HKSAR v. Tong Arnold

HCMA 173/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 173 OF 2011

(ON APPEAL FROM TWCC 116 OF 2011)

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BETWEEN

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Before: Hon Macrae J in Court

Date of Hearing: 15 December 2011

Date of Judgment: 31 January 2012

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J U D G M E N T

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1.The appellant was convicted on 8 February 2011 by Mr John Glass, Deputy Magistrate, of one charge of indecent assault contrary to section 122(1) Crimes Ordinance, Cap. 200. He was sentenced to 14 days’ imprisonment. He appeals against his conviction only.

The prosecution case

2.The only witness for the prosecution was a married lady (PW1) who lived with her husband, mother and son at the flat next door to the appellant’s home in the Yat Tung Estate, Tung Chung, Lantau Island. At some time between 3 and 5 a.m. on a day in June 2009, whilst she was sleeping, PW1 heard her doorbell ring. Her husband was at work so she got up, dressed in her nightgown and went to see who it was.  Upon opening the door she saw the appellant who told her that he was unable to get into his flat.  He was holding some keys in his hand but said he could not unlock the door.  PW1 queried whether he had made a telephone call to raise the occupants inside his home and he replied that he had tried to but nobody had answered. The appellant then asked PW1 to help him open the door.

3.Accordingly she came out of her flat, took his keys and set about trying to unlock the iron gate of the appellant’s flat.  Whilst she was doing so, the appellant put his arms around her from behind and rubbed his lower part against her buttocks for a few seconds accompanied by what she described as a “poking action”. PW1, who was furious as well as frightened by this action, pushed the appellant away and immediately returned to her flat.

4.The curious feature of the case - and one to which I will return - was that PW1 did not immediately report what had happened to her husband or to anyone else.  It was not until June 2010 that she first told her husband about the assault which had happened a year earlier.  What caused her to do so was an incident in early June 2010 when, at about 4 a.m., the doorbell of PW1’s flat was rung again.  Since her husband was at home on this occasion, he got up to see who it was.  After he had been away from the room for some time, PW1 herself got up and went to the front door to see what was going on.  There she saw her husband standing behind the iron grille of their home whilst the appellant was “crazily” kicking it.  At the same time he was swearing, uttering threatening words and accusing her husband of needlessly calling the police.  In due course the appellant’s family appeared and took him inside the flat. Shortly thereafter the police arrived.

5.Having discussed the matter with her husband, PW1 reported the earlier indecent assault by the appellant to the police on the following day.

The defence case

6.The appellant gave evidence and called his grandmother, who lived with him in his flat.  He testified that the entire incident in June 2009 had been a fabrication made up by PW1 possibly as the result of a grudge between the two families when the appellant’s grandfather had refused to allow PW1’s family to drill a hole in their wall in order to borrow some electricity at the time they had first moved into the unit. He also suggested that it could also have been made up out of revenge for his behaviour outside their flat during the later incident in June 2010.

The Grounds of appeal

7.Mr Cheng Huan SC on behalf of the appellant has rightly focused his attack on the curious, if not extraordinary, feature of this case, namely the fact that it took PW1 almost a year to tell anybody about the indecent assault upon her by the appellant. In the absence of any recent complaint and of any material capable of supporting her account, he submits that the magistrate must have relied on demeanour alone in convicting the appellant. Given that there were certain material inconsistencies in that account, he argued that it was dangerous to rely on PW1’s unsupported evidence in relation to a complaint which she had taken so long to make.

Consideration

8.The argument has been attractively put.  However, the difficulty with it is that the magistrate specifically and carefully addressed himself to the significance of the fact that PW1 had not reported the incident to anybody including her husband and that, had it not been for the incident in June 2010, the allegation of indecent assault a year earlier may never have come to light at all. He examined PW1’s reasons for failing to complain, evaluated certain inconsistencies in her account which he himself termed “material”, considered the possibility of the complaint having been made for other reasons, and carefully assessed the appellant’s account and the possibility that PW1 may have been motivated to make a false allegation against him. Having been through that process, he nevertheless found PW1 to be an honest and reliable witness and accepted the reasons she had given for delaying her complaint.

9.As to why she did not tell anyone about the indecent assault until a year later, PW1 explained firstly, that she did not wish to worry her husband about her safety, particularly since there were times when he would not be sleeping at home because he was on night shift duty. Secondly, she said that her religious beliefs had placed her in a dilemma.  If she reported the matter, it would inevitably turn into something serious for the appellant: on the other hand, her religious convictions obliged her to consider forgiving the appellant.

10.What appears to have precipitated her eventually telling her husband about the indecent assault was not simply the occurrence of the second incident but that on that occasion the appellant had told her husband, at a time when he was plainly angered by his actions in calling the police, that he “knew” his wife. Her husband had later asked her about this, to which PW1 responded “What did he mean?”  Her husband then said to her “What do you think he meant?”  This conversation between PW1 and her husband may have been hearsay, but it was admissible to explain why she felt she could keep silent no longer and why she decided to tell her husband and ultimately report to the police.

11.In examining this explanation, the magistrate had the advantage which I have not had of seeing and hearing the witnesses, in particular PW1, give evidence. That does not mean that I would not be prepared despite that disadvantage to allow the appeal if I considered the conviction unsafe or unsatisfactory. However, I can see no significant error in his assessment of the evidence of the witnesses nor do I consider that he tried this case on demeanour alone without recourse to the inherent probabilities and improbabilities of what the particular witness was saying.

12.At the end of the day, there remained the extraordinary fact that PW1 had not told anybody (not even her husband) about the indecent assault upon her for almost a year after the event.  The magistrate heard the evidence and accepted the reasons why PW1 had not told anyone about it until June 2010. I cannot say that he was wrong in accepting such evidence. And I am not prepared to say that the fact of such a late report could by itself vitiate this conviction. That would be too extreme a position and be in danger of usurping the magistrate’s function and duty to evaluate the evidence and, in particular, to consider carefully whether the reasons given for the delay by PW1 were credible and genuine. This it seems to me is exactly what he did.

13.In relation to the inconsistencies in PW1’s evidence, which the magistrate found were material, he examined the evidence surrounding them and determined that they all arose out of the witness’s inexact or confused way of expressing herself rather deliberate untruth. Having examined the evidence in its full context, I would not dissent from his conclusion. Indeed, it seems to me that the inconsistencies are more apparent than real.

Conclusion

14.In my judgment, the appellant’s conviction cannot be said to be unsafe or unsatisfactory. The appeal against conviction must be dismissed.

Mr Francis Lo, SADPP for Department of Justice, for the Respondent

Mr Cheng Huan S.C. leading Mr Bernard Cheng, instructed by Messrs Yaddy Cheung & Co., assigned by D.L.A., for the Appellant