HKSAR v. LAM CHUN KONG

HCMA147/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 147 OF 2010

(ON APPEAL FROM TWCC 3759 OF 2009)

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J U D G M E N T

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1.  The 46-year-old appellant, a warehouse worker, was convicted of an offence of behaving in a disorderly manner contrary to s. 17B(2) of the Public Order Ordinance (“the Ordinance”) after a trial at Tsuen Wan Magistracy before Ms Merinda Chow. He was sentenced to 14 days’ imprisonment and now appeals his conviction.

2.  The prosecution case was that on 13 November 2009 the appellant had been a passenger on an MTR train travelling between Tsing Yi and Lai King.  He was standing, and his back faced the back of a female passenger who was standing at an angle to him and who was very close to him.  The carriage was crowded.

3.  There were two passengers sitting about a metre from the appellant.  They were husband and wife and became PW1 and PW2 at trial.

4.  As the train progressed towards Lai King both PW1 and PW2 noticed the appellant’s left hand, which was by his side, turn so that the palm faced outwards and its fingers stretch out so that the palm formed a flat surface.  The appellant’s palm then moved towards the female passenger’s buttocks, and over a period of about 1½ minutes of the 5-minute journey, intermittently rested against them.

5.  During the course of the incident the female passenger changed her position by turning about 45 to 90º (according respectively to PW1 and PW2).  The appellant however still continued to place his hand on the female passenger’s buttock, according to PW1.

6.  Eventually the train arrived at Lai King.  The female passenger went to the exit door with the appellant just behind her.  The appellant was seen by PW1 to commence to move his left hand once more towards the female passenger’s buttocks.

7.  PW1 then shouted out at the appellant words to the effect “haven’t you indecently assaulted her enough”.  PW1 then grabbed the appellant by the straps of the rucksack he was wearing.  The appellant turned and denied that he had done so and then walked quickly off.  PW1 tried but failed to maintain her grip on his rucksack.  She shouted for someone to intercept him.  The appellant then (according to PW2) ran to another platform at the station but was located eventually by an MTR staff member and PW2 who had chased after him when the appellant had left the train.

8.  The defence case was presented in evidence through the appellant himself, a work colleague Mr Kung (“DW3”), a registered Chinese medical practitioner, Mr Vincent Lo (“DW4”), who was accepted by the magistrate as an expert chiropractor so far as the issues in this case were concerned, and Dr Albert Law (“DW2”) a registered medical practitioner in Hong Kong.

9.  The appellant’s case was essentially that he had suffered from numbness on the left side of his body for several years before this incident and had sought treatment from, initially, DW2 commencing in 2005 and again in 2007, though Dr Law’s report (which was admitted in evidence as exhibit D8) simply referred to the complaint of “severe neck and back pain”.

10.  The appellant then commenced to attend Mr Vincent Lo in July 2009 (some 4 months before this incident) and complained of numbness in the left side of his body including his left hand and arm.  Mr Lo discovered a misalignment of the appellant’s spine.

11.  Mr Lo said as a result he would have advised the appellant to follow certain exercises to relieve his symptoms.  One exercise, which had the most relevance to this case, involved the appellant stretching his shoulders back, and extending his arm away from his body with the palms of his hand facing outwards.

12.  DW3, the appellant’s workmate gave evidence to the effect that he and the appellant worked together in their companies warehouse for about one year.  During that time DW3 saw the appellant about 10 times daily performing certain arm exercises involving the appellant flexing his left elbow up and down and turning his left hand so the palm was outward with all the fingers stretched straight.  The appellant complained to him that he did this exercise because he felt numbness.

13.  The appellant’s own evidence was to the effect that on 13 November 2009 during the trip from Tsing Yi to Lai King while standing in the “nearly packed” MTR carriage, he had as a matter of habit, performed exercises with his left hand and arm to relieve the feeling of numbness in his fingers and thumb.  The exercise he actually performed was not the precise one shown to him by Mr Lo, but was rather a similar exercise he had developed himself.  The exercise had become such a habit with him that he performed it involuntarily (that is without thinking).

14.  The action the appellant described in evidence was simply the turning outward of the palm of his hand as his arm lay by his side.  His case was that the numbness of his hand was such that he would not necessarily be aware of his hand coming into contact with any person during this exercise.  He agreed he possibly did touch the girl the subject of the offence but that if he did so he did not intend to do so.

15.  The issues before the magistrate were not simply those of credibility.  Even if the evidence of PW1 and PW2 was accepted, as in my view it rightly was, the fundamental issue remained of whether those witnesses could have misinterpreted the appellant’s actions as a deliberate touching of the girl when it was accidental and it was that issue, it is fair to say, upon which the case was fought.

16.  In finding that the touching was not accidental the magistrate in her reasons said, inter alia, this:

“111. During the 5 minutes journey, the female passenger turned her head to look over her shoulder to look and she dodged. That means she moved away from her original position to avoid “the touches” and created more space between herself and the contact, i.e.: ­the left hand of the Defendant.

112. Clearly, she did not want to be touched any further, but she was unsuccessful. PW1 said that after her dodged, the Defendant still continued to touch her.

113. That was an essential point to be noted because she moved to another position, as described by PW2, it was a 90-degree (the defence said 45-degree) turn from her original position. The Defendant still managed to come into contact with her buttock.

114. He said that when his hand felt numbness, it was an ‘involuntary movement’, or that particular movement has become ‘a habit’ to relieve his numbness.

115. But somehow, for an unknown reason, his left hand knew to follow her buttock even when she managed to move away from her original position.

116. If that was not intentional, what could that be?”

17.  The evidence supporting this conclusion came only from PW1 as PW2 in his evidence was silent as to whether the indecent assaults continued after the female passenger had turned her body (PW2 had said she had turned 90º to the right).

18.  PW1 had told the court that the female passenger had turned 45º, though she was not sure whether that was to the right or left. Although she had also used the word “dodge” in her evidence-in-chief, during cross-examination it become apparent that word was her description of the girl turning 45º and did not refer to a separate type of movement, particularly the movement described by the magistrate of moving away or moving to other position.

19.  The grounds of appeal advanced by Mr Grossman, SC with Mr Simon Yip for the appellant may be summarized and re-enumerated as follows:

(1) that the magistrate erred in finding that the facts of the case could support a conviction under s.17B(2) of the Ordinance;

(2) the magistrate misunderstood references in the appellant’s evidence to his hand exercises being for the purpose of relaxing as being inconsistent with other evidence as to how the appellant’s hand was twisted and stretched when it came into contact with the girl;

(2A) the magistrate misunderstood the relevance of the evidence of DW3 as to seeing the appellant perform his hand exercises about 10 times a day;

(3) the magistrate erred in rejecting the evidence of DW4 Mr Lo Pui Lung as to such exercises becoming automatic;

(4) The magistrate wrongly concluded the female passenger “dodged” the appellant’s hand;

(5) The magistrate wrongly accepted PW1 and PW2 as reliable witnesses;

(6) The magistrate erred in finding the appellant intentionally touched the female passenger’s buttocks;

and that the conviction was therefore unsafe.

20.  It can be seen that the grounds of appeal being 2, 2A, 4, 5 and 6 primarily concern various complaints made of the judge’s approach to the evidence and her findings of fact.  In my view, with the exception of that which is the appellant’s 6^th ground of appeal and to which I will return shortly, these grounds were either misconceived immaterial or inconsequential.

21.  A further ground is the 1^st ground whereby Mr Grossman, after initially wishing to reserve his argument in the event this case went to the Court of Final Appeal, contended that the prosecution case was really one of indecent assault and not of disorderly conduct.  In my view the facts of the present case as relied upon by the prosecution were capable of supporting the elements of the charged offence: see particularly HKSAR v Cheung Siu Wing [2003] 4 HKC 471 and the cases cited therein at pages 477 to 481.  I have no doubt that had the prosecution established that the acts of the appellant were intentional, that the offence in s.17B(2) would have been proven.

22.  Ground 3 complained of an aspect of DW4’s evidence that was rejected by the magistrate.  She thought Mr Lo’s expertise did not extend so as to make him an expert, at least any more so than a lay-person, as to a person’s repeated exercises becoming automatic.  I think the magistrate was right.  Mr Lo’s qualifications were, so far as they were relevant, those of a chiropractor.  His expertise had not been suggested to go beyond that for the purposes of the trial, and in giving or attempting to give evidence of automatic responses he could do no better than a layman.  As he himself said in evidence his opinion in this area was not based on his experience, everybody was aware of the phenomenon.  If the evidence was to go further than that then it involved a field better suited to behavioral experts.  But in any event nothing of any importance hung on this.  The magistrate accepted, as can be seen from the transcript that people, and therefore the appellant, could perform actions “without thinking”.

23.  The real issue on the medical evidence was whether the appellant might have acted without noticing the palm of his hand was touching the female passenger’s buttocks.  The answer to that question went some way to determining whether that appellant had been proven to have done so deliberately.

24.  Prior to the decision in Chou Shih Bin v HKSAR [2005] 1 HKLRD 838 it was generally thought that appeals in this court were not rehearings.  And on that basis I would have found no material error in the magistrate’s findings, and would have dismissed this appeal.  As this is a rehearing however I must say that, with respect to the magistrate, I have come to a different conclusion.

25.  There are two oddities to this case.  The first, which of itself is not of fundamental significance, is that the alleged victim, the female passenger, did not give evidence.  She left the scene before the apprehension of the appellant.  While that deprived both the prosecution and the defence of the ability to question her, her absence was compensated for by the presence of the two eye witnesses PW1 and PW2.

26.  The second matter is of far greater significance.  It was never challenged that the appellant had complained to different medical practitioners prior to 13 November 2009 of numbness in his left side and specifically to DW4 of numbness in his left hand and particularly the palm.  That complaint to DW4 was first made on 2 July 2009, some 4 months prior to the offence.  DW4 provided the appellant with exercises to perform, one of which involved turning the palm of his hand outward while extending his arm away from his body.  That exercise, although the outward turning of the palm seemed to result in a forward facing palm rather than a backward facing palm as well as can be understood from the description in the transcript, bore some similarity to the appellant’s action observed by PW1 and PW2.

27.  During his evidence, again so far as can be understood from the transcript, the appellant’s counsel demonstrated to DW4 the action (more or less) that the appellant had used on the 13 November train journey.  DW4 agreed it was possible such an action might be used by a person to relieve numbness.

28.  The appellant’s workmate DW3 gave evidence to the effect that he had seen the appellant on a number of occasions, up to 10 times daily, doing exercise with his left arm and hand.  The appellant told him it was to relieve numbess.  So far as the left hand was concerned it involved the palm being turned outwards with all the fingers stretched out straight.  He could not remember when he first saw this being done but said the appellant had been doing it “for a long time”.  Bearing in mind the appellant’s trial took place in January and February 2010 that would suggest DW3 saw the appellant performing these exercises likely prior to November 2009.

29.  Where does that leave matters?  It was never challenged that the appellant had a pre-existing medical condition, a symptom of which was numbness in his left arm and hand.  That condition pre-dated the offence.  Nor was it challenged that treatment for the condition included the doing of exercises which involved the left arm of the appellant moving away from the body with the palm of his hand facing outwards.  The appellant had been seen by a workmate on a large number of occasions doing exercises with his left arm and hand which involved the turning outward of the palm.

30.  Although both the exercises advised by DW4 and those observed by DW3 differed from each other and from the actions of the appellant observed by PW1 and PW2, it seems to me there was a broad similarity between all three versions.

31.  In my judgment in the absence of any collusion amongst the witnesses, and none was suggested at trial, the coincidence of the appellant’s pre-existing condition, the exercises he performed to relieve that condition and the actions observed by PW1 and PW2 is too great to ignore.  In my view the possibility has to exist that on 13 November 2009 the appellant was performing, perhaps unthinkingly, an exercise he was accustomed to use to relieve numbness when his hand came into contact with the female passenger's buttock.

32.  I put it no higher than a possibility.  There were unanswered questions at the trial.  For example for the appellant to have touched the female passenger without noticing on the number of occasions seen by PW1 and PW2 he would have had very significant numbness in his left hand and arm.  One would think that with any residual feeling in his palm, fingers or arm he would have realized that he was striking an object.  In the circumstances of the crowded carriage that could only have been another passenger.  There was no examination or cross-examination of any of the medical witnesses or of the appellant as to the degree of numbness the appellant suffered from in his hand.

33.  I must say that I have very great reservations as to the numbness suffered by the appellant being so severe as to prevent him noticing he was touching another passengers.  But I bear in mind PW1's evidence that the appellant was touching the female passenger by “resting” his hand on her buttocks for 1 to 2 seconds.  I bear in mind that this must have been a light touching as it did not cause any great reaction from the passenger other than her single change in position.  Even so, my suspicions are underlined by PW1's evidence (PW2 was silent as to this) that after the female passenger changed her position by 45º the appellant’s hand still touched her buttock. Those suspicions are the greater when PW1’s evidence is accepted that the appellant again reached out towards the female passenger’s buttock, though without touching her, as she was moving towards the exit of the train.

34.  Nevertheless, in my view, there remains a slim possibility on the evidence that the appellant was exercising his left arm and hand and that his actions were misinterpreted by PW1 and PW2.

35.  I do not place any weight on the evidence of the appellant leaving the scene with some haste once he had been accused by PW1 of indecent assault.  He was going to work, PW1 and PW2 were private citizens and the appellant may have wished to simply distance himself from a stranger who was making a very embarrassing accusation.  I note he apparently did not try to avoid apprehension by the MTR staff.  These are not actions necessarily inconsistent with innocence.

36.  For the reasons I have given, the appeal is allowed and the appellant's conviction and sentence are quashed.