HKSAR v. Shum Siu Kai

HCMA651/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 651 OF 2008

(ON APPEAL FROM KCCC 2509 OF 2008)

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 26 February 2009

Date of Judgment : 26 February 2009

Date of Reasons for Judgment : 3 April 2009

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REASONS  FOR  JUDGMENT

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1.This is an appeal by the appellant against his conviction by Mr Peter Law on 15 May 2008 at Kowloon City Magistrates’ Court on a charge of indecent assault contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  

2.The charge alleged that the appellant had indecently assaulted Miss Tse Yin Yin (“Miss Tse) on 24 April 2008 inside an MTR train travelling from Yau Ma Tei to Tsim Sha Tsui Station. 

3.The offence was alleged to have occurred around 8:30 a.m. whilst Miss Tse, a 23-year-old student, was travelling to the School of Continuing and Professional Studies of the Chinese University in Admiralty.  The evidence incriminating the appellant came from two sources :

(1) the evidence of the complainant Miss Tse; and

(2) the evidence of an admission made by the appellant later that day in his own handwriting after caution to DPC54917, which the magistrate admitted after a voir dire.  

4.The evidence of Miss Tse was that she boarded the MTR train at Cheung Sha Wan.  The train was crowded and she stood holding the vertical pillar for support.  During the journey she felt the pressure of something continuously pressing against the bottom tip of the zipper of her jeans.  It continued for about four to five minutes.  At first she did not pay particular attention as the train was so crowded and her mind was on the presentation she was going to make at school.  She had thought it might be the bag of another passenger. 

5.When the train was between Jordan and Tsim Sha Tsui it happened that there was some space behind her.  When she moved slightly back she noticed that the left hand of the appellant, who was standing in front of her 45 degrees to her right, was in an unnatural position, what she described as “an unnatural gesture”.  The magistrate described the demonstration she gave as follows :

“… ‘Left arm straight down, open palm with closed fingers facing’, the palm facing upward.  The fingers’ tips pointing at the direction at his back.’”

It appears from portions of the transcript that it is likely that the appellant’s left wrist was facing away from his body.  Because she had moved backwards the appellant’s hand was a short distance away from her body but from the angle she was looking it appeared to be in contact with the fabric of her jeans which were slightly loose.  However she agreed in cross-examination that it was possible that he was not actually in physical contact with the fabric at that time. 

6.She had scolded him by saying :

“It was your hand.  I thought it was your suitcase.  Do you know this is indecent assault?  Do you know what is politeness?  Don’t you believe that I would report it to the police?”

7.The appellant had then said “Sorry”.  She said that the appellant could not leave the train when the doors opened at Tsim Sha Tsui Station because she was scolding him.  When the train arrived at Admiralty the appellant left the carriage first.  She intercepted him and the case was reported to MTR staff. 

8.In cross-examination it was put to her that the pressure she felt was equally consistent with contact by a bag or some other item, and she said that it was possible. 

9.The evidence of DPC54917 was that after he had given a “notice to persons under investigation” to the appellant and explained his rights to him and cautioned him in writing the appellant had written :

“Sir I touched the private parts of a Chinese female with my left ring finger and little finger just out of momentary lascivious thoughts.  I know I was wrong and feel remorse.  Please give me a chance to mend my ways.”

10.The appellant’s evidence was that he was listening to music through two earpieces at the time in the crowded train.  If there had been any contact between him and Miss Tse it was accidental.  The first he knew about the matter was when Miss Tse had started to scold him about what he had done with his hand.  Since he had no idea what she was complaining about and she was accusing him of indecent assault he had denied her accusations but he had said that he was sorry if he had bumped into her. 

11.He gave evidence of a number of improprieties by the police officers investigating the matter which had ultimately led to his writing out the admission.  This included a refusal to allow him to see his wife or instruct a lawyer and various other threats and inducements. 

12.The magistrate considered the issue of admissibility of the written admission written by the defendant.  He believed the evidence of the police witnesses that none of the improprieties alleged by the defendant had occurred.  He disbelieved the evidence of the appellant as to how he could come to write the admission.  He said this :

“  I was satisfied that the cautioned statement was taken in the manner as described by PW3.  I was satisfied that it was given voluntarily.  Although rules IV(a) & IV(c) [the Secretary for Security’s rules and directions on questioning of suspects] did not complied with, I found the flaws did not prejudice the defence because in spite of the Defendant was not give an option to elect who wrote for him and the necessary declaration was omitted; but the most favourable course to him was adopted as he was the one who took the writing with his earlier confirmation that he had understood the caution.  I could not think of how he was being prejudiced.  There was no justification to exercise my discretion to exclude all or part of the evidence in dispute, so I ruled the cautioned statement be admissible.” 

13.In so far as the general issue was concerned the magistrate reminded himself of the appellant’s previous good character. 

14.He divided the evidence of Miss Tse into two categories :

(1) what she had experienced; and

(2) what she described as “her speculations and inferences”. 

15.He found Miss Tse to be an “honest and truthful” witness.  He said :

“… I accepted her evidence on the first category and placed full weight; as to the second category of her testimony, it was always some problems for speculations and inference, so I placed very little weight on that part.”

As I said he believed the evidence of the police witnesses and disbelieved the evidence of the defendant.  He said :

“I ruled that the admissions he made in the cautioned statement was the truth and I attached full weight.  That established the pressure PW1 [Miss Tse] felt on her lower part was from the Defendant’s hand and it was a deliberate touch, not accidental.”

16.Ms Au for the appellant put forward a number of grounds of appeal.  

17.Ms Au submitted that the magistrate erred in relying on the evidence of Miss Tse and for not addressing discrepancies in that evidence.  One of the matters raised by Ms Au in support of the allegation was the fact that when Miss Tse was asked whether the pressure she felt to her body was continuous or intermittent she had replied “it should be continuous”.  When asked what she meant by “should be” she replied that “it should be continuous as I was at that time thinking something else”.  After being asked by the magistrate not to speculate and say whether it was continuous or intermittent she had said the pressing was “continuous”, “non-stop pressing”. 

18.This was a matter that was expressly referred to by the magistrate in his Statement of Findings.  He very reasonably said that the issue of whether it “should be” continuous or “was” continuous was of no assistance to him in deciding what caused the pressure on Miss Tse’s lower body. 

19.Ms Au further argued that the magistrate had not in his Statement of Findings dealt with an alleged discrepancy in Miss Tse’s evidence as to the degree of pressure that was applied. 

20.In her evidence-in-chief when asked to describe the force of the pressure she said it did not cause pain.  She said : “I should say it was some force but the force was not light”.  In cross-examination she added that it was “not hard either”.  It was put to her that in her witness statement to the police she had said “I felt that there was something slightly pressed (or touched) my lower body”.  Her explanation was that what she had meant was that the slight force was what occurred at the beginning of the incident.  The police had not asked her about the degree of pressure felt by her later. 

21.It is true that the magistrate did not refer to this evidence in his Statement of Findings but that does not mean that he did not bear it in mind.  In view of the appellant’s explanation it was not a discrepancy.  Even if it had been, it was a very minor discrepancy.  “Light” and “hard” are simply relative concepts and depend upon what one is comparing them to.  If there had been a discrepancy it was simply between “slight pressure” and pressure that was “not hard or soft” and which did not cause pain. 

22.The magistrate in any event expressly said that he had taken into account certain discrepancies in Miss Tse’s evidence and said that they did not affect her general credibility.  I find no substance in this submission. 

23.Ms Au argued that although the magistrate had found Ms Tse to be a truthful witness he had not said that he found her to be a reliable witness.  It is clear from the Statement of Findings that the magistrate had Miss Tse’s reliability very much in mind.  That is why he distinguished between her evidence of what she had experienced and her evidence of the inferences she had drawn.  The first he accepted, to the second he attached little weight.  Furthermore it is clear from the final paragraph of the Statement of Findings when he said that he was satisfied that the incident had happened as described by Miss Tse that he must has been satisfied as to her reliability as well as her honestly. 

24.In my view it is clear from the magistrate’s Statement of Findings that while he accepted Miss Tse’s evidence of the pressure she felt on the lower part of her body, he would not have been satisfied beyond reasonable doubt that the pressure had come from the appellant’s hand and that it had been a deliberate rather than an accidental touching had it not been for the appellant’s written admission. 

25.In so far as Ms Au argued in her written submissions, an argument that she did not pursue orally, that there was some uncertainty as to which Chinese female the appellant was referring to in his written admissions, I do not accept it.  The preamble to the defendant’s statement which included a caution following which the appellant had written that he understood makes it abundantly clear that he was being asked about what had occurred on the MTR earlier that day. 

26.Ms Au submitted that the magistrate had omitted to refer to the fact that the appellant had remained silent when first cautioned at Admiralty MTR Station earlier that day when he came to consider the admissibility and weight to be attached to the appellant’s written admission and therefore may not have taken it into account.  There is nothing to suggest that the magistrate did not have that in mind when considering the evidence.  He expressly referred to that fact in summarizing the prosecution evidence. 

27.It was further submitted that the breaches of Rules IV(a) and IV(c) of the Secretary for Security’s rules and directions should have led to the exclusion of the appellant’s written admission.  It is of course well established that breach of the rules and directions do not themselves render a confession inadmissible.  The criteria for admission of a statement is fairness.  The voluntary nature of a statement is the major factor in determining fairness.  In the passage to which I have already referred, the magistrate expressly considered the implications of the failure of the officer taking the statement to comply with Rules IV(a) and IV(c).  He stated that he could not think how the appellant was prejudiced by that failure.  Ms Au has not sought to explain how the appellant would have been prejudiced.  I am satisfied he was not. 

28.I am satisfied that the magistrate carefully and properly considered the evidence in this case including the issue of admissibility of the appellant’s written admission.  I find he was correct to find that the appellant was guilty of the offence with which he was charged. 

29.I dismiss the appellant’s appeal against conviction.

Mr David Leung, SPP of the Department of Justice, for the Respondent

Ms Helen Au, instructed by Messrs LCP, for the Appellant