The Queen v. Mohamed Bashir

CACC000954/1983

BETWEEN

Coram: Jones J.

Date: 26th August, 1983

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JUDGMENT

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1. On the 27th June 1983 the appellant who is an inspector in the Royal Hong Kong Police Force was convicted at South Kowloon Magistracy of one charge of common assault and one charge of indecent assault on a female. He was bound over for a period of twelve months in the sum of $500 on each charge. The appellant appeals against his convictions.

2. Both incidents were alleged to have occurred on the evening of the 21st May 1983 in Cameron Road, Tsim Sha Tsui.  The complainant of the common assault Mr. Kwong Chi Kin said that at about 9:45 p.m. he was walking with his wife and a friend when the appellant who was behind touched his private parts with his left hand. The appellant then walked ahead and was seen by Mr. Kwong Chi Kin to touch the private parts of a girl who was walking towards him. The girl Miss Hung Sau Lan gave evidence of the indecent assault.

3. The appellant denied assaulting either of the two complainants. However, if he did in fact do so he claims that it was accidental. In cross-examination he said that he had consumed some beer during the day, but was sober at the material time.

4. No issues arise with regard to the credibility of the prosecution witnesses or as to identification.

5. The main ground of appeal argued by Mr. Bokhary who appeared for the appellant was that the circumstances supported his contention that the appellant's actions were not deliberate, but amounted to an accident. In particular he drew my attention to the conflict in the evidence of the prosecution witnesses and the appellant as to whether Cameron Road was crowded at the time. He also adverted to the possibility that P.W.2's attention may have been diverted when she was bumped from behind at the time of the assault. I am unable to agree that the evidence in any way pointed to an accident.

6. The issue of corroboration with regard to the charge of indecent assault was raised, but it is clear that ample corroboration was provided by P.W.J. It was also urged upon me that the actions of the appellant in not attempting to leave the scene were those of an innocent man. Undoubtedly no adverse inference can be drawn, but such conduct can only be regarded as neutral. However the evidence indicates that the appellant did not have an opportunity to leave the scene as he was restrained by P.W.1.

7. Mr. Bokhary emphasised that in view of the appellant's previous good character and his position in the police force it would be very unlikely that he would have committed these offences. I agree that the appellant's good character is an important factor to be considered when assessing the matter of credibility. However the learned magistrate rejected the appellant's evidence that the assaults did not take place or that they were accidental. I can see no ground for interfering with his decision for the evidence was overwhelming.

8. It appears to be a case of a man behaving unpredictably as a result of the effects of alcohol.

9. The appeal is therefore dismissed.

Representation:

Mr. Kemal Bokhary Q.C. and Miss Jane Fong

(Hampton, Winter & Glynn) for Appellant

Mr. Michael Jennings (Legal Department) for Respondent/Crown