HKSAR v. Akram,Faisal

HCMA 486/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 486 OF 2014

(ON APPEAL FROM TWCC NO. 850 OF 2014)

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REASONS FOR JUDGMENT

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1.The appellant appealed against both conviction and sentence.

2.The appellant appeared before Miss C Y Ng, Deputy Magistrate on 9 June 2014 and was convicted of a single offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong.  On 23 June, assisted by background and psychological reports the Learned Magistrate sentenced the appellant to 12 months’ imprisonment.  On 10 July the Magistrate determined an application for review by confirming both the conviction and sentence. The applicant now appeals against conviction and sentence.  Held, dismissing the appeal both against conviction and sentence.

3.Six grounds of appeal against conviction were originally set down but the first was not proceeded with.  The Magistrate was correct to designate minor inconsistencies in PW1’s evidence and minor inconsistencies between the evidence of PW1 and PW2 as unimportant when considering this overall credibility of PW1.

4.The Learned Magistrate was fully entitled to believe and accept PW1’s evidence of bruising without medical or corroborative evidence.

5.The Magistrate showed no bias against the appellant being fully entitled to believe PW1’s evidence.  The appellant, as is his absolute right, did not give evidence.

6.PW2 was perfectly reliable as a witness to establish a recent complaint.  Indeed the case was such that PW2’s evidence showed consistency to a high degree.

7.The appellant’s conviction was neither unsafe nor unsatisfactory.

8.The sentence of 12 months’ imprisonment is neither excessive nor wrong in principle.

9.The Magistrate clearly took full account of all relevant matters in reaching a sentence which was fully justified on the facts found even given his clear record and favourable assessment in both the Probation Officer’s report and the Psychological report.

The Prosecution Case

10.The prosecution case is based on the testimony of PW1, Umi Salamah, a female domestic helper of Indonesian origin.  The appellant is a 25 year old Pakistani caretaker/watchman.  The incident took place on 21 November 2013.  At about 15.30 hours PW1 and D1 each carried a plant to a hillside near Lavender Garden, 9 Hill Top Road, Tsuen Wan.  PW1 was wearing two upper garments, a pair of trousers and black leggings.  The appellant was putting down his plant and PW1 did the same bending to his left.  Suddenly D1 put both his hands round her waist then moved them up to hold both of her breasts from behind then turned her round, and kissed her neck and face.  When moving his hands from her waist to her breasts, his penis was erect.  He thrust his penis from behind onto her private parts over her trousers.  He pulled down the right side of her trousers to middle thigh.  He said “I want to fuck.  I want to fuck”. She said “cannot, cannot” and told him not to harass (her).  The assault lasted 7‑8 minutes until an animal, she guessed to be a wild boar and a taxi passed by.  The appellant then released her.  PW1 ran home at about 15.45 hours and tried to reach PW2 by phone, PW2 returned at 22.30 hours and PW1 complained to her.

11.PW1 had injuries to both breasts.  Initially PW1 decided to give the appellant a chance and did not report the matter when he bowed down and apologized to her and PW2.  However other events occurred and PW1 and PW2 did report this matter to the police on 5 December 2013.

The Defence Case

12.The appellant elected not to give evidence nor call any witnesses.  His case was that PW1 was making it up and framing him as she was angry with him for disclosing she had had a relationship with another man.  PW1 is married.

The Appeal Against Conviction

13.The Learned Magistrate in her Statement of Findings has properly and methodically set out her findings of fact applicable to the case and the reasons for finding the appellant guilty of that charge.  She was mindful of and assiduous in her application of the facts to the burden of proof.  What inconsistencies and contradictions there are as between PW1’s evidence of what occurred and what PW2 recalls as the complaint are minor, inconsequential and of insufficient importance to impact adversely on her credibility or indeed that of PW2.  The Magistrate observed, evaluated and took into account in a measured and proper way her demeanour in court.  She concluded that PW1 was angry but honest.  A finding she was fully entitled to make.  The evidence of PW2 she found to be generally consistent and supportive and that it rightly amounted to a recent complaint.  She was careful to warn herself of the dangers of conviction when there was no direct corroboration.  She noted the dangers and that the recent complaint showed only consistency and did not corroborate.  The Magistrate’s reference to corroboration in paragraph 59 of her Statement of Findings is unfortunate but not fatal.  I treat this as a slip of the pen not expressed as well as one would have hoped.

14.Therefore in the final analysis I am satisfied that the prosecution case was such that the Learned Magistrate was clearly entitled to find the facts of the indecent assault proved beyond all reasonable doubt and to convict the appellant on the charge.

The Appeal Against Sentence

15.The facts found by the Magistrate are the basis upon which she imposed the sentence of 12 months’ imprisonment.  The facts upon which this sentence is based are clearly and properly set out in paragraph 92 of her Statement of Findings.  The Learned Magistrate found that this was a forceful and violent indecent assault involving grabbing of her waist and breasts leading to injuries.  Also as part of the incident the appellant kissed her neck and face.  He was sexually aroused and thrust his erect penis onto her private parts outside of her trousers whilst at the same time trying to remove those trousers.  The findings of the Magistrate that she was spared being raped by the nature of her clothing and the passing of a wild animal and a taxi is entirely proper and a factually sound.  She was clearly vulnerable and remote from assistance when these calculated acts took place.  Offences of indecent assault vary greatly in the facts from at the lower end a mere opportunist touching to a situation moving towards potential rape.  This clearly falls into the latter more serious category.  The Learned Magistrate made full allowance for the clear record of the appellant and the positive comments in the reports.

16.Given all the circumstances I am firmly of the opinion the sentence was entirely correct being neither manifestly excessive nor wrong in principle. What took place was fully deserving of a substantial custodial sentence.

Mr Prakash Daryanani SPP, of the Department of Justice, for the respondent

Ms  Meena Agnani, instructed by Yeong & Co, for the appellant