HKSAR v. Fok Ka Shing

FAMC Nos 60 & 61 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS 60 & 61 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NOS 427 & 428 OF 2012)

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FAMC No 60 of 2012

Between:

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FAMC No 61 of 2012

Between:

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Appeal Committee: Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Tang PJ

Hearing and Determination: 16 July 2013

Date of Reasons for Determination: 23 July 2013

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1.In FAMC 60/2012, the applicant was charged with three counts of indecent assault contrary to section 122(1) of the Crimes Ordinance.  He was acquitted of the first two charges but convicted of the third charge after trial before Mr Ronald Cheung, a Magistrate.  His appeal to the Court of First Instance was dismissed by Deputy High Court Judge J Yau on 9 November 2012.

2.In FAMC 61/2012, the applicant was convicted of an offence of indecent assault after a trial before Mr Peter Law, a Magistrate.  His appeal to the Court of First Instance was dismissed by Deputy High Court Judge A Pang on 8 November 2012.

3.The applicants were represented by Mr Charles J Chan in their applications for leave to appeal which were heard by us at the same time. In both applications, the same question of law of great and general importance is said to be involved, namely, “Is intention of an accused an essential ingredient in considering whether the conduct(s) amount to indecency per se?”  The question must be approached on the basis of the facts found.

4.In both applications, leave is also sought on the substantial and grave injustice ground.  It is said that the decisions below are incorrect such that they amount to a departure from accepted norms resulting in substantial and grave injustice.

5.Both applications have been dismissed and these are our reasons. 

FAMC60/2012

6.The applicant was a clerk II employed at the Queen Elizabeth Hospital and one of the superiors of the complainant,PW2, who was clerk III.  They worked at the registration office of the A&E Department of the Queen Elizabeth Hospital.  On 18 August 2010 the applicant told PW2 to go inside a room which was only a short distance from the registration office telling her that he wanted to test her working ability.  They were alone in that room.  After the applicant had tested PW2’s working abilities, according to the learned deputy Judge :

“5. … appellant moved to (PW2’s) right hand side, squatted down, and put his hands on her right thigh. She was at that time wearing a [denim] skirt and tights. The length of the skirt stopped above the knees.

6. The appellant turned the swivel chair on which PW2 was seated so that she became facing him. The appellant put his hands between PW2’s thighs, close to her private parts and held her hands. She pushed the appellant away from her body. The appellant pushed his hands forward, close to her private parts. Such forward and backward pushes between them lasted for some time, and in the course of it, the appellant indicated that if PW2 wished him to speak in her favour to the superiors regarding her working performance, then she had to do something. The appellant said that the superior(s) concerned would dismiss staff and that his appraisal did have weight in the eyes of the superiors.

7. She stood up and cried. The appellant put his arms around her and press his chest against her chest. She continued to cry and tried to move backward, but the appellant held her tightly. This lasted for one to two minutes, and then the appellant released her and told her to go back to work.”

FAMC 61/2012

7.The applicant was the tutor of PW1,a seven-year-old boy. The boy told the applicant that he wanted to go to toilet. They left the classroom together, and entered the male toilet.  The boy unfastened his leather belt himself, pulled down his short pants and urinated, while the applicant was urinating beside him.  When they were finished, the boy put his pants back on and fastened his leather belt himself.  The applicant then gently pulled the boy into one of the cubicles and locked the door. According to the boy,in the cubicle, the applicant pulled down his short pants and underpants and held his penis in one hand and used the other  to wipe the tip of his penis with a paper handkerchief two or three times.  When the boy told the applicant that he felt a little pain, the applicant stopped what he was doing and told the boy that it “might get inflammation” and told him to go home to wipe it himself.  He then left. The boy put his pants back on and fastened his belt and returned to the classroom and continued with his lesson.

8.On such facts, Mr Chan submitted that the question “Is intention of an accused an essential ingredient in considering whether the conduct(s) amount to indecency per se?” ought to be submitted to the Court of Final Appeal for consideration.  But, the answer to the question is clear and is provided by Rv Court[1989] 1 AC 28, a decision of the House of Lords. Indeed, Mr Chan relied on R v Court, in particular, the dictum of  Lord Ackner that:

“… on a charge of indecent assault the prosecution must prove: (1) that the accused intentionally assaulted the victim; (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3) that the accused intended to commit such an assault as is referred to in (2) above.”

9.We believe the gravamen of Mr Chan’s submission is that, given that intention to commit an assault which is indecent is an essential ingredient of the offence of indecent assault, the learned magistrates ought to have expressly found that the applicants had such intent.  We do not agree.  As Lord Ackner explained  at page 42H:

“The assault which the prosecution seek to establish may be of a kind which is inherently indecent. The defendant removes against her will, a woman’s clothing. Such a case, to my mind, raises no problem. Those very facts, devoid of any explanation, would give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent…”

10.Thus, in RvC [1992] Crim LR 642, where the defendant was charged with indecent assault of a child by inserting his fingers into her vagina, the English Court of Appeal held that in a case where there was no equivocal aspect to the assault – ifit occurred it was undoubtedly indecent, there was no requirement to consider a defendant’s motive or intent if he in fact did what was alleged.  Mr Chan submitted that R v C is inconsistent withR v Court.  We disagree.

11.In HKSAR v Chan Sai Yung[2003] 1 HKLRD 376, the defendant observed that PW1, a girl, had removed her underpants whilst she was engaged in intimate behaviour in a park late at night with her boyfriend. He approached them and intervened as if he was an official or police officer.  He sat next to PW1 and put his hand under her skirt and touched her private parts.  The defendant gave evidence denying that he touched PW1’s private parts.  He admitted to touching the girl’s skirt because he was incensed by their conduct.  His evidence was disbelieved by the magistrate.  The point taken on his behalf on appeal was whether it was necessary for the magistrate to be satisfied not only that the defendant intended to commit the assault but also that he intended to do so knowing that he was indecent.   The magistrate in his findings did not say explicitly that the defendant intended to commit an assault that was indecent.  Jackson J said and we agree where the assault was undoubtedly indecent:

“19 … a magistrate or tribunal is not required to address the question of any intended indecency when giving reasons for a conviction.”

12.On the facts of the applications under consideration, it cannot be disputed that the applicants’ conduct in the absence of any acceptable explanation, gave “rise to an irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent.”   As we have said,essentially, Mr Chan’s complaint is that neither magistrate had expressly held that the applicantsintended to assault their respective victims in an indecent manner.  On the facts of these cases it was not necessary for them to do so. Their conduct left no room for doubt.  These cases fall into what Lord Griffiths described as:

“ ... the vast majority of the cases … , (where) there is no question that the accused is alleged to have done to the woman was indecent unless he had her consent. If the plea is not guilty, the defence is almost invariably either, ‘I did not do that which the prosecution alleged,’ or, alternatively, that ‘I did it with the woman's consent.’...” R v Court, at 34E.

In such cases, it is formulaic to require an express finding of intent by a magistrate.

Grave & Substantial Miscarriage of Justice

13.Mr Chan also submitted on behalf of these applicants that there is substantial and grave injustice. He sought an opportunity to repeat the criticisms made below regarding findings of fact and reasons given in their support.  There is nothing remotely approaching an arguable case of substantial injustice.  We are asked to investigate the facts and findings made by the courts below.  This is not the function of the Court of Final Appeal. See China Field Ltd v Appeal Tribunal (Buildings)(No 1)(2009) 12 HKCFAR68.

Mr Charles J Chan, instructed by Lim & Lok, for the applicant (in FAMC 60 of 2012) and by Or & Partners, for the applicant (in FAMC 61 of 2012)

Mr Tam Sze-lok, Issac SADPP (Ag), of the Department of Justice, for the respondent (in FAMC 60 & 61 of 2012)