HKSAR v. MAN LAP KEUNG

HCMA 699/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 699 OF 2012

(ON APPEAL FROM ESCC 1962 OF 2012)

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J U D G M E N T

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1. The Appellant was charged with one charge of indecent assault and was convicted after trial.

2. This was an offence that was alleged to have taken place in a restaurant in Quarry Bay.  The time was about 8 pm.  PW1 was an usher in the restaurant in that she would take diners to their tables.  Essentially, the evidence of PW1 was that she was standing near the entrance where the reception desk was and PW2 was the receptionist at the reception desk.  She felt something brush against her buttock and she believed that it was a hand.  PW2 said she was standing at the entrance, at the reception desk, and she saw a male actually took a look down and then deliberately used his hand with the palm facing the buttock and the fingers crooked to touch PW1’s buttock as he passed on the way out of the restaurant.  But she did not act immediately and she asked if PW1 felt the touch and meanwhile the man had left the restaurant and gone outside and walked to an escalator and went up the escalator.  After talking with PW1, PW1 then decided to report the matter to the manageress who later made the report to the police.  Subsequently PW1 and PW2 said they saw the Appellant, who was coming in to the restaurant, and went to sit at table no 3.  They said that this male was the person who had touched the buttock of PW1 and so when the policeman, PW4 arrived, he was shown to table no 3 and the Appellant was arrested.  When arrested the Appellant said that he did not touch anyone deliberately as he walked out of the restaurant.  Under caution, he said he was in a hurry to go to the toilet and he walked out of the restaurant with quick steps and passed the corridor in the middle of the restaurant.  When he walked out of the doorway he felt the passage was very clear, he did not touch or notice anyone and he said that even if he had touched someone, it was not intentional.

3. PW2 gave evidence about the assault she saw and both, PW1 and PW2, gave a description of the male.  What concerns me are their descriptions.  PW1 alleged that the built of the person was medium built whereas PW2 said he was thin built.  There is also their descriptions of the clothing of the culprit.  PW1 said he was in a suit, a dark‑coloured jacket with matching trousers.  PW2 said the culprit was in a light‑grey jacket.  PW4, the police officer, when he arrested the Appellant, said the Appellant was wearing a dark‑coloured jacket with jeans. So, immediately, what springs to mind is the difference in the descriptions of the clothing worn by the Appellant as against the descriptions of the clothing worn by the culprit.

4. In his Statement of Findings, the Learned Magistrate seemed to alleged that the timing given by the witnesses was in some way supported by the timing given by the Appellant in his cautioned statement.  The Appellant elected not to give evidence but his cautioned statement was admitted.

5. In the cautioned statement, he said that at about 7:50 pm, he told his wife, who was dining with him inside the restaurant, that he needed to go to the toilet urgently and so he left and went to the toilet.  He said it was about 10 minutes later, he returned to the restaurant at about 8 pm. The allegation of PW1 and PW2 was that the assault happened at about 8 pm and that the person had returned to the table some 20 to 25 minutes later.

6. However, the Learned Magistrate did not consider the evidence properly but said that the timing was about the same when it was not.  It causes me some concern particularly as this was a time when both witnesses agreed that it was a busy time in the restaurant.  There were many people waiting for tables outside the restaurant and so obviously it was a time when their attention were distracted by customers leaving the restaurant, coming in to the restaurant and being led to the tables.  Unfortunately, the Learned Magistrate did not deal with the major discrepancies.

7. I know that it is difficult task for the Prosecution to prove the indecent assault basically because it is for the Prosecution to prove that the touching was intentional and not accidental and the intent of the particular defendant. In order to do this, the Learned Magistrate had to consider that in view of the circumstantial evidence, the only irresistible inferences he could draw was that the indecent assault took place, and in so doing he had to settle satisfactorily any discrepancy which may lead him to consider that there may have been a mistaken identification.  Because we must not forget the alleged culprit left the restaurant.  Neither PW1 or PW2 knew at the time whether he was leaving for good or that he was a diner only going to the toilet and coming back after the toilet.  They had no way of knowing and so it was really matters like that which had to be explored and unfortunately with the discrepancies, particularly of the clothing, this had caused me grave concern.

8. The other matter is the fact that when PW4 arrived, he claimed that he was led to the table to identify the Appellant by PW1 and PW2 whereas PW1 said that she did not do so.  There is also that discrepancy to deal with.  Admittedly, it could be easily dealt with in that possibly PW4 may have been confused and did not remember correctly but adding that on to the main discrepancy of clothing. I am just quite concerned about the identification aspect and so I will have to give the benefit of doubt to the Appellant.

9. In conclusion, I would say that I am not satisfied that the conviction is safe and satisfactory so the appeal is allowed.  The conviction is quashed and the sentence set aside.

10. The costs of this appeal will as usual go to the successful Appellant and to be taxed if not agreed.