HKSAR v. WONG WAI HONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1040/97

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J U D G M E N T

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1. The Appellant appeals against his conviction on one charge of indecent assault. The assault occurred on the MTR between Tsim Sha Tsui and Yau Ma Tei. The victim gave evidence that she had been touched on the buttocks with a fist 2 or 3 times as the train travelled from Tsim Sha Tsui to Yau Ma Tei. It was clear from the demonstration that she gave that she referred to the cleft in her buttocks as the area concerned. The Appellant did not claim to have seen the touch or who did it to her. Initially she thought the touch accidental, but when it was repeated realised that it was a deliberate touching.

2. The victim's account of what had happened was corroborated by a plain clothes police officer who had been on duty with a colleague at Tsim Sha Tsui MTR and had followed the Appellant onto the train because he aroused police suspicion by looking at females on the platform. The witness saw the Appellant took a position behind and to the left of the witness; he saw the Appellant's right hand moving at the front and then saw that he was touching the middle of the woman's buttocks for a duration about 20 seconds.

3. The Appellant did not give evidence but did stand in the witness box at his counsel's request to show the court the level that his hands reached when he was standing straight.

4. The first ground of appeal is that the Magistrate failed to evaluate the evidence properly and in particular failed to resolve discrepancies between the evidence of PW1 the victim and PWs 2 and 3 who were the two officers. The second was that he erred in law and/or fact in that he failed to follow the point of the defence case. This related particularly to the demonstration given in the course of the trial which the Magistrate stated "seemed to be to show that when PW1 and the Appellant were both standing with his hands at his sides and in a normal standing position the Appellant's hands would be at about the same level as the part of the buttocks of PW1 allegedly touched. I accept this as being the case." In fact, the purpose of that demonstration, according to the Appellant, was that in a normal standing position the Appellant's hand or fist would be above the point at which PW1's buttocks were touched because of appellant's unusual height. It was suggested that there was a material irregularity in the trial as the learned Magistrate failed to understand the demonstration and failed to mark the point on the witness box which was level with where the victim said her buttocks had been touched and that the Magistrate erred in making an examination or measurement of the witness box during the luncheon adjournment in the absence of the parties. The latter point was of no merit as defence counsel was prepared to accept the Magistrate's measurements without making his own check as he could have.

5. I considered the evidence in this case carefully and note from the Magistrate's clear findings that there was ample evidence on which the Magistrate could convict the Appellant of this offence. The Magistrate had the advantage of hearing the victim's evidence. He was aware that PW2 was an important witness and paid particular care to his evidence. Any differences between the evidence of PW3 and PW2 would be accounted for largely by the fact that they were at different positions in the carriage. As for the allegation that the Magistrate failed to consider or missed the point of the Appellant's defence, it is very difficult to see what the point of the defence was. It appeared to be that the Appellant when standing in an upright position had his hands above the level of the Appellant's buttocks. That may well be the case. It may be that the Magistrate did not fully understand the point of defence counsel's demonstration. However, it was difficult to deduce from the demonstration arranged, or from defence counsel's rather garbled submission what the real point of the defence was. It seemed to be that the Appellant's hands were, because of his height, so far above the victim's buttocks that the touching could not have occurred. Defence counsel ignored the possibility that the Appellant could have stooped, or bent or lowered his arm in some way to facilitate his touching the victim's buttocks. The Magistrate had before him the evidence of the police officer who had seen and gave a good account of the touching. The Magistrate had clearly before him the possibility that such touching as there was might have been accidental and he considered that aspect, but it was quite clear that if he accepted what the victim and the police officer stated in evidence the touching by the Appellant was not and could not have been accidental.

6. The Magistrate found the victim an impressive witness and accepted her as giving honest reliable and accurate evidence. He considered the police officer was a good witness and felt able to rely on the evidence he gave as corroborating the victim's account. I do not consider that any of the grounds of appeal have been substantiated I find that this is a safe conviction. The appeal against conviction is dismissed.