HKSAR v. Hui Kin Fai, Stephen

HCMA493/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 493 OF 2010

(ON APPEAL FROM TWCC 134 OF 2010)

----------------------

Before : Hon McMahon J in Court

Date of Hearing : 20 October 2010

Date of Judgment : 2 November 2010

------------------------

J U D G M E N T

------------------------

1.The appellant was convicted of indecent assault after a trial before Mr Glass in Tsuen Wan Magistracy. He now appeals that conviction.

2.The prosecution case was that in December 2009 the appellant had, while walking through a shopping mall in Kwai Chung, quickly approached the complainant (“PW1”) from behind and intentionally touched her buttock with his hand.  This had attracted the attention of the complainant’s boyfriend (“PW2”) who had been walking behind PW1 and who had then chased and eventually caught the appellant.  The police were called to the scene but it is uncertain as to whether that was because of a report by PW1 or whether the police officers arrived at the scene on their own initiative.

3.The appellant’s case, as given by him in evidence at trial, was that he had simply been walking quickly through the mall as he was going to his daughter’s birthday party, and was in a hurry.  He said that he only realised something was not as it should be when PW2 suddenly assaulted him.  PW2 accused him of indecently assaulting PW1 and ignored the appellant’s denial and his suggestion that he may have accidentally bumped into PW1.  It was the appellant’s case that at this time he had been taking flu medication and that as his glasses were also broken he may have accidentally come into physical contact with PW1.

4.PW2 then took out his mobile phone and gave the appellant a choice of “resolving” the matter, which the appellant took to mean paying compensation, or calling the police.  The appellant told PW2 to call the police if he wished and left, but was later apprehended by a security guard and then the police.

5.The unrepresented appellant has provided me with a total of 15 pages of grounds of appeal and submissions.  His grounds of appeal can be reduced to the following terms :

(1)     that the magistrate was wrong to accept PW1 and PW2 as credible witnesses;

(2)     the magistrate wrongly ignored evidence of PW2’s assault of the appellant;

(3)     the magistrate interrupted the defence case so as to prejudice it;

(4)     the magistrate took into account inadmissible evidence;

(5)     the magistrate did not consider the appellant’s immediate denial of the offence; and

(6)    that the appellant’s counsel was incompetent.

Ground 1

6.The appellant makes a number of complaints under this ground.  The first, and perhaps primary attack, on the credibility of PW1 is that she said in her evidence-in-chief that she telephoned the police within a short distance of where the assault had occurred.  The appellant argues that her evidence in that regard was plainly wrong.  He points to the evidence of the CCTV tapes Exh. D1 (produced at trial) and Exh. D2 (produced before me).

7.Exh. D1 showed the scene of the assault upon PW1.  While the assault itself occurred after PW1, PW2 and the appellant had, to a large extent, been obscured by other pedestrians, Exh. D1 showed quite clearly PW1 and PW2 walking down the mall towards an area outside a shop called the A1 Bakery with the appellant walking rapidly behind them and catching up to them.  A commotion then occurs outside that bakery.

8.In evidence-in-chief PW1 said she called the police after PW2 chased after the appellant, and that she did so while still outside the A1 Bakery.  Subsequently she said she followed PW2’s chase of the appellant for “two steps” and immediately afterwards said she followed them for up to “30 steps” and so had followed them for “a period of time” and had not remained at the scene.  She asserted however that the bakery “was quite large” and so even though she had walked a few paces, she was still in the vicinity of the bakery when she telephoned the police.

9.Exh. D2 showed PW1 making a phone call.  It is difficult to say how far from the bakery she is or even where she is, but it does appear that she has walked some distance from the bakery.

10.The appellant relies also on the time of the commotion seen on Exh. D1, i.e. 6:55 p.m. to 6:59 p.m. (though PW1 was not seen making any phone call) to suggest that the phone call to the police by PW1 (which was accepted to have been made at 7:05 p.m.) had not been made immediately after the incident as she had said in her evidence.

11.I will deal immediately with that point. There was no evidence as to how accurate was the time displayed on Exh. D1, and the discrepancy, which in any event was not great, can have had no bearing on the credibility of PW1.

12.Allied to this point was that Exh. D2 showed PW1 making a telephone call.  The time of that call is recorded on Exh. D2 as being 7:01 p.m.  Again there was no evidence as to how accurate was the recorded time on Exh. D2, and the appellant’s assertion that the timing of this call as it appeared on Exh. D2 proved PW1 had telephoned someone else before telephoning the police at 7:05 p.m. is quite simply a red herring.  

13.As to where PW1 was when she made the phone call, the magistrate said in his findings :

“12. In cross-examination, PW1 was shown by the video to be generally following PW2 after the assault until she eventually went off the video screen. This I found was inconsistent with what she had said in chief and was also inconsistent to what she had said in her witness statement. I found from the video that PW1 had spent quite a lot of time watching what was happening around the A1 Bakery and it was only after the men had moved away from this place that she followed them until she left the video screen. PW1 said in this respect that she thought she had followed the two men for 2-3 steps, but later agreed it was 10-30 steps and then agreed it was about 32feet.

13.     I found that I did not accept PW1’s evidence that she had not moved from the area of the Bakery but found that she had done so as I said above.  I found after considering this matter that PW1 was not sure upon what she had done and this accounted for her inconsistencies. I also found that this was not a material discrepancy, as I could understand that PW1 may not have recalled accurately this part of the incident given that her attention was not particularly on her movements at this time, but on what she was watching.  I found in the end that this discrepancy did not affect my findings that she was honest and reliable in the rest of her evidence and that I could accept her evidence.  I found in the end that I could only give this inconsistency little weight.”

14.I entirely agree with that conclusion.  The assault upon PW1 and the events which followed were fast moving.  By the time PW2 and the appellant had gone out of sight, it is perfectly feasible that PW1 had moved further away from the bakery than she believed.  In any event precisely where she was when she telephoned the police was neither here nor there given the larger picture of the evidence in the prosecution case. 

15.There is no real substance to this complaint.

16.The next argument mounted by the appellant is that PW1’s evidence that she “turned and saw” the appellant approaching before the assault having been rejected by the magistrate, he should have rejected PW1 generally as a credible witness.

17.In this regard the magistrate said in his findings :

“10. In cross-examination, PW1 denied that she had seen the defendant coming towards her before the assault, but later said that when she had turned around to look she had seen him coming forwards towards her. She did not see the actual assault itself, but only felt the touching and brushing. She did not tell the police that she had seen the defendant coming in her witness statement. I found that PW1 did not see the defendant until he was right beside her after the assault even though I found she had been generally keeping an eye on her boyfriend, who was behind her, in order to see if he was still following her. I found in conclusion that I did not accept that PW1 had turned around just before the assault took place to look at her boyfriend and that she had seen the defendant approaching. I therefore considered whether this finding caused me to disbelieve the rest of PW1’s evidence, but I found that whilst I rejected that part of PW1’s evidence it did not cause me to disbelieve the rest of her evidence. I found in the end that I could only give this matter little weight.”

18.The magistrate’s conclusion that he could not rely on PW1’s evidence that she saw the appellant prior to the assault was a rational one, based on her having not told the police this, and on her having said that at the point of time of the actual assault she had not seen the appellant. 

19.This was a relatively minor aspect of PW1’s evidence and while it was possible she was mistaken in this particular regard, it had little to do with her evidence that she had been touched by someone, and had then turned to her left and seen the appellant at her shoulder.  The magistrate accepted PW1’s evidence in that regard.  PW2 who (probably unknown to the appellant) was walking behind PW1 at that time, saw the assault and identified the appellant as the person who touched PW1’s buttock.  I agree with the magistrate’s assessment that his rejection of this particular aspect of PW1’s evidence was of little weight in considering her credibility as a whole.

20.Complaint is also made of PW1’s and also PW2’s replies to various questions in cross-examination as to why they had not told the police of some details of the case which they gave in their evidence. Their replies were usually couched in terms such as “I did not inform the police as they did not ask me” and “I did not know it had to be written down as detailed as this”.  That is not an unusual response from a witness and is, without more, generally a neutral factor in the assessment of a witness’s credibility.  There is nothing in this point.

21.The appellant complains also that PW2’s evidence was so full of inconsistencies that it should have been rejected by the magistrate and that the inconsistencies with the evidence of PW1 gave sufficient reason to reject both witnesses’ evidence.

22.PW2’s evidence was that he saw the appellant deliberately touch PW1’s buttock.  He was in a position to see this as he was walking behind PW1.  He described the appellant’s hand at the time as being “open at a slight angle” with the palm forward and that there was “the action of a squeeze so that the whole action could be described as ‘a scoop’.”

23.The appellant firstly complaints that in his witness statement, PW2 had described the action as “a put down posture”, and that that description was contradictory to the descriptions given in his evidence.

24.Firstly, the witness statement of PW2 was not produced at trial.  Nor was it ever suggested to him in cross-examination that his statement contained the phrase “put down”.  I do not propose to give this assertion therefore any weight.

25.So far as the other descriptions of the appellant’s action given by PW2 are concerned I do not think they are internally inconsistent.  They all describe in various ways the same action.

26.One matter which did arise during cross-examination in respect of PW2’s description of the appellant’s action was that in his witness statement he had made no reference to the appellant squeezing PW1’s buttock.  He had repeated on a number of occasions in his evidence that the appellant’s action was a squeeze. 

27.His evidence in cross-examination was :

“Q. When you made a statement to the police your – matters were fresh in your mind, is that right?

A. Yes.

Q. Right. You made a statement explaining what you thought you saw?

A. Yes.

Q. You didn’t mention anything about the defendant squeezing the – your girlfriend’s bottom, did you?

A. Maybe there are different interpretations of the action of squeezing, but I would like to add that the demonstration I did in the court would be the best illustration.”

28.That demonstration resulted in the magistrate describing the action as a “scoop”.  I might add the matter was not taken any further in cross-examination and I do not think the omission of a reference to “squeeze” in PW2’s witness statement, if that be the case, is sufficient to destroy the credibility of an otherwise consistent and straightforward eye witness’s account, particularly in circumstances where he was asked, both at the time of making his police statement and in giving evidence, to offer a subjective description of an action lasting for a fraction of a second.

29.It is said that his description of the appellant’s action was inconsistent with PW1’s description in evidence of feeling “pressure and brushing” when someone had touched her left buttock.

30.I do not think there is any merit in this. PW1 gave evidence of what she felt and PW2 of what he saw.  The appellant’s criticism compares apples and oranges, and that is an approach of little value.

31.A final criticism of PW2’s evidence stems from this part of his cross-examination :

“Q. Yes. At the moment the defendant came close your girlfriend it was a very, very short, very brief moment, he was walking towards her, and then he launched himself to the left away from her, as it were, to get around her?

A.   I think I need to clarify that at that time in our vicinity, I mean two or three people length, there were no people.  So, I thought the route taken by the defendant was very strange.”

32.It is said this is contradicted by PW1’s evidence that :

“Q. All right. And other than the defendant, [were] any other persons near you?

A. Yes.

Q. How far away was the nearest one other than the defendant?

A. Around half of a step.

Q. Where was that half step away person?

A.  Actually at that time there were many pedestrians.”

33.I do not see any practical contradiction. Both witnesses were giving evidence of an event taking place amidst a rapidly changing pedestrian crowd.  At any one moment either description could correctly describe the situation.  That is borne out by Exh. D1, the CCTV evidence produced on behalf of the appellant. 

Ground 2

34.Following the assault upon PW1, PW2 immediately chased and grabbed the appellant.  It was suggested on behalf of the appellant at trial that PW2 had assaulted the appellant.  PW2 denied that but agreed he “pushed and pulled” the appellant and behaved in a threatening way.  The appellant’s case was that he had been struck by PW2 and had complained to a police officer (“PW3”) who had arrived at the scene and that he (the appellant) had subsequently asked to be taken to hospital. 

35.When PW3 was called he gave evidence that when he arrested the appellant the appellant had told him that he had been hit by PW2 and that the appellant had later been taken to hospital. 

36.The magistrate had expressed concern at the commencement of PW3’s evidence that events after the actual indecent assault concerning the appellant’s allegation as to whether PW2 struck him or not might not be of assistance to him in deciding whether the indecent assault on PW1 had occurred.  He thought it of only marginal relevance, bearing in mind that there was no issue as to the admissibility of the statement made by the appellant to the police.  Nevertheless the magistrate allowed the evidence to be given and in his findings concluded :

“22. I listened carefully to the evidence given by the defendant and I noted how he was seen walking in the video before the incident and his behaviour after the incident and I noted his evidence that he had been hit and punched when being apprehended by PW2. It was not in issue that he had gone to the hospital later after arriving at the police station. However, even after so doing I found that I was not impressed with his evidence and I found I did not believe he was telling the truth. I therefore rejected his evidence when it conflicted with the prosecution witnesses’ evidence.”

37.The evidence of the appellant in this regard was rejected.  The appellant produced before me a report of his examination at hospital which was unavailable at trial.  That examination found redness at the left shoulder area, back, and lower back of the appellant.  Those findings are however consistent both with the evidence of the appellant and the evidence of PW2, and take matters little further. 

38.In any event in my view this was all something again of a red herring.  The magistrate, as he recognised, was concerned with what happened at the time of the alleged indecent assault, and the details of the subsequent actions of an angry boyfriend were not of any particular probative value in that regard.  The subsequent events were, if anything, relevant only to the credibility of both the appellant and PW2.  And in that regard again were of little assistance.  There is no merit in this ground. 

39.A connected complaint of the appellant was that his counsel was incompetent in not obtaining the medical report for the trial.  It appears from the transcript that it had been requested but had not been provided by the Hospital Authority in time for the trial.  There is nothing in this.  The report, as it turned out, was of little assistance to the appellant’s case, the issue was of marginal relevance and counsel was right to proceed in the absence of a document which was little more than a distraction from the real issues.  In any event counsel for the appellant got much of this evidence before the magistrate through PW3. 

Ground 3

40.The appellant complains that the magistrate interrupted the defence case so as to prejudice it. 

41.There is no merit in this ground whatsoever. The appellant’s evidence was given almost without interruption by the magistrate, his interventions being mostly limited to dealing with exhibits and other formal matters.  There was one occasion relating to an enquiry concerning a leading question, one as to relevance and not much more.  The appellant’s defence was in no way prejudiced.  The magistrate’s approach was as consistent throughout the prosecution case.  It is true he intervened on a number of occasions when counsel’s questions were repetitious, or when the questions related to matters which were irrelevant (for example the point of time when the appellant had been formally arrested as opposed to when the appellant was apprehended by the police).  He intervened to manage the timetable of the case.  But when the evidence did concern the issues he remained well out of the arena. 

42.This ground fails. 

Ground 4

43.Under this ground the appellant complains the magistrate took into account inadmissible evidence. 

44.He firstly complains that in her evidence PW1 had stated that she had been deliberately touched.  PW1 had been asked in cross-examination whether she agreed that it was possible that the touching may have been accidental.  She agreed it was possible but said she did not think it was accidental. 

45.There was nothing to suggest the magistrate based his conclusion in any way on this aspect of PW1’s evidence, though he mentioned it briefly when summarising her evidence.  In doing so he was apparently concerned with comparing her belief she had been touched in a brushing motion with PW2’s observation that she had been squeezed.  That was a perfectly valid comparison to make.  In any event the real evidence determining whether or not the touching was intentional came from PW2.  He saw the appellant’s actions at the time the appellant touched PW1 and if his evidence was credible there was only one inference to be drawn and that was that the appellant had intentionally touched PW1’s buttock.  I agree with the magistrate that PW2 was a credible witness and am satisfied that the magistrate’s conclusion that the appellant’s touching of PW1 was intentional was correct. 

46.The appellant complains that the magistrate wrongly placed reliance on the appellant’s flight from the scene.  The answer to that assertion is simply that the magistrate did not do so, merely referring to this evidence in his summary, presumably for completeness. 

47.Finally the appellant complains that in one of his answers PW2 said he only “thought” he had seen the appellant touch PW1.  PW2 had been asked about the point of time when he had taken hold of the appellant and PW1 came up to them :

“Q. What did you ask her?

A. I ask her if someone touch her.

Q. Why did you ask her that?

A. Because I want to make sure.

Q. Because you weren’t sure what had transpired?

A.  I disagree, I only wanted another person to confirm what I think.”

48.No further cross-examination on this point took place, almost certainly because in the context of his evidence as a whole where he had given detailed testimony and a demonstration as to what he had seen that it must have been plain to all in the courtroom that in no way was he unsure of what he had seen. 

Ground 5

49.This ground is that the magistrate did not give sufficient weight to the appellant’s immediate denial of the offence when confronted by PW2. 

50.The appellant’s denial in these circumstances is in no way probative.  The denial was as consistent with an attempt to avoid trouble as with innocence and the magistrate was right to place no weight upon it. 

Ground 6

51.By this final ground the appellant complains about other aspects of his counsel’s competence in addition to that mentioned under Ground 2 above.  He argues that his counsel did not take sufficient issue with the discrepancies in PW1’s evidence concerning when and where she telephoned the police.  Counsel no doubt realised that precisely where PW1 had been when telephoning the police was not determinative of her credibility, and nor was the time shown on the CCTV tape so accurate as to enable any substantial attack upon her credibility to be made.  Counsel did make what ground he could out of PW1’s changing evidence as to how far she had gone from the immediate vicinity of the attack before she telephoned the police.  That was sufficient in dealing with an issue which in the circumstances of the case was relatively minor. 

52.Other complaints are made by the appellant in respect of both this ground and generally.  They may accurately be categorised as misconceived and trivial. 

53.There is nothing in this appeal of any merit. I have read the evidence of the witnesses.  I am satisfied the magistrate’s assessment that PW1 and PW2 were reliable and honest witnesses is correct and that his rejection of the appellant’s evidence was also correct.  I agree with the magistrate’s conclusion. 

54.The appeal is dismissed. 

Ms Eva Chan, PP of the Department of Justice, for the Respondent

Appellant in person, present