HKSAR v. Chhetri Ram Babu

HCMA579/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 579 OF 2014

(ON APPEAL FROM TMCC 878 OF 2014)

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JUDGMENT

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1.The appellant was convicted of one count of indecent assault[1]. He was sentenced to 3 weeks imprisonment by Deputy Magistrate, Mr Hui Chun-sing. He was granted bail pending appeal.

2.The victim (PW1) was a woman police officer.  At about 10:15 pm on 15 March 2014, she was on duty with another male police officer (PW2) in the vicinity of the Jockey Club Betting Centre at Tai Hang St, Yuen Long.  Both of them were in plainclothes.  She was standing by the doorway of the entrance.  She felt someone squeezed her right buttock from behind.  At that time, she noticed the appellant was by her side.  She was scared and nervous.  She did not know what to do.  The appellant left the Betting Centre making some flirtatious remarks.

3.Later, the appellant went back to the Betting Centre.  PW1 told PW2 about the incident.  PW2 arrested the appellant. 

4.The appellant admitted that he was at the Betting Centre watching a soccer match.  He had at one stage left the centre to look for his friend.  When he returned to the centre, PW1 and PW2 accused him of indecent assault.  He denied squeezing PW1’s buttock. 

5.The Deputy Magistrate found the appellant not reliable for the following reasons:

a  The appellant initially said he left the Betting Centre to borrow money from his friend.  Later, he changed his evidence and said he went to ask his friend to repay the debt owed to him. 

b  He first said he only got $400 to $500 but later accepted that he had $2,000 in his pocket. 

c  Given that the appellant claimed to be a money-conscious person and had only $4,000 pocket money each month, there was no reason why he would lend $1,500 to his friend. 

6.The surveillance footage of the Betting Centre was played during the trial.  The Deputy Magistrate accepted that it did not show that the appellant had touched PW1’s buttock.  He however thought that the incident occurred out of a sudden, it was not unreasonable that PW1 did not notice the squeeze.  He opined that the appellant’s thumb and left index finger were behind PW1 at one stage, it was not incompatible with PW1’s evidence and render her unreliable.  

7.The Deputy Magistrate noted that PW1 kept on stroking her hair even after the incident.  He however did not consider this reaction inconsistent with her allegation of indecent assault.  He further accepted PW2’s observation. 

8.The Deputy Magistrate concluded that PW1 and PW2 were honest and credible.  He accepted their evidence and convicted the appellant.  

Grounds of appeal

9.Mr Tang for the appellant put forward five grounds of appeal.  For the reasons below, I only need to refer to the second ground. 

10.Mr Tang complained that the Deputy Magistrate failed to consider the inherent improbability shown in the footage. 

a  Mr Tang invited this court to view the surveillance footage.  He argued that the appellant had walked quite close to PW1 in less than a second.  There was no clear evidence of contact, let alone squeezing. 

b  I had watched the footage with both counsel in open court.  In track 7 of the footage, PW1 was seen standing by the left side of the entrance talking on her mobile phone. At time around 22:07:05, when the appellant walked near PW1, his left hand did not touch the buttock of PW1.  There was no obvious contact between the left hand of the appellant and PW1’s body in the footage.  This is consistent with what the Deputy Magistrate found.  He accepted in paragraph 10 of the statement of findings that the appellant’s hand had not touched PW1.

c  The fact that the appellant had made some flirtatious remarks is neither here nor there.  This fact is only part of the circumstantial evidence.  I agree with Mr Tang that it may not strengthen the prosecution case. 

d  According to PW1, she was either squeezed by two fingers or a palm.  If that was the case, she must have some kind of body gesture or reaction to show that she was indecently assaulted.  In the footage, she continued talking on the phone and stroked her hair.  It appeared nothing had happened.  This is wholly inconsistent with an incident of indecent assault. 

e  PW1 explained that she was scared and nervous at that time.  Given that she was a police officer, I have grave doubt as to her alleged state of mind and reaction. 

f  Had PW2 witnessed the indecent assault as he claimed, it was unreasonable that he did not stop the appellant right away.  Instead, he waited until the appellant returned to the Betting Centre again before discussing the incident with PW1.  I find this unreasonable.

g  While the Deputy Magistrate accepted that both PW1 and PW2 are credible, in the light of the footage, their evidence left me in grave doubt. 

h  In my judgment, there is lurking doubt whether the appellant touched PW1 as alleged.  I do not find the conviction safe.  I allow the appeal on this ground.

11.Given the above, there is no need to consider the other grounds. 

Conclusion

12.The appeal against conviction is allowed.  The conviction is quashed.  The sentence of imprisonment is set aside. 

Mr Prakash L Daryanani, SPP of the Department of Justice, for HKSAR

Mr Leon Tang, instructed by Jal N Karbhari & Co, for the appellant