistrate felt sure that the woman’s evidence was reliable and that the Appellant’s evidence was not.

5.Two perfected grounds of appeal have been filed on the Appellant’s behalf.  Ground 1 reads as follows:

“The learned magistrate erred in applying the wrong standard of proof in assessing the Appellant’s case at trial.
Particulars:
1.	In his closing speech, learned leading counsel for the Appellant at trial laid emphasis on factors such as the Appellant’s background, character and family circumstances to support the proposition that it would have been inherently unlikely that such an incident of indecent assault would have happened: AB 29A-M.
2.	In her oral Reasons for Verdict, the learned magistrate rejected the Appellant’s evidence after giving herself the Berrada direction: AB 32F-J.
3.	In her oral Reasons for Verdict, the learned magistrate did not discuss any reasons why the Appellant’s version was rejected; nor was it pointed out as to whether the Appellant’s version was internally inconsistent or that it was inherently improbable.
4.	In her Statement of Findings, the learned magistrate came to the view that it is not “inherently unlikely that the defendant would commit the crime with these backgrounds”: AB 18.
5.	Again, in her Statement of Findings, the learned magistrate did not discuss any reasons why the Appellant’s version was rejected; nor was it pointed out as to whether the Appellant’s version was internally inconsistent or that it was inherently improbable.
6.	As the Appellant had put forth his own defence through testimony, in order to satisfy the principles regarding the appropriate distribution of the burden and standard of proof, it would be incumbent on the learned magistrate to consider whether it was possible that the Appellant’s version in evidence was true: HKSAR v Wong Wai Man (No. 2) [2003] 4 HKC 517 & Sze Kwan Lung & ors. v HKSAR [2004] 3 HKLRD 328.
7.	In the present case, the learned trial magistrate only found that it was not inherently unlikely that such an offence could have been committed by someone with the Appellant’s background, but did not make any findings that his version of events could not possibly have been true.
8.	In the premises, the learned trial magistrate has adopted an erroneous approach in assessing the Appellant’s evidence.”

6.At the end of her Statement of Findings, the Magistrate said that she was satisfied beyond reasonable doubt that the Appellant had assaulted the woman intentionally by squeezing her left buttock as she had described.  This was preceded by a careful consideration of all the evidence.  Upon a careful consideration of the complaints made under Ground 1, I find them not made out.

7.Ground 2 reads:

“In analysing the competing versions offered by PW1 and the Appellant respectively, the learned trial magistrate erred in rejecting the Appellant’s evidence on the basis that “there was no reason for her [i.e. PW1] to make up the story to say that her left buttock was squeezed.”
Particulars:
1.	The Appellant gave evidence to the effect that his hand was on his shoulder bag and was suddenly grabbed by PW1, who turned and accused him of indecent assault: Transcripts: 19L-20D.
2.	It was not part of the defence case throughout the proceedings that PW1 deliberately made false accusations against the Appellant.
3.	The defence relied upon was one of mistake on the part of PW1.
4.	Whether PW1 had any reason to make up a story to frame up the Appellant was therefore not a relevant issue in assessing the strength or weakness of the defence case.
5.	In assessing the defence case, the learned trial magistrate should focus on the question whether what the Appellant said could possibly be true.
6.	In these circumstances, the summary dismissal of the version offered by the Appellant causes the convictions to be unsafe and unsatisfactory.”

8.The Magistrate’s Statement of Findings has to be given a fair reading and has to be read as a whole.  She did not reject the Appellant’s evidence simply on the basis that there was no reason for the woman to make up a story.  On the contrary, the Magistrate said that she reminded herself to be careful about the woman’s evidence.  She accepted the woman’s account only after a careful consideration of what she said and all the defence criticisms of it.

9.Upon a careful consideration of the complaints made under Ground 2, I find them not made out.

10.The Magistrate had the advantage of seeing and hearing all the witnesses.  In all the circumstances, I see no proper basis on which to say that she had failed to take proper advantage of that or had in any way arrived at a verdict that it would be proper to overturn.

11.In the result, the appeal is dismissed.

Mr Edwin Choy, instructed by Messrs H K Chan & Co., for the Appellant

Mr Simon Tso, SGC, of the Department of Justice, for the Respondent.