Lam Yi Lai v. HKSAR

FAMC No. 30 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2011 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 705 OF 2010)

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Between:

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DETERMINATION

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Mr Justice Chan Acting CJ (for the Appeal Committee):

1.The applicant was convicted of knowingly making a false report to the police of the commission of an offence, contrary to s.64(a) of the Police Force Ordinance, Cap 232. She sought leave to appeal on the substantial and grave injustice ground. At the conclusion of the hearing, we dismissed the application saying that we would give our reasons later. This we now do.

2.The applicant was the owner of a unit in Block A of a private estate. She was previously the owner of another unit in Block B where PW1 was working as a security guard. The charge arose from an incident when she wanted to obtain a smart card to enter Block B but was refused by PW1. An argument ensued during which she called the police complaining that she suspected PW1’s security guard licence had expired. While waiting for the arrival of the police, she tried to stop PW1 from leaving by blocking his way using her own body. After the scuffle, she called the police again, this time, reporting that she had been indecently assaulted by PW1.

3.At the trial, the prosecution case was that there was no physical contact between PW1 and the applicant. Having viewed the contemporaneous CCTV record and considered the relevant evidence, the Magistrate was prepared to give the benefit of the doubt to the applicant and found that her right breast had been touched by PW1. However, the Magistrate went on to find that the applicant did not believe that she had been indecently assaulted. He was satisfied that she knew fully well that the touching was not an indecent assault or even a suspected indecent assault and that she knowingly made a false report to the police. On appeal, the Deputy Judge agreed with his conclusions. 

4.Mr McCoy SC for the applicant raised 4 main grounds of appeal. The first three grounds can be dealt with together. First, it was submitted that once the Magistrate held that PW1 had in fact touched the applicant’s right breast, the prosecution case should have collapsed; that the Magistrate should have dismissed the charge and the appeal judge should have allowed the appeal. Secondly, it was argued that the Magistrate did not make any finding as to whether the applicant had given consent to the touching, and thus the applicant was entitled to regard herself as having been indecently assaulted. Thirdly, it was said that the Magistrate had wrongly reversed the burden of proof by requiring the applicant to show that at the material time, she believed that she had been indecently assaulted.

5.It is necessary in order to convict on this charge to prove that the applicant had made a false report to the police that she had been indecently assaulted by PW1 and that at the time she made the report, she knew this was not true.

6.At the trial, the prosecution, no doubt based on the evidence of PW1, sought to show that there was no physical contact between the applicant and PW1. If it could be established that there was never any physical contact between her and PW1, this would go a long way to show that the report was false and that she knew it was false. However, the Magistrate accepted that PW1 had touched the applicant’s right breast. But that did not put an end to the prosecution case. This is because the prosecution was not required, as a matter of law, to prove that there was no physical contact. It was merely a matter which, if established, might help the prosecution to prove the ingredients of the charge. That PW1 had touched the applicant’s right breast does not necessarily mean that he must have committed an indecent assault on her. The touching or contact might have, for instance, been unintended or accidental. Given that there was a scuffle between the applicant and PW1 in which she tried to block PW1 by using her body, the Magistrate was entitled to consider this possibility which was clearly relevant to the real issues in the case. It would seem that the Magistrate did consider this possibility by his references to: “unintended bodily contact”, the contact being “very brief and superficial” and lasting “only a fleeting moment”, and PW1 “would not be able to keep track of his every movement”.

7.Since the Magistrate was satisfied that PW1 had touched the applicant’s right breast but there was the possibility of this being unintended or accidental, the question then arose as to whether the applicant was at the material time under the belief that she had been indecently assaulted. This was clearly relevant to the issue whether she knew her report was false: for if it could be shown that the applicant did not hold such a belief, it would necessarily follow that she must have known that the report she made was false. On this matter, the Magistrate had directed himself to adopt a subjective test: that it did not matter even if the belief was based on insufficient or unreasonable grounds so long as it was actually held by the applicant. We are satisfied that the Magistrate was right in adopting this approach. Applying such a test, he came to the conclusion that the applicant did not hold such a belief.

8.The issue of consent was, with respect to counsel for the applicant, a red herring. It was not raised at the trial. It was never part of the prosecution case that the report was false and the applicant knew it was false because she had given consent to the touching. In the light of the evidence, there was simply no question of any consent given by the applicant. Moreover, by finding that the applicant did not believe that there was an indecent assault or even a suspected indecent assault, he must necessarily have been satisfied that she did not regard herself as having been indecently assaulted.

9.We do not accept that the Magistrate had reversed the burden of proof. In paragraph 18, he had correctly reminded himself that it was for the prosecution to prove that “a false report was knowingly made”. Having carefully reviewed all the evidence, he was satisfied that when the applicant made a report to the police, she knew fully well that what happened was not an indecent assault, not even a suspected indecent assault. He never required the applicant to show she believed she had been indecently assaulted.

10.This brings us to counsel’s 4^th and final ground of appeal. It was argued that the Magistrate was wrong to have relied on a comparison of the reaction shown by the applicant in this case with her reaction in a previous incident in which she was indecently assaulted.

11.The applicant’s previous experience of indecent assault and how she reacted on that occasion was brought out during her cross examination. This matter was admittedly taken into account by the Magistrate in deciding whether the applicant had knowingly made a false report. Since the circumstances of that previous incident were not fully canvassed at the trial, a comparison of the applicant’s reaction on that occasion with that in the present case was not appropriate. However, that was not the only matter the Magistrate had taken into account. He had fully reviewed all the evidence regarding the applicant’s behavior at the time of this incident and all matters which were relevant to whether the applicant had the belief that she had been indecently assaulted, bearing in mind that different women might have different reactions after having been indecently assaulted. (See para. 18 on pp.15-16). In particular, the Magistrate had considered the fact that the applicant did not report to the police about the alleged indecent assault until 2 minutes later, that during the meantime, she was still arguing with PW1 over the validity of his security guard licence instead of confronting him immediately with the alleged indecent assault and that it was only after she had made the report to the police that she brought this up with PW1 and mentioned this to a female passer-by. In our view, there was overwhelming evidence on which the Magistrate could rely to conclude that the applicant did not believe she had been indecently assaulted by PW1 and to draw the irresistible inference that she knew there was no indecent assault or suspected indecent assault.

12.For these reasons, we do not think that the grounds of appeal are reasonably arguable. The application for leave must therefore be dismissed.

Mr Gerard McCoy SC and Mr Daniel Hui (instructed by Messrs T.Y. Lam & Co.) for the applicant

Mr Alex Lee and Ms Peggy Leung (of the Department of Justice) for the respondent