HKSAR v. Ho Wan Tak

HCMA109/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 109 OF 2008

(ON APPEAL FROM ESCC 2595 OF 2007)

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BETWEEN

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Before : Hon Barnes J in Court

Dates of Hearing : 11 April, 26 August 2008 and 7 January 2009

Date of Judgment : 7 January 2009

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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 now appeals against conviction.

The prosecution case

2.The prosecution case was that the appellant and the complainant (“PW1”) were employees of the same Estate Agency but were from different branches.  Prior to the incident in question, they did not know one another.  While the complainant was lining up to view a show flat with her colleague (“PW2”), PW2 saw the appellant getting unusually close to PW1.  When the appellant later squeezed past between PW1 and the wall, the appellant extended his left “cupped” hand and brushed the right buttock of PW1.  From PW2’s description, the brushing was not accidental but a deliberate act.

3.PW1 felt the touch and described it as being the soft part of the hand, i.e. the palm.  She also said the brush was not with force.  PW1 was shocked by the touch but did not wish to pursue the matter.

4.The appellant then went to the kitchen of the show flat.  According to PW2, the appellant attempted again to get close to PW1.  PW2 intervened and had bodily contact with the appellant when PW2 physically stopped the appellant from getting closer.  PW2 later went outside to make a report to the police.  The appellant was later arrested for the offence.

The defence case

5.The defence case was that the appellant was never behind PW1 and never touched PW1 at all.  If PW1 was touched by anyone at all (whether accidental or deliberate with an indecent intent), it was not the appellant who did it.  The defence contended it was either a case of mistaken identity, or a frame-up — in that PW1 and PW2 framed the appellant up after PW2 had an altercation with the appellant in the kitchen of the show flat.

6.According to the appellant, while in the kitchen, he and PW2 bumped into each other.  PW2 then punched and kicked him and later falsely accused him of indecently assaulting PW1.

The ground of appeal

7.The only ground of appeal advanced by Mr David Boyton, counsel of the appellant, was that the magistrate failed to consider the defence of “accidental touch” or “indecent contact”.

8.Mr Boyton accepted that the accidental touch was never part of the defence case.  However, it is the appellant’s contention

that the magistrate was under a duty to consider such a defence even when it is inconsistent with the defence run.

9.With reference to the transcript of PW1 and PW2’s evidence, Mr Boyton accepted that the magistrate was alive to the issue during the course of the trial and indeed made lengthy enquiry of PW2 as to the possibility of an accidental touch.  Mr Boyton then compared the evidence of PW1 and PW2 to demonstrate the different scenarios painted by both witnesses as to the incident, in particularly how PW1 and PW2 were placed in the room; how they queued up waiting to go into the show flat; and how the touch was made.

10.In a nutshell, Mr Boyton submitted that the magistrate failed to analyse the evidence of an accidental touch and made no mention of such a defence in his Statement of Findings.

The Discussion

11.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as to the intermediate appellate court may admit under its statutory power to do so : see HKSAR v. Chou Shih Bin [2005] 1 HKLRD 838.

12.In my view, it must be acknowledged that a magistrate had the advantage of observing witnesses giving evidence in court while the judge on appeal could only rely on the transcript.  The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable, or that the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction can be rendered unsafe and/or unsatisfactory.

13.The defence case was clear : the appellant was never behind PW1 and never touched PW1 in anyway.  The defence put in issue whether PW1 was ever touched at all, and if she was, then it was either a case of mistaken identity or a frame-up by both PW1 and PW2.  The appellant somehow accidentally touched PW1 was never part of the defence case.

14.In a criminal trial, a judge is under a duty to place before the jury all possible alternatives which are open to them on the evidence and he is not absolved from that duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused : see HKSAR v. Ho Hoi Shing, FACC1/2008.  The case of Ho Hoi Shing concerns a charge of murder and the issue was whether an alternative of provocation reducing the offence to manslaughter should have been placed before the jury by the judge.

15.Applying the same principle to the present case, the magistrate, being both judge and jury, was under a duty to consider the possible defence of accidental touch even though it was inconsistent with the defence case, provided that there was sufficient factual basis raised during the trial.

16.As conceded by Mr Boyton, even though the defence ran was not one of accidental touch, the magistrate was clearly alive to such a possibility and endeavoured to clarify the position with PW2, who was in a better position than PW1 to see what had happened.

17.What was the prosecution evidence against the appellant in respect of this particular touch?

18.Despite Mr Boyton’s attempt to demonstrate the differences in the evidence of PW1 and PW2, having perused the transcript of their evidence, it is clear that the picture painted was that the appellant squeezed past PW1 on his way to the show flat and touched her buttock.  PW1 did not see the touch but could only describe how she felt.

19.PW2’s evidence clearly showed that the appellant’s behaviour was not consistent with one who was merely trying to squeeze past someone ahead of him in a hurry to go inside the show flat.  PW2 described in detail how the appellant was following PW1 and getting unusually close to her, causing him to react by pulling her away.  It was at this juncture that the appellant squeezed past.  How the appellant touched PW1 was also of significance.  It was not a mere brushing by the back of one’s hand, as could be expected if it was an accidental touch, but a deliberate cupping of one’s hand, with the palm upwards, when the brushing took place.  There is no room to suggest it was an accidental touch.

20.It should be noted that after PW2 clarified the position as a result of questions from the bench, there was no further questioning by either the prosecution or the defence to further clarify the matter.  In other words, PW2’s evidence of a deliberate touch was not challenged or queried.

21.In view of what transpired during the trial, and in view of the fact that the magistrate has clearly accepted the evidence of PW1 and PW2, there is no room to suggest any possibility of an accidental touch.  It would appear to be the reason why the magistrate did not make any mention of the possibility of such a defence in his oral verdict or the Statement of Findings.

22.The conviction was neither unsafe nor unsatisfactory.  The appeal is dismissed.

Miss Fung Mei Ki, Mickey, SPP of the Department of Justice, for HKSAR

Mr David Boyton & Mr Ian Ip, instructed by Messrs Francis Kong & Co., for the Appellant