HKSAR v. Cheung Chi Wang

HCMA1021/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1021 OF 2009

(ON APPEAL FROM TMCC 3766 OF 2009)

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BETWEEN

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Before : Hon McMahon J in Court

Dates of Hearing : 22 and 30 July 2010

Date of Judgment : 30 July 2010

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J U D G M E N T

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1.The appellant, a 54 year-old male, was convicted of an offence of indecent assault at Tsuen Wan Magistracy and was sentenced to 6 weeks’ imprisonment. He now appeals his conviction and seeks also to appeal his sentence out of time.

2.The prosecution case was that at the material time the appellant had been employed as a security guard at a building where the complainant (“PW1”) , an 18 year-old girl, was a resident. 

3.When PW1 returned home from work at about 10:30 p.m.on the night of the offence she entered the lift on the ground floor of her building and pressed the 13^th floor button.  The appellant, who apparently lived, as well as worked in the building, also got in the lift and pressed the 11^th floor button.  

4.When the lift commenced its journey the appellant commenced a conversation with PW1 but then after a short while he reached out and stroked her arm with his hand. PW1 pushed his hand off her arm.  She then moved away from the appellant so far as she could but the appellant reached out and touched her on the right breast.  PW1 swung away from him and covered her breasts with her arms but the appellant continued to reach out at her and again stroked her on the arm.  The lift then arrived at the 11^th floor and the appellant got out.  

5.PW1 eventually made a report to the police. 

6.The appellant did not give evidence but relied upon the contents of his cautioned statements given to the police.  In those statements he said he simply patted PW1 on the shoulder as a form of greeting.  The more relevant parts of those recorded statements are as follows :

“Ah Sir, while taking the lift, I only asked her what her job was. The girl said she worked in a pet shop, so I was curious and asked: Wow! You are so young, aren’t you afraid of dogs? When I said so, I did pat her only on her shoulder with my hands!”

and then later :

“Yet, as for the fat girl I was accused of indecently assaulting, I really do not know her. It was the first time meeting her in the lift. At that time I just wanted to greet her so I patted her. In brief, it was not as she said that I had indecently assaulted her.”

and finally :

3. The lift door opened when I went into the lobby. The girl then walked into the lift, so I went after her. Right before entering (the lift) the security guard even called her ‘Fat Girl’ once. After going into the lift with me, she pressed 13^th floor while I pressed 11^th floor. I thought it was quite funny that she was called ‘Fat Girl’, so I joked with her and said, ‘You are not that fat!’ Why did he call you fat girl?’ I also asked her, ‘Have you had your meal?’ You have worked until now? What do you do? Why are you off work so late?’ Then she said ‘Pet Shop.’ Then I said, ‘You are so young to work in a pet shop so young, wow! You are not afraid of cats and dogs?’ It was this sort of conversation. I patted her on her shoulder with my hand naturally at that time. Yet as for trivial matters such as whether I have pattered once or more, I really do not remember. Then the girl just looked at me, ignored me and said nothing. Seeing her like that, I took no more notice of her. I then went out of the lift on the 11^th floor and walked down to the 10^th floor to go home.”

7.The magistrate ultimately rejected the appellant’s account as set out in his cautioned statements and accepted the evidence of PW1. 

8.The grounds of appeal advanced by Mr Sherry on behalf of the appellantare to the effect that the magistrate was wrong to disbelieve the account given by the appellant and accept that of PW1. 

9.He firstly points out that there was considerable similarity between the version of events provided by the evidence of PW1 and the contents of the statements of the appellant.  Mr Sherryasserts that, given that similarity the magistrate was wrong to reject the version provided by the appellant “out of hand”.  

10.I do not think the similarity of the versions provided by the appellant in his cautioned statements and by PW1 in her evidence provides any basis to challenge the magistrate’s findings.  In many criminal cases the prosecution evidence is in large part common ground with the defence case, often differing on only one crucial element of the offence.  Indeed most criminal trials reduce themselves to one or a small number of issues at the end of the day.  That this is so in the present case is not a matter which can assist the appellant. 

11.It is true the magistrate dismissed the appellant’s version of events quite briefly.  In his oral findings (adopted in his Statement of Findings) the magistrate said :

“I have to say that I find that version of the events is not credible. I do not regard it as credible that a man, in his 50s, would pat the shoulder of a young woman who was a stranger to him as a friendly gesture. I do not believe the version of events putforwardby the defendant in his statements under caution and I reject that version.…”

12.It must be remembered however that the appellant’s version of events was contained in his cautioned statements only.  He gave no evidence.  His statements were not therefore subject to cross-examination and so could not be tested as can oral evidence (such as that of PW1). 

13.The magistrate was entitled to place little weight on the exculpatory part of those statements, i.e. the assertion of the appellant that he touched only the arm of PW1 and no other part of her body. 

14.In any event, I agree with the magistrate that there is something inherently unlikely in Hong Kong society for a middle-aged man to pat the shoulder of a young girl at night during the passage of a lift trip when both were strangers. 

15.Mr Sherry also complains that as the appellant was a security guard he must have known there was a CCTV camera in the lift. In those circumstances, it is argued, it is most unlikely the appellant would have indecently assaulted the complainant. 

16.In that regard the magistrate said in his findings :

“…It was submitted that the defendant would not be so stupid as to indecentlyassaultsomeone in the building where he lived and in a lift in which he must have known there was a CCTV system in operation.

People do sometimes do stupid impulsive actions. Furthermore, one aspect of his statement under caution that I think can be safely relied upon was his statement that he had been drinking wine. Alcohol, notoriously, is known to loosen inhibitions. …”

17.I agree with thatassessment.  I note also that no CCTV recording was produced by the prosecution at trial.  Whatever the reason, the CCTV camera in the lift was unable to provide evidence of the offence.  Perhaps of consequence was the evidence of PW1 in cross-examination.  It was put to her that she was aware of the presence of a CCTV camera in the lift, and she agreed.  In those circumstances the corollary of Mr Sherry’s argument would have at least some weight in that if PW1 were to fabricate a false complaint she would have done so in the circumstance of this case knowing that what happened in the lift may have been recorded. 

18.Mr Sherry also suggests that the evidence of PW1 should have been rejected on the basis that there was insufficient time for the events she described to have happened in the brief period it took for the lift to arrive at the 11^th floor of the building.  

19.There was no evidence as to how long it took the lift to arrive at the 11^th floor, but in any event the events described by PW1 were themselves brief and may have taken longer in the telling than in the occurrence.  For the purposes of presenting his argument Mr Sherry broke the events up into “stages”, and supported his case by submitting that all three stages had to take place within the short time allowed by the lift journey.  I think that approach is somewhat artificial and that the events described by PW1 were more in the nature of a continuous sequence which could comfortably have taken place during the 11-floor journey.  

20.The final complaint of substance is that the magistrate accepted and took into account part of the appellant’s statements to the police, i.e. that he had been drinking chicken wine; but that another part was rejected, i.e. the appellant’s assertion that he was not drunk. Mr Sherry argues that by accepting only part of the appellant’s statements the magistrate had adopted a contradictory approach to the evidence in respect to this matter.  I do not think that to be so, the magistrate was perfectly entitled to place greater weight on those parts of the appellant’s statement which were in the nature of admissions and less or no weight on any part which was exculpatory. 

21.In my view none of the complaints directed at the magistrate’s findings had merit and, having read the evidence of PW1, it is quite clear she was firm and consistent in her evidence-in-chief and unchallenged in cross-examination in any substantial sense. 

22.I agree with the conclusions of the magistrate and the appeal against conviction is dismissed.  

23.The application to appeal sentence out of time has more merit.  I accept that the application is well out of time, being made by way of Notice of Motion on 16 July 2010, more than 7 months after sentence. 

24.No particular reason was advanced for the delay other than the appellant (by way of his supporting affirmation) stating that the original counsel he had retained had failed to advise him that he had grounds for an appeal against sentence.  Of itself that would in my view be insufficient, but another factor to consider is the strength of the grounds. 

25.That which is advanced on behalf of the appellant is that the 6 weeks’imprisonment imposed is in excess of the guidelines suggested in AG v Wai Yan Shun (1991) 2 HKLR 209 where the Court of Appeal said :

“…the circumstances giving rise to the commission of the offence of indecent assault can vary considerably - ranging from the quick brush of a hand against the fully clothed anatomy of a victim in a well lit crowded environment to a situation little short of a…rape.”

but nevertheless went on to suggest guidelines for what then were, and unfortunately still are, prevalent offences of this sort committed on MTR trains.

26.Those guidelines were :

“In our view, given the prevalence, for a first offence the 'clang of prison gates' should now be the normal sentencing option. A period of imprisonment between 14 and 28 days, depending on the place in the scale warranted by the facts would not be interfered with. For a second offence, sentence could well be between 2 to 6 months' imprisonment.”

27.On 12 July 1991, a few weeks after Wai Yan Shun, the maximum penalty for indecent assault was doubled from 5 years’imprisonment to 10 years. 

28.In AG v Ng Sai Man (1994) 1 HKCLR 151the Court of Appeal re-considered Wai Yan Shun and in respect of the increased penalty said :

“Before leaving the case of Attorney General v. Wai Yan-shun (supra), we note Mr Cross's point that shortly after that case was decided the maximum penalty for this offence was increased from five year's imprisonment to ten year's imprisonment. The courts should not be unmindful of such developments. But, on the whole, we are not disposed to revise the Attorney General v. Wai Yan-shun (supra) guidelines simply on the strength of this development. After all, those guidelines cover terms of imprisonment counted by weeks rather than months when it comes to a first offence and months rather than years when it comes to a second offence. The revision upwards of the maximum penalty was probably a reflection of the reality, recognised in Attorney General v. Wai Yan-shun (supra), that at the top end of its seriousness this offence borders upon rape.”

29.It may be accepted that for offences of this sort which are at the lower end of the scale of seriousness of the guidelines in Wai Yan Shun those guidelines are of considerable assistance, although the court in that case may well have intended those guidelines to relate particularly to offences committed on the MTR (and other forms of public transport), which offences were increasing in prevalence at the timeof that judgment.

30.I accept the present offence is at the lower end of the scale.  The assault was over the clothing of PW1 and restricted in its scope.  But I take into account that it is an aggravating factor, on the principle set out in AG v Ho Yu Ping (1996) 1 HKC 555, that the appellant was a security guard whose duty it was to protect the occupants of his building rather than molest them and that it occurred not in an open public place but when PW1 was alone with the appellant in the closed confines of the lift and that the assault was not fleeting but was to some extent persevered with. 

31.Nevertheless on the guidelines in Wai Yan Shun I am satisfied that, taking the nature of the assault itself into account and all the circumstances in which it occurred, the sentence of 6 weeks’ imprisonment is too severe and that, bearing in mind the clear record of the appellant (this therefore being his first offence of this sort) a sentence of 4 weeks’ imprisonment would have been appropriate.  

32.Accordingly the sentence having being well in excess of the guidelines for offences of this sort, even though the reason given for the application to appeal that sentence being significantly out of time not being of itself determinative, I am ofthe view that leave to appeal the sentence out of time should be granted, that the appeal is allowed and I order thatthe appellant’s sentence be reduced to one of 4 weeks’imprisonment.  

Ms Peggy Leung, PP of the Department of Justice, for HKSAR

Mr James Sherry, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., for the Appellant