HKSAR v. Cheung Cheuk Fai
Read the full judgment text of HCMA 179/2005 on BabelCite. This High Court CFI judgment was delivered on 6 June 2005.
1. The Appellant was convicted after trial by the Magistrate of one count of ‘indecent assault’, contrary to Section 122(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, and he was sentenced to 14 days’ imprisonment. The Appellant now appeals against conviction and sentence.
Cited by 1 case · Cites 7 cases
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[English Translation – 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 179 OF 2005 (ON APPEAL FROM TWCC 3498 OF 2004) ---------------------------------------------------- BETWEEN
---------------------------------------------------- Before: Deputy High Court Judge Barnes Date of Hearing: 11 May 2005 Date of Judgment: 6 June 2005 JUDGMENT Introduction 1.The Appellant was convicted after trial by the Magistrate of one count of ‘indecent assault’, contrary to Section 122(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, and he was sentenced to 14 days’ imprisonment. The Appellant now appeals against conviction and sentence. The prosecution case 2.The case of the prosecution, in summary, is that PW1 (hereinafter called ‘the victim’) was at the material time travelling on a bus going from the airport to the urban areas. She was sitting on the lower deck. The Appellant later boarded the bus and sat next to her. During the journey, on two occasions the Appellant brushed the outer side of the victim’s right thigh to and fro from the knee to the pants pocket near the waist for several times with his ‘left knife’ hand (i.e. the outer side of his palm). The first occasion lasted about 5 to 10 seconds and the second occasion lasted about 10 seconds. Later, the victim went to the upper deck of the bus and contacted her colleague. Her colleague told the bus captain about the incident and called the police. The Appellant was stopped by the police inside the bus. Under caution, the Appellant told the police, ‘I admit I had body contact with her, but I did not stroke her thigh.’ The defence case 3.The Appellant elected to give evidence and also called two character witnesses. In short, the Appellant said that he fell asleep soon after he had got on the bus. He did not wake up until the bus reached the vicinity of Olympian City when the victim requested him to give way so that she could leave her seat. After the victim went to the upper deck, he occupied the victim’s seat which was beside the window. Shortly afterwards, the victim came down with two men and the Appellant was accused of having indecently assaulted the victim. Having heard that, the Appellant went up to them to provide an explanation. The Appellant was told that the police had been called. He felt that he was innocent and therefore he did not argue with them and waited for the police to arrive for investigation. Appeal against conviction 4.Mr. Henry Ma, Counsel for the Appellant, raised five grounds of appeal. The 1st ground of appeal 5.Mr. Ma complained that the magistrate, on the basis that the Appellant did not state under caution that at the material time he had fallen asleep, wrongly concluded that ‘falling asleep’ was an excuse ‘fabricated’ by the Appellant to explain away his conduct, and consequently rejected the Appellant’s case that he was asleep at the material time. Mr. Ma pointed out that the magistrate had not sufficiently considered the fact that Counsel for the prosecution had neither asked the Appellant why he had not told the police that he had fallen asleep at the time nor put it to the Appellant that he was lying. The rejection of the Appellant’s case which had not been tested by cross-examination was, Mr. Ma contended, a deprivation of the Appellant’s right to defend. Mr. Ma also pointed out that the magistrate himself did not clarify this point. 6.Mr. Ma cited the cases of The Queen v Chan Yuk Ying, HCMA 439/1992 and HKSAR v Lo Chun Nam, FACC 6/2000 to support his argument. He pointed out that in both of the cases the evidence was dealt with in the same way: if a defendant was not cross-examined on important issues but his evidence was subsequently criticized as unbelievable, the defendant would be deprived of the opportunity to provide an explanation and this would also violate a fundamental principle of natural justice — namely, to hear the other side (audi alteram partem). 7.Mr. Ma submitted it was not in dispute that, after the Appellant was arrested, he said to the police constable under caution, ‘I admit I had body contact with her, but I did not stroke her thigh.’ Mr. Ma said that there might be a number of unknown reasons which caused the Appellant to make such response. If the cautioning of the Appellant was premised on the victim’s accusation that he ‘stroked her thigh’, then it would have been normal for him to react by immediately protesting that he had not stroked the victim’s thigh. Mr. Ma submitted that there was no evidence as to the circumstances under which the Appellant was arrested, or as to whether the arrest was made in circumstances that would have allowed the Appellant to explain in detail how the incident occurred. Mr. Ma said that there was no contradiction between the Appellant’s explanation under caution and his subsequent evidence that he had fallen asleep at the material time. 8.Mr. Ma also cited HKSAR v Lam Sze Nga (林詩雅), CACC 226/2003 and argued that the magistrate had violated the principle of fairness by inferring guilt from the Appellant’s response under caution and by using against the Appellant the right of silence which the law conferred on him. Finding 9.In the present case, the prosecution did not summon the police constable who cautioned the Appellant to give evidence. The prosecution and the defence agreed that the Appellant said under caution, ‘I admit I had body contact with her, but I did not stroke her thigh.’ It is indeed not clear what the police constable said when he cautioned the Appellant or whether the Appellant was given an opportunity to provide a detailed explanation. I agree with Mr. Ma’s submission that there is no contradiction between the Appellant’s explanation under caution and his subsequent evidence in court that he had fallen asleep at the time. It was indeed unsafe for the magistrate to take the Appellant’s failure to tell the police under caution that at the material time he had fallen asleep as a reason for finding that falling asleep was an excuse ‘fabricated’ by the Appellant to explain away his conduct and, consequently, for rejecting the Appellant’s case that he was asleep at the material time. 10.As to Mr. Ma’s contention that the magistrate had violated the principle of fairness by using against the Appellant the right of silence which the law conferred on him, I consider that it is not applicable to the present case. 11.In HKSAR v Lee Fuk Hing, FACC 7/2004, the Hong Kong Court of Final Appeal held that the right of silence was conferred by the law on a defendant and that it was inappropriate to use this right against him. In that case, the defendant was charged with trafficking in dangerous drugs. The police found dangerous drugs in the defendant’s vehicle, and the defendant explained that the dangerous drugs were left in his vehicle by a man. This defence was first raised at trial. The trial judge asked the defendant if he had told the police about that man and further asked him why he had not disclosed the matter to the police. The Court of Final Appeal found that it was inappropriate to use a defendant’s right of silence against him in any manner or in any way. Where a defendant enjoyed the right of silence under the law, he would usually be reminded of this right when he was cautioned, and it would be unfair to use the right of silence against him at trial. 12.In the present case, the Appellant did not exercise his right of silence; instead, he chose to give certain answers under caution. I have already found that there is no contradiction between the Appellant’s defence, raised in the course of giving evidence, that he had fallen asleep at the material time, and the answer that he gave in his cautioned statement. If there is any contradiction between the two, I consider that the magistrate should adopt the approach in the Australian case of Petty and Maiden [1991] 55 A. Crim. R. 322. (This case was cited in the aforesaid case of Lam Sze Nga.) 13.In Petty and Maiden, the two defendants Petty and Maiden were charged with murder. Maiden had provided a statement to the police in which he asserted that Petty and he had agreed to kill the victim and that in the end Petty had killed him. Maiden did not object to that statement being adduced as evidence. At trial, however, Maiden testified that the victim died of an accident. In his directions to jury, the trial judge clearly explained Maiden’s right of silence and reminded the jury that they could not draw any adverse inference or conclusion of guilt from Maiden’s failure to provide at an earlier stage the new explanation on the cause of the victim’s death. However, the judge went on to point out that, as Maiden had chosen not to exercise his right of silence, the jury could, in assessing the weight to be given to Maiden’s explanation that the incident was caused by accident, still take into account his failure to put forward the explanation earlier. On appeal, the High Court of Australia confirmed that a defendant could exercise his right of silence when he was confronted with an accusation. However, as Maiden’s statement to the police was completely different from the version he gave in court, the Appellate Court, by majority, affirmed the direction given by the trial judge and dismissed the appeal. 14.In the context of the present case, if there is any inconsistency or contradiction between the defence put forward by the Appellant in court and what he had said under caution, the magistrate should remind himself that he could not draw any adverse inference against the Appellant or find him guilty by reason of his failure to put forward at an earlier stage the new version that he later gave in court. As the Appellant had not exercised his right of silence, the magistrate, in assessing the weight be given to the explanation that the Appellant put forward in court, was not debarred from taking into account the fact that the explanation had not been disclosed earlier. 15.I have found that there is no discrepancy or contradiction between the defence that the Appellant put forward in court and the contents of his cautioned statement. In light of this, and as the magistrate did not duly consider the fact that the Appellant had throughout the trial not been questioned as to why he had not told the police constable that he was asleep at the material time, it was indeed improper for the magistrate to comment subsequently that the Appellant’s evidence was not credible and find that his evidence that he had fallen asleep was a ‘fabrication’. 16.The present case, however, is not one in which the victim and the Appellant had provided different versions about the incident. Nor does the case involve the version provided by the prosecution witnesses being rendered doubtful as a result of the magistrate wrongly rejecting the Appellant’s version. The Appellant’s evidence was simply that he had fallen asleep at the time. In relation to the victim’s account of how she was touched, the Appellant had not provided any different version at all. 17.The key issue of the present case is whether the Appellant touched the victim in the way she described. If the Appellant did touch the victim in that way, was the touching accidental? Did it constitute indecent assault? Although, as explained above, I have found that the magistrate had taken an improper approach, the magistrate did not convict the Appellant merely because he did not believe what the Appellant said. On the contrary, he convicted the Appellant only after he carefully considered the evidence of the prosecution witnesses. 18.As this appeal is by way of re-hearing (see HKSAR v Chou Shih Bin, FACC 11/2004), I have to consider the evidence before the magistrate to determine whether the prosecution has proved beyond reasonable doubt that the Appellant committed the offence. In doing so, I of course understand that I do not have the chance to see and hear how the witnesses behaved when they gave evidence. On the other hand, I have before me a very detailed transcript of the trial, from which I can see how each question was asked of and answered by a witness. The 2nd ground of appeal 19.Mr. Ma complained that the magistrate relied on an erroneous factual basis in accepting the victim’s description of the reflections she saw in the ‘bus window’ and finding that the Appellant was not asleep at the time. Mr. Ma pointed out that the victim’s evidence was that she saw the Appellant from the reflections in the piece of glass or plastic in front of her, but not from the bus window. Mr. Ma contended that the magistrate did not make any assessment about the reflective ability of the piece of glass or plastic and the effect of the lighting inside the bus on the piece of glass or plastic. Mr. Ma submitted that, as the magistrate relied on a wrong factual basis in finding that the Appellant was not asleep at the time, the Appellant’s defence was not fully considered before it was rejected and this was unfair to the Appellant. Finding 20.The relevant paragraph can be found at page 47 line L of the Appeal Bundle. The victim answered at the time:
According to the victim’s evidence, what she saw was the piece of glass or plastic in front of her. 21.In the Statement of Findings, the magistrate said:
Based on his oral judgment, the magistrate in fact meant to say “it was not impossible”.
22.When the victim gave evidence, she produced a sketch drawn by her which indicated her position in the bus at the time. The Appellant also produced a photograph of the lower deck of the bus. An exit is shown on the right side of the photograph. There is a fixed screen running from the ceiling to the floor and separating the passengers from the exit. The bottom part and the right side of the screen are made of metal, while the rest is made of glass or transparent plastic material. The magistrate said that the victim saw from the reflections in the bus window that the Appellant was not sleeping. But judging from the aforesaid evidence, the victim in fact was looking at the piece of glass or plastic in front of her, not the bus window. It is true that the magistrate misunderstood the victim’s evidence. This notwithstanding, the magistrate also pointed out that mere observation through the bus window might lead to errors. Having considered the whole sequence of events and the Appellant’s behaviour, the magistrate accepted the victim’s evidence that the Appellant was not sleeping at the time. Although the magistrate appeared to have made a mistake in respect of the factual basis, that mistake is in my view of little significance. 23.The magistrate found that after the Appellant brushed the outer side of the victim’s thigh for a few times with the outer side of his left hand, the victim crossed her right leg above the other leg to avoid his hand, but later put her right leg back down due to fatigue. (The magistrate stated in the Statement of Findings that the victim crossed her left leg above the other leg to avoid the Appellant’s hand. This is obviously a clerical mistake.) The Appellant later brushed the victim’s thigh in the same manner again and tried to strike up a conversation with the victim. The victim had a few words with him as she was scared, and finally she decided to leave. 24.According to the victim’s description, the first time she felt the ‘brushing’, it lasted 5 to 10 seconds. The Appellant brushed the outer side of the victim’s right thigh with the outer side of his left hand. The brushing movement was from the knee upward to where the pants pocket was and was repeated 5 to 6 times. The victim drew a sketch of the pants she was wearing at the time, showing the position of the pocket. The victim said she opened her eyes at once and looked at the scenery outside the window. She feared that the Appellant might be moving his body because he was sleeping or looking for something. She did not want to wrongly accuse him, and therefore she observed him from the reflections in the piece of glass or plastic in front of her. She saw that he was not sleeping at the time. She said after she opened her eyes, the Appellant stopped all movements. 25.Later when the victim withdrew her leg, the Appellant also drew back his hand, which was originally on the seat, to get his backpack. At that moment, the victim’s mobile phone rang, so she answered the call and talked for about 30 seconds while sitting with her legs crossed. The Appellant brushed the victim’s thigh with the outer side of his left hand for the second time. The victim’s eyes were open during the contact this time. The victim said that when she put her leg which was on the other leg back to the original position, the Appellant laid his palm flat on the seat in the space between the two of them in such a way that the outer side of the palm just touched the outer side of the victim’s thigh. Same as the first time, the Appellant moved his palm upwards from the victim’s knee and brushed her thigh for 3 to 4 times. The victim was very frightened and clutched her handbag. The Appellant also picked up his backpack from the floor and put it on his knees. 26.I have noticed Mr. Ma’s submission that the Appellant picked up his backpack from the floor in front of him after each of the two ‘brushing’ incidents, but the magistrate did not consider whether this kind of contact was accidental. Mr. Ma also pointed out that the victim’s evidence did not clearly show how the Appellant could have brushed the outer side of her thigh with the side of his palm on the first occasion. 27.The magistrate found that the victim was a veracious and reliable witness. I can also see from the transcript that the victim was very cautious when making accusations. She frankly said that there might be some misunderstanding over the contact on the first occasion and she feared that she might wrongly accuse the Appellant. Although it was not clear from her evidence the exact circumstances under which the Appellant brushed her thigh with the outer side of his palm on the first occasion, she described that she moved away her body but the Appellant still made the same ‘brushing’ action to her for a second time. The manner and extent of the contacts, as described by the victim, show that they could not have happened ‘accidentally’ as the Appellant was getting his backpack. I will take a closer look at this point when I deal with the third and fourth grounds of appeal. I find the second ground of appeal unsustainable. The 3rd and 4th grounds of appeal 28.The third and fourth grounds of appeal can be dealt with together. 29.The third ground of appeal put forward by Mr. Ma is that, when the magistrate considered whether the assault in the present case involved any indecent motive, he did not fully take into account the two explanations given by the Appellant regarding his acts. The first explanation was given to the victim: ‘Miss, is there some misunderstanding?’ The second one was given to the police constable under caution: ‘I admit I had body contact with her, but I did not stroke her thigh.’ Mr. Ma submitted that both of these explanations could negative the allegation that the Appellant had any indecent motive. He contended that the magistrate had not fully considered the defence case and the Appellant’s conviction was unsafe. 30.As for the fourth ground of appeal, Mr. Ma submitted that there was no solid basis upon which the magistrate could conclude that a right-minded person would certainly consider that the Appellant’s acts at the time (of brushing gently the outer side of the victim’s thigh with his palm while she was wearing pants) were indecent. 31.Mr. Ma cited the case of R v Court (1998) 87 Cr. App. R. 144, which says:
32.Mr. Ma also contended that, in considering the Appellant’s explanation to the police, the magistrate only focused on the credibility of the explanation and failed to consider the effect of the explanation on the indecency and deliberateness of the whole incident. As for the explanation given by the Appellant to the victim, the magistrate simply ignored it and made no mention of it whatsoever in his Statement of Findings. 33.Regarding the meaning of ‘indecency’, Mr. Ma quoted the Textbook of Criminal Law by Professor Glanville Williams and pointed out that the word ‘indecency’ could mean something overtly sexual or something with sexual undertones. It was for the jury to decide whether a right-minded person would consider an act as indecent. The jury would consider whether, according to current standards, an act had so seriously infringed upon the victim’s dignity and privacy that it could be regarded as indecent. 34.Mr. Ma pointed out that the Appellant laid his palm flat in the empty space between the victim and him, and the outer side of the victim’s thigh from her knee to the position of the pants pocket was brushed by the outer side of the Appellant’s palm. Because the victim was sitting at that time, the Appellant could not possibly touch her hip. The area being touched was not one associated with sex (namely, the breasts, private parts and hip). Therefore, the contacts were not overtly sexual. Furthermore, the alleged brushing action was moving a flat palm back and forth as opposed to pinching or kneading. Mr. Ma submitted that there was nothing to show that this assault so seriously infringed upon the victim’s dignity and privacy that it could be regarded as indecent, and therefore the magistrate’s finding that the Appellant’s act was indecent was unsafe. Finding 35.The magistrate said that as the bus was in motion and the two persons were very close to each other, accidental body contacts might well have occurred. However, on the other hand, the bus was travelling on Tsing Ma Bridge when the incident happened. The speed was normal and the traffic was smooth. The bus was stable and did not swing from side to side or abruptly change its speed. In light of these, and in view of the number of times the Appellant did the act, the magistrate found that the Appellant’s acts were conscious and not accidental at all. The magistrate said that, by his acts, the Appellant was obviously trying to take advantage of the victim. The Appellant did the acts knowing that the victim did not consent or at least not caring whether she consented. The victim’s thigh was obviously the Appellant’s target. Having considered that the victim was wearing pants at that time, the magistrate ruled that a right-minded person, applying local moral standards, would certainly think that the assault by the Appellant was indecent, and the Appellant committed the indecent assault intentionally. 36.I have already found that the magistrate had sufficient grounds for concluding that the Appellant was not asleep at the time. Having considered the evidence, I am satisfied that there was sufficient factual basis for the magistrate to rule that the Appellant’s acts at the time were conscious and not accidental at all. In finding that the Appellant’s acts were indecent, the magistrate correctly applied the test of a right-minded person judging by local moral standards. There is nothing improper in his findings. The third and fourth grounds of appeal must fail. The 5th ground of appeal 37.Mr. Ma took issue with the magistrate’s comment that, as the Appellant intended to take the seat in the first row on the right, he should not have stood beside the victim. The Appellant said that in evidence in order to strengthen his case that he did not have any ill intent. Mr. Ma pointed out that the aisle inside the bus was narrow, and therefore when the Appellant was standing in the aisle he could at the same time be close to the victim and be close to the seat in the first row on the right which he intended to take. It was unfair to the Appellant for the magistrate to draw adverse inferences against the Appellant from this point. 38.Mr. Ma complained about the magistrate’s finding that, by testifying that the victim sought to leave the seat only when the bus arrived at Olympian City, the Appellant dishonestly adjusted his evidence to strengthen his case that he was sleeping. Mr. Ma submitted that this inference was improper. The victim said that the first time she felt someone touched her was when the bus was proceeding along Tsing Ma Bridge. Subsequent to this, she looked at the scenery outside the window, drew back her leg, talked on the phone and conversed with the Appellant. She went to the upper deck only after the conversation ended. During all this time, the bus was travelling smoothly. When the victim was in the witness box, she did not mention where the bus was when she decided to go to the upper deck. The possibility that after all these happenings the bus had arrived at Olympian City could not be ruled out, and this was not inconsistent with the Appellant’s evidence. The magistrate’s comment that the Appellant dishonestly adjusted the evidence so as to strengthen his case that he was sleeping was, Mr. Ma submitted, made without evidential support and was prejudicial and unfair to the Appellant. Finding 39.I agree with Mr. Ma that the magistrate’s findings that the Appellant had an ill intent and that he wanted to strengthen his case that he was asleep were indeed made without sufficient support. Nevertheless, as I have already concluded, there was sufficient evidence to support the finding that the Appellant was not sleeping at the time. It is immaterial whether the Appellant already had an ill intent before he sat next to the victim. The prosecution had proved beyond reasonable doubt that the Appellant indecently assaulted the victim by ‘brushing’ the outer side of her thigh. For the above reasons, the conviction is not unsafe. The appeal against conviction is accordingly dismissed. Appeal against sentence 40.Mr. Ma complained that the magistrate referred to the case of AG v Wai Yan Shun [1991] 2 HKLR 209 in his Reasons for Sentence and held that a custodial sentence was the only option for the offence of indecent assault on public transport, and that the magistrate had not even considered imposing a community service order. Mr. Ma submitted that the magistrate overlooked the fact that, in the above cited case, the Court of Appeal mentioned that a custodial sentence was not the only option. He quoted the following passage at page 117D of that case:
41.Mr. Ma said that the magistrate should not have only considered imprisonment and rejected other sentencing options. He said that the Appellant had a clear record and was of good character and that the present case involved the lowest level of indecency, and therefore a 14-day immediate custodial sentence was manifestly excessive and wrong in principle. The Respondent’s reply 42.Ms. Ko, Senior Government Counsel for the Respondent, submitted in response that the magistrate, in passing sentence, had already considered all the circumstances, including the facts, the Appellant’s background and the mitigation submitted by defence counsel. She pointed out that the magistrate had taken into account that, although the present case was not the most serious of its kind, females did need protection when they took public vehicles. It would be most undesirable for women to have to stay vigilant all the time and not to feel at ease when they were on board public vehicles. The magistrate had considered three decided cases and then sentenced the Appellant to 14 days’ imprisonment, which was an appropriate punishment. Ms. Ko cited AG v Wai Yun Shun [1991] 2 HKLR 209 and AG v Ng Sai Man [1994] 1 HKCLR 151, which said that indecent assault on public transport was a prevalent offence. The Court of Appeal held that for a first offender, 14 to 28 days’ imprisonment was an appropriate sentence, and for a repeat offender, an appropriate sentence would be imprisonment for 2 to 6 months. 43.Ms. Ko also cited the case of HKSAR v Bhalla Ram, HCMA 691/2002. The appellant in that case was convicted after trial of indecent assault on a public transport and was sentenced by the magistrate to 21 days’ imprisonment. Similarly, that appellant had no criminal record and was of good character. The appellate court considered the sentence reasonable. 44.Ms. Ko said that the magistrate in the present case had properly considered whether a community service order was an appropriate sentence. As the Appellant did not plead guilty, which showed that he was not remorseful, such an order was not appropriate. 45.Ms. Ko submitted that for the above reasons, the starting point of 14 days was appropriate and the sentence was not manifestly excessive. Reasons for Sentence 46.The magistrate’s reasons for sentence were as follows:
Finding 47.I totally agree with Ms. Ko’s submission and her views. The magistrate had duly considered all relevant factors when passing sentence. The starting point of 14 days is appropriate in the circumstances of the present case, and there is nothing that justifies a reduction of sentence. 48.The magistrate had not erred in principle in imposing the sentence that he did. Nor is the sentence manifestly excessive. The appeal is accordingly dismissed.
Ms. Catherine Ko, Senior Government Counsel, for the HKSAR Mr. Henry Ma, instructed by Ching & Co., for the Defendant Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor. |
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