HKSAR v. Balwinder, Singh

HCMA 323/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 323 OF 2013

(ON APPEAL FROM KCCC NO. 870 OF 2013)

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REASONS FOR JUDGMENT

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Introduction

1.The appellant was charged with indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200 and tried at Kowloon City Magistrates’ Court before Kelly Shui, Deputy Magistrate, on 26 and 29 April 2013.  On the latter day he was convicted and sentenced to 14 days’ imprisonment.  He then appealed against conviction.  At the hearing of the appeal I dismissed the appeal and said I would hand down my reasons for so doing at a later occasion. These are my reasons.

The Trial

2.The indecent assault was of a woman at the Kowloon Tong MTR station platform on 20 February 2013.  The prosecution case essentially consisted of the complainant, PW1, and a corroborating witness, PW2, who was standing on the platform of the Kowloon Tong MTR station at the time the incident occurred. Unfortunately for the appellant, this corroborating witness of the complainant was, in fact, an off-duty police officer.

3.It was the complainant’s evidence that as she was standing on the platform waiting for a train to arrive, she felt a hand brushing against her buttocks in a sweeping motion.  This back and forward sweeping motion occurred twice.  PW2, the off-duty female police officer, was standing in close proximity to and behind the appellant.  She said she noticed the appellant moving closer towards the complainant before any train arrived at the station and because she regarded this behaviour by him as odd she kept him under observation.  She then saw the appellant sweep his hand back and forth across the buttocks of the complainant.  She had a clear, uninterrupted view of what happened and never lost sight of the appellant.  The touching of the complainant’s buttocks only lasted a couple of seconds according to both PW1 and PW2.

4.The complainant screamed, PW2 detained the appellant, the Police were called and the appellant was arrested.  From the moment the appellant was detained he protested his innocence.  There was evidence from police officers that at the police station the appellant complained of been unwell and so he was taken to hospital for treatment.  There was a suggestion throughout the evidence of the complainant and other witnesses that the appellant might have been, to some limited extent, under the influence of alcohol.  The complainant, in her evidence, referred to an incident as she was coming down the escalator to the station platform of being bumped by the appellant as he walked down the escalator and passed her.

5.The appellant gave evidence and testified that he was standing on the platform waiting for a train, a train arrived and he entered the train cabin and was thereupon asked to get off the train by PW2 who held up a card and told him in English “Come down, I arrest you”.  She did not say she was a police officer but the appellant, nevertheless, complied with the request.  He denied any incident with the complainant, either earlier on the escalator coming down to the station platform or on the platform itself.  He said that he had been to a party earlier that afternoon at which he had consumed a quarter of a bottle of whisky.

The Magistrate’s Statement of Findings

6.In a detailed Statement of Findings the magistrate explained that she disbelieved the appellant’s evidence and accepted the evidence of the complainant and the off-duty police officer who independently observed the offence taking place. She explained why she accepted their evidence and why she rejected the evidence of the appellant.  Having reached this conclusion in respect of the credibility of the appellant and of the prosecution witnesses she found herself satisfied beyond reasonable doubt of the guilt of the appellant and convicted him accordingly.

The Appeal

7.The appellant is unrepresented before me today and in his Notice of Appeal has not revealed any grounds of appeal.  In his oral submissions to me he has merely repeated his assertion that he did nothing wrong.  However, he did say that he was drunk.  He asked for leniency as he is taking care of a child and has no-one to look after that child.

Discussion

8.I have carefully reviewed the magistrate’s Statement of Findings and can find no error by her in the way she approached this case.  She has thoroughly explained the evidence before her and given reasons why she preferred the evidence of the prosecution witnesses rather than the evidence of the appellant. Once she had concluded that the complainant and the off-duty police officer were both credible and reliable in their testimony then a conviction was inevitable.

9.Notwithstanding the absence of any error by the magistrate, this being a rehearing, I have considered carefully the evidence as summarised by the magistrate and read the other papers in the appeal bundle.  This includes the submissions by the appellant’s counsel at trial.  There were no legal issues in this case and it turned completely upon the credibility of the witnesses.  If the prosecution witnesses were believed and the appellant disbelieved then there was undoubtedly sufficient evidence to justify the appellant’s conviction.  Like the magistrate I can see no reason not to believe the prosecution witnesses and to give full weight to their testimony.  This was not a one-against-one witness situation and the evidence of PW2 provided compelling corroboration of the complainant’s evidence.  The magistrate analysed the appellant’s evidence and gave cogent reasons for rejecting it.  I agree, for the reasons given by the magistrate, that that evidence is inherently unbelievable.

10.I could see no basis for quashing the conviction in this case and I, therefore, dismissed the appeal.

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

The appellant appeared in person