HKSAR v. Lau Yun Wo

HCMA 1233/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1233 OF 2005

(ON APPEAL FROM STCC 12277 OF 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  23 February 2006

Date of Judgment:  23 February 2006

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J U D G M E N T

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1.This is an appeal against a conviction of indecent assault which occurred on a KCR train that had left Mong Kok Station.  The victim was standing in the crowded train, talking on her mobile telephone.  She felt something hard pressed against the middle part of her buttock and the touching moved up and down in accordance with the movement of the train.  The touching was consistent and lasted, she said, about 10 minutes.  Given the crowded circumstances, she thought it was a bag or something like that that was touching her.  However, people got off and when she turned round, the crowd having thinned out, she saw the appellant removing his hand from her buttocks.  She made an immediate complaint to the lady she was speaking to on the telephone and also called the police. 

2.The appellant gave evidence.  He said the train was crowded and he noticed the lady in question.  She was about a foot away.  He denied deliberately touching her but he said he might have bumped her accidentally and it would have been his left hand which made such contact. 

3.He is a man with a clear record.  It was thus not an easy case depending, as it did, basically, on word against word.  The magistrate, in a careful statement of findings, set out that he found the young lady in question to be an honest and believable witness and she gave a very clear and credible account, without embellishment, of what had happened.  In other words, he found her to be trustworthy.  He was not impressed by the evidence of the appellant. 

4.My analysis of the case is this:  that, given the circumstances described by the victim, mistake was not reasonably to be countenanced.  It was either this deliberate, consistent pressure on her buttocks which she described, followed by her seeing the removal of the hand, or not.  I suppose it could be that people in  her situation might conceivably falsely invent a case against an innocent man, or might, for reasons that none of us could understand, come falsely to believe in the man’s guilt. 

5.Whether or not that may have happened in this case really depends upon the impression that the witnesses made on the tribunal of fact and, of course, the magistrate was in a much better position than I am to form that judgment. 

6.The appellant today has re-argued his case in person by, in effect, repeating, understandably, the evidence that he gave to the magistrate.  I regret to say that he has been unable to point to anything that would make me doubt the judgment made by the magistrate as to the credibility of the young lady in question. 

7.As I say, these are not easy cases but, on the material that I am bound to consider, which includes the magistrate’s statement of findings, I regret to say that I have no doubts about the case and the order I make is one confirming the conviction. 

8.There is no appeal against the sentence of 14 days’ imprisonment which will now have to take effect.  The defendant can go down. 

Mr Lee Ka-yun Kelvin, Government Counsel, of the Department of Justice, for the Respondent

Appellant, Lau Yun-wo (劉潤和), in person