HKSAR v. Tai Chi Wai

HCMA250/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.250 OF 2006

(On Appeal From KTCC 7654 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 20 July 2006

Date of Judgment : 20 July 2006

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 and was sentenced to 160 hours of Community Service.  He now appeals his conviction.

Prosecution case

2.The prosecution called three witnesses, namely, PW1 Madam Lai, PW2 the bus driver and PW3 a police officer.

3.At the material time PW1 was on board a village bus.  She sat in the middle seat of the second row on the right hand side of the bus.  The appellant sat on her left and a lady sat on her right.  PW1 soon fell asleep but was awaken as she felt that her left breast was fondled.  When she opened her eyes she could still see the appellant's left hand touching her left breast with his fingers circling up and down her left nipple.  She looked at the appellant and told him that she would call the police.  Upon hearing that the appellant withdrew his hand and turned his face to the left.  He apologized to PW1.  The appellant alighted at Telford Gardens; PW1 remained on the bus until the terminus.  PW2 saw her distress and talked to her.  He was totally unaware of the alleged incident until he saw PW1 being upset.

4.Five days later she saw the appellant boarded the same bus and recognized him to be the assailant and she called the police.  PW3 arrived and made enquiries with her. 

The defence case

5.The appellant admitted that he sat next to PW1 on the relevant morning.  He said he fell asleep and was awakened by somebody muttering something to him, the contents of which he could not hear.  However, he admitted to have apologized to PW1 as he thought he had bumped into her.  He said whilst he fell asleep, he sat with his arms crossed but when being waken up, he placed his hands on his lap.  He demonstrated with his left hand tucked under his right elbow with the palm facing his chest and the right palm resting on top of his left upper arm and underneath his left arm.  He denied the assault.

6.The statement of one of the character witnesses was read out in court.  The other two character witnesses gave evidence.

Grounds of appeal

7.I shall summarise the grounds of appeal as follows :

(1)     The learned magistrate erred in finding that PW1 was an honest and credible witness :

(a) failure on the part of the magistrate to resolve a material discrepancy between PW1's evidence and PW3's evidence in relation to what she told PW3 after a report was made five days after the alleged indecent assault; and

(b) the learned magistrate failed to take account of the inherent inconsistencies in PW1's own evidence, namely that she alleged that at the time of the alleged assault she told the appellant that she would report to the police when in fact no such report was made during and at the end of the whole journey.  Instead, she tried to call her husband during the journey, failing which she carried on with the journey and only made a report to PW3 some five days afterwards.

(2)     The magistrate, by asking the appellant to demonstrate how he folded his hands in front of him, had prejudged the matter and was only finding ammunition to reject the appellant's defence of accident.

Respondent's reply

8.The respondent's reply are as follows :

(1) The learned magistrate noted the discrepancy between PW1 and PW3's evidence but was entitled to conclude that such did not affect her credibility one way or another.

(2) The learned magistrate was alive to the alleged implausibilities in PW1's evidence as to how she reacted.  PW1 had given explanations and the magistrate was entitled to accept PW1's evidence and concluded that such different thoughts going on in her mind which caused her to react in the way she did in no way demonstrate any conflict in her evidence.

(3) It was submitted that the magistrate was entitled to clarify matters with witnesses including the appellant, and such clarification in no way demonstrated any prejudging on the part of the magistrate nor pre-empting the appellant's defence of accident.

My judgment

9.The issue in the present case is whether the appellant assaulted PW1 in the way she described.  If he did, then the assault was indecent in nature and intentional and the appellant intended to commit the same.

10.I first deal with Ground 1.

11.The magistrate, in her Statement of Findings, said this :

"PW3 spoke to PW1 on the day of the incident.  He stated that PW1 only complained of being touched on the left breast once and of being very scared and not daring to say anything.  These two matters had been put to PW1 and she disagreed to having said these things to the police."

In resolving the discrepancy, the magistrate said :

"The apparent discrepancies between her initial complaint to the police and her oral evidence did not in my judgment affect the required standard of proof.  She was clearly in a distressed state when seen by the police.  Initially a brief description would have been given to the police, which will have been expanded upon in the witness statement and expanded upon even more in court when other questions important to the prosecution and the defence are invariably put."  (my emphasis)

12.Mrs Yew for the appellant submitted that the magistrate, by saying that PW1 was clearly in a distressed state when seen by the police, demonstrated that the magistrate mistakenly thought that PW3 had the conversation with PW1 on the day in question when that conversation only took place on 10 October 2005, some five days after the alleged indecent assault.  It is submitted that the discrepancy was sought to be resolved on a wrong understanding of the facts.

13.In my view this is an opportunistic but yet misconceived submission.  Whilst the magistrate might have mistaken as to when PW1 first told PW3 about the alleged indecent assault, it is clear from what she said in the preceding paragraph that what PW3 told the court as to what he was told by PW1 and what PW1 told the court about the details of the indecent assault were not versions which could not live together.  What the magistrate said was that it was understandable that one gave a simple version during first complaint and gradually expanding it subsequently, and such are not mutually exclusive and in no way constitutes any material inconsistencies which damage PW1's credibility.  The magistrate was simply applying common sense and talking from past experience, as opposed to speculating or ‘playing amateur psychologist'. 

14.There is no merit in this ground and this ground fails.

15.I shall now move on to Ground 2. 

16.It was submitted that PW1's own evidence is contradictory and inherently implausible that she alleged to have told the appellant that she would call the police.  Yet, she did nothing and stayed on in her seat, and only tried to call her husband, failing which she did nothing to prevent the appellant from alighting and carried on her journey until the terminus.

17.The various thoughts going on in PW1's mind could be seen in the transcript (Appeal Bundle page 50).  PW1 said that between the time when she told the appellant that she would call the police to the time he alighted at Telford Gardens, it was some 10 to 15 minutes.  She said this :

"…. but at that time I tried to call my husband to ask him if I should call the police.  But at that time I thought that if I called the police, I would ruin his life.

….

… After that, I decided to call the police, because I believe he should know that what he's done was wrong.  And I did not want him to do something bad on someone else after this incident."

18.The magistrate dealt with this in details as follows.  She said in her Statement of Findings :

"PW1 was clearly distressed by an incident which occurred on the bus that morning, as is shown by the fact that she was in tears when spoken to by the driver.  I was satisfied that something, which had caused her to become distressed had occurred.  The Appellant's counsel sought to discredit PW1's evidence because of, inter alia, her failure to immediately complain about the assault in a voice heard by others on the bus, failed to move her seat until after the Appellant had left the bus, failed to immediately demand the assistance of the driver, failed to complain to the driver when first asked by the driver before the bus reached the terminus and the discrepancies between her evidence and the notes made by PW3 of the initial complaint.

PW1 said that she tried to contact her husband for a bit of advice but he didn't answer the telephone.  It was clear that she was unsure as to how to proceed despite being clearly distressed.  She gave various reasons as to why she failed to act as suggested above, including the possible repercussions upon the Appellant's future.

It is not unusual to find women who are indecently assaulted reacting in such a negative manner.  The various reasons given by PW1 for her not acting positively are not, in my judgment, mutually exclusive.  They do not demonstrate any conflict in her evidence.  There were clearly a number of thoughts and considerations going through her mind in determining what to do and how to react. …."

19.The magistrate did take into account the submission of the alleged inherent implausibility or inconsistency.  She did not find them to be such.  She is entitled to come to the conclusion as she did.

20.Dealing with the last ground, the magistrate is entitled to ask the appellant to demonstrate clearly how he placed his hands in order to be able to make a finding as to whether such a gesture was consistent with his allegation of an accident.  The questioning of the appellant by the magistrate was purely to afford him an opportunity to explain and demonstrate how it was possible to have bumped into PW1 as he suggested whilst he was in that demonstrated gesture.  To suggest that such was a clear indication of prejudging on the part of the magistrate was far-fetching and unrealistic.  This ground is totally groundless.

21.The appeal is dismissed and I affirm the conviction.

Ms Mary Sin, SADPP of Department of Justice, for HKSAR

Mrs Lily Yew, instructed by Messrs Thomas Li & Yu, for the Appellant