HKSAR v. Wong Sai Shing

HCMA 463/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 463 OF 2013

(ON APPEAL FROM KTCC 1271 OF 2013)

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J U D G M E N T

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Background

1.The Appellant Wong Sai-shing (the Defendant at the trial below) faced a charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. The particulars of offence stated that on 6 November 2012, inside Yin Hing Street Playground, Yin Hing Street, Kowloon, in Hong Kong, the Appellant indecently assaulted another person, namely female X.  

2.The Appellant denied the charge and the case was heard before a magistrate, Ms Kennis C K Tai.  He was found guilty after trial.  The magistrate sentenced him to a term of 21 days’ imprisonment.  The Appellant appealed against conviction and was granted bail pending appeal. 

3.The trial was conducted in Chinese.  By order of Master Wong made on 22 November 2013, the appeal is to be conducted in English. 

Prosecution case

4.The prosecution’s case was that at about 6:40 pm on 6 November 2012, PW1 (female X) was en route to a café near Yin Hing Street Playground, intending to have dinner with her father (PW3).  Proceeding to the café, she was talking on her mobile phone at all times.  When she felt someone touch her buttock from behind, she turned and saw the Appellant was within close proximity to her. She immediately pointed at the Appellant and scolded him. PW1 also telephoned her father and complained to him.  PW3 went to meet PW1 and saw PW1 was tailing the Appellant.  PW3 subdued the Appellant and subsequently the matter was handled by the police.  The entire process of the incident was witnessed by PW2 who was at a grilled-food shop near the playground.

5.The prosecution intended to rely also on the alleged confession and post-recorded statement of the Appellant, but the magistrate rejected the same, having found that the prosecution had failed to prove their voluntariness beyond reasonable doubt.

Defence case

6.The Appellant elected not to give evidence at the trial.  He called an expert witness and produced his psychological report to prove that he was prone to run into difficulties in handling matters.  The prosecution was left to prove its case against the Appellant.

The magistrate’s findings

7.The magistrate made several findings regarding various issues relevant to the offence with which the Appellant was charged:

(1) Regarding the exact location of the alleged assault, the magistrate accepted PW2’s version and the images recorded in the CCTV footage, instead of PW1’s evidence.

(2) Regarding the touch on her buttock from behind, PW1’s description was “a slap by one hand followed by a stroke” whereas PW2’s description was “one slap”.  On this, the magistrate accepted PW1’s evidence.

(3) On whether the touching by the Appellant was intentional or could it have been accidental, the magistrate found that the act was deliberate.   

Grounds of Appeal

8.Mr Cheng Huan SC, leading Mr William H M Lam, for the Appellant, has raised two grounds of appeal, namely:

(1)   The learned magistrate erred when she placed total reliance upon PW2’s description and demonstration of the Appellant’s act on the one hand but excluded the possibility of an accident beyond reasonable doubt on the other; and

(2)   The conviction was unsafe and unsatisfactory.     

9.It is on the basis of Ground 1 that the conviction is said to be unsafe and unsatisfactory in Ground 2.  Counsel’s submissions are pointed and detailed, as follows:

“12. To establish the charge of indecent assault against a defendant the prosecution must prove that (i) the defendant committed the actus reus, i.e. assaulting the victim; (ii) the defendant intentionally assaulted the victim; and (iii) when the defendant assaulted the victim, he had an indecent intention. In R v Court [1989] 1 AC 28, Lord Ackner said, at p 43D:

“For the defendant to be liable to be convicted of the offence of indecent assault, where the circumstances of the alleged offence can be given an innocent as well as an indecent interpretation, without the prosecution being obliged to establish that the defendant intended to commit both an assault and an indecent one, seems to me quite unacceptable and not what parliament intended.”

13. Lord Griffiths in the same case, at p 34B, also agreed that a person could not “accidentally” commit the offence of indecent assault:

“There is an agreement that the offence cannot be committed accidentally as, for instance, in the example given by Lord Ackner of ripping a woman’s clothing whilst attempting to force an exit from a tube train.”

14. It follows that touching is not by itself sufficient to constitute indecent assault. The prosecution must also prove the necessary intent and rule out the possibility of accident. It can be seen from the Statement of Findings that the contact complained of in the Appellant’s trial was a single touch. It was not a caress, squeeze, pinch or anything of that nature, and by its nature could as easily have been an accident.

15. Taking into consideration that PW1’s buttock was touched from behind and the alleged touch was so brief, it is understandable that she was not in a position to assist the Learned Magistrate in determining whether it was an accidental or intentional touching.

16. On the other hand, PW2 was an independent witness who observed the entire physical contact between PW1 and the Appellant, and the Learned Magistrate was entitled to rely solely on his descriptions and demonstrations in finding what had exactly happened at the alleged crime scene:

“According to PW2’s testimony, the Defendant initially was 2-3 steps away from PW1 but when he got to the position directly in front of PW2… Moreover, PW2 further demonstrated in court that the Defendant’s left arm was originally hanging down…”

17. In her Analysis of the Evidence, the Learned Magistrate found PW2 a credible and reliable witness and his evidence was “wholly” accepted by the court:

“After carefully considering counsel’s submissions, the court found that in respect of this point, neither PW2’s credibility nor his reliability was affected and wholly accepted PW2’s evidence”.

“Having considered all the above points and the overall circumstances, the court accepted PW2’s evidence, unless stated otherwise”.

18. However, the Learned Magistrate erred when she placed total reliance on PW2’s descriptions and demonstrations on the one hand but excluded the possibility of an accident on the other. PW2 had the advantage of witnessing the entire incident at the scene and therefore he was in the best position to judge whether the touching could have been accidental. While PW2 accepted in court that he could not be sure whether or not the touching was intentional, it was in all these circumstances unsafe and/or unsatisfactory for the Learned Magistrate to come to her own conclusions.

19. In HKSAR v TSAO Hung-wai HCMA 943/2001, the appellant was accused of bumping the buttock of a 17 year old school girl on a MTR train. As the girl herself acknowledged that those “bumps” may have been accidental (save the last which she thought was intentional), Jackson J (as he then was) held that it was not open to the trial magistrate, in the absence of the police evidence which he rejected, to conclude that that contact was intentional; indecent and intentionally so.

20. Similarly, in HKSAR v LEE Hon-sun HCMA 853/2002, the appellant was accused of pressing his private parts against the victim’s buttocks in a MTR compartment and when allowing the appeal Deputy Judge D Pang (as he then was), in para 12, held that “to prove indecent assault, there has got to be clear evidence negating accidental and/or unavoidable contact”.

21. In our respectful submissions the Learned Magistrate made fundamental errors in her approach when she excluded the possibility of an accidental touch.  Upon the totality of the evidence, a court cannot be satisfied beyond a reasonable doubt that the Appellant intended an indecent assault upon PW1.”

Respondent’s submission

10.Ms Denise Chan, Senior Public Prosecutor, on behalf of the Respondent, raises no dispute on the ingredients of the offence of indecent assault, as enunciated in R v Court [1989] AC 28.  She refers to the judgment of Lord Ackner at pp 45H-46A as follows:

“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. "

11.Ms Chan submits that the magistrate was, on the evidence before her, fully entitled to accept the testimony of PW1, PW2 and PW3 in the way she did.

12.Regarding the main thrust of the Appellant’s attack on the magistrate’s finding of an intentional assault, Ms Chan provides a forceful answer.  Having found that Appellant had touch PW1’s buttock, the magistrate had analysed the evidence in detail on whether or not the Appellant intentionally assaulted PW1.  At the outset, the magistrate correctly stated that “First and foremost, this was a fact for the Court to decide, and a conclusion was to be made on the basis of the available evidence.”

13.Ms Chan submits that at trial, it was actually improper for the defence counsel to ask PW2 to comment on whether or not Appellant’s touching on PW1 was made intentionally. That was a piece of opinion evidence which PW2 was not entitled to give, and indeed it should be one of the ultimate issues to be decided by the tribunal of fact. The Learned magistrate was correct in not accepting PW2’s opinion, which was a piece of inadmissible evidence.

14.She draws my attention to various pieces of evidence that support the magistrate’s finding of an intentional assault, and submits that the magistrate has ample evidence to support her conclusion that the Appellant’s touching on PW1’s buttock was an intentional one.  The magistrate had set out clearly the basis of such a finding.  The conviction was well supported by evidence.  The magistrate was entitled to reach the findings she had made and found Appellant guilty as charged.  Ms Chan submits that the magistrate has not fallen into any error of law and has not had any misapprehension of facts in arriving at her verdict.  The conviction of the Appellant is both safe and satisfactory.  HKSAR v TSAO Hung-wai and HKSAR v LEE Hon-sun referred to by the Appellant are factually distinguishable and not applicable.  The appeal should be dismissed.

Discussion and my view

15.On the very important issue of whether the touch of the Appellant on PW1’s buttock was intentional or otherwise, the magistrate in her Statement of Findings had the following to say:

“21. …, the court accepted PW2’s evidence, unless stated otherwise.

22. PW3 was a witness who was willing to call a spade a spade. The court also accepted his evidence.

23. The court believed that the Defendant did touch PW1’s buttock. What needed to be dealt with next was whether or not the Defendant intentionally assaulted PW1.

24. The Defendant argued that PW2 accepted in court that he could not be sure whether or not the touching was made intentionally. First and foremost, this was a fact for the court to decide, and a conclusion was to be made on the basis of the available evidence.

25. According to PW2’s testimony, the Defendant initially was 2-3 steps away from PW1 but when he got to the position directly in front of PW2 around 6 feet away [from PW2], he suddenly sped up, got close to PW1 and slapped her buttock once with his left hand.  Then he walked past PW1 and was in front of her on her left.  When she turned round to check, the Defendant was already ‘in a position slightly ahead of the position he would have been in if he had walked side by side with her’.  It is not contested that the Defendant was carrying book/books in his right hand.  If he had to overtake her but unintentionally came into contact with PW1’s left buttock, then, if things had happened normally it should have been his right hand that contacted her.  Moreover, PW2 further demonstrated in court that the Defendant’s left arm was originally hanging down, then it moved with his palm in an upward motion and slapped PW2’s buttock.  At the time there were no other pedestrians around PW1, and the route he took for moving forward was not likely to be effected by other people.  The Defendant suddenly accelerated and touched her.  That clearly was an intentional touching, and had nothing to do with any mental problems.  The court excluded the possibility of an accident.”

(Emphasis added.)

16.It can be seen clearly that the magistrate had met the defence argument fairly and squarely regarding the evidence of PW2 that he could not be sure whether or not the touching was made intentionally.  She rightly pointed out that it was a matter of fact for the court to decide. 

17.On the evidence before the magistrate that was accepted by her, at least the following points, which were mainly set out in paragraph 25 of her Statement of Findings, support her finding of intentional touching:

(a) PW1’s evidence that the body contact was “a slap by one hand followed by a stroke”;

(b) PW2’s evidence that the Appellant was initially 2 or 3 steps away from PW1, he suddenly sped up, got close to PW1 and slapped her buttock once with his left hand; then he walked past PW1 and was in front of her on her left;

(c) The Appellant was carrying books in his right hand;

(d) If the Appellant had to overtake PW1 but unintentionally he came into contact with PW1’s left buttock, then if things had happened normally, it should have been his right hand that could touch her;

(e) PW1’s demonstration in court that the Appellant’s left arm was originally hanging down, then it moved with his palm in an upward motion and slapped PW1’s buttock;

(f) At the material time, there were no other pedestrians around PW1 that might affect the Appellant’s movements; and

(g) The Appellant’s sudden acceleration and touching PW1 was clearly an intentional touching. 

18.In the circumstances, the magistrate excluded the possibility of an accident. 

19.I also agree with Ms Chan’s observation that it was actually improper for defence counsel to ask PW2 to comment on whether or not the Appellant’s touching on PW1 was made intentionally.  This was opinion evidence which PW2 was not entitled to give, and indeed it should be one of the ultimate issues to be decided by the magistrate as a tribunal of fact.  I consider that the intention of the Appellant cannot be a matter for PW2 to perceive with his physical senses, and thus must be his opinion.  Mr Cheng is not able to point to any evidence to the contrary.  I consider that the magistrate was fully entitled not to accept PW2’s opinion. 

20.Mr Cheng’s argument is that the magistrate found PW2 to be a credible and reliable witness but PW2’s evidence was that he could not be sure whether or not the touching was intentional.  Mr Cheng relies on the decision of Jackson J in HKSAR v TSAO Hung-wai.  In that case, the Appellant was accused of bumping the buttock of a 17 year old school girl on a MTR train.  The girl herself acknowledged that those “bumps” might have been accidental; the judge held that it was not open to the trial magistrate, in the absence of the police evidence which he had rejected, to conclude that the contact was intentional, indecent and intentionally so.  In that case, the complainant had in evidence described that on the MTR train, it was very crowded at the time; she thought that the “bumping” was an accident and the defendant touched her accidentally.  She described that the defendant kept bumping onto her 4-5 times.  She accepted in cross-examination that the bumping was or might have been accidental or it was deliberate; she was not sure.  While it is permissible to ask a witness whether certain acts were accidental or not, because that is a matter of fact within the realm of factual evidence in the surrounding circumstances as perceived by the witness, a witness cannot properly testify or be legitimately asked as to whether something is intentionally done by the person doing it unless it is so expressly described by the person doing it himself.  This is a matter of opinion evidence that is not permissible.  As the magistrate said, whether the act of the Appellant was intentional or not is entirely a matter for her to decide as a tribunal of fact, not for a factual witness to express an opinion. 

21.Indeed, PW2’s evidence that he could not be sure if the Appellant’s touching was made intentionally reflects that he was candid, straightforward and honest.  He could not possibly tell the Appellant’s mind.  He was not asked whether the touching could have been accidental, as now submitted by Mr Cheng, which would be different and permissible.

22.During argument, Mr Cheng concedes that PW2’s not being sure that the touching was intentional was an opinion, and that he does not rely on Jackson J’s observation in TSAO Hung-wai that it was not open for the magistrate to conclude that the contact was intentional in that case.  Mr Cheng argues, however, that since the magistrate in the present case accepted everything said by PW2, with the only exception of his opinion, that renders the conviction unsafe and unsatisfactory.  Mr Cheng’s analogy is that the magistrate accepted 99% of PW2’s evidence but refused to accept 1%.  That makes the conviction unsafe.

23.Mr Cheng stresses that the prosecution must provide clear evidence to negate accidental or unavoidable contact as decided by Deputy Judge Pang in LEE Hon-sun.  The evidence in the present case, however, does not permit the inference of intentional touching as the magistrate had drawn, and anyway, that inference cannot be said to be the only reasonable or irresistible inference.

24.I have examined the magistrate’s Statement of Findings on this issue very carefully, and I have not detected any error or illogicality.   She was fully entitled to accept PW2’s factual evidence in its entirety and refuse to accept his opinion and to make the finding that the Appellant deliberately touched PW1.  In my judgment, the matters set out by the magistrate in paragraph 25 of her Statement of Findings (cited under paragraph 15 above and referred to in paragraph 17 above) justified her drawing the only reasonable inference against the Appellant that his touching of PW1’s buttock was deliberate.  I do not accept Mr Cheng’s argument that in the circumstances, the conviction was unsafe or unsatisfactory. 

Conclusion     

25.For the above reasons, I dismiss the appeal.  

26.The Appellant, who has been on bail pending appeal, must now return into custody to serve the sentence.

Ms Denise Chan, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Mr Cheng Huan SC, Mr William H M Lam, instructed by Messrs Winnie Leung & Co, for the Appellant