HKSAR v. LAM KAM KONG

HCMA 503/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 503 OF 2008

(ON APPEAL FROM ESCC24 OF 2008)

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J U D G M E N T

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1.  This is an appeal by the Appellant against his conviction by Miss Merinda Chow on 20 May of this year on a charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.

2.  The charge alleged that he had indecently assaulted Ng Man-ying outside 212 Wan Chai Road on 21 December 2007.

3.  The nature of the grounds of appeal advanced by Mr McGuinniety make it desirable to summarise the evidence before the learned Magistrate.

4.  The principal witness for the prosecution was a social worker, Ms Ng Man-ying (PW1), the alleged victim, who gave evidence that at about 11.50 pm on the day in question she was walking with her boyfriend (PW2), who was one or two steps ahead of her, along the pavement outside 212 Wan Chai Road, when the Appellant, who was walking towards her in the opposite direction, to her right, raised his right hand and patted her on the right breast as he passed her.

5.  She shouted out, “What is wrong with you?  What is the matter?”  but he ignored her and continued to walk on as though nothing had happened.  Ms Ng pursued him.  Initially, he brushed her away and continued walking, but then she caught hold of his jacket, whereupon he lost his balance and sat down at the entrance gate to a shop.

6.  The Appellant attempted to leave, but her boyfriend, PW2, who had by then realised that something had occurred, prevented the Appellant from leaving.

7.  The Appellant initially alleged that Ms Ng was framing him for indecent assault, but subsequently said a number of things, including that if he was arrested, then his future would be ruined; that he was sorry; that he was wrong; and that he had consumed alcohol and was drunk.  He also said that he was prepared to pay any price she named if he was allowed to go.

8.  PW2 gave evidence of hearing his girlfriend, PW1, shouting “what was the matter”, and seeing her involved in what appeared to be a struggle with the Appellant.  She informed him that the Appellant appeared to be drunk.  He saw the Appellant staggering towards a railing and then lie against the railing.  PW2 then grasped the railing on either side of the Appellant.  He also gave evidence of the Appellant offering to pay them money to let him go, and saying that if they reported the matter to the police it would ruin his life.

9.  A public light bus driver (PW3) gave evidence of walking along Wan Chai Road about six feet behind a female, who must have been Ms Ng, when he saw a man walking in the opposite direction stretch out his hand to touch her in what appeared to be the breast area.  Initially, it occurred to him that they must know each other, but then the female shouted out, “What is wrong with you?”

10.  A police officer, PC3375 (PW4), attended the scene.  He said that the Appellant smelt of alcohol.  He said that after he had cautioned and arrested the Appellant for indecent assault, the Appellant had said that even though he had consumed some alcohol, he was sure that he had not done it.

The Defence Evidence

11.  The Appellant, who was an operations manager of an oil company, gave evidence that he had attended a company annual dinner that evening, during the course of which he had consumed about 20 glasses of red wine and Mai Tai.  At about 10 pm he called his girlfriend and arranged to meet her in the vicinity of the C C Wu Building in Wan Chai Road, but had then been persuaded to have another drink, this time of whiskey, at a nearby bar.

12.  He said that by then he was very drunk.  He had a vague impression of boarding a taxi, but could not recall if he was alone.  He had no recollection of the incident outside 212 Wan Chai Road as he was so drunk, but he remembered being grabbed from behind, and ending up in the police station.  He recalled someone alleging that he had committed an indecent assault when he was at the police station.

13.  He called a friend and colleague, DW2, who had been at the company dinner, and said that the Appellant must have consumed more than 10 glasses of wine; that the Appellant had a further drink or drinks at a bar; the Appellant was drunk.  DW2 said that he then intended to see that the Appellant got home in a taxi.  He had boarded the taxi with the Appellant and had told the taxi driver to go to the Appellant’s home, but the Appellant had insisted he had to return a book or books to a bookstore near the C C Wu Building.

14.  At some stage in the taxi the Appellant had appeared to fall asleep.  When the taxi arrived in the vicinity of the C C Wu Building, he had told the Appellant he would return the book or books for him.  He left the Appellant in the taxi with a bag containing what he described as important documents.  After returning the book or books for the Appellant, he walked back towards the taxi, but as he passed C C Wu Building, he saw the Appellant walking towards him.  He asked the Appellant where he was going, but the Appellant had not replied.  He therefore returned to the taxi.  Having waited in the taxi for a while, he then walked along Wan Chai Road to look for the Appellant, but had been unable to find him.

15.  The Appellant also called his girlfriend, DW3, who gave evidence she had received a phone call from the Appellant saying he was about to leave the company dinner.  He had said he would meet her in Wan Chai but had not been definite about the place.  She had waited about an hour for his further call before leaving.  She had seen him some time after 2 am at the police station, where she said the Appellant had smelt of drink.

16.  In her statement of findings, the learned Magistrate found that the Appellant had intentionally patted Ms Ng’s breast and that such an act was indecent in nature.  She accepted the prosecution witnesses to be truthful witnesses, and attached weight to the admissions made by the Appellant.

17.  She rejected the evidence of the Appellant.  In particular, she found that the Appellant was only making use of the fact that he had been drinking to pretend to be drunk after the incident.  She found that he was not so drunk as to be unaware of the situation at the material time.  She also found that he knew that what he was doing was wrong, and that was the reason he asked for mercy and to be able to leave.

18.  The first ground of appeal put forward by Mr McGuinniety on behalf of the Appellant was that the Magistrate failed properly to consider whether or not the Appellant’s actions were the result of carelessness rather than being deliberate.  In particular, he relied upon an exchange in cross-examination where he had asked Ms Ng (PW1), the question:  “If you had called out to the defendant and he had stopped and said, ‘Oh, I’m sorry about that’, would you have accepted that his action was careless?”  Her reply was:  “Perhaps.”

19.  The Magistrate expressly considered this question and answer and the issue of accident or carelessness, and rejected those possibilities.  She referred to Ms Ng’s description of what the Appellant had done:  namely, stretch out his hand, pat her breast, and then withdraw his hand.  Ms Ng’s evidence was that she felt that the Appellant had patted her intentionally.  Ms Ng said that if it had been his carelessness, the Appellant would have stopped to apologise, but did not do so.

20.  The Magistrate, in ruling out accidental or careless contact, referred to the Appellant’s failure to apologise and what it was that he had in fact said, namely his request for mercy and his admission that he was wrong.  She also referred to the Appellant’s remark to the police after being cautioned that he was sure that he did not indecently assault PW1.

21.  The Magistrate was perfectly entitled to take the view, which corresponded to common sense, that if the contact was accidental, the Appellant would have said so, particularly if, as he told the police, that even though he had consumed some alcohol, he was sure about what had happened.

22.  The second ground of appeal was that the Magistrate wrongly relied upon hearsay evidence from PW1 that PW3 had told her that “He saw the defendant touch her” when there was no such evidence from PW3 and the evidence from PW3 was that he did not know what the defendant was doing.  Mr McGuinniety argues that since PW3 never said that he had said this to PW1 but simply said that he had told PW1 to report the matter to the police, the Magistrate was wrong to rely upon this evidence.

23.  There is no substance in this ground.  There is nothing to suggest that the Magistrate relied upon this evidence.  She was merely relating the history of the incident given by PW1.  In any event, simply because PW3 did not say that he had told PW1 what he had seen does not mean that he did not say it.  He was not purporting to relate everything that he said to PW1.

24.  The third ground of appeal is a criticism of the Magistrate’s reasons for disbelieving DW2.  It is said that they are difficult to follow and that the Magistrate failed to appreciate that DW2 had himself been drinking that night, and his actions might not be those of a sober man.

25.  I find no difficulty in understanding why the learned Magistrate was saying that she rejected DW2’s evidence.  If the Appellant had been very drunk - and it has to be remembered that according to DW2, the Appellant had, at one stage, been so drunk that he appeared to have fallen asleep - DW2 would not have left important documents in his custody.  It was a reasonable comment for him to make that if the Appellant had fallen asleep in the taxi, DW2 could have directed the taxi to go straight to the Appellant’s home, as he had originally intended, rather than persist in going to a bookshop, which would involve leaving the Appellant in a taxi in a very intoxicated state.

26.  Furthermore, I consider that the Magistrate was justified in rejecting as implausible DW2’s evidence of not being able to find the Appellant after having seen the Appellant walking towards him as he walked past C C Wu Building after returning the Appellant’s book or books to the bookshop, thereby providing an explanation why he was not present at the time of the alleged assault.

27.  Bearing in mind where DW2 said the taxi had been parked, this would mean that the Appellant had left the taxi and had walked along the pavement in a westerly direction and then, some time later, despite allegedly being so drunk as not to know what he was doing, had managed, after DW2 had left the scene, to get to a position a few yards to the east of where the taxi had parked, again walking in a westerly direction, when he committed the alleged assault.  Even if this latter scenario was theoretically possible, it was highly unlikely.

28.  In any event, the Magistrate was, in my view, entirely justified in rejecting DW2’s evidence on the other grounds.

29.  On that basis, it was fair to conclude that DW2 must have come to court to give false evidence to assist his friend, the Appellant.  Although DW2 said that he had himself been drinking during the company dinner that evening, there was no evidence as to how much or what he had drunk.  It would be pure speculation, in the absence of evidence, for the Magistrate to expressly refer to the possibility that DW2’s actions might not be that of a man of sober mind.

30.  In the fourth ground of appeal, it is alleged that the Magistrate unfairly concluded that when the defendant said he was wrong, it amounted to an admission, and that the Magistrate only appeared to have considered the inculpatory words which the defendant uttered.

31.  It is true that PW1 said that the Appellant had initially accused her of framing him with indecent assault, but later went on to apologise and say he was wrong.

32.  I see nothing wrong in the Magistrate relying upon that apology as an admission, whether or not the Appellant had initially denied the offence.

33.  In the fifth ground of appeal, it is alleged that the learned Magistrate did not fairly consider the evidence in considering whether the defendant was drunk. 

34.  I am satisfied that the Magistrate did fairly consider the evidence, and was entitled to come to the conclusion that the defendant was using alleged drunkenness to excuse his conduct.  There was no dispute that the Appellant had been drinking.  The question before the Magistrate was whether he may have been so drunk as not to know what he was doing.  She rejected that possibility.  In reaching that conclusion, she referred to what the Appellant had said to PW1 and PW2, including the fact that he had apologised and said he was wrong, and was clearly aware of the consequences.

35.  In my view, he would not have had the clarity of mind to tell the police officer that even though he had consumed alcohol he was sure he did not indecently assault PW1 if he had been so drunk as not to know what he was doing.  Furthermore, the learned Magistrate was entitled to draw the conclusion that there was a contrast between the Appellant’s demeanour and gait before the alleged assault and afterwards, based upon the evidence of PW1 and PW3, indicating that the staggering and lurching and other behaviour of the Appellant after the alleged assault was an attempt to make it appear that he was more drunk than he was, and therefore provide an excuse for his conduct.

36.  Mr McGuinniety has pointed to an answer of PW2 regarding what had occurred.  He said that he heard his girlfriend shouting and had seen the Appellant and his girlfriend apparently struggling.  He went on, “I heard from my girlfriend that the person across the road, i.e. the defendant, patted on her breast once, and that defendant continued to walk, staggering, and he appeared to be drunk.”

37.  Mr McGuinniety refers to the word “continued”, and submits that it indicates that PW1 was saying that the Appellant had been staggering before the alleged assault.

38.  In my view, it would be pure speculation to use that single word to impugn the evidence of PW1 which the Magistrate accepted, and which was supported by the evidence of PW3, bearing in mind its ambiguity in the circumstances.  It may be that PW2, who had apparently not noticed the Appellant until after the incident, was talking about his own observation of what the Appellant had gone on to do after the struggle with his girlfriend, or it may reflect the duration of the staggering by the Appellant observed by PW2.  Even if it reflects something he was told by PW1, it does not follow that she was saying that the Appellant was staggering before the alleged assault or that he appeared to be drunk before the incident rather than after.

39.  For the above reasons, I dismiss the Appellant’s appeal against conviction.