HKSAR v. Yeung David

HCMA 201/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 201 OF 2012

(ON APPEAL FROM ESCC 3185 OF 2011)

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REASONS FOR JUGMENT

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Background

1.The appellant was convicted after trial of one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. He was sentenced to nine weeks imprisonment by the magistrate. He appealed against conviction. After hearing the case I dismissed his appeal. Here are my reasons.

Prosecution case

2.There is no dispute that at the material time the complainant (whom I should refer to as “X”) was working as a part‑time waitress at a restaurant in Central and the appellant worked as an assistant manager there.

3.X admitted she had worked for the same company before but as the working hours hindered her studies, she quitted her job.  X was adamant that she was not dismissed.  She later agreed to work as a part‑time waitress as the working hours were more flexible.

4.On the day in question (ie 8 June 2011), X and the appellant were both inside the storeroom of the restaurant.

5.According to the testimony of X, she was there to change the menus and the appellant was sitting in front of the computer.  They chatted with each other and suddenly the appellant pinched the back of X’s right upper thigh.  Though X wanted to leave, she did not and made no response.  Another colleague came in and X did not make any complaint to that colleague.  She explained that colleague was a man and she did not see any point of telling him.  After that colleague had left, the appellant got up and stood about two feet away from X.  He pointed at the X’s vest underneath her uniform blouse and asked her why the vest was hanging out of the blouse.  X was then wearing the type of vest which had two straps tied at the back of her neck.  X thus replied that she had shortened the straps as the straps were too long.  The appellant then asked X whether the vest would come down if the straps were released.  X replied in the negative.  The appellant then put his finger inside X’s blouse and brushed his finger across the upper part of X’s breasts once, from right to left.  The appellant’s finger directly touched X’s flesh.  X was scared and unable to respond.  The appellant then asked X why she was sweating and whether she was feeling hot.  X replied in the negative.  The appellant then said to X that she had a “career line”, which X understood to be a reference to her cleavage.  The appellant left the room one to two minutes later.  X left the storeroom after she finished doing her job.

6.On the next day (9 June 2011), X made a complaint to her mother, who had just returned to Hong Kong from a trip.  X told her mother that the appellant had inserted his hand into her blouse and touched her breasts.

7.After that, X also informed one of her supervisors (someone known as “Bing Gor”) about the incident.  Bing Gor then suggested X to inform the company about the incident.  X and her mother thus went to the restaurant the day after and informed X’s supervisors, a certain “Ming Gor” and Joseph Chan about the incident.  Chan later gave evidence for the defence.

8.According to X, Chan assured her that she could continue to work for the company and her duties would be separated from those of the appellant’s.  X decided not to continue and she quitted her job.

9.X made a report to the police on 12 June 2011.  The appellant was arrested two days later on 14 June 2011 and he voluntarily attended a video‑recorded interview.  While admitting that he had gone inside the storeroom and had chatted with X; and that he had made some comments about X’s vest straps but not directing the comments to X, the appellant denied that he had touched X’s breasts.  The appellant claimed that he might have accidentally bumped into X when he pushed his chair away and walked over.  The appellant did not remember whether he had bodily contact with X.

The defence case

10.The appellant elected not to give evidence but called Joseph Chan, his boss, to give evidence.

11.Chan said he had known the appellant for 30 years and X for nine months.

12.According to Chan, X was previous employed by the restaurant as a receptionist but her work attitude was “loose”.  Chan said that X was in a habit of not being properly attired for work (ie exposing the vest straps from under her uniform blouse) and flirting with customers and staff (himself included), X was therefore dismissed by the company.  However, due to the shortage of staff, X was re‑hired despite her shortcomings.

13.Chan also referred to the meeting he had with X and her mother at the company, when X made the complaint against the appellant.  According to Chan, X intimated she would make a report to the police or the Equal Opportunities Commission.  Chan replied to X that it was up to her to decide to whom she chooses to make a report but he would conduct an investigation.

Grounds of appeal

14.Mr David Boyton, counsel for the appellant (who also represented the appellant during the trial) basically submitted ONE ground of appeal to say that the conviction was unsafe and unsatisfactory.

15.The main thrust of Mr Boyton’s attack centred around X’s usage of the word “hand” and “finger” to describe the way the appellant made the insertion into her blouse.  Mr Boyton submitted that the magistrate had failed to resolve the inconsistencies and therefore failed to evaluate the credibility of X.

16.In a nutshell, Mr Boyton’s submissions were as follows:

(1)  X had said in court that the appellant had inserted his finger, but in her first statement to the police she had said the appellant had inserted his hand.  Further, when she made a complaint to her mother, she had also described the appellant inserting his hand, not his finger.

(2)  The “terms of the recent complaint” to X’s mother were inconsistent with X’s version, in that X had failed to mention the thigh‑pinching by the appellant.

(3)  During the cross‑examination of X, the magistrate was invited to allow the appellant to demonstrate that he could not have put his hand through the gap between the buttons of the blouse (exhibit P2) but the magistrate did not take up the invitation.  Yet the magistrate found she “did not find the act to be impossible”, thereby making the insertion of the hand part of her findings, even though the magistrate ultimately found that the appellant had inserted his finger inside X’s blouse.

Respondent’s response

17.Miss Rosa Lo, Public Prosecutor for the respondent, basically disagreed with the appellant’s submissions.  In relation to the three points I have summarised above, Miss Lo’s response could be summarised as follows:

(1)  There were no discrepancies in X’s evidence.  The magistrate was correct to find that X’s description of using the “finger” “was to point out a more particular part of the [appellant’s] hand”.

(2)  There were no inconsistencies between X’s version in court and the terms of the recent complaint.  The main complaint was the inserting of the hand (which includes the finger) into X’s blouse, not the thigh‑pinching.

(3)  Miss Lo brought to the court’s attention that the blouse exhibited (P2) was a blouse which was similar to the one X had worn on the day, it had not been established that it was the very same one worn by X.  That being the case, no purpose would have been served by the appellant demonstrating whether his hand could insert through the gap of P2.  Miss Lo also submitted it would not have been proper for such a demonstration while X was giving evidence.  The correct time to do so would have been when the appellant gives evidence, which the appellant elected not to do.

My consideration

18.Having considered the transcript of the testimony of X and her mother; the admitted facts; the Statement of Findings and the respective submission by both counsel, I am afraid — despite the thorough argument submitted by Mr Boyton — I do not find any merits in the ground of appeal.

19.It is clear that the magistrate was entitled to find, as a fact‑finder, that there were no real discrepancies between the use of the word “hand” and “finger” by X.  X had clearly explained why she had said hand (the appellant having extended his hand to insert) and later on said finger (the police asked her in greater detail about the hand).  Bearing in mind that in Chinese, the word “hand” can be a generic term to include any part of the hand, including the fingers, X’s description was clearly that the appellant had extended his hand and inserted his finger into her blouse to touch her on the breasts.  The magistrate had properly resolved the apparent different usage of “hand” and “finger” and found there were no inconsistencies.

20.As to the terms of the recent complaint, the magistrate had considered X’s failure to mention the thigh-pinching incident to her mother and was satisfied that X’s main complaint was the touching of her breasts by the appellant, not the thigh‑pinching.  I find nothing wrong with the magistrate’s findings.  I agree there were no inconsistencies between X’s recent complaint to her mother and her testimony in court.

21.As to the invitation to witness a demonstration by the appellant to test if his hand could insert through the gap between two buttons on the blouse (P2), it really makes no difference in this case whether there was such a demonstration or not as it is quite clear from X’s testimony that X was not saying the appellant had inserted his whole hand into her blouse, though she had indeed used the word “hand” to describe the action of his finger‑inserting.

22.In any event, according to the admitted facts, the blouse was described as “a similar blouse worn by [X]”.  It was not an admitted fact that P2 was the one worn by X at the material time. X said in evidence she was of medium size and the blouses provided were usually of a larger size (L or XL) (Appeal Bundle, p 207U‑208E).  There was no evidence before the magistrate that P2 was the one actually worn by X at the material time.  Any demonstration would have served no purpose.

23.Although the magistrate had made a finding that “she did not find it impossible” for the appellant to have his hand inserted through the blouse exhibited in court when the appellant did not do any demonstration, this finding was to answer the defence submission on the issue of inherent improbability.  In any event, whether the appellant’s hand could have inserted through the gap is neither here nor there as X’s complaint was that the appellant had inserted his finger, not his whole hand, into her blouse.

24.The magistrate had carefully evaluated the evidence before her.  She gave herself all the correct directions and she gave cogent reasons why she rejected the exculpatory part of the appellant’s video‑recorded interview and the evidence of Chan.  She had correctly set out the elements/ingredients of the offence and the facts she found proved to support those elements/ingredients.

25.On the finding of the magistrate, the prosecution had clearly proved beyond a reasonable doubt that the appellant was guilty of having indecently assaulted X.  There was no basis to suggest the conviction was either unsafe or unsatisfactory.  

Conclusion

26.The appeal was dismissed.