HKSAR v. Chan Ha Wing

HCMA 333/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 333 OF 2010

(ON APPEAL FROM KCCC 5889/2009)

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Before: Hon Mackintosh J in Court

Date of Hearing: 6 August 2010, 16 November 2010

Date of Judgment: 16 November 2010

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J U D G M E N T

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Conviction appeal

1.At the conclusion of the hearing of the appeal against conviction (on charge 2) in this case on 6 August 2010, I dismissed that appeal and said I would give reasons later.  These are those reasons.  Although there was no appeal against sentence, upon the dismissal of the appeal against conviction, I expressed the preliminary view that the sentence (on charge 2) appeared to be excessive.  In the circumstances, the magistrate had not had the opportunity to submit any formal reasons for the sentence.  However, I granted an application for leave to appeal against sentence out of time, having warned the appellant, explicitly, that a jail sentence was to be regarded as inevitable; and adjourned the case to give the magistrate the opportunity to prepare reasons for sentence.  Having received the magistrate’s reasons the sentence, I have heard submissions this morning on his behalf in relation to sentence.  I will return to that matter in a few minutes.

2.The appellant appeared before a deputy magistrate charged with two offences of indecent assault against a 14-year-old girl.  The first (charge 1) alleged an offence committed on 25 September 2009 on a number 1A bus in Kwun Tong (“the first incident”); the second (charge 2) alleged offence committed against the same girl on 30 September 2009, also on a number 1A bus in Kwun Tong (“the second incident”).  The appellant pleaded not guilty to both charges; after a trial lasting some three days, during which the girl (PW1) and her school friend (PW2) gave evidence through a live TV Link, the appellant was acquitted of charge 1 but convicted of charge 2; he was sentenced to 3 months’ imprisonment.  He has appealed against that conviction relating to the second incident and has been on bail pending the outcome of this appeal since his conviction.  He is represented by solicitors and counsel, Mr McGuinniety, who have appeared for him throughout.

3.Although there was no conviction relating to the first incident, and therefore there is no appeal, the facts and circumstances of each incident are so similar and so intertwined that it is impossible to describe one without reference to the other.  Therefore, an adequate summary of the facts of the conviction which is the subject of this appeal (“the second incident”) must of necessity include the alleged facts relating to the first incident.  In addition to the magistrate’s Statement of Findings, and certain facts which remain undisputed or which were admitted at trial, I have had the advantage of reading a transcript of the evidence of the complainant, PW1.  Her schoolmate also testified as PW2; but I have not been asked to view a transcript of her evidence or that of PW3, a teacher at the girls’ school who was also on the bus at the time of the second incident.

4.However, it is agreed that the evidence of these two witnesses has been adequately summarised by the magistrate in her Statement of Findings and it is not in dispute so far as it is material.

5.The facts found by the magistrate, which are not in dispute, are that on each of the two days in question, the 25 and 30 September 2009, the complainant, boarded a bus in Kowloon Bay to travel to the vicinity of the Wo Lok Estate.  She was wearing a school uniform in the form of a dress.  The bus was, on each occasion, very crowded, “packed to capacity”, and the complainant stood near to the exit.

6.On the 25^th September, (the first incident) at Wo Lok Estate, most of the passengers alighted, but the complainant stayed near to the exit. A man walked from his seat, a few rows away, towards her and passed her.  As he went past, he used the little finger of his left hand to brush against the area of her private parts, over her dress.

7.This action was demonstrated in court by the complainant during the course of her evidence and was described by the magistrate as “elaborate” which indicated that it was a non-accidental movement of the side of the man’s hand against the area of the girl’s private parts, over her clothing.  In her evidence, PW1 graphically described the force of this touching as being similar to the force needed to hold a book.  She said that she was “stunned” by what had happened, and she took no action at that time although she did make an almost immediate complaint to her schoolmate (PW2) and her teacher (PW3).

8.Some days later, the complainant could not remember the date, but she thought it was about 4 to 5 days later, she boarded the bus on the same route to go to school, again wearing a uniform dress, and again accompanied by PW2.  The conditions were very similar, very crowded; and they had to stand.  PW1 said that almost immediately upon boarding the bus, she saw the man who had molested her a few days before.  He was sitting a few rows from where she stood.  She did not make any complaint about him or take any action at that time.  She was, she testified, “scared”.

9.At the Wo Lok Estate, a number of passengers left the bus but PW1 remained where she was.  The man who had previously assaulted her approached her again as these passengers were leaving, and as he passed her, he performed the same actions towards her, using the side of his left hand, or the little finger of his left hand, to brush against her private parts.  This time, PW1 grabbed out at him, and caught hold of his hand.  She called out, “indecent assault”.  She said that he immediately denied that he had indecently assaulted her, calling her “insane”.  They left the bus and there was the confrontation on the pavement which included PW2.  Importantly, PW2 testified that she had seen the action of the touching of PW1 at this second incident and, according to the magistrate, she described it in similar terms.

10.Also on the bus was the teacher, PW3.  She heard the commotion and came forward.  She saw the two girls engaged in some confrontation with the appellant and she intervened and said that they should go to Sau Mau Ping police station, which was approximately, 15 minutes walk away.  The magistrate recorded in her Statement of Findings that the four of them then walked to the police station and that, according to PW3, the appellant, “by and large followed them to the police station”.  PW2 had agreed that he had “volunteered” to go to the police station.  At the police station, a complaint was made and he was arrested.

11.In due course the appellant was interviewed.  He said at first, with regard to the second incident, that he was not sure if he had bumped PW1; but he said that he definitely did not indecently assault her.  If he had, he would have run off and would not have, “taken the initiative” as he put it, to go to the police station.  Later, with regard to the first incident, the appellant agreed that he was on the bus at the time, and that he was carrying a knapsack, as described by PW1, with regard to both incidents, and PW2 with regard to the second; he said that he had no recollection of bumping anyone, and that he knew nothing of the complainant.  The interviewing officer was wholly immersed in the formalities of the interview process rather than its substance, and did not directly put the allegation to the appellant; but in essence, the appellant denied any contact and therefore denied any indecent assault.

12.The complainant, PW1, was cross-examined at length and with significant force: I do not say unfair force, though sometimes, there were inappropriate comments interjected into the questioning, which might well have been stopped. However, the scope of the cross examination gave the magistrate ample time to assess PW1 as a witness.

13.She agreed that on the day of the second incident, that is, that which is the subject of this appeal, the appellant was holding an umbrella, though she could not remember in which hand.  In his own testimony, the appellant said that it was in his left hand and it is suggested that that as a result, he would not have been able to perform the alleged indecent act.  The appellant did not demonstrate how his possession of the umbrella would have made the alleged movement impossible; but he did say that he held it in his left hand. PW2 said that the appellant had nothing in his left hand when he touched PW1.

14.PW1 said that at this second incident she immediately recognised the appellant as her attacker on the first incident.  However, the deputy magistrate was concerned by the discrepancy which occurred between PW1’s witness statement that he was wearing a bright yellow T-shirt and her evidence, that the T-shirt had been orange.  Given that this first incident had not, like the second, been seen by PW2, the deputy magistrate found that there was no supporting evidence for the identification of the defendant as the attacker at the first incident.  The magistrate said that the difference in the colour of the shirt as described by PW1 and PW1’s inability to remember, at trial, which colour was correct, led her to the view that it would be unsafe to rely on that identification of the appellant as the attacker at the first incident even though the evidence was that the same male (the appellant) had been stopped after the second incident, and had gone to the police station.  Accordingly, she acquitted the appellant of charge 1.

15.The issue on the second incident was whether any touching by the appellant had occurred as alleged by the two girls.

16.The deputy magistrate made a detailed assessment of the credibility of the witnesses.  She had the advantage of seeing and assessing them over a protracted period.  Considerable weight has to be given to her judgment.  So far as PW1 is concerned, I have read her evidence, and I judge that there is nothing in it which leads to any suspicion that the magistrate’s approach was wrong in this regard.  Indeed, a fair reading of PW1’s evidence shows her to have been an extremely strong witness; obviously intelligent and articulate; balanced and moderate in her approach; willing to make appropriate concessions; and testifying in a manner which gave no basis to believe that she may be mistaken or exaggerating.

Principal ground of appeal

17.The grounds of appeal are directed to the approach towards the appellant’s answers in interview and his testimony which were described by the magistrate as a “bare denial”.

18.It is suggested that by her use of these words, the magistrate was rejecting the appellant’s account out of hand, and without giving it due consideration: “almost as if the appellant has not given evidence”, was the way it was put in submissions.

19.I have read the appellant’s interview record: the description, “bare denial”, is accurate.  Although I have not seen a transcript of his testimony, I do note that he referred in that evidence to his possession of a rucksack (as described by the girls) and the umbrella.  These aspects to his testimony are duly recorded by the magistrate who was alive to their significance.  However, other than that, the appellant’s evidence did indeed amount to a “bare denial”. He was not, for example, alleging that he had been pushed into PW1, or that any touching of her by him had otherwise been accidental, such as having been caused by the movement of the bus.

20.In my judgment, there is no basis whatsoever to assert that the magistrate was dismissing his denial out of hand and without giving it due consideration.  Her analysis of the evidence, including that of the appellant, in so far as his evidence advanced the case, was perfectly proper.  The claim is utterly without merit.

Other Grounds of Appeal

21.It was also submitted that the magistrate had failed to give sufficient weight to the fact that the appellant had voluntarily attended the police station; and that this fact had been relegated by the magistrate who did not mention it in her oral reasons for verdict, where she had referred to him having been escorted by the PWs.  However, the magistrate was at pains to rehearse the appellant’s voluntary attendance at the police station; as she was, to note his immediate denial to PW1; the magistrate expressly notes the evidence of PW2 and 3 to which I have already referred.

22.It was further suggested that there may have been some collusion between the witnesses; but that was not the approach taken at trial and there was no basis to the magistrate to make any such finding.

23.Although the appellant’s voluntary attendance at the police station is not noted in the magistrate’s oral reasons for verdict, where it is said that the appellant was escorted to the police station, those oral reasons for verdict having given shortly after the trial, it is not to say that she did not take full account of the fact.  It is appropriate for the magistrate to give some oral reasons for verdict: indeed, it is fair and proper that they should do so; but, unless the context otherwise indicates, such reasons are not necessarily to be regarded as exhaustive, and are not to be elevated to the rank of the statutory Statement of Findings.  Otherwise, the practice of giving brief oral or preliminary reasons for verdict will become unworkable.  Here, the oral reasons were expressed as brief reasons, as is commonly the case.

24.I am satisfied that there was no error in the magistrate approach to the law or the evidence in this case and that she gave salient reasons for finding the PWs to be honest and credible and for rejecting the appellant’s denial. Accordingly she was right to find that the prosecution had proved the offence in charge 2 and the appeal against conviction in respect of that charge must be dismissed.

Appeal against sentence

25.After convicting the appellant in respect of the second incident, the learned magistrate adjourned sentence for 14 days for reports, both on the appellant and on the complainant.  She remanded the appellant in custody.

26.The background report showed that the appellant to be married man in his 50s with two grown-up children; he was in employment and no social problems were revealed.  The psychiatric report on the appellant showed no evidence of any illness.  A psychologist’s report upon him suggested he was a man of normal sexuality and that according to certain test results, his risk of sexual reoffending was considered to be low.  In my judgment, it is difficult to reconcile that conclusion with the fact that he continues to deny having sexually assaulted the victim in this case and that it was, as the psychologist said, therefore difficult to infer the motivation underlying his behavior.

27.The magistrate reviewed a number of previous sentencing cases, including the guidelines set out in AG v Wai Yan Shun [1991] 2 HKLR 209 in which the Court of appeal held that 14 to 28 days imprisonment was appropriate for a first offender who had committed an indecent assault on public transport. Other cases cited related to particular acts of indecency and the firm statement, so far as young victims were concerned, that they needed to be protected and that deterrent sentences were therefore appropriate.  But in my judgment it is not really a case for detailed comparison with the features of other indecent assault cases in order to trying to distinguish different factual scenarios though of course, the guidance of the Court of Appeal in Wai Yan Shun applies.  Other sentencing cases are not, with respect, authorities, they were decisions on their facts which give some general guidance to the approach taken in those cases.  Wai Yan Shun is the authority.

28.The magistrate, rightly in my view, took the view that this case was more serious than an indecent assault on an adult; she concluded that the 14 to 28 days was insufficient by way of sentence to reflect the gravity of the case.  She said that this case could not be said to be at the high end of the scale of indecency; but that its gravity lay in the deliberate touching the school girl near her private part.  She also pointed out that the girl had to testify in court given the plea of not guilty.  Of course, it is important to note that an offence is not intrinsically aggravated by a not guilty plea, which is no more than the exercise of a fundamental right.  However, it is worth noting that in Wai Yan Shun (Above), the Court of Appeal remarked that it may be that the most substantial mitigation may emerge from a defendant’s plea of guilty; so that where a complainant is spared the ordeal of giving evidence, it is an element of mitigation which may allow for a discount greater than in other criminal offences.

29.What the appellant did here was to deprive himself of a very important plank of mitigation.

30.The fact that this was the second alleged incident must be wholly ignored given the verdict on the first.  However, since this was a brief touching over the clothing, albeit in the region of the girl’s private parts, it would be right to characterize this as being an indecent assault of a relatively low level of gravity.  What aggravated it particularly was the fact that the appellant could see that he was attacking a school girl, not an adult with a more robust constitution.

31.Just where the sentence for such an offence should be pitched is a matter of judgment.  The fact that the magistrate saw and heard the witnesses counts for a great deal, because it meant she had a feel for the case. Nevertheless, in a magistracy appeal, it is not a question determining whether that sentence was manifestly excessive or whether there was an error by the magistrate: I must make a judgment of my own as to what I consider was the appropriate sentence given all the materials and the circumstances.  The magistrate attached considerable weight to the adverse effects on PW1 which were extremely unfortunate.  I bear that in mind, together with the fact of this mature appellant’s hitherto clear record and I am of the view that the sentence did not need to be as long as 3 months.  I do not criticize the magistrate for imposing a sentence of 3 months.  It is simply that I take a different view.  It may well be that the magistrate was influenced to a degree by the extensive impact on PW1 and whilst I have much sympathy for this view, I do not consider that the offence should be greatly aggravated in this respect. For this reason, though he is a man in his 50s with a clear record, he must serve a sentence of imprisonment in respect of this offence as I told him when I adjourned the case last time; but it does not need to be as long as 3 months.  I am satisfied that 28 days is a sufficient sentence in all the circumstances.

32.I therefore quash the sentence of 3 months’ imprisonment and substitute a term of 28 days imprisonment.

Miss Rosa Lo, Public Prosecutor (on 6/8/2010) and Mr Martin Hui, Senior Public Prosecutor (on 16/11/2010), for the Respondent

Mr Edward L McGuinniety, instructed by Messrs Ivan Tang & Co., for the Appellant