HKSAR v. Chan Dick

HCMA 92/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 92 OF 2009

(ON APPEAL FROM ESCC 4526/2008)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing:  4 September 2009

Date of Judgment:  11 December 2009

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J U D G M E N T

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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 that conviction.

Prosecution evidence

2.PW1, a 55 years old cleaning lady, was on her way home at about 11:40 pm when she encountered the Appellant who asked her for a tissue on account of his runny nose. At that time, she was speaking on her mobile phone with her husband and she handed some tissues to the Appellant and continued on her way. Shortly thereafter, she felt that someone was following her and she turned around and saw the Appellant close behind her. She asked the Appellant why he was following her and she alleged that he then threw himself at her and encircled her with his arms from behind. It was her evidence that the Appellant’s left palm touched her right breast and she shouted loudly at him “Why did you attack my breast?” The Appellant ran away and she gave chase, shouting for help as she chased him.

3.The Appellant was stopped by PW2, a passer-by. PW2 said he heard PW1 shouting for help and pointing her finger at the Appellant. So PW2 intercepted the Appellant, and when PW1 arrived, she told him about the tissue incident and that the Appellant had followed her, whereupon the Appellant denied having followed her. PW1 then alleged that the Appellant threw his arms around her and the Appellant denied doing so. At no time did, PW1 said that the Appellant had indecently assaulted her or had touched her breast.

4.PW3 was the police officer who subsequently arrived at the scene. He gave an account as to what PW1 told him which was that the Appellant had thrown his arms around her from behind and she said that because of the circumstances at that time, “she felt that the boy wanted to snatch things from her”. (See appeal bundle page 96M-P)

5.PW3 said there was at no time any complaint by PW1 that her breast had been touched. PW3 said he then declared arrest on the Appellant for attempted snatching and that the Appellant had denied at the scene that he had ever touched PW1.

Defence evidence

6.The Appellant gave evidence that, at the material time, he was aged 19, and worked as a Tae Kwon Do trainer, earning $5,000 a month. But since mid-October 2008 he was an electric meter technician with the China Light and Power Company.

7.On the night in question, he had visited his girlfriend and went home to Wan Chai on a bus. He alighted from the bus in Queen’s Road East and was walking home via Wood Road. As he was walking down the stairs, due to his nasal allergies, his nose started running but he did not have any tissue. He saw PW1 walking down the street at the same time, so he asked her for a tissue and she gave him two pieces of tissue. He continued walking whilst blowing his nose and in one of his hand he also held a small Maxim’s bag which contained moon cakes.

8.PW1 had walked ahead of him and when he was about abreast with her, she suddenly shouted. He had no idea why and he was very scared at that time. He ignored her. Because he said he felt unwell and also he wanted to bring the moon cakes home in order to put them into the fridge.

9.He continued walking quickly. Outside no. 29 Wood Road, PW2 had stopped him and told him not to leave. PW1 had then caught up and asked him why he was following her. He told her he wasn’t and that he was on his way home. Subsequently, a report was made to the police.

10.The Appellant denied that he had ever thrown his arms around PW1.

Magistrate’s findings

11.The learned Magistrate after reminding herself of the Turnbull guidelines and the fact that there was no corroboration of PW1’s evidence was satisfied that PW1 was a truthful, honest and reliable witness.

12.The learned Magistrate did not deal with the important point raised by the defence as to why PW1 had never complained of being indecently assaulted until she arrived at the police station and gave her witness statement. She disbelieved the Appellant’s account on the basis of her full acceptance of the PW1’s account, then considered that the actions by the Appellant was indecent and that he intended such an assault on PW1 and therefore convicted him.

Appeal

13.Mr Lung on behalf of the Appellant prepared several grounds of appeal. They are :

(i)  that the learned Magistrate failed to give sufficient consideration to the fact that PW1 did not complain to PW2 or PW3 of an indecent assault at the scene nor did she mention the touching of the breast to PW2 or PW3;

(ii)  given the nature of the complaint, the Magistrate should have assessed whether the alleged assault was in fact indecent in the circumstances, and she erred in failing to consider such issue;

(iii)  the Magistrate failed to deal with material inconsistencies in the prosecution’s evidence.

14.It would be helpful, first at all, to cite from R v Court [1989] 1 AC 28 at page 42H-43D, as per Lord Ackner:

“The assault which the prosecution seek to establish may be of a kind which is inherently indecent.  The defendant removes against her will, a woman’s clothing.  Such a case, to my mind, raises no problem.  Those very facts, devoid of any explanation, would give rise to the irresistible inference that the defendant intended to assault this victim in a manner which right-minded persons would clearly think was indecent.  Whether he did so for his own personal sexual gratification or because, being a misogynist or for some other reason, he wished to embarrass or humiliate his victim, seems to me to be irrelevant.  He has failed, ex-hypothesi, to show any lawful justification for his indecent conduct.  This, of course, was not such a case.  The conduct of the appellant in assaulting the girl by spanking her was only capable of being an indecent assault.  To decide whether or not right-minded persons might think that assault was indecent, the following factors were clearly relevant—the relationship of the defendant to his victim—with a relatives, friends or virtually complete strangers?  How had the defendant come to embark on this conduct and why was he behaving in this way?  Aided by such material, a jury would be helped to determine the quality of the act, the true nature of the assault and to answer the vital question—were they sure that the defendant not only intended to commit an assault upon the girl, but an assault which was indecent—was such an inference irresistible?  For the defendant to be liable to be convicted of the offence of indecent assault, whether the circumstances of the alleged offence can be given an innocent as well as indecent interpretation, without the prosecution being obliged to establish that the defendant intended to commit both an assault and an indecent one, seems to me quite unacceptable and not what Parliament intended.”

15.In the present case, from the evidence of PW1, it was clear that the actions of the Appellant was only “capable” of being an indecent assault. It was so because PW1’s own evidence and that of the other witnesses were that, PW1 made no other allegation of an indecent assault initially. In fact, the first police officer who arrived at the scene said that PW1 had told him that she felt that the Appellant had wanted to “snatch from her” and thus, he had arrested the Appellant for attempted snatching.

16.The learned Magistrate at paragraph 36 of her Statement of Findings found that

“the Appellant intentionally assaulted PW1 in the manner described by her, that he threw himself at her and put his arms around her and touched her right breast with his left palm.  The assault and the circumstances surrounding it were capable of being considered by right-minded persons as indecent, and the Appellant intended to commit such assault.”

17.The learned Magistrate seemed to have failed to consider that the circumstances as described by PW1 was only capable of being considered an indecent assault and thus, she ought to have asked herself whether she was sure that the Appellant not only intended to commit an assault upon PW1, but an assault which was indecent and was such an inference irresistible.

18.I have considered the evidence of the prosecution witnesses and I am left with a lurking doubt because the circumstances as described by the prosecution witnesses, lent themselves not only to an inference that the Appellant may have intended to commit an indecent assault, but also an inference that he may have intended an assault in the course of snatching and accidentally touched PW1’s breast.

19.Although I agree with the Respondent counsel’s submission that it does not matter whether PW1 had subjectively or personally perceived the touching of her breast to be indecent. Nevertheless, the circumstances that she described was such that it gave rise to two inferences and some weight should be given to her initial complaint to PW3, the police officer, that, she felt that the Appellant was trying to snatch from her.

20.Respondent counsel also canvassed the point that it was never put to PW1 that the Appellant had intended to rob her. This is not the point, because the Appellant’s evidence was rejected by the learned Magistrate and we are only looking, at this stage, at the evidence that had been accepted as truthful and reliable by the learned Magistrate and based on the evidence of the prosecution there is only an inference that the Appellant intended to commit an indecent assault on PW1 but not an only irresistible one.

21.Therefore, I do find for the reasons above the conviction is unsafe and unsatisfactory, and the appeal is allowed. Conviction and sentence are quashed.

Mr Ira Lui, Senior Public Prosecutor (Ag), for the Respondent

Mr Vincent Lung, instructed by Messrs Chan, Wong & Lam, for the Appellant