HKSAR v. “Z”

HCMA291/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 291 OF 2010

(ON APPEAL FROM KCCC 6361/2009)

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BETWEEN

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Before: Hon Line J in Court

Date of Hearing: 2 September 2011

Date of Judgment: 5 September 2011

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J U D G M E N T

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1.The Appellant was convicted after trial of indecent assault and was sentenced to 4 weeks’ imprisonment.  I take the summary of the facts I am about to give from the Respondent’s written submissions. 

2.PW1 was a girl aged 14 years and nine months back on 31 July 2009.  At the material time, PW1 and her two sisters were walking along Shanghai Street towards the direction of Langham Place. While her elder sister, PW2, was walking in front of her, her twin sister was walking behind her.  The pavement was not crowded at the material time.  When PW1 reached outside a lamp shop she felt that someone used his or her fingers to squeeze her left buttock with okay strength.  She immediately turned around and saw the Appellant withdrawing his hand.  The Appellant looked at his friend and they laughed.  PW1 complained to PW2 about the incident and pointed at the Appellant.  PW2 told the Appellant not to go and said that they would call the police and asked the younger sister to do so.  However, the Appellant ignored PW2 and kept on walking.  PW1 and her sisters followed the Appellant until they reached the junction in Nelson Street where they met the police officer, PW3. The Appellant was arrested and stated under caution he had only touched PW1’s shoulder and asked her to give way.  That was the prosecution case.

3.The defence case, through the mouth of the Appellant who elected to give evidence, was this:  that at the material time he was walking to Chungking Mansions with his friend who was familiar with the area.  The street was crowded.  When he reached the pedestrian crossing at the junction of Shanghai Street and Argyle Street, the pedestrian signal was green.  However, PW1 suddenly stopped in front of the Appellant.  The Appellant then said, “Excuse me,” to PW1 who made no reply.  The Appellant touched her shoulder and asked her to give way.  PW1 screamed, said she was afraid of the Appellant and asked why the Appellant touched her.  The Appellant apologised and kept on walking with his friend.  Another girl came over and asked why the Appellant touched her sister.  The Appellant called the police with his mobile phone and kept walking.  He waited at Nelson Street until the police arrived. The Appellant told a police officer, not PW3, that he touched PW1’s shoulder and asked her to give way because he was in a hurry.

4.The issue was whether there was a touch to the buttocks or a touch to the shoulder.  No one suggested mistake.  The issue turned on credibility.  The magistrate believed the prosecution witnesses and disbelieved the Appellant.  He had the obvious advantage over this court of seeing and hearing the witnesses.  He acknowledged that the case was one against one and said that because of the lack of an independent witness, he would exercise care and caution when dealing with the evidence of PW1.  I have no reason to doubt that, especially as these cases of summary trial with one against one are some of the hardest to judge.

5.No one called upon to judge such an issue will decide the case without having in mind the inherent probabilities. I judge that the inherent probabilities here were firmly on the side of the respondent.  The idea of men appreciating a pretty backside and falling to the temptation or impulse of squeezing it is not one that is hard to imagine. Equally, the idea of a 14 year old inventing on the spur of the moment a deliberately false allegation against a stranger that her bottom had been touched because she had been touched on the shoulder, in a public place, in the company of her sisters, is one that, whilst not impossible, is much the less likely.

6.So why does the Appellant ask me to set aside his conviction?  Let me turn to the grounds advanced on his behalf by Mr Parker.  Firstly, there is a complaint that, contrary to the rule in Browne v Dunn, there was no cross-examination covering certain points that the magistrate relied upon in rejecting the evidence of the Appellant.  I have read the cross-examination of the Appellant.  It was perfectly adequate and in line with what one would expect in a summary trial of this nature.  He can have been in no doubt of the thrust of what was being alleged against him and he had ample scope to deal with it.  It is not for the prosecutor to anticipate the magistrate’s areas of interest.  It was not for the magistrate to cross‑examine himself even if he had by then distilled what interested him.  I have no doubt that this case proceeded in the usual way and that there was no unfairness to the Appellant.

7.It is not an easy task in cases such as this for a tribunal to explain why one side is believed and the other is not. There is craft involved in the expression of the perceptions that go to make up a judgment.  What sometimes happens, and there is some evidence of it here, is that in an effort to give as full reasons as possible, small points are elevated to a significance that they do not merit.  What then happens is that those points are addressed in isolation and the conviction attacked on the basis of a wrong resolution of the credibility issue.

8.Thus in the second ground of appeal, there are said to be five points upon which the credibility of the Appellant was wrongly determined.  I will deal with them in due course.  Before I do so, it has to be pointed out that these five points have to be seen in the light of the magistrate’s finding that PW1 was honest and credible.  What really undid the evidence of the Appellant was that it could not live with the acceptance of the evidence of PW1. 

9.The first point was to do with the state of the traffic lights at the junction.  It was a minor point.  I do not think it would have assisted me in deciding the credibility issue at the heart of the case.  I agree that it cannot of itself bear too much weight but its inclusion in the consideration of the magistrate does not make me doubt his finding that the truth lay with PW1, especially in view of the inherent probabilities.  The same can be said of the next point as to whether there was a difference between “shoulder” and “upper arm”.

10.The third point was to do with the Appellant continuing to walk away even though he said he called the police himself.  Whilst in no way determinative, I can see why the magistrate thought that worthy of consideration.  Staying put would have sat much better with his alleged desire to involve the police.

11.The fourth point was the difference between an admitted fact that the Appellant was cautioned and arrested by PW3 and an assertion in evidence by the Appellant that it was not so.  The point was made by counsel, before me, that this matter was not fully investigated in evidence, and that there was potential for significant further exploration of it.  I indicated that I would not, therefore, hold the point against the Appellant in this appeal.  On the state of the evidence before the magistrate, the comment the magistrate made was justified.  However, the point was again one that was peripheral.  I do look to see if it caused me to doubt the fairness of the trial or the validity of the conviction.  It does not.

12.There was more in the fifth point, because it may have been that when the magistrate said there was no suggestion that the location was heavily congested, he may have overlooked the Appellant’s evidence that it was, “very crowded.”  I bear that in mind.  It seems to me that the real point behind the observations of the magistrate here, although I accept he did not quite say it, is that crowded pavements at intersections in this area of the city are common, but touching people in your way on the shoulder is not, even when they irritatingly stop and block your way.  Most people walk round the obstruction without words or touch.

13.Ground 2 gives rise to proper considerations but fails to persuade me to doubt that the magistrate failed in attending to the job in hand of deciding who to believe and that he reached the wrong decision in respect of it.  The points to be made sounded in the way the magistrate expressed himself and the apparent emphasis rather than in the substance of his judgment.

14.It was said that it was inherently improbable that the Appellant would throw away his future over an offence of this type, risking being resettled in another jurisdiction because he was a refugee.  I deal with the point by saying it was met by the fact that this was an impulse crime.  Such crimes are not planned. There is no time for balance in a man’s mind.  As I say, it is impulse.

15.Ground 3 attacked the decision of the magistrate to allow a videotape to stand as the evidence-in-chief of PW1 and for her to be cross‑examined by video link.  I appreciate that PW1 was 15 years old at trial and that the offence was not a grave one.  However, nothing persuades me that the magistrate exercised his discretion in error.  Nothing has been identified to me as unfair as a result beyond the fact that the procedures were adopted.  It seems to me that the course adopted eased the position of the girl whilst costing the Appellant nothing of significance.

16.In the case of HKSAR v Chu Chi Wah, CACC211/2009, it was said that in such cases, the discretion should be exercised in favour of using the statutory provisions unless it would lead to an unfair result.

17.It was asserted that the magistrate was obliged to watch and listen to the tape before making his decision.  I disagree.  If the objection to its use had engaged something in its content, then it may have been otherwise.  No suggestion that it did was made to the magistrate or to me.  There is nothing in ground 3.

18.Ground 4 firstly complained that the magistrate failed to caution himself of the special danger arising from the unsworn evidence-in-chief of PW1.  There was no obligation upon him to do so.  She was sworn before she was cross-examined. Secondly, in ground 4, there was a claim that the magistrate failed to deal with inconsistencies in the prosecution’s case.

19.It was the case that PW1 said that the Appellant halted once he saw the police. PW2 said the Appellant stopped before the police approached.  It was common ground that this matter was not investigated in any great depth.  Given that was the case, all I need say is that I judge its impact insufficient to raise doubt on the central issue of credibility.

20.Next, PW1 denied screaming after she was touched.  PW2 said there was no scream before PW1 spoke.  She did agree that the delivery of the words were shouted in a “shivering voice”.  It was only the Appellant who said there was a separate scream before anything was said.  There was nothing in this point. 

21.Finally, there was inconsistency over the exact location of the incident.  Counsel did not urge that this went to the issue of credibility in any meaningful way.  In those circumstances, I need deal with the point no further.  In short, the alleged inconsistencies raised no reasonable doubt in my mind as to the correctness of the conviction or the judgment of the magistrate.

22.Ground 5 complains that the magistrate did not direct himself about recent complaint and distress.  It was said that PW1’s shouted words, in the shivery voice split seconds after the touching that he had touched her pat pat”, pointing to the Appellant, taken with the sister’s evidence that her manner was then “pretty scared”, required that directions be given along the well-known lines mentioned in the case of Leung Chi Keung v HKSAR, [2004] 7 HKCFAR 526.

23.It is correct that the magistrate did not set out the law about recent complaint and distress.  I can quite understand why.  They simply were not raised as issues before him.  The resolution of the simple issue of whether it was buttock or shoulder that was touched did not, in commonsense or fairness, require that such directions be set out.  The words and their tone were part and parcel of the alleged action in question.  I have no doubt that it was commonsense and instinct that explained why the case was rightly judged on the basis of a simple conflict of one to one; she saying buttock and him saying not.  I doubt whether the words” res gestae” crossed anyone’s mind in the court below.  However, they provide the legal basis for this evidence being received without further ado and without the need for the recent complaint direction. 

24.I am sure that the words were part of the res gestae as they were so closely associated with the event that excited the words that it can be fairly stated that PW1’s mind was still dominated by the event.  I am satisfied that the event that provided the trigger mechanism for the words was still operative, (the law is set out at Hong Kong Archbold 2011, at Chapter 11, paragraph 18).

25.As regards the distress, it was never a separate issue.  It was not relied upon by the magistrate as providing separate evidence that the offence occurred as PW1 said.

26.In conclusion, I say that whilst I might have expressed it differently, I am sure the magistrate’s finding that PW1 spoke the truth is one that was justified by the evidence.  Accordingly, the appeal against conviction is dismissed.

27.The sentence was 4 weeks’ imprisonment.  It is longer than I would have passed. This is a rehearing.  I take as a guide the MTR indecent assault cases where sentences of 14 days are common.  Mr Parker made the point to me that those MTR cases cater for the particular mischief of such conduct on crowded trains and that touching in a crowded street is less common.  Those points are well made.

28.I will add, before dealing with the sentence, that I have looked, because I was urged to do so, at a psychologist’s report from Dr Mistler dated 1 February 2009.  I have taken that into account, but of course, the report is old and the weight that it has in a case like this now, because it was prepared for different purposes, is one that cannot take on too great a significance.

29.Cases like this are not easy to sentence, in my view, and those in my position have to realise that the community values cannot be ignored.  Everybody knows that touching cases like this, indecent assault at the bottom end of bracket of seriousness in Hong Kong, are dealt with much more severely than they would be in other jurisdictions abroad.  I take the view that just for a single touch like this in the street, 4 weeks is too long.  I have to give weight to the local values and the way that these cases are dealt with in Hong Kong.

30.Doing the best I can, balancing everyone’s interests, and I do not forget this is an old case now that this man faces, and I know whether it be real or not, that he has worries about the effect this will have upon his resettlement, I judge that in all the circumstances, justice can be done by allowing the appeal against sentence, quashing the sentence of 4 weeks’ imprisonment and imposing a sentence of 7 days.

Ms Rosa Lo, Public Prosecutor of the Department of Justice, for the Respondent

Mr Timothy Edward David Parker, instructed by Vidler & Co, assigned by the Director of Legal Aid, for the Appellant