HKSAR v. Ardjona Fendi

HCMA 694/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 694 OF 2006

(ON APPEAL FROM KTCC 2163 OF 2006)

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BETWEEN

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Before : Hon. Barnes J

Date of Hearing : 28 November 2006

Date of Judgment : 28 November 2006

Date of Handing down Judgment: 29 November 2006

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial of one count of “Indecent Assault”, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. He was sentenced to detention in a Detention Centre. He appealed against both conviction and sentence.

2.At the end of the hearing, I allowed the appeal, quashed the conviction and set aside the sentence imposed; I also order a re-trial before another magistrate. I have given full reasons to parties during the hearing and I will only give brief reasons here as there will be a re-trial.

Prosecution case

3.The prosecution case is very simple. At the material time the complainant (a 24-year-old woman) was carrying her young child (2½ years old) while walking along the street. She suddenly felt someone poked her hard once at her private parts from behind. She felt shock and great pain. When she looked behind her the defendant was the only person in her close proximity – within 3-4 steps. She shouted “help” and “indecent assault”, asking other passer-by to assist in stopping the defendant. The defendant was indeed stopped by another male pedestrian. The appellant denied having indecently assaulted when the complainant confronted him with such allegation. Later the appellant told the police that he accidentally bumped at the complainant’s shoulder.

Defence case

4.The appellant’s case, in a nutshell, was that the appellant was talking on the telephone and was walking face to face with the complainant, who was carrying a child and talking on the phone at the same time. The complainant suddenly made a right-turn, as a result of which his left shoulder came into contact with the complainant’s left elbow. He did not say anything to the man who stopped him, but to the police he had already explained it was an accidental bumping.

Reasons for ordering a re-trial

5.The circumstances of the alleged indecent assault are most extraordinary. How a person could have poked at a woman’s private parts with force from behind while the woman was walking, and without that woman ever sensing anyone being close to her at all prior to the alleged assault, is a strange set of facts. It was a pity that the possibility of the child being carried by the complainant having kicked her mother was never canvassed.

6.This case involved a “one-against-one” situation. The pedestrian who caught hold of the appellant did not witness the alleged assault. The appellant is a young man of 19 with no previous conviction. The offence is a serious one – so much so that the legislature thought it appropriate to make it an Excepted Offence. There is a lurking doubt in my mind and justice demands that there should be a re-trial so that all these issues could be properly canvassed.

Ms Grace CHAN, Senior Government Counsel of Department of Justice for the Respondent

Mr James McGOWAN, instructed by Messrs Hastings & Co for the Appellant