HKSAR v. Fan Sai on

[English Translation - 英譯本]
HCMA 860/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 860 OF 2009

(ON APPEAL FROM TWCC 3023 OF 2008)

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BETWEEN

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Coram: Hon Tong J in Court

Date of Hearing: 14 January 2010

Date of Judgment: 26 March 2010

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JUDGMENT

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Background

1.The appellant was charged with one count of Indecent Assault.

2.He pleaded not guilty and was found guilty by the learned magistrate after trial. He appealed to the Court of First Instance against conviction.

Prosecution’s evidence

3.As pointed out by the learned magistrate, the main witness of the prosecution was Ms. Lee [transliteration, 李] (“PW1”). Her evidence was that sometime between 11 a.m. and 12 noon on 25 June 2008, she was shopping in a supermarket. Her husband was nearby. She was wearing a T-shirt and a pair of shorts. She said that when she bent forward and was selecting goods on the shelves, the appellant walked from her left to her back and that at this moment she felt a finger move from her left buttock downwards to her thigh. She at once turned round and saw the appellant. She immediately complained to her husband that she had been indecently assaulted and pointed out that the assailant was the appellant. The appellant denied the accusation there and then.

4.The appellant personally cross-examined PW1 and put it to her that the contact was only an accident, but PW1 did not agree. She said that the aisles at the scene were quite wide, so that the appellant did not have to come near her.

Defence case

5.After the prosecution witnesses finished giving evidence, the appellant elected to give evidence. His evidence was that on the night before this incident he felt unwell.  His indisposition and the poor conditions of his home led to the result that he could not sleep well. Owing to insufficient sleep, he had a bad headache. On that day, he entered the supermarket because he intended to buy a bottle of water. When he walked past the back of PW1, his hand bumped against her accidentally. He did not do that intentionally. He said he did not brush PW1’s body with his hand. The appellant even said that at the scene PW1’s husband had beaten him up.

The magistrate’s consideration

6.After consideration, the learned magistrate rejected the appellant’s evidence.  He held that under the circumstances objectively in existence at that time, the appellant had no need to walk past PW1 within a very close distance from her, nor was it necessary for him to “walked past quickly” in the supermarket.  The magistrate found that the actions described by PW1 was not consistent with an accidental touch.  If there was really any “accidental” bumping, that should only have been a horizontal brushing movement, and it should not have been a vertical downward movement as described by PW1.  Having taken into account the evidence in its entirety, the learned magistrate found that the appellant was not credible and that his evidence did not raise any reasonable doubt.

7.It is clear that the learned magistrate accepted PW1’s evidence and based on her evidence he finally convicted the appellant.

Grounds of appeal

8.Mr. Luk, counsel for the appellant, put forward the following grounds of appeal:

“1. The learned magistrate failed to make findings of fact in respect of the following vital issues in this case (para. 12 on p.14 of the bundle):

(a) Whether a touch purely confined to PW1’s thigh could amount to an indecent assault;

(b) Whether, if it was not indecent, it could amount to an assault, see HKSAR v Shum Tak Sing (HCMA 858/2001) and HKSAR v Lam Sui Kwong (HCMA 1021/1997).

2. The prosecution wrongly neglected to draw the learned magistrate’s attention to material discrepancies in the victim’s evidence, so that the learned magistrate failed to notice and consider that there were serious discrepancies in the victim’s evidence about the direction in which the defendant’s brushing of her left thigh proceeded. The particulars are:

(a) When the victim gave evidence in court, she said two times in succession that the defendant brushed her once, that the part brushed was the side of her thigh which faced outwards, and that the movement was a downward movement, starting from her [buttock]. ……

(b) In the Statement of Findings, the learned magistrate recorded in the part about prosecution’s evidence that ‘When she bent forward and was selecting goods on the shelves, the defendant walked from her left to her back and at this moment Ms. Lee felt a finger move from her left buttock downwards to her thigh.’……

(c) In the Statement of Findings, the learned magistrate stated that ‘I accepted the defendant [sic] at the material time someone did move his finger from her left buttock downwards and brushed her left thigh.’ ……

(d) However, in the victim’s statement provided to the police, she stated that she felt that 4 fingers brushed upwards once towards her [buttock] along the side of her thigh which faced outwards near the knee. That is clearly different from her evidence in court. ……

3. The learned magistrate misunderstood the victim’s evidence in that in his Statement of Findings, he stated that ‘When she bent forward and was selecting goods on the shelves, the defendant walked from her left to her back and at this moment Ms. Lee felt a finger move from her left buttock downwards to her thigh.’ …… when, however, the statement of the victim was that she felt that 4 fingers brushed downwards [sic] once from her [buttock] along the side of her thigh which faced outwards. ……

4. The learned magistrate wrongly rejected the defendant’s evidence, i.e. ‘On the night before this incident he felt unwell. His indisposition and the poor conditions of his home led to the result that he could not sleep well. Owing to insufficient sleep, he had a bad headache. On that day, he entered the supermarket because he intended to buy a bottle of water. When he walked past the back of Ms. Lee, his hand bumped against her accidentally. He did not do that [intentionally]’ ……

5. The learned magistrate, without sufficient evidence, ruled out the possibility that such an accidental bumping could happen. The particulars are:

(a) The learned magistrate failed to take into account the fact that before the incident happened the victim had already seen the defendant walking slowly forward, with his hands swinging to and fro. ……

(b) Under whatever circumstances, there was no sufficient evidence on which the inference that the defendant committed indecent assault could be made.”

Discussion

9.I have gone through relevant parts in the transcript about the issues raised by the appellant.  I will deal with the grounds put forward by the appellant, taking them as a whole.

10.Basically, PW1’s evidence about the appellant’s actions was as follows (see p.32U to p.33G of the appeal bundle):

“Q: Just now you said that he was walking towards you. What happened next? What did you do?

A: Next, when I was selecting noodles, I felt that there was a hand, 4 fingers, on my buttock; I mean the side of my thigh which faced outwards, it brushed downwards once from my buttock.

Court: The side of your thigh which faced outwards, please say that again.

A: On … brushed downwards once from my buttock.

Court: Go on.

Q: Your left thigh or your right thigh?

A: Left.

Q: You said there were 4 fingers. Were they the fingernails of these 4 fingers or the part of the fingers near the palm? I mean according to what you felt.

A: This part.

Court: Palm.

A: Mm.” [emphasis added]

Later, PW1 explained that the “length” of the place along which the man touched her was the distance from her buttock to “half of the thigh above the knee”, i.e. half of the length of her thigh (p.33R to U of the appeal bundle).

11.During cross-examination, the appellant raised the issue about “accidental touch”, but PW1 disagreed that there was such a possibility and she gave her reasons (see p.33T to V of the appeal bundle).  In this regard, the learned magistrate had observed the demonstration done by PW1 in court.

12.When the appellant gave evidence in court he described, according to his memory, what happened (see p.39F to L of the appeal bundle):

“A: Over a long period of time I have been sleeping… My living conditions are very poor. In my home … in summer it is very hot. It is constantly over 30 degrees. Well, I was unable to have any rest at home. I had to find somewhere outside in order to have any rest. In that case, over a long period of time I have not been able to get enough sleep. In addition, I had stopped receiving C.S.S.A. payments for some time, so I didn’t have money to see a doctor; and the document I got had expired, therefore no matter I was suffering from any disease, the only thing I could do was to endure it and did not see any doctor. Some time ago, there were sores in my gum, which were very … I mean the gum in the front, behind the upper lip, was badly swollen, and very painful and … it affected … Sometimes it affected my power of judgment. When I was walking past [her], I was walking quickly and I didn’t stick my eyes on how she bent forward. When she bent forward, the part which stuck out … I mean she occupied more space above the floor, and I carelessly, I mean my hand bumped against her, bumped against her, but… I mean my hand bumped against her, just like that. I did not brush upward in any way. I was walking, walking quite quickly at that time. I wouldn’t ……

Q: You did not do what?

A: I did not brush. I mean I bumped against her in a natural way, bumped against her in a natural way. I did not … how should I describe it? I did not touch her or brush any part of her with any motive in my mind. Once I got in touch with the skin on her thigh, I … I did not touch the area at her waistband at all. I just walked past. After I walked past, I heard the woman say that someone touched her. Then a man beat me up.” (emphasis added)

13.Under cross-examination, the appellant agreed that at that time PW1 had “bent forward” and that he just walked past and did not “bent”.  The prosecution put it to him that if he did not intentionally lower his hand, it would not have been possible for him to do the actions which resulted in the touching of that part of PW1’s body.  In response to this challenge based on common sense, the appellant’s answer was “it was not within that area at all” (see p.43 of the appeal bundle).

14.Having seen and heard PW1 give evidence, the learned magistrate accepted what she said, that is to say, he accepted her evidence about which part of her body was touched and in what circumstances she was touched.  On the basis of this finding of fact, I think that it is hard to establish the proposition of “unintentional touching” put forward by the appellant.

15.The appellant also pointed out that the description of the touching stated by the learned magistrate in paragraph 7 of the Statement of Findings was different from that in paragraph 9, so that there were discrepancies.  After consideration, my view is that the description made by the learned magistrate in paragraph 7 that PW1 felt “a finger” is inaccurate, because what PW1 said was that she felt that “there was a hand, 4 fingers”.  However, in this regard, it is clearly only a slip of the pen on the part of the learned magistrate.  In my judgment, this will not affect the decision he made.

16.The appellant emphasized that PW1 in her witness statement stated that what the appellant did was a movement which proceeded “from a lower level to a higher level”, but her evidence in court was that it was a movement which proceeded “from a higher level to a lower level”.  The appellant regarded it as such a material discrepancy that the prosecution should have brought it to the notice of the learned magistrate during the trial.  Mr. Luk cited two cases to support his contention: Szeto Ming v R [1978] HKLR 61 and HKSAR v Wong Hong Wai, HCMA398/2002.

17.I agree that in the past in the case of a defendant who was unrepresented, under certain circumstance the prosecution should draw the magistrate’s attention to material discrepancies between what a witness said in his written statement and what he said in evidence in court.  However, I must point out that the prosecution have changed the practice which they adopted in the past.  Now, before a trial begins they will surely supply duplicate copies of the statements made by the prosecution witnesses to the defence, including unrepresented defendants.  That being the case, the circumstances then in existence at the time of Szeto Ming (in 1978) were different from those at the present time.  Furthermore, the discrepancy involved in that case is indeed a serious inconsistency.  As for Wong Hon Wai, it is about the requirement that a magistrate should explain to an unrepresented defendant volutariness and admissibility concerning statements.  These issues have little to do with the present case.

18.Prior to the trial, the learned magistrate had already reminded the appellant about matters in connection with this, but the appellant did not raise this point in his cross-examination.  Under these circumstances, was the prosecutor of this case duty-bound to “disclose” to the learned magistrate for the appellant this “discrepancy”?  The appellant admitted that he did touch PW1.  He said his recollection was that he touched her right side but he forgot the details due to the long lapse of time.  On this basis, whether the touching by the appellant proceeded from a higher level to a lower level or from a lower level to a higher level is not that important.  I do not agree that this is, as described by Mr. Luk, such a serious discrepancy that the prosecution was required to disclose on their own initiative.  I accept the respondent’s submission that the prosecutor had no duty to bring this matter specifically to the notice of the learned magistrate.

19.I do not think that it is necessary for the learned magistrate to specify whether the touching of a lady’s buttock/thigh amounted to an indecent assault or just assault.  In the circumstances of this case, such conduct would be considered by right-minded persons as indecent.  There is nothing unreasonable in the learned magistrate’s rejection of the appellant’s evidence either.

Conclusion

20.Judging from all the circumstances of this case, I find that the grounds of appeal are not substantiated.  I dismiss the appeal and uphold the conviction.

Mr. Ned Lai, Senior Public Prosecutor of the Department of Justice, for the HKSAR.

Mr. Victor Luk, instructed by Hampton, Winter & Glynn, for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.