HKSAR v. Choi Wing Leung

HCMA 217/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 217 OF 2008

(ON APPEAL FROM STCC 8556/2007)

____________________

BETWEEN

____________________

Before:  Deputy High Court Judge Line in Court

Date of Hearing:  4 June 2008

Date of Judgment:  4 June 2008

____________________

J U D G M E N T

____________________

1.This is an appeal against both conviction and sentence.  The conviction was for indecent assault and the sentence imposed was one of 10 months' imprisonment. 

2.The facts giving rise to the prosecution were that a young mother was travelling on the top deck of a bus when a hand came round the seat beside her and touched her breast a number of times in quick succession.  She moved to her right, got up, turned round and looked behind her to see that the seat behind her was occupied only by one man.  There was no one sitting at his side.  She looked at him for a period of three seconds, she said, and then went down to complain to the bus driver.  After some time - it may have been as much as about five or even seven minutes - the bus came to a halt and the bus driver did not, at that stage, open the doors.  People descended from the top deck of the bus.  They included the man that the young lady said had touched her and, as he was standing on the staircase of the bus, coming down it, she pointed to him and identified him as the person who had touched her breast to the bus driver. 

3.A member of the public came up and made sure that he did not get away, making him sit in a seat.  There was no dispute and no issue before the magistrate that the man who was pointed to and identified at the bottom of the staircase by PW1 was the same person who was arrested and is the appellant here today and was the defendant in the court below. 

4.The main thrust of the appeal is that the quality of the identification was such that the case should have been stopped at the close of the prosecution case or, failing that, that it could not have made the magistrate sure that this appellant was the man in question. 

5.It seems to me that a most crucial piece of evidence was how many people there were on the top deck.  The evidence revealed that there were five or six people including the appellant, some of whom were women.  The evidence does not say how many women there were but let us say the appellant, realistically, must have been one of four or five men who could have committed the crime in question. 

6.It is quite clear that when the victim went down to complain to the bus driver she did not go down in ignorance of who had just indecently assaulted her.  It was only a matter of minutes before the identification was made and, in those circumstances, there is substantial corroboration for her identification from the fact that the man she identified came from the top deck and could only have been one or five or six at the most who could have committed the crime. 

7.Criticisms are made of the identification on these lines:  first of all, that the jacket the man was wearing was, in fact, a yellow and blue one, whereas the victim described it as being green and black.  Of course, that description was given after she had identified the appellant at the bottom of the staircase in the bus.  So really, the difference tells me more about her powers of description than her powers of observation, which took in the features of the man when she turned round and looked at him for the three seconds. 

8.The circumstances of the identification were generally good.  The man was an arm's length away; the light was bright; she had a good view of him; there was no one sitting beside him.  The only feature that raises any worry is the length of the observation but that length of the observation is well balanced by the speed with which the subsequent identification was made and the corroboration to which I have already referred. 

9.In fact, if the lady had merely said it was a two-tone jacket of a dark colour and a lighter colour, the point would disappear. The mere fact that she described the colours in a different way to what the fact was, does not make me doubt the accuracy of her identification.  In fact, she described the pattern formed by the colours as being a rectangle on the sleeve.  The garment is here in court.  It matches that.  The colour does comes down in a square below the elbow. 

10.Criticism is made of her identification in that she called the collar a crew neck.  I am not sure how you would describe the actual collar, but it is not perhaps a crew neck.  It has a lapel to it. That sort of difference does not make me doubt the accuracy of the identification. 

11.She described the skin on the face of the man as being pockmarked.  There was, in fact, no evidence of whether or not the defendant has a rough skin or not and you cannot quite tell from the photographs that are in evidence, though his skin on them does not look particularly smooth.  Given that is the state of the evidence, it does not raise any doubt in my mind as to the correctness of the identification.  The last point concerned a description given by the lady that his hair, she thought, was parted in the middle.  In fact, the photograph taken of the appellant on arrest, shows that he had quite a long fringe and how that hair fell at the time that she looked at him would be a matter that is frankly imponderable.  It does not raise any doubt in my mind as to the correctness of the identification. 

12.No evidence was called by the defence.  It seems to me that the magistrate was quite entitled to rely on this identification and I come to the same view that he did. 

13.A further point of appeal which was not spoken to in court today but exists in the written skeleton concerns some discrepancies in the evidence.  They are fully set out in the skeletons of both sides and they are answered by the respondent.  All I need say is there are bound to be discrepancies.  They are not the sort of discrepancies that raise any reasonable doubt in a case such as this. 

14.I am quite sure that the evidence rightly convicted the appellant, and the appeal against conviction is dismissed. 

15.There is an appeal against sentence.  The appellant had four previous convictions for indecent assault.  The first three occurred in 1985, 1987 and 1992.  He was put on probation, fined, and put on probation again.  The last conviction was in August of 2007 when he was sentenced to undergo 200 hours of community service.  This offence occurred in November fo 2007.  Full reports were called for and the most helpful report is from the psychologist.  It sets out a very full history and exposes a mixture of frankness and guile by the appellant.  He unrealistically asserted that he was not guilty of this offence and that he only pleaded guilty to the last offence because he did not think he would be believed, it being the case that all of the convictions concerned the same sort of allegation of touching ladies in a similar way on public transport. 

16.On the other hand, he did not seek to hide the fact from the psychologist that, in effect, he had, on many occasions, been touching women in public in a similar manner and that there was a long history of it which had not resulted in prosecution.  The magistrate passed a sentence of 10 months' imprisonment.  He did not seek to re-sentence for the offence giving rise to the community service because, of the 200 hours, some 180 hours had been served already. 

17.A prison sentence was inevitable in the circumstances, especially because the psychologist's report demonstrated a strong resistance to psychological treatment and a lack of insight by the appellant into his offending.

18.The imprisonment, given the obvious aggravations that exist here of having previous convictions for like conduct and for committing a further offence in the currency of a community service order imposed for like conduct, meant that the sentence of imprisonment was going to be at the top end of the bracket.  The thrust of the appeal against sentence before me today is to say whilst it is going to be at the top, 10 months is too long.  I have been referred to the case of The Attorney-General v Wai Yan Shun which was an Application for Review, No. 17 of 1990.  That was the case that set the tariff for indecent assaults on the MTR public transport. My attention is drawn to the Court’s opinion that for subsequent offences, after a first offence, sentences between 2 to 6 months could well be imposed.  Given the history here, the sentence must begin toward that 6 months. The aggravation of actually committing the crime whilst subject to a community service order, in my view, takes it over the 6 months.  The question is, how far over the 6 months? 

19.This is a re-hearing.  My view is slightly different from that of the magistrate.  I do not say he was wrong.  It is quite possible to have more than one reasonable view of the length of sentence in a difficult case like this.  My view is that a period of 8 months would be adequate here and that is the sentence I am minded to impose. 

20.So I shall allow the appeal against sentence and reduce the 10 months to one of 8 months' imprisonment and, in doing that, I am mindful of the fact that despite this man’s history of previous similar offending, this is the first time he will have been sent to prison.

Ms Winsome Chan, Senior Government Counsel of the Department of Justice, for the Respondent

Mr Oliver H Davies, instructed by Cheng, Chan & Co., for the Appellant