HKSAR v. BOONE, ALAIN J.L.V.

HCMA769/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.769 OF 2002

(ON APPEAL FROM KCCC 5870 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction for indecent assault. The case is a very simple one. A lady, PW1, was standing outside the 7-11 shop in Soares Avenue at 3:00 in the morning. It was common ground that the appellant in this case had been inside the 7-11 with his fiancée. He came out, and then passed by the side of her. He, on any view of the matter, passed close to PW1 wherever it was she may have been exactly standing. PW1 told the magistrate that she definitely felt that her right buttock was squeezed and described feeling the fingers and the deliberate touching of that part of her body. The case for the appellant was that he had no recollection of any touching taking place but that it may have been that his jacket, his suit jacket which had things in the pocket, might have swung wide and that might explain why the woman thought she was touched. It was a very simple and straightforward case, though the fact that it was simple and straightforward does not mean that it is not difficult to decide.

2. The appellant is quite entitled to come along and take the same points argued in front of the magistrate. But he has to realise that it was the magistrate who saw and heard the witnesses and I have not. I have to decide the appeal on the written record that I have with the help of the Statement of Findings prepared by the magistrate.

3. Cases like this turn on credibility. In judging credibility the tribunal that hears and sees the witnesses is far better placed to make the right decision. There is nothing in the evidence or the approach that the magistrate took that leads me to think that her assessment of credibility was based other than on sound observation and sound reasoning. So it follows that the appellant has got an uphill task to persuade me to exercise my powers in his favour. Nonetheless, I look at the facts again and I consider them in the light of the submissions made, very nicely if I may say so, by Mr Forrest.

4. The victim in this case described her bottom being squeezed in terms that were quite at odds with a causal brushing. And I judge that her behaviour when it happened and after it happened was consistent with it happening. The magistrate thought so too and that is powerful evidence against the appellant.

5. In giving some brief reasons at the time of her conviction, the magistrate dismissed as immaterial the fact that the victim had changed what she said about exactly how far she was standing from the door. In the witness statement she made to the police, and in her evidence-in-chief, she put that at three feet, under cross-examination that was changed to about 81/2 feet, this being measured from her estimation of a distance demonstrated in court. In her Statement of Findings the magistrate amplified why she thought it was immaterial. She gave good and sound reasons for so finding. There is nothing in the suggestion that this indicates any change of mind on the part of the magistrate or any rush to judgment. Magistrates are not obliged to give reasons at the time of their verdicts but they do so in order to inform a defendant as soon as possible without having to go through the formal steps of appeal and it is a sensible course to take. One must expect that in the written Statement of Findings, when there is an appeal, that the reasons will be amplified and set out in much greater detail. It is commonplace and that there is nothing unusual in what occurred here and I find there to be no tension between what was said at the time and what was written later.

6. It was common ground that the appellant passed close by the victim. The issue is whether there was an accidental brushing or a deliberate squeeze and it seems to me that whether they were three feet from the door or eight and a half feet from the door did not really matter. It was not in itself particularly material because it was always open to the appellant in this case to say even if she was a little further up the street, she was still in his way. I do not think the exact position would have helped the magistrate in coming to her conclusion. As to the suggestion that this was a deliberate change of evidence in order to make life more difficult for the appellant in the trial below, I think that could be readily dismissed by the magistrate and I take the same view.

7. Two further main points were made today and in calling them jury points I do not disparage them but that is what they are. Nonetheless I considered them.

8. The first one was that it is said that a man of good character would not squeeze a local lady in the street when he was out in the company of his Chinese fiancée and secondly it is said that the evidence was that he had walked some 30 metres off down the street when the victim shouted, and, if he had done it, he would not have walked back.

9. The general answer to the jury points is that these courts would be much less full if people did always behave sensibly and properly. The criminal courts are the places where you find instances of human weakness and regrettable impulse.

10. The second more specific answer to those jury points is based on what I seen in, and the impression I gain from, the written record put before me. I have got a full transcript and I have read it all. It was common ground that it was 3:00 in the morning; that the appellant had an open can of beer in his hand and he smelled heavily of alcohol. The cry from the victim was "motherfucker". He said he did not actually hear those words but there was nobody else in the street yet he turned round and went back and decided to ask her "what's your problem". If he is right, someone shouting 30 metres down the street was unrelated to anything that he had done and it was unrelated to any conduct on his part. His case was that she was shouting in Cantonese, a language he did not understand. It seems to me that those matters all taken together may be seen as behaviour that displayed an attitude that sat well and consistently with him choosing to make free with his hands in the manner that was complained of.

11. That is the impression I get from the record. If it is complained that that is a wrong impression I have now, it just reinforces the point how the magistrate is in the right position, hearing and seeing the witnesses, to get it right.

12. There is nothing in the material before me that makes me think the magistrate was in error in any regard. There is nothing to persuade me to exercise the powers set out in section 119 of the Magistrates Ordinance. There was and is ample evidence to support the conviction and, therefore, despite the fine efforts of Mr Forrest, I confirm the order the magistrate made.