The Queen v. Cheung Ching Leung

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1059 OF 1986

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BETWEEN

Coram: de Basto J.

Date of hearing: 24th October, 1986

Date of delivery of judgment : 22 January 1987

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JUDGMENT

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1. The Appellant CHEUNG Ching-leung was convicted on the 26th of August, 1986 of two charges of indecent assault contrary to section 122(1) of the Crimes Ordinance, Cap.200.

2. The victim of the alleged assault Madam YUE Wai-sau ("The Complainant") testified that she and her husband went to the dress circle of a cinema - her husband sat on her right - the Appellant was already seated on the seat to her left. The Appellant, a young man of 18, was on holiday in Hong Kong - he was, and is, a student in England.

3. About half an hour after the film had started "someone" touched the side of the Complainant's left breast. She said, and I quote, " I knew was a hand on this part of my body" (Sic). She went on to say, "it happened so fast at the time not sure what ,it was which touched me". The Appellant was seated with his arm "over to where I was seated. Arm was over on my side - had gone beyond the arm rest".

4. Having said, "I knew (Sic) was a hand (Sic) on this part of my body" it is difficult to reconcile that with her statement that it happened so fast that she was not sure "what it was that touched" her.

5. In cross-examination she said the Appellant said, "Unintentional".

6. It was suggested that the Appellant was only trying to get a handkerchief from his pocket and she replied she wouldn't know if he had been reaching for a handkerchief.

7. The Appellant testified that shortly after the film started he took his handkerchief out of his right trouser pocket with his right hand and his elbow made contact with the Complainant's left arm - he apologised.

8. One of the difficulties, conceded by Counsel for the Crown, is that the Chinese word for "hand" includes the whole arm from the shoulder to the finger tips.

9. The second incident is alleged to have occurred when the film ended. The Complainant and her husband and the Appellant and his friend (a student from Amercia) left their seats. As they were descending the stairs the Complainant was walking in front of her husband when the side of her left breast was touched once by "a hand" (Sic). She demonstrated but this Court does not have the benefit of precisely what was demonstrated.

10. She immediately "twisted" and looked behind her. She did not see anything. There were many people in front and behind her - people were leaving the theatre. Then she saw the Appellant and her husband. The Appellant was right behind her at her left side and her husband right behind.

11. The police came and the Complainant said that the Appellant had indecently assaulted her. The Appellant said it was unintentional that it was not deliberate. She replied, “You touched me in this manner now you say it was not deliberate". In cross-examination she was asked, "Didn't see who touched you on stairs?" She replied, "That's right".

12. The husband testified that, in respect of the 2nd charge, he suddenly saw a man hold (Sic) the left side body of his wife once with the palm of his right hand. He demonstrated and this is described. He said it was the left breast of his wife that was touched. It was suggested to the husband that his wife pushed or hit the Appellant in the chest. He disagreed. Inspector LAU Ho-sang was the only independent witness and he said, inter alia, “Girl pushed boy several times - pushed him against his chest". It was suggested that the Appellant had said he put his hand in his pocket to get a handkerchief and he replied, "Possibly".

13. The learned Magistrate rightly reminded herself of the danger of convicting on the evidence of the Complainant alone. She found beyond reasonable doubt that the Complainant was an honest and reliable witness - she found the first "touch" by the Appellant an intentional indecent assault - she was satisfied on the 2nd charge - she accepted the evidence of the Complainant's husband and that the touch was an intentional indecent assault. On the other hand she did not accept the Appellant's account of the accidental touching.

14. Mr Eric Waley for the Appellant contended, inter alia, that the Magistrate had, in assessing the evidence, confused the evidence available to her on each charge. He argued that having dealt with her findings on charge "B" she went on to say, "Do not accept Defendant's account of the accidental touching". This probably refers to the first charge because the Appellant denied ever touching the Complainant on the second charge. Mr Waley referred to a number of discrepancies in the evidence led by the Crown but I must assume that the Learned Magistrate must have taken these into consideration.

15. This appeal has caused me considerable anxiety. Having read the transcript and the Learned Magistrate's Statement of Findings and having heard Counsel I was left with a lurking doubt as to the correctness of the Learned Magistrate's findings and I decided to put the papers away and to reconsider the matter in a few weeks.

16. Having re-read the whole of the transcript and the Statement of Findings and read my notes on Counsel's submissions I was again left with a lurking doubt.

17. In R. v. Cooper (1968) 53 Cr. App. R. 82, Widgery, L.J. delivering the judgment of the Court of Appeal, said, at pp.85-86, that it was:

"A case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court will be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 …… it was almost unheard of for this Court to interfere in such a case. However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such, it is a reaction which can be produced by the general feel of the case as the Court experiences it."

18. In R. v. Lake (1976) 64 Cr. App. R. 172 Lord Widgery, C.J. gave the Court of Appeal's judgment:

"Once you have decided that the rules of procedure were followed and there remains the only residual question of whether there is a lurking doubt in the mind of the Court, such doubts are resolved not, as I say, by rules of thumb and not by arithmetic, but they are largely by the experience of the judges concerned and the feel which the case has for them" (p.177)

19. Another example is R. v. Bracewell (1978) 68 Cr. App. R. 44 where a conviction was quashed because the court was left in real doubt about the verdict despite" all the grounds of appeal having been individually rejected.

20. In the circumstances, I uphold the appeal, quash the conviction, set aside the bond and order that the costs paid by the Appellant be returned to him.

Miss D.M. Crebbin, Sr Crown Counsel for Crown.

Mr Eric Waley instructed by Messrs. Lau, Wong & Chan for Appellant.