HKSAR v. Li Ka Man

HCMA 824/2010

HEADNOTE

The prosecution must, on a charge of indecent assault, prove beyond reasonable doubt not only that the accused intentionally assaulted the victim but also that it was an assault that right-minded persons would consider indecent and that the accused intended to commit such an assault i.e. an indecent one. In forming a judgment on these matters, the part of the victim’s person that was touched is far more relevant than the force with which the victim was touched.

HCMA 824/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 824 OF 2010

(ON APPEAL FROM KTCC 3167 OF 2010)

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 27 January 2011

Date of Judgment: 2 February 2011

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J U D G M E N T

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1.This Appellant, a man of previous good character now aged 50, was convicted in the Magistrates’ Court on a charge of indecent assault and sentenced to two weeks’ imprisonment. He now appeals against both conviction and sentence.

2.The case against the Appellant arises out of what the prosecution says happened on the night of 8 October 2009 at the nightclub of the Club House at the Lai Chi Kok Reception Centre.  It is the prosecution’s case that at that time and place, the Appellant, a Correctional Services Officer, indecently assaulted Miss Law Siu Kwan, who was working there as a witness, by intentionally touching her buttocks.

3.As to that, the issue between the prosecution and the defence and the facts which the Magistrate found on that issue can be gathered from paragraphs 4, 5, 20 and 21 of his Statement of Findings. Paragraph 4 reads:

“Miss Law described the events leading up to the smacking of her buttock - there were 3 prior incidents – two relating to actual touching of her hand and a third one of attempting to touch her hand by the defendant; there were also utterances by the defendant words to the effect that ‘Would you accept my pursuit?’ or ‘You would not complain me like Kam Nai Wai’s assistant did?’”

That is followed by paragraph 5 which reads:

“The defence case is a case of total denial – there was neither touching nor utterances.”

The prosecution says, but it is not established by evidence nor a fit matter for judicial notice, that the complaint of which the Appellant spoke refers to media accounts of a complaint made by a politician’s assistant that he had attempted to develop an affair with her.  This part of the evidence must be left out of account.

4.In Paragraph 20, the Magistrate says:

“I also note that when she described the final incident – the touching of her buttock – in fact, she did not actually see who did it.”

Then, in paragraph 21, the Magistrate continues by saying:

“On the evidence before the court, the only conclusion I could come to is that it was the defendant who did it. When the incident happened, she immediately confronted the defendant and walked away. While she was walking away, the defendant said to her, ‘You wouldn’t complain me like Kam Lai-wai’s assistant, could you?’ The touch was on her right buttock, it may be argued that it could have come from either side, however, judging from the whole of the circumstances and what the defendant said after the touching occurred, I have no doubt in my mind it was the defendant who smacked Miss Law’s buttock.”

5.In finding that the Appellant had indecently assaulted Miss Law by touching her buttocks, the Magistrate accepted her evidence and rejected his evidence.  The Magistrate did so after saying that he bore in mind, when considering the whole of the evidence, that the Appellant’s clear record helped him in that it meant that he “is less likely to have committed the offence” and that what he says is “more likely to be the truth.”

6.As to conviction, three substituted grounds of appeal are now relied upon.  They read:

“1. The learned Magistrate wrongly permitted evidence of recent complaint to be adduced, when that evidence showed that no complaint in relation to such a simple and minor assault was made for 4 days. It was not made at the first reasonable opportunity and therefore the evidence was inadmissible.

2. The learned Magistrate wrongly and repeatedly referred to the physical conduct as a ‘smack’ when the complainant herself described it only as a ‘pat’ and thereby misapprehended whether it was indecent or merely a common assault.

3.            The learned Magistrate only dealt with whether the conduct was indecent in para 29 of his Statement of Finding.  He failed to consider whether a single, playful, low-impact pat on the right buttock of the complainant was necessarily indecent as opposed to amounting to only common assault.”

In the paragraph of the Statement of Findings there referred to, the Magistrate said that it was the “touching” of Miss Law’s buttocks that constituted the offence of indecent assault and that he was satisfied that the Appellant had “touched” Miss Law’s buttocks “intentionally”.

7.Dealing first with recent complaint, I begin by noting that the Magistrate said in terms, as one sees from paragraph 10 of his Statement of Findings, that Miss Law’s complaints to a colleague that night and to the manageress of the nightclub a few days later only went to Miss Law’s consistency.  It was not used in favour of the prosecution in any way that is relevant to any issue in this appeal.  But leading counsel for the Appellant now seeks to rely on the fact that Miss Law’s report to the police of the incident, which took place on 8 October 2010, was not made until the 13^th of that month.  As to this, it is put thus in para 19 of the written submission put in on the Appellant’s behalf: “It clearly shows that the effect of the Appellant’s conduct was of a minor nature.  It gives too long to concoct a story or for the complainant to be influenced by others.”  I regard these as points worthy of consideration.  But having considered them, I do not regard them to be of such weight as to make a difference to the result of this appeal, heard on the papers, from the decision of a trial Magistrate who saw and heard all the witnesses.

8.As to the other grounds of appeal, I am prepared to proceed on the basis that what the Appellant did is better described as “a single, playful, low-impact, pat on the right buttock of the complainant”, which is how it is described in Ground 3, rather than as a “smack” which is how the Magistrate termed it in his Statement of Findings.  But this does not, in my view, vitiate the Magistrate’s view that this was an indecent assault.  The Appellant relies on, and I of course accept, Lord Ackner’s statement in R v Court [1989] 1 AC 28 at p. 45A-B that “on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that he intended an indecent assault i.e. an assault which right-minded persons would think was indecent”.

9.It is clear that the prosecution must, on a charge of indecent assault, prove beyond reasonable doubt not only that the accused intentionally assaulted the victim but also that it was an assault that right-minded persons would consider indecent and that the accused intended to commit such an assault i.e. an indecent one.  In forming a judgment on these matters, the part of the victim’s person that was touched is far more relevant than the force with which the victim was touched.  As for the fact that the accused was acting playfully, that is hardly decisive or even generally of much weight in his favour.  Playful behaviour can also be indecent and meant by the accused to be indecent.

10.In my view, the Magistrate’s finding of indecency is warranted and ought not to be disturbed.  I would come to this conclusion even if the consideration of the point had to be confined to where the Appellant touched Miss Law.  As it is, however, the conclusion is strengthened by his asking her if she would accept his pursuit.

11.For the forgoing reasons, I dismiss the appeal against conviction.

12.So I turn to the appeal against sentence.  One substituted ground of appeal against sentence has been put in.  It reads:

“The sentence imposed was manifestly excessive,

(a) No consideration was taken of the Appellant’s loss of his employment.

(b) No consideration was taken of the Appellant’s loss of his pension.

(c) For a civil servant, with a clear record, a substantial fine was appropriate in all the circumstances as any assault was,

i) fleeting

ii) playful

iii) to a non-intimate area of the body.”

13.The Magistrate said that he would have sent the Appellant to prison for much longer than two weeks but for the fact that the Appellant’s wife was suffering from cancer and needed her husband back with her as soon as possible.

14.As to the possibility that the Appellant would lose his employment and even his pension, it cannot be said that the Magistrate had not taken that possibility into consideration.  It is clear from what the Magistrate said in his Reasons for Sentence that he had taken it into consideration but was of the view that it did not warrant a sentence of less than two weeks’ imprisonment.  In my judgment, that view is warranted unless what is said in item (c) of the grounds of appeal against sentence, which I have quoted, is made out.

15.I do not consider it to be made out.  The touch may have been as fleeting and playful as contended on the Appellant’s behalf. But the whole incident lasted quite a long time.  And a touching being playful does not necessarily render it less than highly offensive.  As to the contention that the touch was to “a non-intimate area of the body”, I do not think that it is anything less than highly offensive to touch a woman on her buttocks even though there are parts of her anatomy where touching her would be even more offensive.

16.While I have some sympathy for the Appellant and a great deal of sympathy for his wife, I do not feel able to interfere with this sentence.  The appeal against sentence is also dismissed.

17.Before parting with the appeal, I would add this. Whether the Appellant loses his employment or his pension is for others to decide.  I would, however, observe that since the possibility of his losing them have not got a reduction of sentence for him, those considering the question of employment and especially pension may feel that he has been sufficiently punished.  Of course the question of employment turns not on punishment but on suitability for office.  But as far as pension is concerned, it is true, as was said on the Appellant’s behalf during the hearing of this appeal, that he did not commit this offence while on duty.  That did not help him on sentence.  But it might be of considerable help to him on the question of whether or not he should lose his pension.

Mr Gerard McCoy, SC and Miss Nisha Mohamed, instructed by Messrs Henry Lam & Associates, for the Appellant

Mr Winston Chan, of the Department of Justice, for the Respondent